f8k123009ex4i_firstunited.htm


    Exhibit 4.1

     

    
 

     

    AMENDED
AND RESTATED DECLARATION

     

    OF
TRUST

     

    FIRST
UNITED STATUTORY TRUST III

     

    Dated as
of December 30, 2009

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      TABLE OF CONTENTS

      (continued)

    

     

    ARTICLE
I

    DEFINED
TERMS

     

    
      	
              SECTION
      1.1.

            	
              Definitions 

            	
              1

            


    

     

    ARTICLE
II

    ESTABLISHMENT
OF THE TRUST

     

    
      	
              SECTION
      2.1.

            	
              Name 

            	
              9

            


    

     

    
      	
              SECTION
      2.2.

            	
              Office
      of the Delaware Trustee; Principal Place of Business 

            	
              9

            


    

     

    
      	
              SECTION
      2.3.

            	
              Initial
      Contribution of Trust Property; Organizational
    Expenses 

            	
              9

            


    

     

    
      	
              SECTION
      2.4.

            	
              Issuance
      of the Preferred Securities 

            	
              9

            


    

     

    
      	
              SECTION
      2.5.

            	
              Issuance
      of Common Securities; Subscription and Purchase of the
      Debentures 

            	
              10

            


    

     

    
      	
              SECTION
      2.6.

            	
              Declaration
      of Trust 

            	
              10

            


    

     

    
      	
              SECTION
      2.7.

            	
              Authorization
      to Enter Into Certain Transactions 

            	
              10

            


    

     

    
      	
              SECTION
      2.8.

            	
              Assets
      of the Trust 

            	
              13

            


    

     

    
      	
              SECTION
      2.9.

            	
              Title
      to Trust Property 

            	
              13

            


    

     

    ARTICLE
III

    PAYMENT
ACCOUNT

     

    
      	
              SECTION
      3.1.

            	
              Payment
      Account 

            	
              14

            


    

     

    ARTICLE
IV

    DISTRIBUTIONS;
REDEMPTION

     

    
      	
              SECTION
      4.1.

            	
              Distributions 

            	
              14

            


    

     

    
      	
              SECTION
      4.2.

            	
              Redemption 

            	
              15

            


    

     

    
      	
              SECTION
      4.3.

            	
              Subordination
      of the Common Securities 

            	
              17

            


    

     

    
      	
              SECTION
      4.4.

            	
              Payment
      Proceedings 

            	
              17

            


    

     

    
      	
              SECTION
      4.5.

            	
              Tax
      Returns and Reports 

            	
              17

            


    

     

    
      	
              SECTION
      4.6.

            	
              Payment
      of Taxes, Duties, Etc. of the Trust 

            	
              18

            


    

     

    
      	
              SECTION
      4.7.

            	
              Payments
      Under the Indenture 

            	
              18

            


    

     

    
      
        
        

      

      
        i

        
          

        

      

      
        
        

      

    

     

    
      
        TABLE OF CONTENTS

        (continued)

      

    

     

    ARTICLE
V

    THE TRUST
SECURITIES CERTIFICATES

     

    
      	
              SECTION
      5.1.

            	
              Initial
      Ownership 

            	
              18

            


    

     

    
      	
              SECTION
      5.2.

            	
              The
      Trust Securities Certificates 

            	
              18

            


    

     

    
      	
              SECTION
      5.3.

            	
              Execution,
      Authentication and Delivery of the Trust Securities
      Certificates 

            	
              18

            


    

     

    
      	
              SECTION
      5.4.

            	
              Registration
      of Transfer and Exchange of the Preferred Securities
      Certificates 

            	
              19

            


    

     

    
      	
              SECTION
      5.5.

            	
              Mutilated,
      Destroyed, Lost or Stolen Trust Securities
  Certificates20

            


    

     

    
      	
              SECTION
      5.6.

            	
              Persons
      Deemed the Securityholders 

            	
              20

            


    

     

    
      	
              SECTION
      5.7.

            	
              Access
      to List of the Securityholders’ Names and Addresses 

            	
              20

            


    

     

    
      	
              SECTION
      5.8.

            	
              Maintenance
      of Office or Agency 

            	
              21

            


    

     

    
      	
              SECTION
      5.9.

            	
              Appointment
      of the Paying Agent 

            	
              21

            


    

     

    
      	
              SECTION
      5.10.

            	
              Ownership
      of the Common Securities by the Depositor 

            	
              22

            


    

     

    
      	
              SECTION
      5.11.

            	
              The
      Trust Securities Certificates 

            	
              22

            


    

     

    
      	
              SECTION
      5.12.

            	
              Notices 

            	
              22

            


    

     

    
      	
              SECTION
      5.13.

            	
              Rights
      of the Securityholders 

            	
              22

            


    

     

    ARTICLE
VI

    ACTS OF
THE SECURITYHOLDERS; MEETINGS; VOTING

     

    
      	
              SECTION
      6.1.

            	
              Limitations
      on Voting Rights 

            	
              23

            


    

     

    
      	
              SECTION
      6.2.

            	
              Notices
      of Meetings 

            	
              24

            


    

     

    
      	
              SECTION
      6.3.

            	
              Meetings
      of the Preferred Securityholders 

            	
              24

            


    

     

    
      	
              SECTION
      6.4.

            	
              Voting
      Rights 

            	
              24

            


    

     

    
      	
              SECTION
      6.5.

            	
              Proxies,
      Etc. 

            	
              24

            


    

     

    
      	
              SECTION
      6.6.

            	
              Securityholder
      Action by Written Consent 

            	
              25

            


    

     

    
      	
              SECTION
      6.7.

            	
              Record
      Date for Voting and Other Purposes 

            	
              25

            


    

     

    
      
        
        

      

      
        ii

        
          

        

      

      
        
        

      

    

     

    
      
        TABLE OF CONTENTS

        (continued)

      

    

     

    
      	
              SECTION
      6.8.

            	
              Acts
      of the Securityholders 

            	
              25

            


    

     

    
      	
              SECTION
      6.9.

            	
              Inspection
      of Records 

            	
              26

            


    

     

    ARTICLE
VII

    REPRESENTATIONS
AND WARRANTIES

     

    
      	
              SECTION
      7.1.

            	
              Representations
      and Warranties of the Bank and the Property Trustee 

            	
              26

            


    

     

    
      	
              SECTION
      7.2.

            	
              Representations
      and Warranties of the Delaware Bank and the Delaware
      Trustee 

            	
              27

            


    

     

    
      	
              SECTION
      7.3.

            	
              Representations
      and Warranties of the Depositor 

            	
              28

            


    

     

    ARTICLE
VIII

    TRANSFER
OF INTERESTS

     

    
      	
              SECTION
      8.1.

            	
              General 

            	
              29

            


    

     

    
      	
              SECTION
      8.2.

            	
              Transfer
      Procedures and Restrictions 

            	
              30

            


    

     

    
      	
              SECTION
      8.3.

            	
              Deemed
      Security Holders 

            	
              31

            


    

     

    
      	
              SECTION
      8.4.

            	
              Depositor
      Exchange 

            	
              31

            


    

     

    ARTICLE
IX

    TRUSTEES

     

    
      	
              SECTION
      9.1.

            	
              Certain
      Duties and Responsibilities 

            	
              32

            


    

     

    
      	
              SECTION
      9.2.

            	
              Certain
      Notices 

            	
              34

            


    

     

    
      	
              SECTION
      9.3.

            	
              Certain
      Rights of the Property Trustee 

            	
              34

            


    

     

    
      	
              SECTION
      9.4.

            	
              Trustees’
      Disclaimer 

            	
              36

            


    

     

    
      	
              SECTION
      9.5.

            	
              May
      Hold Securities 

            	
              36

            


    

     

    
      	
              SECTION
      9.6.

            	
              Compensation;
      Indemnity; Fees 

            	
              36

            


    

     

    
      	
              SECTION
      9.7.

            	
              Corporate
      Property Trustee Required; Eligibility of Trustees 

            	
              37

            


    

     

    
      	
              SECTION
      9.8.

            	
              Conflicting
      Interests 

            	
              38

            


    

     

    
      	
              SECTION
      9.9.

            	
              Co-Trustees
      and Separate Trustees 

            	
              38

            


    

     

    
      	
              SECTION
      9.10.

            	
              Resignation
      and Removal; Appointment of Successor 

            	
              39

            


    

     

    
      	
              SECTION
      9.11.

            	
              Acceptance
      of Appointment by Successor 

            	
              40

            


    

     

    
      
        
        

      

      
        iii

        
          

        

      

      
        
        

      

    

     

    
      
        TABLE OF CONTENTS

        (continued)

      

    

     

    
      	
              SECTION
      9.12.

            	
              Merger,
      Conversion, Consolidation or Succession to Business 

            	
              41

            


    

     

    
      	
              SECTION
      9.13.

            	
              Preferential
      Collection of Claims Against the Depositor or the
    Trust 

            	
              41

            


    

     

    
      	
              SECTION
      9.14.

            	
              Property
      Trustee May File Proofs of Claim 

            	
              41

            


    

     

    
      	
              SECTION
      9.15.

            	
              Reports
      to the Property Trustee and to Securityholders 

            	
              42

            


    

     

    
      	
              SECTION
      9.16.

            	
              Evidence
      of Compliance with Conditions Precedent 

            	
              42

            


    

     

    
      	
              SECTION
      9.17.

            	
              Number
      of Trustees 

            	
              42

            


    

     

    
      	
              SECTION
      9.18.

            	
              Delegation
      of Power 

            	
              43

            


    

     

    
      	
              SECTION
      9.19.

            	
              Voting 

            	
              43

            


    

     

    ARTICLE
X

    TERMINATION,
LIQUIDATION AND MERGER

     

    
      	
              SECTION
      10.1.

            	
              Dissolution
      Upon Expiration Date 

            	
              43

            


    

     

    
      	
              SECTION
      10.2.

            	
              Early
      Dissolution 

            	
              43

            


    

     

    
      	
              SECTION
      10.3.

            	
              Termination 

            	
              44

            


    

     

    
      	
              SECTION
      10.4.

            	
              Liquidation 

            	
              44

            


    

     

    
      	
              SECTION
      10.5.

            	
              Mergers,
      Consolidations, Amalgamations or Replacements of the
      Trust 

            	
              45

            


    

     

    ARTICLE
XI

    MISCELLANEOUS
PROVISIONS

     

    
      	
              SECTION
      11.1.

            	
              Limitation
      of Rights of the Securityholders 

            	
              46

            


    

     

    
      	
              SECTION
      11.2.

            	
              Amendment 

            	
              46

            


    

     

    
      	
              SECTION
      11.3.

            	
              Separability 

            	
              47

            


    

     

    
      	
              SECTION
      11.4.

            	
              Governing
      Law 

            	
              48

            


    

     

    
      	
              SECTION
      11.5.

            	
              Payments
      Due on Non-Business Day 

            	
              48

            


    

     

    
      	
              SECTION
      11.6.

            	
              Successors 

            	
              48

            


    

     

    
      	
              SECTION
      11.7.

            	
              Headings 

            	
              48

            


    

     

    
      	
              SECTION
      11.8.

            	
              Reports,
      Notices and Demands 

            	
              48

            


    

     

    
      
        
        

      

      
        iv

        
          

        

      

      
        
        

      

    

     

    
      
        TABLE OF CONTENTS

        (continued)

      

    

     

    
      	
              SECTION
      11.9.

            	
              Agreement
      Not to Petition 

            	
              49

            


    

     

    
      	
              SECTION
      11.10.

            	
              Trust
      Indenture Act; Conflict with Trust Indenture Act 

            	
              49

            


    

     

    
      	
              SECTION
      11.11.

            	
              Acceptance
      of Terms of the Declaration, the Guarantee and the
      Indenture 

            	
              50

            


    

     

    
      	
              SECTION
      11.12.

            	
              Counterparts 

            	
              50

            


    

     

    
      
        
        

      

      
        v

        
          

        

      

      
        
        

      

    

    


    


    EXHIBITS

     

    EXHIBIT
A                                Form
of Common Security Certificate

    EXHIBIT
B                                Form
of Preferred Security Certificate

     

    
      
        
        

      

      
        vi

        
          

        

      

      
        
        

      

    

    
 

    AMENDED
AND RESTATED DECLARATION OF TRUST

     

    AMENDED AND RESTATED DECLARATION OF
TRUST (this “Declaration”), dated and effective as of December 30, 2009, by (a)
FIRST UNITED CORPORATION, a Maryland corporation (including any successors and
assigns, the “Depositor”), (b) WILMINGTON TRUST COMPANY, a banking corporation
duly organized and existing under the laws of Delaware, as property trustee (the
“Property Trustee” and, in its separate corporate capacity and not in its
capacity as Property Trustee, the “Bank”), (c) WILMINGTON TRUST COMPANY, a
banking corporation duly organized and existing under the laws of the State of
Delaware, as Delaware trustee (the “Delaware Trustee,” and, in its separate
corporate capacity and not in its capacity as Delaware Trustee, the “Delaware
Bank”), (d) WILLIAM B. GRANT, an individual, CARISSA L. RODEHEAVER, an
individual, and TONYA K. STURM, an individual, each of whose address is c/o
First United Corporation, 19 South Second Street, Oakland, Maryland 21550 (each
an “Administrative Trustee” and collectively the “Administrative Trustees”) (the
Property Trustee, the Delaware Trustee and the Administrative Trustees are
collectively referred to herein as the “Trustees”), and (e) the several Holders
(as hereinafter defined).

    


    WHEREAS, the Delaware Trustee and the
Depositor established First United Statutory Trust III (the “Trust”), a
statutory trust under the Delaware Statutory Trust Act (as defined herein),
pursuant to a Declaration of Trust, dated as of November 30, 2009 (the “Original
Declaration”), and a Certificate of Trust filed with the Secretary of State of
the State of Delaware on November 30, 2009, for the sole purpose of issuing and
selling certain securities representing undivided beneficial interests in the
assets of the Trust and investing the proceeds thereof in the Debentures (as
defined herein) of the Debenture Issuer (as defined herein) in connection with
the issuance of the Preferred Securities (as defined herein);

    


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

    


    WHEREAS, all of the Trustees 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
Delaware Statutory Trust Act and that this Declaration constitutes the governing
instrument of such statutory trust, and that all assets contributed to the Trust
will be held in trust for the benefit of the holders, from time to time, of the
securities representing undivided beneficial interests in the assets of the
Trust issued hereunder (the “Holders”), subject to the provisions of this
Declaration, and, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties, intending to be legally bound hereby, amend and
restate in its entirety the Original Declaration and agree as
follows:

    


    ARTICLE
I

    DEFINED
TERMS
 

    


    SECTION 1.1.   Definitions.  For
all purposes of this Declaration, except as otherwise expressly provided or
unless the context otherwise requires:

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

    
 

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

    


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

    


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

    


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

    


    “Act” has the meaning specified in
Section 6.8.

    


    “Additional Amount” means, with respect
to Trust Securities of a given Liquidation Amount and/or a given period, the
amount of additional interest accrued on interest in arrears and paid by the
Depositor on a Like Amount of Debentures for such period.

    


    “Additional Payments” has the meaning
specified in Section 1.1 of the Indenture.

     

    “Administrative Trustee” means each of
William B. Grant, Carissa L. Rodeheaver, and Tonya K. Sturm, solely in his or
her capacity as Administrative Trustee of the Trust formed and continued
hereunder and not in his or her individual capacity, or such Administrative
Trustee’s successor in interest in such capacity, or any successor trustee
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.

    


    “Authenticating Agent” means an
authenticating agent with respect to the Preferred Securities appointed by the
Property Trustee pursuant to Section 5.3.

    


    “Bank” has the meaning specified in the
Preamble to this Declaration.

    


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

    


    (a) the entry
of a decree or order by a court having jurisdiction in the premises adjudging
such Person a bankrupt or insolvent, or approving as properly filed a petition
seeking liquidation or reorganization of or in respect of such Person under the
United States Bankruptcy Code of 1978, as amended, or any other similar
applicable federal or state law, and the continuance of any such decree or order
unvacated and unstayed for a period of ninety (90) days; or the commencement of
an involuntary case under the United States Bankruptcy Code of 1978, as amended,
in respect of such Person, which shall continue undismissed for a period of
ninety (90) days or entry of an order for relief in such case; or the entry of a
decree or order of a court having jurisdiction in the premises for the
appointment on the ground of insolvency or bankruptcy of a receiver, custodian,
liquidator, trustee or assignee in bankruptcy or insolvency of such Person or of
its property, or for the winding up or liquidation of its affairs, and such
decree or order shall have remained in force unvacated and unstayed for a period
of ninety (90) days; or

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    (b) the
institution by such Person of proceedings to be adjudicated a voluntary
bankrupt, or the consent by such Person to the filing of a bankruptcy proceeding
against it, or the filing by such Person of a petition or answer or consent
seeking liquidation or reorganization under the United States Bankruptcy Code of
1978, as amended, or other similar applicable Federal or State law, or the
consent by such Person to the filing of any such petition or to the appointment
on the ground of insolvency or bankruptcy of a receiver or custodian or
liquidator or trustee or assignee in bankruptcy or insolvency of such Person or
of its property, or shall make a general assignment for the benefit of
creditors.

