Exhibit 4.4


 




 





 


AMENDED AND RESTATED DECLARATION

OF TRUST


 


by and among


 


U.S. BANK NATIONAL ASSOCIATION,

as Institutional Trustee,


 


CAPITAL CORP OF THE WEST,

as Sponsor,


 


and


 


KENNETH K. LEE, JANEY CABRAL and DAVID CURTIS,

as Administrators,


 


Dated as of December 17, 2003


 




 





 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I INTERPRETATION AND DEFINITIONS

  	
   

  
	
   

  	
  Section 1.1.

  	
  Definitions.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II ORGANIZATION

  	
   

  
	
   

  	
  Section 2.1.

  	
  Name

  	
   

  
	
   

  	
  Section 2.2.

  	
  Office.

  	
   

  
	
   

  	
  Section 2.3.

  	
  Purpose

  	
   

  
	
   

  	
  Section 2.4.

  	
  Authority.

  	
   

  
	
   

  	
  Section 2.5.

  	
  Title to Property of the Trust.

  	
   

  
	
   

  	
  Section 2.6.

  	
  Powers and Duties of the Institutional
  Trustee and the Administrators

  	
   

  
	
   

  	
  Section 2.7.

  	
  Prohibition of Actions by the Trust and the
  Institutional Trustee

  	
   

  
	
   

  	
  Section 2.8.

  	
  Powers and Duties of the Institutional
  Trustee.

  	
   

  
	
   

  	
  Section 2.9.

  	
  Certain Duties and Responsibilities of the
  Institutional Trustee and Administrators

  	
   

  
	
   

  	
  Section 2.10.

  	
  Certain Rights of Institutional Trustee

  	
   

  
	
   

  	
  Section 2.11.

  	
  Execution of Documents.

  	
   

  
	
   

  	
  Section 2.12.

  	
  Not Responsible for Recitals or Issuance
  of Securities

  	
   

  
	
   

  	
  Section 2.13.

  	
  Duration of Trust.

  	
   

  
	
   

  	
  Section 2.14.

  	
  Mergers.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III SPONSOR

  	
   

  
	
   

  	
  Section 3.1.

  	
  Sponsor’s Purchase of Common Securities

  	
   

  
	
   

  	
  Section 3.2.

  	
  Responsibilities of the Sponsor.

  	
   

  
	
   

  	
  Section 3.3.

  	
  Expenses

  	
   

  
	
   

  	
  Section 3.4.

  	
  Right to Proceed

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV INSTITUTIONAL TRUSTEE AND
  ADMINISTRATORS

  	
   

  
	
   

  	
  Section 4.1.

  	
  Institutional Trustee; Eligibility.

  	
   

  
	
   

  	
  Section 4.2.

  	
  Administrators

  	
   

  
	
   

  	
  Section 4.3.

  	
  Appointment, Removal and Resignation of
  Institutional Trustee and Administrators

  	
   

  
	
   

  	
  Section 4.4.

  	
  Institutional Trustee Vacancies

  	
   

  
	
   

  	
  Section 4.5.

  	
  Effect of Vacancies

  	
   

  
	
   

  	
  Section 4.6.

  	
  Meetings of the Institutional Trustee and
  the Administrators

  	
   

  
	
   

  	
  Section 4.7.

  	
  Delegation of Power.

  	
   

  
	
   

  	
  Section 4.8.

  	
  Conversion, Consolidation or Succession to
  Business.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V DISTRIBUTIONS

  	
   

  
	
   

  	
  Section 5.1.

  	
  Distributions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI ISSUANCE OF SECURITIES

  	
   

  
	
   

  	
  Section 6.1.

  	
  General Provisions Regarding Securities.

  	
   

  
	
   

  	
  Section 6.2.

  	
  Paying Agent, Transfer Agent and Registrar

  	
   

  
	
   

  	
  Section 6.3.

  	
  Form and Dating

  	
   

  
	
   

  	
  Section 6.4.

  	
  Mutilated, Destroyed, Lost or Stolen
  Certificates

  	
   

  
	
   

  	
  Section 6.5.

  	
  Temporary Securities.

  	
   

  
	
   

  	
  Section 6.6.

  	
  Cancellation.

  	
   

  



 


i

















 


	
   

  	
  Section 6.7.

  	
  Rights of Holders; Waivers of Past
  Defaults.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII DISSOLUTION
  AND TERMINATION OF TRUST

  	
   

  
	
   

  	
  Section 7.1.

  	
  Dissolution and Termination of Trust

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII TRANSFER OF INTERESTS

  	
   

  
	
   

  	
  Section 8.1.

  	
  General.

  	
   

  
	
   

  	
  Section 8.2.

  	
  Transfer Procedures and Restrictions.

  	
   

  
	
   

  	
  Section 8.3.

  	
  Deemed Security Holders

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX
  LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, INSTITUTIONAL TRUSTEE OR
  OTHERS

  	
   

  
	
   

  	
  Section 9.1.

  	
  Liability.

  	
   

  
	
   

  	
  Section 9.2.

  	
  Exculpation.

  	
   

  
	
   

  	
  Section 9.3.

  	
  Fiduciary Duty.

  	
   

  
	
   

  	
  Section 9.4.

  	
  Indemnification.

  	
   

  
	
   

  	
  Section 9.5.

  	
  Outside Businesses.

  	
   

  
	
   

  	
  Section 9.6.

  	
  Compensation; Fee.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X ACCOUNTING

  	
   

  
	
   

  	
  Section 10.1.

  	
  Fiscal Year

  	
   

  
	
   

  	
  Section 10.2.

  	
  Certain Accounting Matters

  	
   

  
	
   

  	
  Section 10.3.

  	
  Banking.

  	
   

  
	
   

  	
  Section 10.4.

  	
  Withholding.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI AMENDMENTS AND MEETINGS

  	
   

  
	
   

  	
  Section 11.1.

  	
  Amendments.

  	
   

  
	
   

  	
  Section 11.2.

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

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII REPRESENTATIONS OF
  INSTITUTIONAL TRUSTEE

  	
   

  
	
   

  	
  Section 12.1.

  	
  Representations and Warranties of
  Institutional Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII MISCELLANEOUS

  	
   

  
	
   

  	
  Section 13.1.

  	
  Notices

  	
   

  
	
   

  	
  Section 13.2.

  	
  Governing Law

  	
   

  
	
   

  	
  Section 13.3.

  	
  Intention of the Parties

  	
   

  
	
   

  	
  Section 13.4.

  	
  Headings

  	
   

  
	
   

  	
  Section 13.5.

  	
  Successors and Assigns

  	
   

  
	
   

  	
  Section 13.6.

  	
  Partial Enforceability.

  	
   

  
	
   

  	
  Section 13.7.

  	
  Counterparts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Annex I

  	
  Terms of Securities

  	
   

  
	
  Exhibit A-1

  	
  Form of Capital Security Certificate

  	
   

  
	
  Exhibit A-2

  	
  Form of Common Security Certificate

  	
   

  
	
  Exhibit B

  	
  Specimen of Initial Debenture

  	
   

  
	
  Exhibit C

  	
  Placement Agreement

  	
   

  



 


ii

















 


AMENDED AND RESTATED


 


DECLARATION OF TRUST


 


OF


 


COUNTY STATUTORY TRUST II


 


December 17, 2003


 


AMENDED AND RESTATED
DECLARATION OF TRUST (“Declaration”) dated and effective as of December
17, 2003, by the Institutional Trustee (as defined herein), the Administrators
(as defined herein), the Sponsor (as defined herein) and by the holders, from
time to time, of undivided beneficial interests in the Trust (as defined
herein) to be issued pursuant to this Declaration;


 


WHEREAS, the Institutional
Trustee, the Administrators and the Sponsor established County Statutory Trust
II (the “Trust”), a statutory trust under the Statutory Trust Act (as
defined herein) pursuant to a Declaration of Trust dated as of December 5, 2003
(the “Original Declaration”), and a Certificate of Trust filed with the
Secretary of State of the State of Connecticut on December 5, 2003, for the
sole purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain debentures of the Debenture Issuer (as defined herein);


 


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


 


WHEREAS, the Institutional
Trustee, the Administrators and the Sponsor, by this Declaration, amend and
restate each and every term and provision of the Original Declaration;


 


NOW, THEREFORE, it being the
intention of the parties hereto to continue the Trust as a statutory trust
under the Statutory Trust Act and that this Declaration constitutes the
governing instrument of such statutory trust, the Institutional Trustee
declares that all assets contributed to the Trust will be held in trust for the
benefit of the holders, from time to time, of the securities representing
undivided beneficial interests in the assets of the Trust issued hereunder,
subject to the provisions of this Declaration. 
The parties hereto hereby agree as follows:


 


ARTICLE I


 


INTERPRETATION AND DEFINITIONS


 


Section 1.1.                                Definitions.  Unless the
context otherwise requires:


 


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


 


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


 


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


 


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


 


1

















 


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


 


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


 


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


 


“Administrators”
means each of Kenneth K. Lee, Janey Cabral and David Curtis , solely in such
Person’s capacity as Administrator of the Trust created and continued hereunder
and not in such Person’s individual capacity, or such Administrator’s successor
in interest in such capacity, or any successor appointed as herein provided.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Capital Treatment Event”
has the meaning set forth in paragraph 4(a) of Annex I. “Certificate” means any
certificate evidencing Securities. “Closing Date” has the meaning set forth in
the Placement Agreement.


 


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


 


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


 


2

















 


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


 


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


 


“Corporate Trust Office”
means the office of the Institutional Trustee at which the corporate trust
business of the Institutional Trustee shall, at any particular time, be
principally administered, which office at the date of execution of this
Declaration is located at 225 Asylum Street, Goodwin Square, Hartford,
Connecticut  06103.


 


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


 


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


 


“Debenture Issuer”
means Capital Corp of the West, a California corporation, in its capacity as issuer
of the Debentures under the Indenture.


 


“Debenture Trustee”
means U.S. Bank National Association, as trustee under the Indenture until a
successor is appointed thereunder, and thereafter means such successor trustee.


 


“Debentures” means
the Floating Rate Junior Subordinated Deferrable Interest Debentures due 2033
to be issued by the Debenture Issuer under the Indenture.


 


“Defaulted Interest”
has the meaning set forth in the Indenture. “Determination Date” has the
meaning set forth in paragraph 4(a) of Annex I. “Direct Action” has the meaning
set forth in Section 2.8(d).


 


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


 


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


 


“Distribution Period”
means each period beginning on (and including) the date of original issuance
and each succeeding Distribution Payment Date and ending on (but excluding) the
next succeeding Distribution Payment Date.


 


“Distribution Rate”
means (i) for the Distribution Periods beginning on (and including) the date of
original issuance through (but excluding) the Distribution Payment Date in
December, 2008, the rate per annum of the Prime Rate, plus 0.07%, and (ii) for
each successive Distribution Period beginning on (and including) the
Distribution Payment Date in December, 2008, the rate per annum equal to
3-Month LIBOR, determined as described in Section 4(a) of Annex I, plus 2.85%.


 


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


 


3

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


4

















 


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


 


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


 


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


 


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


 


“New York City Banking
Day” has the meaning set forth in paragraph 4(a) of Annex I.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Prime Rate” has the
meaning set forth in paragraph 4(a) of Annex I. “Property Account” has the
meaning set forth in Section 2.8(c). “Pro Rata “ has the meaning set forth in
paragraph 8 of Annex I.


 


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


 


5

















 


“Rate Cut-off Date”
has the meaning set forth in paragraph 4(a) of Annex I.


 


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


 


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


 


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


 


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


 


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


 


“Restricted Securities
Legend” has the meaning set forth in Section 8.2(b). “Rule 3a-5” means Rule
3a-5 under the Investment Company Act. “Rule 3a-7” means Rule 3a-7 under the
Investment Company Act. “Securities” means the Common Securities and the
Capital Securities.


 


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


 


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


 


“Sponsor” means
Capital Corp of the West, a California corporation, or any successor entity in
a merger, consolidation or amalgamation, in its capacity as sponsor of the
Trust.


 


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


 


“Successor Entity”
has the meaning set forth in Section 2.14(b). “Successor Institutional Trustee”
has the meaning set forth in Section 4.3(a). “Successor Securities” has the
meaning set forth in Section 2.14(b). “Super Majority” has the meaning set
forth in paragraph 5(b) of Annex I. “Tax Event” has the meaning set forth in
paragraph 4(a) of Annex I.


 


“10% in liquidation
amount of the Securities” means Holder(s) of outstanding Securities voting
together as a single class or, as the context may require, Holders of
outstanding Capital Securities or


 


6

















 


Holders of outstanding
Common Securities voting separately as a class, who are the record owners of
10% or more of the aggregate liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus accrued and
unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.


 


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


 


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


 


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


 


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


 


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


 


“USD-Prime-H.15” has
the meaning set forth in paragraph 4(a) of Annex I.


 


ARTICLE II


 


ORGANIZATION


 


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


 


Section 2.2.                                Office.  The address of
the principal office of the Trust is c/o U.S. Bank National Association, 225
Asylum Street, Goodwin Square, Hartford, Connecticut  06103.  On at least 10
Business Days written notice to the Holders of the Securities, the
Administrators may designate another principal office, which shall be in a
state of the United States or in the District of Columbia.


