Exhibit
10.1










 





 



 


 


 


AMENDED
AND RESTATED DECLARATION


OF
TRUST


 


by
and among


 


WILMINGTON
TRUST COMPANY,


as
Delaware Trustee,


 


WILMINGTON
TRUST COMPANY,


as
Institutional Trustee,


 


PATHFINDER
BANCORP, INC.,


as
Sponsor,


 


and


 


THOMAS
W. SCHNEIDER, JAMES A. DOWD and


SHELLEY
J. TAFEL,


as
Administrators,


 


Dated
as of March 22, 2007


 


 


 





 








 




    	 



    	 



    

 


TABLE
OF CONTENTS


 


	 	 	Page
	 	 	 
	ARTICLE I INTERPRETATION
    AND DEFINITIONS	1
	Section 1.1.	Definitions	1
	 	 	 
	ARTICLE II ORGANIZATION	7
	Section 2.1.	Name	7
	Section 2.2.	Office	7
	Section 2.3.	Purpose	7
	Section 2.4.	Authority	8
	Section 2.5.	Title to Property of the Trust	8
	Section 2.6.	Powers and Duties of the Trustees
    and the Administrators	8
	Section 2.7.	Prohibition of Actions by the Trust
    and the Institutional Trustee	11
	Section 2.8.	Powers and Duties of the Institutional
    Trustee	12
	Section 2.9.	Certain Duties and Responsibilities
    of the Trustees and Administrators	13
	Section 2.10.	Certain Rights of Institutional
    Trustee	15
	Section 2.11.	Delaware Trustee	16
	Section 2.12.	Execution of Documents	17
	Section 2.13.	Not Responsible for Recitals or
    Issuance of Securities	17
	Section 2.14.	Duration of Trust	17
	Section 2.15.	Mergers	17
	 	 	 
	ARTICLE III SPONSOR	18
	Section 3.1.	Sponsor’s Purchase of Common
    Securities	18
	Section 3.2.	Responsibilities of the Sponsor	18
	Section 3.3.	Expenses	19
	Section 3.4.	Right to Proceed	19
	 	 	 
	ARTICLE IV INSTITUTIONAL
    TRUSTEE AND ADMINISTRATORS	19
	Section 4.1.	Number of Trustees	19
	Section 4.2.	Delaware Trustee; Eligibility	20
	Section 4.3.	Institutional Trustee; Eligibility	20
	Section 4.4.	Administrators	20
	Section 4.5.	Appointment, Removal and Resignation
    of Trustees and Administrators	21
	Section 4.6.	Vacancies Among Trustees	22
	Section 4.7.	Effect of Vacancies	22
	Section 4.8.	Meetings of the Trustees and the
    Administrators	22
	Section 4.9.	Delegation of Power	23
	Section 4.10.	Conversion, Consolidation or Succession
    to Business	23
	 	 	 
	ARTICLE V DISTRIBUTIONS	23
	Section 5.1.	Distributions	23
	 	 	 
	ARTICLE VI ISSUANCE OF
    SECURITIES	23
	Section 6.1.	General Provisions Regarding Securities	23
	Section 6.2.	Paying Agent, Transfer Agent and
    Registrar	24
	Section 6.3.	Form and Dating	25
	Section 6.4.	Mutilated, Destroyed, Lost or Stolen
    Certificates	25
	Section 6.5.	Temporary Securities	25



 






    	i



    	 



    

 


	Section
    6.6.	Cancellation	25
	Section 6.7.	Rights of Holders; Waivers of Past
    Defaults	26
	 	 	 
	ARTICLE VII DISSOLUTION
    AND TERMINATION OF TRUST	27
	Section 7.1.	Dissolution and Termination of Trust	27
	 	 	 
	ARTICLE VIII TRANSFER OF
    INTERESTS	28
	Section 8.1.	General	28
	Section 8.2.	Transfer Procedures and Restrictions	29
	Section 8.3.	Deemed Security Holders	31
	 	 	 
	ARTICLE IX LIMITATION OF
    LIABILITY OF HOLDERS OF SECURITIES, INSTITUTIONAL TRUSTEE OR OTHERS	31
	Section 9.1.	Liability	31
	Section 9.2.	Exculpation	31
	Section 9.3.	Fiduciary Duty	32
	Section 9.4.	Indemnification	32
	Section 9.5.	Outside Businesses	34
	Section 9.6.	Compensation; Fee	35
	 	 	 
	ARTICLE X ACCOUNTING	35
	Section 10.1.	Fiscal Year	35
	Section 10.2.	Certain Accounting Matters	35
	Section 10.3.	Banking	36
	Section 10.4.	Withholding	36
	 	 	 
