exv4w13






Exhibit 4.13


 



AMENDED AND RESTATED DECLARATION OF TRUST




Among



EVANS BANCORP, INC.,

as Sponsor



WILMINGTON TRUST COMPANY,

as Property Trustee



WILMINGTON TRUST COMPANY,

as Delaware Trustee



and



THE ADMINISTRATIVE TRUSTEES NAMED HEREIN



Dated as of                     



EVANS CAPITAL TRUST II



 

 









 





Certain Sections of this Declaration of Trust relating to Sections 310 through 318

of the Trust Indenture Act of 1939:




	 	 	 	 	 	 	 	 	 
	Trust Indenture	 	 	 	Declaration of
	Act Section	 	 	 	Trust Section
	 	(§) 310	 	 	(a)(1)
	 	 	8.7	 
	 	 	 	 	(a)(2)
	 	 	8.7	 
	 	 	 	 	(a)(3)
	 	 	8.9	 
	 	 	 	 	(a)(4)
	 	2.7(a)(ii)
	 	 	 	 	(b)
	 	 	8.8	 
	 	(§) 311	 	 	(a)
	 	 	8.13	 
	 	 	 	 	(b)
	 	 	8.13	 
	 	(§) 312	 	 	(a)
	 	 	5.8	 
	 	 	 	 	(b)
	 	 	5.8	 
	 	 	 	 	(c)
	 	 	5.8	 
	 	(§) 313	 	 	(a)
	 	 	8.15	(a)
	 	 	 	 	(a)(4)
	 	 	8.15	(b)
	 	 	 	 	(b)
	 	 	8.15	(b)
	 	 	 	 	(c)
	 	 	10.8	 
	 	 	 	 	(d)
	 	 	8.15	(c)
	 	(§) 314	 	 	(a)
	 	 	8.16	 
	 	 	 	 	(b)
	 	Not Applicable
	 	 	 	 	(c)(1)
	 	 	8.17	 
	 	 	 	 	(c)(2)
	 	 	8.17	 
	 	 	 	 	(c)(3)
	 	Not Applicable
	 	 	 	 	(d)
	 	Not Applicable
	 	 	 	 	(e)
	 	 	1.1, 8.17	 
	 	(§) 315	 	 	(a)
	 	 	8.1(a), 8.3	(a)
	 	 	 	 	(b)
	 	 	8.2, 10.8	 
	 	 	 	 	(c)
	 	 	8.1	(d)
	 	 	 	 	(d)
	 	 	8.1, 8.3	 
	 	 	 	 	(e)
	 	 	10.1	 
	 	 	 	 	(a)
	 	Not Applicable
	 	(§) 316	 	 	(a)(1)(A)
	 	8.1(e)(iii)
	 	 	 	 	(a)(1)(B)
	 	 	5.13	(b)
	 	 	 	 	(a)(2)
	 	Not Applicable
	 	 	 	 	(b)
	 	 	5.13	 
	 	 	 	 	(c)
	 	 	6.7	 
	 	(§) 317	 	 	(a)(1)
	 	Not Applicable
	 	 	 	 	(a)(2)
	 	Not Applicable
	 	 	 	 	(b)
	 	 	5.10	 
	 	(§) 318	 	 	(a)
	 	 	10.10	 






 




Note: This reconciliation and tie sheet shall not, for any purpose, be deemed to be a part of the
Declaration of Trust.








 









 








TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I
	 
	 
	 	 	 	 
	DEFINED TERMS
	 
	 
	 	 	 	 
	Section 1.1. Definitions. 
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II
	 
	 
	 	 	 	 
	CONTINUATION OF THE ISSUER TRUST
	 
	 
	 	 	 	 
	Section 2.1. Name
	 	 	7	 
	Section 2.2. Office of the Delaware Trustee; Principal Place of Business
	 	 	7	 
	Section 2.3. Initial Contribution of Trust Property; Organizational Expenses
	 	 	7	 
	Section 2.4. Issuance of the Preferred Securities
	 	 	7	 
	Section 2.5. Issuance of the Common Securities; Subscription and Purchase of Debentures
	 	 	8	 
	Section 2.6. Continuation of Trust
	 	 	8	 
	Section 2.7. Authorization to Enter into Certain Transactions
	 	 	8	 
	Section 2.8. Assets of Trust
	 	 	11	 
	Section 2.9. Title to Trust Property
	 	 	11	 
	ARTICLE III
	 
	 
	PAYMENT ACCOUNT
	 
	Section 3.1. Payment Account. 
	 	 	11	 
	 
	 	 	 	 
	ARTICLE IV
	 
	 
	 	 	 	 
	DISTRIBUTIONS; REDEMPTION
	 
	 
	 	 	 	 
	Section 4.1. Distributions
	 	 	11	 
	Section 4.2. Redemption
	 	 	12	 
	Section 4.3. Subordination of Common Securities
	 	 	13	 
	Section 4.4. Payment Procedures
	 	 	14	 
	Section 4.5. Tax Returns and Reports
	 	 	14	 
	Section 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust
	 	 	14	 
	Section 4.7. Payments under Indenture or Pursuant to Direct Actions
	 	 	14	 
	Section 4.8. Liability of the Holder of Common Securities
	 	 	14	 
	 
	 	 	 	 
	ARTICLE V
	 
	 
	 	 	 	 
	TRUST SECURITIES CERTIFICATES
	 
	 
	 	 	 	 
	Section 5.1. Initial Ownership
	 	 	14	 
	Section 5.2. The Trust Securities Certificates
	 	 	15	 
	Section 5.3. Execution, Delivery and Authentication of Trust Securities Certificates
	 	 	15	 
	Section 5.4. Book-Entry Preferred Securities
	 	 	15	 
	Section 5.5. Registration of Transfer and Exchange of Preferred Securities Certificates
	 	 	17	 
	Section 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates
	 	 	18	 
	Section 5.7. Persons Deemed Holders
	 	 	18	 






i









 






	 	 	 	 	 
	Section 5.8. Access to List of Holders’ Names and Addresses
	 	 	18	 
	Section 5.9. Maintenance of Office or Agency
	 	 	18	 
	Section 5.10. Appointment of Paying Agent
	 	 	18	 
	Section 5.11. Ownership of Common Securities by Sponsor
	 	 	19	 
	Section 5.12. Notices to Clearing Agency
	 	 	19	 
	Section 5.13. Rights of Holders; Waivers of Past Defaults
	 	 	19	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 
	ACTS OF HOLDERS; MEETINGS; VOTING
	 	 	 	 
	 
	 	 	 	 
	Section 6.1. Limitations on Voting Rights
	 	 	20	 
	Section 6.2. Notice of Meetings
	 	 	21	 
	Section 6.3. Meetings of Holders of the Preferred Securities
	 	 	21	 
	Section 6.4. Voting Rights
	 	 	21	 
	Section 6.5. Proxies, etc
	 	 	22	 
	Section 6.6. Holder Action by Written Consent
	 	 	22	 
	Section 6.7. Record Date for Voting and Other Purposes
	 	 	22	 
	Section 6.8. Acts of Holders
	 	 	22	 
	Section 6.9. Inspection of Records
	 	 	23	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 
	REPRESENTATIONS AND WARRANTIES
	 	 	 	 
	 
	 	 	 	 
	Section 7.1. Representations and Warranties of the Property Trustee and the Delaware Trustee
	 	 	23	 
	Section 7.2. Representations and Warranties of Sponsor
	 	 	24	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 
	 	 	 	 
	THE ISSUER TRUSTEES
	 	 	 	 
	 
	 	 	 	 
	Section 8.1. Certain Duties and Responsibilities
	 	 	24	 
	Section 8.2. Certain Notices
	 	 	25	 
	Section 8.3. Certain Rights of Property Trustee
	 	 	25	 
	Section 8.4. Not Responsible for Recitals or Issuance of Securities
	 	 	27	 
	Section 8.5. May Hold Securities
	 	 	27	 
	Section 8.6. Compensation; Indemnity; Fees
	 	 	27	 
	Section 8.7. Corporate Property Trustee Required; Eligibility of Issuer Trustees
	 	 	27	 
	Section 8.8. Conflicting Interests
	 	 	28	 
	Section 8.9. Co-Trustees and Separate Trustee
	 	 	28	 
	Section 8.10. Resignation and Removal; Appointment of Successor
	 	 	29	 
	Section 8.11. Acceptance of Appointment by Successor
	 	 	30	 
	Section 8.12. Merger, Conversion, Consolidation or Succession to Business
	 	 	30	 
	Section 8.13. Preferential Collection of Claims Against Sponsor or Issuer Trust
	 	 	30	 
	Section 8.14. Property Trustee May File Proofs of Claim
	 	 	30	 
	Section 8.15. Reports by Property Trustee
	 	 	31	 
	Section 8.16. Reports to the Property Trustee
	 	 	31	 
	Section 8.17. Evidence of Compliance with Conditions Precedent
	 	 	31	 
	Section 8.18. Number of Issuer Trustees
	 	 	31	 
	Section 8.19. Delegation of Power
	 	 	32	 
	Section 8.20. Appointment of Administrative Trustees
	 	 	32	 






ii









 






	 	 	 	 	 
	ARTICLE IX
	 	 	 	 
	 
	 	 	 	 
	TERMINATION, LIQUIDATION AND MERGER
	 	 	 	 
	 
	 	 	 	 
	Section 9.1. Dissolution Upon Expiration Date
	 	 	32	 
	Section 9.2. Early Dissolution
	 	 	32	 
	Section 9.3. Termination
	 	 	33	 
	Section 9.4. Liquidation
	 	 	33	 
	Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of Issuer Trust
	 	 	34	 
	 
	 	 	 	 
	ARTICLE X
	 	 	 	 
	 
	 	 	 	 
	MISCELLANEOUS PROVISIONS
	 	 	 	 
	 
	 	 	 	 
	Section 10.1. Limitation of Rights of Holders
	 	 	34	 
	Section 10.2. Amendment
	 	 	34	 
	Section 10.3. Separability
	 	 	35	 
	Section 10.4. Governing Law
	 	 	35	 
	Section 10.5. Payments Due on Non-Business Day
	 	 	35	 
	Section 10.6. Successors
	 	 	36	 
	Section 10.7. Headings
	 	 	36	 
	Section 10.8. Reports, Notices and Demands
	 	 	36	 
	Section 10.9. Agreement Not to Petition
	 	 	36	 
	Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act
	 	 	36	 
	Section 10.11. Acceptance of Terms of Declaration of Trust, Guarantee Agreement and Indenture
	 	 	37	 
	Section 10.12. Counterparts
	 	 	37	 
	Section 10.13. Force Majeure
	 	 	37	 






	 	 	 
	Exhibit A

	 	Certificate of Trust
	Exhibit B

	 	Form of Common Securities Certificate
	Exhibit C

	 	Form of Expense Agreement
	Exhibit D

	 	Form of Preferred Securities Certificate






iii









 





     AMENDED AND RESTATED DECLARATION OF TRUST, dated as of                      among EVANS BANCORP, INC.,
a New York corporation (including any successors or assigns, the “Sponsor”), WILMINGTON TRUST
COMPANY, as property trustee (in such capacity, the “Property Trustee”), WILMINGTON TRUST COMPANY,
as Delaware trustee (in such capacity, the “Delaware Trustee”), David J. Nasca, an individual, Gary
A. Kajtoch, an individual, and John B. Connerton, an individual, each of whose address is c/o Evans
Bancorp, Inc., 14-16 North Main Street, Angola, New York 14006 (each an “Administrative Trustee”
and collectively the “Administrative Trustees”) (the Property Trustee, the Delaware Trustee and the
Administrative Trustees being referred to collectively as the “Issuer Trustees"'), and the several
Holders, as hereinafter defined.



WITNESSETH:



     WHEREAS, the Sponsor and the Issuer Trustees have heretofore duly declared and established a
statutory trust under the name “Evans Capital Trust II” pursuant to the Delaware Statutory Trust
Act by entering into the Declaration of Trust, dated as of March 23, 2010 (the “Original
Declaration of Trust”), and by the execution and filing by the Issuer Trustees with the Secretary
of State of the State of Delaware of the Certificate of Trust, filed on March ___, 2010, attached as
Exhibit A;



     WHEREAS, the parties hereto desire to amend and restate the Original Declaration of Trust in
its entirety as set forth herein to provide for, among other things, (i) the issuance of the Common
Securities by the Issuer Trust to the Sponsor, (ii) the issuance and sale of the Preferred
Securities by the Issuer Trust pursuant to the Underwriting Agreement, (iii) the acquisition by the
Issuer Trust from the Sponsor of all of the right, title and interest in the Debentures; and (iv)
the appointment of the Issuer Trustees;



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



ARTICLE I DEFINED

TERMS



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



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



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



          (c) The words “include”, “includes” and “including” are deemed to be followed by the phrase
“without limitation”;



          (d) All accounting terms used but not defined herein have the meanings assigned to them in
accordance with United States generally accepted accounting principles;



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



          (f) The words “hereby”, “herein”, “hereof and “hereunder” and other words of similar
import refer to this Declaration of Trust 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 (as defined in the Indenture) paid by the
Sponsor on a Like Amount of Debentures for such period.



     “Additional Sums” has the meaning specified in Section 10.6 of the Indenture.



1









 





     “Administrative Trustee” means each of the Persons appointed in accordance with Section 8.20
solely in such Person’s capacity as Administrative Trustee of the Issuer Trust and not in such
Person’s individual capacity, or any successor Administrative Trustee appointed as herein provided.