 


Section 2.3.                                Purpose.  The exclusive
purposes and functions of the Trust are (a) to issue and sell the Securities
representing undivided beneficial interests in the assets of the Trust, (b) to
invest the gross proceeds from such sale to acquire the Debentures, (c) to
facilitate direct investment in the assets of the Trust through issuance of the
Common Securities and the Capital Securities and (d) except as otherwise
limited herein, to engage in only those other activities necessary or
incidental thereto.  The Trust shall not
borrow money, issue debt or reinvest proceeds derived from investments, pledge
any of its assets, or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust.


 


Section 2.4.                                Authority.  Except as
specifically provided in this Declaration, the Institutional Trustee shall have
exclusive and complete authority to carry out the purposes of the Trust.  An action taken by the Institutional Trustee
in accordance with its powers shall constitute the act of and serve to bind the
Trust.  In dealing with the
Institutional Trustee acting on behalf of the Trust, no Person shall be
required to inquire into the authority of the Institutional Trustee to bind the
Trust.  Persons dealing with the Trust
are entitled to rely conclusively on the power and authority of the
Institutional Trustee as set forth in this Declaration.  The Administrators shall have only those ministerial
duties set forth herein with


 


7

















 


respect to accomplishing the
purposes of the Trust and are not intended to be trustees or fiduciaries with
respect to the Trust or the Holders. 
The Institutional Trustee shall have the right, but shall not be
obligated except as provided in Section 2.6, to perform those duties assigned
to the Administrators.


 


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


 


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


 


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


 


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


 


(A)  the issuance and sale of the Securities;


 


(B)  to cause the Trust to enter into, and to
execute and deliver on behalf of the Trust, such agreements as may be necessary
or desirable in connection with the purposes and function of the Trust,
including agreements with the Paying Agent;


 


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


 


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


 


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


 


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


 


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


 


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


 


(I)  the taking of any action incidental to the
foregoing as the Institutional Trustee may from time to time determine is
necessary or advisable to give effect to the terms of


 


8

















 


this Declaration for the benefit
of the Holders (without consideration of the effect of any such action on any
particular Holder);


 


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


 


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


 


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


 


(A)  the establishment of the Property Account;


 


(B)  the receipt of the Debentures;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(J)  to take all action that may be necessary for
the preservation and the continuation of the Trust’s valid existence, rights,
franchises and privileges as a statutory trust under the laws of the State of
Connecticut and of each other jurisdiction in which such existence is necessary
to protect the limited liability of the Holders of the Capital Securities or to
enable the Trust to effect the purposes for which the Trust was created.


 


(iii)                               The Institutional Trustee shall have the
power and authority to act on behalf of the Trust with respect to any of the
duties, liabilities, powers or the authority of the 


 


9

















 


Administrators set forth in
Section 2.6(a)(i)(D), (E) and (F) herein but shall not have a duty to do any
such act unless specifically requested to do so in writing by the Sponsor, and
shall then be fully protected in acting pursuant to such written request; and
in the event of a conflict between the action of the Administrators and the
action of the Institutional Trustee, the action of the Institutional Trustee
shall prevail.


 


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


 


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


 


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


 


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


 


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


 


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


 


(d)                                 Notwithstanding anything herein to the
contrary, the Administrators and the Holders of a Majority in liquidation
amount of the Common Securities are authorized and directed to conduct the
affairs of the Trust and to operate the Trust so that the Trust will not (i) be
deemed to be an Investment Company required to be registered under the
Investment Company Act, and (ii) fail to be classified as a “grantor trust” for
United States federal income tax purposes. 
The Administrators and the Holders of a Majority in liquidation amount
of the Common Securities shall not take any action inconsistent with the
treatment of the Debentures as indebtedness of the Debenture Issuer for United
States federal income tax purposes.  In
this connection, the Administrators and the Holders of a Majority in
liquidation amount of the Common Securities are authorized to take any action,
not inconsistent with applicable laws, the


 


10

















 


Certificate of Trust or this
Declaration, as amended from time to time, that each of the Administrators and
the Holders of a Majority in liquidation amount of the Common Securities
determines in their discretion to be necessary or desirable for such purposes.


 


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


 


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


 


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


 


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


 


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


 


(a)                                  The Trust shall not, and the Institutional
Trustee shall cause the Trust not to, engage in any activity other than as
required or authorized by this Declaration. 
In particular, the Trust shall not and the Institutional Trustee shall
cause the Trust not to:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(viii)                        other than as provided in this Declaration (including
Annex I), (A) direct the time, method and place of exercising any trust or
power conferred upon the Debenture Trustee with respect to the Debentures, (B)
waive any past default that is waivable under the Indenture, (C) exercise any
right to rescind or annul any declaration that the principal of all the
Debentures shall be due and payable, or (D) consent to any amendment,
modification or termination of the Indenture or the Debentures where such
consent shall be required unless the Trust shall have


 


11

















 


received a written opinion
of counsel to the effect that such modification will not cause the Trust to
cease to be classified as a “grantor trust” for United States federal income
tax purposes.


 


Section 2.8.                                Powers and Duties of the
Institutional Trustee.


 


(a)                                  The legal title to the Debentures shall be
owned by and held of record in the name of the Institutional Trustee in trust
for the benefit of the Trust and the Holders of the Securities.  The right, title and interest of the
Institutional Trustee to the Debentures shall vest automatically in each Person
who may hereafter be appointed as Institutional Trustee in accordance with
Section 4.3.  Such vesting and cessation
of title shall be effective whether or not conveyancing documents with regard
to the Debentures have been executed and delivered.


 


(b)                                 The Institutional Trustee shall not transfer
its right, title and interest in the Debentures to the Administrators.


 


(c)                                  The Institutional Trustee shall:


 


(i)                                     establish and maintain a segregated
non-interest bearing trust account (the “Property Account”) in the name
of and under the exclusive control of the Institutional Trustee, and maintained
in the Institutional Trustee’s trust department, on behalf of the Holders of
the Securities and, upon the receipt of payments of funds made in respect of
the Debentures held by the Institutional Trustee, deposit such funds into the
Property Account and make payments, or cause the Paying Agent to make payments,
to the Holders of the Capital Securities and Holders of the Common Securities
from the Property Account in accordance with Section 5.1.  Funds in the Property Account shall be held
uninvested until disbursed in accordance with this Declaration;


 


(ii)                                  engage in such ministerial activities as
shall be necessary or appropriate to effect the redemption of the Capital
Securities and the Common Securities to the extent the Debentures are redeemed
or mature; and


 


(iii)                               upon written notice of distribution issued by
the Administrators in accordance with the terms of the Securities, engage in
such ministerial activities as shall be necessary or appropriate to effect the
distribution of the Debentures to Holders of Securities upon the occurrence of
certain circumstances pursuant to the terms of the Securities.


 


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


 


12

















 


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


 


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


 


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


 


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


 


The Institutional Trustee must
exercise the powers set forth in this Section 2.8 in a manner that is
consistent with the purposes and functions of the Trust set out in Section 2.3,
and the Institutional Trustee shall not take any action that is inconsistent
with the purposes and functions of the Trust set out in Section 2.3.


 


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


 


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


 


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


 


(c)                                  All payments made by the Institutional
Trustee or a Paying Agent in respect of the Securities shall be made only from
the revenue and proceeds from the Trust Property and only to the extent that
there shall be sufficient revenue or proceeds from the Trust Property to enable
the Institutional


 


13

















 


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


 


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


 


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


 


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


 


(iii)                               the Institutional Trustee’s sole duty with
respect to the custody, safekeeping and physical preservation of the Debentures
and the Property Account shall be to deal with such property in a similar
manner as the Institutional Trustee deals with similar property for its
fiduciary accounts generally, subject to the protections and limitations on
liability afforded to the Institutional Trustee under this Declaration;


 


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


 


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


 


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


 


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


 


(b)                                 if (i) in performing its duties under this
Declaration, the Institutional Trustee is required to decide between
alternative courses of action, (ii) in construing any of the provisions of this
Declaration, the Institutional Trustee finds the same ambiguous or inconsistent
with any other provisions contained


 


14

















 


herein, or (iii) the
Institutional Trustee is unsure of the application of any provision of this
Declaration, then, except as to any matter as to which the Holders of Capital
Securities are entitled to vote under the terms of this Declaration, the
Institutional Trustee may deliver a notice to the Sponsor requesting the
Sponsor’s written instructions as to the course of action to be taken and the Institutional
Trustee shall take such action, or refrain from taking such action, as the
Institutional Trustee shall be instructed in writing, in which event the
Institutional Trustee shall have no liability except for its own negligence or
willful misconduct;


 


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


 


(d)                                 whenever in the administration of this
Declaration, the Institutional Trustee shall deem it desirable that a matter be
proved or established before undertaking, suffering or omitting any action
hereunder, the Institutional Trustee (unless other evidence is herein
specifically prescribed) may request and conclusively rely upon an Officers’
Certificate as to factual matters which, upon receipt of such request, shall be
promptly delivered by the Sponsor or the Administrators;


 


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


 


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


 


(g)                                 the Institutional Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Declaration at the request or direction of any of the Holders pursuant to this
Declaration, unless such Holders shall have offered to the Institutional
Trustee security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction; provided, that nothing contained in this Section
2.10(g) shall be taken to relieve the Institutional Trustee, subject to Section
2.9(b), upon the occurrence of an Event of Default (that has not been cured or
waived pursuant to Section 6.7), to exercise such of the rights and powers
vested in it by this Declaration, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs;


 


(h)                                 the Institutional Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture, note or other evidence of indebtedness or
other paper or document, unless requested in writing to do so by one or more
Holders, but the Institutional Trustee may make such further inquiry or
investigation into such facts or matters as it may see fit;


 


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


 


(j)                                     whenever in the administration of this
Declaration the Institutional Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking any other
action hereunder the Institutional Trustee (i) may request instructions from
the Holders of the Capital Securities


 


15

















 


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


 


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


 


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


 


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


 


(n)                                 any action taken by the Institutional Trustee
or its agents hereunder shall bind the Trust and the Holders of the Securities,
and the signature of the Institutional Trustee or its agents alone shall be
sufficient and effective to perform any such action and no third party shall be
required to inquire as to the authority of the Institutional Trustee to so act
or as to its compliance with any of the terms and provisions of this
Declaration, both of which shall be conclusively evidenced by the Institutional
Trustee’s or its agent’s taking such action; and


 


(o)                                 no provision of this Declaration shall be
deemed to impose any duty or obligation on the Institutional Trustee to perform
any act or acts or exercise any right, power, duty or obligation conferred or
imposed on it, in any jurisdiction in which it shall be illegal, or in which
the Institutional Trustee shall be unqualified or incompetent in accordance
with applicable law, to perform any such act or acts, or to exercise any such
right, power, duty or obligation.  No
permissive power or authority available to the Institutional Trustee shall be
construed to be a duty.


 


Section 2.11.                         Execution of Documents.  Unless
otherwise determined in writing by the Institutional Trustee, and except as
otherwise required by the Statutory Trust Act, the Institutional Trustee, or
any one or more of the Administrators, as the case may be, is authorized to
execute on behalf of the Trust any documents that the Institutional Trustee or
the Administrators, as the case may be, have the power and authority to execute
pursuant to Section 2.6.


 


Section 2.12.                         Not Responsible for Recitals
or Issuance of Securities.  The recitals contained in this Declaration
and the Securities shall be taken as the statements of the Sponsor, and the
Institutional Trustee does not assume any responsibility for their
correctness.  The Institutional Trustee
makes no representations as to the value or condition of the property of the
Trust or any part thereof.  The
Institutional Trustee makes no representations as to the validity or
sufficiency of this Declaration, the Debentures or the Securities.


 


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


 


16

















 


Section 2.14.                         Mergers.


 


(a)                                  The Trust may not consolidate, amalgamate,
merge with or into, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any corporation or other
body, except as described in Section 2.14(b) and (c) and except in connection
with the liquidation of the Trust and the distribution of the Debentures to
Holders of Securities pursuant to Section 7.1(a)(iv) of the Declaration or
Section 4 of Annex I.