	ARTICLE XI AMENDMENTS AND
    MEETINGS	36
	Section 11.1.	Amendments	36
	Section 11.2.	Meetings of the Holders of Securities;
    Action by Written Consent	38
	 	 	 
	ARTICLE XII REPRESENTATIONS
    OF INSTITUTIONAL TRUSTEE AND THE DELAWARE TRUSTEE	39
	Section 12.1.	Representations and Warranties of
    Institutional Trustee	39
	Section 12.2.	Representations of the Delaware
    Trustee	39
	 	 	 
	ARTICLE XIII MISCELLANEOUS	40
	Section 13.1.	Notices	40
	Section 13.2.	Governing Law	41
	Section 13.3.	Intention of the Parties	41
	Section 13.4.	Headings	41
	Section 13.5.	Successors and Assigns	41
	Section 13.6.	Partial Enforceability	41
	Section 13.7.	Counterparts	42


 


	Annex I 	Terms of Securities
	Exhibit A-1 	Form of Capital Security Certificate
	Exhibit A-2 	Form of Common Security Certificate
	Exhibit B 	Specimen of Initial Debenture
	Exhibit C 	Placement Agreement


 




    	ii



    	 



    

 


AMENDED
AND RESTATED


 


DECLARATION
OF TRUST


 


OF


 


PATHFINDER
STATUTORY TRUST II


 


March
22, 2007


 


AMENDED
AND RESTATED DECLARATION OF TRUST (“Declaration”) dated and effective as of March 22, 2007, by the Trustees
(as defined herein), the Administrators (as defined herein), the Sponsor (as defined herein) and by the holders, from time to
time, of undivided beneficial interests in the Trust (as defined herein) to be issued pursuant to this Declaration;


 


WHEREAS,
the Trustees, the Administrators and the Sponsor established Pathfinder Statutory Trust II (the “Trust”), a
statutory trust under the Statutory Trust Act (as defined herein) pursuant to a Declaration of Trust dated as of March 7, 2007
(the “Original Declaration”), and a Certificate of Trust filed with the Secretary of State of the State of
Delaware on March 7, 2007, for the sole purpose of issuing and selling certain securities representing undivided beneficial interests
in the assets of the Trust and investing the proceeds thereof in certain debentures of the Debenture Issuer (as defined herein);


 


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


 


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


 


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


 


ARTICLE I


 


INTERPRETATION AND
DEFINITIONS


 


Section 1.1.          Definitions.
Unless the context otherwise requires:


 


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


 


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


 


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


 


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


 


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


 




    	1



    	 



    

 


“Acceleration
Event of Default” has the meaning set forth in the Indenture.


 


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


 


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


 


“Administrators”
means each of Thomas W. Schneider, James A. Dowd and Shelley J. Tafel, solely in such Person’s capacity as Administrator
of the Trust created and continued hereunder and not in such Person’s individual capacity, or such Administrator’s
successor in interest in such capacity, or any successor appointed as herein provided.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Certificate”
means any certificate evidencing Securities.


 


“Closing Date”
has the meaning set forth in the Placement Agreement.


 


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


 


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


 




    	2



    	 



    

 


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


 


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


 


“Corporate
Trust Office” means the office of the Institutional Trustee at which the corporate trust business of the Institutional
Trustee shall, at any particular time, be principally administered, which office at the date of execution of this Declaration
is located at Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-1600, Attn: Corporate Trust Administration.


 


“Coupon Rate”
has the meaning set forth in paragraph 2(a) of Annex I.


 


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


 


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


 


“Debenture
Issuer” means Pathfinder Bancorp, Inc., a federally chartered corporation, in its capacity as issuer of the Debentures
under the Indenture.


 


“Debenture
Trustee” means Wilmington Trust Company, as trustee under the Indenture until a successor is appointed thereunder, and
thereafter means such successor trustee.


 


“Debentures” means the Floating Rate Junior Subordinated Deferrable Interest Debentures due 2037 to be issued by the Debenture
Issuer under the Indenture.


 


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


 


“Delaware
Trustee” has the meaning set forth in Section 4.2.


 


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


 


“Direct Action”
has the meaning set forth in Section 2.8(d).


 


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


 


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


 


“Distribution Period” means (i) with respect to the Distribution paid on the first Distribution Payment Date, the
period beginning on (and including) the date of original issuance and ending on (but excluding) the Distribution Payment Date
in June 2007 and (ii) thereafter, with respect to a Distribution paid on each successive Distribution Payment Date, the period
beginning on (and including) the preceding Distribution Payment Date and ending on (but excluding) such current Distribution Payment
Date.


