Exhibit 4.08


 


Execution Copy


 




 


 





DECLARATION OF
TRUST


 


LEHMAN
BROTHERS HOLDINGS E-CAPITAL TRUST I


 


Dated as of August 19,
2005


 




 





 



















TABLE OF CONTENTS


 


	
  ARTICLE I

  
	
   

  	
   

  
	
  INTERPRETATION
  AND DEFINITIONS

  
	
   

  	
   

  	
   

  
	
  SECTION 1.1.

  	
  Interpretation
  and Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  	
   

  	
   

  
	
  TRUST
  INDENTURE ACT

  
	
   

  	
   

  	
   

  
	
  SECTION 2.1.

  	
  Trust Indenture
  Act; Application

  	
   

  
	
  SECTION 2.2.

  	
  Lists of
  Holders of Trust Securities

  	
   

  
	
  SECTION 2.3.

  	
  Reports by the
  Property Trustee

  	
   

  
	
  SECTION 2.4.

  	
  Periodic
  Reports to Property Trustee

  	
   

  
	
  SECTION 2.5.

  	
  Evidence of
  Compliance with Conditions Precedent

  	
   

  
	
  SECTION 2.6.

  	
  Trust
  Enforcement Events: Waiver

  	
   

  
	
  SECTION 2.7.

  	
  Trust
  Enforcement Event; Notice

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  	
   

  	
   

  
	
  ORGANIZATION

  
	
   

  	
   

  	
   

  
	
  SECTION 3.1.

  	
  Name

  	
   

  
	
  SECTION 3.2.

  	
  Office

  	
   

  
	
  SECTION 3.3.

  	
  Purpose

  	
   

  
	
  SECTION 3.4.

  	
  Authority

  	
   

  
	
  SECTION 3.5.

  	
  Title to
  Property of the Trust

  	
   

  
	
  SECTION 3.6.

  	
  Powers and
  Duties of the Regular Trustees

  	
   

  
	
  SECTION 3.7.

  	
  Prohibition of
  Actions by the Trust and the Trustees

  	
   

  
	
  SECTION 3.8.

  	
  Powers and
  Duties of the Property Trustee

  	
   

  
	
  SECTION 3.9.

  	
  Certain Duties
  and Responsibilities of the Property Trustee

  	
   

  
	
  SECTION 3.10.

  	
  Certain Rights
  of Property Trustee

  	
   

  
	
  SECTION 3.11.

  	
  Delaware Trustee

  	
   

  
	
  SECTION 3.12.

  	
  Execution of
  Documents

  	
   

  
	
  SECTION 3.13.

  	
  Not Responsible
  for Recitals or Issuance of Trust Securities

  	
   

  
	
  SECTION 3.14.

  	
  Duration of Trust

  	
   

  
	
  SECTION 3.15.

  	
  Mergers

  	
   

  
				



 


i



















	
  ARTICLE IV

  
	
   

  	
   

  	
   

  
	
  SPONSOR

  
	
   

  	
   

  	
   

  
	
  SECTION 4.1.

  	
  Responsibilities
  of the Sponsor

  	
   

  
	
  SECTION 4.2.

  	
  Payment of
  Trust Expenses

  	
   

  
	
  SECTION 4.3.

  	
  Covenants of the
  Sponsor

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  	
   

  	
   

  
	
  TRUST COMMON
  SECURITIES HOLDER

  
	
   

  	
   

  	
   

  
	
  SECTION 5.1.

  	
  Company’s
  Purchase of Trust Common Securities

  	
   

  
	
  SECTION 5.2.

  	
  Covenants of
  the Trust Common Securities Holder

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  	
   

  	
   

  
	
  TRUSTEES

  
	
   

  	
   

  	
   

  
	
  SECTION 6.1.

  	
  Number of Trustees

  	
   

  
	
  SECTION 6.2.

  	
  Delaware Trustee

  	
   

  
	
  SECTION 6.3.

  	
  Property
  Trustee; Eligibility

  	
   

  
	
  SECTION 6.4.

  	
  Qualifications
  of Regular Trustees and Delaware Trustee Generally

  	
   

  
	
  SECTION 6.5.

  	
  Regular Trustees

  	
   

  
	
  SECTION 6.6.

  	
  Delaware Trustee

  	
   

  
	
  SECTION 6.7.

  	
  Appointment,
  Removal and Resignation of Trustees

  	
   

  
	
  SECTION 6.8.

  	
  Vacancies among
  Trustees

  	
   

  
	
  SECTION 6.9.

  	
  Effect of Vacancies

  	
   

  
	
  SECTION 6.10.

  	
  Meetings

  	
   

  
	
  SECTION 6.11.

  	
  Delegation of
  Power

  	
   

  
	
  SECTION 6.12.

  	
  Merger,
  Conversion, Consolidation or Succession to Business

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  	
   

  	
   

  
	
  TERMS OF SECURITIES

  
	
   

  	
   

  	
   

  
	
  SECTION 7.1.

  	
  General
  Provisions Regarding Securities

  	
   

  
	
  SECTION 7.2.

  	
  Distributions

  	
   

  
	
  SECTION 7.3.

  	
  Redemption of
  Trust Securities

  	
   

  
	
  SECTION 7.4.

  	
  Redemption
  Procedures

  	
   

  
	
  SECTION 7.5.

  	
  Voting and
  Enforcement Rights of Trust Preferred Securities

  	
   

  
	
  SECTION 7.6.

  	
  Voting and
  Enforcement Rights of Trust Common Securities

  	
   

  
	
  SECTION 7.7.

  	
  Paying Agent
  and Security Registrar

  	
   

  
	
  SECTION 7.8.

  	
  Certificates of
  Trust Securities

  	
   

  
	
  SECTION 7.9.

  	
  Transfer and
  Exchange of Trust Securities

  	
   

  
	
  SECTION 7.10.

  	
  Acceptance of
  Guarantee and Agreements

  	
   

  
	
  SECTION 7.11.

  	
  Mutilated,
  Destroyed, Lost or Stolen Certificates

  	
   

  



 


ii



















	
  ARTICLE VIII

  
	
   

  	
   

  	
   

  
	
  DISSOLUTION AND
  LIQUIDATION OF THE TRUST

  
	
   

  	
   

  	
   

  
	
  SECTION 8.1.

  	
  Dissolution and
  Termination of Trust

  	
   

  
	
  SECTION 8.2.

  	
  Liquidation
  Distribution Upon Dissolution and Termination of the Trust

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  
	
   

  	
   

  	
   

  
	
  LIMITATION OF
  LIABILITY OF

  HOLDERS OF TRUST SECURITIES, TRUSTEES OR OTHERS

  
	
   

  	
   

  	
   

  
	
  SECTION 9.1.

  	
  Liability

  	
   

  
	
  SECTION 9.2.

  	
  Exculpating

  	
   

  
	
  SECTION 9.3.

  	
  Fiduciary Duty

  	
   

  
	
  SECTION 9.4.

  	
  Indemnification

  	
   

  
	
  SECTION 9.5.

  	
  Outside Businesses

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  
	
   

  	
   

  	
   

  
	
  ACCOUNTING AND
  TAX MATTERS

  
	
   

  	
   

  	
   

  
	
  SECTION 10.1.

  	
  Fiscal Year

  	
   

  
	
  SECTION 10.2.

  	
  Certain
  Accounting Matters; Returns and Information

  	
   

  
	
  SECTION 10.3.

  	
  Banking

  	
   

  
	
  SECTION 10.4.

  	
  Withholding

  	
   

  
	
  SECTION 10.5.

  	
  Treatment as
  Grantor Trust for Federal Income Tax Purposes

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  
	
   

  	
   

  	
   

  
	
  AMENDMENTS AND
  MEETINGS

  
	
   

  	
   

  	
   

  
	
  SECTION 11.1.

  	
  Amendments of
  this Declaration of Trust

  	
   

  
	
  SECTION 11.2.

  	
  Amendments of
  the LLC Guarantee or LLC Agreement

  	
   

  
	
  SECTION 11.3.

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

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  
	
   

  	
   

  	
   

  
	
  REPRESENTATIONS
  OF PROPERTY TRUSTEE

  AND DELAWARE TRUSTEE

  
	
   

  	
   

  	
   

  
	
  SECTION 12.1.

  	
  Representations
  and Warranties of Property Trustee

  	
   

  
	
  SECTION 12.2.

  	
  Representations
  and Warranties of Delaware Trustee

  	
   

  



 


iii



















	
  ARTICLE XIII

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  SECTION 13.1.

  	
  Notices

  	
   

  
	
  SECTION 13.2.

  	
  Governing Law

  	
   

  
	
  SECTION 13.3.

  	
  Headings

  	
   

  
	
  SECTION 13.4.

  	
  Successors and
  Assigns

  	
   

  
	
  SECTION 13.5.

  	
  Partial
  Enforceability

  	
   

  
	
  SECTION 13.6.

  	
  Counterparts

  	
   

  



 


	
  EXHIBIT A-1

  	
  Form of
  Trust Preferred Security Certificate

  	
   

  
	
  EXHIBIT A-2

  	
  Form of
  Trust Common Security Certificate

  	
   

  
	
  EXHIBIT B

  	
  Form of
  Certificate of Transfer

  	
   

  
	
  EXHIBIT C

  	
  Form of
  Certificate of Exchange

  	
   

  



 


iv



















CROSS-REFERENCE
TABLE*


 


	
  Section of

  Trust Indenture Act

  of 1939, as amended

  	
   

  	
  Section of

  Declaration of Trust

  
	
   

  	
   

  	
   

  
	
  310(a)

  	
   

  	
  6.3(a)

  
	
  310(b)

  	
   

  	
  6.3(c)

  
	
  310(c)

  	
   

  	
  Inapplicable

  
	
  311(a)

  	
   

  	
  2.2(b)

  
	
  311(b)

  	
   

  	
  2.2(b)

  
	
  311(c)

  	
   

  	
  Inapplicable

  
	
  312(a)

  	
   

  	
  2.2(a)

  
	
  312(b)

  	
   

  	
  2.2(b)

  
	
  313

  	
   

  	
  2.3

  
	
  314(a)

  	
   

  	
  2.4

  
	
  314(b)

  	
   

  	
  Inapplicable

  
	
  314(c)

  	
   

  	
  2.5

  
	
  314(d)

  	
   

  	
  Inapplicable

  
	
  314(f)

  	
   

  	
  Inapplicable

  
	
  315(a)

  	
   

  	
  3.9(b)

  
	
  315(c)

  	
   

  	
  3.9(a)

  
	
  315(d)

  	
   

  	
  3.9(a)

  
	
  316(a)

  	
   

  	
  2.6(a)

  
	
  316(c)

  	
   

  	
  3.6(e)

  



 










*                                         This
Cross-Reference Table does not constitute part of the Declaration of Trust and
shall not affect the interpretation of any of its terms or provisions.


 


v



















DECLARATION OF TRUST

OF

LEHMAN BROTHERS HOLDINGS E-CAPITAL TRUST I


 


August 19,
2005


 


DECLARATION OF
TRUST (the “Declaration of Trust”) dated and effective as of August 19,
2005 by and among Lehman Brothers Holdings Inc., a Delaware corporation, as
Sponsor, and Barrett DiPaolo, Karen Corrigan and James Killerlane III, as the
initial Regular Trustees, JPMorgan Chase Bank, N.A., as the initial Property
Trustee, and Chase Bank USA, National Association, as the initial Delaware
Trustee, not in their individual capacities but solely as Trustees, and by the
Holders, from time to time, of undivided beneficial ownership interests in the
Trust to be issued pursuant to this Declaration of Trust.


 


WHEREAS, the
Trustees and the Sponsor desire to establish Lehman Brothers Holdings E-Capital
Trust I (the “Trust”) as a trust pursuant to the Statutory Trust Act for
the sole purpose of issuing and selling certain securities representing
undivided beneficial ownership interests in the assets of the Trust, investing
the proceeds thereof in certain LLC Preferred Securities of the LLC and
engaging in only those activities necessary or incidental thereto; and


 


NOW, THEREFORE,
it being the intention of the parties hereto to establish the Trust as a statutory trust under the Statutory
Trust Act and that this Declaration of Trust constitute the governing instrument of such statutory trust,
the Trustees declare that all assets contributed to the Trust shall be held in
trust for the benefit of the Holders, from time to time, of the securities
representing undivided beneficial ownership interests in the assets of the
Trust issued hereunder, subject to the provisions of this Declaration of Trust.


 


ARTICLE I



INTERPRETATION AND DEFINITIONS


 


SECTION 1.1.                                                                       Interpretation
and Definitions.


 


Unless the
context otherwise requires:


 


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


 


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


 


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


 



















(d)                                 unless otherwise defined in this Declaration
of Trust, a term defined in the Trust Indenture Act has the same meaning when
used in this Declaration of Trust;


 


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


 


(f)                                    a term used in this Agreement and not
otherwise defined herein shall have the meaning ascribed to such term in the
LLC Agreement.


 


“10% in
Liquidation Amount” means, except as provided by the Trust Indenture Act,
Holder(s) of outstanding Trust Securities, voting together as a single class,
or, as the context may require, Holders of outstanding Trust Preferred
Securities or Holders of outstanding Trust Common Securities, voting separately
as a class, who are the record owners of 10% or more of the aggregate
liquidation amount of all outstanding Trust Securities of the relevant class
(excluding any Trust Preferred Securities held by the Company or any of its
Affiliates).


 


“144A
Global Certificate” means a Global Certificate substantially in the form of
Exhibit A-1 hereto bearing the Global Certificate Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in the name
of, the Depositary or its nominee that will be issued in a denomination equal
to the outstanding principal amount of the Trust Preferred Securities, sold in
reliance on Rule 144A.


 


“Affiliate”
means, with respect to any specified Person, any other Person that directly or
indirectly controls or is controlled by, or is under 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.


 


“Affiliate
Debt Instruments” has the meaning set forth in Section 9.2(b) of
the LLC Agreement.


 


“Applicable
Procedures” means, with respect to any transfer or exchange of or for
beneficial interests in any Global Certificate, the rules and procedures
of the Depositary, Euroclear and Clearstream that apply to such transfer or
exchange.


 


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


 


“Business
Day” means any day other than a Saturday or Sunday or a day on which
banking institutions generally in The City of New York are authorized or
required by law, regulation or executive order to close.


 


“Certificate”
means a Trust Common Security Certificate or a Trust Preferred Security
Certificate.


 


“Clearstream
Banking” means Clearstream Banking, société anonyme, Luxembourg.


 


2



















“Closing
Date” means the date on which the Trust Preferred Securities are issued and
sold.


 


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


 


“Commission”
means the Securities and Exchange Commission.


 


“Company”
means Lehman Brothers Holdings Inc., a Delaware corporation, and any of its
successors.


 


“Company
Debenture” has the meaning set forth in Section 9.1(a) of the LLC
Agreement.


 


“Company
Indemnified Person” means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Regular Trustee or any Affiliate thereof; or (d) any officer, director,
shareholder, member, partner, employee, representative or agent of the Trust or
any of its Affiliates.


 


“Corporate
Trust Office” means the principal corporate trust office of the Property
Trustee at which, at any particular time, its corporate trust business shall be
administered, which office at the date hereof is located at 4 New York Plaza,
15th Floor, New York, New York 10004.


 


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


 


“Creditor”
has the meaning set forth in Section 4.2(c) hereof.


 


“Declaration
of Trust” means this Declaration of Trust, as it may be amended, modified
or supplemented from time to time.


 


“Delaware
Trustee” has the meaning set forth in Section 6.2 hereof.


 


“Depositary”
means, with respect to Trust Securities issuable in whole or in part in the
form of one or more Global Certificates, a clearing agency registered under the
Exchange Act that is designated to act as Depositary for such Trust Securities.


 


“Distribution”
means a quarterly distribution in an amount equal to an annual rate of 3-Month
LIBOR plus a margin equal to 0.78% until August 19, 2010 and from and
after August 19, 2010 an amount equal to an annual rate of 3-Month LIBOR
plus a margin equal to 1.78%, accruing from the Closing Date on the initial
stated liquidation amount of $1,000 per Trust Security.  Distributions shall accumulate and compound
quarterly at the rate if Distributions are not paid on the scheduled payment
date at the same rate as Distributions accumulate for that period.  The amount of distribution for each day that
the Trust Securities are


 


3



















outstanding
will be calculated by dividing the applicable rate in effect for such day by
360 and multiplying the result by the principal amount of the Trust Securities.


 


“DTC”
means the Depository Trust Company, the initial Depositary.


 


“Euroclear”
means Euroclear Bank S.A./N.V., as operator of the Euroclear System.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended from time to
time, or any successor legislation.


 


“Exchange
Offer” means the Exchange Offer as defined in the Registration Rights
Agreement.


 


“Exchange
Offer Registration Statement” means the Exchange Offer Registration
Statement defined in the Registration Rights Agreement.


 


“Exchange
Trust Preferred Securities” has the meaning set forth in Section 7.1(a) hereof.


 


“Fiduciary
Indemnified Person” has the meaning set forth in Section 9.4(b) hereof.


 


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


 


“Global
Certificate” means a fully registered, global certificate representing
Trust Preferred Securities.


 


“Global Certificate Legend” means the
legend set forth in Section 7.9(g)(ii) hereof, which is required to
be placed on all Global Certificates issued under this Declaration of Trust.


 


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


 


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


 


“Indenture”
means the indenture governing the Company Debenture and any Affiliate Debt
Instrument.


 


“Indirect
Participant” means a Person who holds a beneficial interest in a Global
Certificate through a Participant.


 


“Initial
Purchasers” means Lehman Brothers Inc., Zions Investment Securities, Inc.
and SunTrust Capital Markets, Inc., pursuant to the Purchase Agreement.


 


4



















“Investment
Affiliate” means the Company or any corporation, partnership, limited
liability company or other entity (other than the LLC or the Trust) that is
controlled by the Company for purposes of Rule 3a-5 under the Investment
Company Act and is not an investment company by reason of Section 3(a) or
3(b) of the Investment Company Act or excepted from the definition of
investment company by Section 3(c) of the Investment Company Act.


 


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


 


“Investment
Event of Default” means an event of default under any Affiliate Debt
Instrument.


 


“Investment
Guarantee” means any guarantee by the Company with respect to the payment
of principal, interest and other payment terms of Affiliate Debt Instruments
that are not issued by the Company.


 


“Legal
Action” has the meaning set forth in Section 3.6(h) hereof.


 


“Letter
of Transmittal” means the letter of transmittal to be prepared by the Trust, the LLC and the Sponsor and sent to all holders of
the Trust Preferred Securities, the LLC Preferred Securities and the Company
Debentures for use by such holders in connection with the Exchange Offer.


 


“Liquidation”
has the meaning set forth in Section 8.2 hereof.


 


“List of
Holders” has the meaning set forth in Section 2.2(a) hereof.


 


“LLC”
means Lehman Brothers Holdings E-Capital LLC I, a Delaware limited liability
company formed pursuant to the LLC Agreement.


 


“LLC
Agreement” means the Limited Liability Company Agreement of the LLC dated
as of August 19, 2005, as amended or supplemented from time to time.


 


“LLC
Enforcement Event” has the meaning of “Enforcement Event” set forth in Section 8.1(a) of
the LLC Agreement.


 


“LLC
Guarantee” means the Limited Liability Company Guarantee Agreement dated as
of August 19, 2005 by the Company in favor of the LLC Preferred Security
Holders with respect to the LLC Preferred Securities, as amended or
supplemented from time to time.


 


“LLC
Preferred Securities” has the meaning of the “Preferred Securities” set
forth in Section 1.1 of the LLC Agreement.


 


“London
Business Day” means a day other than a Saturday or Sunday on which dealings
in deposits in U.S. dollars are transacted, or with respect to any future date
are expected to be transacted, in the London interbank market.


 


5





















 


“Majority
in Liquidation Amount” means, except as provided by the Trust Indenture
Act, Holder(s) of outstanding Trust Securities, voting together as a single
class, or, as the context may require, Holders of outstanding Trust Preferred
Securities or Holders of outstanding Trust Common Securities, voting separately
as a class, who are the record owners of more than 50% of the aggregate
liquidation amount of all outstanding Trust Securities of the relevant class
(excluding any Trust Preferred Securities held by the Company or any of its
Affiliates).


 


“Managing
Member” means the managing member in its capacity as the managing member of
the LLC, its permitted successors, or any successor managing member in the LLC
admitted as such pursuant to the LLC Agreement.


 


“Mandatory
Deferral Event” has the meaning set forth in Section 6.2 of the LLC
Agreement.


 


“Non-U.S.
Person” means a Person who is not a U.S. Person.


 


“Officers’
Certificate” means, with respect to any Person, a certificate signed by two
Authorized Officers of such Person.  Any
Officers’ Certificate delivered with respect to compliance with a condition or
covenant provided herein shall include:


 


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


 


(b)                                 a
statement as to whether, in the opinion of each such officer acting on behalf
of such Person, such condition or covenant has been complied with;


 


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


 


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


 


provided,
that the term “Officers’ Certificate”, when used with reference to Regular
Trustees who are natural persons, shall mean a certificate signed by two of the
Regular Trustees that otherwise satisfies the foregoing requirements.


 


“Opinion
of Counsel” means a written opinion from legal counsel who is acceptable to
the Security Registrar.


 


“Original
Trust Preferred Securities” has the meaning set forth in Section 7.1(a) hereof.


 


“Parity
Debt Securities” has the meaning set forth in Section 4.3(b) hereof.


 


6



















“Parity
Guarantees” has the meaning set forth in Section 4.3(b) hereof.


 


“Participant”
means, with respect to the Depositary, Euroclear or Clearstream, a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively
(and, with respect to DTC, shall include Euroclear and Clearstream).


 


“Paying
Agent” has the meaning set forth in Section 3.8(g) hereof.


 


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


 


“Private Placement Legend” means the
legend set forth in Section 7.9(g)(i)(a) hereof to be placed on all
Trust Preferred Securities issued under this Declaration of Trust except where
otherwise permitted by the provisions of this Declaration of Trust.


 


“Pro Rata”
means, pro rata to each Holder of Trust Securities according to the aggregate
liquidation amount of the Trust Securities held by the relevant Holder in
relation to the aggregate liquidation amount of all Trust Securities
outstanding.


 


“Property
Account” has the meaning set forth in Section 3.8(c)(i) hereof.


 


“Property
Trustee” means the Trustee meeting the eligibility requirements set forth
in Section 6.3 hereof.


 


“Purchase
Agreement” means the purchase agreement by and among the Company, the LLC
and the Trust and the Initial Purchasers dated as of August 12, 2005
regarding, among other things, the sale of the Trust Preferred Securities to
the Initial Purchasers.


 


“QIB”
means a “qualified institutional buyer” as defined in Rule 144A.


 


“Redemption
Notice” has the meaning set forth in Section 7.5(a) hereof.


 


“Redemption
Price” means such amount as each Trust Security would receive if all the
assets then held by the LLC (or the Trust, if the LLC has been liquidated) were
paid in full in cash in accordance with their terms and the LLC and the Trust
were liquidated in accordance with their respective terms.


 


“Registration
Rights Agreement” means the Registration Rights Agreement, dated as of the date hereof, among the Sponsor, the LLC, the Trust and the
Initial Purchasers, as such agreement may be amended, modified or supplemented
from time to time.


 


“Regular
Trustee” means any Trustee other than the Property Trustee or the Delaware
Trustee.


 


“Regulation
S” means Regulation S promulgated under the Securities Act.


 


7



















“Regulation
S Global Certificate” means a Global Certificate in the form of Exhibit A-1
hereto bearing the Global Certificate Legend deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Trust Preferred
Securities initially sold in reliance on Rule 903 of Regulation S.


 


“Responsible
Officer” means, with respect to the Property Trustee, any officer with
direct responsibility for the administration of the Trust, and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer’s knowledge of and familiarity with
the particular subject.


 


“Restricted
Definitive Certificate” means a certificate in definitive registered form
bearing the Private Placement Legend; provided, that such certificate
issued in exchange for a beneficial interest in a Regulation S Global
Certificate will be treated as a Restricted Definitive Certificate during the
Restricted Period for such Regulation S Global Certificate.


 


“Restricted Global
Certificate” means a Global Certificate bearing the Private
Placement Legend; provided, that a Regulation S Global Certificate will
be treated as a Restricted Global Certificate during the Restricted Period
thereof.


 


“Restricted
Period” means the 40-day distribution compliance period as defined in
Regulation S.


 


“Rule 144”
means Rule 144 promulgated under the Securities Act.


 


“Rule 144A”
means Rule 144A promulgated under the Securities Act.


 


“Rule 903”
means Rule 903 promulgated under the Securities Act.


 


“Rule 904”
means Rule 904 promulgated under the Securities Act.


 


“Securities
Act” means the Securities Act of 1933, as amended.


 


“Security
Register” has the meaning set forth in Section 7.8(a) hereof.


 


“Security
Registrar” has the meaning set forth in Section 7.8(c) hereof.