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



     “Applicable Procedures” means, with respect to any transfer or transaction involving a
Book-Entry Preferred Security, the rules and procedures of the Clearing Agency for such Book-Entry
Preferred Security, in each case to the extent applicable to such transaction and as in effect from
time to time.



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



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



          (b) the institution by such Person of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against
it, or the filing by it of a petition or answer or consent seeking reorganization or relief under
any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or similar official) of such Person or of any substantial part of
its property, or the making by it of an assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts generally as they become due or its willingness
to be adjudicated a bankrupt, or the taking of corporate action by such Person in furtherance of
any such action.



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



     “Board of Directors” means either the board of directors of the Sponsor or any committee of
that board duly authorized to act hereunder.



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



     “Book-Entry Preferred Securities Certificate” means a Preferred Securities Certificate
evidencing ownership of Book-Entry Preferred Securities.



     “Book-Entry Preferred Security” means a Preferred Security, the ownership and transfers of
which shall be made through book entries by a Clearing Agency as described in Section 5.4.



     “Business Day” means any day other than a Saturday, Sunday, or any other day on which banking
institutions and trust companies in New York, New York or Wilmington, Delaware, are permitted or
required by any applicable law to close.



     “Certificate Depository Agreement means the agreement among the Issuer Trust, the Sponsor and
DTC, as the initial Clearing Agency, dated as of the Closing Date.



     “Clearing Agency” means an organization registered as a “clearing agency” pursuant to Section
17A of the



2









 




Securities Exchange Act of 1934, as amended. DTC will be the initial Clearing Agency.




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



     “Closing Date” has the meaning given to such term in the Underwriting Agreement, which date is
also the date of execution and delivery of this Declaration of Trust.



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



     “Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the 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 a common undivided beneficial interest in assets of the Issuer Trust,
having a Liquidation Amount of $___ and having the rights provided therefor in this Declaration
of Trust, including the right to receive Distributions and a Liquidation Distribution to the extent
provided herein.



     “Corporate Trust Office” means (i) when used with respect to the Property Trustee, the
principal office of the Property Trustee at which at any particular time its corporate trust
business is administered, and (ii) when used with respect to the Debenture Trustee, the principal
office of the Debenture Trustee at which at any particular time its corporate trust business is
administered.



     “Debenture Event of Default” means any “Event of Default” specified in Section 5.1 of the
Indenture.



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



     “Debenture Trustee” means the Person identified as the “Trustee” in the Indenture, solely in
its capacity as Trustee pursuant to the Indenture and not in its individual capacity, or its
successor in interest in such capacity, or any successor Trustee appointed as provided in the
Indenture.



     “Debentures” means the Sponsor’s ___% Junior Subordinated Notes due ___, issued pursuant
to the Indenture.



     “Declaration of Trust” means this Amended and Restated Declaration of Trust, as the same may
be modified, amended or supplemented in accordance with the applicable provisions hereof, including
(i) all exhibits, and (ii) for all purposes of this Declaration of Trust 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 of Trust and any such modification, amendment or supplement,
respectively.



     “Definitive Preferred Securities Certificates” means either or both (as the context requires)
of (i) Preferred Securities Certificates issued as Book-Entry Preferred Securities Certificates as
provided in Section 5.2 or 5.4, and (ii) Preferred Securities Certificates issued in certificated,
fully registered form as provided in Section 5.2, 5.4 or 5.5.



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



     “Delaware Trustee” means the Person identified as the “Delaware Trustee” in the preamble to
this Declaration of Trust, solely in its capacity as Delaware Trustee of the Trust and not in its
individual capacity, or its successor in interest in such capacity, or any successor Delaware
Trustee appointed as herein provided.



3









 





     “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.



     “DTC” means The Depository Trust Company. “Early Dissolution Event” has the meaning specified
in Section 9.2.



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



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



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



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



          (d) default in the performance, or breach, in any material respect, of any covenant or
warranty of the Issuer Trustees in this Declaration of Trust (other than those specified in clause
(b) or (c) above) and continuation of such default or breach for a period of 90 days after there
has been given, by registered or certified mail, to the Issuer Trustees and to the Sponsor 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 if a
successor Property Trustee has not been appointed within 90 days thereof.



     “Exchange Act” means the Securities Exchange Act of 1934, and any successor statute thereto,
in each case as amended from time to time.



     “Expense Agreement” means the Agreement as to Expenses and Liabilities, dated as of the
Closing Date, between the Sponsor and the Issuer Trust, substantially in the form attached as
Exhibit C, as amended from time to time.



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



     “Federal Reserve” means the Board of Governors of the Federal Reserve System, as from time to
time constituted, or if at any time after the execution of this Declaration of Trust the Federal
Reserve is not existing and performing the duties now assigned to it, then the bodies performing
such duties at such time, or the Federal Reserve Bank of Chicago, or any successor Federal reserve
bank having primary jurisdiction over the Sponsor.



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



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



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



     “Issuer Trust” means the Delaware statutory trust heretofore known as “Evans Capital Trust
II,” which was formed on March ___, 2010 under the Delaware Statutory Trust Act pursuant to the
Original Declaration of Trust and the filing of the Certificate of Trust, and continued pursuant to
this Declaration of Trust under the name “Evans Capital Trust II”.



4









 





     “Issuer Trustees” has the meaning specified in the preamble to this Declaration of Trust.



     “Investment Company Act” means the Investment Company Act of 1940, or any successor statute
thereto, in each case as amended from time to time.



     “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 any Trust Securities, Trust Securities
having a Liquidation Amount equal to the principal amount of Debentures to be contemporaneously
redeemed in accordance with the Indenture, the proceeds of which will be used to pay the Redemption
Price of such Trust Securities, (b) with respect to a distribution of Debentures to Holders of
Trust Securities in connection with a dissolution or liquidation of the Issuer Trust, Debentures
having a principal amount equal to the Liquidation Amount of the Trust Securities of the Holder to
whom such Debentures are distributed, and (c) with respect to any distribution of Additional
Amounts to Holders of Trust Securities, Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities in respect of which such distribution is made.



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



     “Liquidation Date” means the date of the -dissolution of the Issuer Trust pursuant to Section
9.4.



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



     “Majority in Liquidation Amount of the Preferred Securities” or “Majority in Liquidation
Amount of the Common Securities” means, except as provided by the Trust Indenture Act, Preferred
Securities or Common Securities, as the case may be, representing more than 50% of the aggregate
Liquidation Amount of all then Outstanding Preferred Securities or Common Securities, as the case
may be.



     “Officers’ Certificate” means a certificate signed by the Chairman of the Board of Directors,
the Chairman of the Executive Committee of the Board of Directors, the Chief Executive Officer, the
President, the Chief Operating Officer, a Vice Chairman or a Vice President, the Treasurer, an
Assistant Treasurer, the Secretary, an Assistant Secretary or the Comptroller of the Company of the
Sponsor, and delivered to the Issuer Trustees. Any Officers’ Certificate delivered with respect to
compliance with a condition or covenant provided for in this Declaration of Trust shall include:



          (a) a statement by each officer signing the Officers’ Certificate that such officer 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 such officer has made such examination or investigation as, in such
officer’s opinion, is necessary to enable each 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 officer, such condition or


covenant has been complied with.




     “Opinion of Counsel” means a written opinion of outside counsel, experienced in matters
similar to the relevant matter who may be counsel for the Sponsor or an Affiliate of the Sponsor.



     “Option Closing Date” has the meaning given to such term in the Underwriting Agreement.



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



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



5









 





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



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



          (c) Trust Securities that have been paid or in exchange for or in lieu of which other
Trust Securities have been executed and delivered pursuant to Sections 5.4, 5.5, 5.6 and 5.11;
provided, however, that in determining whether the Holders of the requisite Liquidation Amount of
the Outstanding Preferred Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder. Preferred Securities owned by the Sponsor, any Issuer Trustee
or any Affiliate of the Sponsor or of any Issuer Trustee shall be disregarded and deemed not to be
Outstanding, except that (a) in determining whether any Issuer Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice, consent or waiver, only
Preferred Securities that such Issuer Trustee knows to be so owned shall be so disregarded, and (b)
the foregoing shall not apply at any time when all of the outstanding Preferred Securities are
owned by the Sponsor, one or more of the Issuer Trustees and/or any such Affiliate. Preferred
Securities so owned that 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 that the pledgee is not the Sponsor or any
Affiliate of the Sponsor.



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



     “Paying Agent” means any paying agent or co-paying agent appointed pursuant to Section 5.10
and shall initially be Wilmington Trust Company.



     “Payment Account” means a segregated non-interest-bearing corporate trust account maintained
by or on behalf of the Property Trustee for the benefit of the Holders in which all amounts paid in
respect of the Debentures will be held and from which the Property Trustee, through the Paying
Agent, shall make payments to the Holders 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, company, limited liability company, trust,
unincorporated association, or government or any agency or political subdivision thereof, or any
other entity of whatever nature.



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



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



     “Property Trustee” means the Person identified as the “Property Trustee” in the preamble to
this Declaration of Trust, solely in its capacity as Property Trustee of the Trust and not in its
individual capacity, or its successor in interest in such capacity, or any successor Property
Trustee appointed as herein provided.



     “Prospectus” means the prospectus, dated ___, 2010, of the Sponsor and the Issuer Trust
relating to the offering of the Preferred Securities, as supplemented by the prospectus supplement,
dated                     .



     “Redemption Date” means, with respect to any Trust Security to be redeemed, the date fixed for
such redemption by or pursuant to this Declaration of Trust; 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.



     “Redemption Price” means, with respect to any Trust Security, the Liquidation Amount of such
Trust Security, plus accumulated and unpaid Distributions to the Redemption Date, plus the related
amount of the premium, if any, paid by the Sponsor upon the concurrent redemption of a Like Amount
of Debentures.



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     “Relevant Trustee” has the meaning specified in Section 8.10.



     “Responsible Officer” means, with respect to the Property Trustee, any officer of the Property
Trustee assigned to its corporate trust services department, or with respect to a particular
corporate trust matter, any officer to whom such matter is referred because of such officer’s
knowledge and familiarity with the particular subject.



     “Securities Act” means the Securities Act of 1933, and any successor statute thereto, in each
case as amended from time to time.



     “Securities Register” and “Securities Registrar” have the respective meanings specified in
Section 5.5.



     “Sponsor” has the meaning specified in the preamble to this Declaration of Trust.



     “Trust Indenture Act” means the Trust Indenture Act of 1939 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 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) any cash on deposit in, or owing to, the
Payment Account, and (c) all proceeds and rights in respect of the foregoing and any other property
and assets for the time being held or deemed to be held by the Property Trustee pursuant to the
trusts of this Declaration of Trust.



     “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.



     “Underwriting Agreement means the Underwriting Agreement, dated as of                     ,
among the Issuer Trust, the Sponsor and the Underwriters named therein, as the same may be amended
from time to time.



ARTICLE II CONTINUATION OF THE ISSUER TRUST



     Section 2.1 Name. The trust established under the Original Declaration of Trust under the
name “Evans Capital Trust II” and continued hereby shall hereafter be known as “Evans Capital Trust
II”, 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 Issuer Trustees, in which name the
Issuer Trustees may conduct the business of the Issuer Trust, make and execute contracts and other
instruments on behalf of the Issuer 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 Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19801, Attention: Corporate Trust Administration, or such other address in the
State of Delaware as the Delaware Trustee may designate by written notice to the Holders, the
Sponsor, the Property Trustee and the Administrative Trustees. The principal executive office of
the Issuer Trust is c/o Evans Bancorp, Inc., 14-16 North Main Street, Angola, New York 14006.



     Section 2.3 Initial Contribution of Trust Property; Organizational Expenses. The Sponsor
deposited the sum of $10 in connection with the Original Declaration of Trust, which constituted
the initial Trust Property. The Sponsor shall pay organizational expenses of the Issuer Trust as
they arise and shall, upon request of any Issuer Trustee, promptly reimburse such Issuer Trustee
for any such expenses paid by such Issuer Trustee. The Sponsor shall make no claim upon the Trust
Property for the payment of such expenses.



     Section 2.4 Issuance of the Preferred Securities. The Sponsor, both on its own behalf and
on behalf of the Issuer Trust pursuant to the Original Declaration of Trust, executed and delivered
the Underwriting Agreement, which action is hereby authorized, approved, ratified and confirmed in
all respects. Contemporaneously with the execution and delivery of this Declaration of Trust, an
Administrative Trustee, on behalf of the Issuer Trust, shall manually execute in accordance with
Sections 5.2, 5.3 and 8.9(a) and deliver to the Property Trustee for authentication and the
Property Trustee shall deliver to the Underwriters, a Preferred Securities Certificate, registered
in the name as set forth in Section 5.2(b), evidencing an aggregate of                      Preferred
Securities having an aggregate Liquidation Amount of $                    , against receipt of the
aggregate purchase price of such



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Preferred Securities of $                    , by the Property Trustee.




     Section 2.5 Issuance of the Common Securities; Subscription and Purchase of Debentures.
Contemporaneously with the execution and delivery of this Declaration of Trust, an Administrative
Trustee, on behalf of the Issuer Trust, shall execute in accordance with Sections 5.2, 5.3 and
8.9(a) and the Property Trustee shall deliver to the Sponsor, Common Securities Certificates,
registered in the name of the Sponsor, evidencing an aggregate of                      Common Securities having an
aggregate Liquidation Amount of $___, against receipt of the aggregate purchase price of such
Common Securities of $___, by the Property Trustee. Contemporaneously therewith, an
Administrative Trustee, on behalf of the Issuer Trust, shall subscribe for and purchase from the
Sponsor the Debentures, registered in the name of the Property Trustee on behalf of the Issuer
Trust and having an aggregate principal amount equal to $___, and, in satisfaction of the
purchase price for such Debentures, the Property Trustee, on behalf of the Issuer Trust, shall
deliver to the Sponsor the sum of $___ (being the sum of the amounts delivered to the
Property Trustee pursuant to (i) the second sentence of Section 2.4, and (ii) the first sentence of
this Section 2.5).