 


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


 


(i)                                     if the Trust is not the surviving entity,
such successor entity (the “Successor Entity”) either:


 


(A)  expressly assumes all of the obligations of
the Trust under the Securities; or


 


(B)  substitutes for the Securities other
securities having substantially the same terms as the Securities (the “Successor
Securities”) so that the Successor Securities rank the same as the
Securities rank with respect to Distributions and payments upon Liquidation,
redemption and otherwise;


 


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


 


(iii)                               such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences and privileges of
the Holders of the Securities (including any Successor Securities) in any
material respect;


 


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


 


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


 


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


 


(A)  such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences and privileges of
the Holders of the Securities (including any Successor Securities) in any
material respect;


 


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


 


17

















 


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


 


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


 


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


 


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


 


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


 


ARTICLE III


 


SPONSOR


 


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


 


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


 


(a)                                  to determine the States in which to take
appropriate action to qualify or register for sale all or part of the Capital
Securities and to do any and all such acts, other than actions which must be
taken by the Trust, and advise the Trust of actions it must take, and prepare
for execution and filing any documents to be executed and filed by the Trust,
as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States; and


 


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


 


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


 


(a)                                  pay all reasonable costs and expenses owing
to the Debenture Trustee pursuant to Section 6.6 of the Indenture;


 


(b)                                 be responsible for and shall pay all debts
and obligations (other than with respect to the Securities) and all costs and
expenses of the Trust, the offering, sale and issuance of the Securities
(including fees to the placement agents in connection therewith), the costs and
expenses (including


 


18

















 


reasonable counsel fees and
expenses) of the Institutional Trustee and the Administrators, the costs and
expenses relating to the operation of the Trust, including, without limitation,
costs and expenses of accountants, attorneys, statistical or bookkeeping
services, expenses for printing and engraving and computing or accounting
equipment, Paying Agents, Registrars, Transfer Agents, duplicating, travel and
telephone and other telecommunications expenses and costs and expenses incurred
in connection with the acquisition, financing, and disposition of Trust assets
and the enforcement by the Institutional Trustee of the rights of the Holders
(for purposes of clarification, this Section 3.3(b) does not contemplate the
payment by the Sponsor of acceptance or annual administration fees owing to the
Institutional Trustee pursuant to the services to be provided by the
Institutional Trustee under this Declaration or the fees and expenses of the
Institutional Trustee’s counsel in connection with the closing of the
transactions contemplated by this Declaration); and


 


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


 


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


 


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


 


ARTICLE IV


 


INSTITUTIONAL TRUSTEE AND ADMINISTRATORS


 


Section 4.1.                                Institutional Trustee;
Eligibility.


 


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


 


(i)                                     not be an Affiliate of the Sponsor;


 


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


 


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


 


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


 


19

















 


(c)                                  If the Institutional Trustee has or shall
acquire any “conflicting interest” within the meaning of Section 310(b) of the
Trust Indenture Act of 1939, as amended, the Institutional Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to this Declaration.


 


(d)                                 The initial Institutional Trustee shall be
U.S. Bank National Association.


 


Section 4.2.                                Administrators.  Each
Administrator shall be a U.S. Person, 21 years of age or older and authorized
to bind the Sponsor.  The initial
Administrators shall be Kenneth K. Lee, Janey Cabral and David Curtis.  There shall at all times be at least one
Administrator.  Except where a
requirement for action by a specific number of Administrators is expressly set
forth in this Declaration and except with respect to any action the taking of
which is the subject of a meeting of the Administrators, any action required or
permitted to be taken by the Administrators may be taken by, and any power of
the Administrators may be exercised by, or with the consent of, any one such
Administrator.


 


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


 


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


 


Subject to the immediately
preceding paragraph, the Institutional Trustee may resign at any time by giving
written notice thereof to the Holders of the Securities and by appointing a
Successor Institutional Trustee.  Upon
the resignation of the Institutional Trustee, the Institutional Trustee shall
appoint a successor by requesting from at least three Persons meeting the
eligibility requirements, its expenses and charges to serve as the successor
Institutional Trustee on a form provided by the Administrators, and selecting
the Person who agrees to the lowest expense and charges (the “Successor
Institutional Trustee”).  If the
instrument of acceptance by the Successor Institutional Trustee required by
this Section 4.3 shall not have been delivered to the Institutional Trustee
within 60 days after the giving of such notice of resignation or delivery of
the instrument of removal, the Institutional Trustee may petition, at the
expense of the Trust, any Federal, state or District of Columbia court of
competent jurisdiction for the appointment of a Successor Institutional
Trustee.  Such court may thereupon,
after prescribing such notice, if any, as it may deem proper, appoint a
Successor Institutional Trustee.  The
Institutional Trustee shall have no liability for the selection of such
successor pursuant to this Section 4.3.


 


The Institutional Trustee
may be removed by the act of the Holders of a Majority in liquidation amount of
the Capital Securities, delivered to the Institutional Trustee (in its
individual capacity and on behalf of the Trust) if an Event of Default shall
have occurred and be continuing.  If the
Institutional Trustee shall be so removed, the Holders of Capital Securities,
by act of the Holders of a Majority in liquidation amount of the Capital
Securities then outstanding delivered to the Institutional Trustee, shall
promptly appoint a Successor Institutional Trustee, and such Successor
Institutional Trustee shall comply with the applicable requirements of this
Section 4.3.  If no Successor
Institutional Trustee shall have been so appointed by the Holders of a Majority
in liquidation amount of the Capital Securities and accepted appointment in the
manner required by this Section 4.3, within 30 days after delivery of an
instrument of removal, any Holder who has been a Holder of the Securities for
at least 6 months may, on behalf of himself and all others similarly situated,
petition any Federal, state or District of Columbia court of competent
jurisdiction for the appointment of the Successor Institutional Trustee.  Such court may thereupon, after prescribing
such notice, if any, as it may deem proper, appoint a Successor Institutional
Trustee.


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 4.6.                                Meetings of the
Institutional Trustee and the Administrators.  Meetings of
the Administrators shall be held from time to time upon the call of an
Administrator.  Regular meetings of the
Administrators may be held in person in the United States or by telephone, at a
place (if applicable) and time fixed by resolution of the Administrators.  Notice of any in-person meetings of the
Institutional Trustee with the Administrators or meetings of the Administrators
shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 48 hours before
such meeting.  Notice of any telephonic
meetings of the Institutional Trustee with the Administrators or meetings of
the Administrators or any committee thereof shall be hand delivered or
otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 24 hours before a meeting.  Notices shall contain a brief statement of
the time, place and anticipated purposes of the meeting.  The presence (whether in person or by telephone)
of the Institutional Trustee or an Administrator, as the case may be, at a
meeting shall constitute a waiver of notice of such meeting except where the
Institutional Trustee or an Administrator, as the case may be, attends a
meeting for the express purpose of objecting to the transaction of any activity
on the grounds that the meeting has not


 


21

















 


been lawfully called or
convened.  Unless provided otherwise in
this Declaration, any action of the Institutional Trustee or the
Administrators, as the case may be, may be taken at a meeting by vote of the
Institutional Trustee or a majority vote of the Administrators present (whether
in person or by telephone) and eligible to vote with respect to such matter,
provided that a Quorum is present, or without a meeting by the unanimous
written consent of the Institutional Trustee or the Administrators.  Meetings of the Institutional Trustee and
the Administrators together shall be held from time to time upon the call of
the Institutional Trustee or an Administrator.


 


Section 4.7.                                Delegation of Power.


 


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


 


(b)                                 the Administrators shall have power to
delegate from time to time to such of their number the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Administrators or otherwise as the Administrators may deem expedient, to
the extent such delegation is not prohibited by applicable law or contrary to
the provisions of the Trust, as set forth herein.


 


Section 4.8.                                Conversion, Consolidation or
Succession to Business.  Any Person into which the Institutional
Trustee may be merged or converted or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which the
Institutional Trustee shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of the Institutional Trustee
shall be the successor of the Institutional Trustee hereunder, provided such
Person shall be otherwise qualified and eligible under this Article, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto.


 


ARTICLE V


 


DISTRIBUTIONS


 


Section 5.1.                                Distributions.  Holders shall
receive Distributions in accordance with the applicable terms of the relevant
Holder’s Securities. Distributions shall be made on the Capital Securities and
the Common Securities in accordance with the preferences set forth in their
respective terms.  If and to the extent
that the Debenture Issuer makes a payment of Interest or any principal on the
Debentures held by the Institutional Trustee, the Institutional Trustee shall
and is directed, to the extent funds are available for that purpose, to make a
distribution (a “Distribution”) of such amounts to Holders.


 


ARTICLE VI


 


ISSUANCE OF SECURITIES


 


Section 6.1.                                General Provisions Regarding
Securities.


 


(a)                                  The Administrators shall, on behalf of the
Trust, issue one series of capital securities substantially in the form of
Exhibit A-1 representing undivided beneficial interests in the assets of the
Trust having such terms as are set forth in Annex I and one series of common
securities representing undivided beneficial interests in the assets of the
Trust having such terms as are set forth in Annex I.  The Trust shall issue no securities or other interests in the
assets of the Trust other than the Capital Securities and the Common
Securities.  The Capital Securities rank
pari passu to, and payment
thereon shall be made Pro Rata with, the Common Securities except that, where
an Event of Default has occurred and is


 


22

















 


continuing, the rights of
Holders of the Common Securities to payment in respect of Distributions and
payments upon liquidation, redemption and otherwise are subordinated to the
rights to payment of the Holders of the Capital Securities as set forth in
Annex I.


 


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


 


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


 


(d)                                 Upon issuance of the Securities as provided
in this Declaration, the Securities so issued shall be deemed to be validly
issued, fully paid and, except as provided in Section 9.1(b) with respect to
the Common Securities, non-assessable.


 


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


 


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


 


Section 6.3.                                Form and Dating.  The Capital
Securities and the Institutional Trustee’s certificate of authentication
thereon shall be substantially in the form of Exhibit A-1, and the Common
Securities shall be substantially in the form of Exhibit A-2, each of which is
hereby incorporated in and expressly made a part of this Declaration.  Certificates may be typed, printed,
lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrators, as conclusively


 


23

















 


evidenced by their execution
thereof.  The Securities may have
letters, numbers, notations or other marks of identification or designation and
such legends or endorsements required by law, stock exchange rule, agreements
to which the Trust is subject if any, or usage (provided that any such
notation, legend or endorsement is in a form acceptable to the Sponsor).  The Trust at the direction of the Sponsor
shall furnish any such legend not contained in Exhibit A-1 to the Institutional
Trustee in writing.  Each Capital
Security shall be dated on or before the date of its authentication.  The terms and provisions of the Securities
set forth in Annex I and the forms of Securities set forth in Exhibits A-1 and
A-2 are part of the terms of this Declaration and to the extent applicable, the
Institutional Trustee, the Administrators and the Sponsor, by their execution
and delivery of this Declaration, expressly agree to such terms and provisions
and to be bound thereby.  Capital
Securities will be issued only in blocks having a stated liquidation amount of
not less than $100,000.00 and any multiple of $1,000.00 in excess thereof.


 


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


 


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


 


If:


 


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


 


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


 


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


 


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


 


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


 


24

















 


Section 6.7.                                Rights of Holders; Waivers
of Past Defaults.


 


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


 


(b)                                 For so long as any Capital Securities remain
outstanding, if upon an Indenture Event of Default, the Debenture Trustee fails
or the holders of not less than 25% in principal amount of the outstanding
Debentures fail to declare the principal of all of the Debentures to be
immediately due and payable, the Holders of a Majority in liquidation amount of
the Capital Securities then outstanding shall have the right to make such
declaration by a notice in writing to the Institutional Trustee, the Sponsor
and the Debenture Trustee.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


25

















 


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


 


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


 


ARTICLE VII


 


DISSOLUTION AND TERMINATION OF TRUST


 


Section 7.1.                                Dissolution and Termination
of Trust.


 


(a)                                  The Trust shall dissolve on the first to
occur of:


 


(i)                                     unless earlier dissolved, on December 17,
2038, the expiration of the term of the Trust;


 


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


 


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


 


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


 


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


 


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


 


(vii)                           before the issuance of any Securities, with
the consent of the Institutional Trustee and the Sponsor.


 


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


 


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


 


ARTICLE VIII


 


TRANSFER OF INTERESTS


 


Section 8.1.                                General.


 


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


 


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


 


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


 


(d)                                 The Registrar shall provide for the
registration of Securities and of transfers of Securities, which will be
effected without charge but only upon payment (with such indemnity as the
Registrar may require) in respect of any tax or other governmental charges that
may be imposed in relation to it.  Upon
surrender for registration of transfer of any Securities, the Registrar shall
cause one or more new Securities of the same tenor to be issued in the name of
the designated transferee or transferees. 
Every Security surrendered for registration of transfer shall be
accompanied by a written instrument of transfer in form satisfactory to the
Registrar duly executed by the Holder or such Holder’s attorney duly authorized
in writing.  Each Security surrendered for
registration of transfer shall be canceled by the Institutional Trustee
pursuant to Section 6.6.  A transferee
of a Security shall be entitled to the rights and subject to the obligations of
a Holder hereunder upon the receipt by such transferee of a Security.  By acceptance of a Security, each transferee
shall be deemed to have agreed to be bound by this Declaration.


 


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(e)                                  The Trust shall not be required (i) to issue,
register the transfer of, or exchange any Securities during a period beginning
at the opening of business 15 days before the day of any selection of
Securities for redemption and ending at the close of business on the earliest
date on which the relevant notice of redemption is deemed to have been given to
all Holders of the Securities to be redeemed, or (ii) to register the transfer
or exchange of any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.


 


Section 8.2.                                Transfer Procedures and
Restrictions.


 


(a)                                  The Capital Securities shall bear the
Restricted Securities Legend, which shall not be removed unless there is
delivered to the Trust such satisfactory evidence, which may include an opinion
of counsel satisfactory to the Trustee, as may be reasonably required by the
Trust, that neither the legend nor the restrictions on transfer set forth
therein are required to ensure that transfers thereof comply with the
provisions of the Securities Act.  Upon
provision of such satisfactory evidence, the Institutional Trustee, at the
written direction of the Trust, shall authenticate and deliver Capital
Securities that do not bear the legend.