 


“Shelf
Registration Statement” means the Shelf Registration Statement as defined
in the Registration Rights Agreement.


 


“Special
Event” has the meaning set forth in Section 1.1 of the LLC Agreement.


 


“Special
Representative” has the meaning set forth in Section 8.1(a) of
the LLC Agreement.


 


“Sponsor”
means the Company or any successor entity in a merger, consolidation or
amalgamation, in its capacity as sponsor of the Trust.


 


8


















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


 


“Successor Delaware
Trustee” has the meaning set forth in Section 6.7(c) hereof.


 


“Successor
Entity” has the meaning set forth in Section 3.15(b)(i) hereof.


 


“Successor
Property Trustee” has the meaning set forth in Section 6.7(b) hereof.


 


“Successor
Trust Preferred Securities” has the meaning set forth in Section 3.15(b)(i)(B) hereof.


 


“Super
Majority” has the meaning set forth in Section 2.6(a)(ii) hereof.


 


“3-Month
LIBOR” means the rate (expressed as a percentage per annum) for deposits in
U.S. dollars for a three-month period that appears on Telerate Page 3750
as of 11:00 a.m. (London time) on the second London Business Day
immediately preceding the first day of such distribution period.  The term “Telerate Page 3750” means the
display on Bridge Telerate, Inc. on page 3750 or any successor
service or page for the purpose of displaying the London interbank offered
rates of major banks.


 


If 3-month
LIBOR cannot be determined as described above, the Managing Member shall select
four major banks in the London interbank market.  The Managing Member shall request that the
principal London offices of those four selected banks provide their offered
quotations to prime banks in the London interbank market at approximately 11:00 a.m.,
London time, on the second London Business Day immediately preceding the first
day of such distribution period.  These
quotations will be for deposits in U.S. dollars for a three-month period.  Offered quotations must be based on a
principal amount equal to an amount that is representative of a single
transaction in U.S. dollars in the market at the time.


 


If two or more
quotations are provided, 3-month LIBOR for the applicable distribution period
will be the arithmetic mean of the quotations. 
If fewer than two quotations are provided, the Managing Member shall
select three major rates quoted by those three major banks in New York City
time, on the second London Business Day immediately preceding the first day of
such distribution period.  The rates
quoted will be for loans in U.S. dollars, for a three-month period.  Rates quoted must be based on a principal amount
equal to an amount that is representative of a single transaction in U.S.
dollars in the market at the time.  If
fewer than three New York City banks selected by the Managing Member are
quoting rates, 3-month LIBOR for the applicable distribution period will be the
same as for the immediately preceding distribution period.


 


All
percentages resulting from any interest rate calculation will be rounded upward
or downward, as appropriate, to the next higher or lower one hundred-thousandth
of a percentage point.


 


“Treasury
Regulations” means the income tax regulations, including temporary and
proposed regulations, promulgated under the Code by the United States
Department of the


 


9





















 


Treasury, as
such regulations may be amended from time to time (including corresponding
provisions of succeeding regulations).


 


“Trust”
has the meaning set forth in the recitals hereto.


 


“Trust
Common Security” has the meaning set forth in Section 7.1(c)(ii) hereof.


 


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


 


“Trust
Enforcement Event” means (i) a default by the Company in respect of
any of its obligations under the Trust Guarantee, (ii) a LLC Enforcement
Event or (iii) an Investment Event of Default on any Affiliate Debt
Instrument or a default under any Investment Guarantee.


 


“Trust
Guarantee” means the Trust Guarantee
Agreement dated as of August 19,
2005, entered into by the
Company, as Guarantor, for the
benefit of the Holders of the Trust Securities.


 


“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended from time
to time, or any successor legislation.


 


“Trust
Preferred Security” has the meaning set forth in Section 7.1(c)(i) hereof.  The Trust Preferred Securities shall consist
of the Original Trust Preferred Securities and, if issued, the Exchange Trust
Preferred Securities.


 


“Trust Preferred Security Certificate”
means a certificate in fully registered form representing a Trust Preferred
Security substantially in the form of Exhibit A-1 hereto.


 


“Trust
Securities” has the meaning set forth in Section 7.1(c)(ii) hereof.


 


“Trustee”
or “Trustees” means each Person who has signed this Declaration of Trust
as a trustee, so long as such Person shall continue as a trustee in accordance
with the terms hereof, and all other Persons who may from time to time be duly appointed, qualified and
serving as Trustees in accordance with the provisions hereof, and references
herein to a Trustee or the Trustees shall refer to such Person or Persons
solely in their capacity as trustees hereunder.


 


“U.S. Person”
means a U.S. Person as defined in Rule 902(k) promulgated under the
Securities Act.


 


“Unrestricted
Definitive Certificate” means a Certificate in definitive registered form
that does not bear and is not required to bear the Private Placement Legend.


 


“Unrestricted
Global Certificate” means a Global Certificate that does not bear and is
not required to bear the Private Placement Legend.


 


10





















 


ARTICLE II



TRUST INDENTURE ACT


 


SECTION 2.1.                                                                       Trust Indenture Act; Application.


 


(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
Trustee that is a trustee for the purposes of the Trust Indenture Act.


 


(c)                                  If and to the extent that any provision of
this Declaration of Trust conflicts with the duties imposed by Sections 310 to
317, inclusive, of the Trust Indenture Act, such imposed duties shall control.


 


(d)                                 The
application of the Trust Indenture Act to this Declaration shall not affect the
Trust’s classification as a grantor trust for United States federal income tax
purposes.


 


SECTION 2.2.                                                                       Lists of Holders of Trust Securities.


 


(a)                                  Each
of the Sponsor and the Regular Trustees on behalf of the Trust shall provide
the Property Trustee (i), except while
the Trust Preferred Securities are represented by one or more Global
Certificates, at least five Business Days prior to the date for payment of
distributions, a list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Holders of the Trust Securities (“List
of Holders”) as of the record date relating to the payment of such
distributions and (ii) at any other time, within 30 days of receipt by the
Trust of a written request from the Property Trustee for a List of Holders as
of a date no more than 15 days before such List of Holders is given to the
Property Trustee; provided, that neither the Sponsor nor the Regular
Trustees on behalf of the Trust shall be obligated to provide such List of
Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Property Trustee by the Sponsor and the Regular
Trustees on behalf of the Trust.  The
Property Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in Lists of Holders given to it or which
it receives in the capacity as Paying Agent (if acting in such capacity); provided,
that the Property Trustee may destroy any List of Holders previously given to
it on receipt of a new List of Holders.


 


(b)                                 The Property Trustee shall comply with its
obligations under, and shall be entitled to the benefits of, Sections 311(a),
311(b) and 312(b) of the Trust Indenture Act.


 


SECTION 2.3.                                                                       Reports by the Property Trustee.


 


Within 60 days
after May 15 of each year (commencing with the year of the first
anniversary of the issuance of the Trust Preferred Securities), the Property
Trustee shall provide to the Holders of the Trust Preferred Securities such
reports as are required by Section 313 of the Trust


 


11





















 


Indenture Act,
if any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Property Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.


 


SECTION 2.4.                                                                       Periodic Reports to Property Trustee.


 


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


 


SECTION 2.5.                                                                       Evidence of Compliance with Conditions
Precedent.


 


Each of the
Sponsor and the Regular Trustees on behalf of the Trust shall provide to the
Property Trustee such evidence of compliance with any conditions precedent, if
any, provided for in this Declaration 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) (1) may be given
in the form of an Officers’ Certificate.


 


SECTION 2.6.                                                                       Trust Enforcement Events: Waiver.


 


(a)                                  The Holders of a Majority in Liquidation
Amount of Trust Preferred Securities may, by vote or written consent, on behalf
of the Holders of all of the Trust Preferred Securities, waive any past Trust
Enforcement Event in respect of the Trust Preferred Securities and its
consequences; provided, that if the underlying event of default or LLC
Enforcement Event:


 


(i)                                     is not waivable
under the LLC Guarantee or the LLC Agreement, the Trust Enforcement Event under
this Declaration of Trust shall also not be waivable; or


 


(ii)                                  requires the consent or vote of the Holders
of greater than a simple majority in liquidation preference of the LLC
Preferred Securities (a “Super Majority”) to be waived under the LLC
Guarantee or the LLC Agreement, the Trust Enforcement Event under this
Declaration of Trust may only be waived by the vote or written consent of the
Holders of at least the same Super Majority in Liquidation Amount of the Trust
Preferred Securities.


 


The foregoing
provisions of this Section 2.6(a) shall be in lieu of Section 316(a)(1)(B) of
the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Declaration of Trust and
the Trust Securities, as permitted by the Trust Indenture Act. Upon such
waiver, any such default shall cease to exist, and any Trust Enforcement Event
with respect to the Trust Preferred Securities 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 Trust
Enforcement Event with respect to the Trust Preferred Securities or impair any
right consequent thereon. Any
waiver by the Holders of the Trust Preferred Securities of Trust Enforcement
Events with respect to the Trust Preferred Securities shall also be deemed to
constitute a waiver by the Holders of the Trust Common Securities of any such
Trust Enforcement Event with respect to the Trust Common Securities for


 


12





















 


all purposes
of this Declaration of Trust without any further act, vote, or consent of the
Holders of the Trust Common Securities.


 


(b)                                 The Holders of a Majority in Liquidation
Amount of the Trust Common Securities may, by vote, on behalf of the Holders of
all of the Trust Common Securities, waive any past Trust Enforcement Event with
respect to the Trust Common Securities and its consequences; provided,
that if the underlying event of default or LLC Enforcement Event:


 


(i)                                     is not waivable under the LLC Guarantee or
the LLC Agreement, except where the Holders of the Trust Common Securities are
deemed to have waived such Trust Enforcement Event under this Declaration of
Trust as provided below in this Section 2.6(b), the Trust Enforcement
Event under this Declaration of Trust shall also not be waivable; or


 


(ii)                                  requires the consent or vote of the Holders
of a Super Majority to be waived, except where the Holders of the Trust Common
Securities are deemed to have waived such Trust Enforcement Event under the
Declaration of Trust as provided below in this Section 2.6(b), the Trust
Enforcement Event under this Declaration of Trust may only be waived by the
vote or written consent of the Holders of at least the relevant Super Majority
in Liquidation Amount of the Trust Common Securities;


 


provided,
further, each Holder of Trust Common Securities shall be deemed to have
waived any such Trust Enforcement Event and all Trust Enforcement Events with
respect to the Trust Common Securities and its consequences until all Trust
Enforcement Events with respect to the Trust Preferred Securities have been
cured, waived or otherwise eliminated, and until such Trust Enforcement Events
have been so cured, waived or otherwise eliminated, the Property Trustee shall
be deemed to be acting solely on behalf of the Holders of the Trust Preferred
Securities and only the Holders of the Trust Preferred Securities shall have
the right to direct the Property Trustee in accordance with the terms of the
Trust Securities.  The foregoing
provisions of this Section 2.6(b) shall be in lieu of Sections 316(a) (1) (A) and
316(a)(1)(B) of the Trust Indenture Act and such Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act are hereby expressly excluded from
this Declaration of Trust and the Trust Securities, as permitted by the Trust
Indenture Act.  Subject to the foregoing
provisions of this Section 2.6(b), upon such waiver, any such default
shall cease to exist and any Trust Enforcement Event with respect to the Trust
Common Securities 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 Trust Enforcement Event with respect to the
Trust Common Securities or impair any right consequent thereon.


 


(c)                                  A waiver of a LLC Enforcement Event by the
Property Trustee at the direction of the Holders of the Trust Preferred
Securities constitutes a waiver of the corresponding Trust Enforcement Event under this
Declaration of Trust.  The foregoing
provisions of this Section 2.6(c) shall be in lieu of Section 316(a)(1)(B) of
the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Declaration of Trust and
the Trust Securities, as permitted by the Trust Indenture Act.


 


13





















 


SECTION 2.7.                                                                       Trust Enforcement Event; Notice.


 


(a)                                  The
Property Trustee shall, within 90 days after the occurrence of a Trust Enforcement
Event, transmit by mail, first class postage prepaid, to the Holders of the
Trust Securities, notices of all defaults with respect to the Trust Securities
actually known to a Responsible Officer of the Property Trustee, unless such
defaults have been cured before the giving of such notice (the term “defaults”
for the purposes of this Section 2.7 being hereby defined to be defaults
as defined in the Trust Guarantee or the LLC Agreement or any Investment Event
of Default, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein); provided,
that except for a default in the payment of principal of (or premium, if any)
or interest on any of the Affiliate Debt Instruments or in the payment of any
sinking fund installment established for the Affiliate Debt Instruments, the
Property Trustee shall be protected in withholding such notice if and so long
as a Responsible Officer of the Property Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders of the Trust
Securities.


 


(b)                                 The
Property Trustee shall not be deemed to have knowledge of any default except
any default as to which the Property Trustee shall have received written notice
or of which a Responsible Officer of the Property Trustee charged with the
administration of this Declaration of Trust shall have actual knowledge.


 


ARTICLE III



ORGANIZATION


 


SECTION 3.1.                                                                       Name.


 


The Trust is
named “Lehman Brothers Holdings E-Capital Trust I,” as such name may be
modified from time to time by the Regular Trustees following written notice to
the Holders of Trust Securities, the Property Trustee and the Delaware Trustee.
The Trust’s activities may be conducted under the name of the Trust or any
other name deemed advisable by the Regular Trustees.


 


SECTION 3.2.                                                                       Office.


 


The address of
the principal office of the Trust is c/o Lehman Brothers Holdings Inc., 745
Seventh Avenue, New York, NY 10019. On ten Business Days written notice to the
Holders of Trust Securities, the Property Trustee, the Delaware Trustee and the
Regular Trustees may designate another principal office.


 


SECTION 3.3.                                                                       Purpose.


 


The exclusive
purposes and functions of the Trust are (a) to issue and sell Trust
Securities and to use the proceeds from such sale to acquire the LLC Preferred
Securities, and (b) except as otherwise limited herein, to engage in only
those other activities necessary or incidental thereto. The Trust shall not
borrow money, issue debt or reinvest proceeds derived from investments, pledge
any of its assets, or otherwise undertake (or permit to be undertaken)


 


14





















 


any activity
that would cause the Trust not to be classified for United States federal
income tax purposes as a grantor trust.


 


SECTION 3.4.                                                                       Authority.


 


(a)                                  Subject
to the limitations provided in this Declaration of Trust and to the specific
duties of the Property Trustee, the Regular Trustees shall have exclusive and
complete authority to carry out the purposes of the Trust. An action taken by
the Regular Trustees in accordance with their powers shall constitute the act
of and serve to bind the Trust and an action taken by the Property Trustee on
behalf of the Trust in accordance with its powers shall constitute the act of
and serve to bind the Trust. In dealing with the Trustees acting on behalf of
the Trust, no Person shall be required to inquire into the authority of the
Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Declaration of Trust.


 


(b)                                 Except
as expressly set forth in this Declaration and except if a meeting of the
Regular Trustees is called with respect to any matter over which the Regular
Trustees have power to act, any power of the Regular Trustees may be exercised
by, or with the consent of, any one such Regular Trustee.


 


(c)                                  Unless
otherwise determined by the Regular Trustees, and except as otherwise required
by the Statutory Trust Act or applicable law, any Regular Trustee is authorized
to execute on behalf of the Trust any documents which the Regular Trustees have
the power and authority to cause the Trust to execute pursuant to Section 3.6(b);
provided, that the registration statements referred to in Section 3.6(b)(ii),
including any amendments thereto, shall be signed by or on behalf of a majority
of the Regular Trustees; and


 


(d)                                 A
Regular 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 purposes of signing any documents which the Regular Trustees have power and
authority to cause the Trust to execute pursuant to Section 3.6; provided,
that such natural person is a U.S. Person.


 


SECTION 3.5.                                                                       Title
to Property of the Trust.


 


Except as
provided in Section 3.8
with respect to the LLC Preferred Securities and the Property Account or as
otherwise provided in this
Declaration of Trust, legal title to all assets of the Trust shall be vested in
the Trust.  The Holders shall not have
legal title to any part of the assets of the Trust, but shall have an undivided
beneficial ownership interest in the assets of the Trust.


 


SECTION 3.6.                                                                       Powers
and Duties of the Regular Trustees.


 


The Regular
Trustees shall have the exclusive power, duty and authority to cause the Trust
to engage in the following activities:


 


(a)                                  to
establish the terms and form of the Trust Preferred Securities and the Trust
Common Securities in the manner specified in Section 7.1(a) and issue
and sell the Trust Preferred Securities and the Trust Common Securities in
accordance with this Declaration of


 


15





















 


Trust; provided, however,
that the Trust may issue no more than one series of Trust Preferred Securities
and no more than one series of Trust Common Securities; provided, further,
that there shall be no interests in the Trust other than the Trust Securities,
and the issuance of Trust Securities shall be limited to a one-time,
simultaneous issuance of both Trust Preferred Securities and Trust Common
Securities on the Closing Date;


 


(b)                                 in
connection with the issue and sale of the Trust Preferred Securities, at the
direction of the Sponsor, to:


 


(i)                                     execute and enter
into a purchase agreement providing for the sale of the Trust Preferred
Securities to the initial purchasers thereof and a registration rights
agreement providing for the registration of the Trust Preferred Securities, the
Trust Guarantee, the LLC Preferred Securities, the LLC Guarantee and the Company
Debenture and perform the duties and obligations of the Trust thereunder;


 


(ii)                                  execute and file with
the Commission a registration statement on Form S-3 or Form S-4, as
applicable, prepared by the Sponsor, pertaining to the Trust Preferred
Securities and the Trust Guarantee including any amendments thereto;


 


(iii)                               execute and file any
documents prepared by the Sponsor, or take any acts as determined by the
Sponsor to be necessary in order to qualify or register all or part of the
Trust Preferred Securities in any state in which the Sponsor has determined to
qualify or register such Trust Preferred Securities for sale; and


 


(iv)                              execute and file with the
Commission a registration statement on Form 8-A, including any amendments
thereto, prepared by the Sponsor, relating to the registration of the Trust
Preferred Securities and the Trust Guarantee under Section 12(b) of
the Exchange Act;


 


(c)                                  to
acquire the LLC Preferred Securities with the proceeds of the sale of the Trust
Preferred Securities and the Trust Common Securities; provided, however,
that the Regular Trustees shall cause legal title to the LLC Preferred
Securities to be held of record in the name of the Property Trustee for the
benefit of the Holders of the Trust Preferred Securities and the Holders of
Trust Common Securities;


 


(d)                                 to
give the Sponsor and the Property Trustee prompt written notice of the
occurrence of a Special Event; provided, that the Regular Trustees shall
consult with the Sponsor and the Property Trustee before taking or refraining
from taking any action in relation to a Special Event;


 


(e)                                  to
establish a record date with respect to all actions to be taken hereunder that
require a record date be established, including and with respect to, for the
purposes of Section 316(c) of the Trust Indenture Act, distributions,
voting rights, redemptions and exchanges, and to issue relevant notices to the
Holders of Trust Preferred Securities and Holders of Trust Common Securities as
to such actions and applicable record dates;


 


16





















 


(f)                                    to
give prompt written notice to the Holders of the Trust Securities of any notice
received from the LLC of the Managing Member’s election not to make a current,
quarterly distribution on the LLC Preferred Securities under the LLC Agreement;


 


(g)                                 to
take all actions and perform such duties as may be required of the Regular
Trustees pursuant to the terms of the Trust Securities or this Declaration of
Trust;


 


(h)                                 to
bring or defend, pay, collect, compromise, arbitrate, resort to legal action,
or otherwise adjust claims or demands of or against the Trust (“Legal Action”),
unless pursuant to Section 3.8(f), the Property Trustee has the exclusive
power to bring such Legal Action;


 


(i)                                     subject
to Section 6.11, to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors, advisors,
and consultants and pay reasonable compensation for such services; provided,
that such delegates are U.S. Persons to conduct only those services that the
Regular Trustees have authority to conduct directly;


 


(j)                                     to
cause the Trust to comply with the Trust’s obligations under the Trust
Indenture Act;


 


(k)                                  to
give the certificate required by Section 314(a) (4) of the Trust
Indenture Act to the Property Trustee, which certificate may be executed by any
Regular Trustee;


 


(l)                                     to
incur expenses that are necessary or incidental to carry out any of the
purposes of the Trust;


 


(m)                               to
act as, or appoint another Person to act as, registrar and transfer agent for
the Trust Securities;


 


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


 


(o)                                 to
take any action, not inconsistent with this Declaration of Trust or with
applicable law, that the Regular Trustees determine in their discretion to be
necessary or desirable in carrying out the purposes and functions of the Trust
as set out in Section 3.3 or the activities of the Trust as set out in
this Section 3.6, including, but not limited to


 


(i)                                     causing the Trust
not to be deemed to be an investment company required to be registered under
the Investment Company Act;


 


(ii)                                  take all action
necessary to cause the Trust not to be classified as an association or a
publicly traded partnership taxable as a corporation for United States federal
income tax purposes; and


 


17





















 


(iii)                               cooperating with the
issuers of the Affiliate Debt Instruments to ensure that the Affiliate Debt
Instruments will be treated as indebtedness of the issuers of the Affiliate
Debt Instruments for United States federal income tax purposes;


 


(p)                                 to
take all action necessary to cause all applicable tax returns and tax
information reports that are required to be filed with respect to the Trust to
be duly prepared and filed by the Regular Trustees, on behalf of the Trust.


 


(q)                                 to
execute all documents or instruments, perform all duties and powers, and do all
things for and on behalf of the Trust in all matters necessary or incidental to
the foregoing;


 


The Regular
Trustees must exercise the powers set forth in this Section 3.6 in a
manner that is consistent with the purposes and functions of the Trust set out
in Section 3.3, and the Regular Trustees shall not take any action that is
inconsistent with the purposes and functions of the Trust set forth in Section 3.3.


 


Subject to
this Section 3.6, the Regular Trustees shall have none of the powers or the authority of the Property Trustee set
forth in Section 3.8.


 


Any expenses
incurred by the Regular Trustees pursuant to this Section 3.6 shall be
reimbursed by the Sponsor pursuant to Article IV hereof.


 


SECTION 3.7.                                                                       Prohibition
of Actions by the Trust and the Trustees.


 


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


 


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


 


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


 


(iii)                               possess Trust property
for other than a purpose stated in Section 3.3 of this Declaration of
Trust;


 


(iv)                              make any loans or incur
any indebtedness or acquire any securities other than the LLC Preferred
Securities;


 


(v)                                 possess any power or
otherwise act in such a way as to vary the Trust assets or the terms of the
Trust Securities in any way whatsoever, except to the extent expressly authorized
in this Declaration of Trust or by the terms of the Trust Securities;


 


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


 


18





















 


(vii)                           other than as set forth
herein or in the terms of the Trust Securities, (A) cause the Special
Representative to direct the time, method and place of conducting any
proceeding for any remedy available to the Special Representative or exercising
any trust or power conferred upon the Special Representative with respect to
the LLC Preferred Securities, the Affiliate Debt Instruments and the Investment
Guarantees, (B) cause the Special Representative to waive any past default
that is waivable under the LLC Agreement, the Affiliate Debt Instruments or the
Investment Guarantees, (C) cause the Special Representative to exercise
any right to rescind or annul any declaration that the principal of, or other
amounts in respect of, any Affiliate Debt Instruments is due and payable or (D) consent
to any amendment, modification or termination of the LLC Agreement or the LLC
Preferred Securities where such consent shall be required;


 


(viii)                        take any action inconsistent
with the status of the Trust as a grantor trust for United States federal
income tax purposes; or


 


(ix)                                revoke any action
authorized or approved by vote of the Holders of the Preferred Securities;


 


(x)                                   sell or otherwise
transfer or dispose of the LLC Preferred Securities other than in connection
with the dissolution of the LLC pursuant to the LLC Agreement; and


 


(xi)                                other than in
connection with the liquidation of the Trust pursuant to a Special Event or
upon redemption of all the Trust Securities, file a certificate of cancellation
of the Trust.


 


SECTION 3.8.                                                                       Powers
and Duties of the Property Trustee.


 


(a)                                  The
legal title to the LLC Preferred Securities shall be owned by and held of
record in the name of the Property Trustee in trust for the benefit of the
Holders of the Trust Securities. The right, title and interest of the Property
Trustee to the LLC Preferred Securities shall vest automatically in each Person
who may hereafter be appointed as Property Trustee in accordance with Section 6.7.
Such vesting and cessation of title shall be effective whether or not
conveyancing documents with regard to the LLC Preferred Securities have been
executed and delivered.


 


(b)                                 The
Property Trustee shall not transfer its right, title and interest in the LLC
Preferred Securities to the Regular Trustees or to the Delaware Trustee (if the
Property Trustee does not also act as Delaware Trustee).