 


“Distribution
Rate” means, for the Distribution Period beginning on (and including) the date of original issuance and ending on (but
excluding) the Distribution Payment Date in June 2007, the rate per annum of 7.00%, and for each Distribution Period beginning
on or after the Distribution Payment Date in June 2007, the Coupon Rate for such Distribution Period.


 




    	3



    	 



    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Fiduciary
Indemnified Person” shall mean each of the Institutional Trustee (including in its individual capacity), the Delaware
Trustee (including in its individual capacity), any Affiliate of the Institutional Trustee or Delaware Trustee and any officers,
directors, shareholders, members, partners, employees, representatives, custodians, nominees or agents of the Institutional Trustee
or Delaware Trustee.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Institutional
Trustee” means the Trustee meeting the eligibility requirements set forth in Section 4.3.


 


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


 




    	4



    	 



    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Property
Account” has the meaning set forth in Section 2.8(c).


 


“Pro Rata”
has the meaning set forth in paragraph 8 of Annex I.


 




    	5



    	 



    

 


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


 


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


 


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


 


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


 


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


 


“Relevant
Trustee” has the meaning set forth in Section 4.5(a).


 


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


 


“Restricted
Securities Legend” has the meaning set forth in Section 8.2(b).


 


“Rule 3a-5”
means Rule 3a-5 under the Investment Company Act.


 


“Rule 3a-7”
means Rule 3a-7 under the Investment Company Act.


 


“Securities”
means the Common Securities and the Capital Securities.


 


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


 


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


 


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


 


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


 


“Sponsor”
means Pathfinder Bancorp, Inc., a federally chartered corporation, or any successor entity in a merger, consolidation or amalgamation,
in its capacity as sponsor of the Trust.


 


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


 


“Successor
Entity” has the meaning set forth in Section 2.15(b).


 


“Successor
Delaware Trustee” has the meaning set forth in Section 4.5(e).


 


“Successor
Institutional Trustee” has the meaning set forth in Section 4.5(b).


 


“Successor
Securities” has the meaning set forth in Section 2.15(b).


 


“Super Majority”
has the meaning set forth in paragraph 5(b) of Annex I.


 




    	6



    	 



    

 


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


 


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


 


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


 


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


 


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


 


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


 


“Trustee”
or “Trustees” means each Person who has signed this Declaration as a trustee, so long as such Person shall
continue in office 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 United States Person as defined in Section 7701(a)(30) of the Code.


 


ARTICLE
II


 


ORGANIZATION


 


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


 


Section
2.2.          Office. The address of the principal office of the
Trust is c/o Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-1600.
On at least 10 Business Days written notice to the Holders of the Securities, the Administrators may designate another principal
office, which shall be in a state of the United States or in the District of Columbia.


 


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


 




    	7



    	 



    

 


Section
2.4.          Authority. Except as specifically provided in this
Declaration, the Institutional Trustee shall have exclusive and complete authority to carry out the purposes of the Trust.
An action taken by a Trustee 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. The Administrators shall have only those ministerial duties set forth herein with respect to accomplishing
the purposes of the Trust and are not intended to be trustees or fiduciaries with respect to the Trust or the Holders. The Institutional
Trustee shall have the right, but shall not be obligated except as provided in Section 2.6, to perform those duties assigned to
the Administrators.


 


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


 


Section 2.6.          Powers
and Duties of the Trustees and the Administrators.


 


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


 


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


 


(A)  the
issuance and sale of the Securities;


 


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


 


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


 


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


 


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


 


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


 


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


 




    	8



    	 



    

 


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


 


(I)  the
taking of any action incidental to the foregoing as the Institutional Trustee may from time to time determine is necessary or
advisable to give effect to the terms of this Declaration for the benefit of the Holders (without consideration of the effect
of any such action on any particular Holder);


 


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


 


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


 


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


 


(A)  the
establishment of the Property Account;


 


(B)  the
receipt of the Debentures;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 




    	9



    	 



    

 


(J)  to
take all action that may be necessary for the preservation and the continuation of the Trust’s valid existence, rights,
franchises and privileges as a statutory trust under the laws of the State of Delaware.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(d)          Notwithstanding
anything herein to the contrary, the Administrators and the Holders of a Majority in liquidation amount of the Common Securities
are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not (i) be deemed
to be an Investment


 




    	10



    	 



    

 


Company
required to be registered under the Investment Company Act, and (ii) fail to be classified as a “grantor trust” for
United States federal income tax purposes. The Administrators and the Holders of a Majority in liquidation amount of the Common
Securities shall not take any action inconsistent with the treatment of the Debentures as indebtedness of the Debenture Issuer
for United States federal income tax purposes. In this connection, the Administrators and the Holders of a Majority in liquidation
amount of the Common Securities are authorized to take any action, not inconsistent with applicable laws, the Certificate of Trust
or this Declaration, as amended from time to time, that each of the Administrators and the Holders of a Majority in liquidation
amount of the Common Securities determines in their discretion to be necessary or desirable for such purposes.