 


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


 


THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAW.  NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.  THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
THIS SECURITY ONLY (A) TO THE SPONSOR OR THE TRUST, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY
IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A, (D)
TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
RULE 904 (AS APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (A) OF
RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS CAPITAL SECURITY FOR
ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE
IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE SPONSOR’S AND THE TRUST’S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER


 


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TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM IN ACCORDANCE WITH THE DECLARATION OF TRUST, A COPY OF WHICH MAY
BE OBTAINED FROM THE SPONSOR OR THE TRUST. 
HEDGING TRANSACTIONS INVOLVING THIS SECURITY MAY NOT BE CONDUCTED UNLESS
IN COMPLIANCE WITH THE SECURITIES ACT.


 


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


 


THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A
LIQUIDATION AMOUNT OF NOT LESS THAN $100,000.00 (100 SECURITIES) AND MULTIPLES
OF $1,000.00 IN EXCESS THEREOF.  ANY
ATTEMPTED TRANSFER OF SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS
THAN $100,000.00 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.


 


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


 


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


 


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


 


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(e)                                  All Capital Securities issued upon any
registration of transfer or exchange pursuant to the terms of this Declaration
shall evidence the same security and shall be entitled to the same benefits
under this Declaration as the Capital Securities surrendered upon such
registration of transfer or exchange.


 


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


 


ARTICLE IX


 


LIMITATION OF LIABILITY OF


 


HOLDERS OF SECURITIES, INSTITUTIONAL TRUSTEE OR OTHERS


 


Section 9.1.                                Liability.


 


(a)                                  Except as expressly set forth in this
Declaration, the Guarantee and the terms of the Securities, the Sponsor shall
not be:


 


(i)                                     personally liable for the return of any
portion of the capital contributions (or any return thereon) of the Holders of
the Securities which shall be made solely from assets of the Trust; or


 


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


 


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


 


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


 


Section 9.2.                                Exculpation.


 


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


 


(b)                                 An Indemnified Person shall be fully
protected in relying in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the Trust by any
Person as to matters the Indemnified Person reasonably be lieves are within
such other Person’s professional or expert competence and, if selected by such
Indemnified Person, has been selected by such


 


30

















 


Indemnified Person with
reasonable care by or on behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount of
assets from which Distributions to Holders of Securities might properly be
paid.


 


Section 9.3.                                Fiduciary Duty.


 


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


 


(b)                                 Whenever in this Declaration an Indemnified
Person is permitted or required to make a decision:


 


(i)                                     in its “discretion” or under a grant of
similar authority, the Indemnified Person shall be entitled to consider such
interests and factors as it desires, including its own interests, and shall
have no duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or


 


(ii)                                  in its “good faith” or under another express
standard, the Indemnified Person shall act under such express standard and
shall not be subject to any other or different standard imposed by this
Declaration or by applicable law.


 


Section 9.4.                                Indemnification.


 


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


 


(b)                                 The Sponsor shall indemnify, to the full
extent permitted by law, any Indemnified Person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of the Trust to procure a judgment in its favor arising out of or
in connection with the acceptance or administration of this Declaration by
reason of the fact that he is or was an Indemnified Person against expenses
(including reasonable attorneys’ fees and expenses) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Trust; provided, however,
that no such indemnification shall be made in respect of any claim, issue or


 


31

















 


matter as to which such
Indemnified Person shall have been adjudged to be liable to the Trust unless
and only to the extent that the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which such court shall deem
proper.


 


(c)                                  To the extent that an Indemnified Person
shall be successful on the merits or otherwise (including dismissal of an
action without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (a) and (b) of this Section 9.4, or in defense of any claim, issue
or matter therein, he shall be indemnified, to the full extent permitted by
law, against expenses (including attorneys’ fees and expenses) actually and
reasonably incurred by him in connection therewith.


 


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


 


(e)                                  To the fullest extent permitted by law,
expenses (including reasonable attorneys’ fees and expenses) incurred by an
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (a) and (b)
of this Section 9.4 shall be paid by the Sponsor in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking
by or on behalf of such Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Sponsor as authorized in this Section 9.4. 
Notwithstanding the foregoing, no advance shall be made by the Sponsor
if a determination is reasonably and promptly made (i) by the Administrators by
a majority vote of a Quorum of disinterested Administrators, (ii) if such a
Quorum is not obtainable, or, even if obtainable, if a quorum of disinterested
Administrators so directs, by independent legal counsel in a written opinion or
(iii) by the Common Security Holder of the Trust, that, based upon the facts
known to the Administrators, counsel or the Common Security Holder at the time
such determination is made, such Indemnified Person acted in bad faith or in a
manner that such Indemnified Person did not believe to be in the best interests
of the Trust, or, with respect to any criminal proceeding, that such
Indemnified Person believed or had reasonable cause to believe his conduct was
unlawful.  In no event shall any advance
be made in instances where the Administrators, independent legal counsel or the
Common Security Holder reasonably determine that such Indemnified Person
deliberately breached his duty to the Trust or its Common or Capital Security
Holders.


 


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


 


(g)                                 The indemnification and advancement of
expenses provided by, or granted pursuant to, the other paragraphs of this
Section 9.4 shall not be deemed exclusive of any other rights to which those
seeking indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Sponsor or
Capital Security Holders of the Trust or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.  All rights to indemnification
under this Section 9.4 shall be deemed to be provided by a contract


 


32

















 


between the Sponsor and each
Indemnified Person who serves in such capacity at any time while this Section
9.4 is in effect.  Any repeal or
modification of this Section 9.4 shall not affect any rights or obligations
then existing.


 


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


 


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


 


(j)                                     The indemnification and advancement of
expenses provided by, or granted pursuant to, this Section 9.4 shall, unless
otherwise provided when authorized or ratified, (i) continue as to a Person who
has ceased to be an Indemnified Person and shall inure to the benefit of the
heirs, executors and administrators of such a Person; and (ii) survive the
termination or expiration of this Declaration or the earlier removal or
resignation of an Indemnified Person.


 


Section 9.5.                                Outside Businesses.  Any Covered
Person, the Sponsor and the Institutional Trustee may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the business of the Trust, and the
Trust and the Holders of Securities shall have no rights by virtue of this
Declaration in and to such independent ventures or the income or profits
derived therefrom, and the pursuit of any such venture, even if competitive
with the business of the Trust, shall not be deemed wrongful or improper.  None of any Covered Person, the Sponsor or
the Institutional Trustee shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and any
Covered Person, the Sponsor and the Institutional Trustee shall have the right
to take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity.  Any Covered Person and the Institutional
Trustee may engage or be interested in any financial or other transaction with
the Sponsor or any Affiliate of the Sponsor, or may act as depositary for,
trustee or agent for, or act on any committee or body of holders of, securities
or other obligations of the Sponsor or its Affiliates.


 


Section 9.6.                                Compensation; Fee.  The Sponsor
agrees:


 


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


 


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


 


33

















 


The provisions of this
Section 9.6 shall survive the dissolution of the Trust and the termination of
this Declaration and the removal or resignation of the Institutional Trustee.


 


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


 


ARTICLE
X


 


ACCOUNTING


 


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


 


Section 10.2.                         Certain Accounting Matters.


 


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


 


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


 


(c)                                  The Administrators, at the Sponsor’s expense,
shall cause to be duly prepared at the principal office of the Sponsor in the
United States, as ‘United States’ is defined in Section 7701(a)(9) of the Code
(or at the principal office of the Trust if the Sponsor has no such principal
office in the United States), and filed an annual United States federal income
tax return on a Form 1041 or such other form required by United States federal
income tax law, and any other annual income tax returns required to be filed by
the Administrators on behalf of the Trust with any state or local taxing
authority.


 


Section 10.3.                         Banking.  The Trust
shall maintain in the United States, as defined for purposes of Treasury
Regulations section 301.7701-7, one or more bank accounts in the name and for
the sole benefit of the Trust; provided, however, that all
payments of funds in respect of the Debentures held by the Institutional
Trustee shall be made directly to the Property Account and no other funds of
the Trust shall be deposited in the Property Account.  The sole signatories for such accounts (including the Property
Account) shall be designated by the Institutional Trustee.


 


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


 


34

















 


extent of, and in
fulfilling, its withholding obligations. 
The Administrators shall file required forms with applicable jurisdictions
and, unless an exemption from withholding is properly established by a Holder,
shall remit amounts withheld with respect to the Holder to applicable
jurisdictions.  To the extent that the
Institutional Trustee or any Paying Agent is required to withhold and pay over
any amounts to any authority with respect to distributions or allocations to
any Holder, the amount withheld shall be deemed to be a Distribution in the
amount of the withholding to the Holder. 
In the event of any claimed overwithholding, Holders shall be limited to
an action against the applicable jurisdiction. 
If the amount required to be withheld was not withheld from actual
Distributions made, the Institutional Trustee or any Paying Agent may reduce
subsequent Distributions by the amount of such withholding.


 


ARTICLE
XI


 


AMENDMENTS AND MEETINGS


 


Section 11.1.                         Amendments.


 


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


 


(b)                                 Notwithstanding any other provision of this
Article XI, an amendment may be made, and any such purported amendment shall be
valid and effective only if:


 


(i)                                     the Institutional Trustee shall have first
received


 


(A)  an Officers’ Certificate from each of the
Trust and the Sponsor that such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the Securities); and


 


(B)  an opinion of counsel (who may be counsel to
the Sponsor or the Trust) that such amendment is permitted by, and conforms to,
the terms of this Declaration (including the terms of the Securities); and


 


(ii)                                  the result of such amendment would not be to


 


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


 


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


 


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


 


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


 


35

















 


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


 


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


 


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


 


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


 


(i)                                     cure any ambiguity;


 


(ii)                                  correct or supplement any provision in this
Declaration that may be defective or inconsistent with any other provision of
this Declaration;


 


(iii)                               add to the covenants, restrictions or
obligations of the Sponsor; or


 


(iv)                              modify, eliminate or add to any provision of
this Declaration to such extent as may be necessary to ensure that the Trust
will be classified for United States federal income tax purposes at all times
as a grantor trust and will not be required to register as an Investment Company
(including without limitation to conform to any change in Rule 3a-5, Rule 3a-7
or any other applicable rule under the Investment Company Act or written change
in interpretation or application thereof by any legislative body, court,
government agency or regulatory authority) which amendment does not have a
material adverse effect on the rights, preferences or privileges of the Holders
of Securities;


 


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


 


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


 


(a)                                  Meetings of the Holders of any class of
Securities may be called at any time by the Administrators (or as provided in
the terms of the Securities) to consider and act on any matter on which Holders
of such class of Securities are entitled to act under the terms of this
Declaration or the terms of the Securities. 
The Administrators shall call a meeting of the Holders of such class if
directed to do so by the Holders of at least 10% in liquidation amount of such
class of Securities.  Such direction
shall be given by delivering to the Administrators one or more calls in a
writing stating that the signing Holders of the Securities wish to call a
meeting and indicating the general or specific purpose for which the meeting is
to be called.  Any Holders of the
Securities calling a meeting shall specify in writing the Certificates held by
the Holders of the Securities exercising the right to call a meeting and only
those Securities represented by such Certificates shall be counted for purposes
of determining whether the required percentage set forth in the second sentence
of this paragraph has been met.


 


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


 


36

















 


(i)                                     notice of any such meeting shall be given to
all the Holders of the Securities having a right to vote thereat at least 7
days and not more than 60 days before the date of such meeting.  Whenever a vote, consent or approval of the
Holders of the Securities is permitted or required under this Declaration, such
vote, consent or approval may be given at a meeting of the Holders of the
Securities.  Any action that may be
taken at a meeting of the Holders of the Securities may be taken without a
meeting if a consent in writing setting forth the action so taken is signed by
the Holders of the Securities owning not less than the minimum amount of
Securities in liquidation amount that would be necessary to authorize or take
such action at a meeting at which all Holders of the Securities having a right
to vote thereon were present and voting. 
Prompt notice of the taking of action without a meeting shall be given
to the Holders of the Securities entitled to vote who have not consented in
writing.  The Administrators may specify
that any written ballot submitted to the Holders of the Securities for the
purpose of taking any action without a meeting shall be returned to the Trust
within the time specified by the Administrators;


 


(ii)                                  each Holder of a Security may authorize any
Person to act for it by proxy on all matters in which a Holder of Securities is
entitled to participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the expiration of 11 months
from the date thereof unless otherwise provided in the proxy.  Every proxy shall be revocable at the
pleasure of the Holder of the Securities executing it.  Except as otherwise provided herein, all
matters relating to the giving, voting or validity of proxies shall be governed
by the General Corporation Law of the State of Connecticut relating to proxies,
and judicial interpretations thereunder, as if the Trust were a Connecticut
corporation and the Holders of the Securities were stockholders of a Connecticut
corporation; each meeting of the Holders of the Securities shall be conducted
by the Administrators or by such other Person that the Administrators may
designate; and


 


(iii)          unless the Statutory Trust Act, this
Declaration, or the terms of the Securities otherwise provides, the
Administrators, in their sole discretion, shall establish all other provisions
relating to meetings of Holders of Securities, including notice of the time,
place or purpose of any meeting at which any matter is to be voted on by any
Holders of the Securities, waiver of any such notice, action by consent without
a meeting, the establishment of a record date, quorum requirements, voting in
person or by proxy or any other matter with respect to the exercise of any such
right to vote; provided, however, that each meeting shall be
conducted in the United States (as that term is defined in Treasury Regulations
section 301.7701-7).