     Section 2.6 Continuation of Trust. The exclusive purposes and functions of the Issuer 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 or incidental thereto. The Sponsor
hereby appoints the Delaware Trustee, the Property Trustee and the Administrative Trustees as
trustees of the Issuer Trust, to have all the rights, powers and duties to the extent set forth
herein, and the respective Issuer Trustees hereby accept such appointment. The Property Trustee
hereby declares that it will hold the Trust Property in trust upon and subject to the conditions
set forth herein for the benefit of the Issuer Trust and the Holders. 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 Issuer 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 Issuer Trust for the sole and limited purpose
of fulfilling the requirements of Section 3807 of the Delaware Statutory Trust Act and for taking
such actions as are required to be taken by a Delaware trustee under the Delaware Statutory Trust
Act.



     Section 2.7 Authorization to Enter into Certain Transactions.



          (a) The Issuer Trustees shall conduct the affairs of the Issuer Trust in accordance with
the terms of this Declaration of Trust. Subject to the limitations set forth in paragraph (b) of
this Section, and in accordance with the following provisions (i) and (ii), the Issuer Trustees
shall have the authority to enter into all transactions and agreements determined by the Issuer
Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to
the Issuer Trustees, as the case may be, under this Declaration of Trust, and to perform all acts
in furtherance thereof, including, the following:



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




          (A) the preparation and filing by the Issuer Trust with the Commission and
the execution on behalf of the Issuer Trust of a registration statement on the
appropriate form in relation to the Preferred Securities, including any amendments
thereto and the taking of any action necessary or desirable to sell the Preferred
Securities in a transaction or a series of transactions pursuant thereto;




          (B) the issuance and sale of the Trust Securities;




          (C) causing the Issuer Trust to perform the transactions
contemplated by and its obligations under the Underwriting Agreement and causing the
Issuer Trust to enter into, and to execute, deliver and perform the Expense Agreement
and the Certificate Depository Agreement and such other agreements as may be necessary
or desirable in connection with the purposes and function of the Issuer Trust;




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



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




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




          (G) the consent to the appointment of a Paying Agent, authenticating agent and
Securities Registrar in accordance with this Declaration of Trust (which consent shall
not be unreasonably withheld);




          (H) the execution of the Trust Securities on behalf of the Issuer Trust in
accordance with this Declaration of Trust;




          (I) the execution and delivery of closing certificates, if any, pursuant to
the Underwriting Agreement and application for a taxpayer identification number for
the Issuer Trust;




          (J) to the extent provided herein, the winding-up of the affairs of and the
liquidation of the Issuer Trust and the preparation and filing of the certificate of
cancellation with the Secretary of State of the State of Delaware.




          (K) unless otherwise required by the Delaware Statutory Trust Act or the Trust
Indenture Act, executing on behalf of the Issuer Trust (either acting alone or
together with the other Administrative Trustee) any documents that the Administrative
Trustees have the power to execute pursuant to this Declaration of Trust;
and




          (L) the taking of any action incidental to the foregoing as the Issuer
Trustees may from time to time determine to be necessary or advisable to give
effect to the terms of this Declaration of Trust.



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




          (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 and the holding of such amounts in the Payment Account;




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




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




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




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




          (H) to the extent provided in this Declaration of Trust, the winding up
of the affairs of and liquidation of the Issuer Trust;




          (I) performing the duties of the Property Trustee set forth in this
Declaration of Trust;



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               (J) after an Event of Default (other than under paragraph (b), (c), (d) or
(e) of the definition of such term if such Event of Default is by or with respect to
the Property Trustee) 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 of Trust and protect and conserve the Trust
Property for the benefit of the Holders (without consideration of the effect of any
such action on any particular Holder); and




               (K) any of the duties, liabilities, powers or the authority of the
Administrative Trustees set forth herein; and in the event of a conflict between the
action of the Administrative Trustees and the action of the Property Trustee, the
action of the Property Trustee shall prevail.



          (b) So long as this Declaration of Trust remains in effect, the Issuer Trust (or the
Issuer Trustees acting on behalf of the Issuer Trust) shall not undertake any business, activities
or transaction except as expressly provided herein or contemplated hereby. In particular, the
Issuer Trustees shall not (i) acquire any investments or engage in any activities not authorized by
this Declaration of Trust, (ii) sell, assign, transfer, exchange, mortgage, pledge, set off or
otherwise dispose of any of the Trust Property or interests therein, including to Holders, except
as expressly provided herein, (iii) take any action that would reasonably be expected to cause the
Issuer Trust to be classified as an association taxable as a corporation or classified as other
than 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 Issuer Trust or the Holders in their capacity as Holders.



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




               (i) the preparation and filing by the Issuer Trust with the Commission and the
execution on behalf of the Issuer Trust of a registration statement on the appropriate form
in relation to the Preferred Securities, including any amendments thereto and the taking of
any action necessary or desirable to sell the Preferred Securities in a transaction or a
series of transactions pursuant thereto;




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




               (iii) the preparation for filing by the Issuer Trust and execution on behalf of the
Issuer Trust of an application to the Nasdaq Global Select Market or any other national
securities exchange for listing upon notice of issuance of any Preferred Securities;




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




               (v) the preparation and execution of a Letter of Representation to the
Depository Trust Company on behalf of the Issuer Trust;




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




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



          (d) Notwithstanding anything herein to the contrary, the Issuer Trustees are authorized and



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directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that
the Issuer Trust will not be deemed to be an “investment company” required to be registered under
the Investment Company Act, and will not be taxable as a corporation or classified as other than a
grantor trust for United States Federal income tax purposes and so that the Debentures will be
treated as indebtedness of the Sponsor for United States Federal income tax purposes. In this
connection, each Administrative Trustee, the Property Trustee and the Holders of at least a
Majority in Liquidation Amount of the Common Securities are authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust, or this Declaration of Trust, that such
Administrative Trustee, the Property Trustee or Holders of Common Securities determine in their
discretion to be necessary or desirable for such purposes, as long as such action does not
adversely affect in any material respect the interests of the Holders of the Outstanding Preferred
Securities. In no event shall the Issuer Trustees be liable to the Issuer Trust or the Holders for
any failure to comply with this section or Section 2.7(b) (iii) that results from a change in law
or regulation or in the interpretation by a governmental authority thereof.




     Section 2.8 Assets of Trust. The assets of the Issuer 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 in trust for the benefit of the Issuer Trust and the Holders in accordance
with this Declaration of Trust.



ARTICLE III PAYMENT 

ACCOUNT



     Section 3.1 Payment Account.



          (a) On or prior to the Closing Date, the Property Trustee shall establish the Payment
Account with the Paying Agent. The Property Trustee and its agents shall have exclusive control and
sole right of withdrawal with respect to the Payment Account for the purpose of making deposits in
and withdrawals from the Payment Account in accordance with this Declaration of Trust. 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 Holders and for
distribution as herein provided, including (and subject to) any priority of payments provided for
herein.



          (b) The Property Trustee shall deposit (or cause to be deposited) 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 be invested
by the Property Trustee pending distribution thereof.



ARTICLE IV DISTRIBUTIONS; 

REDEMPTION




     Section 4.1 Distributions.



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




          (i) Distributions on the Trust Securities shall be cumulative, and will accumulate
whether or not there are funds of the Issuer Trust available for the payment of
Distributions. Distributions shall accumulate from                                         , and, except in the
event (and to the extent) that the Sponsor exercises its right to defer the payment of
interest on the Debentures pursuant to the Indenture, shall be payable quarterly in arrears
on March 15, June 15, September 15 and December 15 of each year, commencing on
                                        . If any date on which a Distribution is otherwise payable on the Trust
Securities is not a Business Day, then the payment of such Distribution shall be made on the
next succeeding day that is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is in the next succeeding
calendar year, the payment of such Distribution shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on the date on which
such payment was originally payable (each date on which



11









 







Distributions are payable in accordance with this Section 4.1 (a), a “Distribution
Date”).




          (ii) The Trust Securities shall be entitled to Distributions payable at a rate of
___% per annum of the Liquidation Amount of the Trust Securities. The amount of
Distributions payable for any period less than a full Distribution period shall be computed
on the basis of a 360-day year of twelve 30-day months and the actual number of days elapsed
in a partial month in a period. Distributions payable for each full Distribution period will
be computed by dividing the rate per annum by four. The amount of Distributions payable for
any period shall include any Additional Amounts in respect of such period.




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



          (b) 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
at the close of business on the relevant record date, which shall be, so long as the Preferred
Securities are represented by Book-Entry Preferred Securities, at the close of business on the
Business Day preceding the relevant Distribution Date, and which shall be, so long as the Preferred
Securities are not represented by Book-Entry Preferred Securities, the first day of the month in
which the relevant Distribution Date occurs without giving effect to the third sentence of Section
4.1(a)(i) (whether or not such record date is a Business Day).



     Section 4.2 Redemption.



          (a) On each Debenture Redemption Date and on the stated maturity of the Debentures,
the Issuer Trust will 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 30 nor more than 60 days prior to the Redemption Date to each
Holder of Trust Securities to be redeemed, at such Holder’s address appearing in the Security
Register. All notices of redemption shall state:




          (i) the Redemption Date;




          (ii) the Redemption Price or if the Redemption Price cannot be calculated prior to
the time the notice is required to be sent, an estimate of the Redemption Price provided
pursuant to the Indenture together with a statement that it is an estimate and that the
actual Redemption Price will be calculated on the third Business Day prior to the Redemption
Date (and if an estimate is provided, a further notice shall be sent of the actual Redemption
Price on the date that such Redemption Price is calculated);




          (iii) the CUSIP number or CUSIP numbers of the Preferred Securities affected
(if applicable);




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




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



          The Issuer Trust in issuing the Trust Securities may use “CUSIP” numbers (if then generally in
use), and, if so, the Property Trustee shall indicate the “CUSIP” numbers of the Trust Securities
in notices of redemption and related materials as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such numbers either as
printed on the Trust Securities or as contained in any notice of redemption and related materials.



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          (c) The Trust Securities redeemed on each Redemption Date shall be redeemed at the
Redemption Price with the proceeds from the contemporaneous redemption or repayment of 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 Issuer Trust has funds then on hand and available in
the Payment Account for the payment of such Redemption Price.



          (d) If the Property Trustee gives a notice of redemption in respect of any Preferred
Securities, then, by 12:00 noon. New York City time, on the Redemption Date, subject to Section
4.2(c), the Property Trustee will, with respect to Book-Entry Preferred Securities, irrevocably
deposit with the Clearing Agency for such Book-Entry Preferred Securities, to the extent available
therefor, funds sufficient to pay the applicable Redemption Price and will give such Clearing
Agency irrevocable instructions and authority to pay the Redemption Price to the Holders of the
Preferred Securities. With respect to Preferred Securities that are not Book-Entry Preferred
Securities, the Property Trustee, subject to Section 4.2(c), will irrevocably deposit with the
Paying Agent, to the extent available therefor, funds sufficient to pay the applicable Redemption
Price and will give the Paying Agent irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Preferred Securities upon surrender of their Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions payable on or prior to the Redemption
Date for any Trust Securities called for redemption shall be payable to the Holders of such Trust
Securities as they appear on the Securities Register for the Trust Securities on the relevant
record dates for the related Distribution Dates. If notice of redemption shall have been given and
funds deposited as required, then upon the date of such deposit, all rights of Holders holding
Trust Securities so called for redemption will cease, except the right of such Holders to receive
the Redemption Price and any Distribution payable in respect of the Trust Securities on or prior to
the Redemption Date, but without interest, and such Securities will cease to be outstanding. In the
event that any date on which any Redemption Price is payable is not a Business Day, then payment of
the Redemption Price payable on such date will be made on the next succeeding day that is a
Business Day (without any interest or other payment in respect of any such delay), except that, if
such Business Day falls in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case, with the same force and effect as if made on such date. In
the event that payment of the Redemption Price in respect of any Trust Securities called for
redemption is improperly withheld or refused and not paid either by the Issuer Trust or by the
Sponsor pursuant to the Guarantee Agreement, Distributions on such Trust Securities will continue
to accumulate, as set forth in Section 4.1, from the Redemption Date originally established by the
Issuer Trust for such Trust Securities to the date such Redemption Price is actually paid, in which
case the actual payment date will be the date fixed for redemption for purposes of calculating the
Redemption Price.



          (e) 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 pro rata to the Common Securities and the Preferred Securities based
upon the relative Liquidation Amounts of such classes. The particular Preferred Securities to be
redeemed shall be selected on a pro rata basis based upon their respective Liquidation Amounts not
more than 60 days prior to the Redemption Date by the Property Trustee from the Outstanding
Preferred Securities not previously called for redemption, provided that so long as the Preferred
Securities are in book-entry-only form, such selection shall be made in accordance with the
customary procedures for the Clearing Agency for the Preferred Securities. 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 of Trust, unless
the context otherwise requires, all provisions relating to the redemption of Preferred Securities
shall relate, in the case of any Preferred Securities redeemed or to be redeemed only in part, to
the portion of the aggregate Liquidation Amount of Preferred Securities that has been or is to be
redeemed.



     Section 4.3 Subordination of Common Securities.