 


(c)                                  The
Property Trustee shall:


 


(i)                                     establish and
maintain a segregated non-interest bearing trust account (the “Property
Account”) in the name of and under the exclusive control of the Property
Trustee on behalf of the Holders of the Trust Securities and, upon the receipt
of payments of funds from the LLC on the LLC Preferred Securities or from the
Company on the Trust Guarantee (or, in the event the LLC has been liquidated,
from the assets of the LLC that are distributed to the Trust), deposit such
funds into the Property Account and make payments to the Holders of the Trust
Preferred Securities and Holders of the Trust


 


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Common Securities from the
Property Account in accordance with Sections 7.3 and 8.2. Funds in the Property
Account shall be held uninvested until disbursed in accordance with this
Declaration of Trust. The Property Account shall be an account that is maintained with a banking institution authorized
to exercise corporate trust powers and having a combined capital and surplus of
at least $50,000,000 and subject to supervision or examination by Federal or
state authority, and the rating on whose long term unsecured indebtedness is at
least equal to the rating assigned to the Trust Preferred Securities by a
“nationally recognized statistical rating organization”, within the meaning of Rule 436(g)(2) under
the Securities Act; and


 


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


 


(iii)                               upon written notice of
distribution issued by the Regular Trustees in accordance with the terms of the
Trust Securities, engage in such ministerial activities as so directed and as
shall be necessary or appropriate to effect the distribution of the Affiliate
Debt Instruments to Holders of Trust Securities upon the occurrence of a
Special Event in accordance with the provisions.


 


(d)                                 The
Property Trustee shall take all actions and perform such duties as may be
specifically required of the Property Trustee pursuant to the terms of this Declaration
of Trust and the Trust Securities.


 


(e)                                  The
Property Trustee shall take any Legal Action that arises out of or in
connection with a Trust Enforcement Event of which a Responsible Officer of the
Property Trustee has actual knowledge or the Property Trustee’s duties and
obligations under this Declaration of Trust or the Trust Indenture Act.


 


(f)                                    The
Property Trustee shall have the legal power to exercise all of the rights,
powers and privileges of a Holder of LLC Preferred Securities and, if a Trust
Enforcement Event occurs and is continuing, the Property Trustee shall, for the
benefit of Holders of the Trust Securities, enforce its rights as Holder of the
LLC Preferred Securities subject to the rights of the Holders pursuant to the
terms of such Trust Securities, including requiring the delivery of a Payment
Notice to the Company upon written direction of Holders of a Majority in
Liquidation Amount of the outstanding LLC Preferred Securities.


 


(g)                                 Subject
to Section 7.8(a), the Property Trustee may authorize one or more Persons
(each, a “Paying Agent”) to pay distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all Trust
Securities and any such Paying Agent shall comply with Section 317(b) of
the Trust Indenture Act.  Any Paying
Agent may be removed by the Property Trustee at any time and a successor Paying
Agent or additional Paying Agents may be appointed at any time by the Property
Trustee.


 


(h)                                 The
Property Trustee shall continue to serve as a Trustee until either:


 


20





















 


(i)                                     the Trust has been
completely liquidated and the assets of the Trust available for distribution
have been distributed to the Holders of Trust Securities pursuant to the terms
of this Declaration of Trust or the Trust Securities; or


 


(ii)                                  a Successor Property
Trustee has been appointed and has accepted that appointment in accordance with
Section 6.7.


 


(i)                                     Subject
to this Section 3.8, the Property Trustee shall have none of the duties,
liabilities, powers or the authority of the Regular Trustees set forth in Section 3.6.


 


The Property
Trustee must exercise the powers set forth in this Section 3.8 in a manner
that is consistent with the purposes and functions of the Trust set out in Section 3.3,
and the Property Trustee shall have no power to, and shall not, take any action
that is inconsistent with the purposes and functions of the Trust set out in Section 3.3.


 


SECTION 3.9.                                                                       Certain
Duties and Responsibilities of the Property Trustee.


 


(a)                                  The
Property Trustee, before the occurrence of any Trust Enforcement Event and
after the curing or waiver of all Trust Enforcement Events that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Declaration of Trust and no implied covenants shall be read into
this Declaration of Trust against the Property Trustee. In case a Trust
Enforcement Event has occurred (that has not been cured or waived pursuant to Section 2.6)
of which a Responsible Officer of the Property Trustee has actual knowledge,
the Property Trustee shall exercise such of the rights and powers vested in it
by this Declaration of Trust, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.


 


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


 


(i)                                     prior to the
occurrence of a Trust Enforcement Event and after the curing or waiving of all
such Trust Enforcement Events that may have occurred:


 


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


 


(B)                                in
the absence of bad faith on the part of the Property Trustee, the Property
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Property Trustee and conforming to the requirements
of this Declaration of Trust; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to be furnished
to the Property Trustee, the Property Trustee shall be under a duty to examine
the same to


 


21





















 


determine whether or not they conform to the
requirements of this Declaration of Trust;


 


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


 


(iii)                               the Property Trustee
shall not be liable with respect to any action taken or omitted to be taken by
it without negligence in good faith in accordance with the direction of the
Holders of not less than a Majority in Liquidation Amount of the Trust Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under this Declaration of Trust;


 


(iv)                              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, if it
shall have reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Declaration
of Trust or indemnity reasonably satisfactory to the Property Trustee against
such risk or liability is not reasonably assured to it;


 


(v)                                 the Property Trustee’s
sole duty with respect to the custody, safe keeping and physical preservation
of the LLC Preferred Securities and the Property 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;


 


(vi)                              the Property Trustee
shall have no duty or liability for or with respect to the value, genuineness,
existence or sufficiency of the LLC Preferred Securities or the payment of any
taxes or assessments levied thereon or in connection therewith;


 


(vii)                           the Property Trustee shall
not be liable for any interest in any money received by it except as it may
otherwise agree with the Sponsor.  Money
held by the Property Trustee need not be segregated from other funds held by it
except in relation to the Property Account maintained by the Property Trustee
pursuant to Section 3.8(c)(i) and except to the extent otherwise
required by law; and


 


(viii)                        the Property Trustee shall not
be responsible for monitoring the compliance by the Regular Trustees or the
Sponsor with their respective duties under this Declaration of Trust, nor shall
the Property Trustee be liable for any default or misconduct of the Regular
Trustees or the Sponsor.


 


SECTION 3.10.                                                                 Certain
Rights of Property Trustee.


 


(a)                                  Subject
to the provisions of Section 3.9:


 


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


 


(ii)                                  any direction or act
of the Sponsor or the Regular Trustees acting on behalf of the Trust contemplated
by this Declaration of Trust shall be sufficiently evidenced by an Officers’
Certificate;


 


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


 


(iv)                              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 registration thereof;


 


(v)                                 the Property Trustee
may consult with counsel or other experts and the advice or opinion of such
counsel and experts with respect to legal matters or advice within the scope of
such experts’ area of expertise 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 accordance with such advice or opinion and such counsel may
be counsel to the Sponsor or any of its Affiliates, and may include any of its
employees. The Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Declaration of Trust from
any court of competent jurisdiction;


 


(vi)                              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 Holder
unless such Holder shall have provided to the Property Trustee security and
indemnity, reasonably satisfactory to the Property Trustee, against the costs,
expenses (including attorneys’ fees and expenses and the expenses of the
Property Trustee’s agents, nominees or custodians) and liabilities that might
be incurred by it in complying with such request or direction, including such
reasonable advances as may be requested by the Property Trustee; provided,
that nothing contained in this Section 3.10(a)(vi) shall
be taken to relieve the Property Trustee, upon the occurrence of a Trust
Enforcement Event, of its obligation to exercise the rights and powers vested
in it by this Declaration of Trust;


 


(vii)                           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, direction, consent, order, bond,
debenture, note, other evidence of


 


23





















 


indebtedness or other paper or document, but the Property Trustee, in
its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit;


 


(viii)                        the Property Trustee may
execute any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, custodians, nominees or attorneys and
the Property Trustee shall not be responsible for any misconduct or negligence
on the part of any agent or attorney appointed with due care by it hereunder; provided,
that such agent, custodian, nominee or attorney is a U.S. person as defined in Section 7701(a)(30)
of the Code;


 


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


 


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


 


(xi)                                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.


 


(xii)                             the Property Trustee shall
not be liable for any action taken, suffered or omitted to be taken by it
without negligence, in good faith and reasonably believed by it to be
authorized or within the discretion, rights or powers conferred upon it by this
Declaration of Trust;


 


(xiii)                          without prejudice to any
other rights available to the Property Trustee under applicable law, when the
Property Trustee incurs expenses or renders services in connection with a
bankruptcy, such expenses (including the fees and expenses of its counsel) and
the compensation for such services are intended to constitute expenses of
administration under any bankruptcy law or law relating to creditors rights
generally;


 


(xiv)                         the Property Trustee shall not
be charged with knowledge of a Trust Enforcement Event unless a Responsible
Officer of the Property Trustee obtains actual knowledge of such event or the
Property Trustee received written notice of such event


 


24





















 


from Holders holding more than a Majority in Liquidation Amount of the
Trust Preferred Securities; and


 


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


 


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


 


SECTION 3.11.                                                                 Delaware
Trustee.


 


Notwithstanding
any provision of this Declaration of Trust other than Section 6.2, the
Delaware Trustee shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities of the Regular
Trustees or the Property Trustee described in this Declaration of Trust. Except
as set forth in Section 6.2, the Delaware Trustee shall be a Trustee for
the sole and limited purpose of fulfilling the requirements of Section 3807
of the Statutory Trust Act.  In the event
the Delaware Trustee shall at any time be required to take any action or
perform any duty hereunder with respect to the Trust, the Delaware Trustee
shall be entitled to all of the same rights as the Property Trustee listed in Section 3.9(b) and
Section 3.10.


 


SECTION 3.12.                                                                 Execution
of Documents.


 


Unless
otherwise determined by the Regular Trustees, and except as otherwise required
by the Statutory Trust Act, any Regular Trustee is authorized to execute on
behalf of the Trust any documents that the Regular Trustees have the power and
authority to cause the Trust to execute pursuant to Section 3.6; provided,
that the registration statement referred to in Section 3.6(b)(ii), including any amendments thereto,
shall be signed by or on behalf of a majority of the Regular Trustees.


 


SECTION 3.13.                                                                 Not
Responsible for Recitals or Issuance of Trust Securities.


 


The recitals
contained in this Declaration of Trust and the Trust Securities shall be taken
as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as
to the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration of Trust or the Trust Securities.


 


25





















 


SECTION 3.14.                                                                 Duration
of Trust.


 


The Trust,
unless terminated pursuant to the provisions of Article VIII hereof, shall
have perpetual existence.


 


SECTION 3.15.                                                                 Mergers.


 


(a)                                  The
Trust may not consolidate, amalgamate, merge with or into, or be replaced by,
or convey, transfer or lease its properties and assets substantially as an
entirety to any corporation or other body, except as described in Section 3.15(b) and
(c).


 


(b)                                 The
Trust may, at the request of the Sponsor and with the consent of the Regular
Trustees or, if there are more than two, a majority of the Regular Trustees and
without the consent of the Holders of the Trust Securities, the Delaware
Trustee or the Property Trustee, consolidate, amalgamate, merge with or into,
or be replaced by or convey, transfer or leave its properties substantially as
an entirety to a trust organized as such under the laws of any State of the
United States; provided that:


 


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


 


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


 


(B)                                substitutes
for the Trust Preferred Securities other securities having substantially the
same terms as the Trust Preferred Securities (the “Successor Trust Preferred
Securities”) so long as the Successor Trust Preferred Securities rank the
same as the Trust Preferred Securities rank with respect to distributions,
assets and payments upon liquidation, redemption and otherwise;


 


(ii)                                  the Company expressly
acknowledges a trustee of the Successor Entity that possesses the same powers
and duties as the Property Trustee as the Holder of the LLC Preferred
Securities;


 


(iii)                               the Trust Preferred
Securities or any Successor Trust Preferred Securities are listed, or any
Successor Trust Preferred Securities shall be listed upon notification of
issuance, on any national securities exchange or with another organization on
which the Trust Preferred Securities are then listed or quoted;


 


(iv)                              such merger,
consolidation, amalgamation or replacement does not cause the Trust Preferred
Securities (including any
Successor Trust Preferred Securities) to be downgraded by any “nationally
recognized statistical rating organization” as defined by the Commission;


 


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


 


26





















 


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


 


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


 


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


 


(A)                              such
merger, consolidation, amalgamation, replacement conveyance, transfer or lease
shall not adversely affect the rights, preferences and privileges of the
Holders of the Trust Preferred Securities (including any Successor Trust
Preferred Securities) in any material respect (other than with respect to any
dilution of the Holders’ interest in the new entity); and


 


(B)                                following
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease neither the Trust (or the Successor Entity) nor the LLC shall be required
to register as an investment company under the Investment Company Act; and


 


(C)                                following
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease neither the Trust (or the Successor Entity) nor the LLC shall be
classified as an association or a publicly traded partnership taxable as a
corporation for United States federal income tax purposes.


 


(D)                               the
Sponsor or any permitted successor or assignee owns all of the Trust Common
Securities and guarantees the obligations of such Successor Entity under the
Successor Trust Preferred Securities at least to the extent provided by the
Trust Guarantee; and


 


(E)                                 such
Successor Entity expressly assumes all of the obligations of the Trust with
respect to the Trustees.


 


(c)                                  Notwithstanding
Section 3.15(b), the Trust shall not, except with the consent of Holders
of 100% in aggregate liquidation amount of the Trust 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 Trust or Successor Entity to be classified as an association or
a publicly traded partnership taxable as a corporation for United States
federal income tax purposes.


 


27





















 


ARTICLE IV



SPONSOR


 


SECTION 4.1.                                                                       Responsibilities
of the Sponsor.


 


In connection
with the issue and sale of the Trust Preferred Securities, the Sponsor shall
have the exclusive right and responsibility to engage in the following
activities, if applicable:


 


(a)                                  to negotiate the
terms of a purchase agreement providing for the sale of the Trust Preferred
Securities to the initial purchasers thereof and a registration rights
agreement providing for the registration of the Trust Preferred Securities, the
Trust Guarantee, the LLC Preferred Securities, the LLC Guarantee and the
Company Debenture;


 


(b)                                 to prepare for filing by
the Trust with the Commission a registration statement on Form S-3 or Form S-4,
as applicable, in relation to the Trust Preferred Securities and the Trust
Guarantee, including any amendments thereto;


 


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


 


(d)                                 to prepare for filing
by the Trust with the Commission a registration statement on Form 8-A
relating to the registration of the Trust Preferred Securities and the Trust
Guarantee under Section 12(b) of the Exchange Act, including any
amendments thereto.


 


SECTION 4.2.                       Payment
of Trust Expenses


 


(a)                                  Since
the Trust is being formed solely to facilitate a direct investment in the LLC
Preferred Securities, the Sponsor hereby agrees, at any time while the Property
Trustee is the Holder of any LLC Preferred Securities, to pay all the expenses,
debts and obligations (other than to Holders of Trust Securities) of the Trust,
including, but not limited to, any liabilities arising under any applicable
laws and any taxes (other than withholding taxes except as described below),
duties, assessments or governmental charges of whatever nature imposed on the Trust
by the United States, or any other taxing authority, so that the net amounts
received and retained by the Trust and the Property Trustee after paying such
expenses, debts and obligations (other than to Holders of Trust Securities)
shall be equal to the amounts the Trust and the Property Trustee would have
received had no such costs or expenses been incurred by or imposed on the
Trust. The Sponsor shall be liable for and shall pay all such expenses solely
out of its own funds.  In the event that
the Trust is unable to offset its withholding tax obligations


 


28





















 


against distributions to the
applicable Holder or beneficial owners, as provided by Section 10.4, the
Sponsor shall be liable for, and reimburse the Trust for, such taxes.


 


(b)                                 The
Sponsor agrees, to the extent the Managing Member fails to do so, to indemnify
the Property Trustee and the Delaware Trustee for, and to hold each of them
harmless against, any loss, liability or expense incurred without negligence or
bad faith on the part of the Property Trustee or the Delaware Trustee, as the
case may be, arising out of or in connection with the acceptance or
administration of the Trust hereunder, including the costs and expenses of
defending either of them against any claim or liability in connection with the
exercise or performance of any of their respective powers or duties
hereunder.  The provisions of this Section 4.2(b) shall
survive the resignation or removal of the Delaware Trustee or the Property Trustee
or the termination of the Declaration of Trust.


 


(c)                                  The
foregoing obligations of the Sponsor are for the benefit of, and shall be
enforceable by, any Person to whom any such debts, obligations, costs, expenses
and taxes are owed (each, a “Creditor”) whether or not such Creditor has
received notice thereof.  Any such
Creditor may enforce such obligations of the Sponsor directly against the
Sponsor, and the Sponsor irrevocably waives any right or remedy to require that
any such Creditor take any action against the Trust or any other Person before
proceeding against the Sponsor.


 


SECTION 4.3.                                                                       Covenants
of the Sponsor


 


(a)                                  The
Sponsor shall, for so long as the Trust is in existence:  (i) maintain directly or indirectly 100%
ownership of the Trust Common Securities, (ii) cause the Trust to remain a
statutory trust and not to be voluntarily dissolved, wound-up, liquidated or
terminated, except as provided for in this Declaration of Trust, (iii) use
its commercially reasonable efforts to assure that the Trust will not be an “investment
company” for purposes of the Investment Company Act and (iv) take no
action that would be reasonably likely to cause the Trust or the LLC to be
classified as an association or a publicly traded partnership taxable as a
corporation for United States federal income tax purposes.


 


(b)                                 So
long as any Trust Securities remain outstanding, if (A) for any
distribution period, full Distributions on a compounded basis on any LLC
Preferred Securities or Trust Preferred Securities have not been paid, (B) an
Investment Event of Default by any Investment Affiliate or a deferral in
respect of any Affiliate Debt Instrument has occurred and is continuing or (C) the
Company is in default of its obligations under the Trust Guarantee, the LLC
Guarantee or any Investment Guarantee, then, during such period the Company
shall not, nor shall it permit any subsidiary to:


 


(1)                                  declare
or pay any dividends or distributions on, or redeem, purchase, acquire or make
a liquidation payment with respect to, any capital stock of the Company;


 


(2)                                  make
any payment of principal, interest or premium, if any, on or repay, repurchase
or redeem any of our debt securities that rank on a parity with (“Parity
Debt Securities”) or junior in interest to the Company Debenture or any
other Affiliate Debt Instrument issued by the Company; or


 


29





















 


(3)                                  make
any guarantee payments with respect to any guarantee of the Company of the debt
securities of any subsidiary of the Company if such guarantee ranks on a parity
with (“Parity Guarantees”) or junior in interest to the Company
Debenture or any of such Affiliate Debt Instruments;


 


provided,
however, that the following shall be permitted:


 


(i)                                     dividends or distributions in the
form of common stock of the Company;


 


(ii)                                  payments under the LLC Guarantee,
the Trust Guarantee or any Investment Guarantee;


 


(iii)                               any declaration of a dividend in
connection with the implementation of a shareholders’ rights plan, or the
issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto;


 


(iv)                              purchases of common stock related to
the issuance of common stock or rights under any of the Company’s benefit
plans; and


 


(v)                                 payments of interest on any of
Parity Debt Securities or payments under any Parity Guarantees in respect of
interest payments on debt securities of any subsidiary of the Company, in each
case ratably and in proportion to the respective amount of (x) accrued and
unpaid interest on such Parity Debt Securities or guaranteed by such Parity
Guarantees, on the one hand, and (y) accumulated and unpaid distributions
(including compounded amounts) on the Preferred Securities, on the other hand.


 


ARTICLE V



TRUST COMMON SECURITIES HOLDER


 


SECTION 5.1.                                                                       Company’s
Purchase of Trust Common Securities.


 


On the Closing
Date the Company shall purchase all of the Trust Common Securities issued by
the Trust, for $1,000, at the same time as the Trust Preferred Securities are
sold.


 


SECTION 5.2.                                                                       Covenants
of the Trust Common Securities Holder.


 


For so long as
the Trust Preferred Securities remain outstanding,
the Company shall covenant (i) to maintain directly 100% ownership
of the Trust Common Securities, (ii) to cause the Trust to remain a
statutory trust and not to voluntarily dissolve, wind up, liquidate, or be
terminated, except as permitted by this Declaration of Trust, (iii) to use
its commercially reasonable efforts to ensure that the Trust shall not be an
investment company for purposes of the Investment Company Act and (iv) to
take no action that would be reasonably likely to cause the Trust or the LLC to
be classified as an association or a publicly traded partnership taxable as a
corporation for United States federal income tax purposes.


 


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ARTICLE VI



TRUSTEES


 


SECTION 6.1.                                                                       Number
of Trustees.


 


The number of
Trustees initially shall be five, and:


 


(a)                                  at any time before
the issuance of any Trust Securities, the Sponsor may, by written instrument, increase
or decrease the number of Trustees; and


 


(b)                                 after the issuance of
any Trust Securities, the number of Trustees may be increased or decreased by
vote of the Holders of a Majority in Liquidation Amount of the Trust Common Securities voting as a class at a meeting
of the Holders of the Trust Common Securities (or, if there is only one Holder,
by written instrument); provided, however, that the number of
Trustees shall in no event be less than three; provided, further,
that all Trustees shall be U.S. Persons and (1) if required by the
Statutory Trust Act, one Trustee is the Delaware Trustee; (2) there shall
be at least one Trustee who is an employee or officer of, or is affiliated with
the Company; and (3) one Trustee shall be the Property Trustee for so long
as this Declaration of Trust is required to qualify as an indenture under the
Trust Indenture Act, and such Property Trustee may also serve as Delaware
Trustee if it meets the applicable requirements.


 


SECTION 6.2.                                                                       Delaware
Trustee.


 


If required by
the Statutory Trust Act, one Trustee (the “Delaware Trustee”) shall be:


 


(a)                                  a natural person who
is a resident of the State of Delaware; or


 


(b)                                 if not a natural
person, an entity which has its principal place of business in the State of
Delaware, and otherwise meets the requirements of applicable law;


 


provided
that if the Property Trustee has its principal place of business in the State
of Delaware and otherwise meets the requirements of applicable law, then the
Property Trustee may also be the Delaware Trustee (in which case Section 3.11
shall have no application).


 


SECTION 6.3.                                                                       Property
Trustee; Eligibility.


 


(a)                                  There
shall at all times be one
Trustee that shall act as Property Trustee that shall:


 


(i)                                     not be an
Affiliate of the Sponsor; and


 


(ii)                                  be a corporation
organized and doing business under the laws of the  United States of
America or any State or Territory thereof or of the District of Columbia,


 


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or a corporation or Person permitted by the Commission to act as an
institutional trustee under the Trust Indenture Act, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least US$50,000,000, and subject to supervision or examination by Federal, State,
Territorial or District of Columbia banking authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority referred to above, then
for the purposes of this Section 6.3(a)(ii), the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.


 


The initial
Property Trustee shall be JPMorgan Chase Bank, N.A.


 


(b)                                 If
at any time the Property Trustee shall cease to be eligible to so act under Section 6.3(a),
the Property Trustee shall immediately resign in the manner and with the effect
set forth in Section 6.7(d).


 


(c)                                  If
the Property Trustee has or shall acquire any “conflicting interest” within the
meaning of Section 310(b) of the Trust Indenture Act, the Property
Trustee and the Holder of the Trust Common Securities (as if it were the
obligor referred to in Section 310(b) of the Trust Indenture Act) shall
in all respects comply with the provisions of Section 310(b) of the
Trust Indenture Act.


 


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


 


SECTION 6.4.                                                                       Qualifications
of Regular Trustees and Delaware Trustee Generally.


 


Each Regular
Trustee and the Delaware Trustee (unless the Property Trustee also acts as
Delaware 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 Authorized Officers.


 


SECTION 6.5.                                                                       Regular
Trustees.


 


(a)                                  The
initial Regular Trustees shall be Barrett DiPaolo, Karen Corrigan and James
Killerlane III.


 


(b)                                 Except
as expressly set forth in this Declaration of Trust and except if a meeting of
the Regular Trustees is called with respect to any matter over which the
Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one such Regular Trustee.


 


(c)                                  Unless
otherwise determined by the Regular Trustees, and except as otherwise required
by the Statutory Trust Act or applicable law, any Regular Trustee is authorized
to execute on behalf of the Trust any documents that the Regular Trustees have
the power and authority to cause the Trust to execute pursuant to Section 3.6;
provided, that the registration statement referred to in Section 3.6(b)(ii),
including any amendments thereto, shall be signed by or on behalf of a majority
of the Regular Trustees.


 


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SECTION 6.6.                                                                       Delaware
Trustee.


 


The initial
Delaware Trustee shall be Chase
Bank USA, National Association, as the initial Delaware Trustee.


 


SECTION 6.7.                                                                       Appointment,
Removal and Resignation of Trustees.


 


(a)                                  Subject
to Section 6.7(b), Trustees may be appointed or removed without cause at
any time:


 


(i)                                     until the issuance
of any Trust Securities, by written instrument executed by the Sponsor; and


 


(ii)                                  after the issuance of
any Trust Securities, by vote of the Holders of a Majority in Liquidation
Amount of the Trust Common
Securities voting as a class at a meeting of the Holders of the Trust Common
Securities (or, if there is only one Holder, by written instrument).