 


(e)          All
expenses incurred by the Administrators or the Trustees pursuant to this Section 2.6 shall be reimbursed by the Sponsor, and the
Trustees and the Administrators shall have no obligations with respect to such expenses (for purposes of clarification, this Section
2.6(e) does not contemplate the payment by the Sponsor of acceptance or annual administration fees owing to the Trustees under
this Declaration or the fees and expenses of the Trustees’ counsel in connection with the closing of the transactions contemplated
by this Declaration).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 




    	11



    	 



    

 


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


 


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


 


(viii)      other
than as provided in this Declaration (including Annex I), (A) direct the time, method and place of exercising any trust or power
conferred upon the Debenture Trustee with respect to the Debentures, (B) waive any past default that is waivable under the Indenture,
(C) exercise any right to rescind or annul any declaration that the principal of all the Debentures shall be due and payable,
or (D) consent to any amendment, modification or termination of the Indenture or the Debentures where such consent shall be required
unless the Trust shall have received a written opinion of counsel to the effect that such modification will not cause the Trust
to cease to be classified as a “grantor trust” for United States federal income tax purposes.


 


Section 2.8.          Powers
and Duties of the Institutional Trustee.


 


(a)          The
legal title to the Debentures shall be owned by and held of record in the name of the Institutional Trustee in trust for the benefit
of the Trust and the Holders of the Securities. The right, title and interest of the Institutional Trustee to the Debentures shall
vest automatically in each Person who may hereafter be appointed as Institutional Trustee in accordance with Section 4.5. Such
vesting and cessation of title shall be effective whether or not conveyancing documents with regard to the Debentures have been
executed and delivered.


 


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


 


(c)          The
Institutional Trustee shall:


 


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


 


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


 


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


 


(d)          The
Institutional Trustee may bring or defend, pay, collect, compromise, arbitrate, resort to legal action with respect to, or otherwise
adjust claims or demands of or against, the Trust which arises out of or in connection with an Event of Default of which a Responsible
Officer of the Institutional Trustee has actual knowledge or arises out of the Institutional Trustee’s duties and obligations
under this Declaration; provided, however, that if an Event of Default has occurred and is continuing and such event
is attributable to the failure of the Debenture Issuer to pay interest or principal on the Debentures on the


 




    	12



    	 



    

 


date such
interest or principal is otherwise payable (or in the case of redemption, on the redemption date), then a Holder of the Capital
Securities may directly institute a proceeding for enforcement of payment to such Holder of the principal of or interest on the
Debentures having a principal amount equal to the aggregate liquidation amount of the Capital Securities of such Holder (a “Direct
Action”) on or after the respective due date specified in the Debentures. In connection with such Direct Action, the
rights of the Holders of the Common Securities will be subrogated to the rights of such Holder of the Capital Securities to the
extent of any payment made by the Debenture Issuer to such Holder of the Capital Securities in such Direct Action; provided, however, that no Holder of the Common Securities may exercise such right of subrogation so long as an Event of Default
with respect to the Capital Securities has occurred and is continuing.


 


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


 


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


 


(ii)         a
Successor Institutional Trustee has been appointed and has accepted that appointment in accordance with Section 4.5.


 


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


 


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


 


Section 2.9.          Certain
Duties and Responsibilities of the Trustees and Administrators.


 


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


 


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


 




    	13



    	 



    

 


such Trustee
or such Administrator shall not be liable to the Trust or to any Holder for such Trustee’s or such Administrator’s
good faith reliance on the provisions of this Declaration. The provisions of this Declaration, to the extent that they restrict
the duties and liabilities of the Administrators or the Trustee otherwise existing at law or in equity, are agreed by the Sponsor
and the Holders to replace such other duties and liabilities of the Administrators or the Trustees.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 




    	14



    	 



    




 


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


 


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


 


(b)          if
(i) in performing its duties under this Declaration, the Institutional Trustee is required to decide between alternative courses
of action, (ii) in construing any of the provisions of this Declaration, the Institutional Trustee finds the same ambiguous or
inconsistent with any other provisions contained herein, or (iii) the Institutional Trustee is unsure of the application of any
provision of this Declaration, then, except as to any matter as to which the Holders of Capital Securities are entitled to vote
under the terms of this Declaration, the Institutional Trustee may deliver a notice to the Sponsor requesting the Sponsor’s
written instructions as to the course of action to be taken and the Institutional Trustee shall take such action, or refrain from
taking such action, as the Institutional Trustee shall be instructed in writing, in which event the Institutional Trustee shall
have no liability except for its own negligence or willful misconduct;