          (a) Payment of Distributions (including any Additional Amounts) on, the Redemption Price
of, and the Liquidation Distribution in respect of the Trust Securities, as applicable, shall be
made, subject to Section 4.2(e), pro rata among the Common Securities and the Preferred Securities
based on the Liquidation Amount of the Trust Securities; provided, however, that if on any
Distribution Date, Redemption Date or Liquidation Date any Event of Default resulting from a
Debenture Event of Default specified in Section 5.1(1) of the Indenture shall have occurred and be
continuing, no payment of any Distribution (including any Additional Amounts) on, Redemption Price
of, or Liquidation Distribution in respect of any Common Security, and no other payment on account
of the redemption, liquidation or other acquisition of Common Securities, shall be made unless
payment in full in cash of



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all accumulated and unpaid Distributions (including any Additional Amounts) 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, or in the case of payment of the Liquidation
Distribution the full amount of such Liquidation Distribution on all Outstanding Preferred
Securities, 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 any Additional Amounts) 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 any Debenture
Event of Default, the Holders of the Common Securities shall have no right to act with respect to
any such Event of Default under this Declaration of Trust until the effect of all such Events of
Default with respect to the Preferred Securities have been cured, waived or otherwise eliminated.
Until all such Events of Default under this Declaration of Trust with respect to the Preferred
Securities 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 on behalf of the Holders of the
Common Securities, and only the Holders of the Preferred Securities will have the right to direct
the Property Trustee to act on their behalf.



     Section 4.4 Payment Procedures. Payments of Distributions (including any Additional
Amounts) in respect of the Preferred Securities shall be made by check mailed to the address of the
Person entitled thereto as such address shall appear on the Securities Register or, if the
Preferred Securities are held by a Clearing Agency, such Distributions shall be made to the
Clearing Agency in immediately available funds. Payments in respect of the Common Securities shall
be made in such manner as shall be mutually agreed between the Property Trustee and the Holders of
the Common Securities.



     Section 4.5 Tax Returns and Reports. The Administrative Trustees shall prepare (or cause to
be prepared), at the Sponsor’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 Issuer Trust. In this
regard, the Administrative Trustees shall (a) prepare and file (or cause to be prepared and filed)
all Internal Revenue Service forms required to be filed in respect of the Issuer Trust in each
taxable year of the Issuer Trust, and (b) prepare and furnish (or cause to be prepared and
furnished) to each Holder all Internal Revenue Service forms required to be provided by the Issuer
Trust to such Holder. The Administrative Trustees shall provide the Sponsor and the Property
Trustee with a copy of all such returns and reports promptly after such filing or furnishing. The
Issuer Trustees shall comply with United States Federal withholding and backup withholding tax laws
and information reporting requirements with respect to any payments to Holders under the Trust
Securities.



     Section 4.6 Payment of Taxes, Duties, Etc. of the Issuer Trust. Upon receipt under the
Debentures of Additional Sums, the Property Trustee shall promptly pay any taxes, duties or
governmental charges of whatsoever nature (other than withholding taxes) imposed on the Issuer
Trust by the United States or any other taxing authority, which were included in such Additional
Sums.



     Section 4.7 Payments under Indenture or Pursuant to Direct Actions. Any amount payable
hereunder to any Holder of Preferred Securities (or any Owner with respect thereto) shall be
reduced by the amount of any corresponding payment such Holder (or Owner) has directly received
pursuant to Section 5.8 of the Indenture or Section 5.13 of this Declaration of Trust.



     Section 4.8 Liability of the Holder of Common Securities. As permitted under the Delaware
Statutory Trust Act, the Holder of the Common Securities shall be liable for the debts and
obligations of the Issuer Trust as set forth in the Expense Agreement.



ARTICLE V TRUST SECURITIES

CERTIFICATES



     Section 5.1 Initial Ownership. Upon the formation of the Issuer Trust and the contribution
by the Sponsor pursuant to Section 2.3 and until the issuance of the Trust Securities, and at any
time during which no Trust Securities are outstanding, the Sponsor shall be the sole beneficial
owner of the Issuer Trust.



     Section 5.2 The Trust Securities Certificates.



          (a) The Preferred Securities Certificates shall be issued in minimum denominations of
$___



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Liquidation Amount and integral multiples of $___ in excess thereof, and the Common
Securities Certificates shall be issued in denominations of $___ Liquidation Amount and
integral multiples thereof. The Trust Securities Certificates shall be executed on behalf of the
Issuer Trust by manual signature of at least one Administrative Trustee. Trust Securities
Certificates bearing the manual signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Issuer Trust, shall be
validly issued and entitled to the benefits of this Declaration of Trust, 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 Holder, and
shall be entitled to the rights and subject to the obligations of a Holder hereunder, upon due
registration of such Trust Securities Certificate in such transferee’s name pursuant to Section
5.5.




          (b) Upon their original issuance, Preferred Securities Certificates shall be issued in the
form of one or more Book-Entry Preferred Securities Certificates registered in the name of DTC, as
Clearing Agency, or its nominee and deposited with DTC or the Securities Registrar as custodian for
DTC for credit by DTC to the respective accounts of the Owners thereof (or such other accounts as
they may direct).



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



     Section 5.3 Execution, Delivery and Authentication of Trust Securities Certificates. At the
Closing Date, the Administrative Trustees shall cause Trust Securities Certificates, in the
aggregate Liquidation Amounts as provided in Sections 2.4 and 2.5 with respect to Preferred
Securities and Common Securities, respectively, to be executed on behalf of the Issuer Trust or
upon the written order of the Sponsor, executed by one authorized officer thereof, and shall cause
the Preferred Securities Certificates to be delivered to the Property Trustee and upon such
delivery the Property Trustee shall authenticate such Preferred Securities Certificates, in each
case without further corporate action by the Sponsor, in authorized denominations. After the
Closing Date, including each Option Closing Date, if any, the Administrative Trustees may without
the consent of or notice to the Holders cause additional Preferred Securities to be executed on
behalf of the Issuer Trust and delivered to or upon the written order of the Sponsor, such written
order executed by one authorized officer thereof, without further corporate action by the Sponsor,
in authorized denominations; provided, however, that no such additional Preferred Securities shall
be issued unless the Administrative Trustees shall have receive an Opinion of Counsel to the effect
that such issuance will not cause the Issuer Trust to be taxable as other than one or more grantor
trusts or agency arrangements or to be classified as an association or partnership for U.S. federal
income tax purposes or affect the Issuer Trust’s exemption from status as an “investment company”
under the Investment Company Act.



     Each Preferred Securities Certificate shall be dated the date of its authentication.



     No Preferred Securities Certificate shall be entitled to any benefit under this Declaration of
Trust or be valid or obligatory for any purpose, unless there appears on such Preferred Securities
Certificate a certificate of authentication substantially in the form provided for in the form
attached as Exhibit D executed by the Property Trustee by the manual signature of one of its
authorized officers, and such certificate upon any Preferred Securities Certificate shall be
conclusive evidence, and the only evidence, that such Preferred Securities Certificate has been
duly authenticated and delivered hereunder.



     Section 5.4 Book-Entry Preferred Securities.



          (a) Each Book-Entry Preferred Securities Certificate issued under this Declaration of
Trust shall be registered in the name of the Clearing Agency or a nominee thereof and delivered to
such Clearing Agency or a nominee thereof or custodian therefor, and each such Book-Entry Preferred
Securities Certificate shall constitute a single Preferred Securities Certificate for all purposes
of this Declaration of Trust.



          (b) Notwithstanding any other provision in this Declaration of Trust, no Book-Entry
Preferred Securities Certificate may be exchanged in whole or in part for Book-Entry Preferred
Securities Certificates registered, and no transfer of a Book-Entry Preferred Securities
Certificate in whole or in part may be registered, in the name of any Person other than the
Clearing Agency for such Book-Entry Preferred Securities Certificate or a nominee thereof unless
(A) such Clearing Agency (i) has notified the Issuer Trust that it is unwilling or unable to
continue as Clearing Agency for such Book-Entry Preferred Securities Certificate and no successor
Clearing Agency



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has been appointed within 90 days of this notice or (ii) has ceased to be a clearing agency
registered under the Exchange Act at a time when the Clearing Agency is required to be so
registered to act as clearing agent and no successor Clearing Agency has been appointed within 90
days after the Issuer Trust has learned that the Clearing Agency has ceased to be so registered,
(B) there shall have occurred and be continuing a Debenture Event of Default, or (C) the Sponsor in
its sole discretion determines that such Book-Entry Preferred Securities Certificate will be so
exchangeable or transferable. Upon the occurrence of any event specified in clause (A), (B) or (C)
above, the Property Trustee shall notify the Clearing Agency and instruct the Clearing Agency to
notify all Owners of Book-Entry Preferred Securities and the Administrative Trustees of the
occurrence of such event and of the availability of the Definitive Preferred Securities
Certificates to Owners of such class or classes, as applicable, requesting the same.




          (c) If any Book-Entry Preferred Securities Certificate is to be exchanged for other
Preferred Securities Certificates or cancelled in part, or if any other Preferred Securities
Certificate is to be exchanged in whole or in part for Book-Entry Preferred Securities represented
by a Book-Entry Preferred Securities Certificate, then either (i) such Book-Entry Preferred
Securities Certificate shall be so surrendered for exchange or cancellation as provided in this
Article V or (ii) the aggregate Liquidation Amount represented by such Book-Entry Preferred
Securities Certificate shall be reduced, subject to Section 5.2, or increased by an amount equal to
the Liquidation Amount represented by that portion of the Book-Entry Preferred Securities
Certificate to be so exchanged or cancelled, or equal to the Liquidation Amount represented by such
other Preferred Securities Certificates to be so exchanged for Book-Entry Preferred Securities
represented thereby, as the case may be, by means of an appropriate adjustment made on the records
of the Securities Registrar, whereupon the Property Trustee, in accordance with the Applicable
Procedures, shall instruct the Clearing Agency or its authorized representative to make a
corresponding adjustment to its records. Upon surrender to the Administrative Trustees or the
Securities Registrar of the Book-Entry Preferred Securities Certificate or Certificates by the
Clearing Agency, accompanied by registration instructions, the Administrative Trustees, or any one
of them, shall execute the Definitive Preferred Securities Certificates in accordance with the
instructions of the Clearing Agency. None of the Securities Registrar, the Issuer Trustees or the
Administrative Trustees shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of
Definitive Preferred Securities Certificates, the Issuer Trustees shall recognize the Holders of
the Definitive Preferred Securities Certificates as Holders. The Definitive Preferred Securities
Certificates shall be printed, lithographed or engraved or may be produced in any other manner as
is reasonably acceptable to the Administrative Trustees, as evidenced by the execution thereof by
the Administrative Trustees or any one of them.



          (d) Every Preferred Securities Certificate executed and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Book-Entry Preferred Securities Certificate or any
portion thereof, whether pursuant to this Article V or Article IV or otherwise, shall be executed
and delivered in the form of, and shall be, a Book-Entry Preferred Securities Certificate, unless
such Preferred Securities Certificate is registered in the name of a Person other than the Clearing
Agency for such Book-Entry Preferred Securities Certificate or a nominee thereof.



          (e) The Clearing Agency or its nominee, as registered owner of a Book-Entry Preferred
Securities Certificate, shall be the Holder of such Book-Entry Preferred Securities Certificate for
all purposes under this Agreement and the Book-Entry Preferred Securities Certificate, and Owners
with respect to a Book-Entry Preferred Securities Certificate shall hold such interests pursuant to
the Applicable Procedures. The Securities Registrar and the Issuer Trustees shall be entitled to
deal with the Clearing Agency for all purposes of this Declaration of Trust relating to the
Book-Entry Preferred Securities Certificates (including the payment of the Liquidation Amount of
and Distributions on the Book-Entry Preferred Securities represented thereby and the giving of
instructions or directions by Owners of Book-Entry Preferred Securities represented thereby) as the
sole Holder of the Book-Entry Preferred Securities represented thereby and shall have no
obligations to the Owners thereof. None of the Issuer Trustees nor the Securities Registrar shall
have any liability in respect of any transfers effected by the Clearing Agency.



          The rights of the Owners of the Book-Entry Preferred Securities shall be exercised only
through the Clearing Agency and shall be limited to those established by law, the Applicable
Procedures and agreements between such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depository Agreement, unless and until Definitive
Preferred Securities Certificates are issued pursuant to Section 5.4(b), the initial Clearing
Agency will make book-entry transfers among the Clearing Agency Participants and receive and
transmit payments on the Preferred Securities to such Clearing Agency Participants, and none of the



16









 




Sponsor or the Issuer Trustees shall have any responsibility or obligation with respect
thereto.




     Section 5.5 Registration of Transfer and Exchange of Preferred Securities Certificates.



          (a) The Property Trustee shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.9, a register or registers for the purpose of registering Trust
Securities Certificates and transfers and exchanges of Trust Securities Certificates (the
“Securities Register”) in which the registrar and transfer agent with respect to the Trust
Securities (the “Securities Registrar”), subject to such reasonable regulations as it may
prescribe, shall provide for the registration of Preferred Securities Certificates and Common
Securities Certificates (subject to Section 5.11 in the case of the Common Securities Certificates)
and registration of transfers and exchanges of Preferred Securities Certificates as herein
provided. The Person acting as the Property Trustee shall at all times also be the Securities
Registrar.



          Upon surrender for registration of transfer of any Preferred Securities Certificate at the
office or agency maintained pursuant to Section 5.9, the Administrative Trustees or any one of them
shall execute and deliver to the Property Trustee, 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 execution by such Administrative Trustee or Trustees.