 


(b)                                 The
Trustee that acts as Property Trustee shall not be removed in accordance with Section 6.7(a) until
a successor Trustee possessing the qualifications to act as Property Trustee
under Section 6.3 (a “Successor Property Trustee”) has been
appointed and has accepted such appointment by written instrument executed by
such Successor Property Trustee and delivered to the Regular Trustees and the
Sponsor.


 


(c)                                  The
Trustee that acts as Delaware Trustee shall not be removed in accordance with Section 6.7(a) until
a successor Trustee possessing the qualifications to act as Delaware Trustee
under Sections 6.2 and 6.4 (a “Successor Delaware Trustee”) has been
appointed and has accepted such appointment
by written instrument executed by such Successor Delaware Trustee and
delivered to the Regular Trustees and the Sponsor.


 


(d)                                 A
Trustee appointed to office shall hold office until his successor shall have
been appointed or until his death or its dissolution or until his or its
removal or resignation. Any Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing signed by the
Trustee and delivered to the Sponsor and the Trust, which resignation shall
take effect upon. such delivery or upon such later date as is specified
therein; provided, however, that:


 


(i)                                     No such
resignation of the Trustee that acts as the Property Trustee shall be
effective:


 


(A)                              until
a Successor Property Trustee has been appointed and has accepted such
appointment by instrument executed by such Successor Property Trustee and
delivered to the Trust, the Sponsor and the resigning Property Trustee; or


 


(B)                                until
the assets of the Trust have been completely liquidated and the proceeds
thereof distributed to the Holders of the Trust Securities; and


 


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(ii)                                  no such resignation
of the Trustee that acts as the Delaware Trustee shall be effective until a
Successor Delaware Trustee has been appointed and has accepted such appointment
by instrument executed by such Successor Delaware Trustee and delivered to the
Trust, the Sponsor and the resigning Delaware Trustee.


 


(e)                                  The
Holders of the Trust Common Securities shall use their best efforts to promptly
appoint a Successor Delaware Trustee or Successor Property Trustee, as the case
may be, if the Property Trustee or the Delaware Trustee delivers an instrument
of resignation in accordance with this Section 6.7.


 


(f)                                    If
no Successor Property Trustee or Successor Delaware Trustee shall have been appointed and accepted appointment as
provided in this Section 6.7
within 60 days after delivery to the Sponsor and the Trust of an
instrument of resignation or removal, the resigning or removed Property Trustee
or Delaware Trustee, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Property Trustee or Successor
Delaware Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper and prescribe, appoint a Successor Property Trustee
or Successor Delaware Trustee, as the case may be.


 


(g)                                 No
Property Trustee or Delaware Trustee shall be liable for the acts or omissions
to act of any Successor Property Trustee or successor Delaware Trustee, as the
case may be.


 


SECTION 6.8.                                                                       Vacancies
among Trustees.


 


If a Trustee
ceases to hold office for any reason and the number of Trustees is not reduced
pursuant to Section 6.1, or if the number of Trustees is increased
pursuant to Section 6.1, a
vacancy shall occur. A resolution certifying the existence of such vacancy by
the Regular Trustees or, if there are more than two, a majority of the Regular
Trustees shall be conclusive evidence of the existence of such vacancy. The
vacancy shall be filled with a Trustee appointed in accordance with Section 6.7.


 


SECTION 6.9.                                                                       Effect
of Vacancies.


 


The death, resignation, retirement, removal,
bankruptcy, dissolution, liquidation, incompetence
or incapacity to perform the duties of a Trustee shall not operate to
annul the Trust. Whenever a vacancy in the number of Regular Trustees shall
occur, until such vacancy is filled by the appointment of a Regular Trustee in
accordance with Section 6.7, the Regular Trustees in office, regardless of
their number, shall have all the powers granted to the Regular Trustees and
shall discharge all the duties imposed upon the Regular Trustees by this
Declaration of Trust.


 


SECTION 6.10.                                                                 Meetings.


 


If there is
more than one Regular Trustee, meetings of the Regular Trustees shall be held
from time to time upon the call of any Regular Trustee. Regular meetings of the
Regular Trustees may be held at a time and place fixed by resolution of the
Regular Trustees. Notice of any in-person meetings of the Regular Trustees
shall be hand delivered or otherwise delivered in


 


34





















 


writing
(including by facsimile, with a hard copy by overnight courier) not less than
48 hours before such meeting. Notice of any telephonic meetings of the Regular
Trustees or any committee thereof shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard copy by overnight
courier) not less than 24 hours before a meeting. Notices shall contain a brief
statement of the time, place and anticipated purposes of the meeting. The
presence (whether in person or by telephone) of a Regular Trustee at a meeting
shall constitute a waiver of notice of such meeting except where a Regular
Trustee attends a meeting for the express purpose of objecting to the
transaction of any activity on the ground that the meeting has not been
lawfully called or convened. Unless provided otherwise in this Declaration of
Trust, any action of the Regular Trustees may be taken at a meeting by vote of
a majority of the Regular Trustees present (whether in person or by telephone)
and eligible to vote with . respect to such matter; provided, that a
quorum is present, or without a meeting by the unanimous written consent of the
Regular Trustees. Notwithstanding the foregoing, any and all actions of the
Regular Trustees may be taken by the unanimous written consent of all Regular
Trustees.


 


SECTION 6.11.                                                                 Delegation
of Power.


 


(a)                                  Any
Regular 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 3.6,
including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; provided, that such
person is a U.S. Person; and


 


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


 


SECTION 6.12.                                                                 Merger,
Conversion, Consolidation or Succession to Business.


 


Any
corporation into which the Property Trustee, the Delaware Trustee or any
Regular Trustee that is not a natural person, as the case may be, may be merged
or converted or with which either may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Property
Trustee or the Delaware Trustee, as the case may be, shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Property Trustee or the Delaware Trustee, as the case may be, shall be the successor of the Property
Trustee or the Delaware Trustee, as the case may be, hereunder; provided,
such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.


 


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ARTICLE VII



TERMS OF SECURITIES


 


SECTION 7.1.                                                                       General
Provisions Regarding Securities.


 


(a)                                  Contemporaneously
with the execution and delivery of this Declaration of Trust, the Regular
Trustees, on behalf of the Trust, shall execute in accordance with Section 7.1(b),
and the Property Trustee shall, pursuant to Section 7.1(b), authenticate
and deliver to the Initial Purchasers Trust Preferred Securities, registered in
the names requested by the Initial Purchasers, evidencing an aggregate of
300,000 Trust Preferred Securities having an aggregate liquidation amount of
$300,000,000, against receipt of the aggregate purchase price of such Trust
Preferred Securities of $300,000,000 (the “Original Trust Preferred
Securities”).  The Original Trust
Preferred Securities shall consist of Restricted Global Certificates sold
pursuant to the Purchase Agreement.


 


In addition,
the Regular Trustees, on behalf of the Trust, may execute Trust Preferred
Certificates in accordance with Section 7.1(b) representing an
additional class of Trust Preferred Certificates to be issued only in exchange
for all or part of the Original Trust Preferred Certificates (the “Exchange
Trust Preferred Securities”); provided, however, that the
aggregate number of issued and outstanding Trust Preferred Securities shall not
at any time exceed 300,000, less the number of Trust Preferred Securities
redeemed pursuant to Section 7.4.


 


Contemporaneously
with the execution and delivery of this Declaration of Trust, the Regular
Trustees, on behalf of the Trust, shall execute in accordance with Section 7.1(b) and
the Property Trustee shall, pursuant to Section 7.1(b), authenticate and
deliver to the Company the Trust Common Securities, registered in the name of
the Company, evidencing Trust Common Securities having an aggregate liquidation
amount of $1,000, against receipt of $1,000 in purchase price of such Trust
Common Securities.


 


(b)                                 The
Certificates shall be signed on behalf of the Trust by any Regular Trustee. In
case any Regular Trustee of the Trust who shall have signed any of the Trust
Securities shall cease to be a Regular Trustee before the Certificates so
signed shall be delivered by the Trust, such Certificates nevertheless may be
delivered as though the person who signed such Certificates had not ceased to
be such Regular Trustee; and any Certificate may be signed on behalf of the
Trust by such persons who, at the actual date of execution of such Trust
Security, shall be the Regular Trustees of the Trust, although at the date of
the execution and delivery of this Declaration of Trust any such person was not
such a Regular Trustee. Certificates shall be printed, lithographed or engraved
or may be produced in any other manner as is reasonably acceptable to the
Regular Trustees, as evidenced by their execution thereof, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements as the Regular Trustees may deem appropriate, or as may
be required to comply with any law or with any rule or regulation of any
stock exchange on which Trust Securities may be listed, or to conform to usage.


 


36


















 


A Trust
Security shall not be valid until authenticated by the manual signature of an
Authorized Officer of the Property Trustee. Such signature shall be conclusive
evidence that the Trust Security has been authenticated under this Declaration
of Trust.


 


Upon a written
order of the Trust signed by one Regular Trustee, the Property Trustee shall
authenticate the Trust Securities for original issue. The aggregate number of
Trust Securities outstanding at any time shall not exceed the number set forth
in Section 7.1(a).


 


The Property
Trustee may appoint an authenticating agent acceptable to the Trust to
authenticate Trust Securities; provided, that such authenticating agent
is a U.S. Person. An authenticating agent may authenticate Trust Preferred
Securities whenever the Property Trustee may do so. Each reference in this
Declaration of Trust to authentication by the Property Trustee includes
authentication by such agent. An authenticating agent has the same rights as
the Property Trustee to deal with the Sponsor or an Affiliate of the Sponsor.


 


(c)                                  The
Regular Trustees shall on behalf of the Trust issue one class of preferred
securities and one class of common securities, each representing undivided
beneficial ownership interests in the assets of the Trust, as follows:


 


(i)                                     Trust Preferred
Securities. 300,000 Trust Preferred Securities of the Trust with an
aggregate liquidation amount with respect to the assets of the Trust of $1,000
per Trust Preferred Security, are hereby designated for the purpose of
identification only as Floating Rate Enhanced Capital Advantaged Preferred
Securities (the “Trust Preferred Securities”).  The Trust Preferred Securities shall have an
aggregate liquidation amount not greater than $300,000,000.  The aggregate liquidation amount of Trust
Preferred Securities authorized hereunder shall be reduced 30 days after the
Closing Date to the amount purchased by the Initial Purchasers.  The Trust Preferred Security Certificates
evidencing the Trust Preferred Securities shall be substantially in the form of
Exhibit A-1 to this Declaration of Trust, with such changes and additions
thereto or deletions therefrom as may be required by ordinary usage, custom or
practice.


 


(ii)                                  Trust Common
Securities. $1,000 in Trust Common Securities of the Trust are hereby
designated for the purposes of identification only as Trust Common Securities
(the “Trust Common Securities” and, together with the Trust Preferred Securities, the “Trust Securities”).
The Trust Common Security Certificate evidencing the Trust Common Securities
shall be substantially in the form of Exhibit A-2 to this Declaration of
Trust, with such changes and additions
thereto or deletions therefrom as may be required by ordinary usage,
custom or practice.


 


(d)                                 The
Trust shall issue no securities or other interests in the assets of the Trust
other than the Trust Preferred Securities and the Trust Common Securities.


 


(e)                                  The
Trust Preferred Securities rank pari  passu and payment thereon
shall be made Pro Rata with the Trust Common Securities; provided, that
if, an Investment Event of Default shall have occurred and be continuing, (i) no
payment of any distribution on any of the Trust Common Securities shall be made
unless payment in full in cash of the Distributions on all outstanding Trust
Preferred Securities for all quarterly distribution periods terminating on or


 


37





















 


prior thereto and (ii) no
payment on account of the redemption, liquidation or other acquisition of Trust
Common Securities shall be made unless the full amount of the Redemption Price
for all of the outstanding Trust Preferred Securities then called for
redemption or, in the case of amounts payable upon liquidation of the Trust in
accordance with Section 8.2 hereof, assets in an amount equal to the
Redemption Price for all outstanding Trust Preferred Securities shall have been
made or provided for, and all funds available to the Property Trustee shall
first be applied to the payment in full of, or the Redemption Price of, or all liquidation
amounts on the Trust Preferred Securities then due and payable.


 


(f)                                    Upon
issuance of the Trust Securities as provided herein, the Trust Securities so
issued shall be deemed to be validly issued, fully paid and non-assessable
beneficial ownership interests in the assets of the Trust, subject to Section 9.1(b) with
respect to the Trust Common Securities.


 


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


 


(h)                                 Every
Person, by virtue of having become a Holder or a Trust Preferred Security
Beneficial Owner in accordance with the terms of this Declaration of Trust,
shall be deemed to have expressly assented and agreed to the terms of, and
shall be bound by, this Declaration of Trust and the terms of the Trust
Securities and the Trust Guarantee.


 


(i)                                     The
Holders of the Trust Securities shall have no preemptive rights.


 


SECTION 7.2.                                                                       Distributions.


 


(a)                                  Holders
of Trust Securities shall be entitled to receive cumulative cash distributions
at such times and in such amounts as the Trust receives cash payments from the
LLC on the LLC Preferred Securities or from the Company on the Trust Guarantee
(or, in the event the LLC has been liquidated, from the assets of the LLC that
are distributed to the Trust).  If and to
the extent that the Trust receives any such cash payments, the Trust shall and
the Property Trustee is directed, to the extent funds are available for that
purpose, to make a distribution of such cash payment on the Trust Preferred
Securities and the Trust Common Securities on a Pro Rata basis.


 


(b)                                 Distributions
on the Trust Securities shall be payable only to the extent that the Trust has
funds available for the payment of such distributions in the Property
Account.  Amounts available to the Trust
for distribution to the Holders of the Trust Securities shall be limited to
payments received by the Trust from the LLC on the LLC Preferred Securities or
from the Company on the Trust Guarantee (or, in the event the LLC has been
liquidated, from the assets of the LLC that are distributed to the Trust). If
the Property Trustee, as the holder of the LLC Preferred Securities for the
benefit of the Holders of the Trust Securities, receives notice of any
determination by the LLC not to pay distributions on such LLC Preferred
Securities (or, in the event the LLC has been liquidated, any determination by
an Investment Affiliate that it will defer interest on an Affiliate Debt Instrument),
the Property Trustee shall give notice of such determination to the Holders
promptly.


 


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(c)                                  All
distributions on the Trust Securities shall be payable to the Holders thereof
as they appear on the books and records of the Trust on the relevant record
dates, which relevant record dates, as long as the Trust Preferred Securities
remain in book-entry only form, shall be one Business Day prior to the relevant
payment dates. In the event that the Trust Securities do not remain in
book-entry only form, the relevant record dates shall be determined by the
Regular Trustees and shall be at least one Business Day before the relevant
payment dates.  All distributions shall
be paid through the Property Trustee out of funds held in the Property Account
for the benefit of the Holders of the Trust Securities. If distributions are
not paid when scheduled, the accumulated distributions will be paid to the
Holders of Trust Securities as they appear on the books and records of the
Trust on the record date with respect to the payment date for the Trust
Securities that corresponds to the payment date fixed by the LLC with respect
to the payment date for the Trust Securities that corresponds to the payment
date fixed by the LLC with respect to the payment of cumulative distributions
on the LLC Preferred Securities.


 


(d)                                 In
the event that any date on which
distributions are payable is not a Business Day and a London Business Day,
payment of such distribution shall be made on the next succeeding day which is
a Business Day and a London Business Day unless such day falls in the next
calendar month, in which case the distribution payment date shall be the
immediately preceding Business Day and London Business Day.  Distributions will accumulate to the date
that such distributions are actually paid.


 


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


 


(f)                                    So
long as the LLC is in existence and has not been dissolved, liquidated or
terminated, in the event of the Company’s bankruptcy, liquidation or
dissolution and if a Mandatory Deferral Event has been continuing for at least
two years, each Holder of a Trust Security, by its acceptance thereof,
covenants and agrees, that, notwithstanding anything to the contrary contained
herein, any Distributions in respect of interest on the Affiliate Debt
Instruments accumulating on Trust Securities from that date shall be paid by
the Property Trustee directly to the holders of the Sponsor’s then outstanding
preferred or preference stock, if any, or their representative, to the extent
necessary to pay in full any amounts then payable on such preferred or
preference stock remaining unpaid, after giving effect to any concurrent
payment or distribution or provision therefor to the holders of such preferred
or preference stock.


 


SECTION 7.3.                                                                       Redemption
of Trust Securities.


 


(a)                                  Upon
a redemption for cash of the LLC Preferred Securities by the LLC, the proceeds
from such redemption shall be simultaneously applied on a Pro Rata basis,
except as otherwise provided in Section 7.1(e), to redeem Trust Securities
having an aggregate liquidation amount equal to the aggregate liquidation
preference of the LLC preferred securities so redeemed, at the Redemption Price
on a Pro Rata basis.  Holders shall be
given not less than 30 nor more than 60 days’ notice of such redemption.  For purposes of the foregoing, any
distribution in cash made to holders of the LLC Preferred Securities upon
liquidation of the LLC pursuant to Section 16.4 of the LLC Agreement shall
be deemed to be a redemption of an


 


39





















 


amount of LLC preferred
securities with an aggregate liquidation preference (including accumulated and
unpaid distributions thereon) equal to the amount of such cash distribution.


 


(b)                                 On
any date fixed for distribution of Affiliate Debt Instruments upon dissolution
of the Trust, (i) the Trust Securities shall no longer be deemed to be
outstanding and (ii) certificates representing Trust Securities shall be
deemed to represent their Pro Rata portion of the Affiliate Debt Instruments
and Eligible Debt Securities until such certificates are presented to the
Sponsor or its agent for exchange for such securities.


 


(c)                                  Subject
to the foregoing and applicable law (including, without limitation, United
States federal securities laws), the Company or its subsidiaries may at any
time and from time to time purchase outstanding Trust Preferred Securities by
tender, in the open market or by private agreement.


 


SECTION 7.4.                                                                       Redemption
Procedures.


 


(a)                                  Notice
of any redemption of the Trust Securities (a “Redemption Notice”) shall
be given by the Trust by mail to each Holder of Trust Securities to be redeemed
not fewer than 30 nor more than 60 days before the date fixed for redemption of
the LLC Preferred Securities. For purposes of the calculation of the date of
redemption and the date on which notices are given pursuant to this Section 7.5,
a Redemption Notice shall be deemed to be given on the day such notice is first
mailed by first-class mail, postage prepaid, to Holders of Trust Securities.
Each Redemption Notice shall be addressed to the Holders of Trust Securities at
the address of each such Holder appearing in the books and records of the
Trust. No defect in the Redemption Notice or in the mailing of either thereof
with respect to any Holder shall affect the validity of the redemption
proceedings with respect to any other Holder.


 


(b)                                 In
the event that fewer than all the outstanding Trust Securities are to be
redeemed, the Trust Securities to be redeemed shall be redeemed Pro Rata from
each Holder of Trust Securities; provided, that in respect of Trust
Preferred Securities registered in the name of and held of record by DTC or its
nominee (or any successor Depositary or its nominee) or any nominee, the
distribution of the proceeds of such redemption shall be made to each Participant
(or Person on whose behalf such
nominee holds such securities) in accordance with the procedures applied by
such agency or nominee.


 


(c)                                  If
Trust Securities are to be redeemed and the Trust gives a Redemption Notice
(which notice shall be irrevocable), then (A) while the Trust Preferred
Securities are in book-entry only form, by 12:00 noon, New York City time, on
the redemption date, the Property Trustee shall deposit irrevocably with the
DTC or its nominee (or successor Depositary or its nominee) funds sufficient to
pay the applicable Redemption Price with respect to the Trust Preferred
Securities and shall give the DTC irrevocable instructions and authority to pay
the Redemption Price to the Holders of the Trust Preferred Securities, and (B) with
respect to Trust Preferred Securities issued in definitive form and Trust
Common Securities, the Property Trustee shall pay the relevant Redemption Price
to the Holders of such Trust Securities by check mailed to the address of the
relevant Holder appearing on the books and records of the Trust on the redemption date. If a
Redemption Notice shall have been given and funds deposited as required, if applicable, then immediately
prior to the close of business on the date of such deposit, or on


 


40





















 


the redemption date, as
applicable, distributions shall cease to accumulate on the Trust Securities so
called for redemption and all rights of Holders of such Trust Securities shall
cease, except the right of the Holders of such Trust Securities to receive the
Redemption Price, but without interest on such Redemption Price. If any date
fixed for redemption of Trust Securities is not a Business Day and a London
Business Day, then payment of the Redemption Price payable on such date shall
be made on the next succeeding day that is a Business Day and a London Business
Day unless such day falls in the next calendar month, in which case the
redemption payment date shall be the immediately preceding Business Day and
London Business Day.  If payment of the
Redemption Price in respect of any Trust Securities is improperly withheld or
refused and not paid either by the Property Trustee or by the Sponsor as
guarantor pursuant to the relevant Trust Guarantee, distributions on such Trust
Securities shall continue to accumulate at the then applicable rate from the
original redemption date to the actual date of payment, in which case the
actual payment date shall be considered the date fixed for redemption for
purposes of calculating the Redemption Price. For these purposes, the
applicable Redemption Price shall not include distributions which are being
paid to Holders who were Holders on a relevant record date. Upon satisfaction
of the foregoing conditions, then immediately prior to the close of business on
the date of such deposit or payment, all rights of Holders of such Trust
Preferred Securities so called for redemption shall cease, except the right of
the Holders to received the Redemption Price, but without interest on such
Redemption Price, and from and after the date fixed for redemption, such Trust
Preferred Securities shall not accumulate distributions or bear interest.


 


SECTION 7.5.                                                                       Voting
and Enforcement Rights of Trust Preferred Securities.


 


(a)                                  Except
as provided under Section 11.1 and this Article VII and as otherwise
required by the Statutory Trust Act, the Trust Indenture Act and other
applicable law, the Holders of the Trust Preferred Securities shall have no
voting rights.


 


(b)                                 The
Holders of a Majority in Liquidation Amount of the Trust Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Property Trustee, or direct the exercise of any trust or power conferred
upon the Property Trustee under this Declaration of Trust, including the right
to direct the Property Trustee, as Holder of the LLC Preferred Securities, to (i) exercise
the remedies available to it under the LLC Agreement as a Holder of the LLC
Preferred Securities, including (A) the right to direct the Special
Representative of the LLC as elected by the Holders of the LLC Preferred
Securities in accordance with the LLC Agreement to enforce (x) the LLC’s
creditors rights and other rights with respect to the Affiliate Debt
Instruments and any Investment Guarantees, (y) the rights of the Holders of the
LLC Preferred Securities under the LLC
Guarantee and (z) the rights of the Holders of the LLC Preferred Securities to
receive distributions (if and to the extent such distributions have been
declared out of funds legally available therefor by the Managing Member in its
sole discretion) on the LLC Preferred Securities, (B) consent to any
amendment, modification, or termination of the LLC Agreement or the LLC
Preferred Securities where such consent shall be required or (C) waive any
LLC Enforcement Event and its
consequences that are waivable under the LLC Agreement, subject in the case of
clause (B) or (C) to Section 7.6(e), and (ii) enforce the
terms of the LLC Guarantee.


 


(c)                                  If
the Property Trustee fails to enforce its rights under the LLC Preferred
Securities after a Holder of record of Trust Preferred Securities has made a
written request, such


 


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Holder of record of Trust
Preferred Securities may institute a legal proceeding directly against the
Managing Member or the Special Representative to enforce the Property Trustee’s
rights under the LLC Agreement or against the Company to enforce the Property
Trustee’s rights under the LLC Guarantee without first instituting any legal
proceeding against the Property Trustee or any other Person or entity. In
addition, if any Investment Affiliate has failed to make any required payment
when due on any Affiliate Debt Instrument or failure by the Company to make any
required payment when due on any Investment Guarantee, then a Holder of Trust
Preferred Securities may directly institute a proceeding against such
Investment Affiliate for enforcement of payment with respect to such Affiliate
Debt Instrument or the Company with respect to any such Investment Guarantee.


 


(d)                                 The
Property Trustee shall notify all Holders of the Trust Preferred Securities of
any notice of any LLC Enforcement
Event received from the Managing Member with respect to the LLC Preferred
Securities or the Affiliate Debt Instruments. Such notice shall state that such
LLC Enforcement Event also
constitutes a Trust Enforcement Event.


 


(e)                                  In
the event the consent of the
Property Trustee, as the Holder of the LLC Preferred Securities, is required
under the LLC Agreement with respect to any amendment, modification, waiver or
termination of the LLC Agreement, the Property Trustee shall request the
direction of the Holders of the Trust Preferred Securities with respect to such
amendment, modification, waiver or termination and shall vote with respect to
such amendment, modification, waiver or termination as directed by a Majority
in Liquidation Amount of the
Trust Preferred Securities voting together as a single class; provided, however, that where a consent under the LLC Agreement
would require the consent of the Holders of more than a simple majority of the
aggregate principal amount of the LLC Preferred Securities, the Property
Trustee may only give such consent at
the direction of the Holders of at least the same proportion in aggregate
stated liquidation amount of the Trust Preferred Securities.