 


ARTICLE
XII


 


REPRESENTATIONS OF INSTITUTIONAL TRUSTEE


 


Section 12.1.                         Representations and
Warranties of Institutional Trustee.  The initial Institutional Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Declaration,
and each Successor Institutional Trustee represents and warrants to the Trust
and the Sponsor at the time of the Successor Institutional Trustee’s acceptance
of its appointment as Institutional Trustee, that:


 


(a)                                  the Institutional Trustee is a national
banking association with trust powers, duly organized and validly existing
under the laws of the United States of America with trust power and authority
to execute and deliver, and to carry out and perform its obligations under the
terms of, this Declaration;


 


37

















 


(b)                                 the execution, delivery and performance by
the Institutional Trustee of this Declaration has been duly authorized by all
necessary corporate action on the part of the Institutional Trustee.  This Declaration has been duly executed and
delivered by the Institutional Trustee, and it constitutes a legal, valid and
binding obligation of the Institutional Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors’ rights
generally and to general principles of equity (regardless of whether considered
in a proceeding in equity or at law);


 


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


 


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


 


ARTICLE
XIII


 


MISCELLANEOUS


 


Section 13.1.                         Notices.  All notices
provided for in this Declaration shall be in writing, duly signed by the party
giving such notice, and shall be delivered, telecopied (which telecopy shall be
followed by notice delivered or mailed by first class mail) or mailed by first
class mail, as follows:


 


(a)                                  if given to the Trust, in care of the
Administrators at the Trust’s mailing address set forth below (or such other
address as the Trust may give notice of to the Holders of the Securities):


 


County Statutory Trust II


c/o Capital Corp of the West


550 West Main Street


Merced, California  95341-0351


Attention:  Kenneth K. Lee


Telecopy:  209-725-2277


 


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


 


U.S. Bank National
Association


225 Asylum Street, Goodwin
Square


Hartford, Connecticut  06103


Attention:  Vice President, Corporate Trust Services
Division


Telecopy:  860-241-6889


 


With a copy to:


 


U.S. Bank National
Association


1 Federal Street - 3rd Floor


Boston, Massachusetts  02110


Attention:  Paul D. Allen, Corporate Trust Services
Division


Telecopy:  617-603-6665


 


38

















 


(c)                                  if given to the Holder of the Common
Securities, at the mailing address of the Sponsor set forth below (or such
other address as the Holder of the Common Securities may give notice of to the
Trust):


 


Capital Corp of the West


550 West Main Street


Merced, California  95341-0351


Attention:  Kenneth K. Lee


Telecopy:  209-725-2277


 


(d)                                 if given to any other Holder, at the address
set forth on the books and records of the Trust.


 


All such notices shall be
deemed to have been given when received in person, telecopied with receipt
confirmed, or mailed by first class mail, postage prepaid except that if a
notice or other document is refused delivery or cannot be delivered because of
a changed address of which no notice was given, such notice or other document
shall be deemed to have been delivered on the date of such refusal or inability
to deliver.


 


Section 13.2.                         Governing Law.  This
Declaration and the rights of the parties hereunder shall be governed by and
interpreted in accordance with the law of the State of Connecticut and all
rights and remedies shall be governed by such laws without regard to the
principles of conflict of laws of the State of Connecticut or any other
jurisdiction that would call for the application of the law of any jurisdiction
other than the State of Connecticut; provided, however, that
there shall not be applicable to the Trust, the Institutional Trustee or this
Declaration any provision of the laws (statutory or common) of the State of
Connecticut pertaining to trusts that relate to or regulate, in a manner
inconsistent with the terms hereof (a) the filing with any court or
governmental body or agency of trustee accounts or schedules of trustee fees
and charges, (b) affirmative requirements to post bonds for trustees, officers,
agents or employees of a trust, (c) the necessity for obtaining court or other
governmental approval concerning the acquisition, holding or disposition of
real or personal property, (d) fees or other sums payable to trustees,
officers, agents or employees of a trust, (e) the allocation of receipts and
expenditures to income or principal, or (f) restrictions or limitations on the
permissible nature, amount or concentration of trust investments or
requirements relating to the titling, storage or other manner of holding or
investing trust assets.


 


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


 


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


 


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


 


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


 


39

















 


Section 13.7.                         Counterparts.  This
Declaration may contain more than one counterpart of the signature page and
this Declaration may be executed by the affixing of the signature of each of
the Institutional Trustee and Administrators to any of such counterpart
signature pages.  All of such
counterpart signature pages shall be read as though one, and they shall have
the same force and effect as though all of the signers had signed a single
signature page.


 


Signatures appear on the following page


 


 


40

















 


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


 


	
   

  	
  U.S. BANK
  NATIONAL ASSOCIATION,

  as Institutional Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


 


	
   

  	
  CAPITAL CORP
  OF THE WEST, as Sponsor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Janey
  Cabral

  	
   

  
	
   

  	
   

  	
  Name: Janey Cabral

  
	
   

  	
   

  	
  Title: SVP

  
					



 


 


	
   

  	
  COUNTY
  STATUTORY TRUST II

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Janey
  Cabral

  	
   

  
	
   

  	
   

  	
  Administrator

  
					



 


	
   

  	
  By:

  	
  /s/ David
  Curtis

  	
   

  
	
   

  	
   

  	
  Administrator

  
					



 


	
   

  	
  By:

  	
  /s/ Kenneth
  K. Lee

  	
   

  
	
   

  	
   

  	
  Administrator

  
					



 


41

















 


ANNEX I


 


TERMS OF SECURITIES


 


Pursuant to Section 6.1 of
the Amended and Restated Declaration of Trust, dated as of December 17, 2003
(as amended from time to time, the “Declaration”), the designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Capital Securities and the Common Securities are set out below (each
capitalized term used but not defined herein has the meaning set forth in the
Declaration):


 


1.                                       Designation and Number.


 


(a)                                  10,000 Floating Rate Capital Securities of
County Statutory Trust II (the “Trust”), with an aggregate stated liquidation
amount with respect to the assets of the Trust of ten million dollars
($10,000,000.00) and a stated liquidation amount with respect to the assets of
the Trust of $1,000.00 per Capital Security, are hereby designated for the
purposes of identification only as the “Capital Securities”.  The Capital Security Certificates evidencing
the Capital Securities shall be substantially in the form of Exhibit A-1 to the
Declaration, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice.


 


(b)                                 310 Floating Rate Common Securities of the
Trust (the “Common Securities”) will be evidenced by Common Security
Certificates substantially in the form of Exhibit A-2 to the Declaration, with
such changes and additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice.


 


2.                                       Distributions.


 


(a)                                  Distributions will be payable on each
Security at the Distribution Rate, applied to the stated liquidation amount
thereof, such rate being the rate of interest payable on the Debentures to be
held by the Institutional Trustee. 
Distributions in arrears will bear interest thereon compounded quarterly
at the applicable Distribution Rate (to the extent permitted by law).  Distributions, as used herein, include cash
distributions and any such compounded distributions unless otherwise
noted.  A Distribution is payable only
to the extent that payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor.  The amount of the
Distribution payable for any Distribution Period will be calculated by applying
the Distribution Rate to the stated liquidation amount outstanding at the
commencement of the Distribution Period on the basis of the actual number of
days in the Distribution Period concerned divided by 360.  All percentages resulting from any
calculations on the Capital Securities will be rounded, if necessary, to the
nearest one hundred-thousandth of a percentage point, with five one-millionths
of a percentage point rounded upward (e.g., 9.876545% (or .09876545) being
rounded to 9.87655% (or .0987655), and all dollar amounts used in or resulting
from such calculation will be rounded to the nearest cent (with one-half cent being
rounded upward)).


 


(b)                                 Distributions
on the Securities will be
cumulative, will accrue from the date of original issuance, and will be
payable, subject to extension of distribution payment periods as described
herein, quarterly in arrears on March 17, June 17, September 17 and December 17
of each year, or if such day is not a Business Day, then the next succeeding
Business Day, commencing on March 17, 2004 (each a “Distribution Payment
Date “) when, as and if available for payment.  The Debenture Issuer has the right under the Indenture to defer
payments of interest on the Debentures, so long as no Indenture Event of
Default has occurred and is continuing, by deferring the payment of interest on
the Debentures for up to 20 consecutive quarterly periods (each an “Extension
Period”) at any time and from time to time, subject to the conditions
described below, during which Extension Period no interest shall be due and
payable.


 


I-1

















 


During any Extension Period,
interest will continue to accrue on the Debentures, and interest on such
accrued interest will accrue at an annual rate equal to the Distribution Rate
in effect for each such Extension Period, compounded quarterly from the date
such interest would have been payable were it not for the Extension Period, to
the extent permitted by law (such interest referred to herein as “Additional
Interest”).  No Extension Period
may end on a date other than a Distribution Payment Date.  At the end of any such Extension Period, the
Debenture Issuer shall pay all interest then accrued and unpaid on the
Debentures (together with Additional Interest thereon); provided, however,
that no Extension Period may extend beyond the Maturity Date and provided
further, however, that during any such Extension Period, the
Debenture Issuer and its Affiliates shall not (i) declare or pay any dividends
or distributions on, or redeem, purchase, acquire, or make a liquidation
payment with respect to, any of the Debenture Issuer’s or its Affiliates’
capital stock (other than payments of dividends or distributions to the
Debenture Issuer) or make any guarantee payments with respect to the foregoing,
or (ii) make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Debenture Issuer or any
Affiliate that rank pari passu in
all respects with or junior in interest to the Debentures (other than, with
respect to clauses (i) and (ii) above, (a) repurchases, redemptions or other
acquisitions of shares of capital stock of the Debenture Issuer in connection
with any employment contract, benefit plan or other similar arrangement with or
for the benefit of one or more employees, officers, directors or consultants,
in connection with a dividend reinvestment or stockholder stock purchase plan
or in connection with the issuance of capital stock of the Debenture Issuer (or
securities convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to the
applicable Extension Period, (b) as a result of any exchange or conversion of
any class or series of the Debenture Issuer’s capital stock (or any capital
stock of a subsidiary of the Debenture Issuer) for any class or series of the
Debenture Issuer’s capital stock or of any class or series of the Debenture
Issuer’s indebtedness for any class or series of the Debenture Issuer’s capital
stock, (c) the purchase of fractional interests in shares of the Debenture
Issuer’s capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, (d) any
declaration of a dividend in connection with any stockholders’ rights plan, or
the issuance of rights, stock or other property under any stockholders’ rights
plan, or the redemption or repurchase of rights pursuant thereto, (e) any
dividend in the form of stock, warrants, options or other rights where the
dividend stock or the stock issuable upon exercise of such warrants, options or
other rights is the same stock as that on which the dividend is being paid or
ranks pari passu with or junior
to such stock and any cash payments in lieu of fractional shares issued in
connection therewith, or (f)  payments
under the Capital Securities Guarantee).  Prior to the termination of any Extension Period, the Debenture
Issuer may further extend such period, provided that such period together with
all such previous and further consecutive extensions thereof shall not exceed
20 consecutive quarterly periods, or extend beyond the Maturity Date.  Upon the termination of any Extension Period
and upon the payment of all accrued and unpaid interest and Additional
Interest, the Debenture Issuer may commence a new Extension Period, subject to
the foregoing requirements.  No interest
or Additional Interest shall be due and payable during an Extension Period,
except at the end thereof, but each installment of interest that would
otherwise have been due and payable during such Extension Period shall bear
Additional Interest.  During any
Extension Period, Distributions on the Securities shall be deferred for a
period equal to the Extension Period. 
If Distributions are deferred, the Distributions due shall be paid on
the date that the related Extension Period terminates to Holders of the
Securities as they appear on the books and records of the Trust on the record
date immediately preceding such date. 
Distributions on the Securities must be paid on the dates payable (after
giving effect to any Extension Period) to the extent that the Trust has funds
available for the payment of such distributions in the Property Account of the
Trust.  The Trust’s funds available for
Distribution to the Holders of the Securities will be limited to payments
received from the Debenture Issuer.  The
payment of Distributions out of moneys held by the Trust is guaranteed by the
Guarantor pursuant to the Guarantee.


 


I-2

















 


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


 


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


 


3.                                       Liquidation Distribution Upon Dissolution.  In
the event of the voluntary or involuntary liquidation, dissolution, winding-up
or termination of the Trust (each a “Liquidation”) other than in
connection with a redemption of the Debentures, the Holders of the Securities
will be entitled to receive out of the assets of the Trust available for
distribution to Holders of the Securities, after satisfaction of liabilities to
creditors of the Trust (to the extent not satisfied by the Debenture Issuer),
distributions equal to the aggregate of the stated liquidation amount of
$1,000.00 per Security plus accrued and unpaid Distributions thereon to the
date of payment (such amount being the “Liquidation Distribution”),
unless in connection with such Liquidation, the Debentures in an aggregate
stated principal amount equal to the aggregate stated liquidation amount of
such Securities, with an interest rate equal to the Distribution Rate of, and
bearing accrued and unpaid interest in an amount equal to the accrued and
unpaid Distributions on, and having the same record date as, such Securities,
after paying or making reasonable provision to pay all claims and obligations
of the Trust in accordance with the Statutory Trust Act, shall be distributed
on a Pro Rata basis to the Holders of the Securities in exchange for such Securities.