    


    “Bankruptcy Laws” has the meaning
specified in Section 11.9.

     

    “Business Day” means any day other than
a Saturday or Sunday or a day on which federal or state banking institutions in
the Borough of Manhattan, the City of New York, are authorized or required by
law, executive order or regulation to close, or a day on which the Corporate
Trust Office of the Property Trustee or the Corporate Trust Office of the
Debenture Trustee is closed for business.

     

    “Certificate of Trust” means the
certificate of trust filed with the Secretary of State of the State of Delaware
with respect to the Trust, as amended or restated from time to
time.

    


    “Closing Date” means, as applicable,
the First Closing Date or the Second Closing Date.

     

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

    


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

     

    “Common Security” means an undivided
beneficial interest in the assets of the Trust, having a Liquidation Amount of
$1,000 and having the rights provided therefor in this Declaration, including
the right to receive Distributions and a Liquidation Distribution as provided
herein.

    


    “Common Securityholder” means a holder
of a Common Security.

    


    “Company” means First United
Corporation, a Maryland corporation and registered financial holding company
under the Bank Holding Company Act of 1956, as amended.

    


    “Corporate Trust Office” means the
office at which, at any particular time, the corporate trust business of the
Property Trustee or the Debenture Trustee, as the case may be, shall be
principally administered, which office at the date hereof, in each such case, is
located at Rodney Square North, 1100 North Market Street, Wilmington, Delaware,
19890-0001, Attention: Corporate Trust Administration.

     

    “Debenture Redemption Date” means, with
respect to any Debentures to be redeemed under the Indenture, the date fixed for
redemption under the Indenture.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

    
 

    “Debenture Trustee” means Wilmington
Trust Company, a banking corporation organized under the laws of the State of
Delaware and any successor thereto, as trustee under the Indenture.

    


    “Debenture Event of Default” means an
“Event of Default” as defined in Section 7.1 of the Indenture.

    


    “Debentures” means up to $30,930,000
aggregate principal amount of the Depositor’s 9.875% Subordinated Debentures due
2045, issued pursuant to the Indenture.

     

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

    


    “Delaware Bank” has the meaning
specified in the Preamble to this Declaration.

     

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

     

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

    


    “Depositor” has the meaning specified
in the Preamble to this Declaration.

    


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

    


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

    


    “Early Termination Event” has the
meaning specified in Section 10.2.

     

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

    


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

     

    (b) default
by the Trust in the payment of any Distribution when it becomes due and payable,
and continuation of such default for a period of thirty (30) days;
or

    


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

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    (d) default
in the performance, or breach, in any material respect, of any covenant or
warranty of the Trustees in this Declaration (other than a covenant or warranty
a default in the performance of which or the breach of which is dealt with in
clause (b) or (c), above) and continuation of such default or breach for a
period of sixty (60) days after there has been given, by registered or certified
mail, to the defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Preferred 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

    


    (e) the
occurrence of a Bankruptcy Event with respect to the Property Trustee and the
failure by the Depositor to appoint a successor Property Trustee within sixty
(60) days thereof.

    


    “Exchange Act” means the Securities
Exchange Act of 1934, as amended.

    


    “Expiration Date” has the meaning
specified in Section 10.1.

    


    “Extended Interest Period” has the
meaning specified in Section 4.1 of the Indenture.

    


    “First Closing Date” means the date of
execution and delivery of this Declaration.

    


    “Guarantee” means the Preferred
Securities Guarantee Agreement executed and delivered by the Depositor and
Wilmington Trust Company, as trustee, contemporaneously with the execution and
delivery of this Declaration, for the benefit of the Holders of the Preferred
Securities, as amended from time to time.

    


    “Indenture” means the Indenture, dated
as of even date herewith between the Depositor and the Debenture Trustee, as
trustee, as amended or supplemented from time to time, pertaining to the
Debentures of the Depositor.

    


    “Investment Company Act,” means the
Investment Company Act of 1940, as amended, as in effect at the date of
execution of this instrument.

    


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

     

    “Like Amount” means (a) with respect to
a redemption of Trust Securities, Trust Securities having an aggregate
Liquidation Amount equal to the aggregate principal amount of Debentures to be
contemporaneously redeemed in accordance with the Indenture and the proceeds of
which shall be used to pay the Redemption Price of such Trust Securities; and
(b) with respect to a distribution of Debentures to Holders of Trust Securities
in connection with a termination or liquidation of the Trust, Debentures having
a principal amount equal to the Liquidation Amount of the Trust Securities of
the Holder to whom such Debentures are distributed. Each Debenture distributed
pursuant to clause (b) above shall carry with it accrued interest in an amount
equal to the accrued and unpaid interest then due on such
Debenture.

    


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

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    “Liquidation Date” means the date on
which Debentures are to be distributed to Holders of Trust Securities in
connection with a termination and liquidation of the Trust pursuant to Section
10.4(a).

    


    “Liquidation Distribution” has the
meaning specified in Section 10.4(d).

    


    “Officers’ Certificate” means a
certificate signed by the Chief Executive Officer, President, Chief Financial
Officer or an Executive Vice President and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the Depositor, or with
respect to any Administrative Trustee, signed by such Administrative Trustee and
delivered to the appropriate Trustee.  One of the officers signing an
Officers’ Certificate given pursuant to Section 9.15 shall be the principal
executive, financial or accounting officer of the Depositor. Any Officers’
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Declaration shall include:

    


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

    


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

    


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

    


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

    


    “Opinion of Counsel” means an opinion
in writing of independent outside legal counsel, who may be counsel for the
Trust, the Property Trustee, the Delaware Trustee or the Depositor, and who
shall be reasonably acceptable to the Property Trustee.

    


    “Original Declaration” has the meaning
specified in the Recitals to this Declaration.

    


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

    


    (a) the
Preferred Securities theretofore canceled by the Property Trustee or delivered
to the Property Trustee for cancellation;

    


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

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    (c) the
Preferred Securities which have been paid or in exchange for or in lieu of which
other Preferred Securities have been executed and delivered pursuant to Sections
5.4, 5.5, 5.11 and 5.13; provided, however, that in
determining whether the Holders of the requisite Liquidation Amount of the
Outstanding Preferred Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the Preferred Securities owned
by the Depositor, any Trustee or any Affiliate of the Depositor or any Trustee
shall be disregarded and deemed not to be Outstanding, except that (i) in
determining whether any Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only the
Preferred Securities that such Trustee knows to be so owned shall be so
disregarded; and (ii) the foregoing shall not apply at any time when all of the
Outstanding Preferred Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. The Preferred Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees the pledgee’s
right so to act with respect to such Preferred Securities and the pledgee is not
the Depositor or any other Obligor upon the Preferred Securities or a Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Depositor or any Affiliate of the
Depositor.

    


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

    


    “Payment Account” means a segregated
non-interest-bearing corporate trust account maintained by the Property Trustee
with the Bank in its trust department for the benefit of the Securityholders in
which all amounts paid in respect of the Debentures shall be held and from which
the Property Trustee shall make payments to the Securityholders in accordance
with Sections 4.1 and 4.2.

    


    “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.

    


    “Preferred Security” means an undivided
beneficial interest in the assets of the Trust, having a Liquidation Amount of
$1,000 and having the rights provided therefor in this Declaration, including
the right to receive Distributions and a Liquidation Distribution as provided
herein.

    


    “Preferred Securityholder” means a
holder of a Preferred Security.

    


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

    


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

    


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

     

    
      
        
        

      

      
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    “Redemption Price” means, with respect
to any Trust Security, the Liquidation Amount of such Trust Security, plus
accumulated and unpaid Distributions to the Redemption Date, paid by the
Depositor upon the concurrent redemption of a Like Amount of Debentures,
allocated on a pro rata basis (based on Liquidation Amounts) among the Trust
Securities.

    


    “Relevant Trustee” shall have the
meaning specified in Section 9.10.

    


    “Second Closing” has the meaning set
forth in Section 2.4(b).

    


    “Second Closing Date” means the date on
which the Second Closing occurs.

    


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

    


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

    


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

    


    “State Acts” means state securities or
“Blue Sky” laws and regulations.

    


    “Subscription Agreement” means that
form of Preferred Securities Subscription Agreement executed by the Preferred
Securityholders and the Trust.

    


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

    


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

    


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

    


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

    


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

    


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

     

    
      
        
        

      

      
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    ARTICLE
II

    ESTABLISHMENT
OF THE TRUST
 

    


    SECTION 2.1.   Name.  The
Trust continued hereby shall be known as “FIRST UNITED STATUTORY TRUST III”, as
such name may be modified from time to time by the Administrative Trustees
following written notice to the Holders of Trust Securities and the other
Trustees, in which name the Trustees may engage in the transactions contemplated
hereby, make and execute contracts and other instruments on behalf of the Trust
and sue and be sued.
 

    


    SECTION 2.2.   Office of the Delaware
Trustee; Principal Place of Business.  The address of the
Delaware Trustee in the State of Delaware is c/o Wilmington Trust Company,
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001,
Attention:  Corporate Trust Administration, or such other address in
the State of Delaware as the Delaware Trustee may designate by written notice to
the Securityholders and the Depositor. The principal executive office of the
Trust is c/o First United Corporation, 19 South Second Street, Oakland, Maryland
21550, Attention:  Chief Financial Officer.
 

    


    SECTION 2.3.   Initial Contribution of
Trust Property; Organizational Expenses.  The Trustees
acknowledge receipt in trust from the Depositor in connection with the Original
Declaration of the sum of $10, which constituted the initial Trust Property. The
Depositor shall pay organizational expenses of the Trust as they arise or shall,
upon request of any Trustee, promptly reimburse such Trustee for any such
expenses paid by such Trustee. The Depositor shall make no claim upon the Trust
Property for the payment of such expenses.



    


    SECTION 2.4.   Issuance of the Preferred
Securities.

    


    (a) On
December 30, 2009, the Depositor, on behalf of the Trust and pursuant to the
Original Declaration, executed and delivered the Subscription Agreements which
action is hereby authorized, approved and ratified in all
respects.  Contemporaneously with the execution and delivery of this
Declaration, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2, and, after authenticated by the Property Trustee,
deliver in accordance with the Subscription Agreements, Preferred Securities
Certificates, registered in the name of the Persons entitled thereto, in an
aggregate amount of up to 6,875 Preferred Securities, each having a Liquidation
Amount of $1,000, for an aggregate Liquidation Amount of up to $6,975,000,
against receipt of the aggregate purchase price of such Preferred Securities of
$1,000 per Preferred Security or up to $6,975,000 in the aggregate, which amount
such Administrative Trustee shall promptly deliver to the Depositor as partial
payment for the Debentures to be issued to the Trust in accordance with Section
2.5(a). 


    


    (b) If the
Depositor elects to have a second closing (the “Second Closing”), then, upon the
order of the Depositor, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.2 and, after authenticated by the Property
Trustee, deliver in accordance with the additional Subscription Agreements,
Preferred Securities, registered in the name of the Persons entitled thereto, in
a specified aggregate amount not to exceed 23,025 against receipt of the
aggregate purchase price of such Preferred Securities of up to $23,025,000,
which amount such Administrative Trustee shall promptly deliver to the Depositor
as partial payment for the Debentures to be issued to the Trust in accordance
with Section 2.5(b).

     

    
      
        
        

      

      
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    SECTION 2.5.   Issuance of Common
Securities; Subscription and Purchase of the Debentures.

    


    (a) Contemporaneously
with the execution and delivery of this Declaration, an Administrative Trustee,
on behalf of the Trust, shall execute in accordance with Section 5.2 and deliver
to the Depositor, Common Securities Certificates, registered in the name of the
Depositor, in an aggregate amount of up to 217 Common Securities, each having a
Liquidation Amount of $1,000, for an aggregate Liquidation Amount of
$217,000.  Contemporaneously therewith, an Administrative Trustee, on
behalf of the Trust, shall subscribe to and purchase Debentures from the
Depositor, registered in the name of the Property Trustee on behalf of the Trust
and having an aggregate principal amount of up to $7,192,000, and, in
satisfaction of the purchase price for such Debentures, the Administrative
Trustees, on behalf of the Trust, shall, in addition to the Common Securities
described herein, deliver to the Depositor the aggregate purchase price of the
Preferred Securities referred to in Section 2.4(a) above of up to
$6,975,000.

    


    (b) If the
Depositor elects to have a Second Closing, then an Administrative Trustee, on
behalf of the Trust, shall execute in accordance with Section 5.2 and deliver to
the Depositor, Common Securities Certificates, registered in the name of the
Depositor, in an additional aggregate amount of up to 713 Common Securities,
having an aggregate Liquidation Amount of up to
$713,000.  Contemporaneously therewith, an Administrative Trustee, on
behalf of the Trust, shall subscribe to and purchase from the Depositor
additional Debentures, registered in the name of the Property Trustee on behalf
of the Trust and having an aggregate principal amount of up to $23,738,000, and,
in satisfaction of the purchase price of such Debentures, the Administrative
Trustees, on behalf of the Trust, shall, in addition to the Common Securities
described herein, deliver to the Depositor the aggregate purchase price of the
Preferred Securities referred to in Section 2.4(b) above of up to
$23,025,000.

    


    SECTION 2.6.   Declaration of Trust.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Trust Securities and use the proceeds from such sale to acquire the Debentures;
and (b) to engage in those activities necessary, convenient or incidental
thereto. The Depositor hereby appoints the Trustees as trustees of the Trust, to
have all the rights, powers and duties to the extent set forth herein, and the
Trustees hereby accept such appointment. The Property Trustee hereby declares
that it shall hold the Trust Property in trust upon and subject to the
conditions set forth herein for the benefit of the Securityholders. The
Administrative Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to accomplishing the
purposes of the Trust. The Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees set
forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Delaware Statutory Trust Act.



    


    SECTION 2.7.   Authorization to Enter Into
Certain Transactions.

    


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

     

    
      
        
        

      

      
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    (i) As among
the Trustees, each Administrative Trustee, acting singly or jointly, 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 Trust Securities and the compliance with the
Subscription Agreements in connection therewith;

    


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

    


    (C) assisting
in obtaining registration exemptions for the Preferred Securities under the
Securities Act, and under state securities or blue sky laws, and the
qualification of this Declaration as a trust indenture under the Trust Indenture
Act;

    


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

    


    (E) the
appointment of a Paying Agent and Securities Registrar in accordance with this
Declaration;

    


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

    


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

    


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

     

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

    


    
      
        
        

      

      
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    (A) the
establishment of the Payment 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 Payment Account;

    


    (D) the
distribution of amounts owed to the Securityholders in respect of the Trust
Securities in accordance with the terms of this Declaration;

    


    (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 Trust
Securities and the Debentures to the Securityholders 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;

    


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

    


    (J) registering
transfers of the Trust Securities in accordance with this Declaration;
and

    


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

    


    (b) So long
as this Declaration remains in effect, the Trust (or the Trustees acting on
behalf of the Trust) shall not undertake any business, activities or transaction
except as expressly provided herein or contemplated hereby. In particular, the
Trustees shall not (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 Securityholders, except as expressly provided herein;
(iii) take any action that would cause the Trust to fail or cease to qualify as
a “grantor trust” for United States federal income tax purposes; (iv) 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 Administrative Trustees shall defend all claims and demands of all
Persons at any time claiming any Lien on any of the Trust Property adverse to
the interest of the Trust or the Securityholders in their capacity as
Securityholders.

     

    
      
        
        

      

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

    


    (i) the
preparation and filing by the Trust with the Commission and applicable state
securities regulators the documents necessary to secure applicable state and
federal registration exemptions in relation to the Preferred Securities and the
Debentures (the “Exemptions”), including any amendments thereto;

    


    (ii) the
determination of the states in which to take appropriate action to qualify for
Exemptions and to do any and all such acts, other than actions which must be
taken by or on behalf of the Trust, and advise the Trustees of actions they must
take on behalf of the Trust, and prepare for execution and filing any documents
to be executed and filed by the Trust or on behalf of the Trust, as the
Depositor deems necessary or advisable in order to comply with the applicable
laws of any such states;

    


    (iii) the
negotiation of the terms of, and the execution and delivery of, the Subscription
Agreements providing for the sale of the Preferred Securities;

    


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

    


    (v) taking
such steps as may be necessary to ensure compliance with applicable federal and
state securities laws, or exemptions therefrom, in connection with the transfer
of the Preferred Securities.