 


(f)                                    A
waiver of a LLC Enforcement
Event with respect to the LLC Preferred Securities shall constitute a waiver of
the corresponding Trust Enforcement Event.


 


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


 


(h)                                 No
vote or consent of the Holders of Trust Preferred Securities shall be required
for the Trust to redeem and cancel Trust Preferred Securities in accordance
with this Declaration of Trust.


 


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(i)                                     Notwithstanding
that Holders of Trust Preferred Securities are entitled to vote or consent
under any of the circumstances described above, any of the Trust Preferred
Securities that are owned at such time by the Sponsor, any Regular Trustee or
any of their Affiliates, shall not be entitled to vote or consent and shall,
for purposes of such vote or consent, be treated as if such Trust Preferred
Securities were not outstanding; provided, however, that Persons
otherwise eligible to vote to whom the Sponsor or any of its subsidiaries have
pledged Trust Preferred Securities may vote or consent with respect to such
pledged Trust Preferred Securities under any of the circumstances described
herein.


 


(j)                                     Holders
of the Trust Preferred Securities shall have no rights to appoint or remove the
Trustees, who may be appointed, removed or replaced solely by the Company, as
the Holder of the Trust Common Securities.


 


SECTION 7.6.                                                                       Voting
and Enforcement Rights of Trust Common Securities


 


(a)                                  Except
as provided under Section 6.1, this Section 7.7, Section 11.1 or
as otherwise required by the Statutory Trust Act, the Trust Indenture Act or
other applicable law or provided by the Declaration of Trust, the Holders of
the Trust Common Securities shall have no voting rights.


 


(b)                                 The
Holders of the Trust Common Securities are entitled, in accordance with Sections
6.1(b) and 6.7(a) hereof, to vote to appoint, remove or replace any
Trustee or to increase or decrease the number of Trustees.


 


(c)                                  Subject
to Section 2.6 hereof and only after all Trust Enforcement Events with
respect to the Trust Preferred Securities have been cured, waived, or otherwise
eliminated, the Holders of a Majority in Liquidation Amount of the Trust Common
Securities have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Property Trustee, or direct the
exercise of any trust or power conferred upon the Property Trustee under this
Declaration of Trust, including the right to direct the Property Trustee, as
Holder of the LLC Preferred Securities, to (i) exercise the remedies
available to it under the LLC Agreement as a Holder of the LLC Preferred
Securities, including (A) the right to direct the Special Representative
of the LLC as elected by the Holders of the LLC Preferred Securities in
accordance with the LLC Agreement to enforce (x) the LLC’s creditors rights and
other rights with respect to the Affiliate Debt Instruments and any Investment
Guarantees, (y) the rights of the Holders of the LLC Preferred Securities under
the LLC Guarantee, and (z) the rights of the Holders of the LLC Preferred
Securities to receive distributions (if and to the extent such distributions
have been declared out of funds legally available therefor) on the LLC
Preferred Securities, (B) consent to any amendment, modification, or
termination of the LLC Agreement or the LLC Preferred Securities where such consent shall be required or (C) waive
any LLC Enforcement Event and
its consequences that is waivable under the LLC Agreement, subject in the case
of clause (B) or (C), to Section 7.6(e) and
(ii) to enforce the terms of the LLC Guarantee.


 


(d)                                 If
the Property Trustee fails to enforce
its rights under the LLC Preferred Securities after a Holder of record of Trust
Common Securities has made a written request (and is permitted to do so
pursuant to Section 7.7(c)), such Holder of record of Trust Common


 


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Securities may directly
institute a legal proceeding directly against the Managing Member or the
Special Representative, to enforce the Property Trustee’s rights under the LLC
Preferred Securities without first instituting any legal proceeding against the
Property Trustee or any other Person or entity. In addition, if a Trust
Enforcement Event has occurred and is continuing and such event is attributable
to the failure of an Investment Affiliate to make any required payment when due
on any Affiliate Debt Instrument or failure by the Company to make any required
payment when due on any Investment Guarantee, then a Holder of Trust Common
Securities may directly institute a proceeding against such Investment
Affiliate for enforcement of payment with respect to such Affiliate Debt
Instrument or the Company with respect to any such Investment Guarantee.


 


(e)                                  A
waiver of a LLC Enforcement Event with respect to the LLC Preferred Securities
shall constitute a waiver of the corresponding Trust Enforcement Event.


 


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


 


(g)                                 No
vote or consent of the Holders of the Trust Common Securities shall be required
for the Trust to redeem and cancel Trust Common Securities in accordance with
this Declaration of Trust.


 


(h)                                 Notwithstanding
that Holders of Trust Common Securities are entitled to vote or consent under
any of the circumstances described above, if Trust Common Securities are voting
together with the Trust Preferred Securities as a single class, any of the
Trust Common Securities that are owned at such time by the Sponsor or any of
its Affiliates, shall not be entitled to vote or consent and shall, for
purposes of such vote or consent, be treated as if such Trust Common Securities
were not outstanding; provided, however, that Persons otherwise
eligible to vote to whom the Sponsor or any of its subsidiaries have pledged
Trust Preferred Securities may vote or consent with respect to such pledged
Trust Preferred Securities under any of the circumstances described herein.


 


SECTION 7.7.                                                                       Paying
Agent and Security Registrar.


 


(a)                                  The
Trust shall maintain in the Borough of Manhattan, City of New York, State of
New York, (i) the Paying Agent’s office or agency where the Trust
Preferred Securities may be presented for payment in the event that the Trust
Preferred Securities are not in book-entry only form and (ii) an office or
agency where the Trust Preferred Securities may be presented for registration
of transfer or exchange (“Security Register”).


 


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(b)                                 The
Trust may appoint the Paying Agent and may appoint one or more additional
paying agents’ in such other locations as it shall determine. The
term “Paying Agent” includes any additional paying agent. The Trust may change
any Paying Agent without prior notice to any Holder. The Trust shall notify the
Property Trustee of the name and address of any Paying Agent not a party to
this Declaration of Trust. If the Trust fails to appoint or maintain another entity as Paying
Agent, the Property Trustee shall act as such. The Trust or any of its
Affiliates may act as Paying Agent.  The
Property Trustee shall initially act as Paying Agent for the Trust Preferred
Securities and the Trust Common Securities.


 


(c)                                  The
Security Register shall initially be kept at the Corporate Trust Office of the Property
Trustee.  Subject to such reasonable
regulations as it may prescribe, the Trust shall provide for the registration
of Trust Preferred Securities and of transfers of Trust Preferred Securities.  The Property Trustee shall initially act as
Security Registrar (the “Security Registrar”) for the purpose of
registering Trust Preferred Securities and transfers of Trust Preferred
Securities as herein provided.


 


SECTION 7.8.                                                                       Certificates
of Trust Securities.


 


(a)                                  The
Trust Preferred Securities may be issued in the form of one or more Global
Certificates.  If the Trust Preferred
Securities are to be issued in the form of one or more Global Certificates,
then the Regular Trustee on behalf of the Trust shall execute and the Property
Trustee shall authenticate and deliver one or more Global Certificates that (i) shall
represent and shall be denominated in an amount equal to the aggregate
liquidation amount of all of the Trust Preferred Securities to be issued in the
form of Global Certificates and not yet cancelled, (ii) shall be
registered in the name of the Depositary for such Global Certificate or Trust
Preferred Securities or the nominee of such Depositary, and (iii) shall be
delivered by the Property Trustee to such Depositary or pursuant to such
Depositary’s instructions.  Global
Certificates shall bear a legend as set
forth in Section 7.9(g)(i)(a) hereof.


 


(b)                                 Trust Preferred Securities not represented by
a Global Certificate issued in exchange for all or a part of a Global
Certificate pursuant to Section 7.9 hereof shall be registered in such
names and in such authorized denominations as the Depositary, pursuant to
instructions from its Participant or Indirect Participants or otherwise, shall
instruct the Property Trustee.  Upon
execution and authentication, the Property Trustee shall deliver such Trust
Preferred Securities not represented by a Global Certificate to the Persons in
whose names such definitive Trust Preferred Securities are so registered in the
form of Trust Preferred Securities Certificates.


 


(c)                                  If at any time the Depositary for any Trust
Preferred Securities represented by one or more Global Certificates notifies
the Trust that it is unwilling or unable to continue as Depositary for such
Trust Preferred Securities or if at any time the Depositary for such Trust
Preferred Securities shall no longer be eligible under this Section 7.9,
the Trust shall appoint a successor Depositary with respect to such Trust
Preferred Securities.  If a successor
Depositary for such Trust Preferred Securities is not appointed by the Trust
within 90 days after the Trust receives such notice or becomes aware of such
ineligibility, the Trust’s election that such Trust Preferred Securities be
represented by one or more Global Certificates shall no longer be effective and
the Trust shall execute, and the Property Trustee shall authenticate and
deliver,


 


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Trust Preferred Securities in definitive
registered form, in any authorized denominations, in an aggregate liquidation
amount equal to the principal amount of the Global Certificate or Trust
Preferred Securities representing such Trust Preferred Securities in exchange
for such Global Certificate or Trust Preferred Securities.


 


(d)                                 The Trust may at any time and in its sole
discretion determine that the Preferred Securities issued in the form of one or
more Global Certificates shall no longer be represented by a Global Certificate
or Trust Preferred Securities.  In such
event the Trust shall execute, and the Property Trustee shall authenticate and
deliver, Trust Preferred Securities in definitive registered form, in any
authorized denominations, in an aggregate liquidation amount equal to the
principal amount of the Global Certificate or Trust Preferred Securities
representing such Preferred Securities, in exchange for such Global Certificate
or Trust Preferred Securities; provided, that in no event shall the
Regulation S Global Certificate be exchanged for definitive, registered Trust
Preferred Securities prior to (A) the expiration of the Restricted Period
and (B) the receipt by the Registrar of any certificates required pursuant
to Rule 903 or Rule 904 under the Securities Act, except in the case
of a transfer pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 903 or Rule 904.  Such definitive registered Trust Preferred
Security will not bear the legend referred to in Section 7.9(g)(i)(a).


 


(e)                                  Notwithstanding any other provisions of this
Declaration of Trust (other than the provisions set forth in Section 7.9
hereof), Global Certificates may not be transferred as a whole except by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary.


 


(f)                                    Interests of beneficial owners in a Global
Certificate may be transferred or exchanged for Trust Preferred Securities
Certificates and Trust Preferred Securities Certificates may be transferred or
exchange for Global Certificates in accordance with rules of the
Depositary, the Applicable Procedures and the provisions of Section 7.9.


 


SECTION 7.9.                                                                       Transfer and Exchange of Trust Securities.


 


(a)                                  General.  (i)                                    Trust Securities may only be transferred or exchanged, in whole or
in part, in accordance with the terms and conditions set forth in this
Declaration of Trust and in the terms of the Trust Securities. Any transfer or
purported transfer of any Trust Security not made in accordance with this
Declaration of Trust shall be null and void.


 


(ii)                                  Subject to this Article VII, Trust
Preferred Securities shall be freely transferable.


 


(iii)                               At the option of the Holder, Trust Preferred
Securities may be exchanged for other Trust Preferred Securities of any
authorized denominations and of a like aggregate principal amount, upon
surrender of the Trust Preferred Securities to be exchanged at such office or
agency and pursuant to the rules of this Section 7.9.


 


(iv)                              The Trust Preferred Securities will be sold
in fully registered form and will not be transferable in amounts of less than
$100,000 aggregate liquidation amount and the Trust Preferred Securities must
at all times be held in minimum denominations of


 


46





















 


$100,000
and integral multiples of $1,000 in excess thereof.  Any transfer, sale or other disposition of
Trust Preferred Securities in an amount having an aggregate liquidation amount
of less than $100,000, or resulting in a Holder’s holding Trust Preferred
Securities in an amount having an aggregate liquidation amount of less than
$100,000, shall be deemed to be void and of no legal effect whatsoever, any
such transferee shall be deemed not to be the holder of such Trust Preferred
Securities for any purpose, including but not limited to the receipt of
distributions on such Trust Preferred Securities, and such transferee shall be
deemed to have no interest whatsoever in such Trust Preferred Securities.


 


(b)                                 Transfer and Exchange of Beneficial Interests
in the Global Certificates.  The transfer and exchange of beneficial
interests in the Global Certificates will be effected through the Depositary,
in accordance with the provisions of this Declaration of Trust and the Applicable
Procedures.  Beneficial interests in the
Restricted Global Certificates will be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act.  Transfers of beneficial interests
in the Global Certificates also will require compliance with either paragraph (i) or
(ii) below, as applicable, as well as one or more of the other following
paragraphs, as applicable:


 


(i)                                     Transfer of Beneficial Interests in the Same
Global Certificate.  Beneficial interests in any Restricted Global
Certificate may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in the same Restricted Global Certificate in
accordance with the transfer restrictions set forth in the Private Placement
Legend; provided, however, that prior to the expiration of the
Restricted Period, transfers of beneficial interests in the Regulation S Global
Certificate may not be made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser). 
Beneficial interests in any Unrestricted Global Certificate may be
transferred to Persons who take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Certificate. 
No written orders or instructions shall be required to be delivered to
the Security Registrar to effect the transfers described in this Section 7.9(b)(i).


 


(ii)                                  All Other Transfers and Exchanges of
Beneficial Interests in Global Certificates.  In connection with all transfers and
exchanges of beneficial interests that are not subject to Section 7.9(b)(i) above,
the transferor of such beneficial interest must deliver to the Security
Registrar, either:


 


(a)                                  both:


 


(i)                                     a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or cause to be credited a
beneficial interest in another Global Certificate in an amount equal to the
beneficial interest to be transferred or exchanged; and


 


(ii)                                  instructions given in accordance with the
Applicable Procedures containing information regarding the Participant account
to be credited with such increase; or


 


47





















 


(b)                                 both:


 


(i)                                     a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to cause to be issued a Global Certificate
in an amount equal to the beneficial interest to be transferred or exchanged;
and


 


(ii)                                  instructions given by the Depositary to the
Security Registrar containing information regarding the Person in whose name
such Global Certificate shall be registered to effect the transfer or exchange
referred to in (i) above;


 


provided
that in no event shall Global Certificates be issued upon the transfer or
exchange of beneficial interests in the Regulation S Global Certificate prior
to (A) the expiration of the Restricted Period and (B) the receipt by
the Security Registrar of any certificates required pursuant to Rule 903
or Rule 904.


 


Upon
consummation of an Exchange Offer by the Sponsor, the LLC and the Trust in
accordance with Section 7.9(f) hereof, the requirements of this Section 7.9(b)(ii) shall
be deemed to have been satisfied upon receipt by the Security Registrar of the
instructions contained in the Letter of Transmittal delivered by the holder of
such beneficial interests in the Restricted Global Certificates.  Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Certificates
contained in this Declaration of Trust and the Trust Preferred Securities or
otherwise applicable under the Securities Act, the Trustee shall adjust the
principal amount of the relevant Global Certificate(s) pursuant to Section 7.9(h) hereof.


 


(iii)                               Transfer of Beneficial Interests to Another
Restricted Global Certificate.  A beneficial interest in any Restricted
Global Certificate may be transferred to a Person who takes delivery thereof in
the form of a beneficial interest in another Restricted Global Certificate if
the transfer complies with the requirements of Section 7.9(b)(ii) above
and the Security Registrar receives the following:


 


(a)                                  if the transferee will take delivery in the
form of a beneficial interest in the 144A Global Certificate, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof; and


 


(b)                                 if the transferee will take delivery in the
form of a beneficial interest in the Regulation S Global Certificate, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (2) thereof.


 


(iv)                              Transfer and
Exchange of Beneficial Interests in a Restricted Global Certificate for
Beneficial Interests in an Unrestricted Global Certificate.  A
beneficial interest in any Restricted Global Certificate may be exchanged by
any holder thereof for a beneficial interest in an Unrestricted Global
Certificate or transferred to a Person who takes delivery thereof in the form
of a beneficial interest in an Unrestricted Global


 


48





















 


Certificate
if the exchange or transfer complies with the requirements of Section 7.9(b)(ii) above
and:


 


(a)                                  such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration Rights Agreement and
the holder of the beneficial interest to be transferred, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a
Person participating in the distribution of the Exchange Trust Preferred
Securities or (iii) a Person who is an affiliate (as defined in Rule 144)
of the Sponsor, the LLC or the Trust;


 


(b)                                 such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration Rights
Agreement;


 


(c)                                  such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or


 


(d)                                 the Security Registrar receives the
following:


 


(i)                                     if the holder of such beneficial interest in
a Restricted Global Certificate proposes to exchange such beneficial interest
for a beneficial interest in an Unrestricted Global Certificate, a certificate
from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or


 


(ii)                                  if the holder of such beneficial interest in
a Restricted Global Certificate proposes to transfer such beneficial interest
to a Person who shall take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Certificate, a certificate from such holder
in form reasonably acceptable to the Security Registrar, if the Security
Registrar so requests;


 


and, in each such case set forth in this
paragraph (d), if the Security Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form reasonably acceptable to
the Security Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.


 


If any such transfer is
effected pursuant to paragraph (b) or (d) above at a time when an
Unrestricted Global Certificate has not yet been issued, the Trust shall issue
and, upon receipt of the written order of the Trust in accordance with Section 7.1(d) hereof,
the Property Trustee shall authenticate one or more Unrestricted Global
Certificates in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to paragraph (b) or (d) above.


 


49





















 


(5)                                  Transfer and Exchange of Beneficial Interests
in an Unrestricted Global Certificate for Beneficial Interests in a Restricted
Global Certificate.  A
beneficial interest in an Unrestricted Global Certificate may be exchanged by
any holder thereof for a beneficial interest in a Restricted Global Certificate
or transferred to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Certificate if the exchange or
transfer complies with the requirements of Section 7.9(b)(ii) above
and:


 


(A)                              such
exchange occurs in connection with a transfer of the Trust Preferred Securities
pursuant to Rule 144A; and


 


(B)                                the
Security Registrar receives a certificate from the holder in the form of Exhibit C
hereto, including the certifications in item (3) thereof,


 


provided that in no event shall a beneficial interest
in an Unrestricted Global Certificate be exchanged by any holder thereof for a
beneficial interest in a Restricted Global Certificate prior to the expiration
of the Restricted Period.


 


(c)                                  Transfer or Exchange of Beneficial Interests
for Trust Preferred Security Certificates.


 


(i)                                     Beneficial Interests in Restricted Global
Certificates to Restricted Definitive Certificates.  If
any holder of a beneficial interest in a Restricted Global Certificate proposes
to exchange such beneficial interest for a Restricted Definitive Certificate,
then, upon receipt by the Security Registrar of the following documentation:


 


(a)                                  if the holder of such beneficial interest in
a Restricted Global Certificate proposes to exchange such beneficial interest
for a Restricted Definitive Certificate, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item (2)(a) thereof;


 


(b)                                 if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A, a certificate in form reasonably
acceptable to the Security Registrar to such effect, if the Security Registrar
so requests;


 


(c)                                  if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904, a certificate in form reasonably acceptable to the Security
Registrar to such effect, if the Security Registrar so requests;


 


(d)                                 if such beneficial interest is being
transferred pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;


 


(e)                                  if such beneficial interest is being
transferred to the Company, the LLC, the
Trust or any of their respective subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(b) thereof;
or


 


50





















 


(f)                                    if such beneficial interest is being
transferred pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,


 


the Property Trustee shall cause
the aggregate principal amount of the applicable Global Certificate to be
reduced accordingly pursuant to Section 7.9(h) hereof, and the Trust
shall execute and the Property Trustee shall authenticate and deliver to the
Person designated in the instructions a Trust Preferred Security Certificate in
the appropriate principal amount.  Any
Trust Preferred Security Certificate issued in exchange for a beneficial
interest in a Restricted Global Certificate pursuant to this Section 7.9(c) shall
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Security Registrar through instructions from the Depositary and the Participant
or Indirect Participant.  The Property
Trustee shall deliver such Trust Preferred Security Certificates to the Persons
in whose names such Trust Preferred Securities are so registered.  Any Trust Preferred Security Certificate
issued in exchange for a beneficial interest in a Restricted Global Certificate
pursuant to this Section 7.9(c)(i) shall bear the Private Placement
Legend and shall be subject to all restrictions on transfer contained therein.


 


(ii)                                  Beneficial Interests in Regulation S Global
Certificate to Certificates.  Notwithstanding Sections 7.9(c)(i)(a) and
7.9(c)(i)(c) hereof, a beneficial interest in the Regulation S Global
Certificate may not be exchanged for a Certificate or transferred to a Person
who takes delivery thereof in the form of a Certificate prior to (A) the
expiration of the Restricted Period and (B) the receipt by the Security
Registrar of any certificates required pursuant to Rule 903 or Rule 904,
except in the case of a transfer pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule 904.


 


(iii)                               Beneficial Interests in Restricted Global
Certificates to Unrestricted Definitive Certificates.  A
holder of a beneficial interest in a Restricted Global Certificate may exchange
such beneficial interest for an Unrestricted Definitive Certificate or may
transfer such beneficial interest to a Person who takes delivery thereof in the
form of an Unrestricted Definitive Certificate only if:


 


(a)                                  such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a
Person participating in the distribution of the Exchange Trust Preferred
Securities or (iii) a Person who is an affiliate (as defined in Rule 144)
of the Sponsor, the LLC or the Trust;


 


(b)                                 such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration Rights
Agreement;


 


51


















 


(c)                                  such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or


 


(d)                                 the Security Registrar receives the
following:


 


(i)                                     if the holder of such beneficial interest in
a Restricted Global Certificate proposes to exchange such beneficial interest
for an Unrestricted Definitive Certificate, a certificate from such holder in
the form of Exhibit C hereto, including the certifications in item (1)(b) thereof;
or


 


(ii)                                  if the holder of such beneficial interest in
a Restricted Global Certificate proposes to transfer such beneficial interest
to a Person who shall take delivery thereof in the form of an Unrestricted
Definitive Certificate, a certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;


 


and, in each such case set forth in this
paragraph (d), if the Security Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form reasonably acceptable to
the Security Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.


 


(iv)                              Beneficial Interests in Unrestricted Global
Certificates to Unrestricted Definitive Certificates.  If
any holder of a beneficial interest in an Unrestricted Global Certificate
proposes to exchange such beneficial interest for a Trust Preferred Security
Certificate or to transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Trust Preferred Security Certificate, then,
upon satisfaction of the conditions set forth in Section 7.9(b)(i) hereof,
the Property Trustee will cause the aggregate principal amount of the
applicable Global Certificate to be reduced accordingly pursuant to Section 7.9(g) hereof,
and the Trust will execute and the Property Trustee will authenticate and
deliver to the Person designated in the instructions a Trust Preferred Security
Certificate in the appropriate principal amount.  Any Trust Preferred Security Certificate
issued in exchange for a beneficial interest pursuant to this Section 7.9(c)(iv) will
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest requests through
instructions to the Security Registrar from or through the Depositary and the
Participant or Indirect Participant.  The
Property Trustee will deliver such Trust Preferred Security Certificate to the
Persons in whose names such Trust Preferred Securities are so registered.  Any Trust Preferred Security Certificate
issued in exchange for a beneficial interest pursuant to this Section 7.9(c)(iv) will
not bear the Private Placement Legend.


 


Transfers and exchanges of
Global Certificates for Trust Preferred Security Certificates pursuant to this Section 7.9(c) shall
be made if, and only if, such transfer or exchange is permitted pursuant to Section 7.9(c),
(d) and (e) hereof.


 


52





















 


(d)                                 Transfer and Exchange of Trust Preferred
Security Certificates for Beneficial Interests.


 


(i)                                     Restricted Definitive Certificates to
Beneficial Interests in Restricted Global Certificates.  If
any Holder of a Restricted Definitive Certificate proposes to exchange such
Restricted Definitive Certificate for a beneficial interest in a Restricted
Global Certificate or to transfer such Restricted Definitive Certificates to a
Person who takes delivery thereof in the form of a beneficial interest in a
Restricted Global Certificate, then, upon receipt by the Security Registrar of
the following documentation:


 


(a)                                  if the Holder of such Restricted Definitive
Certificate proposes to exchange such Restricted Definitive Certificate for a
beneficial interest in a Restricted Global Certificate, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications in
item (2)(b) thereof;


 


(b)                                 if such Restricted Definitive Certificate is
being transferred to a QIB in accordance with Rule 144A, a certificate to
the effect set forth in Exhibit B hereto, including the certifications in
item (1) thereof;


 


(c)                                  if such Restricted Definitive Certificate is
being transferred to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;


 


(d)                                 if such Restricted Definitive Certificate is
being transferred pursuant to an exemption from the registration requirements
of the Securities Act in accordance with Rule 144, a certificate in form
reasonably acceptable to the Security Registrar, if the Security Registrar so
requests;


 


(e)                                  if such Restricted Definitive Certificate is
being transferred to the Sponsor or any of its
subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or


 


(f)                                    if such Restricted Definitive Certificate is
being transferred pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,


 


the Property
Trustee will cancel the Restricted Definitive Certificate, increase or cause to
be increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Certificate, in the case of clause (B) above,
the 144A Global Certificate, and in the case of clause (C) above, the
Regulation S Global Certificate.