 


The Sponsor, as the Holder
of all of the Common Securities, has the right at any time to dissolve the
Trust (including, without limitation, upon the occurrence of a Special Event),
subject to the receipt by the Debenture Issuer of prior approval from the Board
of Governors of the Federal Reserve System, or its designated district bank, as
applicable, and any successor federal agency that is primarily responsible for
regulating the activities of the Sponsor (the “Federal Reserve”), if the
Sponsor is a bank holding company, or from the Office of Thrift Supervision and
any successor federal agency that is primarily responsible for regulating the
activities of Sponsor, (the “OTS”) if the Sponsor is a savings and loan
holding company, in either case if then required under applicable capital
guidelines or policies of the Federal Reserve or OTS, as applicable, and, after
satisfaction of liabilities to creditors of the Trust, cause the Debentures to
be distributed to the Holders of the Securities on a Pro Rata basis in
accordance with the aggregate stated liquidation amount thereof.


 


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


 


I-3

















 


after satisfaction of
liabilities of creditors of the Trust to the extent not satisfied by the
Debenture Issuer, an amount equal to the Liquidation Distribution.  An early Liquidation of the Trust pursuant
to clause (iv) of Section 7.1(a) of the Declaration shall occur if the
Institutional Trustee determines that such Liquidation is possible by
distributing, after satisfaction of liabilities to creditors of the Trust, to
the Holders of the Securities on a Pro Rata basis, the Debentures, and such
distribution occurs.


 


If, upon any such
Liquidation the Liquidation Distribution can be paid only in part because the
Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then the amounts payable directly by the Trust on
such Capital Securities shall be paid to the Holders of the Trust Securities on
a Pro Rata basis, except that if an Event of Default has occurred and is
continuing, the Capital Securities shall have a preference over the Common
Securities with regard to such distributions.


 


After the date for any
distribution of the Debentures upon dissolution of the Trust (i) the Securities
of the Trust will be deemed to be no longer outstanding, (ii) upon surrender of
a Holder’s Securities certificate, such Holder of the Securities will receive a
certificate representing the Debentures to be delivered upon such distribution,
(iii) any certificates representing the Securities still outstanding will be
deemed to represent undivided beneficial interests in such of the Debentures as
have an aggregate principal amount equal to the aggregate stated liquidation
amount with an interest rate identical to the Distribution Rate of, and bearing
accrued and unpaid interest equal to accrued and unpaid distributions on, the Securities
until such certificates are presented to the Debenture Issuer or its agent for
transfer or reissuance (and until such certificates are so surrendered, no
payments of interest or principal shall be made to Holders of Securities in
respect of any payments due and payable under the Debentures; provided, however
that such failure to pay shall not be deemed to be an Event of Default and
shall not entitle the Holder to the benefits of the Guarantee), and (iv) all
rights of Holders of Securities under the Declaration shall cease, except the
right of such Holders to receive Debentures upon surrender of certificates
representing such Securities.


 


4.                                       Redemption and Distribution.


 


(a)                                  The Debentures will mature on December 17,
2033. The Debentures may be redeemed by the Debenture Issuer, in whole or in
part, at any Distribution Payment Date on or after December 17, 2008, at the
Redemption Price. In addition, the Debentures may be redeemed by the Debenture
Issuer at the Special Redemption Price, in whole but not in part, at any
Distribution Payment Date, upon the occurrence and continuation of a Special
Event within 120 days following the occurrence of such Special Event at the
Special Redemption Price, upon not less than 30 nor more than 60 days’ notice
to holders of such Debentures so long as such Special Event is continuing. In
each case, the right of the Debenture Issuer to redeem the Debentures is
subject to the Debenture Issuer having received prior approval from the Federal
Reserve (if the Debenture Issuer is a bank holding company) or prior approval
from the OTS (if the Debenture Issuer is a savings and loan holding company),
in each case if then required under applicable capital guidelines or policies
of the applicable federal agency.


 


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


 


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


 


I-4

















 


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


 


(3)                                  if fewer than two such quotations are
provided as requested in clause (2) above, the Debenture Trustee will request
four major New York City banks to provide such banks’ offered quotations
(expressed as percentages per annum) to leading European banks for loans in
U.S. dollars as of 11:00 a.m. (London time) on such Determination Date.  If at least two such quotations are
provided, 3-Month LIBOR will be the arithmetic mean of such quotations; and


 


(4)                                  if fewer than two such quotations are
provided as requested in clause (3) above, 3-Month LIBOR will be a 3-Month
LIBOR determined with respect to the Distribution Period immediately preceding
such current Distribution Period.


 


If the rate for U.S. dollar
deposits having a three-month maturity that initially appears on Telerate Page
3750 as of 11:00 a.m. (London time) on the related Determination Date is
superseded on the Telerate Page 3750 by a corrected rate by 12:00 noon (London
time) on such Determination Date, then the corrected rate as so substituted on
the applicable page will be the applicable 3-Month LIBOR for such Determination
Date.


 


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


 


“Capital Treatment Event”
means the receipt by the Debenture Issuer and the Trust of an opinion of
counsel experienced in such matters to the effect that, as a result of the
occurrence of any amendment to, or change (including any announced prospective
change) in, the laws, rules or regulations of the United States or any
political subdivision thereof or therein, or as the result of any official or
administrative pronouncement or action or decision interpreting or applying
such laws, rules or regulations, which amendment or change is effective or
which pronouncement, action or decision is announced on or after the date of
original issuance of the Debentures, there is more than an insubstantial risk
that the Sponsor will not, within 90 days of the date of such opinion, be
entitled to treat an amount equal to the aggregate liquidation amount of the
Capital Securities as “Tier 1 Capital” (or its then equivalent) for purposes of
the capital adequacy guidelines of the Federal Reserve, as then in effect and
applicable to the Sponsor (or if the Sponsor is not a bank holding company,
such guidelines applied to the Sponsor as if the Sponsor were subject to such
guidelines); provided, however, that the inability of the Sponsor
to treat all or any portion of the liquidation amount of the Capital Securities
as Tier l Capital shall not constitute the basis for a Capital Treatment Event,
if such inability results from the Sponsor having cumulative preferred stock,
minority interests in consolidated subsidiaries, or any other class of security
or interest which the Federal Reserve or OTS, as applicable, may now or
hereafter accord Tier 1 Capital treatment in excess of the amount which may now
or hereafter qualify for treatment as Tier 1 Capital under applicable capital
adequacy guidelines; provided further, however, that the
distribution of Debentures in connection with the Liquidation of the Trust
shall not in and of itself constitute a Capital Treatment Event unless such
Liquidation shall have occurred in connection with a Tax Event or an Investment
Company Event.


 


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


 


I-5

















 


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


 


“Maturity Date” means
December 17, 2033.


 


“New York City Banking
Day” means a day on which commercial banks are open for general business
(including dealings in foreign exchange and foreign currency deposits) in New
York City.


 


“Prime Rate” means
the quotient that results from dividing (i) the sum of each day’s USD
-Prime-H.15 during the Distribution Period by (ii) the actual number of days in
the Distribution Period.


 


“Rate Cut-off Date”
means for each Distribution Period the date that is five New York City Banking
Days preceding the last day of the Distribution Period.


 


“Redemption Date”
shall mean the date fixed for the redemption of Capital Securities, which shall
be any March 17, June 17, September 17 or December 17 commencing December 17,
2008.


 


“Redemption Price”
means 100% of the principal amount of the Debentures being redeemed, plus
accrued and unpaid Interest on such Debentures to the Redemption Date.


 


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


 


“Special Redemption Date”
means a date on which a Special Event redemption occurs, which shall be any
March 17, June 17, September 17 or December 17.


 


“Special Redemption Price”
means the price set forth in the following table for any Special Redemption
Date that occurs on the date indicated below (or if such day is not a Business
Day, then the next succeeding Business Day), expressed as the percentage of the
principal amount of the Debentures being redeemed:


 




	
  Special Redemption Date

  	
   

  	
  Special
  Redemption Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  March
  17, 2004

  	
   

  	
  104.625

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  June
  17, 2004

  	
   

  	
  104.300

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  September
  17, 2004

  	
   

  	
  104.000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  December
  17, 2004

  	
   

  	
  103.650

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  March
  17, 2005

  	
   

  	
  103.350

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  June
  17, 2005

  	
   

  	
  103.000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  September
  17, 2005

  	
   

  	
  102.700

  	
  %

  






 


I-6

















 




	
  December
  17, 2005

  	
   

  	
  102.350

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  March
  17, 2006

  	
   

  	
  102.050

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  June
  17, 2006

  	
   

  	
  101.700

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  September
  17, 2006

  	
   

  	
  101.400

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  December
  17, 2006

  	
   

  	
  101.050

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  March
  17, 2007

  	
   

  	
  100.750

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  June
  17, 2007

  	
   

  	
  100.450

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  September
  17, 2007

  	
   

  	
  100.200

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  December
  17, 2007 and thereafter

  	
   

  	
  100.000

  	
  %

  






 


plus, in each case, accrued
and unpaid Interest on such Debentures to the Special Redemption Date.


 


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


 


“USD -Prime-H.15”
means for any date (subject to the Rate Cut-off Date) the rate set forth in the
Federal Reserve’s H.15(519) for that day opposite the caption “Bank prime
loan”.  If, by 5:00 p.m., New York City
time, on the day that is one New York City Banking Day following that day, such
rate for that day is not yet published in H.15(519), the rate for that day will
be the rate set forth in H.15 Daily Update, or such other recognized electronic
source used for the purpose of displaying such rate, for that day opposite the
caption “Bank prime loan”.  If, by 5:00
p.m., New York City time, on the day that is one New York City Banking Day following
that day, such rate for that day is not yet published in H.15(519), H.15 Daily
Update or another recognized electronic source, or if that day is not a New
York City Banking Day, the rate for that day will be the rate for the first
preceding day for which such rate is set forth in H.15(519) opposite the
caption “Bank prime loan”.  The rate


 


I-7

















 


for any day in the period
between the day after the Rate Cut-off Date and the last day of the
Distribution Period shall be the rate on the Rate Cut-off Date.


 


(b)                                 Upon the repayment in full at maturity or
redemption in whole or in part of the Debentures (other than following the
distribution of the Debentures to the Holders of the Securities), the proceeds
from such repayment or payment shall concurrently be applied to redeem Pro Rata
at the applicable Redemption Price or Special Redemption Price, as applicable,
Securities having an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so repaid or redeemed; provided, however,
that holders of such Securities shall be given not less than 30 nor more than
60 days’ notice of such redemption (other than at the scheduled maturity of the
Debentures).


 


(c)                                  If fewer than all the outstanding Securities
are to be so redeemed, the Common Securities and the Capital Securities will be
redeemed Pro Rata and the Capital Securities to be redeemed will be redeemed
Pro Rata from each Holder of Capital Securities.


 


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


 


(e)                                  Redemption or Distribution Procedures.


 


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


 


(ii)                                  If the Securities are to be redeemed and the
Trust gives a Redemption/ Distribution Notice, which notice may only be issued
if the Debentures are redeemed as set out in this paragraph 4 (which notice
will be irrevocable), then, provided that the Institutional Trustee has a
sufficient amount of cash in connection with the related redemption or maturity
of the Debentures, the Institutional Trustee will pay the relevant Redemption
Price or Special Redemption Price, as applicable, to the Holders of such
Securities by check mailed to the address of each such Holder appearing on the
books and records of the Trust on the Redemption Date.  If a Redemption/Distribution Notice shall
have been given and funds deposited as required then immediately prior to the
close of business on the date of such deposit Distributions will cease to
accrue on the Securities so called for redemption and all rights of Holders of such
Securities so called for redemption will cease, except the right of the Holders
of such Securities to receive the applicable Redemption Price or Special
Redemption Price specified in paragraph 4(a), but without interest on such
Redemption Price or Special Redemption Price. 
If payment of the Redemption Price or Special Redemption Price in
respect of any Securities is improperly withheld or refused and not paid either
by the Trust or by the Debenture Issuer as guarantor pursuant to the Guarantee,
Distributions on such Securities will continue to accrue at the


 


I-8

















 


Distribution Rate from the
original Redemption Date to the actual date of payment, in which case the
actual payment date will be considered the date fixed for redemption for
purposes of calculating the Redemption Price or Special Redemption Price.  In the event of any redemption of the
Capital Securities issued by the Trust in part, the Trust shall not be required
to (i) issue, register the transfer of or exchange any Security during a period
beginning at the opening of business 15 days before any selection for
redemption of the Capital Securities and ending at the close of business on the
earliest date on which the relevant notice of redemption is deemed to have been
given to all Holders of the Capital Securities to be so redeemed or (ii)
register the transfer of or exchange any Capital Securities so selected for
redemption, in whole or in part, except for the unredeemed portion of any
Capital Securities being redeemed in part.