    


    (d) Notwithstanding
anything herein to the contrary, the Administrative Trustees are authorized and
directed to conduct the affairs of the Trust and to operate the Trust so that
the Trust shall not be deemed to be an “investment company” required to be
registered under the Investment Company Act, shall be classified as a “grantor
trust” and not as an association taxable as a corporation for United States
federal income tax purposes and so that the Debentures shall be treated as
indebtedness of the Depositor for United States federal income tax purposes. In
this connection, subject to Section 11.2, the Depositor and the Administrative
Trustees are authorized to take any action and the Administrative Trustees are
authorized to direct the Property Trustee in writing to take any action, not
inconsistent with applicable law or this Declaration, that each of the Depositor
and the Administrative Trustees determines in their discretion to be necessary
or desirable for such purposes. The Property Trustee shall take any action so
directed by one or more of the Administrative Trustees.
 

    


    SECTION 2.8.   Assets of
Trust.  The assets of the Trust shall consist of the Trust
Property.
 

    


    SECTION 2.9.   Title to Trust
Property.  Legal title to all Trust Property shall be vested at
all times in the Property Trustee (in its capacity as such) and shall be held
and administered by the Property Trustee for the benefit of the Securityholders
in accordance with this Declaration.



     

    
      
        
        

      

      
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    ARTICLE
III

    PAYMENT
ACCOUNT
 

    


    SECTION 3.1.   Payment
Account.

    


    (a) On or
prior to the First Closing Date, the Property Trustee shall establish the
Payment Account. The Property Trustee and any agent of the Property Trustee
shall have exclusive control and sole right of withdrawal with respect to the
Payment Account for the purpose of making deposits and withdrawals from the
Payment Account in accordance with this Declaration. All monies and other
property deposited or held from time to time in the Payment Account shall be
held by the Property Trustee in the Payment Account for the exclusive benefit of
the Securityholders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.

    


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

    


    ARTICLE
IV                                
 

    DISTRIBUTIONS;
REDEMPTION
 

    


    SECTION 4.1.   Distributions.

    


    (a) Distributions
on the Trust Securities shall be cumulative, and shall accumulate whether or not
there are funds of the Trust available for the payment of Distributions.
Distributions shall accumulate from the date of issuance of the Trust
Securities, and, except during any Extended Interest Period with respect to the
Debentures, shall be payable quarterly in arrears on March 15, June 15,
September 15 and December 15 of each year, commencing on March 15, 2010. If any
date on which a Distribution is otherwise payable on the Trust Securities is not
a Business Day, then the payment of such Distribution shall be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay) except that if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day (and without any reduction in interest or any other
payment in respect of any such acceleration), in each case with the same force
and effect as if made on such date (each date on which distributions are payable
in accordance with this Section 4.1(a), a “Distribution Date”).

    


    (b) The Trust
Securities represent undivided beneficial interests in the Trust Property.
Distributions on the Trust Securities shall be payable at a rate of 9.875% per
annum of the Liquidation Amount of the Trust Securities. The amount of
Distributions payable for any full period shall be computed on the basis of a
360-day year of twelve 30-day months. The amount of Distributions for any
partial period shall be computed on the basis of the number of days elapsed in a
360-day year of twelve 30-day months. During any Extended Interest Period with
respect to the Debentures, Distributions on the Preferred Securities shall be
deferred for a period equal to the Extended Interest Period. The amount of
Distributions payable for any period shall include the Additional Amounts, if
any.

     

    
      
        
        

      

      
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    (c) Distributions
on the Trust Securities shall be made by the Property Trustee solely from the
Payment Account and shall be payable on each Distribution Date only to the
extent that the Trust has funds then on hand and immediately available by 12:30
p.m. on each Distribution Date in the Payment Account for the payment of such
Distributions.

    


    (d) Distributions
on the Trust Securities with respect to a Distribution Date shall be payable to
the Holders thereof as they appear on the Securities Register for the Trust
Securities on the relevant record date, which shall be one Business Day
immediately preceding the Distribution Date.



    


    SECTION 4.2.   Redemption.

    


    (a) On each
Debenture Redemption Date and at maturity of the Debentures, the Trust shall be
required to redeem a Like Amount of Trust Securities at the Redemption
Price.

    


    (b) Notice of
redemption shall be given by the Property Trustee by first-class mail, postage
prepaid, mailed not less than thirty (30) nor more than sixty (60) days prior to
the Redemption Date to each Holder of Trust Securities to be redeemed, at such
Holder’s address appearing in the Securities Register. The Property Trustee
shall have no responsibility for the accuracy of any CUSIP number contained in
such notice. All notices of redemption shall state:

    


    (i) the
Redemption Date;

    


    (ii) the
Redemption Price;

    


    (iii) the CUSIP
number;

    


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

    


    (v) that, on
the Redemption Date, the Redemption Price shall become due and payable upon each
such Trust Security to be redeemed and that Distributions thereon shall cease to
accumulate on and after said date, except as provided in Section 4.2(d);
and

    


    (vi) the place
or places at which Trust Securities are to be surrendered for the payment of the
Redemption Price.

    


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

     

    
      
        
        

      

      
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    (d) If the
Property Trustee gives a notice of redemption in respect of any Preferred
Securities, then, by 12:00 noon, New York City time, on the Redemption Date,
subject to Section 4.2(c), the Property Trustee, subject to Section 4.2(c),
shall deposit with the Paying Agent funds sufficient to pay the applicable
Redemption Price and shall give the Paying Agent irrevocable instructions and
authority to pay the Redemption Price to the record holders thereof upon
surrender of their Preferred Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Securities Register for the Trust
Securities on the relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited as required, then
upon the date of such deposit, (i) all rights of Securityholders holding Trust
Securities so called for redemption shall cease, except the right of such
Securityholders to receive the Redemption Price, but without interest, (ii) such
Trust Securities shall cease to be Outstanding, (iii) all Trust Securities
Certificates will be deemed to represent Debentures having a principal amount
equal to the stated Liquidation Amount of the Trust Securities represented
thereby and bearing accrued and unpaid interest in an amount equal to the
accumulated and unpaid Distributions on such Trust Securities until such
certificates are presented to the Securities Registrar for transfer or
reissuance. In the event that any date on which any Redemption Price is payable
is not a Business Day, then payment of the Redemption Price payable on such date
shall be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day (and without any reduction of interest
or any other payment in respect of any such acceleration), in each case with the
same force and effect as if made on such date. In the event that payment of the
Redemption Price in respect of any Trust Securities called for redemption is
improperly withheld or refused and not paid either by the Trust or by the
Depositor pursuant to the Guarantee, Distributions on such Trust Securities
shall continue to accumulate, at the then applicable rate, from the Redemption
Date originally established by the Trust for such Trust Securities to the date
such Redemption Price is actually paid, in which case the actual payment date
shall be the date fixed for redemption for purposes of calculating the
Redemption Price.

    


    (e) Payment
of the Redemption Price on the Trust Securities shall be made to the record
holders thereof as they appear on the Securities Register for the Trust
Securities on the relevant record date, which shall be one Business Day
immediately preceding the Redemption Date.

    


    (f) Subject
to Section 4.3(a), if less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation Amount of Trust
Securities to be redeemed shall be allocated on a pro rata basis (based on
Liquidation Amounts) among the Common Securities and the Preferred Securities.
The particular Preferred Securities to be redeemed shall be selected not more
than sixty (60) days prior to the Redemption Date by the Property Trustee from
the Outstanding Preferred Securities not previously called for redemption, by
such method (including, without limitation, by lot) as the Property Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to such Liquidation Amount or an integral multiple
of such Liquidation Amount in excess thereof) of the Liquidation Amount of the
Preferred Securities of a denomination larger than such Liquidation Amount;
provided, however, in the event
the redemption relates only to Preferred Securities purchased and held by the
Depositor being redeemed for a Like Amount of Debentures (as described in
Section 3.3(b) of the Indenture), the Property Trustee shall select those
particular Preferred Securities for redemption. The Property Trustee shall
promptly notify the Securities Registrar in writing of the Preferred Securities
selected for redemption and, in the case of any Preferred Securities selected
for partial redemption, the Liquidation Amount thereof to be redeemed. For all
purposes of this Declaration, unless the context otherwise requires, all
provisions relating to the redemption of the Preferred Securities shall relate,
in the case of any Preferred Securities redeemed or to be redeemed only in part,
to the portion of the Liquidation Amount of the Preferred Securities which has
been or is to be redeemed.
 

     

    
      
        
        

      

      
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    SECTION 4.3.   Subordination of the Common
Securities.

    


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

    


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

    


    SECTION 4.4.   Payment
Procedures.   Payments of Distributions (including
Additional Amounts, if applicable) in respect of each Preferred Security shall
be made by wire transfer of immediately available funds to the account
designated in writing by the Person entitled thereto or by check mailed to the
address of such Person as such address shall appear on the Securities Register.
Payments in respect of the Common Securities shall be made in such manner as
shall be mutually agreed between the Property Trustee and the Common
Securityholder.
 

    


    SECTION 4.5.   Tax Returns and
Reports.  The Administrative Trustees shall prepare (or cause
to be prepared), at the Depositor’s expense, and file all United States federal,
state and local tax and information returns and reports required to be filed by
or in respect of the Trust. In this regard, the Administrative Trustees shall
(a) prepare and file (or cause to be prepared and filed) the appropriate
Internal Revenue Service form required to be filed in respect of the Trust in
each taxable year of the Trust; and (b) prepare and furnish (or cause to be
prepared and furnished) to each Securityholder the appropriate Internal Revenue
Service forms required to be furnished to such Securityholder or the information
required to be provided on such forms. The Administrative Trustees shall provide
the Depositor with a copy of all such returns and reports promptly after such
filing or furnishing. The Property Trustee shall comply with United States
federal withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to the Securityholders under the Trust
Securities.
 

     

    
      
        
        

      

      
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    SECTION 4.6.   Payment of Taxes, Duties,
Etc. of the Trust. Upon receipt under the Debentures of Additional
Payments, the Property Trustee, at the direction of an Administrative Trustee or
the Depositor, shall promptly pay any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the Trust by the
United States or any other taxing authority.



    


    SECTION 4.7.   Payments Under the
Indenture. Any amount payable hereunder to any Holder of Preferred
Securities shall be reduced by the amount of any corresponding payment such
Holder has directly received under the Indenture pursuant to Section 5.13(b) or
5.13(c) hereof.

    



    ARTICLE
V

    THE TRUST
SECURITIES CERTIFICATES
 

    


    SECTION 5.1.   Initial Ownership.
Upon the creation of the Trust and the contribution by the Depositor pursuant to
Section 2.3 and until the issuance of the Trust Securities, and at any time
during which no Preferred Securities are Outstanding, the Depositor shall be the
sole beneficial owner of the Trust.



    


    SECTION 5.2.   The Trust Securities
Certificates. The Preferred Securities Certificates shall be issued in
minimum denominations of the Liquidation Amount and integral multiples of such
Liquidation Amount in excess thereof. The Common Securities Certificates shall
be issued in denominations of the Liquidation Amount and integral multiples
thereof. The Trust Securities Certificates shall be executed on behalf of the
Trust by manual or facsimile signature of at least one Administrative Trustee.
The Trust Securities Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled
to the benefits of this Declaration, notwithstanding that such individuals or
any of them shall have ceased to be so authorized prior to the delivery of such
Trust Securities Certificates or did not hold such offices at the date of
delivery of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Securityholder, and shall be entitled to
the rights and subject to the obligations of a Securityholder hereunder, upon
due registration of such Trust Securities Certificate in such transferee’s name
pursuant to Sections 5.4, 5.11, and 5.13.



    


    SECTION 5.3.   Execution, Authentication
and Delivery of the Trust Securities Certificates.

    


    (a) On the
Closing Date, the Administrative Trustees shall cause, in accordance with
Section 5.2, Trust Securities Certificates, in an aggregate Liquidation Amount
as provided in Sections 2.4 and 2.5, to be executed on behalf of the Trust by
the manual or facsimile signature of at least one of the Administrative Trustees
and delivered to or upon the written order of the Depositor, signed by its Chief
Executive Officer, President, Chief Financial Officer, any Executive Vice
President, the Treasurer or any Assistant Treasurer without further corporate
action by the Depositor, in authorized denominations.

     

    
      
        
        

      

      
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    (b) A
Preferred Securities Certificate shall not be valid until authenticated by the
manual signature of an authorized signatory of the Property Trustee. The
signature shall be conclusive evidence that the Preferred Securities Certificate
has been authenticated under this Declaration. Each Preferred Security
Certificate shall be dated the date of its authentication.

    


    (c) Upon the
written order of the Trust signed by one of the Administrative Trustees, the
Property Trustee shall authenticate and make available for delivery the
Preferred Securities Certificates.

    


    (d) The
Property Trustee may appoint an Authenticating Agent acceptable to the Trust to
authenticate the Preferred Securities. An Authenticating Agent may authenticate
the Preferred Securities whenever the Property Trustee may do so. Each reference
in this Declaration to authentication by the Property Trustee includes
authentication by such agent. An Authenticating Agent has the same rights as the
Property Trustee to deal with the Depositor or the Trust.
 

    


    SECTION 5.4.   Registration of Transfer and
Exchange of the Preferred Securities Certificates.

    


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

    


    (b) Upon
surrender for registration of transfer of any Preferred Securities Certificate
at the office or agency maintained pursuant to Section 5.8, the Administrative
Trustees or any one of them shall execute in accordance with Section 5.2 and the
Property Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Preferred Securities Certificates in
authorized denominations of a like aggregate Liquidation Amount dated the date
of authentication. The Securities Registrar shall not be required to register
the transfer of any of the Preferred Securities that have been called for
redemption. At the option of a Holder, the Preferred Securities Certificates may
be exchanged for other Preferred Securities Certificates in authorized
denominations of the same class and of a like aggregate Liquidation Amount upon
surrender of the Preferred Securities Certificates to be exchanged at the office
or agency maintained pursuant to Section 5.8.

    


    (c) Every
Preferred Securities Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Property Trustee and the Securities Registrar duly
executed by the Holder or his attorney duly authorized in writing. Each
Preferred Securities Certificate surrendered for registration of transfer or
exchange shall be canceled and subsequently disposed of by the Property Trustee
in accordance with its customary practice. The Trust shall not be required to
(i) issue, register the transfer of, or exchange any of the Preferred Securities
during a period beginning at the opening of business fifteen (15) calendar days
before the date of mailing of a notice of redemption of any of the Preferred
Securities called for redemption and ending at the close of business on the day
of such mailing; or (ii) register the transfer of or exchange any of the
Preferred Securities so selected for redemption, in whole or in part, except the
unredeemed portion of any such Preferred Securities being redeemed in
part.

     

    
      
        
        

      

      
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    (d) No
service charge shall be made for any registration of transfer or exchange of
Preferred Securities Certificates but the Securities Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of the Preferred Securities
Certificates.

    


    (e) Preferred
Securities may only be transferred, in whole or in part, in accordance with the
terms and conditions set forth in this Declaration. Any transfer or purported
transfer of any Preferred Security not made in accordance with this Declaration
shall be null and void. A Preferred Security may be transferred, in whole or in
part, to a Person who takes delivery in the form of another Preferred Security
as provided in this Section 5.4.

    


    SECTION 5.5.   Mutilated, Destroyed, Lost
or Stolen Trust Securities Certificates.  If (a) any mutilated
Trust Securities Certificate shall be surrendered to the Securities Registrar,
or if the Securities Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Trust Securities Certificate; and (b) there
shall be delivered to the Securities Registrar, the Property Trustee and the
Administrative Trustees such security or indemnity as may be required by them to
save each of them harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a protected purchaser, the
Administrative Trustees, or any one of them, on behalf of the Trust shall
execute and make available for delivery, and the Property Trustee shall
authenticate if necessary, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Securities Certificate, a new Trust Securities
Certificate of like class, tenor and denomination. In connection with the
issuance of any new Trust Securities Certificate under this Section 5.5, the
Administrative Trustees or the Securities Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Trust Securities Certificate issued
pursuant to this Section 5.5 shall constitute conclusive evidence of an
undivided beneficial interest in the assets of the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.



    


    SECTION 5.6.   Persons Deemed the
Securityholders. The Trustees, the Paying Agent and the Securities
Registrar shall treat the Person in whose name any Trust Securities Certificate
shall be registered in the Securities Register as the owner of such Trust
Securities Certificate for the purpose of receiving Distributions and for all
other purposes whatsoever, and neither the Trustees nor the Securities Registrar
shall be bound by any notice to the contrary.



    


    SECTION 5.7.   Access to List of the
Securityholders’ Names and Addresses. At any time when the Property
Trustee is not also acting as the Securities Registrar, the Administrative
Trustees or the Depositor shall furnish or cause to be furnished to the Property
Trustee (a) within five (5) Business Days of March 15, June 15, September 15 and
December 15 in each year, a list, in such form as the Property Trustee may
reasonably require, of the names and addresses of the Securityholders as of the
most recent record date; and (b) promptly after receipt by any Administrative
Trustee or the Depositor of a request therefor from the Property Trustee in
order to enable the Property Trustee to discharge its obligations under this
Declaration, in each case to the extent such information is in the possession or
control of the Administrative Trustees or the Depositor and is not identical to
a previously supplied list or has not otherwise been received by the Property
Trustee in its capacity as Securities Registrar. The rights of the
Securityholders to communicate with other Securityholders with respect to their
rights under this Declaration or under the Trust Securities, and the
corresponding rights of the Trustees shall be as provided in the Trust Indenture
Act. Each Holder, by receiving and holding a Trust Securities Certificate, and
each owner shall be deemed to have agreed not to hold the Depositor, the
Property Trustee or the Administrative Trustees accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.
 