 


(ii)                                  Restricted Definitive Certificates to
Beneficial Interests in Unrestricted Global Certificates.  A
Holder of a Restricted Definitive Certificate may exchange such Restricted Definitive
Certificate for a beneficial interest in an Unrestricted Global Certificate or
transfer such Restricted Definitive Certificate to a Person who takes


 


53





















 


delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Certificate only if:


 


(a)                                  such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal that it
is not (i) a Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Trust Preferred Securities or (iii) a Person
who is an affiliate (as defined in Rule 144) of the Sponsor, the LLC or
the Trust;


 


(b)                                 such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration Rights
Agreement;


 


(c)                                  such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or


 


(d)                                 the Security Registrar receives the
following:


 


(i)                                     if the Holder of such Restricted Definitive
Certificates proposes to exchange such Restricted Definitive Certificates for a
beneficial interest in the Unrestricted Global Certificate, a certificate from
such Holder in the form of Exhibit C hereto, including the certifications
in item (1)(c) thereof; or


 


(ii)                                  if the Holder of such Restricted Definitive
Certificates proposes to transfer such Restricted Definitive Certificates to a
Person who shall take delivery thereof in the form of a beneficial interest in
the Unrestricted Global Certificate, a certificate from such Holder in the form
of Exhibit B hereto, including the certifications in item (4) thereof;


 


and, in each such case set forth in this
paragraph (d), if the Security Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form reasonably acceptable to
the Security Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.


 


Upon satisfaction of the
conditions of any of the paragraphs in this Section 7.9(d)(ii), the
Trustee will cancel the Restricted Definitive Certificates and increase or
cause to be increased the aggregate principal amount of the Unrestricted Global
Certificate.


 


(iii)                               Unrestricted Definitive Certificates to
Beneficial Interests in Unrestricted Global Certificates.  A
Holder of an Unrestricted Definitive Certificate may exchange such Unrestricted
Definitive Certificate for a beneficial interest in an Unrestricted Global Certificate
or transfer such Unrestricted Definitive Certificate to a Person who takes


 


54





















 


delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Certificate at any time.  Upon receipt of
a request for such an exchange or transfer, the Trustee will cancel the
applicable Unrestricted Definitive Certificate and increase or cause to be
increased the aggregate principal amount of one of the Unrestricted Global
Certificates.


 


If any such exchange or
transfer from a Trust Preferred Security Certificate to a beneficial interest
is effected pursuant to paragraphs (ii)(b), (ii)(d) or (iii) above at
a time when an Unrestricted Global Certificate has not yet been issued, the
Trust will issue and, upon receipt of the written Order of the Trust in
accordance with Section 7.1(d) hereof, the Property Trustee shall
authenticate one or more Unrestricted Global Certificates in an aggregate
principal amount equal to the principal amount of Trust Preferred Security
Certificates so transferred.


 


(e)                                  Transfer and Exchange of Trust Preferred
Security Certificates for Trust Preferred Security Certificates.  Upon
request by a Holder of Trust Preferred Security Certificates and such Holder’s
compliance with the provisions of this Section 7.9(e), the Security
Registrar will register the transfer or exchange of Trust Preferred Security
Certificates.  Prior to such registration
of transfer or exchange, the requesting Holder must present or surrender to the
Security Registrar the Trust Preferred Security Certificates duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Security Registrar duly executed by such Holder or by its attorney, duly
authorized in writing.  In addition, the
requesting Holder must provide any additional certifications, documents and
information, as applicable, required pursuant to the following provisions of
this 7.9(e).


 


(i)                                     Restricted Definitive Certificates to
Restricted Definitive Certificates.  Any Restricted Definitive
Certificate may be transferred to and registered in the name of Persons who
take delivery thereof in the form of a Restricted Definitive Certificate if the
Security Registrar receives the following:


 


(a)                                  if the transfer will be made pursuant to Rule 144A,
then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;


 


(b)                                 if the transfer will be made pursuant to Rule 903
or Rule 904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof;
and


 


(c)                                  if the transfer will be made pursuant to any
other exemption from the registration requirements of the Securities Act, then
the transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel required by
item (3) thereof, if applicable.


 


(ii)                                  Restricted Definitive Certificates to
Unrestricted Definitive Certificates.  Any Restricted Definitive
Certificate may be exchanged by the Holder thereof for an Unrestricted
Definitive Certificate or transferred to a Person or Persons who take delivery
thereof in the form of an Unrestricted Definitive Certificate if:


 


55





















 


(a)                                  such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal that it
is not (i) a Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Trust Preferred Securities or (iii) a Person
who is an affiliate (as defined in Rule 144) of the Sponsor, the LLC or
the Trust;


 


(b)                                 any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration Rights
Agreement;


 


(c)                                  any such transfer is effected by a
Broker-Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or


 


(d)                                 the Security Registrar receives the
following:


 


(i)                                     if the Holder of such Restricted Definitive
Certificates proposes to exchange such Restricted Definitive Certificates for
an Unrestricted Definitive Certificate, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item (1)(d) thereof;
or


 


(ii)                                  if the Holder of such Restricted Definitive
Certificates proposes to transfer such Restricted Definitive Certificates to a Person
who shall take delivery thereof in the form of an Unrestricted Definitive
Certificate, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;


 


and, in each such case set forth in this
paragraph (d), if the Security Registrar so requests, an Opinion of Counsel in
form reasonably acceptable to the Security Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the Securities Act.


 


(iii)                               Unrestricted Definitive Certificates to
Unrestricted Definitive Certificates.  A Holder of Unrestricted
Definitive Certificates may transfer such Unrestricted Definitive Certificates
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Certificate.  Upon receipt of
a request to register such a transfer, the Security Registrar shall register
the Unrestricted Definitive Certificates pursuant to the instructions from the
Holder thereof.


 


(f)                                    Exchange Offer.  Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Trust will issue and,
upon receipt of the written order of the Trust in accordance with Section 7.1(b) hereof,
the Property Trustee will authenticate:


 


56





















 


(i)                                     one or more Unrestricted Global Certificates
in an aggregate principal amount equal to the principal amount of the
beneficial interests in the Restricted Global Certificates accepted for
exchange in the Exchange Offer by Persons that certify in the applicable
Letters of Transmittal that (A) they are not Broker-Dealers, (B) they
are not participating in a distribution of the Exchange Trust Preferred
Securities and (C) they are not affiliates (as defined in Rule 144)
of the Sponsor, the LLC or the Trust; and


 


(ii)                                  Unrestricted Definitive Certificates in an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Certificates accepted for exchange in the Exchange Offer by Persons
that certify in the applicable Letters of Transmittal that (A) they are
not Broker-Dealers, (B) they are not participating in a distribution of
the Exchange Trust Preferred Securities and (C) they are not affiliates
(as defined in Rule 144) of the Sponsor, the LLC or the Trust.


 


Concurrently with the
issuance of such Unrestricted Global Certificates or Unrestricted Definitive
Certificates, the Property Trustee will cause the aggregate principal amount of
the applicable Restricted Global Certificates to be reduced accordingly, and
the Trust will execute and the Property Trustee will authenticate and deliver
to the Persons designated by the Holders of Trust Preferred Security
Certificates so accepted Unrestricted Definitive Certificates in the
appropriate principal amount.


 


(g)                                 Legends.  The following legends will
appear on the face of all Global Certificates and Trust Preferred Security
Certificates issued under this Declaration of Trust unless specifically stated
otherwise in the applicable provisions of this Declaration of Trust.


 


(i)                                     Private Placement Legend.


 


(a)                                  Except as permitted by paragraph (b) below,
each Global Certificate (other than a Regulation S Global Certificate) and each
Trust Preferred Security Certificate (and all certificates issued in exchange
therefor or substitution thereof) shall bear the legend in substantially the
following form:


 


“THIS TRUST
PREFERRED SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR OTHER SECURITIES LAWS.  NEITHER THIS TRUST PREFERRED SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE RE-OFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. EACH PURCHASER OF THE
TRUST PREFERRED SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THIS TRUST
PREFERRED SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT
IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS TRUST
PREFERRED SECURITY IN AN “OFFSHORE TRANSACTION” PURSUANT TO RULE


 


57





















 


904 OF REGULATION
S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE
DATE THAT IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE
144(K) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS
TRUST PREFERRED SECURITY) OR THE LAST DAY ON WHICH THE TRUST OR ANY AFFILIATE
OF THE TRUST WAS THE OWNER OF THIS TRUST PREFERRED SECURITY (OR ANY PREDECESSOR
OF THIS TRUST PREFERRED SECURITY) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAW (THE “RESALE RESTRICTION TERMINATION DATE”), OFFER,
SELL OR OTHERWISE TRANSFER THIS TRUST PREFERRED SECURITY EXCEPT (A) TO THE
TRUST, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS TRUST PREFERRED SECURITY
IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A INSIDE THE UNITED STATES, (D) PURSUANT
TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT
TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM
THIS TRUST PREFERRED SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND; PROVIDED THAT THE TRUST, THE TRUSTEE AND THE REGISTRAR
SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO
CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (II) IN
EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE
FORM APPEARING ON THE OTHER SIDE OF THE SECURITY IS COMPLETED AND
DELIVERED BY THIS TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON
THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. TERMS
USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES
ACT.”


 


(b)                                 Notwithstanding the
foregoing, any Global Certificate or Trust Preferred Security Certificate issued pursuant to paragraphs
(a)(iv), (b)(iii), (b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii) or (e) of
this Section 7.9 (and all Global Certificates or Trust Preferred Security
Certificates issued in exchange therefor or substitution thereof) will not bear
the Private Placement Legend.


 


(ii)                                  Global Certificate Legend.  Each
Global Certificate will bear a legend in substantially the following form:


 


“THIS TRUST
PREFERRED SECURITY IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
DECLARATION OF TRUST HEREINAFTER REFERRED TO AND IS


 


58





















 


REGISTERED IN
THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”),
OR A NOMINEE OF DTC.  THIS TRUST
PREFERRED SECURITY IS EXCHANGEABLE FOR TRUST PREFERRED SECURITIES REGISTERED IN
THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE DECLARATION OF TRUST.  UNLESS THIS GLOBAL CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC, TO THE TRUST OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY TRUST PREFERRED SECURITY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. (“CEDE”)
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE, HAS AN
INTEREST HEREIN.”


 


(iii)                               Regulation S Global Certificate Legend.  Each
Regulation S Global Certificate will bear a Legend in substantially the
following form:


 


“THIS TRUST
PREFERRED SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE TRANSFERRED IN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT
PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE
THE MEANINGS GIVEN TO THEM IN REGULATIONS UNDER THE SECURITIES ACT.”


 


(h)                                 Cancellation and/or Adjustment of Global
Certificates.  At
such time as all beneficial interests in a particular Global Certificate have
been exchanged for Trust Preferred Security Certificates or a particular Global
Certificate has been redeemed, repurchased or canceled in whole and not in
part, each such Global Certificate will be returned to or retained and canceled
by the Property Trustee in accordance with Section 7.8 hereof.  At any time prior to such cancellation, if
any beneficial interest in a Global Certificate is exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Certificate or for Trust Preferred Security Certificates, the
principal amount of Trust Preferred Securities represented by such Global
Certificate will be reduced accordingly and an endorsement will be made on such
Global Certificate by the Property Trustee or by the Depositary at the
direction of the Property Trustee to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global
Certificate, such other Global Certificate will be increased accordingly and an
endorsement will be made on such Global Certificate by the Property Trustee or
by the Depositary at the direction of the Property Trustee to reflect such
increase.


 


59





















 


(i)                                     General Provisions Relating to Transfers and
Exchanges.


 


(i)                                     To permit registrations of transfers and
exchanges, the Trust will execute and the Property Trustee will authenticate
Global Certificates and Trust Preferred Security Certificates upon receipt of
the written Order of the Trust in accordance with Section 7.1(d) hereof
or at the Security Registrar’s request.


 


(ii)                                  No service charge will be made to a holder of
a beneficial interest in a Global Certificate or to a Holder of a Trust
Preferred Security Certificate for any registration of transfer or exchange,
but the Trust or the Property Trustee may require payment of a sum sufficient
to cover any transfer tax or similar governmental charge payable in connection
therewith.


 


(iii)                               All Global Certificates and Trust Preferred
Security Certificates issued upon any registration of transfer or exchange of
Global Certificates or Trust Preferred Security Certificates will be the valid
obligations of the Trust, evidencing the same debt, and entitled to the same
benefits under this Declaration of Trust, as the Global Certificates or Trust
Preferred Security Certificates surrendered upon such registration of transfer
or exchange.


 


(iv)                              Neither of the Security Registrar, the Trust
or any Regular Trustee will be required:


 


(a)                                  to issue, to register the transfer of or to
exchange any Trust Preferred Securities during a period beginning at the
opening of business 15 days before the day of any selection of Trust Preferred
Securities for redemption under Section 7.5 hereof and ending at the close
of business on the day of selection;


 


(b)                                 to register the transfer of or to exchange
any Trust Preferred Security selected for redemption in whole or in part,
except the unredeemed portion of any Trust Preferred Security being redeemed in
part; or


 


(c)                                  to register the transfer of or to exchange a
Trust Preferred Security between a record date and the next succeeding
distribution payment date.


 


(v)                                 Prior to due presentment for the registration
of a transfer of any certificate, the Trustees, any Securities Registrar or
Paying Agent and the Trust may deem and treat the Person in whose name any
certificate shall be registered on the books and records of the Trust as the
absolute and sole Holder of such certificate and of the Trust Preferred
Securities represented by such certificate for purposes of receiving
distributions and for all other purposes whatsoever and, accordingly, shall not
be bound to recognize any equitable or other claim to or interest in such
Certificate or in the Trust Preferred Securities represented by such
certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.


 


(vi)                              The Property Trustee will authenticate Global
Certificates and Trust Preferred Security Certificates in accordance with the
provisions of Section 7.1(d) hereof.


 


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(vii)                           All certifications, certificates and Opinions
of Counsel required to be submitted to the Security Registrar pursuant to this Section 7.9
to effect a registration of transfer or exchange may be submitted by facsimile
(with originals to follow by mail).


 


(viii)                        None of the Trustees or any Securities
Registrar or Paying Agent shall have any responsibility or obligation to any
beneficial owner in a Global Certificate, a member of, or a Participant in the
Depository or other Person with respect to the accuracy of the records of the
Depository or its nominee or of any Participant or member thereof, with respect
to any ownership interest in the Trust Preferred Security or with respect to
the delivery to any Participant, member, beneficial owner or other Person
(other than the Depository) of any notice (including any notice of redemption)
or the payment of any amount, under or with respect to such Trust Preferred
Security.  All notices and communications
to be given to the Holders and all payments to be made to Holders under the
Trust Preferred Securities shall be given or made only to or upon the order of
the registered Holders (which shall be the Depository or its nominee in the
case of Global Certificates).  The rights
of beneficial owners in the Global Certificates shall be exercised only through
the Depository subject to the Applicable Procedures of the Depository.  The Trustees, the Trust, any Paying Agent and
the Security Registrar may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its members,
Participants and any beneficial owners. 
The Trustees, the Trust, each Paying Agent and the Security Registrar
shall be entitled to deal with any depositary (including the Depositary), and
any nominee thereof, that is the Holder of any Global Certificate, for all
purposes of this Declaration of Trust relating to such Global Certificate
(including the making of payments due on the Trust Preferred Securities, and
the giving of instructions or directions by or to the owner or holder of a
beneficial ownership interest in such Global Certificate), as the authorized
representative of the Holders for the purposes of exercising the rights of the
Holders hereunder.  The rights of the
owner of any beneficial interest in a Global Certificate shall be limited to
those established by law and agreements between such owners and each
Participant; provided, that no such agreement shall give any rights to
any Person against the Trust or the Property Trustee without the written
consent of the parties so affected. 
Multiple requests and directions from and votes of the Depositary as
holder of Global Certificates with respect to any particular matter shall not
be deemed inconsistent to the extent they do not represent an amount of Trust
Preferred Securities in excess of those held in the name of the Depositary or
its nominee.  None of the Trustees, the
Trust, any Paying Agent or the Security Registrar shall have any responsibility
or liability for any acts or omissions of any such depositary with respect to
such Global Certificate, for the records of any such depositary, including
records in respect of beneficial ownership interests in respect of any such
Global Certificate, for any transactions between such depositary and any
Participant in such depositary or between or among any such depositary, any
such Participant and/or any Holder or owner of a beneficial interest in such
Global Certificate or for any transfers of beneficial interests in any such
Global Certificate.


 


(ix)                                The Trustees and the Trust shall have no
obligation or duty to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Declaration of Trust or under
applicable law with respect to any transfer of any interest in any Certificate
or Global Certificate (including any transfers between or among


 


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Depository
Participants, members or beneficial owners in the Global Certificates) other
than to make any required delivery of such certificates and other documentation
or evidence as are expressly required by, and to do so if and when expressly
required by, the terms of this Declaration of Trust, and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.


 


SECTION 7.10.                                                                 Acceptance of Guarantee and Agreements.


 


Each Holder of
Trust Preferred Securities and Trust Common Securities, by the acceptance
thereof, agrees to the provisions of the applicable Trust Guarantee, the LLC
Guarantee and the Investment Guarantee, respectively, including the
subordination provisions therein.


 


SECTION 7.11.                                                                 Mutilated, Destroyed, Lost or Stolen
Certificates.


 


If:


 


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


 


(b)                                 there shall be delivered to the Regular
Trustees such security or indemnity as may be required by them to keep each of
the Trustees, the Sponsor and the Trust harmless,


 


then, in the
absence of notice that such Certificate shall have been acquired by a protected
purchaser, any Regular Trustee on behalf of the Trust shall execute and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like denomination. In connection with the
issuance of any new Certificate under this Section 7.12, each of the
Trustees or the Regular
Trustees may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive
evidence of an ownership interest in the relevant Trust Securities, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.


 


ARTICLE VIII



DISSOLUTION AND LIQUIDATION OF THE TRUST


 


SECTION 8.1.                                                                       Dissolution and Termination of Trust.


 


(a)                                  The Trust shall dissolve upon the earliest
of:


 


(i)                                     the bankruptcy of the Holder of Trust Common Securities or the Sponsor;


 


(ii)                                  the filing of a certificate of dissolution or
its equivalent with respect to the Sponsor or the revocation of the Sponsor’s
charter and the expiration of 90 days after the date of revocation without a
reinstatement thereof;


 


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(iii)                               the filing of a certificate of cancellation
with respect to the Trust after having obtained the consent of at least a
Majority in Liquidation Amount of the Trust
Securities, voting together as a single class, to file such certificate of cancellation, with respect to the
Trust;


 


(iv)                              the entry of a decree of judicial dissolution
of the Sponsor or the Trust;


 


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


 


(vi)                              upon the election of the Regular Trustees,
following the occurrence and continuation of a Special Event; provided,
that the LLC shall have been dissolved and its assets distributed to the Trust;
or


 


(vii)                           on August 19, 2065, if not earlier
liquidated.


 


(b)                                 As soon as is practicable after the
occurrence of an event referred to in Section 8.1(a) and upon
completion of the winding-up and liquidation of the Trust, the Trustees shall
terminate the Trust at the expense of the Sponsor by filing a certificate of cancellation with the Secretary of
State of the State of Delaware.


 


(c)                                  The provisions of Section 3.9 and Article IX
shall survive the termination of the Trust.


 


SECTION 8.2.                                                                       Liquidation Distribution Upon Dissolution and
Termination of the Trust.


 


In the event
of any voluntary or involuntary liquidation, dissolution, winding-up or
termination of the Trust (a “Liquidation”), the Holders of the Trust
Securities on the date of the Liquidation shall be entitled to receive all
assets of the Trust available for distribution to Holders of Trust Securities
after satisfaction of the Trust’s liabilities and creditors on a Pro Rata
basis, except as otherwise provided in Section 7.1(c) hereof.


 


ARTICLE IX



LIMITATION OF LIABILITY OF

HOLDERS OF TRUST SECURITIES, TRUSTEES OR OTHERS


 


SECTION 9.1.                                                                       Liability.


 


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


 


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


 


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


 


(b)                                 Pursuant to Section 3803(a) of the
Statutory Trust Act, the Holder of the Common Securities shall be entitled to
the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware; provided, however, that the Holders of the
Trust Common Securities, by entering into this Agreement, shall be liable
directly to any creditor or claimant of or against the Trust for the entire
amount of all of the debts and obligations of the Trust (other than obligations
to the Holders of Trust Securities in their capacities as Holders) to the extent
not satisfied out of the Trust’s assets.


 


(c)                                  Pursuant to Section 3803(a) of the
Statutory Trust Act the Holders of the Trust Preferred Securities shall be
entitled to the same limitation of personal liability extended to shareholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware.


 


SECTION 9.2.                                                                       Exculpating.


 


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


 


(b)                                 An Indemnified Person shall be fully
protected in relying in good faith upon the records of the Trust and upon such
information, opinions, reports
or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person’s
professional or expert competence and who has been selected with reasonable
care by or on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount
of the assets, liabilities, profits, losses, or any other facts pertinent to
the existence and amount of assets from which distributions to Holders of Trust
Securities might properly be paid.


 


SECTION 9.3.                                                                       Fiduciary Duty.


 


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


 


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than the duties imposed on the Property
Trustee under the Trust Indenture Act), are agreed by the parties hereto to
replace such other duties and liabilities of such Indemnified Person.


 


(b)                                 Unless otherwise expressly provided herein:


 


(i)                                     whenever a conflict of interest exists or
arises between an Indemnified Person and any Covered Person; or


 


(ii)                                  whenever this Declaration of Trust or any
other agreement contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Trust Securities,


 


the
Indemnified Person shall resolve such conflict of interest, take such action or
provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any
customary or accepted industry practices, and any applicable generally accepted
accounting practices or principles. In the absence of bad faith by the
Indemnified Person, the resolution, action or term so made, taken or provided
by the Indemnified Person shall not constitute a breach of this Declaration of
Trust or any other agreement contemplated herein or of any duty or obligation
of the Indemnified Person at law or in equity or otherwise.


 


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


 


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


 


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


 


SECTION 9.4.                                                                       Indemnification.


 


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


 


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and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.


 


(i)                                     The Sponsor shall indemnify, to the fullest
extent permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any. threatened, pending or
completed action or suit by or in the right of the Trust to procure a judgment
in its favor by reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys’ fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue or matter as to
which such Company Indemnified Person shall have been adjudged to be liable to
the Trust unless and only to the extent that the Court of Chancery of Delaware
or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such Person is fairly and reasonably entitled to
indemnity for such expenses which such Court of Chancery or such other court
shall deem proper.


 


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


 


(iii)                               Any indemnification under paragraphs (i) and
(ii) of this Section 9.4(a) (unless ordered by a court) shall be
made by the Sponsor only as authorized in the specific case upon a
determination that indemnification of the Company Indemnified Person is proper
in the circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (1) by
the Regular Trustees by a majority vote of a quorum consisting of such Regular
Trustees who were not parties to such  action, suit or proceeding, (2) if
such a quorum is not obtainable,
or, even if obtainable, if a quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a written opinion, or (3) by the
Holder of the Trust Common Securities.


 


(iv)                              Expenses (including attorneys’ fees) incurred
by a Company Indemnified Person in defending a civil, criminal, administrative
or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 9.4(a) shall
be paid by the Sponsor in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Company Indemnified Person to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the Sponsor as
authorized in this Section 9.4(a).
Notwithstanding the foregoing, no advance shall be made by the Sponsor
if a determination is reasonably and promptly made (i) by the Regular
Trustees by a majority vote of a quorum of disinterested Regular Trustees, (ii) if
such a quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested


 


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Regular
Trustees so directs, by independent legal counsel in a written opinion or (iii) the
Holder of the Trust Common Securities, that, based upon the facts known to the
Regular Trustees, counsel or the Holder of the Trust Common Securities at the
time such determination is made, such Company Indemnified Person acted in bad
faith or in a manner that such Person did not believe to be in or not opposed
to the best interests of the Trust, or, with respect to any criminal
proceeding, that such Company Indemnified Person believed or had reasonable cause
to believe his conduct was unlawful. In no event shall any advance be made in
instances where the Regular Trustees, independent legal counsel or Holder of
the Trust Common Securities reasonably determine that such Person deliberately
breached his duty to the Trust Holders of Trust Common Securities or the
Holders of Trust Preferred Securities.