 


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


 


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


 


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


 


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


 


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


 


(h)          the
Institutional Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or


 




    	15



    	 



    

 


document, unless requested in
writing to do so by one or more Holders, but the Institutional Trustee may make such further inquiry or investigation into such
facts or matters as it may see fit;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section
2.11.         Delaware Trustee. Notwithstanding any other provision of
this Declaration other than Section 4.1, the Delaware Trustee shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities of any of the Trustees or the Administrators described in this Declaration
(except as may be required under the Statutory Trust Act). Except as set forth in Section 4.1, the Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of § 3807 of the Statutory Trust Act.


 




    	16



    	 



    

 


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


 


Section
2.13.         Not Responsible for Recitals or Issuance of Securities. The
recitals contained in this Declaration and the Securities shall be taken as the statements of the Sponsor, and the 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,
the Debentures or the Securities.


 


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


 


Section 2.15.         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 2.15(b) and (c) and except
in connection with the liquidation of the Trust and the distribution of the Debentures to Holders of Securities pursuant to Section
7.1(a)(iv) of the Declaration or Section 4 of Annex I.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 




    	17



    	 



    

 


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


 


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


 


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


 


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


 


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


 


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


 


(ix)         prior
to such merger, consolidation, amalgamation or replacement, the Institutional Trustee shall have received an Officers’ Certificate
of the Administrators and an opinion of counsel, each to the effect that all conditions precedent under this Section 2.15(b) to
such transaction have been satisfied.


 


(c)          Notwithstanding
Section 2.15(b), the Trust shall not, except with the consent of Holders of 100% in aggregate liquidation amount of the Securities,
consolidate, amalgamate, merge with or into, or be replaced by any other entity or permit any other entity to consolidate, amalgamate,
merge with or into, or replace it if such consolidation, amalgamation, merger or replacement would cause the Trust or Successor
Entity to be classified as other than a grantor trust for United States federal income tax purposes.


 


ARTICLE
III


 


SPONSOR


 


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


 


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


 


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


 




    	18



    	 



    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


ARTICLE
IV


 


INSTITUTIONAL
TRUSTEE AND ADMINISTRATORS


 


Section 4.1.          Number
of Trustees. The number of Trustees shall initially be two, and;


 


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


 


(b)          after
the issuance of any Securities, the number of Trustees may be increased or decreased by vote of the Holder of a Majority in liquidation
amount of the Common Securities voting as a class at a meeting of the Holder of the Common Securities; provided, however,
that there shall be a Delaware Trustee if required by Section 4.2; and there shall always be one Trustee who shall be the Institutional
Trustee, and such Trustee may also serve as Delaware Trustee if it meets the applicable


 




    	19



    	 



    

 


requirements, in which case Section
2.11 shall have no application to such entity in its capacity as Institutional Trustee.


 


Section 4.2.          Delaware
Trustee; Eligibility.


 


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


 


(i)          a
natural person at least 21 years of age who is a resident of the State of Delaware; or


 


(ii)         if
not a natural person, an entity which is organized under the laws of the United States or any state thereof or the District of
Columbia, has its principal place of business in the State of Delaware, and otherwise meets the requirements of applicable law,
including § 3807 of the Statutory Trust Act.


 


(b)          The
initial Delaware Trustee shall be Wilmington Trust Company.


 


Section 4.3.          Institutional
Trustee; Eligibility.


 


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


 


(i)          not
be an Affiliate of the Sponsor;


 


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


 


(iii)        be
a banking corporation or trust company organized and doing business under the laws of the United States of America or any state
thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least 50 million U.S. dollars ($50,000,000.00), and subject to supervision or examination by Federal, state,
or District of Columbia authority. If such corporation publishes reports of condition at least annually, pursuant to law or to
the requirements of the supervising or examining authority referred to above, then for the purposes of this Section 4.3(a)(iii),
the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.


 


(b)          If
at any time the Institutional Trustee shall cease to be eligible to so act under Section 4.3(a), the Institutional Trustee shall
immediately resign in the manner and with the effect set forth in Section 4.5.


 


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


 


(d)          The
initial Institutional Trustee shall be Wilmington Trust Company.