     

    
      
        
        

      

      
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    SECTION 5.8.   Maintenance of Office or
Agency. The Administrative Trustees shall maintain in a location or
locations designated by the Administrative Trustees, an office or offices or
agency or agencies where the Preferred Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust Securities Certificates
may be served. The Administrative Trustees initially designate the Corporate
Trust Office of the Property Trustee, Wilmington Trust Company, as the principal
corporate trust office for such purposes. The Administrative Trustees shall give
prompt written notice to the Depositor and to the Securityholders of any change
in the location of the Securities Register or any such office or agency.
 

    


    SECTION 5.9.   Appointment of the Paying
Agent.  The Property Trustee shall initially serve as the
Paying Agent, and any co-paying agent chosen by the Property Trustee must be
acceptable to the Administrative Trustees and the Depositor. The Paying Agent
shall make Distributions to the Securityholders from the Payment Account and
shall report the amounts of such Distributions to the Property Trustee and the
Administrative Trustees. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making the
Distributions referred to above. The Administrative Trustees may revoke such
power and remove the Paying Agent if such Trustees determine in their sole
discretion that the Paying Agent shall have failed to perform its obligations
under this Declaration in any material respect. Any Person acting as Paying
Agent shall be permitted to resign as Paying Agent upon thirty (30) days’
written notice to the Administrative Trustees, the Property Trustee and the
Depositor. In the event that the Property Trustee shall no longer be the Paying
Agent or a successor Paying Agent shall resign or its authority to act be
revoked, the Administrative Trustees shall appoint a successor (which shall be a
bank or trust company) that is acceptable to the Property Trustee and the
Depositor to act as the Paying Agent. The Administrative Trustees shall cause
such successor Paying Agent or any additional Paying Agent appointed by the
Administrative Trustees to execute and deliver to the Trustees an instrument in
which such successor Paying Agent or additional Paying Agent shall agree with
the Trustees that as Paying Agent, such successor Paying Agent or additional
Paying Agent shall hold all sums, if any, held by it for payment to the
Securityholders in trust for the benefit of the Securityholders entitled thereto
until such sums shall be paid to such Securityholders. The Paying Agent shall
return all unclaimed funds to the Property Trustee and, upon removal of a Paying
Agent, such Paying Agent shall also return all funds in its possession to the
Property Trustee. The provisions of Sections 9.1, 9.3, and 9.6 shall apply to
the Property Trustee also in its role as the Paying Agent, for so long as the
Property Trustee shall act as Paying Agent and, to the extent applicable, to any
other Paying Agent appointed hereunder. Any reference in this Declaration to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
 

     

    
      
        
        

      

      
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    SECTION 5.10.  Ownership of the Common
Securities by the Depositor.  On the Closing Date, the
Depositor shall acquire and retain beneficial and record ownership of the Common
Securities. To the fullest extent permitted by law, any attempted transfer of
the Common Securities (other than a transfer in connection with a merger or
consolidation of the Depositor into another Person pursuant to Section 13.1 of
the Indenture) shall be void. The Administrative Trustees shall cause each
Common Securities Certificate issued to the Depositor to contain a legend
stating “THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH SECTION
5.10 OF THE DECLARATION”.
 

    


    SECTION 5.11.   The Trust Securities
Certificates.

    


    (a) Upon the
issuance of the Preferred Securities Certificates, the Trustees shall recognize
the record holders of the Preferred Securities Certificates as the
Securityholders.

    


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

    


    SECTION 5.12.   Notices.  To
the extent that a notice or other communication to the Holders is required under
this Declaration, the Trustees shall cause all such notices and communications
specified herein to be given to the owners of the beneficial interest in the
Preferred Securities. All notices shall be deemed to have been given when mailed
by first class mail, postage prepaid, to the address of the Holder set forth in
the Securities Register.
 

    


    SECTION 5.13.  Rights of the
Securityholders.

    


    (a) The legal
title to the Trust Property is vested exclusively in the Property Trustee (in
its capacity as such) in accordance with Section 2.9, and the Securityholders
shall not have any right or title therein other than the undivided beneficial
interest in the assets of the Trust conferred by their Trust Securities and they
shall have no right to call for any partition or division of property, profits
or rights of the Trust except as described below. The Trust Securities shall be
personal property giving only the rights specifically set forth therein and in
this Declaration. The Trust Securities shall have no preemptive or similar
rights. When issued and delivered to Holders of the Preferred Securities against
payment of the purchase price therefor, the Preferred Securities shall be fully
paid and, subject to the provisions of this Declaration and to the fullest
extent permitted by applicable law, nonassessable interests in the Trust. The
Holders of the Preferred Securities, in their capacities as such, shall be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware.

    


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

     

    
      
        
        

      

      
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    (c) For so
long as any of the Preferred Securities remain Outstanding, upon a Debenture
Event of Default arising from the failure to pay interest or principal on the
Debentures, the Holders of any of the Preferred Securities then Outstanding
shall, to the fullest extent permitted by law, have the right to directly
institute proceedings for enforcement of payment to such Holders of principal of
or interest on the Debentures having a principal amount equal to the Liquidation
Amount of the Preferred Securities of such Holders.

    


    ARTICLE
VI

    ACTS OF
THE SECURITYHOLDERS; MEETINGS; VOTING



    


    SECTION 6.1. Limitations on Voting
Rights.

    


    (a) Except as
provided in this Section 6.1, in Sections 6.13, 9.10 and 11.2 and in the
Indenture and as otherwise set forth in the Guarantee or required by law, no
record Holder of Preferred Securities shall have any right to vote or in any
manner otherwise control the administration, operation and management of the
Trust or the obligations of the parties hereto; nor shall anything herein set
forth, or contained in the terms of the Trust Securities Certificates, be
construed so as to constitute the Securityholders from time to time as partners
or members of an association.

    


    (b) So long
as any Debentures are held by the Property Trustee, on behalf of the Trust, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or executing any
trust or power conferred on the Debenture Trustee with respect to such
Debentures; (ii) waive any past default which is waivable under Article VII of
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 to
any amendment, modification or termination of the Indenture or the Debentures,
where such consent shall be required, without, in each case, obtaining the prior
approval of the Holders of not less than a majority in Liquidation Amount of all
the Outstanding Preferred Securities; provided, however, that where a
consent under the Indenture would require the consent of each holder of
outstanding Debentures affected thereby, no such consent shall be given by the
Property Trustee without the prior written consent of each holder of the
Preferred Securities. The Trustees shall not revoke any action previously
authorized or approved by a vote of the Holders of the Outstanding Preferred
Securities, except when authorized by a subsequent vote of the Holders of the
Outstanding Preferred Securities. The Property Trustee shall notify each holder
of the Outstanding Preferred Securities of any notice of default received from
the Debenture Trustee with respect to the Debentures. In addition to obtaining
the foregoing approvals of the Holders of the Preferred Securities, prior to
taking any of the foregoing actions, the Trustees shall, at the expense of the
Depositor, obtain an Opinion of Counsel experienced in such matters to the
effect that the Trust shall continue to be classified as a grantor trust and not
as an association taxable as a corporation for United States federal income tax
purposes on account of such action.

    


    (c) If any
proposed amendment to the Declaration provides for, or the Trustees otherwise
propose to effect, (i) any action that would adversely affect in any material
respect the powers, preferences or special rights of the holders of the
Preferred Securities, whether by way of amendment to the Declaration or
otherwise; or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Declaration, then the Holders of the
Outstanding Preferred Securities as a class shall 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 Outstanding Preferred Securities. No amendment to this Declaration
may be made if, as a result of such amendment, the Trust would cease to be
classified as a grantor trust or would be classified as an association taxable
as a corporation for United States federal income tax purposes.

     

    
      
        
        

      

      
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    SECTION 6.2. Notice of Meetings.
Notice of all meetings of the Preferred Securityholders, stating the time, place
and purpose of the meeting, shall be given by the Property Trustee pursuant to
Section 11.8 to each Preferred Securityholder of record, at his or her
registered address, at least fifteen (15) days and not more than ninety (90)
days before the meeting. At any such meeting, any business properly before the
meeting may be so considered whether or not stated in the notice of the meeting.
Any adjourned meeting may be held as adjourned without further notice.
 

    


    SECTION 6.3. Meetings of the Preferred
Securityholders.

    


    (a) No annual
meeting of the Securityholders is required to be held. The Administrative
Trustees, however, shall call a meeting of the Securityholders to vote on any
matter in respect of which the Preferred Securityholders are entitled to vote
upon the written request of the Preferred Securityholders of twenty-five percent
(25%) of the Outstanding Preferred Securities (based upon their aggregate
Liquidation Amount) and the Administrative Trustees or the Property Trustee may,
at any time in their discretion, call a meeting of the Preferred Securityholders
to vote on any matters as to which the Preferred Securityholders are entitled to
vote.

    


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

    


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

    


    SECTION 6.4. Voting Rights. The
Securityholders shall be entitled to one vote for each dollar value of
Liquidation Amount represented by their Trust Securities (with any fractional
multiple thereof rounded up or down as the case may be to the closest integral
multiple) in respect of any matter as to which such Securityholders are entitled
to vote (and such dollar value shall be $1,000 per Preferred Security until such
time, if any, as the Liquidation Amount is changed as provided herein).
 

    


    SECTION 6.5. Proxies, Etc. At any
meeting of the Securityholders, any Securityholder entitled to vote thereat may
vote by proxy, provided that no proxy shall be voted at any meeting unless it
shall have been placed on file with the Administrative Trustees, or with such
other officer or agent of the Trust as the Administrative Trustees may direct,
for verification prior to the time at which such vote shall be taken. Only
Holders shall be entitled to vote. When Trust Securities are held jointly by
several persons, any one of them may vote at any meeting in person or by proxy
in respect of such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Securityholder shall be deemed valid unless challenged at
or prior to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.

     

    
      
        
        

      

      
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    SECTION 6.6. Securityholder Action by
Written Consent. Any action which may be taken by the Securityholders at
a meeting may be taken without a meeting if the Securityholders holding more
than a majority of all of the Outstanding Trust Securities (based upon their
aggregate Liquidation Amount) entitled to vote in respect of such action (or
such larger proportion thereof as shall be required by any express provision of
this Declaration) shall consent to the action in writing.
 

    


    SECTION 6.7. Record Date for Voting and
Other Purposes. For the purposes of determining the Securityholders who
are entitled to notice of and to vote at any meeting or by written consent, or
to participate in any Distribution on the Trust Securities in respect of which a
record date is not otherwise provided for in this Declaration, or for the
purpose of any other action, the Administrative Trustees or the Property Trustee
may from time to time fix a date, not more than ninety (90) days prior to the
date of any meeting of the Securityholders or the payment of Distribution or
other action, as the case may be, as a record date for the determination of the
identity of the Securityholders of record for such purposes.
 

    


    SECTION 6.8. Acts of the
Securityholders.

    


    (a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Declaration to be given, made or taken by
the Securityholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Securityholders in person or by an
agent duly appointed in writing; and, except as otherwise expressly provided
herein, such action shall become effective when such instrument or instruments
are delivered to an Administrative Trustee. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the “Act” of the Securityholders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Declaration and (subject to
Section 9.1) conclusive in favor of the Trustees, if made in the manner provided
in this Section 6.8.

    


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

    


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

     

    
      
        
        

      

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

    


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

    


    (f) A
Securityholder may institute a legal proceeding directly against the Depositor
under the Guarantee to enforce its rights under the Guarantee without first
instituting a legal proceeding against the Guarantee Trustee (as defined in the
Guarantee), the Trust or any Person.



    


    SECTION 6.9. Inspection of
Records. Upon reasonable notice to the Administrative Trustees and the
Property Trustee, the records of the Trust shall be open to inspection at the
principal executive office of the Trustee (as indicated in Section 2.2) to
Holders of the Trust Securities during normal business hours for any purpose
reasonably related to such Securityholder’s interest as a Securityholder.
 

    


    ARTICLE
VII

    REPRESENTATIONS
AND WARRANTIES
 

    


    SECTION 7.1. Representations and
Warranties of the Bank and the Property Trustee.  The Bank and
the Property Trustee, each severally on behalf of and as to itself, as of the
date hereof, and each successor Property Trustee at the time of the successor
Property Trustee’s acceptance of its appointment as Property Trustee hereunder
(in the case of a successor Property Trustee, the term “Bank” as used herein
shall be deemed to refer to such successor Property Trustee in its separate
corporate capacity) hereby represents and warrants (as applicable) for the
benefit of the Depositor and the Securityholders that:

    


    (a) the Bank
is a Delaware banking corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation;

    


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

    


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

     

    
      
        
        

      

      
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    (d) the
execution, delivery and performance by the Property Trustee of this Declaration
has been duly authorized by all necessary corporate or other action on the part
of the Property Trustee and does not require any approval of stockholders of the
Bank and such execution, delivery and performance shall not (i) violate the
Bank’s charter or by-laws; (ii) violate any provision of, or constitute, with or
without notice or lapse of time, a default under, or result in the creation or
imposition of, any Lien on any properties included in the Trust Property
pursuant to the provisions of, any indenture, mortgage, credit agreement,
license or other agreement or instrument to which the Property Trustee or the
Bank is a party or by which it is bound; or (iii) violate any law, governmental
rule or regulation of the United States or its jurisdiction of incorporation, as
the case may be, governing the banking or trust powers of the Bank or the
Property Trustee (as appropriate in context) or any order, judgment or decree
applicable to the Property Trustee or the Bank;

    


    (e) neither
the authorization, execution or delivery by the Property Trustee of this
Declaration nor the consummation of any of the transactions by the Property
Trustee contemplated herein requires the consent or approval of, the giving of
notice to, the registration with or the taking of any other action with respect
to any governmental authority or agency under any existing federal law governing
the banking or trust powers of the Bank or the Property Trustee, as the case may
be, under the laws of the United States or its jurisdiction of
incorporation;

    


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

    


    (g) the
Property Trustee is a Person eligible pursuant to the Trust Indenture Act to act
as such and has a combined capital and surplus of at least $50,000,000.
 

    


    SECTION 7.2. Representations and
Warranties of the Delaware Bank and the Delaware Trustee.  The
Delaware Bank and the Delaware Trustee, each severally on behalf of and as to
itself, as of the date hereof, and each successor Delaware Trustee at the time
of the successor Delaware Trustee’s acceptance of appointment as Delaware
Trustee hereunder (the term “Delaware Bank” being used to refer to such
successor Delaware Trustee in its separate corporate capacity), hereby
represents and warrants (as applicable) for the benefit of the Depositor and the
Securityholders that:

    


    (a) the
Delaware Bank is a Delaware banking corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;

    


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

    


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

     

    
      
        
        

      

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

    


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

    


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

    


    SECTION 7.3. Representations and
Warranties of the Depositor.  The Depositor hereby represents
and warrants for the benefit of the Securityholders and the Trustees
that:

    


    (a) the Trust
Securities Certificates issued on the Closing Date on behalf of the Trust have
been duly authorized and, shall have been duly and validly executed, issued and
delivered by the Administrative Trustees pursuant to the terms and provisions
of, and in accordance with the requirements of, this Declaration and the
Securityholders shall be, as of such date, entitled to the benefits of this
Declaration;

    


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

    


    (c) the
Depositor is a Maryland corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation;

    


    (d) the
Depositor has full corporate power, authority and legal right to execute,
deliver and perform its obligations under this Declaration and has taken all
necessary action to authorize the execution, delivery and performance by it of
this Declaration; and

     

    
      
        
        

      

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

    


    ARTICLE
VIII

    TRANSFER
OF INTERESTS
 

    


    SECTION 8.1. General.

    


    (a) Subject
to Sections 5.4, 8.1(c), and 8.1(e), when a Holder of Preferred Securities
delivers to the Securities Registrar in accordance with this Declaration a
request to register a transfer of such Holder’s Preferred Securities or to
exchange them for an equal aggregate liquidation amount of Preferred Securities
represented by different Certificates or as otherwise provided herein, the
Securities Registrar shall register the transfer or make the exchange when the
requirements provided for herein for such transfer or exchange are met. To
facilitate registrations of transfers and exchanges, the Trust shall execute and
the Property Trustee shall authenticate Preferred Security Certificates at the
Securities Registrar’s request.

    


    (b) Upon
issuance of the Common Securities, the Depositor shall acquire and retain
beneficial and record ownership of the Common Securities and, for so long as the
Trust Securities remain outstanding, the Depositor shall maintain 100% ownership
of the Common Securities; provided, however, that any
permitted successor of the Depositor under the Indenture may succeed to the
Depositor’s ownership of the Common Securities.