 


(v)                                 The indemnification and advancement of
expenses provided by, or granted pursuant to, the other paragraphs of this Section 9.4(a) shall
not be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of shareholders or disinterested directors of the Sponsor or
Holders of the Trust Preferred Securities or otherwise, both as to action in
his official capacity and as to action in another capacity while holding such
office. All rights to indemnification under this Section 9.4(a) shall
be deemed to be provided by a contract between the Sponsor and each Company
Indemnified Person who serves in such capacity at any time while this Section 9.4(a) is
in effect. Any repeal or modification of this Section 9.4(a) shall
not affect any rights or obligations then existing.


 


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


 


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


 


(viii)                        The indemnification and advancement of
expenses provided by, or granted pursuant to, this Section 9.4(a) shall,
unless otherwise provided when authorized or ratified, continue as to a Person
who has ceased to be a Company Indemnified Person and shall inure to the
benefit of the heirs, executors and administrators of such a Person.


 


(b)                                 The Sponsor agrees to indemnify the (i) Property
Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the
Property Trustee and the Delaware Trustee, and (iv) any officers,
directors, shareholders, members, partners, employees, representatives,
custodians, nominees or agents of the Property Trustee and the Delaware Trustee
(each of the Persons in (i)


 


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through (iv) being referred to as a “Fiduciary
Indemnified Person”) for, and to hold each Fiduciary Indemnified Person
harmless against, any loss, damage, claim, liability or expense including taxes
(other than taxes based on the income of the Trustee) incurred without negligence
or bad faith on the part of the Trustee arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder, including
the costs and expenses (including reasonable legal fees and expenses) of
defending itself against or investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 9.4(b) shall survive the
satisfaction and discharge of this Declaration of Trust.


 


SECTION 9.5.                                                                       Outside Businesses.


 


Any Covered
Person, the Sponsor, the Delaware Trustee and the Property Trustee may engage
in or possess an interest in other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and the Trust and
the Holders of Trust Securities shall have no rights by virtue of this
Declaration of Trust in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor, the Delaware Trustee, nor the
Property Trustee shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and any Covered Person,
the Sponsor, the Delaware Trustee and the Property Trustee shall have the right
to take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for,
or act on any committee or body of Holders of, securities or other obligations
of the Sponsor or its Affiliates.


 


ARTICLE X



ACCOUNTING AND TAX MATTERS


 


SECTION 10.1.                                                                 Fiscal Year.


 


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


 


SECTION 10.2.                                                                 Certain Accounting Matters; Returns and
Information.


 


(a)                                  At all times during the existence of the
Trust, the Regular Trustees shall keep, or cause to be kept, full books of
account, records and supporting documents, which shall reflect in reasonable
detail, each transaction of the Trust. The books of account shall be maintained
on the accrual method of accounting, in accordance with generally accepted
accounting principles, consistently applied. The books of account and the
records of the Trust shall be examined by and reported upon as of the end of
each Fiscal Year of the Trust by a firm of independent certified public accountants selected by the Regular
Trustees.


 


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(b)                                 Within 60 days after December 31 of each
year, the Property Trustee shall provide to the Holders of the Trust Securities
such reports as are required by Section 313 of the Trust Indenture Act, if
any, in the form and in the manner provided by Section 313 of the Trust Indenture Act. The Property Trustee
shall also comply with the requirements of Section 313(d) of the
Trust Indenture Act.


 


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


 


(d)                                 The Regular Trustees shall cause to be duly
prepared and filed with the appropriate taxing authority, an annual United
States federal income tax return, on a Form 1041 or such other form
required by United States federal income tax law, and any other annual income
tax returns required to be filed by the Regular Trustees on behalf of the Trust with any state
or local taxing authority.


 


SECTION 10.3.                                                                 Banking.


 


The Trust
shall maintain one or more bank accounts in the name and for the sole benefit
of the Trust; provided, however, that all payments of funds in
respect of the LLC Preferred Securities held by the Property Trustee shall be
made directly to the Property Account and no other funds of the Trust shall be
deposited in the Property Account. The sole signatories for such accounts shall
be designated by the Regular Trustees; provided, however, that
the Property Trustee shall designate the signatories for the Property Account.


 


SECTION 10.4.                                                                 Withholding.


 


The Trust and
the Regular Trustees shall comply with all withholding requirements under
United States federal, state and local law. The Trust shall request, and the
Holders shall provide to the Trust, such forms or certificates as are necessary
to establish an exemption from withholding with respect to each Holder (or
beneficial owner of Trust Securities), and any representations and forms as
shall reasonably be requested by the Trust to assist it in determining the
extent of, and in fulfilling, its withholding obligations.  The Regular Trustees shall file required
forms with applicable jurisdictions and unless an exemption from withholding is
properly established by a Holder or beneficial owner of Trust Securities, shall
remit amounts withheld with respect to the Holder or beneficial owner to
applicable jurisdictions. To the extent that the Trust is required to withhold
and pay over any amounts to any authority with respect to distributions or
allocations to any Holder or beneficial owner, the amount withheld shall be
deemed to be a distribution in the amount of the withholding to such Holder or
beneficial owner. In the event of any claimed over-withholding, Holders or
beneficial owners shall be limited to an action against the applicable
jurisdiction. If the amount required to be withheld was not withheld from
actual distributions made, the Trust may reduce subsequent distributions to
such Holder or beneficial owner by the amount of such withholding.


 


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SECTION 10.5.                                                                 Treatment as Grantor Trust for Federal Income
Tax Purposes.


 


It is the
intention of the parties hereto that the Trust be classified for United States
federal income tax purposes as a grantor trust. The provisions of this
Declaration of Trust shall be interpreted to further this intention of the
parties.  Holders of Trust Securities by
virtue of accepting delivery thereof, agree that the arrangement created by
this Declaration of Trust shall be treated as a grantor trust under Subpart E
of the Code, for United States federal income tax purposes and that the
Trustees shall be authorized to take any action consistent with such
treatment.  Neither the Trustee, nor any
other Person shall make any check-the-box election for the Trust to be treated
as an association under Treas. Reg. § 301.7701-3 or take any other action
inconsistent with the treatment of the Trust as a grantor trust for United
States federal income tax purposes.


 


ARTICLE XI



AMENDMENTS AND MEETINGS


 


SECTION 11.1.                                                                 Amendments of this Declaration of Trust.


 


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


 


(i)                                     the Regular Trustees (or, if there are more
than two Regular Trustees a majority of the Regular Trustees);


 


(ii)                                  the Property Trustee, if the amendment
affects the rights, powers, duties, obligations or immunities of the Property
Trustee; and


 


(iii)                               the Delaware Trustee, if the amendment
affects the rights, powers, duties, obligations or immunities of the Delaware
Trustee.


 


(b)                                 No amendment shall be made, and any such
purported amendment shall be void and ineffective:


 


(i)                                     unless, in the case of any proposed
amendment, the Property Trustee shall have first received an Officers’
Certificate from each of the Trust and the Sponsor that such amendment is
permitted by, and conforms to, the terms of this Declaration of Trust (including
the terms of the Trust Securities);


 


(ii)                                  unless, in the case of any proposed amendment
that affects the rights, powers, duties, obligations or immunities of the
Property Trustee, the Property Trustee shall have first received an Officers’
Certificate from each of the Trust and Sponsor and opinion of counsel (who may
be counsel to the Sponsor or the Trust), in each case stating that such
amendment is permitted by, and conforms to, the terms of this Declaration of
Trust (including the terms of the Trust Securities) and that all conditions
precedent to the execution and delivery of such amendment have been satisfied;
and


 


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(iii)                               to the extent the result of such amendment
would be to:


 


(A)                              cause
the Trust to fail to continue to be classified as a grantor trust for purposes
of United States federal income tax purposes;


 


(B)                                cause
the LLC to be classified as an association or publicly traded partnership
taxable as a corporation for States federal income tax purposes; or


 


(C)                                reduce
or otherwise adversely affect the rights, powers, duties, obligations or
immunities of the Property Trustee in contravention of the Trust Indenture Act;


 


(D)                               cause
the Trust or the LLC to be deemed to be an “investment company” required to be
registered under the Investment Company Act.


 


(c)                                  Any amendment that would (i) change the
amount or timing of any distribution of 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 of Trust Securities to institute suit for the enforcement of any such
payment on or after such date, may be effected only with the approval of each
of the Holders of the Trust Securities affected thereby (excluding any Trust
Securities held by the Sponsor of any of its Affiliates).


 


(d)                                 Any amendment that would adversely affect the
rights, preferences or privileges of the Trust Securities, including any
amendment of this Section 11.1, or (ii) provide for the dissolution,
winding-up or termination of the Trust other than pursuant to the terms of this
Declaration of Trust, may be effected only with the approval of the Holders of
at least a Majority in Liquidation Amount of the Trust Securities affected thereby (except in the case of an
amendment affecting only Trust Common Securities, excluding any Trust
Securities held by the Sponsor of any of its Affiliates); provided, that
if any amendment or proposal referred to in clause (i) hereof would
adversely affect only the Trust Preferred Securities or the Trust Common
Securities, then only the affected class (excluding any Trust Preferred
Securities held by the Sponsor of any of its Affiliates) shall be entitled to
vote on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of a Majority in Liquidation Amount of such
class of Trust Securities.


 


(e)                                  Section 9.1(c) shall not be amended
without the consent of all of the Holders of the Trust Securities.


 


(f)                                    Article VI and the rights of the Holders
of the Trust Common Securities under Article VI to increase or decrease
the number of, and appoint and remove, Trustees shall not be amended without
the consent of the Holders of a Majority in Liquidation Amount of the Trust
Common Securities.


 


(g)                                 Notwithstanding Section 11.1(d), this
Declaration of Trust may be amended by the Sponsor without the consent of the
Holders of the Trust Securities to:


 


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(i)                                     cure any ambiguity or to correct or
supplement any provision in this Declaration of Trust that may be defective or
inconsistent with any other provision of this Declaration of Trust;


 


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


 


(iii)                               comply with the requirements of the
Commission in order to effect or maintain qualification of this Declaration of
Trust under the Trust Indenture Act or ensure that the Trust is not required to
register as an investment company under the Investment Company Act;


 


(iv)                              modify, eliminate and add to any provision of
this Declaration of Trust to such extent as may be deemed necessary or
desirable by the Sponsor; provided, that such modification, elimination
or addition does not have a material adverse effect on the rights, preferences
or privileges of the Holders of the Trust Securities; or


 


(v)                                 conform the terms of this Declaration of
Trust to the terms of the Trust Securities as set forth in the Offering
Memorandum dated August 12, 2005 of the Trust and the Company relating to
the Trust Preferred Securities (the “Offering Memorandum”); provided,
however, that in connection with such amendment, each of the Sponsor and
the Trust shall deliver to the Property Trustee an Officers’ Certificate and an
opinion of counsel (who may be counsel to the Sponsor or the Trust), in each
case confirming that such amendment has the effect of conforming the terms of
this Declaration of Trust to the terms of the Trust Securities as set forth in
the Offering Memorandum.


 


SECTION 11.2.                                                                 Amendments of the LLC Guarantee or LLC
Agreement.


 


In the event
the consent of the Property Trustee, as the Holder of the LLC Preferred
Securities, is required under the LLC Guarantee or the LLC Agreement with
respect to any amendment, modification or termination of the LLC Guarantee or the LLC Agreement or the LLC
Preferred Securities, the Property Trustee shall request the direction of the
Holders of the Trust Securities with respect to such amendment, modification or
termination and shall vote with respect to such amendment, modification or
termination as directed by a Majority in Liquidation Amount of the Trust
Securities voting together as a single class (excluding any Trust Securities
held by the Sponsor of any of its Affiliates); provided, however,
that where a consent under the LLC Agreement would require the consent of a
Super Majority of the Holders of LLC Preferred Securities the Property Trustee
may only give such consent at the direction of the Holders of at least the same
proportion in liquidation amount of the Trust Securities (excluding any Trust
Securities held by the Sponsor of any of its Affiliates) that the relevant
Super Majority represents of the aggregate liquidation preference of the LLC
Preferred Securities outstanding.


 


SECTION 11.3.                                                                 Meetings of the Holders of Trust Securities;
Action by Written Consent.


 


(a)                                  Meetings of the Holders of any class of Trust
Securities may be. called at any time by the Regular Trustees (or as
provided in the terms of the Trust Securities) to consider and act on any
matter on which Holders of such class of Trust Securities are entitled to act
under the terms of this Declaration of Trust, the terms of the Trust
Securities, the LLC Agreement, the


 


72





















 


rules of any stock exchange on which the
Trust Preferred Securities are listed or admitted for trading, the Statutory
Trust Act or other applicable law. The Regular Trustees shall call a meeting of
the Holders of such class if directed to do so by the Holders of at least 10%
in Liquidation Amount of such class of Trust Securities. Such direction shall
be given by delivering to the Regular Trustees one or more calls in a writing
stating that the signing Holders of Trust Securities wish to call a meeting and
indicating the general or specific purpose for which the meeting is to be
called. Any Holders of Trust Securities calling a meeting shall specify in
writing the Certificates held by the Holders of Trust Securities exercising the
right to call a meeting and only those Trust Securities specified shall be
counted for purposes of determining whether the required percentage set forth
in the second sentence of this paragraph has been met.


 


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


 


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


 


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


 


(iii)                               each meeting of the Holders of the Trust
Securities shall be conducted by the Regular Trustees or by such other Person
that the Regular Trustees may designate; and


 


(iv)                              unless the Statutory Trust Act, this
Declaration of Trust, the terms of the Trust Securities, the Trust Indenture
Act otherwise provides, the Regular Trustees, in


 


73





















 


their
sole discretion, shall establish all other provisions relating to meetings of
Holders of Trust Securities, including notice of the time, place or purpose of
any meeting at which any matter is to be voted on by any Holders of Trust
Securities, waiver of any such notice, action by consent without a meeting, the
establishment of a record date, quorum requirements, voting in person or by
proxy or any other matter with respect to the exercise of any such right to
vote.


 


ARTICLE XII



REPRESENTATIONS OF PROPERTY TRUSTEE

AND DELAWARE TRUSTEE


 


SECTION 12.1.                                                                 Representations and Warranties of Property
Trustee.


 


The Trustee
that acts as initial Property Trustee represents and warrants to the Trust and
to the Sponsor at the date of this Declaration of Trust, and each Successor
Property Trustee represents and warrants to the Trust and the Sponsor at the
time of the Successor Property Trustee’s acceptance of its appointment as
Property Trustee that:


 


(a)                                  the Property Trustee is a national banking
association with trust powers, duly organized, validly existing .and
in good standing under the laws of the jurisdiction of its incorporation or
organization, with trust power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, the Declaration of Trust;


 


(b)                                 the Property Trustee satisfies the
requirements set forth in Section 6.3;


 


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


 


(d)                                 the execution, delivery and performance of
the Declaration of Trust by the Property Trustee does not conflict with or
constitute a breach of the Articles of Organization or By-laws (or other
similar organizational documents) of the Property Trustee;


 


(e)                                  no consent, approval or authorization of, or
registration with or notice to, any State or Federal banking authority is
required for the execution, delivery or performance by the Property Trustee of
the Declaration of Trust; and


 


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(f)                                    the Property Trustee, pursuant to this
Declaration of Trust, shall hold legal title to, and a valid ownership interest
on behalf of the Holders of the Trust Securities, in the LLC Preferred
Securities and agrees that, except as expressly provided or contemplated by
this Agreement, it shall not create, incur or assume, or suffer to exist any
mortgage, pledge, hypothecation, encumbrance, lien or other charge or security
interest upon the LLC Preferred Securities.


 


SECTION 12.2.                                                                 Representations and Warranties of Delaware
Trustee.


 


The Trustee
that acts as initial Delaware Trustee represents and warrants to the Trust and
to the Sponsor at the date of this Declaration of Trust, and each Successor
Delaware Trustee represents and warrants to the Trust and the Sponsor at the
time of the Successor Delaware Trustee’s acceptance of its appointment as
Delaware Trustee that:


 


(a)                                  The Delaware Trustee is a national banking
association with trust powers, duly organized, validly existing .and
in good standing under the laws of the jurisdiction of its incorporation or
organization, with power and authority to execute and deliver, and to carry out
and perform its obligations under the terms of, the Declaration of Trust.


 


(b)                                 The Delaware Trustee has been authorized to
perform its obligations under the Certificate of Trust and the Declaration of
Trust. The Declaration of Trust under Delaware law constitutes a legal, valid
and binding obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors’ rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law).


 


(c)                                  No consent, approval or authorization of, or
registration with or notice to, any State or Federal banking authority is
required for the execution, delivery or performance by the Delaware Trustee of
the Declaration of Trust.


 


(d)                                 The Delaware Trustee is an entity which has
its principal place of business in the State of Delaware.


 


ARTICLE XIII


 


MISCELLANEOUS


 


SECTION 13.1.                                                                 Notices.


 


All notices
provided for in this Declaration of Trust shall be in writing, duly signed by
the party giving such notice, and shall be delivered, telecopied or mailed by
registered or certified mail, as follows:


 


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


 


c/o Lehman Brothers Holdings Inc.


1301 Avenue of the Americas

New York, New York 10019

Attention: Corporate Counsel


Facsimile: (212) 526-0339


 


(b)                                 if given to the Delaware Trustee, at the
mailing address set forth below (or such other address as the Delaware Trustee
may give notice of to the other Trustees):


 


Chase Bank USA, National Association

500 Stanton Christiana Road

3/OPS 4

Newark, Delaware 19713

Attention: Worldwide Securities Services


Facsimile: 
(302) 552-6280


 


(c)                                  if given to the Property Trustee, at its
Corporate Trust Office to the attention of Worldwide Securities Services (or
such other address as the Property Trustee may give notice of to the Holders of
the Trust Securities and the other Trustee)


 


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


 


Lehman Brothers Holdings Inc.


1301 Avenue of the Americas

New York, New York 10019

Attention: Corporate Counsel


Facsimile: (212) 526-0339


 


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


 


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


 


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SECTION 13.2.                                                                 Governing Law.


 


This
Declaration of Trust and the rights of the parties hereunder shall be governed
by and construed in accordance with the internal laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.


 


SECTION 13.3.                                                                 Headings.


 


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


 


SECTION 13.4.                                                                 Successors and Assigns.


 


Whenever in
this Declaration of Trust any of the parties hereto is named or referred to,
the successors and assigns of such party shall be deemed to be included, and
all covenants and agreements in this Declaration of Trust by the Sponsor and
the Trustees shall bind and inure to the benefit of their respective successors
and assigns, whether so expressed.


 


SECTION 13.5.                                                                 Partial Enforceability.


 


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


 


SECTION 13.6.                                                                 Counterparts.


 


This
Declaration of Trust may contain more than one counterpart of the signature page and
this Declaration of Trust may be executed by the affixing of the signature of
each of the Trustees and a duly Authorized Officer of the Sponsor to one of
such counterpart signature pages. All of such counterpart signature pages shall
be read as though one and they shall have the same force and effect as though
all of the signers had signed a single signature page.


 


77





















 


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


 


	
   

  	
   

  	
  /s/
  Barrett S. DiPaolo

  
	
   

  	
   

  	
  Barrett S. DiPaolo, as Regular Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Karen B. Corrigan

  
	
   

  	
   

  	
  Karen B. Corrigan, as Regular Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ James J. Killerlane III

  
	
   

  	
   

  	
  James J. Killerlane III, as Regular Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Chase Bank USA, National Association,

  
	
   

  	
   

  	
  as Delaware Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Diane P. Ledger

  
	
   

  	
   

  	
   

  	
  Name: Diane P. Ledger

  
	
   

  	
   

  	
   

  	
  Title: Assistant Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  JPMorgan Chase Bank, N.A.,

  
	
   

  	
   

  	
  as Property Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Tai Bill Lee

  
	
   

  	
   

  	
   

  	
  Name: Tai Bill Lee

  
	
   

  	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Lehman Brothers Holdings Inc.,

  
	
   

  	
   

  	
  as Sponsor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Barrett S. DiPaolo

  
	
   

  	
   

  	
   

  	
  Name: Barrett S. DiPaolo

  
	
   

  	
   

  	
   

  	
  Title: Vice President

  



 


















EXHIBIT A-1


 


FORM OF
TRUST PREFERRED SECURITY CERTIFICATE


 


[Intentionally left blank]


 





















 


PS-[    ]


 


CUSIP No. [If 144A:  52520Y AA 5]


[If
Regulation S: U52463 AA 1; ISIN No. USU52463 AA 10]


 


Certificate Evidencing Trust
Preferred Securities


 


of


 


LEHMAN BROTHERS HOLDINGS
E-CAPITAL TRUST I


 


Floating Rate Enhanced
Capital Advantaged Preferred Securities

(Liquidation Amount $1,000 per Trust Preferred Security)


 


[If Global
Certificate:  THIS TRUST PREFERRED SECURITY IS A GLOBAL
CERTIFICATE WITHIN THE MEANING OF THE DECLARATION OF TRUST HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION (“DTC”), OR A NOMINEE OF DTC.  THIS TRUST PREFERRED SECURITY IS EXCHANGEABLE
FOR TRUST PREFERRED SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN
DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
DECLARATION OF TRUST.  UNLESS THIS GLOBAL
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, TO THE TRUST
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY TRUST
PREFERRED SECURITY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. (“CEDE”) OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE, HAS AN INTEREST HEREIN.]


 


[If 144A Global Security:   THIS TRUST PREFERRED SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR OTHER
SECURITIES LAWS.  NEITHER THIS TRUST
PREFERRED SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE RE-OFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. EACH
PURCHASER OF THE TRUST PREFERRED SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED
THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE


 


A1-2





















 


HOLDER OF THIS TRUST
PREFERRED SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT
(A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
TRUST PREFERRED SECURITY IN AN “OFFSHORE TRANSACTION” PURSUANT TO RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR
TO (X) THE DATE THAT IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED
BY RULE 144(K) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER)
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF
THIS TRUST PREFERRED SECURITY) OR THE LAST DAY ON WHICH THE TRUST OR ANY
AFFILIATE OF THE TRUST WAS THE OWNER OF THIS TRUST PREFERRED SECURITY (OR ANY
PREDECESSOR OF THIS TRUST PREFERRED SECURITY) AND (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAW (THE “RESALE RESTRICTION TERMINATION
DATE”), OFFER, SELL OR OTHERWISE TRANSFER THIS TRUST PREFERRED SECURITY EXCEPT
(A) TO THE TRUST, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS
TRUST PREFERRED SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A INSIDE THE UNITED STATES, (D) PURSUANT
TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR
(E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO
EACH PERSON TO WHOM THIS TRUST PREFERRED SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE TRUST, THE
TRUSTEE AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THE
SECURITY IS COMPLETED AND DELIVERED BY THIS TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM
IN REGULATION S UNDER THE SECURITIES ACT.]


 


[If Regulation S Global
Security:  THIS TRUST PREFERRED SECURITY (OR ITS
PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE
EXEMPTION FROM THE REGISTRATION


 


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REQUIREMENTS OF THE
SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE
THE MEANINGS GIVEN TO THEM IN REGULATIONS UNDER THE SECURITIES ACT.]


 


LEHMAN BROTHERS HOLDINGS E-CAPITAL TRUST I , a statutory trust formed
under the laws of the State of Delaware (the “Trust”), hereby certifies
that Cede & Co. (the “Holder”) is the registered owner of
[THREE HUNDRED THOUSAND (300,000)] preferred securities of the Trust
representing undivided beneficial ownership interests in the assets of the Trust
designated the Enhanced Capital Advantaged Preferred Securities (liquidation
amount $1,000 per security) (the “Trust Preferred Securities”). The
Trust Securities shall mature on August 19, 2065.  The Trust Preferred Securities are freely
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer; provided, that the Trust Preferred Securities
will be sold, and may be held or transferred, only in blocks having a
liquidation amount of not less than $100,000 and integral multiples of $1,000
in excess thereof.  The designation,
rights, powers, privileges, restrictions, preferences and other terms and provisions
of the Trust Preferred Securities represented hereby are set forth in, issued
under and shall in all respects be subject to the provisions of the Declaration
of Trust of Trust dated as of August 19, 2005, as the same may be amended
from time to time (the “Declaration of Trust”). Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration of
Trust. The Holder is entitled to the benefits of the Trust Guarantee to the
extent provided therein. Each Holder of a Trust Preferred Security, by
acceptance of this Certificate and each Certificate owner, by acquisition of a
beneficial interest in a Certificate, agrees to treat any Affiliate Debt
Instruments that are treated as debt instruments by the relevant Investment
Affiliate and by the LLC, as indebtedness for United States federal income tax
purposes. The Sponsor shall provide a copy of the Declaration of Trust, the
Trust Guarantee and the LLC Agreement to a Holder without charge upon written
request to the Trust at its principal place of business.


 


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


 


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IN WITNESS WHEREOF, the
Trust has executed this certificate this      th day
of                 ,
2005.