 


Section
4.4.          Administrators. Each Administrator shall be a U.S.
Person, 21 years of age or older and authorized to bind the Sponsor. The initial Administrators shall be Thomas W. Schneider,
James A. Dowd and Shelley J. Tafel. There shall at all times be at least one Administrator. Except where a requirement for action
by a specific number of Administrators is expressly set forth in this Declaration and except with respect to any action the taking
of which is the subject of a meeting of the Administrators, any action required or permitted to be taken by the Administrators
may be taken by, and any power of the Administrators may be exercised by, or with the consent of, any one such Administrator.


 




    	20



    	 



    

 


Section 4.5.          Appointment,
Removal and Resignation of Trustees and Administrators.


 


(a)          No
resignation or removal of any Trustee (the “Relevant Trustee”) and no appointment of a successor Trustee pursuant
to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable
requirements of this Section 4.5.


 


(b)          Subject
to Section 4.5(a), a Relevant Trustee may resign at any time by giving written notice thereof to the Holders of the Securities
and by appointing a successor Relevant Trustee. Upon the resignation of the Institutional Trustee, the Institutional Trustee shall
appoint a successor by requesting from at least three Persons meeting the eligibility requirements their expenses and charges
to serve as the successor Institutional Trustee on a form provided by the Administrators, and selecting the Person who agrees
to the lowest expense and charges (the “Successor Institutional Trustee”). If the instrument of acceptance
by the successor Relevant Trustee required by this Section 4.5 shall not have been delivered to the Relevant Trustee within 60
days after the giving of such notice of resignation or delivery of the instrument of removal, the Relevant Trustee may petition,
at the expense of the Trust, any federal, state or District of Columbia court of competent jurisdiction for the appointment of
a successor Relevant Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a Relevant Trustee. The Institutional Trustee shall have no liability for the selection of such successor pursuant to this Section
4.5.


 


(c)          Unless
an Event of Default shall have occurred and be continuing, any Trustee may be removed at any time by an act of the Holders of
a Majority in liquidation amount of the Common Securities. If any Trustee shall be so removed, the Holders of the Common Securities,
by act of the Holders of a Majority in liquidation amount of the Common Securities delivered to the Relevant Trustee, shall promptly
appoint a successor Relevant Trustee, and such successor Trustee shall comply with the applicable requirements of this Section
4.5. If an Event of Default shall have occurred and be continuing, the Institutional Trustee or the Delaware Trustee, or both
of them, may be removed by the act of the Holders of a Majority in liquidation amount of the Capital Securities, delivered to
the Relevant Trustee (in its individual capacity and on behalf of the Trust). If any Trustee shall be so removed, the Holders
of Capital Securities, by act of the Holders of a Majority in liquidation amount of the Capital Securities then outstanding delivered
to the Relevant Trustee, shall promptly appoint a successor Relevant Trustee or Trustees, and such successor Trustee shall comply
with the applicable requirements of this Section 4.5. If no successor Relevant Trustee shall have been so appointed by the Holders
of a Majority in liquidation amount of the Capital Securities and accepted appointment in the manner required by this Section
4.5 within 30 days after delivery of an instrument of removal, the Relevant Trustee or any Holder who has been a Holder of the
Securities for at least six months may, on behalf of himself and all others similarly situated, petition any federal, state or
District of Columbia court of competent jurisdiction for the appointment of a successor Relevant Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper, appoint a successor Relevant Trustee or Trustees.


 


(d)          The
Institutional Trustee shall give notice of each resignation and each removal of a Trustee and each appointment of a successor
Trustee to all Holders and to the Sponsor. Each notice shall include the name of the successor Relevant Trustee and the address
of its Corporate Trust Office if it is the Institutional Trustee.


 


(e)          Notwithstanding
the foregoing or any other provision of this Declaration, in the event a Delaware Trustee who is a natural person dies or is
adjudged by a court to have become incompetent or incapacitated, the vacancy created by such death, incompetence or
incapacity may be filled by the Institutional Trustee following the procedures in this Section 4.5 (with the successor being
a Person who satisfies the eligibility requirement for a Delaware Trustee set forth in this Declaration) (the
“Successor Delaware Trustee”). 


 




    	21



    	 



    

 


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


 


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


 


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


 


(i)          Any
successor Delaware Trustee shall file an amendment to the Certificate of Trust with the Secretary of State of the State of Delaware
identifying the name and principal place of business of such Delaware Trustee in the State of Delaware.


 


Section
4.6.          Vacancies Among Trustees. If a Trustee ceases to hold
office for any reason and the number of Trustees is not reduced pursuant to Section 4.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Trustees or, if there are more than two, a majority of the Trustees, shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be filled with a Trustee appointed in accordance with
Section 4.5.