    


    (c) Preferred
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
Preferred Securities. To the fullest extent permitted by applicable law, any
transfer or purported transfer of any Preferred 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 purported transferee shall be deemed not to
be the Holder of such Preferred Securities for any purpose, including, but not
limited to, the receipt of Distributions on such Preferred Securities, and such
transferee shall be deemed to have no interest whatsoever in such Preferred
Securities.

    


    (d) Each
Preferred Securities Certificate surrendered in connection with a registration
of transfer or exchange shall be canceled by the Property Trustee pursuant to
Section 5.4. A transferee of a Trust Security shall be entitled to the rights
and subject to the obligations of a Holder hereunder upon the registration of
such transfer in the Securities Register. Each such transferee shall be deemed
to have agreed to be bound by this Declaration.

    


    (e) Neither
the Trust nor the Securities Registrar shall be required (i) to issue
certificates representing Trust Securities or register the transfer of, or
exchange any Trust Securities during a period beginning at the opening of
business fifteen (15) days before the day of any selection of Trust 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 Trust Securities to be redeemed, or (ii) to register the transfer or
exchange of any Trust Security so selected for redemption in whole or in part,
except the unredeemed portion of any Trust Security being redeemed in
part.

     

    
      
        
        

      

      
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    SECTION 8.2. Transfer Procedures and
Restrictions.

    


    (a) Without
the written consent of the Depositor, Preferred Securities may be transferred
only pursuant to an exemption from the registration requirements under the
Securities Act and the State Acts; provided, however, that (i) the
instrument of transfer is accompanied by a certificate of the transferee
substantially in the form set forth as Exhibit D hereto and
(ii) the Sponsor and the Trust shall have the right, prior to any such transfer,
to require the delivery by the transferee of an Opinion of Counsel, additional
certificate and/or other information satisfactory to each of them in accordance
with this Declaration.  Each Opinion of Counsel or certificate
furnished pursuant to this Section 8.2(a) may be an original or a copy (which
may be furnished by facsimile or other form of electronic
transmission).  The Property Trustee and any Securities Registrar
shall be entitled to conclusively rely on opinions and certificates furnished by
the transferee pursuant to this Section 8.2(a) and shall have no duty to ensure
that transferees are qualified under, or that transfers comply with, the
Securities Act or any applicable State Acts.

    


    (b) Each
Certificate evidencing outstanding Preferred Securities shall bear the following
legend:

    


    THIS SECURITY HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY
STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS (THE “STATE
ACTS”). 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.  THE HOLDER OF THIS
SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, AS THE CASE MAY BE, AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN ONLY (A) TO THE DEBENTURE ISSUER OR THE TRUST, OR (B) PURSUANT TO AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT
AND THE STATE ACTS, SUBJECT TO THE RIGHT OF THE DEBENTURE ISSUER AND THE TRUST
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (B) ABOVE TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATES AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE AMENDED AND
RESTATED DECLARATION OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE
DEPOSITOR OR THE TRUST.  THE HOLDER OF THIS SECURITY OR ANY INTEREST
OR PARTICIPATION HEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAYBE,
AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.

     

    
      
        
        

      

      
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    NEITHER THIS SECURITY NOR ANY INTEREST
OR PARTICIPATION HEREIN MAY BE PURCHASED OR HELD (A) BY AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR
SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE (THE “CODE”), OR (B) BY AN
ENTITY WHOSE ASSETS ARE DEEMED TO BE ASSETS OF SUCH AN EMPLOYEE BENEFIT
PLAN.  THIS SECURITY, AND ANY INTEREST OR PARTICIPATION HEREIN, MAY BE
PURCHASED OR HELD BY AN INDIVIDUAL RETIREMENT ACCOUNT THAT IS NOT SUCH AN
EMPLOYEE BENEFIT PLAN OR ENTITY, PROVIDED SUCH PURCHASE OR HOLDING IS NOT
PROHIBITED BY SECTION 4975 OF THE CODE.  ANY PERSON WHO PURCHASES OR
HOLDS THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN REPRESENTS AND
WARRANTS, BY ITS PURCHASE OR HOLDING HEREOF OR THEREOF, THAT THE FOREGOING IS
TRUE AND CORRECT.

    


    IN CONNECTION WITH ANY TRANSFER, THE
HOLDER OF THIS SECURITY WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH
CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY THE AMENDED AND
RESTATED DECLARATION OF TRUST TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS. THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY
IN MINIMUM DENOMINATIONS OF THE LIQUIDATION AMOUNT AND INTEGRAL MULTIPLES OF
SUCH LIQUIDATION AMOUNT IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF THIS
SECURITY IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $1,000 OR AN
INTEGRAL MULTIPLE THEREOF SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT
WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER
OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN FOR ANY PURPOSE,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS SECURITY OR
SUCH INTEREST OR PARTICIPATION, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO
HAVE NO INTEREST WHATSOEVER IN THIS SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN.

    


    (c) Securities
may only be transferred in minimum denominations of the Liquidation Amount and
integral multiples of such Liquidation Amount in excess thereof. Any attempted
transfer of Preferred Securities in a block having an aggregate liquidation
amount which does not conform to this Section 8.1(c) shall be deemed to be void
and of no legal effect whatsoever. Any such purported transferee shall be deemed
not to be a Holder of such Preferred Securities for any purpose, including, but
not limited to, the receipt of Distributions on such Preferred Securities, and
such purported transferee shall be deemed to have no interest whatsoever in such
Preferred Securities.
 

    


    SECTION 8.3. Deemed Security
Holders. The Trust, the Trustees, the Paying Agent, the Transfer Agent or
the Securities Registrar may treat the Person in whose name any Security shall
be registered on the Securities Register of the Trust as the sole Holder and
owner of such Security 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 Security on the part of any
other Person, whether or not the Trust, the Trustees, the Paying Agent, the
Transfer Agent or the Registrar shall have actual or other notice thereof.
 

    


    SECTION 8.4. Depositor
Exchange.

    


    (a) If at any
time the Depositor or any of its Affiliates (in either case, a “Issuer
Affiliated Holder”) is the Holder of any Preferred Securities, such Issuer
Affiliated Holder shall have the right to deliver to the Property Trustee all or
such portion of its Preferred Securities as it elects and receive, in exchange
therefor, Debentures in an aggregate principal amount equal to the aggregate
stated liquidation amount of, with an interest rate identical to the
distribution rate of, and accrued and unpaid interest equal to accumulated and
unpaid Distributions on, such Preferred Securities. Such election (i) shall be
exercisable effective on any Distribution Date by such Issuer Affiliated Holder
delivering to the Property Trustee a written notice of such election specifying
the aggregate liquidation amount of the Preferred Securities with respect to
which such election is being made and the Distribution Date on which such
exchange shall occur, which Distribution Date shall be not less than ten (10)
Business Days after the date of receipt by the Property Trustee of such election
notice and (ii) shall be conditioned upon such Issuer Affiliated Holder having
delivered or caused to be delivered to the Property Trustee or its designee the
Preferred Securities which are the subject of such election by 10:00 a.m. New
York City time, on the Distribution Date on which such exchange is to occur.
After the exchange, such Preferred Securities will be canceled and will no
longer be deemed to be outstanding and all rights of the Depositor or its
Affiliate(s) with respect to such Preferred Securities will cease.

     

    
      
        
        

      

      
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    (b) In the
case of an exchange described in Section 8.4(a) above, the Trust will, on the
date of such exchange, exchange Debentures having a principal amount equal to a
proportional amount of the aggregate liquidation amount of the outstanding
Common Securities based on the ratio of the aggregate liquidation amount of the
Preferred Securities exchanged pursuant to Section 8.4(a) above divided by the
aggregate liquidation amount of the Preferred Securities outstanding immediately
prior to such exchange, for such proportional amount of Common Securities held
by the Depositor (which contemporaneously shall be canceled and no longer be
deemed to be outstanding); provided that the
Depositor delivers or causes to be delivered to the Property Trustee or its
designee the required amount of Common Securities to be exchanged by 10:00 a.m.,
New York City time, on the Distribution Date on which such exchange is to
occur.
 

    


    ARTICLE
IX

    TRUSTEES
 

    


    SECTION 9.1.   Certain Duties and
Responsibilities.

    


    (a) The
duties and responsibilities of the Trustees shall be as provided by this
Declaration and, in the case of the Property Trustee, by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Declaration shall
require the Trustees to expend or risk their own funds or otherwise incur any
financial liability in the performance of any of their duties hereunder, or in
the exercise of any of their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. No Administrative
Trustee nor the Delaware Trustee shall be liable for its act or omissions
hereunder except as a result of its own gross negligence or willful misconduct.
Whether or not therein expressly so provided, every provision of this
Declaration relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this Section
9.1. To the extent that, at law or in equity, the Property Trustee, the Delaware
Trustee or an Administrative Trustee has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to the Securityholders, the
Delaware Trustee, the Property Trustee, or such Administrative Trustee shall not
be liable to the Trust or to any Securityholder for such Trustee’s good faith
reliance on the provisions of this Declaration. The provisions of this
Declaration, to the extent that they restrict or eliminate the duties and
liabilities of the Trustees otherwise existing at law or in equity, are agreed
by the Depositor and the Securityholders to replace such other duties and
liabilities of the Trustees, as the case may be.

    


    (b) All
payments made by the Property Trustee or a Paying Agent in respect of the Trust
Securities shall be made only from the revenue and proceeds from the Trust
Property and only to the extent that there shall be sufficient revenue or
proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Securityholder,
by its acceptance of a Trust Security, agrees that it shall look solely to the
revenue and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees are not personally
liable to it for any amount distributable in respect of any Trust Security or
for any other liability in respect of any Trust Security. This Section 9.1(b)
does not limit the liability of the Trustees expressly set forth elsewhere in
this Declaration or, in the case of the Property Trustee, in the Trust Indenture
Act.

     

    
      
        
        

      

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

    


    (i) prior to
an Event of Default and after the curing or waiving of all such Events of
Default that may have occurred:

    


    (A) the
duties and obligations of the Property Trustee shall determined solely by the
express provisions of this Declaration, and the Property Trustee shall not be
liable with respect to the Preferred Securities except for the performance of
such duties and obligations as are specifically set forth in this Declaration,
and no implied covenants or obligations shall be read into this Declaration
against the Property Trustee; and

    


    (B) in the
absence of bad faith on the part of the Property Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the
Property Trustee and conforming to the requirements of this Declaration; but in
the case of any such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Property Trustee, the Property
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Declaration;

    


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

    


    (iii) the
Property Trustee shall not be liable with respect to any action taken or omitted
to be taken by it in good faith in accordance with the direction of the Holders
of not less than a majority in Liquidation Amount of the Trust Securities
relating to the time, method and place of conducting any proceeding for any
remedy available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Declaration;

    


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

     

    
      
        
        

      

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

    


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

    


    SECTION 9.2. 
   Certain
Notices.

    


    (a) Within
five (5) Business Days after the occurrence of any Event of Default actually
known to a Responsible Officer (as defined in the Indenture) of the Property
Trustee, the Property Trustee shall transmit, in the manner and to the extent
provided in Section 11.8, notice of such Event of Default to the
Securityholders, the Administrative Trustees and the Depositor, unless such
Event of Default shall have been cured or waived. For purposes of this Section
9.2, the term “Event of Default” means any event that is, or after notice or
lapse of time or both would become, an Event of Default.

    


    (b) The
Administrative Trustees shall transmit to the Securityholders in the manner and
to the extent provided in Section 11.8 notice of the Depositor’s election to
begin or further extend an Extended Interest Period on the Debentures (unless
such election shall have been revoked), and of any election by the Depositor to
accelerate the Maturity Date of the Debentures within the time specified for
transmitting such notice to the holders of the Debentures pursuant to the
Indenture as originally executed.



    


    SECTION 9.3.   Certain Rights of the
Property Trustee. Subject to the provisions of Section 9.1:

    


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

     

    
      
        
        

      

      
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    (b) if (i) in
performing its duties under this Declaration the Property Trustee is required to
decide between alternative courses of action; or (ii) in construing any of the
provisions of this Declaration, the Property Trustee finds the same ambiguous or
inconsistent with other provisions contained herein; or (iii) the Property
Trustee is unsure of the application of any provision of this Declaration, then,
except as to any matter as to which the Preferred Securityholders are entitled
to vote under the terms of this Declaration, the Property Trustee shall deliver
a notice to the Depositor requesting written instructions of the Depositor as to
the course of action to be taken and the Property Trustee shall take such
action, or refrain from taking such action, as the Property Trustee shall be
instructed in writing to take, or to refrain from taking, by the Depositor;
provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within ten
(10) Business Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent practicable
shall not be less than two (2) Business Days), it may, but shall be under no
duty to, take or refrain from taking such action not inconsistent with this
Declaration as it shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee shall have no liability
except for its own bad faith, negligence or willful misconduct;

    


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

    


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

    


    (e) the
Property Trustee shall have no duty to see to any recording, filing or
registration of any instrument (including any financing or continuation
statement or, except as provided in Section 4.5, any filing under tax or
securities laws) or any re-recording, refiling or reregistration
thereof;

    


    (f) the
Property Trustee may consult with counsel of its choice (which counsel may be
counsel to the Depositor 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, such counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its
employees; the Property 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
Property Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Declaration at the request, order or direction of
any of the Securityholders, pursuant to this Declaration, unless such
Securityholders shall have offered to the Property Trustee reasonable security
or indemnity against the costs, expenses and liabilities that might be incurred
by it in compliance with such request, order or direction; nothing contained
herein shall, however, relieve the Property Trustee of the obligation, upon the
occurrence of an Event of Default (that has not been cured or waived) to
exercise such of the rights and powers vested in it by this Declaration, and to
use the same degree of care and skill in its exercise thereof, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs;

     

    
      
        
        

      

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

    


    (i) the
Property Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through its agents or attorneys,
provided that the Property Trustee shall be responsible for its own negligence,
willful misconduct or bad faith with respect to selection of any agent or
attorney appointed by it hereunder;

    


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

    


    (k) except as
otherwise expressly provided by this Declaration, the Property Trustee shall not
be under any obligation to take any action that is discretionary under the
provisions of this Declaration. No provision of this Declaration shall be deemed
to impose any duty or obligation on the Property Trustee to perform any act or
acts or exercise any right, power, duty or obligation conferred or imposed on
it, in any jurisdiction in which it shall be illegal, or in which the Property
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.

    


    (l) The
rights and protections afforded the Property Trustee herein shall extend to the
Property Trustee in any and all other roles in which the Property Trustee may at
any time serve hereunder.
 

    


    SECTION 9.4.   Trustees’ Disclaimer.
The Trustees shall have no responsibility for the validity or adequacy of this
Declaration. The Recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and the Trustees do
not assume any responsibility for their correctness. The Trustees shall not be
accountable for the use or application by the Depositor of the proceeds of the
Debentures.
 

    


    SECTION 9.5.   May Hold Securities.
Any Trustee or any other agent of any Trustee or the Trust, in its individual or
any other capacity, may become the owner or pledgee of the Trust Securities and,
subject to Sections 9.8 and 9.13, and except as provided in the definition of
the term “Outstanding” in Article I, may otherwise deal with the Trust and the
Company with the same rights it would have if it were not a Trustee or such
other agent.
 

    


    SECTION 9.6.   Compensation; Indemnity;
Fees. The Depositor agrees:

    


    (a) to pay to
the Trustees from time to time reasonable compensation for all services rendered
by them hereunder (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust, in the case
of the Property Trustee as set forth in a written agreement between the
Depositor and the Property Trustee);

     

    
      
        
        

      

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

    


    (c) to
indemnify each of the Trustees or any predecessor Trustee for, and to hold the
Trustees harmless against, any loss, damage, claims, actions, suits, liability,
penalty or expense of any kind and nature whatsoever incurred without negligence
(or, in the case of the Administrative Trustees or the Delaware Trustee, gross
negligence), bad faith or willful misconduct on its part, arising out of or in
connection with the acceptance or administration of this Declaration, including
the costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.

    


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

    


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

    


    SECTION 9.7.   Corporate Property Trustee
Required; Eligibility of Trustees.

    


    (a) There
shall at all times be a Property Trustee hereunder with respect to the Trust
Securities. The Property Trustee shall be a Person that is eligible pursuant to
the Trust Indenture Act to act as such and has a combined capital and surplus of
at least $50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section 9.7, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Property Trustee with respect to the Trust Securities shall cease to be
eligible in accordance with the provisions of this Section 9.7, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article IX. The Property Trustee and the Delaware Trustee may, but need not be,
the same person.

    


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

    


    (c) There
shall at all times be a Delaware Trustee with respect to the Trust Securities.
The Delaware Trustee shall either be (i) a natural person who is at least
twenty-one (21) years of age and a resident of the State of Delaware; or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
 

     

    
      
        
        

      

      
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    SECTION 9.8.   Conflicting
Interests.  If the Property Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture Act, the Property
Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act
and this Declaration.

    


    SECTION 9.9.   Co-Trustees and Separate
Trustee.