 


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


 


(iv)
Subject to the foregoing and applicable law (including, without limitation,
United States federal securities laws), and provided that the acquiror is not
the Holder of the Common Securities or the obligor under the Indenture, the
Sponsor or any of its subsidiaries may at any time and from time to time
purchase outstanding Capital Securities by tender, in the open market or by
private agreement.


 


5.                                       Voting Rights - Capital Securities.


 


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


 


(b)                                 Subject to the requirements of obtaining a
tax opinion by the Institutional Trustee in certain circumstances set forth in
the last sentence of this paragraph, the Holders of a Majority in liquidation
amount of the Capital Securities, voting separately as a class, have the right
to direct the time, method, and place of conducting any proceeding for any
remedy available to the Institutional Trustee, or exercising any trust or power
conferred upon the Institutional Trustee under the Declaration, including the
right to direct the Institutional Trustee, as holder of the Debentures, to (i)
exercise the remedies available under the Indenture as the holder of the
Debentures, (ii) waive any past default that is waivable under the Indenture,
(iii) exercise any right to rescind or annul a declaration that the principal
of all the Debentures shall be due and payable or (iv) consent on behalf of all
the Holders of the Capital Securities to any amendment, modification or termination
of the Indenture or the Debentures where such consent shall be required; provided,
however, that, where a consent or action under the Indenture would
require the consent or act of the holders of greater than a simple majority in
aggregate principal amount of Debentures (a “Super Majority”) affected
thereby, the Institutional Trustee may only give such consent or take such
action at the written direction of the Holders of at least the proportion in
liquidation amount of the Capital Securities outstanding which the relevant
Super Majority represents of the aggregate principal amount of the Debentures
outstanding. If the Institutional Trustee fails to enforce its rights under the
Debentures after the Holders of a Majority in liquidation amount of such Capital
Securities have so directed the Institutional Trustee, to the fullest extent
permitted by law, a Holder of the Capital Securities may institute a legal
proceeding directly against the Debenture Issuer to enforce the Institutional
Trustee’s rights under the Debentures without first instituting any legal
proceeding against the Institutional Trustee or any other person or entity.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Debenture
Issuer to pay interest or principal on the Debentures on the date the interest
or principal is payable (or in the case of redemption, the


 


I-9

















 


Redemption Date or the
Special Redemption Date, as applicable), then a Holder of record of the Capital
Securities may directly institute a proceeding for enforcement of payment, on
or after the respective due dates specified in the Debentures, to such Holder
directly of the principal of or interest on the Debentures having an aggregate
principal amount equal to the aggregate liquidation amount of the Capital
Securities of such Holder. The Institutional Trustee shall notify all Holders
of the Capital Securities of any default actually known to the Institutional
Trustee with respect to the Debentures unless (x) such default has been cured
prior to the giving of such notice or (y) the Institutional Trustee determines
in good faith that the withholding of such notice is in the interest of the
Holders of such Capital Securities, except where the default relates to the
payment of principal of or interest on any of the Debentures. Such notice shall
state that such Indenture Event of Default also constitutes an Event of Default
hereunder. Except with respect to directing the time, method and place of
conducting a proceeding for a remedy, the Institutional Trustee shall not take
any of the actions described in clauses (i), (ii) or (iii) above unless the
Institutional Trustee has obtained an opinion of tax counsel to the effect
that, as a result of such action, the Trust will not be classified as other
than a grantor trust for United States federal income tax purposes.


 


In the event the consent of
the Institutional Trustee, as the holder of the Debentures, is required under
the Indenture with respect to any amendment, modification or termination of the
Indenture, the Institutional Trustee shall request the direction of the Holders
of the Securities with respect to such amendment, modification or termination
and shall vote with respect to such amendment, modification or termination as
directed by a Majority in liquidation amount of the Securities voting together
as a single class; provided, however, that where a consent under
the Indenture would require the consent of a Super-Majority, the Institutional
Trustee may only give such consent at the direction of the Holders of at least
the proportion in liquidation amount of the Securities outstanding which the
relevant Super-Majority represents of the aggregate principal amount of the
Debentures outstanding. The Institutional Trustee shall not take any such
action in accordance with the directions of the Holders of the Securities
unless the Institutional Trustee has obtained an opinion of tax counsel to the
effect that, as a result of such action, the Trust will not be classified as
other than a grantor trust for United States federal income tax purposes.


 


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


 


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


 


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


 


I-10

















 


Declaration, Holders of
Capital Securities have the right to vote to appoint, remove or replace the
Institutional Trustee.


 


6.                                       Voting Rights - Common Securities.


 


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


 


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


 


(c)                                  Subject to Section 6.7 of the Declaration and
only after each Event of Default (if any) with respect to the Capital
Securities has been cured, waived, or otherwise eliminated and subject to the
requirements of the second to last sentence of this paragraph, the Holders of a
Majority in liquidation amount of the Common Securities, voting separately as a
class, may direct the time, method, and place of conducting any proceeding for
any remedy available to the Institutional Trustee, or exercising any trust or
power conferred upon the Institutional Trustee under the Declaration, including
(i) directing the time, method, place of conducting any proceeding for any
remedy available to the Debenture Trustee, or exercising any trust or power
conferred on the Debenture Trustee with respect to the Debentures, (ii) waiving
any past default and its consequences that is waivable under the Indenture, or
(iii) exercising any right to rescind or annul a declaration that the principal
of all the Debentures shall be due and payable; provided, however,
that, where a consent or action under the Indenture would require a Super
Majority, the Institutional Trustee may only give such consent or take such
action at the written direction of the Holders of at least the proportion in
liquidation amount of the Common Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding.
Notwithstanding this paragraph 6(c), the Institutional Trustee shall not revoke
any action previously authorized or approved by a vote or consent of the
Holders of the Capital Securities. Other than with respect to directing the
time, method and place of conducting any proceeding for any remedy available to
the Institutional Trustee or the Debenture Trustee as set forth above, the
Institutional Trustee shall not take any action described in (i), (ii) or (iii)
above, unless the Institutional Trustee has obtained an opinion of tax counsel
to the effect that for the purposes of United States federal income tax the
Trust will not be classified as other than a grantor trust on account of such
action. If the Institutional Trustee fails to enforce its rights under the
Declaration to the fullest extent permitted by law, any Holder of the Common
Securities may institute a legal proceeding directly against any Person to
enforce the Institutional Trustee’s rights under the Declaration, without first
instituting a legal proceeding against the Institutional Trustee or any other
Person.


 


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


 


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


 


I-11

















 


7.                                       Amendments to Declaration and Indenture.


 


(a)                                  In addition to any requirements under Section
11.1 of the Declaration, if any proposed amendment to the Declaration provides
for, or the Institutional Trustee, Sponsor or Administrators otherwise propose
to effect, (i) any action that would adversely affect the powers, preferences
or special rights of the Securities, whether by way of amendment to the
Declaration or otherwise, or (ii) the Liquidation of the Trust, other than as
described in Section 7.1 of the Declaration, then the Holders of outstanding
Securities, voting together as a single class, will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a Majority in liquidation
amount of the Securities, affected thereby; provided, however, if
any amendment or proposal referred to in clause (i) above would adversely
affect only the Capital Securities or only the Common Securities, then only the
affected class will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the approval of a
Majority in liquidation amount of such class of Securities.


 


(b)                                 In the event the consent of the Institutional
Trustee as the holder of the Debentures is required under the Indenture with
respect to any amendment, modification or termination of the Indenture or the
Debentures, the Institutional Trustee shall request the written direction of
the Holders of the Securities with respect to such amendment, modification or
termination and shall vote with respect to such amendment, modification, or
termination as directed by a Majority in liquidation amount of the Securities
voting together as a single class; provided, however, that where
a consent under the Indenture would require a Super Majority, the Institutional
Trustee may only give such consent at the direction of the Holders of at least
the proportion in liquidation amount of the Securities which the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding.


 


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


 


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


 


8.                                       Pro Rata.  A reference in these terms of
the Securities to any payment, distribution or treatment as being “Pro Rata”
shall mean pro rata to each Holder of the Securities according to the aggregate
liquidation amount of the Securities held by the relevant Holder in relation to
the aggregate liquidation amount of all Securities then outstanding unless, in
relation to a payment, an Event of Default has occurred and is continuing, in
which case any funds available to make such payment shall be paid first to each
Holder of the Capital Securities Pro Rata according to the aggregate
liquidation amount of the Capital Securities held by the relevant Holder
relative to the aggregate liquidation amount of all Capital Securities
outstanding, and only after satisfaction of all amounts owed to the Holders of
the Capital Securities, to each Holder of the Common Securities Pro Rata
according to the aggregate liquidation amount of the Common Securities held by
the relevant Holder relative to the aggregate liquidation amount of all Common
Securities outstanding.


 


9.                                       Ranking.  The Capital Securities rank pari passu with and payment thereon shall
be made Pro Rata with the Common Securities except that, where an Event of
Default has occurred and is


 


I-12

















 


continuing, the rights of
Holders of the Common Securities to receive payment of Distributions and
payments upon liquidation, redemption and otherwise are subordinated to the
rights of the Holders of the Capital Securities with the result that no payment
of any Distribution on, or Redemption Price (or Special Redemption Price) of,
any Common Security, and no other payment on account of redemption, liquidation
or other acquisition of Common Securities, shall be made unless payment in full
in cash of all accumulated and unpaid Distributions on all outstanding Capital
Securities for all distribution periods terminating on or prior thereto, or in
the case of payment of the Redemption Price (or Special Redemption Price) the
full amount of such Redemption Price (or Special Redemption Price) on all
outstanding Capital Securities then called for redemption, shall have been made
or provided for, and all funds immediately available to the Institutional
Trustee shall first be applied to the payment in full in cash of all
Distributions on, or the Redemption Price (or Special Redemption Price) of, the
Capital Securities then due and payable.


 


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


 


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


 


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


 


I-13

















 


EXHIBIT A-1


 


FORM OF CAPITAL SECURITY CERTIFICATE


 


[FORM OF FACE OF SECURITY]


 


THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW.  NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.  THE HOLDER OF THIS SECURITY BY
ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY
ONLY (A) TO THE SPONSOR OR THE TRUST, (B) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A, (D) TO
A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
RULE 904 (AS APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (A) OF
RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS CAPITAL SECURITY FOR
ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE
IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE SPONSOR’S AND THE TRUST’S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM IN
ACCORDANCE WITH THE DECLARATION OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM
THE SPONSOR OR THE TRUST.  HEDGING
TRANSACTIONS INVOLVING THIS SECURITY MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE
WITH THE SECURITIES ACT.


 


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


 


A-1-1

















 


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


 


THIS SECURITY WILL BE ISSUED
AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS
THAN $100,000.00 (100 SECURITIES) AND MULTIPLES OF $1,000.00 IN EXCESS
THEREOF.  ANY ATTEMPTED TRANSFER OF
SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000.00 SHALL
BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.


 


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


 


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


 


	
  Certificate Number P-1

  	
   

  	
  10,000 Capital Securities

  



 


December 17, 2003


 


Certificate Evidencing Floating Rate Capital Securities


 


of


 


County Statutory Trust II


 


(liquidation amount $1,000.00 per Capital Security)


 


County Statutory Trust II, a
statutory trust created under the laws of the State of Connecticut (the
“Trust”), hereby certifies that Hare & Co. (the “Holder”), as the nominee
of The Bank of New York, indenture trustee under the Indenture dated as of
December 17, 2003 among Preferred Term Securities XII, Ltd., Preferred Term
Securities XII, Inc. and The Bank of New York, is the registered owner of
capital securities of the Trust representing undivided beneficial interests in
the assets of the Trust, (liquidation amount $1,000.00 per capital security)
(the “Capital Securities”). Subject to the Declaration (as defined below), the
Capital Securities are transferable on the books and records of the Trust in
person or by a duly authorized attorney, upon surrender of this Certificate
duly endorsed and in proper form for transfer. 
The Capital Securities represented hereby are issued pursuant to, and
the designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Capital Securities shall in all respects be subject to,
the provisions of the Amended and Restated Declaration of Trust of the Trust
dated as of December 17, 2003, among Kenneth K. Lee, Janey Cabral and David
Curtis, as Administrators, U.S. Bank National Association, as Institutional
Trustee, Capital Corp of the West, as Sponsor, and the holders from time to
time of undivided beneficial interests in the assets of the Trust, including
the designation of the terms of the Capital Securities as set forth in Annex I
to such amended and restated declaration as the same may be amended from time
to time (the “Declaration”). 
Capitalized terms used herein but not defined shall have the meaning
given them in the Declaration. The Holder is entitled to the benefits of the
Guarantee to the extent provided therein. The Sponsor will provide a copy of
the Declaration, the Guarantee, and the Indenture to the Holder without charge
upon written request to the Sponsor at its principal place of business.