          The Securities Registrar shall not be required, (i) to issue, register the transfer of or
exchange any Preferred Security during a period beginning at the opening of business 15 days before
the day of selection for redemption of such Preferred Securities pursuant to Article IV and ending
at the close of business on the day of mailing of the notice of redemption, or (ii) to register the
transfer of or exchange any Preferred Security so selected for redemption in whole or in part,
except, in the case of any such Preferred Security to be redeemed in part, any portion thereof not
to be redeemed.



          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 an
Administrative Trustee and the Securities Registrar duly executed by the Holder or its attorney
duly authorized in writing. Each Preferred Securities Certificate surrendered for registration of
transfer or exchange shall be cancelled and subsequently disposed of by the Property Trustee in
accordance with its customary practice.



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



          (b) Notwithstanding any other provision of this Declaration of Trust, transfers and
exchanges of Preferred Securities Certificates and beneficial interests in a Book-Entry Preferred
Securities Certificate of the kinds specified in this Section 5.5(b) shall be made only in
accordance with this Section 5.5(b).




          (i) Non-Book-Entry Preferred Securities Certificate to Book-Entry Preferred
Securities Certificate. If the Holder of a Preferred Securities Certificate (other than a
Book-Entry Preferred Securities Certificate) wishes at any time to transfer all or any
portion of such Preferred Securities Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in a Book-Entry Preferred Securities
Certificate, such transfer may be effected only in accordance with the provisions of this
Clause (b)(i) and subject to the Applicable Procedures. Upon receipt by the Securities
Registrar of (A) such Preferred Securities Certificate as provided in Section 5.5(a) and
instructions satisfactory to the Securities Registrar directing that a beneficial interest in
the Book-Entry Preferred Securities Certificate of a specified number of Preferred Securities
not greater than the number of Preferred Securities represented by such Preferred Securities
Certificate be credited to a specified Clearing Agency Participant’s account, then the
Securities Registrar shall cancel such Preferred Securities Certificate (and issue a new
Preferred Securities Certificate in respect of any untransferred portion thereof) as provided
in Section 5.5(a) and increase the aggregate Liquidation Amount of the Book-Entry Preferred
Securities Certificate by the Liquidation Amount represented by such Preferred Securities so
transferred as provided in Section 5.4(c).



          (ii) Non-Book-Entry Preferred Securities Certificate to Non-Book-Entry Preferred
Securities Certificate. A Preferred Securities Certificate that is not a Book-Entry
Preferred Securities Certificate may be transferred, in whole or in part, to a Person who
takes delivery in the form of another



17









 







Preferred Securities Certificate that is not a Book-Entry Preferred Securities
Certificate as provided in Section 5.5(a).




          (iii) Exchanges between Book-Entry Preferred Securities Certificate and
Non-Book-Entry Preferred Securities Certificate. A beneficial interest in a Book-Entry
Preferred Securities Certificate may be exchanged for a Preferred Securities Certificate that
is not a Book-Entry Preferred Securities Certificate as provided in Section 5.4.



     Section 5.6 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
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 Issuer Trust shall execute and make available for delivery, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust Securities
Certificate of like class, tenor and denomination. In connection with the issuance of any new Trust
Securities Certificate under this Section 5.6, the Administrative Trustees or the Securities
Registrar may require the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Trust Securities Certificate issued
pursuant to this Section shall constitute conclusive evidence of an undivided beneficial interest
in the assets of the Issuer Trust corresponding to that evidenced by the lost, stolen or destroyed
Trust Securities Certificate, as if originally issued, whether or not the lost, stolen or destroyed
Trust Securities Certificate shall be found at any time.



     Section 5.7 Persons Deemed Holders. The Issuer Trustees and the Securities Registrar shall
each 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 none of the Issuer Trustees and the
Securities Registrar shall be bound by any notice to the contrary.



     Section 5.8 Access to List of Holders’ Names and Addresses. Each Holder and each Owner
shall be deemed to have agreed not to hold the Sponsor, the Property Trustee, the Delaware Trustee
or the Administrative Trustees accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.



     Section 5.9 Maintenance of Office or Agency. The Property Trustee shall designate, with the
consent of the Administrative Trustees, which consent shall not be unreasonably withheld, an office
or offices or agency or agencies where Preferred Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon the Issuer Trustees
in respect of the Trust Securities Certificates may be served. The Administrative Trustees
initially designate the Property Trustee’s Corporate Trust Office, as its office and agency for
such purposes. The Property Trustee shall give prompt written notice to the Sponsor, the
Administrative Trustees and to the Holders of any change in the location of the Securities Register
or any such office or agency.



     Section 5.10 Appointment of Pay ing Agent. The Paying Agent shall make Distributions to
Holders 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 solely for the purpose of making the Distributions referred
to above. The Administrative Trustees may revoke such power and remove the Paying Agent in their
sole discretion. The Paying Agent shall initially be Wilmington Trust Company. Any Person acting as
Paying Agent shall be permitted to resign as Paying Agent upon 30 days’ written notice to the
Administrative Trustees and the Property Trustee. If Wilmington Trust Company 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) to act
as Paying Agent. Such successor Paying Agent or any additional Paying Agent appointed by the
Administrative Trustees shall execute and deliver to the Issuer Trustees an instrument in which
such successor Paying Agent or additional Paying Agent shall agree with the Issuer Trustees that as
Paying Agent, such successor Paying Agent or additional Paying Agent will hold all sums, if any,
held by it for payment to the Holders in trust for the benefit of the Holders entitled thereto
until such sums shall be paid to such Holders. The Paying Agent shall return all unclaimed funds to
the Property Trustee and upon removal of a Paying Agent such Paying Agent shall also return all
funds in its possession to the Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein
shall apply to Wilmington Trust Company in its



18









 




role as Paying Agent, for so long as Wilmington Trust Company shall act as Paying Agent and,
to the extent applicable, to any other paying agent appointed hereunder. Any reference in this
Declaration of Trust to the Paying Agent shall include any co-paying agent unless the context
requires otherwise.




     Section 5.11 Ownership of Common Securities by Sponsor. At the Closing Date, the Sponsor
shall acquire, and thereafter shall retain, beneficial and record ownership of the Common
Securities. The Sponsor may not transfer the Common Securities except (i) in connection with a
consolidation or merger of the Sponsor into another corporation, or any conveyance, transfer or
lease by the Sponsor of its properties and assets substantially as an entirety to any Person,
pursuant to Article VIII of the Indenture, or (ii) to an Affiliate of the Sponsor in compliance
with applicable law (including the Securities Act and applicable state securities and blue sky
laws). To the fullest extent permitted by law, any attempted transfer of the Common Securities
other than as set forth in the next proceeding sentence shall be void. The Administrative Trustees
shall cause each Common Securities Certificate issued to the Sponsor to contain a legend stating
substantially “THIS CERTIFICATE IS NOT TRANSFERABEE EXCEPT IN COMPLIANCE WITH APPLICABLE LAW AND
SECTION 5.11 OF THE DECLARATION OF TRUST AND ONLY IN CONNECTION WITH A SIMULTANEOUS DELEGATION AND
ASSIGNMENT OF THE EXPENSE AGREEMENT REFERRED TO THEREIN.”



     Section 5.12 Notices to Clearing Agency. To the extent that a notice or other communication
to the Holders is required under this Declaration of Trust, for so long as Preferred Securities are
represented by a Book-Entry Preferred Securities Certificate, the Issuer Trustees shall give all
such notices and communications specified herein to be given to the Clearing Agency, and shall have
no obligations to the Owners.



     Section 5.13 Rights a/Holders; Waivers of Past Defaults.



          (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 Holders shall not have any right
or title therein other than the undivided beneficial interest in the assets of the Issuer 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 Issuer Trust except as described below. The Trust
Securities shall be personal property giving only the rights specifically set forth therein and in
this Declaration of Trust. The Trust Securities shall have no preemptive or similar rights and when
issued and delivered to Holders against payment of the purchase price therefor will be fully paid
and nonassessable by the Issuer Trust. Subject to the provisions of Section 4.8, the Holders of the
Trust Securities, in their capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.



          (b) For so long as any Preferred Securities remain Outstanding, if, upon a Debenture Event
of Default, the Debenture Trustee fails or the holders of not less than 25% in principal amount of
the outstanding Debentures fail to declare the principal of all of the Debentures to be immediately
due and payable, then to the fullest extent permitted by law, and subject to the terms of the
Indenture and this Declaration of Trust, the Holders of at least 25% in Liquidation Amount of the
Preferred Securities then Outstanding shall have the right to make such declaration by a notice in
writing to the Sponsor and the Debenture Trustee.



          At any time after a declaration of acceleration with respect to the Debentures has been made
and before a judgment or decree for payment of the money due has been obtained by the Debenture
Trustee as in the Indenture provided, if the Property Trustee fails to annul any such declaration
and waive such default, the Holders of at least a Majority in Liquidation Amount of the Preferred
Securities, by written notice to the Property Trustee, the Sponsor and the Debenture Trustee, may
rescind and annul such declaration and its consequences if:




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




          (A) all overdue installments of interest (including any Additional Interest)
on all of the Debentures,




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



19









 






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




          (ii) all Events of Default with respect to the Debentures, other than the nonpayment
of the principal of the Debentures that has become due solely by such acceleration, have been
cured or waived as provided in Section 5.13 of the Indenture.



          To the fullest extent permitted by law and subject to the terms of this Declaration of Trust
and the Indenture, the Holders of at least a Majority in Liquidation Amount of the Preferred
Securities may, on behalf of the Holders of all the Preferred Securities, waive any past default
under the Indenture, except a default in the payment of principal or interest (unless such default
has been cured and a sum sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Debenture Trustee) or a default in
respect of a covenant or provision that under the Indenture cannot be modified or amended without
the consent of the holder of each outstanding Debenture. No such rescission shall affect any
subsequent default or impair any right consequent thereon.



          Upon receipt by the Property Trustee of written notice declaring such an acceleration, or
rescission and annulment thereof, by Holders of any part of the Preferred Securities a record date
shall be established for determining Holders of Outstanding Preferred Securities entitled to join
in such notice, which record date shall be at the close of business on the day the Property Trustee
receives such notice. The Holders on such record date, or their duly designated proxies, and only
such Persons, shall be entitled to join in such notice, whether or not such Holders remain Holders
after such record date; provided that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the requisite percentage
having joined in such notice prior to the day that is 90 days after such record date, such notice
of declaration of acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be canceled and of no further effect.
Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after
expiration of such 90-day period, a new written notice of declaration of acceleration, or
rescission and annulment thereof, as the case may be, that is identical to a written notice that
has been canceled pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.13(b).



          (c) For so long as any Preferred Securities remain Outstanding, to the fullest extent
permitted by law and subject to the terms of this Declaration of Trust and the Indenture, upon a
Debenture Event of Default specified in Section 5.1(1) of the Indenture, any Holder of Preferred
Securities shall have the right to institute a proceeding directly against the Sponsor, pursuant to
Section 5.8 of the Indenture, for enforcement of payment to such Holder of any amounts payable in
respect of Debentures having an aggregate principal amount equal to the aggregate Liquidation
Amount of the Preferred Securities of such Holder (a “Direct Action”). Except as set forth in
Section 5.13(b) and this Section 5.13(c), the Holders of Preferred Securities shall have no right
to exercise directly any right or remedy available to the holders of, or in respect of, the
Debentures.



          (d) Except as otherwise provided in clauses (a), (b) and (c) of this Section 5.13, to the
fullest extent permitted by law and subject to the terms of this Declaration of Trust and the
Indenture, the Holders of at least a Majority in Liquidation Amount of the Preferred Securities
may, on behalf of the Holders of all the Preferred Securities, waive any past default or Event of
Default and its consequences. Upon such waiver, any such default or Event of Default shall cease to
exist, and any default or Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Declaration of Trust, but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right consequent thereon.



ARTICLE VI ACTS OF HOLDERS; MEETINGS;

VOTING



     Section 6.1 Limitations on Voting Rights.



          (a) Except as expressly provided in this Declaration of Trust and in the Indenture and as
otherwise required by law, no Holder of Preferred Securities shall have any right to vote or in any
manner otherwise control the administration, operation and management of the Issuer Trust or the
obligations of the parties hereto, nor shall



20









 




anything herein set forth, or contained in the terms of the Trust Securities Certificates, be
construed so as to constitute the Holders 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 Issuer
Trust, the other Issuer Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or execute any trust or power
conferred on the Property Trustee with respect to the Debentures, (ii) waive any past default that
may be waived under Section 5.13 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 at least a
Majority in Liquidation Amount of the Preferred Securities, provided, however, that where a consent
under the Indenture would require the consent of each Holder of Debentures affected thereby, no
such consent shall be given by the Property Trustee without the prior written consent of each
Holder of Preferred Securities. The Issuer Trustees shall not revoke any action previously
authorized or approved by a vote of the Holders of the Preferred Securities, except by a subsequent
vote of the Holders of the Preferred Securities. The Property Trustee shall notify all Holders of
the Preferred Securities of any notice of default received 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 Issuer Trustees shall, at the expense of the Sponsor,
obtain an Opinion of Counsel to the effect that such action shall not cause the Issuer Trust to be
taxable as a corporation or classified as other than a grantor trust for United States Federal
income tax purposes.



          (c) If any proposed amendment to the Declaration of Trust provides for, or the Issuer
Trustees otherwise propose to effect, (i) any action that would adversely affect in any material
respect the powers, preferences or special rights of the Preferred Securities, whether by way of
amendment to this Declaration of Trust or otherwise, or (ii) the dissolution of the Issuer Trust,
other than pursuant to the terms of this Declaration of Trust, then the Holders of Outstanding
Preferred Securities as a class will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the approval of the Holders of at least a
Majority in Liquidation Amount of the Preferred Securities. Notwithstanding any other provision of
this Declaration of Trust, no amendment to this Declaration of Trust may be made if, as a result of
such amendment, it would cause the Issuer Trust to be taxable as a corporation or classified as
other than a grantor trust for United States Federal income tax purposes.