    


    (a) Unless a
Debenture Event of Default shall have occurred and be continuing, at any time or
times, for the purpose of meeting the legal requirements of the Trust Indenture
Act or of any jurisdiction in which any part of the Trust Property may at the
time be located, the Depositor shall have power to appoint, and upon the written
request of the Property Trustee, the Depositor shall for such purpose join with
the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-trustee, jointly with the
Property Trustee, of all or any part of such Trust Property, or to the extent
required by law to act as separate trustee of any such property, in either case
with such powers as may be provided in the instrument of appointment, and to
vest in such Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the other provisions of
this Section 9.9. If the Depositor does not join in such appointment within
fifteen (15) days after the receipt by it of a request so to do, or in case a
Debenture Event of Default has occurred and is continuing, the Property Trustee
alone shall have power to make such appointment. Any co-trustee or separate
trustee appointed pursuant to this Section 9.9 shall either be (i) a natural
person who is at least twenty-one (21) years of age and a resident of the United
States; or (ii) a legal entity with its principal place of business in the
United States that shall act through one or more persons authorized to bind such
entity.

    


    (b) Should
any written instrument from the Depositor be required by any co-trustee or
separate trustee so appointed for more fully confirming to such co-trustee or
separate trustee such property, title, right, or power, any and all such
instruments shall, on request, be executed, acknowledged, and delivered by the
Depositor.

    


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

    


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

    


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

     

    
      
        
        

      

      
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    (iii) The
Property Trustee at any time, by an instrument in writing executed by it, with
the written concurrence of the Depositor, may accept the resignation of or
remove any co-trustee or separate trustee appointed under this Section 9.9, and,
in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee shall have the power to accept the resignation of, or remove,
any such co-trustee or separate trustee without the concurrence of the
Depositor. Upon the written request of the Property Trustee, the Depositor shall
join with the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in this Section
9.9.

    


    (iv) No
co-trustee or separate trustee hereunder shall be personally liable by reason of
any act or omission of the Property Trustee or any other trustee
hereunder.

    


    (v) The
Property Trustee shall not be liable by reason of any act of a co-trustee or
separate trustee.

    


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

    


    SECTION 9.10. Resignation and Removal;
Appointment of Successor.

    


    (a) No
resignation or removal of any Trustee (the “Relevant Trustee”) and no
appointment of a successor Trustee pursuant to this Article IX shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 9.11.

    


    (b) Subject
to the immediately preceding paragraph, the Relevant Trustee may resign at any
time with respect to the Trust Securities by giving written notice thereof to
the Securityholders. If the instrument of acceptance by the successor Trustee
required by Section 9.11 shall not have been delivered to the Relevant Trustee
within thirty (30) days after the giving of such notice of resignation, the
Relevant Trustee may petition, at the expense of the Depositor, any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Trust Securities.

    


    (c) Unless a
Debenture Event of Default shall have occurred and be continuing, any Trustee
may be removed at any time by an Act of the Common Securityholder. If a
Debenture Event of Default shall have occurred and be continuing, the Property
Trustee or the Delaware Trustee, or both of them, may be removed at such time by
an Act of the Holders of not less than a majority in Liquidation Amount of the
Preferred Securities, delivered to the Relevant Trustee (in its individual
capacity and on behalf of the Trust). An Administrative Trustee may be removed
by the Common Securityholder at any time.

     

    
      
        
        

      

      
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    (d) If any
Trustee shall resign, be removed or become incapable of acting as Trustee, or if
a vacancy shall occur in the office of any Trustee for any cause, at a time when
no Debenture Event of Default shall have occurred and be continuing, the Common
Securityholder, by an Act of the Common Securityholder delivered to the retiring
Trustee, shall promptly appoint a successor Trustee or Trustees with respect to
the Trust Securities and the Trust, and the successor Trustee shall comply with
the applicable requirements of Section 9.11. If the Property Trustee or the
Delaware Trustee shall resign, be removed or become incapable of continuing to
act as the Property Trustee or the Delaware Trustee, as the case may be, at a
time when a Debenture Event of Default shall have occurred and is continuing,
the Preferred Securityholders, by an Act of the Securityholders of not less than
a majority in Liquidation Amount of the Preferred Securities then Outstanding
delivered to the retiring Relevant Trustee, shall promptly appoint a successor
Trustee or Trustees with respect to the Trust Securities and the Trust, and such
successor Trustee shall comply with the applicable requirements of Section 9.11.
If an Administrative Trustee shall resign, be removed or become incapable of
acting as an Administrative Trustee, at a time when a Debenture Event of Default
shall have occurred and be continuing, the Common Securityholder, by an Act of
the Common Securityholder delivered to an Administrative Trustee, shall promptly
appoint a successor Administrative Trustee or Administrative Trustees with
respect to the Trust Securities and the Trust, and such successor Administrative
Trustee or Administrative Trustees shall comply with the applicable requirements
of Section 9.11. If no successor Trustee with respect to the Trust Securities
shall have been so appointed by the Common Securityholder or the Preferred
Securityholders and accepted appointment in the manner required by Section 9.11,
any Securityholder who has been a Securityholder of Trust Securities for six
consecutive months on behalf of himself or herself and all others similarly
situated may petition a court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Trust Securities.

    


    (e) The
Property Trustee shall give notice of each resignation and each removal of a
Trustee and each appointment of a successor Trustee to all the Securityholders
in the manner provided in Section 11.8 and shall give notice to the Depositor.
Each notice shall include the name of the successor Trustee and the address of
its Corporate Trust Office if it is the Property Trustee.

    


    (f) Notwithstanding
the foregoing or any other provision of this Declaration, in the event any
Administrative Trustee or a Delaware Trustee who is a natural person dies or
becomes, in the opinion of the Depositor, incompetent or incapacitated, the
vacancy created by such death, incompetence or incapacity may be filled by (a)
the unanimous act of the remaining Administrative Trustees if there are at least
two of them; or (b) otherwise by the Depositor (with the successor in each case
being a Person who satisfies the eligibility requirement for Administrative
Trustees set forth in Section 9.7).



    


    (g) Any
successor Delaware Trustee shall file an amendment to the Certificate of Trust
as required by the Delaware Statutory Trust Act.

    


    SECTION 9.11. Acceptance of Appointment by
Successor.

     

    
      
        
        

      

      
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    (a) In case
of the appointment hereunder of a successor Trustee with respect to the Trust
Securities and the Trust, the retiring Relevant Trustee and each successor
Trustee with respect to the Trust Securities shall execute and deliver an
instrument hereto wherein each successor Trustee shall accept such appointment
and which shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust and upon the execution and delivery of such
instrument the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Relevant Trustee with respect
to the Trust Securities and the Trust; but, on request of the Trust or any
successor Trustee such retiring Relevant Trustee shall duly assign, transfer and
deliver to such successor Trustee all the Trust Property, all proceeds thereof
and money held by such retiring Relevant Trustee hereunder with respect to the
Trust Securities and the Trust.

    


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

    


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

    


    SECTION 9.12. Merger, Conversion,
Consolidation or Succession to Business.  Any Person into which
the Property Trustee, the Delaware Trustee or any Administrative 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 such Trustee
shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of such Trustee, shall be the successor of such Trustee
hereunder, provided such Person shall be otherwise qualified and eligible under
this Article IX, without the execution or filing of any paper or any further act
on the part of any of the parties hereto.



    


    SECTION 9.13. Preferential Collection of
Claims Against the Depositor or the Trust.  If and when the
Property Trustee or the Delaware Trustee shall be or become a creditor of the
Depositor or the Trust (or any other obligor upon the Debentures or the Trust
Securities), the Property Trustee or the Delaware Trustee, as the case may be,
shall be subject to and shall take all actions necessary in order to comply with
the provisions of the Trust Indenture Act regarding the collection of claims
against the Depositor or the Trust (or any such other obligor).
 

    


    SECTION 9.14. Property Trustee May File
Proofs of Claim.  In case of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other similar judicial proceeding relative to the Issuer Trust or any other
obligor upon the Trust Securities or the Trust Property, the Property Trustee
(irrespective of whether any Distributions on the Trust Securities shall then be
due and payable and irrespective of whether the Property Trustee shall have made
any demand on the Trust for the payment of any past due Distributions) shall be
entitled and empowered, to the fullest extent permitted by law, by intervention
in such proceeding or otherwise:

    


    (a) to file
and prove a claim for the whole amount of any Distributions owing and unpaid in
respect of the Trust Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Property
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and

    


    (b) to
collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same;

     

    
      
        
        

      

      
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    and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Property Trustee and, in the event the Property Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Property Trustee
any amount due it for the reasonable compensation, expenses, disbursements and
advances of the Property Trustee, its agents and counsel, and any other amounts
due the Property Trustee.

    


    Nothing herein contained shall be
deemed to authorize the Property Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement adjustment
or compensation affecting the Trust Securities or the rights of any Holder
thereof or to authorize the Property Trustee to vote in respect of the claim of
any Holder in any such proceeding.



    


    SECTION 9.15. Reports to the Property
Trustee and to Securityholders.  The Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and the compliance certificate required by
Section 314(a) of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act. The Depositor and the
Administrative Trustees on behalf of the Trust shall provide directly to
Securityholders, within fifteen (15) days after the Depositor files the same
with the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and regulations prescribe) that
the Depositor is required to provide to shareholders pursuant to the Exchange
Act.
 

    


    SECTION 9.16. Evidence of Compliance with
Conditions Precedent.  Each of the Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such evidence of compliance with any conditions precedent, if any,
provided for in this Declaration that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate or opinion required
to be given by an officer pursuant to Section 314(c)(1) of the Trust Indenture
Act shall be given in the form of an Officers’ Certificate.
 

    


    SECTION 9.17. Number of
Trustees.

    


    (a) The
number of Trustees shall be five, provided that the Holder of all of the Common
Securities by written instrument may increase or decrease the number of the
Administrative Trustees. The Property Trustee and the Delaware Trustee may be
the same Person.

    


    (b) If a
Trustee ceases to hold office for any reason and the number of the
Administrative Trustees is not reduced pursuant to Section 9.17(a), or if the
number of the Trustees is increased pursuant to Section 9.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 9.10.

     

    
      
        
        

      

      
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    (c) The
death, resignation, retirement, removal, bankruptcy, incompetence or incapacity
to perform the duties of a Trustee shall not operate to annul the Trust.
Whenever a vacancy in the number of the Administrative Trustees shall occur,
until such vacancy is filled by the appointment of an Administrative Trustee in
accordance with Section 9.10, the Administrative Trustees in office, regardless
of their number (and notwithstanding any other provision of this Agreement),
shall have all the powers granted to the Administrative Trustees and shall
discharge all the duties imposed upon the Administrative Trustees by this
Declaration.

    


    SECTION 9.18. Delegation of
Power.

    


    (a) Any
Administrative Trustee may, by power of attorney consistent with applicable law,
delegate to any other natural person over the age of twenty-one (21) his or her
power for the purpose of executing any documents contemplated in Section 2.7(a);
and

    


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

    


    SECTION 9.19. Voting.  Except
as otherwise provided in this Declaration, the consent or approval of the
Administrative Trustees shall require consent or approval by not less than a
majority of the Administrative Trustees, unless there are only two, in which
case both must consent.
 

    


    ARTICLE
X

    TERMINATION,
LIQUIDATION AND MERGER
 

    


    SECTION 10.1. Dissolution Upon Expiration
Date.  Unless earlier dissolved, the Trust shall automatically
dissolve on March 15, 2045 (the “Expiration Date”) subject to distribution of
the Trust Property in accordance with Section 10.4.
 

    


    SECTION 10.2. Early Dissolution.
The first to occur of any of the following events is an “Early Termination
Event”:

    


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

    


    (b) delivery
of written direction to the Property Trustee by the Depositor at any time (which
direction is wholly optional and within the discretion of the Depositor, subject
to Depositor having received prior approval of the Board of Governors of the
Federal Reserve System if so required under applicable guidelines, policies or
regulations thereof) to dissolve the Trust and distribute the Debentures to the
Securityholders in exchange for the Trust Securities in accordance with Section
10.4;

    


    (c) the
redemption of all of the Preferred Securities in connection with the redemption
of all of the Debentures (whether upon a Debenture Redemption Date or the
maturity of the Debentures); and

    


    (d) the
entrance of an order for dissolution of the Trust shall have been entered by a
court of competent jurisdiction.

     

    
      
        
        

      

      
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    SECTION 10.3. Termination.  As
soon as is practicable after the last to occur of the following: (a) the
distribution by the Property Trustee to the Securityholders upon the liquidation
of the Trust pursuant to Section 10.4, or upon the redemption of all of the
Trust Securities pursuant to Section 4.2, of all amounts required to be
distributed hereunder upon the final payment of the Trust Securities; (b) the
payment of any expenses owed by the Trust upon the dissolution and winding-up of
the Trust; (c) the discharge of all administrative duties of the Administrative
Trustees, including the performance of any tax reporting obligations with
respect to the Trust or the Securityholders; and (d) after satisfaction of
liabilities to creditors as required by applicable law, including Section 3808
of the Delaware Statutory Trust Act, the Administrative Trustees shall terminate
the Trust by filing, at the expense of the Depositor, a certificate of
cancellation with the Secretary of State of the State of Delaware. The
Administrative Trustees shall notify the Property Trustee and the Delaware
Trustee of such filing. Upon filing of such certificate of cancellation, the
Trust, this Declaration (other than provisions, including Section 9.6, which by
their terms survive), and the respective obligations and responsibilities of the
Trustees shall terminate.
 

    


    SECTION 10.4. Liquidation.

    


    (a) If an
Early Termination Event specified in clause (a), (b), or (d) of Section 10.2
occurs or upon the Expiration Date, the Trust shall be liquidated by the
Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to each Securityholder a Like Amount of Debentures,
subject to Section 10.4(d). Notice of liquidation shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not later than thirty (30)
nor more than sixty (60) days prior to the Liquidation Date to each Holder of
Trust Securities at such Holder’s address appearing in the Securities Register.
All notices of liquidation shall:

    


    (i) state the
Liquidation Date;

    


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

    


    (iii) provide
such information with respect to the mechanics by which the Holders may exchange
the Trust Securities Certificates for the Debentures, or, if Section 10.4(d)
applies, receive a Liquidation Distribution, as the Administrative Trustees or
the Property Trustee shall deem appropriate.

    


    (b) Except
where Section 10.2(c) or 10.4(d) applies, in order to effect the liquidation of
the Trust and distribution of the Debentures to the Securityholders, the
Property Trustee shall establish a record date for such distribution (which
shall be not more than forty-five (45) days prior to the Liquidation Date) and,
either itself acting as exchange agent or through the appointment of a separate
exchange agent, shall establish such procedures as it shall deem appropriate to
effect the distribution of Debentures in exchange for the Outstanding Trust
Securities Certificates.

     

    
      
        
        

      

      
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    (c) Except
where Section 10.2(c) or 10.4(d) applies, after the Liquidation Date, (i) the
Trust Securities shall no longer be deemed to be outstanding; (ii) certificates
representing a Like Amount of the Debentures shall be issued to the Holders of
Trust Securities Certificates upon surrender of such certificates to the
Administrative Trustees or their agent for exchange; (iii) any Trust Securities
Certificates not so surrendered for exchange shall be deemed to represent a Like
Amount of Debentures, accruing interest at the rate provided for in the
Debentures from the last Distribution Date on which a Distribution was made on
such Trust Securities Certificates until such certificates are so surrendered
(and until such certificates are so surrendered, no payments of interest or
principal shall be made to Holders of the Trust Securities Certificates with
respect to such Debentures); and (iv) all rights of the Securityholders holding
the Trust Securities shall cease, except the right of such Securityholders to
receive the Debentures upon surrender of the Trust Securities
Certificates.

    


    (d) In the
event that, notwithstanding the other provisions of this Section 10.4, whether
because of an order for dissolution entered by a court of competent jurisdiction
or otherwise, distribution of the Debentures in the manner provided herein is
determined by the Property Trustee not to be practical, the Trust Property shall
be liquidated, and the Trust shall be dissolved, wound-up and terminated, by the
Property Trustee in such manner as the Property Trustee determines. In such
event, on the date of the dissolution, winding-up or other termination of the
Trust, the Securityholders shall be entitled to receive out of the assets of the
Trust available for distribution to the Securityholders, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, an amount
equal to the Liquidation Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the “Liquidation
Distribution”). If, upon any such dissolution, winding-up or termination, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts, subject to Section 4.7). The Holder of the Common
Securities shall be entitled to receive the Liquidation Distributions upon any
such dissolution, winding-up or termination pro rata (determined as aforesaid)
with the Holders of the Preferred Securities, except that, if a Debenture Event
of Default has occurred and is continuing, the Preferred Securities shall have a
priority over the Common Securities.