 


Section
4.7.          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 dissolve, terminate or annul the Trust or terminate this Declaration. Whenever a vacancy in the number of Trustees
shall occur, until such vacancy is filled by the appointment of a Trustee in accordance with Section 4.5, the Institutional Trustee
shall have all the powers granted to the Trustees and shall discharge all the duties imposed upon the Trustees by this Declaration.


 


Section
4.8.          Meetings of the Trustees and the Administrators. Meetings
of the Administrators shall be held from time to time upon the call of an Administrator. Regular meetings of the Administrators
may be held in person in the United States or by telephone, at a place (if applicable) and time fixed by resolution of the Administrators.
Notice of any in-person meetings of the Trustees with the Administrators or meetings of the Administrators shall be hand delivered
or otherwise delivered in writing (including by facsimile, with a hard copy by overnight courier) not less than 48 hours before
such meeting. Notice of any telephonic meetings of the Trustees with the Administrators or meetings of the Administrators or any
committee thereof shall be hand delivered or otherwise delivered in writing (including by facsimile, with a hard copy by overnight
courier) not less than 24 hours before a meeting. Notices shall contain a brief statement of the time, place and anticipated purposes
of the meeting. The presence (whether in person or by telephone) of a Trustee or an Administrator, as the case may be, at a


 




    	22



    	 



    

 


meeting
shall constitute a waiver of notice of such meeting except where the Trustee or an Administrator, as the case may be, attends
a meeting for the express purpose of objecting to the transaction of any activity on the grounds that the meeting has not been
lawfully called or convened. Unless provided otherwise in this Declaration, any action of the Trustees or the Administrators,
as the case may be, may be taken at a meeting by vote of a majority of the Trustees or the Administrators present (whether in
person or by telephone) and eligible to vote with respect to such matter, provided that a Quorum is present, or without a meeting
by the unanimous written consent of the Trustees or the Administrators. Meetings of the Trustees and the Administrators together
shall be held from time to time upon the call of any Trustee or an Administrator.


 


Section 4.9.          Delegation
of Power.


 


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


 


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


 


Section
4.10.         Conversion, Consolidation or Succession to Business. Any
Person into which the Institutional Trustee or the Delaware Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or consolidation to which the Institutional Trustee or the Delaware
Trustee shall be a party, or any Person succeeding to all or substantially all the corporate trust business of the Institutional
Trustee or the Delaware Trustee shall be the successor of the Institutional Trustee or the Delaware Trustee hereunder, provided
such Person shall be otherwise qualified and eligible under this Article and, provided, further, that such Person
shall file an amendment to the Certificate of Trust with the Secretary of State of the State of Delaware as contemplated in Section
4.5(i).


 


ARTICLE
V


 


DISTRIBUTIONS


 


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


 


ARTICLE
VI


 


ISSUANCE
OF SECURITIES


 


Section 6.1.          General
Provisions Regarding Securities.


 


(a)         
The Administrators shall, on behalf of the Trust, issue one series of capital securities substantially in the form of Exhibit
A-1 representing undivided beneficial interests in the assets of the Trust having such terms as are set forth in Annex I and one
series of common securities representing


 




    	23



    	 



    

 


undivided
beneficial interests in the assets of the Trust having such terms as are set forth in Annex I. The Trust shall issue no securities
or other interests in the assets of the Trust other than the Capital Securities and the Common Securities. The Capital Securities
rank pari passu to, and payment thereon shall be made Pro Rata with, the Common Securities except that, where an Event
of Default has occurred and is continuing, the rights of Holders of the Common Securities to payment in respect of Distributions
and payments upon liquidation, redemption and otherwise are subordinated to the rights to payment of the Holders of the Capital
Securities as set forth in Annex I.


 


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


 


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


 


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


 


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


 


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


 




    	24



    	 



    

 


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


 


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


 


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


 


If:


 


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


 


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


 


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


 


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


 


Section
6.6.          Cancellation. The Administrators at any time may deliver
Securities to the Institutional Trustee for cancellation. The Registrar shall forward to the Institutional Trustee any
Securities surrendered to it for registration of transfer, redemption or payment. The Institutional Trustee shall promptly cancel
all Securities surrendered for registration of transfer, payment, replacement or


 




    	25



    	 



    

 


cancellation
and shall dispose of such canceled Securities as the Administrators direct. The Administrators may not issue new Securities to
replace Securities that have been paid or that have been delivered to the Institutional Trustee for cancellation.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


The
Holders of at least a Majority in liquidation amount of the Capital Securities may, on behalf of the Holders of all the Capital
Securities, waive any past default under the Indenture or any Indenture Event of Default, except a default or Indenture Event
of Default in the payment of principal or interest on the Debentures (unless such default or Indenture Event of Default has been
cured and a sum sufficient to pay all matured installments of interest and principal due otherwise than by acceleration has been
deposited with the Debenture Trustee) or a default under the Indenture or an Indenture Event of Default in


 




    	26



    	 



    

 


respect
of a covenant or provision that under the Indenture cannot be modified or amended without the consent of the holder of each outstanding
Debenture. No such rescission shall affect any subsequent default or impair any right consequent thereon.