     Section 6.2 Notice of Meetings. Notice of all meetings of the Holders of the Preferred
Securities, stating the time, place and purpose of the meeting, shall be given by the
Administrative Trustees or, at the written request of the Administrative Trustees, by the Property
Trustee pursuant to Section 10.8 to each Holder of Preferred Securities, at such Holder’s
registered address, at least 15 days and not more than 90 days before the meeting. At any such
meeting, any business properly before the meeting may be so considered whether or not stated in the
notice of the meeting. Any adjourned meeting may be held as adjourned without further notice.



     Section 6.3 Meetings of Holders of the Preferred Securities. No annual meeting of Holders
is required to be held. The Administrative Trustees, however, shall call a meeting of the Holders
of the Preferred Securities to vote on any matter upon the written request of the Holders of at
least 25% in aggregate Liquidation Amount of the Outstanding Preferred Securities and the
Administrative Trustees or the Property Trustee may, at any time in their or its discretion, call a
meeting of the Holders of the Preferred Securities to vote on any matters as to which such Holders
are entitled to vote.



     The Holders of at least a Majority in Liquidation Amount of the Preferred Securities, present
in person or by proxy, shall constitute a quorum at any meeting of the Holders of the Preferred
Securities.



     If a quorum is present at a meeting, an affirmative vote by the Holders present, in person or
by proxy, holding Preferred Securities representing at least a Majority in aggregate Liquidation
Amount of the Preferred Securities held by the Holders present, either in person or by proxy, at
such meeting shall constitute the action of the Holders of the Preferred Securities, unless this
Declaration of Trust requires a greater number of affirmative votes.



     Section 6.4 Voting Rights. Holders shall be entitled to one vote for each $___ of
Liquidation Amount represented by their Outstanding Trust Securities in respect of any matter as to
which such Holders are entitled to vote.



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     Section 6.5 Proxies, etc. At any meeting of Holders, any Holder 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 Issuer
Trust as the Administrative Trustees may direct, for verification prior to the time at which such
vote shall be taken. Pursuant to a resolution of the Property Trustee, proxies may be solicited in
the name of the Property Trustee or one or more officers of the Property Trustee. Only Holders of
record 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 Holder shall be deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more than three years
after its date of execution.



     Section 6.6 Holder Action by Written Consent. Any action that may be taken by Holders at a
meeting may be taken without a meeting and without prior notice if Holders holding at least a
Majority in Liquidation Amount of all Preferred Securities entitled to vote in respect of such
action (or such larger proportion thereof as shall be required by any other provision of this
Declaration of Trust) shall consent to the action in writing.



     Section 6.7 Record Date for Voting and Other Purposes. For the purposes of determining the
Holders 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 of Trust, or for the purpose of any other action, the
Administrative Trustees or Property Trustee may from time to time fix a date, not more than 90 days
prior to the date of any meeting of Holders or the payment of a distribution or other action, as
the case may be, as a record date for the determination of the identity of the Holders of record
for such purposes.



     Section 6.8 Acts of Holders. Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Declaration of Trust to be given,
made or taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders 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 Holders 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 of Trust and (subject to Section 8.1) conclusive in favor of the Issuer Trustees,
if made in the manner provided in this Section.



     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 the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his 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 that any Issuer Trustee receiving the same deems sufficient.



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



     Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Trust Security shall bind every future Holder of the same Trust Security and the
Holder 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
Issuer Trustees or the Issuer Trust in reliance thereon, whether or not notation of such action is
made upon such Trust Security.



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



     If any dispute shall arise among the Holders or the Issuer Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization, direction, consent,
waiver or other Act of such Holder or



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




     Section 6.9 Inspection of Records. Upon reasonable notice to the Administrative Trustees
and the Property Trustee, the records of the Issuer Trust shall be open to inspection by Holders
during normal business hours for any purpose reasonably related to such Holder’s interest as a
Holder.



ARTICLE VII REPRESENTATIONS AND WARRANTIES




     Section 7.1 Representations and Warranties of the Property Trustee and the Delaware
Trustee. The Property Trustee and the Delaware Trustee, each severally on behalf of and as to
itself, hereby represents and warrants for the benefit of the Sponsor and the Holders that:



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



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



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



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



          (e) this Declaration of Trust has been duly authorized, executed and delivered by the
Property Trustee and the Delaware Trustee and constitutes the valid and legally binding agreement
of each of the Property Trustee and the Delaware Trustee enforceable against each of them 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;



          (f) the execution, delivery and performance of this Declaration of Trust have been duly
authorized by all necessary corporate or other action on the part of the Property Trustee and the
Delaware Trustee and does not require any approval of stockholders of the Property Trustee or the
Delaware Trustee and such execution, delivery and performance will not (i) violate the Certificate
of Incorporation or By-laws of the Property Trustee or the Delaware Trustee, (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 Delaware Trustee is a party or by which it is
bound, or (iii) violate any law, governmental rule or regulation of the United States of America
governing the banking, trust or general powers of the Property Trustee or the Delaware Trustee (as
appropriate in context) or any order, judgment or decree applicable to the Property Trustee or the
Delaware Trustee;



          (g) neither the authorization, execution or delivery by the Property Trustee or the
Delaware Trustee of this Declaration of Trust nor the consummation of any of the transactions by
the Property Trustee or the Delaware Trustee (as appropriate in context) 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 law
governing the banking, trust or general powers of the Property Trustee or the Delaware Trustee, as
the case may be, under the laws of the United States, or the State of Delaware; and



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



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     Section 7.2 Representations and Warranties of Sponsor. The Sponsor hereby represents and
warrants for the benefit of the Holders that:



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



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



ARTICLE VIII THE ISSUER TRUSTEES



     Section 8.1 Certain Duties and Responsibilities.



          (a) The rights, immunities, duties and responsibilities of the Issuer Trustees shall be as
provided by this Declaration of Trust and, in the case of the Property Trustee, by the Trust
Indenture Act (and there shall be no other duties (including fiduciary duties) or obligations,
express or implied, at law or in equity, of the Issuer Trustees). Notwithstanding the foregoing, no
provision of this Declaration of Trust shall require any of the Issuer Trustees to expend or risk
its own funds or otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it or they shall have reasonable
grounds for believing that the repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it. Whether or not therein expressly so provided, every
provision of this Declaration of Trust relating to the conduct or affecting the liability of or
affording protection to the Issuer Trustees shall be subject to the provisions of this Section 8.1.
Nothing in this Declaration of Trust shall be construed to release an Administrative Trustee from
liability for his or her own negligent action, his or her own negligent failure to act, or his or
her own willful misconduct with respect to acts or omissions. To the extent that, at law or in
equity, an Issuer Trustee has duties and liabilities relating to the Issuer Trust or to the
Holders, such Issuer Trustee shall not be liable to the Issuer Trust or to any Holder for such
Issuer Trustee’s good faith reliance on the provisions of this Declaration of Trust. The provisions
of this Declaration of Trust, to the extent that they restrict or eliminate the duties and
liabilities of the Issuer Trustees otherwise existing at law or in equity, are agreed by the
Sponsor and the Holders to replace such other duties and liabilities of the Issuer Trustees.



          (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
Holder, by its acceptance of a Trust Security, agrees that it will look solely to the revenue and
proceeds from the Trust Property to the extent legally available for distribution to it as herein
provided and that the Issuer Trustees are not personally liable to it for any amount distributable
in respect of any Trust Security or for any other liability in respect of any Trust Security. This
Section 8.1(b) does not limit the liability of the Issuer Trustees expressly set forth elsewhere in
this Declaration of Trust or, in the case of the Property Trustee, in the Trust Indenture Act.



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




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




          (ii) the Property Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the Holders of at
least a Majority in Liquidation Amount of the Preferred 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 of Trust;



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          (iii) 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 of Trust and the Trust Indenture Act;




          (iv) the Property Trustee shall not be liable for any interest on any money received
by it except as it may otherwise agree with the Sponsor; 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;




          (v) the Property Trustee shall not be responsible for monitoring the compliance by
the Administrative Trustees or the Sponsor with their respective duties under this
Declaration of Trust, nor shall the Property Trustee be liable for the default or misconduct
of any other Issuer Trustee or the Sponsor; and




          (vi) No provision of this Declaration of Trust shall require the Property
Trustee to expend or risk its own funds or otherwise incur personal financial liability
in the performance of any of its duties or in the exercise of any of its rights or
powers.



          (d) The Administrative Trustees shall not be responsible for monitoring the compliance by
the other Issuer Trustees or the Sponsor with their respective duties under this Declaration of
Trust, nor shall any Administrative Trustee be liable for the default or misconduct of any other
Administrative Trustee, the other Issuer Trustees or the Sponsor.



     Section 8.2 Certain Notices. Within five Business Days after the occurrence of any Event of
Default actually known to the Property Trustee, the Property Trustee shall transmit, in the manner
and to the extent provided in Section 10.8, notice of such Event of Default to the Holders, the
Administrative Trustees and the Sponsor, unless such Event of Default shall have been cured or
waived.



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



     Section 8.3 Certain Rights of Property Trustee. Subject to the provisions of Section 8.1:




          (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;



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



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



25









 





          (d) any direction or act of an Administrative Trustee contemplated by this Declaration
of Trust shall be sufficiently evidenced by a certificate executed by such Administrative
Trustee and setting forth such direction or act;



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



          (f) the Property Trustee may consult with counsel (which counsel may be counsel to the
Sponsor or any of its Affiliates, and may include any of its employees) and the advice of such
counsel shall be full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with
such advice; the Property Trustee shall have the right at any time to seek instructions concerning
the administration of this Declaration of Trust 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 of Trust at the request or direction of any of the Holders
or the Sponsor pursuant to this Declaration of Trust, unless such Holders or Sponsor 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 or direction; provided
that nothing contained in this Section 8.3(g) shall be taken to relieve the Property Trustee, upon
the occurrence of an Event of Default actually known to a Responsible Officer of the Property
Trustee, of its obligation to exercise the rights and powers vested in it by this Declaration of
Trust;



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



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



          (j) whenever in the administration of this Declaration of Trust 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
(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 of Trust, the Property
Trustee shall not be under any obligation to take any action that is discretionary under the
provisions of this Declaration of Trust.



          (l) the Property Trustee shall not be deemed to have notice or be charged with knowledge of
any default or Event of Default unless a Responsible Officer of the Property Trustee has actual
knowledge thereof or unless written notice of such a Default is received from the Depositor, any
Administrative Trustee, Debenture Trustee or a Holder by the Property Trustee at the Corporate
Trust Office of the Property Trustee, and such notice references the Trust Securities;



          (m) the rights, privileges, protections, immunities and benefits given to the Property Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Property Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder; and



          (n) anything in this Declaration notwithstanding, in no event shall the Property Trustee be
responsible or liable for special, indirect or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the Trustees have been
advised of the likelihood of such loss or damage regardless of the form of action.






          No provision of this Declaration of Trust shall be deemed to impose any duty or obligation on
any Issuer 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 such
Person 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 any Issuer Trustee shall be construed to be a duty.



          Whether or not therein expressly so provided, every provision of this Declaration of Trust
relating to the conduct or affecting the liability of or affording protection to the Property
Trustee shall extend to each of the Security Registrar, the Paying Agent and the Delaware Trustee
and shall be subject to the provisions of this Article VIII.



     Section 8.4 Not Responsible for Recitals or Issuance of Securities. The recitals contained
herein and in the Trust Securities Certificates shall be taken as the statements of the Issuer
Trust and the Sponsor, and the Issuer




26












 




Trustees do not assume any responsibility for their correctness. The Issuer Trustees shall not
be accountable for the use or application by the Sponsor of the proceeds of the Debentures.




     The Property Trustee may conclusively assume that any funds held by it hereunder are legally
available unless an officer of the Property Trustee assigned to its institutional trust services
department shall have received written notice from the Sponsor, any Holder or any other Issuer
Trustee that such funds are not legally available.



     Section 8.5 May Hold Securities. Any Issuer Trustee or any other agent of any Issuer
Trustee or the Issuer Trust, in its individual or any other capacity, may become the owner or
pledgee of Trust Securities and, subject to Sections 8.8 and 8.13, and except as provided in the
definition of the term “Outstanding” in Article I, may otherwise deal with the Issuer Trust with
the same rights it would have if it were not an Issuer Trustee or such other agent.



     Section 8.6 Compensation; Indemnity; Fees. The Sponsor agrees:



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




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




          (c) to the fullest extent permitted by applicable law, to indemnify and hold harmless (i)
each Issuer Trustee, (ii) any Affiliate of any Issuer Trustee, (iii) any officer, director,
shareholder, employee, representative or agent of any Issuer Trustee, and (iv) any employee or
agent of the Issuer Trust (referred to herein as an “Indemnified Person”) from and against any
loss, damage, liability, action, suit, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by such Indemnified Person by reason of the creation, operation or termination
of the Issuer Trust or any act or omission performed or omitted by such Indemnified Person on
behalf of the Issuer Trust, except that no Indemnified Person shall be entitled to be indemnified
in respect of any loss, damage, action, suit or claim incurred by such Indemnified Person by reason
of negligence or willful misconduct with respect to such acts or omissions.