    


    SECTION 10.5. Mergers, Consolidations,
Amalgamations or Replacements of the Trust.  The Trust may not
merge with or into, consolidate, amalgamate, or be replaced by, or convey,
transfer or lease its properties and assets substantially as an entirety to any
corporation or other Person, except pursuant to this Section 10.5. At the
request of the Depositor, with the consent of the Administrative Trustees and
without the consent of the Holders of the Preferred Securities, the Property
Trustee or the Delaware Trustee, the Trust may merge with or into, consolidate,
amalgamate, be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to a trust organized as such under the laws
of any State; provided that (a)
such successor entity either (i) expressly assumes all of the obligations of the
Trust with respect to the Preferred Securities; or (ii) substitutes for the
Preferred Securities other securities having substantially the same terms as the
Preferred Securities (the “Successor Securities”) so long as the Successor
Securities rank the same as the Preferred Securities rank in priority with
respect to distributions and payments upon liquidation, redemption and
otherwise; (b) the Depositor expressly appoints a trustee of such successor
entity possessing substantially the same powers and duties as the Property
Trustee as the holder of the Debentures; (c) such merger, consolidation,


     

    
      
        
        

      

      
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    amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders of the Preferred Securities (including
any Successor Securities) in any material respect; (d) such successor entity has
a purpose substantially identical to that of the Trust; (e) prior to such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease,
the Depositor has received an Opinion of Counsel to the effect that (i) such
merger consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the Holders
of the Preferred Securities (including any Successor Securities) in any material
respect; and (ii) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity shall be required to register as an “investment company” under the
Investment Company Act; and (f) the Depositor owns all of the Common Securities
of such successor entity and guarantees the obligations of such successor entity
under the Successor Securities at least to the extent provided by the Guarantee,
the Debentures, this Declaration.  For purposes of this Section 10.5,
any such consolidation, merger, sale, conveyance, transfer or other disposition
as a result of which (a) the Company is not the surviving Person, and (b) the
same Person is not both (i) the primary obligor in respect of the Debentures and
(ii) the Guarantor under the Preferred Securities Guarantee shall be deemed to
constitute a replacement of the Trust by a successor entity; provided further
that, notwithstanding the foregoing, in the event that upon the consummation of
such a consolidation, merger, sale, conveyance, transfer or other disposition,
the parent company (if any) of the Company, or its successor, is a bank holding
company or financial holding company or comparably regulated financial
institution, such parent company shall guarantee the obligations of the Trust
(and any successor thereto) under the Preferred Securities (including any
Successor Securities) at least to the extent provided by the Guarantee, the
Debentures, and the Declaration. Notwithstanding the foregoing, the Trust shall
not, except with the consent of the Holders of 100% in Liquidation Amount of the
Preferred Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to any other Person or permit any other Person to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger or replacement would cause the Trust or the successor
entity to be classified as other than a grantor trust for United States federal
income tax purposes.

    


    ARTICLE
XI                                
 

    MISCELLANEOUS
PROVISIONS
 

    


    SECTION 11.1. Limitation of Rights of the
Securityholders. The death or incapacity of any Person having an
interest, beneficial or otherwise, in the Trust Securities shall not operate to
terminate this Declaration, nor entitle the legal representatives or heirs of
such Person or any Securityholder for such Person to claim an accounting, take
any action or bring any proceeding in any court for a partition or winding-up of
the arrangements contemplated hereby, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
 

    


    SECTION 11.2. Amendment.

    


    (a) This
Declaration may be amended from time to time by the Trustees and the Depositor,
without the consent of any Securityholders, (i) as provided in Section 9.11 with
respect to acceptance of appointment by a successor Trustee; (ii) to cure any
ambiguity, correct or supplement any provision herein or therein which may be
inconsistent with any other provision herein or therein, or to make any other
provisions with respect to matters or questions arising under this Declaration,
that shall not be inconsistent with the other provisions of this Declaration;
(iii) to modify, eliminate or add to any provisions of this Declaration to such
extent as shall be necessary to ensure that the Trust shall be classified for
United States federal income tax purposes as a grantor trust at all times that
any of the Trust Securities are outstanding or to ensure that the Trust shall
not be required to register as an “investment company” under the Investment
Company Act; provided, however, that in the
case of clause (ii), such action shall not adversely affect in any material
respect the interests of any Securityholder.

     

    
      
        
        

      

      
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    (b) Except as
provided in Section 6.1(c) or 11.2 hereof, any provision of this Declaration may
be amended by the Trustees and the Depositor (i) with the consent of the
Securityholders representing not less than a majority (based upon Liquidation
Amounts) of the Trust Securities then Outstanding; and (ii) upon receipt by the
Trustees of an Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance with such amendment
shall not affect the Trust’s status as a grantor trust for United States federal
income tax purposes or the Trust’s exemption from status of an “investment
company” under the Investment Company Act.

    


    (c) In
addition to and notwithstanding any other provision in this Declaration, without
the consent of each affected Securityholder (such consent being obtained in
accordance with Section 6.3 or 6.6 hereof), this Declaration may not be amended
to (i) change the amount or timing of any Distribution on the Trust Securities
or otherwise adversely affect the amount of any Distribution required to be made
in respect of the Trust Securities as of a specified date; or (ii) restrict the
right of a Securityholder to institute suit for the enforcement of any such
payment on or after such date; notwithstanding any other provision herein,
without the unanimous consent of the Securityholders (such consent being
obtained in accordance with Section 6.3 or 6.6 hereof), this paragraph (c) of
this Section 11.2 may not be amended.

    


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

    


    (e) Notwithstanding
anything in this Declaration to the contrary, without the consent of the
Depositor, this Declaration may not be amended in a manner which imposes any
additional obligation on the Depositor.

    


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

    


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

    


    SECTION 11.3. 
 Separability.  In
case any provision in this Declaration or in the Trust Securities Certificates
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
 

     

    
      
        
        

      

      
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    SECTION 11.4. Governing
Law.  THIS DECLARATION AND THE RIGHTS AND OBLIGATIONS OF EACH
OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS
DECLARATION AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO ITS CONFLICT OF
LAWS PRINCIPLES).
 

    


    SECTION 11.5. Payments Due on Non-Business
Day.  If the date fixed for any payment on any Trust Security
shall be a day that is not a Business Day, then such payment need not be made on
such date but may be made on the next succeeding day which is a Business Day,
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day (and without any
reduction of interest or any other payment in respect of any such acceleration),
in each case with the same force and effect as though made on the date fixed for
such payment, and no distribution shall accumulate thereon for the period after
such date.
 

    


    SECTION 11.6. Successors.  This
Declaration shall be binding upon and shall inure to the benefit of any
successor to the Depositor, the Trust or the Relevant Trustee(s), including any
successor by operation of law. Except in connection with a consolidation, merger
or sale involving the Depositor that is permitted under Article XIII of the
Indenture and pursuant to which the assignee agrees in writing to perform the
Depositor’s obligations hereunder, the Depositor shall not assign its
obligations hereunder.
 

    


    SECTION 11.7. Headings.  The
Article and Section headings are for convenience only and shall not affect the
construction of this Declaration.



    


    SECTION 11.8. Reports, Notices and
Demands.  Any report, notice, demand or other communication
which by any provision of this Declaration is required or permitted to be given
or served to or upon any Securityholder or the Depositor may be given or served
in writing by deposit thereof, first-class postage prepaid, in the United States
mail, hand delivery or facsimile transmission, in each case, addressed, (a) in
the case of a Preferred Securityholder, to such Preferred Securityholder as such
Securityholder’s name and address may appear on the Securities Register; and (b)
in the case of the Common Securityholder or the Depositor, to First United
Corporation, P.O. Box 9, 19 South Second Street, Oakland, Maryland 21550-0009,
Attention: Chief Financial Officer; facsimile no.:  (301)
334-1421.

    


    Any notice to the Preferred
Securityholders shall also be given to such owners as have, within two years
preceding the giving of such notice, filed their names and addresses with the
Property Trustee for that purpose. Such notice, demand or other communication to
or upon a Securityholder shall be deemed to have been sufficiently given or
made, for all purposes, upon hand delivery, mailing or transmission. Any notice,
demand or other communication which by any provision of this Declaration is
required or permitted to be given or served to or upon the Trust, the Property
Trustee or the Administrative Trustees shall be given in writing addressed
(until another address is published by the Trust) as follows:  (a)
with respect to the Property Trustee, to Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:
Corporate Trust Administration; (b) with respect to the Delaware Trustee, to
Wilmington Trust Company, at the address above; and (c) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked “Attention: Administrative Trustees of First United Statutory
Trust III, c/o First United Corporation.”  Such notice, demand or
other communication to or upon the Trust or the Property Trustee shall be deemed
to have been sufficiently given or made only upon actual receipt of the writing
by the Trust or the Property Trustee.

     

    
      
        
        

      

      
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    SECTION 11.9. 
 Agreement Not to
Petition.  To the fullest extent permitted by applicable law,
each of the Trustees and the Depositor agrees for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article X, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code of 1978, as amended) (collectively, “Bankruptcy Laws”) or
otherwise join in the commencement of any proceeding against the Trust under any
Bankruptcy Law. In the event the Depositor or any of the Trustees takes action
in violation of this Section 11.9, the Property Trustee agrees, for the benefit
of the Securityholders, that at the expense of the Depositor (which expense
shall be paid prior to the filing), it shall file an answer with the bankruptcy
court or otherwise properly contest the filing of such petition by the Depositor
or such Trustee against the Trust or the commencement of such action and raise
the defense that the Depositor or such Trustee has agreed in writing not to take
such action and should be stopped and precluded therefrom. The provisions of
this Section 11.9 shall survive the termination of this Declaration.
 

    


    SECTION 11.10. Trust Indenture Act;
Conflict with Trust Indenture Act.  Notwithstanding any
contrary provision herein relating to the applicability of the Trust Indenture
Act:

    


    (a) Any
provision of the Trust Indenture Act, which by its terms would apply to this
Agreement (a “Mandatory TIA Provision”), will control over any contrary terms
contained herein; and,

    


    (b) The terms
of this Agreement will control over all provisions of the Trust Indenture Act,
except for Mandatory TIA Provisions.

    


    (c) The
parties intend that this Declaration and the Trust Securities shall not be
subject to the Trust Indenture Act, and the provisions of this Declaration which
impose any duty or liability upon the Trustees to comply with any provision of
the Trust Indenture Act, including any reporting obligations, shall be
disregarded until such time as the Depositor notifies the Trustees that this
Declaration is subject to the Trust Indenture Act.
 

     

    
      
        
        

      

      
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    SECTION 11.11. Acceptance of Terms of the
Declaration, the Guarantee and the Indenture.  THE RECEIPT AND
ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON BEHALF OF A
SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR FURTHER
MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE
SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST
SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS DECLARATION AND AGREEMENT TO
THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE INDENTURE,
AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH
OTHERS THAT THE TERMS AND PROVISIONS OF THIS DECLARATION SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH
OTHERS. WITHOUT LIMITING THE FOREGOING, BY ACCEPTANCE OF A PREFERRED SECURITY,
EACH HOLDER THEREOF SHALL BE DEEMED TO HAVE AGREED TO TREAT, FOR ALL UNITED
STATES FEDERAL INCOME TAX AND FINANCIAL ACCOUNTING PURPOSES, THE DEBENTURES AS
INDEBTEDNESS OF THE COMPANY AND THE PREFERRED SECURITIES AS EVIDENCING AN
UNDIVIDED BENEFICIAL OWNERSHIP INTEREST IN THE DEBENTURES.

    


    SECTION 11.12. Counterparts.  This
Declaration may be executed in any number of counterparts, each of which shall
be an original, but such counterparts shall together constitute but one and the
same instrument.

    


    


    [SIGNATURES
APPEAR ON NEXT PAGE]

     

    
      
        
        

      

      
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    [SIGNATURE
PAGE]

    


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

     

    
      
        	
                WILMINGTON
      TRUST COMPANY,

              
	
                as
      Delaware Trustee

              
	 
      	 
      
	 
      	 
      
	
                By:              

              	
                /s/ Prital K. Patel              
                                                              

              
	
                Name:         

              	
                Prital
      K. Patel

              
	
                Title:           

              	
                Financial
      Services Officer

              
	 
      	 
      
	 
      	 
      
	
                WILMINGTON
      TRUST COMPANY,

              
	
                as
      Property Trustee

              
	 
      	 
      
	 
      	 
      
	
                By:              

              	
                /s/ Prital K. Patel              
                                                             

              
	
                Name:         

              	
                Prital
      K. Patel

              
	
                Title:           

              	
                Financial
      Services Officer

              
	 
      	 
      
	 
      	 
      
	 
      	
                FIRST
      UNITED CORPORATION,

              
	 
      	
                as
      Depositor

              
	 
      	 
      
	 
      	 
      
	
                By:              

              	
                /s/ William B. Grant       
                                                              

              
	
                Name:         

              	
                William
      B. Grant

              
	
                Title:           

              	
                Chairman,
      Chief Executive Officer and President

              
	 
      	 
      
	 
      	 
      
	
                /s/ William B.
      Grant                                                                      

              
	
                Name:
      William B. Grant, Administrative Trustee

              
	 
      	 
      
	 
      	 
      
	
                /s/ Carissa L. Rodeheaver              
                                                                            

              
	
                Name:
      Carissa L. Rodeheaver, Administrative Trustee

              
	 
      	 
      
	 
      	 
      
	
                /s/ Tonya K. Sturm                     
                                                                            

              
	
                Name:
      Tonya K. Sturm, Administrative
Trustee

              


      

    

    
 

    


    
      
        
        

      

      
        51

        
          

        

      

      
        
        

      

    

     

    


    EXHIBIT
A

    


    CERTIFICATE
OF TRUST

    OF

    FIRST
UNITED STATUTORY TRUST III

    As filed
November 30, 2009

     

    
      
        
        

      

      
        A-1

        
          

        

      

      
        
        

      

    

     

    CERTIFICATE
OF TRUST

    OF

    FIRST
UNITED STATUTORY TRUST III

    


    THIS CERTIFICATE OF TRUST of First
United Statutory Trust III (the “Trust”) is being duly executed and filed on
behalf of the Trust by the undersigned, as trustee, to form a statutory trust
under the Delaware Statutory Trust Act (12 Del. Code Ann. tit. 12, §§ 3801 et seq.) (the
“Act”).

    


    1.           Name.  The
name of the statutory trust formed hereby is First United Statutory Trust
III.

    


    2.           Delaware
Trustee.  The name and business address of the trustee of the
Trust in the State of Delaware are Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:
Christopher J. Monigle, Corporate Trust Administration.

    


    3.           Effective
Date.  This Certificate of Trust shall be effective upon filing
with the Secretary of State.

    


    IN WITNESS WHEREOF, the undersigned has
duly executed this Certificate of Trust in accordance with Section 3811(a)(1) of
the Act.

    


    WILMINGTON TRUST COMPANY,

    as Trustee

    


    


    By:              /s/ Prital K. Patel                                                              

    Name:         Prital
K. Patel

    Title:           Financial
Services Officer

     

    
      
        
        

      

      
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    EXHIBIT
B

    


    FORM OF
COMMON SECURITY CERTIFICATE

     

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

     

    EXCEPT AS SET FORTH IN SECTION 5.10 OF
THE DECLARATION (AS DEFINED BELOW), THIS SECURITY MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED.

     

    
      
        
        

      

      
        B-1

        
          

        

      

      
        
        

      

    

     

    Certificate
Number:                                                                                               Number
of Common Securities:

    


    Certificate
Evidencing Common Securities

    of

    First
United Statutory Trust III

    (Liquidation
amount $1,000 per Common Security)

     

    First United Statutory Trust III, a
statutory trust created under the laws of the State of Delaware (the “Trust”),
hereby certifies that First United Corporation is the registered owner (the
“Holder”) of ____ common securities of the Trust representing undivided
beneficial interests in the assets of the Trust (liquidation amount $1,000 per
Common Security) (the “Common Securities”). The Common Securities represented
hereby are issued pursuant to, and the designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities shall in all respects be subject to, the provisions of the Amended
and Restated Declaration of Trust of the Trust, dated as of December 30, 2009
(the “Declaration”), by and among First United Corporation, as Depositor,
Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as
Delaware Trustee, William B. Grant, Carissa L. Rodeheaver, and Tonya K. Sturm,
as Administrative Trustees, and the holders from time to time of undivided
beneficial interests in the assets of the Trust, including the designation of
the terms of the Common Securities as set forth in the
Declaration.  Capitalized terms used herein but not defined shall have
the meaning given them in the Declaration. The Depositor will provide a copy of
the Declaration and the Indenture to the Holder without charge upon written
request to the Depositor 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 the Holder 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 Preferred Securities.

    


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

     

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

     

    This Certificate and the Common
Securities evidenced hereby are governed by, and shall be construed in
accordance with, the laws of the State of Delaware, without regard to principles
of conflict of laws.

    


    IN WITNESS WHEREOF, the Trust has
executed this Certificate this ____ day of ________________, _____.