 


A-1-2

















 


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


 


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


 


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


 


Signatures appear on following page


 


A-1-3

















 


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


 


	
   

  	
  COUNTY STATUTORY TRUST II

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title: Administrator

  



 


CERTIFICATE OF AUTHENTICATION


 


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


 


	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION,

  as the Institutional Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized
  Officer

  	
   

  



 


A-1-4

















 


 


[FORM
OF REVERSE OF CAPITAL SECURITY]


 


Distributions payable on
each Capital Security will be payable at an annual rate equal to (i) the Prime
Rate, plus 0.07%, for the Distribution Periods beginning on (and including) the
date of original issuance and each succeeding Distribution Payment Date
occurring prior to December 17, 2008, and (ii) 3-Month LIBOR plus 2.85% for
each successive Distribution Period beginning on (and including) December 17,
2008 ((i) and (ii) each referred to as the “Distribution Rate”), applied to the
stated liquidation amount of $1,000.00 per Capital Security, such rate being
the rate of interest payable on the Debentures to be held by the Institutional
Trustee. Distributions in arrears will bear interest thereon compounded
quarterly at the Distribution Rate (to the extent permitted by applicable
law).  The term “Distributions” as used
herein includes cash distributions and any such compounded distributions unless
otherwise noted.  A Distribution is
payable only to the extent that payments are made in respect of the Debentures
held by the Institutional Trustee and to the extent the Institutional Trustee
has funds available therefor.  As used
herein, “Determination Date” means the date that is two London Banking Days
(i.e., a business day in which dealings in deposits in U.S. dollars are
transacted in the London interbank market) preceding the commencement of the
relevant Distribution Period.  The amount
of the Distribution payable for any Distribution Period will be calculated by
applying the Distribution Rate to the stated liquidation amount outstanding at
the commencement of the Distribution Period on the basis of the actual number
of days in the Distribution Period concerned divided by 360.


 


“New York City Banking Day”
means a day on which commercial banks are open for general business (including
dealings in foreign exchange and foreign currency deposits) in New York City.


 


“Prime Rate” means the quotient
that results from dividing (i) the sum of each day’s USD -Prime-H.15 during the
Distribution Period by (ii) the actual number of days in the Distribution
Period.


 


“Rate Cut-off Date” means
for each Distribution Period the date that is five New York City Banking Days
preceding the last day of the Distribution Period.


 


“USD -Prime-H.15” means for
any date (subject to the Rate Cut-off Date) the rate set forth in the Federal
Reserve’s H.15(519) for that day opposite the caption “Bank prime loan”.  If, by 5:00 p.m., New York City time, on the
day that is one New York City Banking Day following that day, such rate for
that day is not yet published in H.15(519), the rate for that day will be the
rate set forth in H.15 Daily Update, or such other recognized electronic source
used for the purpose of displaying such rate, for that day opposite the caption
“Bank prime loan”.  If, by 5:00 p.m.,
New York City time, on the day that is one New York City Banking Day following
that day, such rate for that day is not yet published in H.15(519), H.15 Daily
Update or another recognized electronic source, or if that day is not a New
York City Banking Day, the rate for that day will be the rate for the first
preceding day for which such rate is set forth in H.15(519) opposite the
caption “Bank prime loan”.  The rate for
any day in the period between the day after the Rate Cut-off Date and the last
day of the Distribution Period shall be the rate on the Rate Cut-off Date.


 


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


 


A-1-5

















 


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


 


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


 


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


 


Except as otherwise described
below, Distributions on the Capital Securities will be cumulative, will accrue
from the date of original issuance and will be payable quarterly in arrears on
March 17, June 17, September 17 and December 17 of each year (or if such day is
not a Business Day, then the next succeeding Business Day), commencing on March
17, 2004.  The Debenture Issuer has the
right under the Indenture to defer payments of interest on the Debentures, so
long as no Indenture Event of Default has occurred and is continuing, by extending
the interest payment period for up to 20 consecutive quarterly periods (each an
“Extension Period”) at any time and from time to time on the Debentures,
subject to the conditions described below, during which Extension Period no
interest shall be due and payable. 
During any Extension Period, interest will continue to accrue on the
Debentures, and interest on such accrued interest will accrue at an annual rate
equal to the Distribution Rate in effect for each such Extension Period,
compounded quarterly from the date such interest would have been payable were
it not for the Extension Period, to the extent permitted by law (such interest
referred to herein as “Additional Interest”). No Extension Period may end on a
date other than a Distribution Payment Date. At the end of any such Extension
Period, the Debenture Issuer shall pay all interest then accrued and unpaid on
the Debentures (together with Additional Interest thereon); provided, however,
that no Extension Period may extend beyond the Maturity Date.  Prior to the termination of any Extension
Period, the Debenture Issuer may further extend such period, provided that such
period together with all such previous and further consecutive extensions
thereof shall not exceed 20 consecutive quarterly periods, or extend beyond the
Maturity Date. Upon the termination of any Extension Period and upon the
payment of all accrued and unpaid interest and Additional Interest, the
Debenture Issuer may commence a new Extension Period, subject to the foregoing
requirements.  No interest or Additional
Interest shall be due and payable during an Extension Period, except at the end
thereof, but each installment of interest that would otherwise have been due
and payable during such Extension Period shall bear Additional Interest.  During any Extension Period, Distributions
on the Capital Securities shall be deferred for a period equal to the Extension
Period.  If Distributions are deferred,
the Distributions due shall be paid on the date that the related Extension
Period terminates, to Holders of the Securities as they appear on the books and
records of the Trust on the record date immediately preceding such date.
Distributions on the Securities must be paid on the dates payable (after giving
effect to any Extension Period) to the extent that the Trust has funds
available for the payment of such distributions in the Property Account of the
Trust.  The Trust’s funds available for


 


A-1-6

















 


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


 


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


 


A-1-7

















 


ASSIGNMENT


 


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


 


                                                                                                


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


 


 


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


 


 


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


 


	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
  Signature:

  	
   

  	
   

  
					



 


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


 


Signature Guarantee:(1)


 


 












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


 


A-1-8

















 


EXHIBIT A-2


 


FORM
OF COMMON SECURITY CERTIFICATE


 


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


 


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


 


 


	
  Certificate Number C-1

  	
   

  	
  310 Common Securities

  



 


December
17, 2003


 


Certificate
Evidencing Floating Rate Common Securities


 


of


 


County
Statutory Trust II


 


County Statutory Trust II, a
statutory trust created under the laws of the State of Connecticut (the
“Trust”), hereby certifies that Capital Corp of the West (the “Holder”) is the
registered owner of common securities of the Trust representing undivided
beneficial interests in the assets of the Trust (the “Common Securities”).  The Common Securities represented hereby are
issued pursuant to, and the designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities shall in
all respects be subject to, the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of December 17, 2003, among Kenneth
K. Lee, Janey Cabral and David Curtis, as Administrators, U.S. Bank National
Association, as Institutional Trustee, Capital Corp of the West, as Sponsor,
and the holders from time to time of undivided beneficial interest in the
assets of the Trust including the designation of the terms of the Common
Securities as set forth in Annex I to such amended and restated declaration, as
the same may be amended from time to time (the “Declaration”).  Capitalized terms used herein but not
defined shall have the meaning given them in the Declaration.  The Holder is entitled to the benefits of the
Guarantee to the extent provided therein. 
The Sponsor will provide a copy of the Declaration, the Guarantee and
the Indenture to the Holder without charge upon written request to the Sponsor
at its principal place of business.


 


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


 


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


 


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


 


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


 


A-2-1

















 


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


 


	
   

  	
  COUNTY STATUTORY TRUST II

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title: Administrator

  



 


A-2-2

















 


[FORM
OF REVERSE OF COMMON SECURITY]


 


Distributions payable on
each Common Security will be payable at an annual rate equal to (i) the Prime
Rate, plus 0.07%, for the Distribution Periods beginning on (and including) the
date of original issuance and each succeeding Distribution Payment Date
occurring prior to December 17, 2008, and (ii) 3-Month LIBOR plus 2.85% for
each successive Distribution Period beginning on (and including) December 17,
2008 ((i) and (ii) each referred to as the “Distribution Rate”), applied to the
stated liquidation amount of $1,000.00 per Common Security, such rate being the
rate of interest payable on the Debentures to be held by the Institutional
Trustee. Distributions in arrears will bear interest thereon compounded
quarterly at the Distribution Rate (to the extent permitted by applicable
law).  The term “Distributions” as used
herein includes cash distributions and any such compounded distributions unless
otherwise noted.  A Distribution is
payable only to the extent that payments are made in respect of the Debentures
held by the Institutional Trustee and to the extent the Institutional Trustee
has funds available therefor.  As used
herein, “Determination Date” means the date that is two London Banking Days
(i.e., a business day in which dealings in deposits in U.S. dollars are
transacted in the London interbank market) preceding the commencement of the
relevant Distribution Period.  The
amount of the Distribution payable for any Distribution Period will be calculated
by applying the Distribution Rate to the stated liquidation amount outstanding
at the commencement of the Distribution Period on the basis of the actual
number of days in the Distribution Period concerned divided by 360.


 


“New York City Banking Day”
means a day on which commercial banks are open for general business (including
dealings in foreign exchange and foreign currency deposits) in New York City.


 


“Prime Rate” means the
quotient that results from dividing (i) the sum of each day’s USD -Prime-H.15
during the Distribution Period by (ii) the actual number of days in the
Distribution Period.


 


“Rate Cut-off Date” means
for each Distribution Period the date that is five New York City Banking Days
preceding the last day of the Distribution Period.


 


“USD -Prime-H.15” means for
any date (subject to the Rate Cut-off Date) the rate set forth in the Federal
Reserve’s H.15(519) for that day opposite the caption “Bank prime loan”.  If, by 5:00 p.m., New York City time, on the
day that is one New York City Banking Day following that day, such rate for
that day is not yet published in H.15(519), the rate for that day will be the
rate set forth in H.15 Daily Update, or such other recognized electronic source
used for the purpose of displaying such rate, for that day opposite the caption
“Bank prime loan”.  If, by 5:00 p.m.,
New York City time, on the day that is one New York City Banking Day following
that day, such rate for that day is not yet published in H.15(519), H.15 Daily
Update or another recognized electronic source, or if that day is not a New
York City Banking Day, the rate for that day will be the rate for the first
preceding day for which such rate is set forth in H.15(519) opposite the
caption “Bank prime loan”.  The rate for
any day in the period between the day after the Rate Cut-off Date and the last
day of the Distribution Period shall be the rate on the Rate Cut-off Date.


 


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


 


A-2-3

















 


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


 


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


 


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


 


Except as otherwise
described below, Distributions on the Common Securities will be cumulative, will
accrue from the date of original issuance and will be payable quarterly in
arrears on March 17, June 17, September 17 and December 17 of each year (or if
such day is not a Business Day, then the next succeeding Business Day),
commencing on March 17, 2004. The Debenture Issuer has the right under the
Indenture to defer payments of interest on the Debentures, so long as no
Indenture Event of Default has occurred and is continuing, by extending the
interest payment period for up to 20 consecutive quarterly periods (each an
“Extension Period”) at any time and from time to time on the Debentures,
subject to the conditions described below, during which Extension Period no
interest shall be due and payable. 
During any Extension Period, interest will continue to accrue on the
Debentures, and interest on such accrued interest will accrue at an annual rate
equal to the Distribution Rate in effect for each such Extension Period,
compounded quarterly from the date such interest would have been payable were
it not for the Extension Period, to the extent permitted by law (such interest
referred to herein as “Additional Interest”). No Extension Period may end on a
date other than a Distribution Payment Date. 
At the end of any such Extension Period, the Debenture Issuer shall pay
all interest then accrued and unpaid on the Debentures (together with
Additional Interest thereon); provided, however, that no
Extension Period may extend beyond the Maturity Date.  Prior to the termination of any Extension Period, the Debenture Issuer
may further extend such period, provided that such period together with all
such previous and further consecutive extensions thereof shall not exceed 20
consecutive quarterly periods, or extend beyond the Maturity Date. Upon the
termination of any Extension Period and upon the payment of all accrued and
unpaid interest and Additional Interest, the Debenture Issuer may commence a
new Extension Period, subject to the foregoing requirements. No interest or
Additional Interest shall be due and payable during an Extension Period, except
at the end thereof, but each installment of interest that would otherwise have
been due and payable during such Extension Period shall bear Additional
Interest.  During any Extension Period,
Distributions on the Common Securities shall be deferred for a period equal to
the Extension Period.  If Distributions
are deferred, the Distributions due shall be paid on the date that the related
Extension Period terminates, to Holders of the Securities as they appear on the
books and records of the Trust on the record date immediately preceding such
date. Distributions on the Securities must be paid on the dates payable (after
giving effect to any Extension Period) to the extent that the Trust has funds
available for the payment of such distributions in the Property Account of the
Trust.


 


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The Trust’s funds available
for Distribution to the Holders of the Securities will be limited to payments
received from the Debenture Issuer.


 


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


 


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ASSIGNMENT


 


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


 


 


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


 


 


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


 


 


	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

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

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

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

  
					



 


Signature Guarantee(2)


 


 












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


 


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EXHIBIT B


 


SPECIMEN OF INITIAL DEBENTURE


 


(See
Document No. 16)


 


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EXHIBIT C


 


PLACEMENT AGREEMENT


 


(See
Document No. 1)


 


C-1