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




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




     Section 8.7 Corporate Property Trustee Required; Eligibility of Issuer 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 a national or state chartered bank and
eligible pursuant to the Trust Indenture Act to act as such and that 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 and to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such Person shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. If at any time the Property
Trustee with respect to the Trust Securities shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article. At the time of appointment, the Property Trustee must have
securities rated in one of the three highest rating categories by a nationally recognized
statistical rating organization.




          (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 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






27









 







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




     Section 8.8 Conflicting Interests.



          (a) 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 of Trust.




          (b) The Guarantee Agreement and the Indenture shall be deemed to be specifically described
in this Declaration of Trust for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.




     Section 8.9 Co-Trustees and Separate Trustee. Unless an Event of Default shall have
occurred and be continuing, at any time or times, for the purpose of meeting the legal requirements
of the Trust Indenture Act or of any jurisdiction in which any part of the Trust Property may at
the time be located, the Sponsor and the Administrative Trustees, by agreed action of the majority
of such Trustees, shall have power to appoint, and upon the written request of the Administrative
Trustees, the Sponsor shall for such purpose join with the Administrative Trustees in the
execution, delivery, and performance of all instruments and agreements necessary or proper to
appoint, one or more Persons approved by the Property Trustee either to act as co-trustee, jointly
with the Property Trustee, of all or any part of such Trust Property, or to the extent required by
law to act as separate trustee of any such property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable, subject to the other
provisions of this Section. Any co-trustee or separate trustee appointed pursuant to this Section
shall either be (i) a natural person who is at least 21 years of age and a resident of the United
States, or (ii) a legal entity with its principal place of business in the United States that shall
act through one or more persons authorized to bind such entity. In case an Event of Default under
the Indenture shall have occurred and be continuing, the Property Trustee alone shall have the
power to make such appointment.



     Should any written instrument from the Sponsor 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 Sponsor.



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



          (a) The Trust Securities Certificates shall be executed by one or more Administrative
Trustees, and the Trust Securities Certificates shall be delivered by the Property Trustee, 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 Property Trustee
specified hereunder shall be exercised solely by the Property Trustee and not by such co-trustee or
separate trustee.




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




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






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to effectuate such resignation or removal. A successor to any co-trustee or separate trustee
so resigning or removed may be appointed in the manner provided in this Section.




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




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




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




     Section 8.10 Resignation and Removal; Appointment of Successor. No resignation or removal of
any Issuer Trustee (the “Relevant Trustee”) and no appointment of a successor Issuer Trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Issuer Trustee in accordance with the applicable requirements of Section 8.11.



     Subject to the immediately preceding paragraph, the Relevant Trustee may resign at any time by
giving written notice thereof to the Sponsor. If the instrument of acceptance by the successor
Trustee required by Section 8.11 shall not have been delivered to the Relevant Trustee within 30
days after the giving of such notice of resignation, the Relevant Trustee may petition, at the
expense of the Trust, any court of competent jurisdiction for the appointment of a successor
Relevant Trustee.



     Unless a Debenture Event of Default shall have occurred and be continuing, any Issuer Trustee
may be removed at any time by Act of the Holders of Common Securities. 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 Act of the Holders of 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 Holders of Common Securities
at any time. In no event will the Holders of the Preferred Securities have a right to vote to
appoint, remove or replace the Administrative Trustees.



     If any Issuer Trustee shall resign, be removed or become incapable of acting as Issuer
Trustee, or if a vacancy shall occur in the office of any Issuer Trustee for any reason, at a time
when no Debenture Event of Default shall have occurred and be continuing, the Holders of Common
Securities, by Act of the Holders of Common Securities, shall promptly appoint a successor Issuer
Trustee or Issuer Trustees, and the retiring Issuer Trustee shall comply with the applicable
requirements of Section 8.11. If the Property Trustee or the Delaware Trustee shall resign, be
removed or become incapable of continuing to act as the Property Trustee or the Delaware Trustee,
as the case may be, at a time when a Debenture Event of Default shall have occurred and be
continuing, the Holders of Preferred Securities, by Act of the Holders of a Majority in Liquidation
Amount of the Preferred Securities then Outstanding shall promptly appoint a successor Relevant
Trustee or Trustees, and such successor Trustee shall comply with the applicable requirements of
Section 8.11. If an Administrative Trustee shall resign, be removed or become incapable of acting
as Administrative Trustee, at a time when a Debenture Event of Default shall have occurred and be
continuing, the Holders of Common Securities by Act of the Holders of Common Securities shall
promptly appoint a successor Administrative Trustee or Administrative Trustees and such successor
Administrative Trustee or Trustees shall comply with the applicable requirements of Section 8.11.
If no successor Relevant Trustee shall have been so appointed by the Holders of Common Securities
or the Holders of Preferred Securities and accepted appointment in the manner required by Section
8.11, any Holder who has been a Holder of Trust Securities for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.



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



     Notwithstanding the foregoing or any other provision of this Declaration of Trust, in the
event any Administrative Trustee or a Delaware Trustee who is a natural person dies or becomes, in
the opinion of the Sponsor, incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled



29









 




by (a) the unanimous act of the remaining Administrative Trustees if there are at least two of
them or (b) otherwise by the Sponsor (with the successor in each case being a Person who satisfies
the eligibility requirement for Administrative Trustees or Delaware Trustee, as the case may be,
set forth in Section 8.7).




     Section 8.11 Acceptance of Appointment by Successor. In case of the appointment hereunder of
a successor Issuer Trustee such successor Issuer Trustee so appointed shall execute, acknowledge
and deliver to the Issuer Trust and to the retiring Issuer Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Issuer Trustee shall become
effective and such successor Issuer Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring Issuer Trustee; but,
on the request of the Sponsor or the successor Issuer Trustee, such retiring Issuer Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to such successor
Issuer Trustee all the rights, powers and trusts of the retiring Issuer Trustee and if the Property
Trustee is the resigning Issuer Trustee shall duly assign, transfer and deliver to the successor
Issuer Trustee all property and money held by such retiring Property Trustee hereunder.



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



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



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



     Section 8.12 Merger, Conversion, Consolidation or Succession to Business. Any Person into
which the Property Trustee, the Delaware Trustee or any Administrative Trustee that is not a
natural Person 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 Relevant Trustee shall be a
party, or any Person, succeeding to all or substantially all the corporate trust business of such
Relevant Trustee, shall be the successor of such Relevant Trustee hereunder, provided that such
Person shall be otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto.



     Section 8.13 Preferential Collection of Claims Against Sponsor or Issuer Trust. If and when
the Property Trustee shall be or become a creditor of the Sponsor or the Issuer Trust (or any other
obligor upon the Preferred Securities), the Property Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Sponsor or the Issuer Trust
(or any such other obligor).



     Section 8.14 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 property of the Issuer Trust or of such other obligor or their creditors, 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
Issuer 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:



30









 





          (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;



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 8.15 Reports by Property Trustee.



          (a) Within 60 days after June 15 of each year commencing in                     , the Property Trustee
shall transmit to Holders such reports concerning the Property Trustee and its actions under this
Declaration of Trust as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.




          (b) A copy of each such report shall, at the time of such transmission to Holders, be filed
by or on behalf of the Property Trustee with each national securities exchange and such other
interdealer quotation system or self-regulatory organization upon which the Trust Securities are
listed or traded, with the Commission and with the Sponsor.




     Section 8.16 Reports to the Property Trustee. Each of the Sponsor and the Administrative
Trustees 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 Sponsor and the Administrative Trustees shall annually
file with the Property Trustee a certificate specifying whether such Person is in compliance with
all of the terms and covenants applicable to such Person hereunder.



     Section 8.17 Evidence of Compliance with Conditions Precedent. Each of the Sponsor and the
Administrative Trustees shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration of Trust 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)(l) of the Trust Indenture Act shall be given
in the form of an Officers’ Certificate.



     Section 8.18 Number of Issuer Trustees.



          (a) The number of Issuer Trustees shall be five, provided that the Property Trustee and the
Delaware Trustee may be the same Person. The number of Issuer Trustees may be increased or
decreased by the Holder of the Common Securities subject to Section 8.7 and 8.20. The death,
resignation, retirement, removal, bankruptcy, incompetence or incapacity to perform the duties of a
Issuer Trustee shall not operate to annual, dissolve or terminate the Issuer Trust.




          (b) If an Issuer Trustee ceases to hold office for any reason, a vacancy shall occur. The
vacancy shall be filled with an Issuer Trustee appointed in accordance with Section 8.10.




          (c) The death, resignation, retirement, removal, bankruptcy, incompetence or incapacity to
perform the duties of an Issuer Trustee shall not operate to annul, dissolve or terminate the
Issuer Trust.




     Section 8.19 Delegation of Power.



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




          (b) The Administrative Trustees shall have power to delegate from time to time to such of
their number or to the Sponsor the doing of such things and the execution of such instruments
either in the name of the Issuer 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 this Declaration of Trust.




     Section 8.20 Appointment of Administrative Trustees.



          (a) The Administrative Trustees shall initially be David J. Nasca, an individual, Gary A.
Kajtoch, an individual, and John B. Connerton, an individual, and their successors shall be
appointed by the Holders of a Majority in Liquidation Amount of the Common Securities, and they may
resign or be removed by the Holders of a Majority in Liquidation Amount of the Common Securities at
any time. Upon any resignation or removal, the Holders of the Common Securities shall appoint a
successor Administrative Trustee. Each successor Administrative Trustee shall sign an agreement
agreeing to comply with the terms of this Declaration of Trust. If at any time there is no
Administrative Trustee, the Property Trustee or any Holder who has been a Holder of Trust
Securities for at least six months may petition any court of competent jurisdiction for the
appointment of one or more Administrative Trustees.




          (b) Whenever a vacancy in the number of Administrative Trustees shall occur, until such
vacancy is filled by the appointment of an Administrative Trustee in accordance with this Section
8.20, 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 of Trust.




          (c) Notwithstanding the foregoing or any other provision of this Declaration of Trust,
if any Administrative Trustee who is a natural person dies or becomes, in the opinion of the
Sponsor, incompetent or incapacitated, the vacancy created by such death, incompetence or
incapacity may be filled by the unanimous acts of the remaining Administrative Trustees, if
there were at least two of them prior to such vacancy, and by the Sponsor, if there were not two
such Administrative Trustees immediately prior to such vacancy (with the successor being a
Person who satisfies the eligibility requirement for Administrative Trustees set forth in
Section 8.7).




ARTICLE IX TERMINATION, LIQUIDATION AND
MERGER




     Section 9.1 Dissolution Upon Expiration Date. Unless earlier dissolved, the Issuer Trust
shall automatically dissolve on                                          (the “Expiration Date”), and the Trust
Property shall be liquidated in accordance with Section 9.4.



     Section 9.2 Early Dissolution. The first to occur of any of the following events is an “Early
Dissolution Event”, upon the occurrence of which the Issuer Trust shall dissolve:



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




          (b) the written direction to the Property Trustee from all of the Holders of the Common
Securities at any time to dissolve the Issuer Trust and to distribute the Debentures to Holders in
exchange for the Preferred Securities (which direction is optional and wholly within the discretion
of the Holders of the Common Securities);




          (c) notice of the redemption of all of the Preferred Securities in connection with the
redemption of all the Debentures; and




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







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     Section 9.3 Termination. The respective obligations and responsibilities of the Issuer
Trustees shall terminate upon the latest to occur of the following: (a) the distribution by the
Property Trustee to Holders of all amounts required to be distributed hereunder upon the
liquidation of the Issuer Trust pursuant to Section 9.4, or upon the redemption of all of the Trust
Securities pursuant to Section 4.2; (b) the payment of any expenses owed by the Issuer Trust;
(c) the discharge of all administrative duties of the Administrative Trustees, including the
performance of any tax reporting obligations with respect to the Issuer Trust or the Holders and (d) the filing of a certificate of cancellation as provided below. As
soon as is practicable after the last to occur of any of the above events, and after satisfaction
of liabilities to creditors of the Issuer Trust as required by applicable law, including Section
3808 of the Delaware Statutory Trust Act, the Administrative Trustees shall terminate the Issuer
Trust by filing, at the expense of the Sponsor, a certificate of cancellation with the Secretary of
State of the State of Delaware. The provisions of Article VIII shall survive the termination of the
Issuer Trust.



     Section 9.4 Liquidation.



          (a) If an Early Dissolution Event specified in clause (a), (b) or (d) of Section 9.2
occurs or upon the Expiration Date, the Issuer Trust shall be liquidated by the Issuer Trustees as
expeditiously as the Issuer Trustees determine to be possible by distributing, after satisfaction
of liabilities to creditors of the Issuer Trust as provided by applicable law, including Section
3808 of the Delaware Statutory Trust Act, to each Holder a Like Amount of Debentures, subject to
Section 9.4(d). Notice of liquidation shall be given by the Property Trustee by first-class mail,
postage prepaid mailed not less than 15 nor more than 45 days prior to the Liquidation Date to each
Holder of Trust Securities at such Holder’s address appearing in the Securities Register. All such
notices of liquidation shall:





          (i) state the Liquidation Date;




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




          (iii) provide such information with respect to the procedures by which Holders may
exchange Trust Securities Certificates for Debentures, or if Section 9.4(d) applies receive a
Liquidation Distribution, as the Administrative Trustees or the Property Trustee shall deem
appropriate.



          (b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the liquidation of
the Issuer Trust and distribution of the Debentures to Holders, the Property Trustee, either itself
acting as exchange agent or through the appointment of a separate exchange agent, shall establish a
record date for such distribution (which shall be not more than 30 days prior to the Liquidation
Date) and, establish such procedures as it shall deem appropriate to effect the distribution of
Debentures in exchange for the Outstanding Trust Securities Certificates.