 


	
   

  	
  LEHMAN
  BROTHERS HOLDINGS E-CAPITAL

  TRUST I

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Barrett S. DiPaolo, as Regular Trustee

  



 


(See reverse for additional
terms)


 


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CERTIFICATE OF
AUTHENTICATION


 


This is the Trust Preferred
Security described in the within-mentioned Declaration of Trust.


 


	
   

  	
  JPMORGAN CHASE BANK, N.A., as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  



 


A1-6





















 


[FORM OF REVERSE OF
SECURITY]


 


Holders of Trust Preferred
Securities shall be entitled to receive cumulative cash distributions at such
times and in such amounts as the Trust receives cash payments from the LLC on
the LLC Preferred Securities or from the Company on the Trust Guarantee (or, in
the event the LLC has been liquidated, from the assets of the LLC that are
distributed to the Trust).  Distributions on the Trust Preferred
Securities shall be payable only to the extent that the Trust has funds
available for the payment of such distributions in the Property Account.  If and to the extent that the LLC makes a
distribution on the LLC Preferred Securities held by the Property Trustee or
the Company makes a payment under the Trust Guarantee, the Trust shall and the
Property Trustee is directed, to the extent funds are available for that
purpose, to make a Pro Rata distribution of such amounts to Holders; provided,
however, that if on any date on which amounts are payable on
distribution or redemption an Investment Event of Default shall have occurred
and be continuing, no payment of any Redemption Price of any of the Trust
Common Securities, and no other payment on account of the redemption,
liquidation or other acquisition of such Trust Common Securities, shall be made
unless payment in full in cash of all Distributions on all of the outstanding
Trust Preferred Securities for all quarterly distribution periods terminating
on or prior thereto, or, in the case of amounts payable on redemption, the full
amount of the Redemption Price for all of the outstanding Trust Preferred
Securities then called for redemption, shall have been made or provided for,
and all funds available to the Property Trustee shall first be applied to the
payment in full in cash of all distributions on, or the Redemption Price of, the
Trust Preferred Securities then due and payable.


 


Except as otherwise
described herein, distributions on the Trust Preferred Securities shall be
cumulative, shall accumulate from the date of initial issuance and shall be
payable quarterly in arrears, on February 19, May 19, August 19
and November 19 of each year, commencing on November 21, 2005, if, as
and when available for payment by the Property Trustee. If the Trust Preferred
Securities are in book-entry only form, distributions shall be payable to the
Holders of record of Trust
Preferred Securities as they appear on the books and records of the Trust on
the relevant record dates, which shall
be one Business Day prior to the relevant payment dates.  If the Trust Preferred Securities do not
remain in book-entry only form, the relevant record dates shall be the date
determined by the Regular Trustees and shall be at least one Business Day
before the relevant payment dates. If distributions are not paid when
scheduled, the accumulated distributions will be paid to the Holders of Trust
Securities as they appear on the books and records of the Trust on the record
date with respect to the payment date for the Trust Securities that corresponds
to the payment date fixed by the LLC with respect to the payment date for the
Trust Securities that corresponds to the payment date fixed by the LLC with
respect to the payment of cumulative distributions on the LLC preferred
securities.  In the event that any date on which distributions are payable is
not a Business Day and a London Business Day, payment of such distribution
shall be made on the next succeeding day which is a Business Day and a London
Business Day unless such day falls in the next calendar month, in which case
the distribution payment date shall be the immediately preceding Business Day
and London Business Day.  Payments of
accumulated distributions shall be payable to Holders of record of Trust
Preferred Securities as they appear on the books and records of the Trust on
the record date with respect to the payment date for the Trust Preferred
Securities which corresponds to the payment date fixed by the LLC with respect
to the payment of cumulative distributions on the LLC Preferred Securities.


 


A1-7





















 


The Trust Preferred
Securities shall be redeemable as provided in the Declaration of Trust.


 


The Holder of this Trust
Preferred Security, by its acceptance hereof, agrees that the arrangement
created by the Declaration of Trust shall be treated as a grantor trust for
federal income tax purposes and to take no action inconsistent with the
treatment of the Trust Preferred 
Securities as undivided beneficial interest in the assets of the Trust.


 


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ASSIGNMENT


 


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


 


	
   

  
	
   

  
	
   

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

  



 


	
   

  
	
   

  
	
   

  
	
  (Insert address and zip code of assignee)

  



 


and irrevocably appoints


	
   

  
	
   

  
	
   

  	
   agent to transfer this Trust Preferred
  Security

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

  



 


	
  Date:

  	
   

  	
   

  
	
   

  
	
  Signature:

  	
   

  	
   

  
				



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


 


A1-9





















 


EXHIBIT A-2


 


FORM OF
COMMON SECURITY CERTIFICATE


 


[Intentionally left blank]


 





















 


CS-1


 


Certificate Evidencing Trust
Common Securities


 


of


 


LEHMAN BROTHERS HOLDINGS
E-CAPITAL TRUST I


 


Trust Common Securities

(Liquidation Amount $1,000 per Trust Common Security)


 


LEHMAN BROTHERS HOLDINGS E-CAPITAL TRUST I, a statutory trust formed
under the laws of the State of Delaware (the “Trust”), hereby certifies
that Lehman Brothers Holdings Inc., a Delaware corporation (the “Holder”)
is the registered owner of [ONE (1)] common securities of the Trust
representing undivided beneficial ownership interests in the assets of the
Trust designated the Trust Common Securities (liquidation amount $1,000 per security)
(the “Trust Common Securities”).
The Trust Securities shall mature on August 19, 2065.  The designation, rights, powers, privileges, restrictions, preferences and
other terms and provisions of the Trust Common Securities represented hereby
are set forth in, issued under and shall in all respects be subject to the provisions of the Declaration
of Trust dated as of August 19, 2005, as the same may be amended from time
to time (the “Declaration of Trust”). Capitalized terms used herein but
not defined shall have the meaning given them in the Declaration of Trust. The
Holder is entitled to the benefits of the Trust Common Securities Guarantee to
the extent provided therein.  Each Holder
of a Trust Common Security, by acceptance of this Certificate, agrees to treat
any Affiliate Debt Instruments that are treated as debt instruments by the
relevant Investment Affiliate and by the
LLC, as indebtedness for United States federal income tax purposes. The Sponsor
shall provide a copy of the Declaration of Trust, the Trust Common Securities
Guarantee and the LLC Agreement to a Holder without charge upon written request
to the Sponsor at its principal place of business. THE TRUST COMMON SECURITIES
ARE TRANSFERABLE ON THE BOOKS AND RECORDS OF THE TRUST ONLY IN ACCORDANCE WITH
THE TERMS OF THE DECLARATION.


 


Upon receipt of this
certificate, the Sponsor is bound by the Declaration of Trust and is entitled
to the benefits thereunder.


 


A2-2





















 


IN WITNESS WHEREOF, the
Trust has executed this certificate this       th
day of
               ,
2005.


 


	
   

  	
  LEHMAN
  BROTHERS HOLDINGS E-CAPITAL

  TRUST I

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Barrett S. DiPaolo, as Regular Trustee

  



 


(See reverse for additional
terms)


 


A2-3





















 


CERTIFICATE OF
AUTHENTICATION


 


This is the Trust Common
Security described in the within-mentioned Declaration of Trust.


 


 


	
   

  	
  JPMORGAN CHASE BANK, N.A., as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  



 


A2-4


















[FORM OF REVERSE OF
SECURITY]


 


Holders of Trust Common
Securities shall be entitled to receive cumulative cash distributions at such
times and in such amounts as the Trust receives cash payments from the LLC on
the LLC Preferred Securities or from the Company on the Trust Guarantee (or, in
the event the LLC has been liquidated, from the assets of the LLC that are
distributed to the Trust).  Distributions on the Trust Common Securities
shall be payable only to the extent that the Trust has funds available for the
payment of such distributions in the Property Account. If and to the extent
that the LLC makes a distribution on the LLC Preferred Securities held by the
Property Trustee or the Company makes a payment under the Trust Guarantee, the
Trust shall and the Property Trustee is directed, to the extent funds are
available for that purpose, to make a Pro Rata distribution of such amounts to
Holders; provided, however, that if on any date on which amounts
are payable on distribution or redemption an Investment Event of Default shall
have occurred and be continuing, no payment of any Redemption Price of any of
the Trust Common Securities, and no other payment on account of the redemption,
liquidation or other acquisition of such Trust Common Securities, shall be made
unless payment in full in cash of all Distributions on all of the outstanding
Trust Preferred Securities for all quarterly distribution periods terminating
on or prior thereto, or, in the case of amounts payable on redemption, the full
amount of the Redemption Price for all of the outstanding Trust Preferred
Securities then called for redemption, shall have been made or provided for,
and all funds available to the Property Trustee shall first be applied to the
payment in full in cash of all distributions on, or the Redemption Price of,
the Trust Preferred Securities then due and payable.


 


Except as otherwise
described herein, distributions on the Trust Common Securities shall be
cumulative, shall accumulate from the date of initial issuance and shall be
payable quarterly in arrears, on February 19, May 19, August 19
and November 19 of each year, commencing
on November 21, 2005, if, as and when available for payment by the
Property Trustee. Distributions shall be payable to the Holders of record of
Trust Common Securities as they appear on the books and records of the Trust on
the relevant record dates,
which shall be one Business Day prior to the relevant payment dates. If
distributions are not paid when scheduled, the accumulated distributions will
be paid to the Holders of Trust Securities as they appear on the books and
records of the Trust on the record date with respect to the payment date for
the Trust Securities that corresponds to the payment date fixed by the LLC with
respect to the payment date for the Trust Securities that corresponds to the
payment date fixed by the LLC with respect to the payment of cumulative
distributions on the LLC preferred securities. 
In the event that any date on which
distributions are payable is not a Business Day and a London Business Day,
payment of such distribution shall be made on the next succeeding day which is
a Business Day and a London Business Day unless such day falls in the next
calendar month, in which case the distribution payment date shall be the immediately
preceding Business Day and London Business Day. 
Payments of accumulated distributions shall be payable to Holders of
record of Trust Common Securities as they appear on the books and records of
the Trust on the record date with respect to the payment date for the Trust
Common Securities which corresponds to the payment date fixed by the LLC with
respect to the payment of cumulative distributions on the LLC Preferred
Securities.


 


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


 


A2-5





















 


The Holder of this Trust
Common Security, by its acceptance hereof, agrees that the arrangement created
by the Declaration of Trust shall be treated as a grantor trust for federal income
tax purposes and to take no action inconsistent with the treatment of the Trust
Common Securities as undivided beneficial interest in the assets of the Trust.


 


A2-6





















 










 


ASSIGNMENT


 


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


 


	
   

  
	
   

  
	
   

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

  



 


	
   

  
	
   

  
	
   

  
	
  (Insert address and zip code of assignee)

  



 


and irrevocably appoints


 


	
   

  
	
   

  
	
   

  	
   agent to transfer this Trust Common Security Certificate on

  



the books of the Trust. The agent may substitute another to act for him
or her.


 


	
  Date:

  	
   

  	
   

  
	
   

  
	
  Signature:

  	
   

  	
   

  
				



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


 


A2-7





















 


EXHIBIT B


 


FORM OF
CERTIFICATE OF TRANSFER


 


[Intentionally left blank]


 





















 


Lehman Brothers Holdings E-Capital Trust I


c/o Lehman Brothers Holdings Inc.


1301 Avenue of the
Americas

New York, New York 10019

Facsimile: (212) 526-0339


Attention: Corporate Counsel


 


JPMorgan Chase Bank, N.A.


4 New York Plaza


15th Floor


New York, New York 10004


Facsimile:  (212) 623-6274


Attention:  Worldwide Securities Services


 


Re: 
ECAPS


 


Reference is hereby made to the Declaration of Trust,
dated as of August 19, 2005 (the “Declaration of Trust”), between
Lehman Brothers Holdings Inc., a Delaware corporation, Barrett S. DiPaolo,
Karen Corrigan and James
Killerlane III, as Regular Trustees, Chase Bank USA, National
Association, as Delaware Trustee and JPMorgan Chase Bank, N.A., as Property
Trustee.  Capitalized terms used but not
defined herein shall have the meanings given to them in the Declaration of
Trust.


 


                               ,
(the “Transferor”) owns and proposes to transfer the certificate[s] or
interest in such certificate[s] specified in Annex A hereto, in the aggregate
liquidation amount of
$                      
in such certificate[s] or interests (the “Transfer”), to
                                            
(the “Transferee”), as further specified in Annex A hereto.  In connection with the Transfer, the
Transferor hereby certifies that:


 


[CHECK ALL THAT APPLY]


 


1.  o  Check if Transferee will
take delivery of a beneficial interest in the 144A Global Certificate or a
Restricted Definitive Certificate pursuant to Rule 144A.  The Transfer is being effected pursuant to
and in accordance with Rule 144A under the Securities Act of 1933, as
amended (the “Securities Act”), and, accordingly, the Transferor hereby
further certifies that the beneficial interest or Restricted Definitive
Certificate is being transferred to a Person that the Transferor reasonably
believes is purchasing the beneficial interest or Restricted Definitive
Certificate for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and
each such account is a “qualified institutional buyer” within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A, and
such Transfer is in compliance with any applicable blue sky securities laws of
any state of the United States.  Upon
consummation of the proposed Transfer in accordance with the terms of the
Declaration of Trust, the transferred beneficial interest or Restricted
Definitive Certificate will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the 144A Global Security
and/or the Restricted Definitive Certificate and in the Declaration of Trust
and the Securities Act.


 


B-1





















 


2.  o  Check if Transferee will
take delivery of a beneficial interest in the Regulation S Global Certificate
or a Restricted Definitive Certificate pursuant to Regulation S.  The Transfer is being effected pursuant to
and in accordance with Rule 903 or Rule 904 under the Securities Act
and, accordingly, the Transferor hereby further certifies that (i) the
Transfer is not being made to a Person in the United States and (x) at the time
the buy order was originated, the Transferee was outside the United States or
such Transferor and any Person acting on its behalf reasonably believed and
believes that the Transferee was outside the United States or (y) the
transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the
United States, (ii) no directed selling efforts have been made in contravention
of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S under the Securities Act and, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to
the expiration of the Restricted Period, the transfer is not being made to a
U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser).  Upon consummation of
the proposed transfer in accordance with the terms of the Declaration of Trust,
the transferred beneficial interest or Restricted Definitive Certificate will
be subject to the restrictions on Transfer enumerated in the Restricted
Definitive Certificate and in the Declaration of Trust and the Securities Act.


 


3.  o  Check and complete if
Transferee will take delivery of a beneficial interest in a Restricted
Definitive Certificate pursuant to any provision of the Securities Act other
than Rule 144A or Regulation S.  The Transfer is being effected in compliance
with the transfer restrictions applicable to beneficial interests in Restricted
Global Certificate and Restricted Definitive Certificates and pursuant to and
in accordance with the Securities Act and any applicable blue sky securities
laws of any state of the United States, and accordingly the Transferor hereby
further certifies that (check one):


 


•               (a)           o  such Transfer is being effected pursuant to
and in accordance with Rule 144 under the Securities Act;


 


or


 


•               (b)           o  such Transfer is being effected to the
Sponsor, the LLC or the Trust or a subsidiary thereof;


 


or


 


•               (c)           o  such Transfer is being effected pursuant to
an effective registration statement under the Securities Act and in compliance
with the prospectus delivery requirements of the Securities Act.


 


4.  o  Check if Transferee will
take delivery of a beneficial interest in an Unrestricted Global Certificate or
of an Unrestricted Definitive Certificate.


 


(a)  o  Check if Transfer is
pursuant to Rule 144. 
(i) The Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Declaration of Trust and any applicable blue sky
securities laws of any state of the United States and (ii) the restrictions
on transfer contained in the Declaration of Trust and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act.  Upon consummation of the proposed
Transfer in accordance with the terms of the Declaration of Trust, the
transferred beneficial interest or Restricted Definitive Certificate will no
longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Certificates, on Restricted
Definitive Certificates and in the Declaration of Trust.


 


B-2





















 


(b)  o  Check if Transfer is
Pursuant to Regulation S. 
(i) The Transfer is being effected pursuant to and in accordance
with Rule 903 or Rule 904 under the Securities Act and in compliance
with the transfer restrictions contained in the Declaration of Trust and any
applicable blue sky securities laws of any state of the United States and
(ii) the restrictions on transfer contained in the Declaration of Trust
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act.  Upon
consummation of the proposed Transfer in accordance with the terms of the
Declaration of Trust, the transferred beneficial interest or Restricted Definitive
Certificate will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Certificates, on Restricted Definitive Certificates and in the Declaration of
Trust.


 


(c)  o  Check if Transfer is
Pursuant to Other Exemption. 
(i) The Transfer is being effected pursuant to and in compliance
with an exemption from the registration requirements of the Securities Act
other than Rule 144, Rule 903 or Rule 904 and in compliance with
the transfer restrictions contained in the Declaration of Trust and any
applicable blue sky securities laws of any State of the United States and
(ii) the restrictions on transfer contained in the Declaration of Trust
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act.  Upon
consummation of the proposed Transfer in accordance with the terms of the
Declaration of Trust, the transferred beneficial interest or Certificate will
not be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Certificates or Restricted
Definitive Certificates and in the Declaration of Trust.


 


This certificate and the statements contained
herein are made for your benefit and the benefit of the Sponsor, the LLC and
the Trust.


 


 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Insert Name of Transferor]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
						



 


B-3





















 


ANNEX A TO CERTIFICATE OF TRANSFER


 


1.             The
Transferor owns and proposes to transfer the following:


 


[CHECK ONE OF (a) OR (b)]


 


(a)  o  a beneficial interest in the:


 


(i)          o  144A Global Certificate (CUSIP
                    ),
or


 


(ii)         o  Regulation S Global Certificate (CUSIP
                    ),
or


 


(b)  o  a Restricted Definitive Certificate (if
permitted to be issued under the Declaration of Trust).


 


2.             After
the Transfer the Transferee will hold:


 


[CHECK ONE]


 


(a)  o  a beneficial interest in the:


 


(i)          o  144A Global Certificate (CUSIP
                    ),
or


 


(ii)         o  Regulation S Global Certificate  (CUSIP
                    ),
or


 


(iv)        o  Unrestricted Global Certificate (CUSIP
                    );
or


 


(b)  o  a Restricted Definitive Certificate (if
permitted to be issued under the Declaration of Trust); or


 


(c)  o  an Unrestricted Definitive Certificate (if
permitted to be issued under the Declaration of Trust), in accordance with the
terms of the Declaration of Trust.


 


B-4





















 


EXHIBIT C


 


FORM OF
CERTIFICATE OF EXCHANGE


 


[Intentionally left blank]


 





















 


Lehman Brothers Holdings E-Capital Trust I


1301 Avenue of the Americas

New York, New York 10019

New York, New York 10022


Facsimile: (212) 526-0339


Attention: Corporate Counsel


 


JPMorgan Chase Bank, N.A.


4 New York Plaza


15th Floor


New York, New York 10004


Facsimile:  (212) 623-6274


Attention:  Worldwide Securities Services


 


Re: 
ECAPS


 


(CUSIP
                )


 


Reference is hereby made to the Declaration of
Trust, dated as of August 19, 2005 (the “Declaration of Trust”), between
Lehman Brothers Holdings Inc., a Delaware corporation, Barrett S. DiPaolo,
Karen Corrigan and James
Killerlane III, as Regular Trustees, Chase Bank USA, National
Association, as Delaware Trustee and JPMorgan Chase Bank, N.A., as Property
Trustee.  Capitalized terms used but not
defined herein shall have the meanings given to them in the Declaration of
Trust.


 


                                                     ,
(the “Owner”) owns and proposes to exchange the certificate[s] or
interest in such certificate[s] specified herein, in the principal amount of
$                        
in such certificate[s] or interests (the “Exchange”).  In connection with the Exchange, the Owner
hereby certifies that:


 


1.             Exchange of Restricted Definitive Certificates or
Beneficial Interests in a Restricted Global Certificate for Unrestricted
Definitive Certificates or Beneficial Interests in an Unrestricted Global
Certificate


 


(a)  o     Check if Exchange is from beneficial interest
in a Restricted Global Certificate to beneficial interest in an Unrestricted
Global Certificate.  In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Certificate for a beneficial interest in an Unrestricted Global
Certificate in an equal principal amount, the Owner hereby certifies
(i) the beneficial interest is being acquired for the Owner’s own account
without transfer, (ii) such Exchange has been effected in compliance with
the transfer restrictions applicable to the Global Certificates and pursuant to
and in accordance with the Securities Act of 1933, as amended (the “Securities
Act”), (iii) the restrictions on transfer contained in the Declaration
of Trust and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest in an
Unrestricted Global Certificate is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.


 


C-1





















 


(b)  o     Check if Exchange is from beneficial interest
in a Restricted Global Certificate to Unrestricted Definitive Certificate.  In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Certificate for an
Unrestricted Definitive Certificate, the Owner hereby certifies (i) the
[Unrestricted] Definitive Certificate is being acquired for the Owner’s own
account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted Global
Certificates and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Declaration of Trust
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted Definitive
Certificate is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.


 


(c)  o     Check if Exchange is from Restricted
Definitive Certificate to beneficial interest in an Unrestricted Global
Certificate.  In connection
with the Owner’s Exchange of a Restricted Definitive Certificate for a
beneficial interest in an Unrestricted Global Certificate, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner’s
own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Restricted Definitive
Certificates and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Declaration of Trust
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is
being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.


 


(d)  o     Check if Exchange is from Restricted
Definitive Certificate to Unrestricted Definitive Certificate.  In connection with the Owner’s Exchange of
Restricted Definitive Certificate for an Unrestricted Definitive Certificate,
the Owner hereby certifies (i) the Unrestricted Definitive Certificate is
being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable
to Restricted Definitive Certificates and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Declaration of Trust and the Private Placement Legend are not required in order
to maintain compliance with the Securities Act and (iv) the Unrestricted
Definitive Certificate is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.


 


2.             Exchange of Restricted Definitive Certificates or
Beneficial Interests in Restricted Global Certificates for Restricted
Definitive Certificates or Beneficial Interests in Restricted Global
Certificates 


 


(a)  o     Check if Exchange is from beneficial interest
in a Restricted Global Certificate to Restricted Definitive Certificate.  In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Certificate for a Restricted
Definitive Certificate with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Certificate is being acquired for the
Owner’s own account without transfer. 
Upon consummation of the proposed Exchange in accordance with the terms
of the Declaration of Trust, the Restricted Definitive Certificate issued will
continue to be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Definitive Certificate and
in the Declaration of Trust and the Securities Act.


 


(b)  o     Check if Exchange is from Restricted
Definitive Certificate to beneficial interest in a Restricted Global
Certificate.  In connection
with the Exchange of the Owner’s Restricted Definitive Certificate for a
beneficial interest in the Restricted Global Certificate with an equal
principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner’s own account without transfer and
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Certificates and pursuant to
and in accordance with the Securities Act, and in compliance with any
applicable blue sky securities laws of any state of the United States.  Upon


 


C-2





















 


consummation of the proposed Exchange in
accordance with the terms of the Declaration of Trust, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the relevant Restricted Global Certificate
and in the Declaration of Trust and the Securities Act.


 


3.             Exchange of Unrestricted Definitive Certificates
or Beneficial Interests in Unrestricted Global Certificates for Restricted
Definitive Certificates or Beneficial Interests in Restricted Global
Certificates


 


(a)  o     Check if Exchange is from beneficial interest
in a Unrestricted Global Certificate to Restricted Definitive Certificate.  In connection with the Exchange of the
Owner’s beneficial interest in a Unrestricted Global Certificate for a
Restricted Definitive Certificate with an equal principal amount, the Owner
hereby certifies that (i) the Restricted Definitive Certificate is being
acquired for the Owner’s own account without transfer, and (ii) the Owner
is a “qualified institutional buyer” within the meaning of Rule 144A in a
transaction meeting the requirements of Rule 144A and in accordance with
any applicable blue sky securities laws of any state of the United States.  Upon consummation of the proposed Exchange in
accordance with the terms of the Declaration of Trust, the Restricted Definitive
Certificate issued will be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Definitive
Certificate and in the Declaration of Trust and the Securities Act.


 


(b)  o     Check if Exchange is from Unrestricted
Definitive Certificate to beneficial interest in a Restricted Global
Certificate.  In connection
with the Exchange of the Owner’s Unrestricted Definitive Certificate for a
beneficial interest in the Restricted Global Certificate with an equal
principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner’s own account without transfer and
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Certificates and pursuant to
and in accordance with the Securities Act, and in compliance with any
applicable blue sky securities laws of any state of the United States.  Upon consummation of the proposed Exchange in
accordance with the terms of the Declaration of Trust, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the relevant Restricted Global Certificate
and in the Declaration of Trust and the Securities Act.


 


This certificate and the statements contained
herein are made for your benefit and the benefit of the Issuers.


 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Insert Name of Transferor]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
						



 


C-3