    


    FIRST
UNITED STATUTORY TRUST III

    


    


    By: ________________      

    Name:

    Title:

     

    
      
        
        

      

      
        B-2

        
          

        

      

      
        
        

      

    

     

    [FORM OF
REVERSE OF SECURITY]

    


    Distributions payable on each Common
Security will be identical in amount to the Distributions payable on each
Preferred Security, which is at a fixed of interest per annum, which, with
respect to any Distribution Period (as defined herein), will be 9.875% (the
“Coupon Rate”). Distributions in arrears for more than one Distribution Period
will bear interest thereon, compounded quarterly, at the applicable Coupon Rate
for each Distribution Period thereafter (to the extent permitted by applicable
law). The term “Distributions,” as used herein, includes cash Distributions, any
such compounded Distributions and any Additional Amounts payable on the
Debentures, unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has funds legally available
therefor. The amount of Distributions payable for any Distribution Period will
be computed on the basis of a 360-day year of twelve 30-day months, and the
amount payable for any partial period shall be computed on the basis of the
number of days elapsed in a 360-day year of twelve 30-day months.

     

    Except as otherwise described below,
Distributions on the Common Securities will be cumulative, will accrue from the
date of original issuance and will be payable quarterly in arrears on March 15,
June 15, September 15 and December 15 of each year, commencing on March 15, 2010
(each, a “Distribution Payment Date”), and on any earlier date of redemption,
subject, in each case, to the Business Day convention specified in the
Declaration. The Company has the right under the Indenture to defer payments of
interest on the Debentures by extending the interest payment period for up to 20
consecutive quarterly periods (each such extended interest payment period,
together with all previous and future consecutive extensions thereof, is
referred to herein as an “Extension Period”) at any time and from time to time
on the Debentures, subject to the conditions described below and in the
Declaration and the Indenture. No Extension Period may end on a date other than
a Distribution Payment Date or extend beyond the Maturity Date, any Optional
Redemption Date or the Special Redemption Date, as the case may be. During any
Extension Period, interest will continue to accrue on the Debentures, and
interest on such accrued interest (such accrued interest and interest thereon
referred to herein as “Deferred Interest”) will accrue, at an annual rate equal
to the Coupon Rate applicable during such Extension Period, compounded quarterly
from the date such Deferred Interest would have been payable were it not for the
Extension Period, to the extent permitted by applicable law. At the end of any
Extension Period, the Company shall pay all Deferred Interest then accrued and
unpaid on the Debentures; provided, however, that prior
to the termination of any Extension Period, the Company may further extend such
Extension Period, provided that no
Extension Period (including all previous and further consecutive extensions that
are part of such Extension Period) shall exceed 20 consecutive quarterly
periods. Upon the termination of any Extension Period and upon the payment of
all Deferred Interest, the Company may commence a new Extension Period, subject
to the requirements set forth herein and in the Declaration and the Indenture.
No interest or Deferred Interest (except any Additional Amounts that may be due
and payable) shall be due and payable during an Extension Period, except at the
end thereof, but Deferred Interest shall accrue upon each installment of
interest that would otherwise have been due and payable during such Extension
Period until such installment is paid.

     

    As a consequence of any Extension
Period, Distributions will be deferred. 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 regular record date immediately preceding the Distribution
Payment Date on which such Extension Period terminates to the extent that the
Trust has funds legally available therefor.

     

    
      
        
        

      

      
        B-3

        
          

        

      

      
        
        

      

    

     

    The Common Securities shall be
redeemable, and shall be entitled to the Liquidation Distribution, as provided
in the Declaration.

    


    ASSIGNMENT

    
 

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

    


    Name:

     

    ____________________________


    Assignee’s
Social Security or Taxpayer Identification Number:

    


    
      ____________________________


    

    Assignee’s
address and zip code:

     

     

    
      ____________________________


    

    and
irrevocably appoints ________________________________________________________ as
agent to transfer the Common Securities evidenced by this Common Security
Certificate on the books of the Trust.  The agent may substitute
another to act for it, him or her.

    


    Date:
_____________________________

    


    


    Signature:     ________________________________________________________   

                          
(Sign
exactly as your name appears on the Common Security Certificate)

    


    Signature
Guaranty: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.

       

      
        
          
          

        

        
          B-4

          
            

          

        

        
          
          

        

      

    

     

    EXHIBIT
C

    


    FORM OF
PREFERRED SECURITY CERTIFICATE

    


    [FORM OF
FACE OF SECURITY]

    


    THIS SECURITY HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY
STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS (THE “STATE
ACTS”). 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.  THE HOLDER OF THIS
SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, AS THE CASE MAY BE, AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN ONLY (A) TO THE DEBENTURE ISSUER OR THE TRUST, OR (B) PURSUANT TO AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT
AND THE STATE ACTS, SUBJECT TO THE RIGHT OF THE DEBENTURE ISSUER AND THE TRUST
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (B) ABOVE TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATES AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE AMENDED AND
RESTATED DECLARATION OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE
DEPOSITOR OR THE TRUST.  THE HOLDER OF THIS SECURITY OR ANY INTEREST
OR PARTICIPATION HEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAYBE,
AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.

     

    NEITHER THIS SECURITY NOR ANY INTEREST
OR PARTICIPATION HEREIN MAY BE PURCHASED OR HELD (A) BY AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR
SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE (THE “CODE”), OR (B) BY AN
ENTITY WHOSE ASSETS ARE DEEMED TO BE ASSETS OF SUCH AN EMPLOYEE BENEFIT
PLAN.  THIS SECURITY, AND ANY INTEREST OR PARTICIPATION HEREIN, MAY BE
PURCHASED OR HELD BY AN INDIVIDUAL RETIREMENT ACCOUNT THAT IS NOT SUCH AN
EMPLOYEE BENEFIT PLAN OR ENTITY, PROVIDED SUCH PURCHASE OR HOLDING IS NOT
PROHIBITED BY SECTION 4975 OF THE CODE.  ANY PERSON WHO PURCHASES OR
HOLDS THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN REPRESENTS AND
WARRANTS, BY ITS PURCHASE OR HOLDING HEREOF OR THEREOF, THAT THE FOREGOING IS
TRUE AND CORRECT.

    


    IN CONNECTION WITH ANY TRANSFER, THE
HOLDER OF THIS SECURITY WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH
CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY THE AMENDED AND
RESTATED DECLARATION OF TRUST TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS. THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY
IN MINIMUM DENOMINATIONS OF THE LIQUIDATION AMOUNT AND INTEGRAL MULTIPLES OF
SUCH LIQUIDATION AMOUNT IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF THIS
SECURITY IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $1,000 OR AN
INTEGRAL MULTIPLE THEREOF SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT
WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER
OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN FOR ANY PURPOSE,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS SECURITY OR
SUCH INTEREST OR PARTICIPATION, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO
HAVE NO INTEREST WHATSOEVER IN THIS SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN.

     

    
      
        
        

      

      
        C-1

        
          

        

      

      
        
        

      

    

     

    Certificate
Number:                                                                                               Number
of Preferred Securities:

    


    Certificate
Evidencing Preferred Securities

    of

    First
United Statutory Trust III

    (Liquidation
amount $1,000 per Preferred Security)

    


    First United Statutory Trust III, a
statutory trust created under the laws of the State of Delaware (the “Trust”),
hereby certifies that ________________________ is the registered owner (the
“Holder”) of ______ preferred securities of the Trust representing undivided
beneficial interests in the assets of the Trust, liquidation amount $1,000 per
Preferred Security (the “Preferred Securities”). Subject to the Declaration (as
defined below), the Preferred 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 Preferred
Securities represented hereby are issued pursuant to, and the designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Preferred 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
30, 2009 (the “Declaration”), by and among First United Corporation, as
Depositor, Wilmington Trust Company, as Property Trustee, Wilmington Trust
Company, as Delaware Trustee, William B. Grant, Carissa L. Rodeheaver, and Tonya
K. Sturm, as Administrative Trustees, 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 Preferred Securities as set forth in 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 and the Indenture to the extent provided
therein.  The Depositor will provide a copy of the Declaration, the
Guarantee, and the Indenture to the Holder without charge upon written request
to the Depositor at its principal place of business.

    


    By acceptance of this Certificate, the
Holder is bound by the Declaration and is entitled to the benefits
thereunder.  By acceptance of this Certificate, the Holder agrees to
treat, for United States federal income tax purposes, the Debentures as
indebtedness and the Preferred Securities as evidence of undivided beneficial
ownership in the Debentures.

    


    This Certificate and the Preferred
Securities evidenced hereby are governed by, and shall be construed in
accordance with, the laws of the State of Delaware, without regard to principles
of conflict of laws.

    


    This Certificate may contain more than
one counterpart of the signature page and this Certificate may be executed and
authenticated by the affixing of the signature of an Administrative Trustee on
behalf of the Trust, and the signature of the Property Trustee providing
authentication, 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 the Trust had executed, and the Property Trustee
had authenticated, a single signature page.

     

    
      
        
        

      

      
        C-2

        
          

        

      

      
        
        

      

    

     

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

    


    FIRST
UNITED STATUTORY TRUST III

    


    


    


    By:   ____________________________             

    Name:

    Title:

    


    


    CERTIFICATE
OF AUTHENTICATION

    


    This Certificate represents Preferred
Securities referred to in the within-mentioned Declaration.

    


    WILMINGTON
TRUST COMPANY,

    Not in
its individual capacity but solely as the

    Property
Trustee

    


    


    


    By:        ____________________________

                 
Authorized
Officer

    


    Dated:  ____________________________
            


    
      
        
        

      

      
        C-3

        
          

        

      

      
        
        

      

    

    


    [FORM OF
REVERSE OF SECURITY]

     

    Distributions payable on each Preferred
Security will be payable at a fixed rate of interest per annum, which, with
respect to any Distribution Period (as defined herein), will be 9.875% (the
“Coupon Rate”). Distributions in arrears for more than one Distribution Period
will bear interest thereon, compounded quarterly, at the applicable Coupon Rate
for each Distribution Period thereafter (to the extent permitted by applicable
law).  The term “Distributions,” as used herein, includes cash
Distributions, any such compounded Distributions and any Additional Amounts
payable on the Debentures, unless otherwise stated. A Distribution is payable
only to the extent that payments are made in respect of the Debentures held by
the Property Trustee and to the extent the Property Trustee has received funds
legally available therefor. The amount of Distributions payable for any
Distribution Period will be computed on the basis of a 360-day year of twelve
30-day months, and the amount payable for any partial period shall be computed
on the basis of the number of days elapsed in a 360-day year of twelve 30-day
months.

     

    Except as otherwise described below,
Distributions on the Preferred Securities will be cumulative, will accrue from
the date of original issuance and will be payable quarterly in arrears on March
15, June 15, September 15 and December 15 of each year, commencing on March 15,
2010 (each, a “Distribution Payment Date”), and on any earlier date of
redemption, subject, in each case, to the Business Day convention specified in
the Declaration. The Company has the right under the Indenture to defer payments
of interest on the Debentures by extending the interest payment period for up to
20 consecutive quarterly periods (each such extended interest payment period,
together with all previous and future consecutive extensions thereof, is
referred to herein as an “Extension Period”) at any time and from time to time
on the Debentures, subject to the conditions described below and in the
Declaration and the Indenture. No Extension Period may end on a date other than
a Distribution Payment Date or extend beyond the Maturity Date, any Optional
Redemption Date or the Special Redemption Date, as the case may be. During any
Extension Period, interest will continue to accrue on the Debentures, and
interest on such accrued interest (such accrued interest and interest thereon
referred to herein as “Deferred Interest”) will accrue, at an annual rate equal
to the Coupon Rate applicable during such Extension Period, compounded quarterly
from the date such Deferred Interest would have been payable were it not for the
Extension Period, to the extent permitted by applicable law. At the end of any
Extension Period, the Company shall pay all Deferred Interest then accrued and
unpaid on the Debentures; provided, however, that prior
to the termination of any Extension Period, the Debenture Issuer may further
extend such Extension Period, provided that no
Extension Period (including all previous and further consecutive extensions that
are part of such Extension Period) shall exceed 20 consecutive quarterly
periods. Upon the termination of any Extension Period and upon the payment of
all Deferred Interest, the Company may commence a new Extension Period, subject
to the requirements set forth herein and in the Declaration and the Indenture.
No interest or Deferred Interest (except any Additional Amounts that may be due
and payable) shall be due and payable during an Extension Period, except at the
end thereof, but Deferred Interest shall accrue upon each installment of
interest that would otherwise have been due and payable during such Extension
Period until such installment is paid.

     

    As a consequence of any Extension
Period, Distributions will be deferred.  If Distributions are
deferred, the Distributions due shall be paid on the date that the related
Extension Period terminates to Holders of the Preferred Securities as they
appear on the books and records of the Trust on the regular record date
immediately preceding the Distribution Payment Date on which such Extension
Period terminates to the extent that the Trust has funds legally available
therefor.

     

    
      
        
        

      

      
        C-4

        
          

        

      

      
        
        

      

    

     

    The Preferred Securities shall be
redeemable, and shall be entitled to the Liquidation Distribution, as provided
in the Declaration.

    


    ASSIGNMENT

    


    FOR VALUE RECEIVED, the undersigned
assigns and transfers the Preferred Securities evidenced by this Preferred
Security Certificate to:

    


    Name:

     

    
      ____________________________


    

    Assignee’s
Social Security or Taxpayer Identification Number:

     

    
      ____________________________


    

    Assignee’s
address and zip code:

     

    
      ____________________________


    

    and
irrevocably appoints ________________________________________________________ as
agent to transfer the Preferred Securities evidenced by this Preferred Security
Certificate on the books of the Trust. The agent may substitute another to act
for it, him or her.

    


    Date:
_____________________________

    


    Signature:    ______________________________________________________
             
(Sign
exactly as your name appears on the Common Security Certificate)

    


    Signature
Guaranty: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.

       

      
        
          
          

        

        
          C-5

          
            

          

        

        
          
          

        

      

    

     

    EXHIBIT
D

    


    FORM OF
TRANSFEREE CERTIFICATE

    


    


    Wilmington
Trust Company, as Securities Registrar

    1100
North Market

    Wilmington,
Delaware 19890-0001

    ATTN:
Corporate Trust Administration

     

    Re:           Acquisition
of $[_________] liquidation amount of Preferred Securities (the “PreferredSecurities”) of First United Statutory
Trust III (the “Trust”)

    


    Ladies
and Gentlemen:

    


    In connection with our acquisition from
_________________ of the outstanding Preferred Securities identified above, we
confirm that:

     

    1.           We
understand that the Preferred Securities of the Trust have not been registered
under the Securities Act of 1933, as amended (the “Securities Act”), or the blue
sky laws of any state or other jurisdiction (the “State Acts”) and may not be
offered or sold except as permitted in the following sentence.  We
agree on our own behalf and on behalf of any investor account for which we are
purchasing the Preferred Securities that, if we decide to offer, sell or
otherwise transfer any such Preferred Securities, then such offer, sale or other
transfer will be made only (a) to First United Corporation (the “Company”) or
the Trust, or (b) pursuant to an exemption from the registration requirements
under the Securities Act and the State Acts, and in each of the foregoing cases
in accordance with the Securities Act, the applicable State Acts and any
requirements of law that govern the disposition of our property.  We
acknowledge on our behalf and on behalf of any investor account for which we are
purchasing Preferred Securities that the Company and the Trust reserve the right
prior to any offer, sale or other transfer pursuant to clause (b) to require the
delivery of any opinion of counsel, certifications and/or other information
satisfactory to the Company and the Trust.  We understand that the
certificates for any Preferred Securities that we receive will bear a legend
substantially to the effect of the foregoing.

     

    2.           We
are acquiring the Preferred Securities purchased by us for our own account (or
for one or more accounts as to each of which we exercise sole investment
discretion and have authority to make, and do make, the statements contained in
this letter) and not with a view to any distribution of the Preferred Securities
in violation of the Securities Act or any of the State Acts, subject,
nevertheless, to the understanding that the disposition of our property will at
all times be and remain within our control.

     

    3.           We
represent and warrant that we are not (i) an employee benefit plan subject to
the Employee Retirement Income Security Act of 1974, as amended, or Internal
Revenue Code (the “Code”) Section 4975 (a “Plan”) or (ii) an entity whose assets
are deemed to be assets of such a Plan.

     

    4.           We
represent and warrant that if we are an Individual Retirement Account that is
neither a Plan nor an entity whose assets are deemed to be assets of a Plan, our
purchase and holding of the Preferred Securities is not prohibited by Section
4975 of the Code.

     

    You are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy thereof
to any interested party in any administrative or legal proceeding or other
inquiry with respect to matters covered hereby.

     

    
      
        
        

      

      
        D-1

        
          

        

      

      
        
        

      

    

    
 

      

     

                                  

      
                                                                                              _________________________________


    

    (Name of Purchaser)

    


    By:______________________________     

    


    Date:_____________________________            

    


    Upon transfer, the Preferred Securities
should be registered in the name of the new beneficial owner as
follows.

    


    Name:
____________________________________             

    


    Address: __________________________________                       

    


    Taxpayer
Identification Number:
_________________                                                       

    
 

     

    D-2