          (c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation Date, (i) the
Trust Securities will no longer be deemed to be Outstanding, (ii) certificates representing a Like
Amount of Debentures will be issued to Holders of Trust Securities Certificates, upon surrender of
such certificates to the exchange agent for exchange, (iii) the Sponsor shall use its best efforts
to have the Debentures listed on the Nasdaq Global Select Market or on such other national
securities exchange, interdealer quotation system or self-regulatory organization as the Preferred
Securities are then listed or traded, (iv) any Trust Securities Certificates not so surrendered for
exchange will be deemed to represent a Like Amount of Debentures bearing accrued and unpaid
interest in an amount equal to the accumulated and unpaid Distributions on such Trust Securities
Certificates until such certificates are so surrendered (and until such certificates are so
surrendered, no payments of interest or principal will be made to Holders of Trust Securities
Certificates with respect to such Debentures) and (v) all rights of Holders holding Trust
Securities will cease, except the right of such Holders to receive Debentures upon surrender of
Trust Securities Certificates.




          (d) If, notwithstanding the other provisions of this Section 9.4, whether because of an
order for dissolution entered by a court of competent jurisdiction or otherwise, distribution of
the Debentures in the manner provided herein is determined by the Administrative Trustees not to be
practical, the Trust Property shall be liquidated, and the Issuer Trust shall be wound up in such
manner as the Property Trustee determines. In such event. Holders will be entitled to receive out
of the assets of the Issuer Trust available for distribution to Holders, after satisfaction of
liabilities to creditors of the Issuer Trust as provided by applicable law, including Section 3808
of the Delaware Statutory Trust Act, an amount equal to the Liquidation Amount per Trust Security
plus accumulated and






33









 







unpaid Distributions thereon to the date of payment (such amount being the “Liquidation
Distribution”). If, upon any such winding up, the Liquidation Distribution can be paid only in part
because the Issuer 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 Issuer
Trust on the Trust Securities shall be paid on a pro rata basis (based upon Liquidation Amounts).
The Holders of the Common Securities will be entitled to receive Liquidation Distributions upon any
such dissolution pro rata (determined as aforesaid) with Holders of 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 as provided in Section 4.3.




     Section 9.5 Mergers, Consolidations, Amalgamations or Replacements of Issuer Trust. The
Issuer 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 body, except pursuant to this Section 9.5 or Section 9.4. At the request of the Holders of
the Common Securities, with the consent of the Administrative Trustees, the Issuer Trust may merge
with or into, consolidate, amalgamate, or 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 (i) such successor entity either (a) expressly assumes all of the
obligations of the Issuer Trust with respect to the Preferred Securities, or (b) substitutes for
the Preferred Securities other securities having substantially the same terms as the Preferred
Securities (the “Successor Securities”) so long as the Successor Securities have the same priority
as the Preferred Securities with respect to distributions and payments upon liquidation, redemption
and otherwise, (ii) a trustee of such successor entity possessing the same powers and duties as the
Property Trustee is appointed to hold the Debentures, (iii) the Successor Securities are listed, or
any Successor Securities will be listed upon notice of issuance, on the Nasdaq Global Select Market
or on such other exchange, interdealer quotation system or self-regulatory organization as the
Preferred Securities are then listed, if any, (v) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the rights, preferences and
privileges of the holders of the Preferred Securities (including any Successor Securities) in any
material respect, (vi) such successor entity has a purpose substantially identical to that of the
Issuer Trust, (vii) prior to such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, the Sponsor has received an Opinion of Counsel to the effect that (a) such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of the Preferred Securities (including
any Successor Securities) in any material respect, and (b) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, neither the Issuer Trust nor such
successor entity will be required to register as an “investment company” under the Investment
Company Act, and (viii) the Sponsor or its permitted transferee 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 Agreement. Notwithstanding
the foregoing, the Issuer Trust shall not, except with the consent of Holders of all 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 entity or
permit any other entity to consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger, replacement, conveyance, transfer or lease would cause the
Issuer Trust or the successor entity to be taxable as a corporation or classified as other than a
grantor trust for United States Federal income tax purposes.



ARTICLE X MISCELLANEOUS

PROVISIONS




     Section 10.1 Limitation of Rights of Holders. Except as set forth in Section 9.2, the death,
termination, dissolution, bankruptcy or incapacity of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Declaration of Trust, nor
dissolve, terminate or annul the Issuer Trust, nor entitle the legal representatives, successors or
heirs of such Person or any Holder for such person, to claim an accounting, take any action or
bring any proceeding in any court for a partition or winding up of the arrangements contemplated
hereby, nor otherwise affect the rights, obligations and liabilities of the parties hereto or any
of them.



     Section 10.2 Amendment.



          (a) This Declaration of Trust may be amended from time to time by the Property Trustee,
the Administrative Trustees and the Holders of all of the Common Securities, without the consent of
any Holder of the Preferred Securities, (i) to cure any ambiguity, correct or supplement any
provision herein that may be inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under






34









 







this Declaration of Trust, which shall not be inconsistent with the other provisions of this
Declaration of Trust, or (ii) to modify, eliminate or add to any provisions of this Declaration of
Trust to such extent as shall be necessary to ensure that the Issuer Trust will not be taxable as a
corporation or classified as other than a grantor trust for United States Federal income tax
purposes at all times that any Trust Securities are outstanding or to ensure that the Issuer Trust
will not be required to register as an “investment company” under the Investment Company Act or to
ensure the treatment of the Preferred Securities as Tier 1 regulatory capital under the prevailing
Federal Reserve rules and regulations or (iii) to conform the terms of the Declaration of Trust to
the description of this Declaration of Trust and the Preferred Securities in the Prospectus;
provided, however, that in the case of either clause (i) or (ii), such action shall not adversely
affect in any material respect the interests of any Holder, and any such amendment of this
Declaration of Trust shall become effective when notice thereof is given to the Holders.




          (b) Except as provided in Section 10.2(c), any provision of this Declaration of Trust may
be amended by the Issuer Trustees and the Holders of all of the Common Securities and with (i) the
consent of Holders of at least a Majority in Liquidation Amount of the Trust Securities, and (ii)
receipt by the Issuer Trustees of an Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Issuer Trustees in accordance with such amendment will not
cause the Issuer Trust to be taxable as a corporation or as other than a grantor trust for United
States Federal income tax purposes or affect the Issuer Trust’s exemption from status as an
“investment company” under the Investment Company Act.




          (c) In addition to and notwithstanding any other provision in this Declaration of Trust,
without the consent of each affected Holder, this Declaration of Trust 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 Holder to institute suit for the enforcement of
any such payment on or after such date; and notwithstanding any other provision herein, without the
unanimous consent of the Holders, this Section 10.2(c) may not be amended.




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




          (e) Notwithstanding anything in this Declaration of Trust to the contrary, without the
consent of the Sponsor and the Administrative Trustees, this Declaration of Trust may not be
amended in a manner that imposes any additional obligation on the Sponsor or the Administrative
Trustees.




          (f) In the event that any amendment to this Declaration of Trust is made, the
Administrative Trustees or the Property Trustee shall promptly provide to the Sponsor 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 of Trust that affects its own rights, duties or immunities under
this Declaration of Trust. The Property Trustee shall be entitled to receive an Opinion of Counsel
and an Officers’ Certificate stating that any amendment to this Declaration of Trust is in
compliance with this Declaration of Trust.




     Section 10.3 Separability. In case any provision in this Declaration of Trust or in the
Trust Securities Certificates shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected or impaired
thereby.



     Section 10.4 Governing Law. THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF
THE HOLDERS, THE ISSUER TRUST, THE SPONSOR AND THE ISSUER TRUSTEES WITH RESPECT TO THIS TRUST
AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF DELAWARE WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS.



     Section 10.5 Payments Due on Non-Business Day. If the date fixed for any payment on any
Trust Security shall be a day that is not a Business Day, then such payment need not be made on
such date but may be made on the next succeeding day that is a Business Day (except as otherwise
provided in Sections 4.1(a) and 4.2(d)), with the same force and effect as though made on the date
fixed for such payment, and no Distributions shall accumulate on such unpaid amount for the period
after such date.



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     Section 10.6 Successors This Declaration of Trust shall be binding upon and shall inure to
the benefit of any successor to the Sponsor, the Issuer Trust and any Issuer Trustee, including any
successor by operation of law Except in connection with a consolidation, merger or sale involving
the Sponsor that is permitted under Article VIII of the Indenture and pursuant to which the
assignee agrees in writing to perform the Sponsor’s obligations hereunder, the Sponsor shall not
assign its obligations hereunder



     Section 10.7 Headings The Article and Section headings are for convenience only and shall
not affect the construction of this Declaration of Trust



     Section 10.8 Reports Notices and Demands Any report, notice, demand or other communication
that by any provision of this Declaration of Trust is required or permitted to be given or served
to or upon any Holder or the Sponsor shall be sufficient for every purpose (except as otherwise
provided in Section 11) hereunder if in writing and mailed, first class, postage prepaid,
addressed, (a) in the case of a Holder of Preferred Securities, to such Holder as such Holder’s
name and address may appear on the Securities Register, and (b) in the case of the Holder of the
Common Securities or the Sponsor, to Evans Bancorp, Inc., 14-16 North Main Street, Angola, New York
14006, Attention: David J. Nasca, or to such other address as may be, specified in a written notice
by the Holder of the Common Securities or the Sponsor, as the case may be, to the Property Trustee
Such notice, demand or other communication to or upon a Holder shall be deemed to have been
sufficiently given 01 made, for all purposes, upon mailing Such notice, demand or other
communication to or upon the Sponsor shall be deemed to have been sufficiently given or made only
upon actual receipt of the writing by the Sponsor any notice, demand or other communication that by
any provision of this Declaration of Trust is required or permitted to be given 01 served to or
upon the Property Trustee, the Delaware Trustee, the Administrative Trustees or the Issuer Trust
shall be given in writing addressed to such Person as follows (a) with respect to the Property
Trustee to Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19801, Attention Corporate Trust Administration, (b) with respect to the Delaware Trustee,
to Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware
19801, Attention Corporate Trust Administration, (c) with respect to the Administrative Trustees,
to them at the address above for notices to the Sponsor, marked “Attention Administrative Trustees
of Evans Capital Trust II”, and (d) with respect to the Issuer Trust, to its principal office
specified in Section 2.2, with a copy to the Property Trustee Such notice, demand or other
communication to or upon the Issuer Trust, the Property Trustee or the Administrative Trustees
shall be deemed to have been sufficiently given or made only upon actual receipt of the writing by
the Issuer Trust, the Property Trustee or such Administrative Trustee



     Section 10.9 Agreement Not to Petition Each of the Issuer Trustees and the Sponsor agree for
the benefit of the Holders that, until at least one year and one day after the Issuer Trust has
been terminated in accordance with Article IX, they shall not file, or join in the filing of, a
petition against the Issuer Trust under any bankruptcy, insolvency, reorganization or other similar
law (including the United States Bankruptcy Code) (collectively, “Bankruptcy Laws”) or otherwise )
or in the commencement of any proceeding against the Issuer Trust under any Bankruptcy Law If the
Sponsor takes action in violation of this Section 10 9, the Property Trustee agrees, for the
benefit of Holders, that at the expense of the Sponsor, it shall file an answer with the bankruptcy
court or otherwise properly contest the filing of such petition by the Sponsor against the Issuer
Trust or the commencement of such action and raise the defense that the Sponsor has agreed in
writing not to take such action and should be estopped and precluded therefrom and such other
defenses, if any, as counsel for the Issuer Trustees or the Issuer Trust may assert The provisions
of this Section 109 shall survive the termination of this Trust Agreement



     Section 10.10 Trust Indenture Act; Conflict with Trust Indenture Act.



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




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




          (c) If any provision hereof limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act through operation of Section 318(c)
thereof, such imposed duties shall control. If any provision of this Declaration of Trust modifies
or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Declaration of Trust as so modified or excluded,
as the case may be.







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




     Section 10.11 Acceptance of Terms of Declaration of Trust, Guarantee Agreement and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON BEHALF OF A HOLDER
OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE
THE UNCONDITIONAL ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH
TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE AGREEMENT AND
THE INDENTURE, AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE
AGREEMENT AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE ISSUER TRUST, SUCH HOLDER
AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE
AND EFFECTIVE AS BETWEEN THE ISSUER TRUST AND SUCH HOLDER AND SUCH OTHERS.



     Section 10.12 Counterparts. This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.



     Section
10.13. Force Majeure. In no event shall the Property Trustee be responsible or liable for any failure or delay in
the performance of its obligations under this Agreement arising out of or caused by, directly or
indirectly, forces beyond its control, including without limitation strikes, work stoppages, any
provision of any law or regulation or any act of any governmental authority, accidents, acts of war
or terrorism, sabotage, epidemics, riots, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software or hardware) services.



[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]




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     IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated
Declaration of Trust.



	 	 	 	 	 
	 	EVANS BANCORP, INC.

as sponsor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	WILMINGTON TRUST COMPANY

as Property Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	WILMINGTON TRUST COMPANY

as Delaware Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ADMINISTRATIVE TRUSTEES:	 
	 	  	
 	 
	 	 	Name:  	David J. Nasca 	 
	 	 	as Administrative Trustee 	 
	 
	 	 	 
	 	  	
 	 
	 	 	Name:  	Gary A. Kajtoch 	 
	 	 	as Administrative Trustee 	 
	 
	 	 	 
	 	  	
 	 
	 	 	Name:  	John B. Connerton 	 
	 	 	as Administrative Trustee 	 
	 




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