 


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


 


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


 


ARTICLE
VII


 


DISSOLUTION
AND TERMINATION OF TRUST


 


Section 7.1.          Dissolution
and Termination of Trust.


 


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


 


(i)          unless
earlier dissolved, on June 15, 2042, the expiration of the term of the Trust;


 


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


 


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


 


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


 




    	27



    	 



    

 


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


 


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


 


(vii)       before
the issuance of any Securities, with the consent of all of the Trustees and the Sponsor.


 


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


 


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


 


ARTICLE
VIII


 


TRANSFER
OF INTERESTS


 


Section
8.1.          General.


 


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


 


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


 


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


 


(d)          The
Registrar shall provide for the registration of Securities and of transfers of Securities, which will be effected without charge
but only upon payment (with such indemnity as the Registrar may require) in respect of any tax or other governmental charges that
may be imposed in relation to it. Upon surrender for registration of transfer of any Securities, the Registrar shall cause one
or more new Securities of the same tenor to be issued in the name of the designated transferee or transferees. Every Security
surrendered for registration of transfer shall be accompanied by a written instrument of transfer in form satisfactory to the
Registrar duly executed by the Holder or such Holder’s attorney duly


 




    	28



    	 



    

 


authorized
in writing. Each Security surrendered for registration of transfer shall be canceled by the Institutional Trustee pursuant to
Section 6.6. A transferee of a Security shall be entitled to the rights and subject to the obligations of a Holder hereunder upon
the receipt by such transferee of a Security. By acceptance of a Security, each transferee shall be deemed to have agreed to be
bound by this Declaration.


 


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


 


Section 8.2.          Transfer
Procedures and Restrictions.


 


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


 


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


 


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


 




    	29



    	 



    

 


VIEW TO,
OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE SPONSOR’S AND THE TRUST’S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE DECLARATION OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE SPONSOR OR
THE TRUST. HEDGING TRANSACTIONS INVOLVING THIS SECURITY MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.


 


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


 


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


 


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


 




    	30



    	 



    

 


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


 


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


 


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


 


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


 


ARTICLE
IX


 


LIMITATION
OF LIABILITY OF





HOLDERS
OF SECURITIES, INSTITUTIONAL TRUSTEE OR OTHERS


 


Section 9.1.          Liability.


 


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


 


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


 


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


 


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


 


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


 


Section 9.2.          Exculpation.


 


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


 




    	31



    	 



    

 


liable for any such loss, damage
or claim incurred by reason of such Indemnified Person’s negligence or willful misconduct with respect to such acts or omissions.


 


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


 


Section 9.3.          Fiduciary
Duty.


 


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


 


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


 


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


 


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


 


Section 9.4.          Indemnification.


 


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


 




    	32



    	 



    

 


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


 


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


 


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


 


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


 


(f)          The
Trustees, at the sole cost and expense of the Sponsor, retain the right to representation by counsel of their own choosing in
any action, suit or any other proceeding for which they


 




    	33



    	 



    

 


are indemnified under paragraphs
(a) and (b) of this Section 9.4, without affecting their right to indemnification hereunder or waiving any rights afforded to
it under this Declaration or applicable law.


 


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


 


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


 


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


 


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


 


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


 




    	34



    	 



    




 


Section 9.6.          Compensation;
Fee. The Sponsor agrees:


 


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


 


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


 


For
purposes of clarification, this Section 9.6 does not contemplate the payment by the Sponsor of acceptance or annual administration
fees owing to the Trustees under this Declaration or the fees and expenses of the Trustees’ counsel in connection with the
closing of the transactions contemplated by this Declaration.


 


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


 


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


 


ARTICLE
X


 


ACCOUNTING


 


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


 


Section 10.2.          Certain
Accounting Matters.


 


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


 


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


 


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


 




    	35



    	 



    

 


required by United States federal
income tax law, and any other annual income tax returns required to be filed by the Administrators on behalf of the Trust with
any state or local taxing authority.


 


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


 


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


 


ARTICLE
XI


 


AMENDMENTS
AND MEETINGS


 


Section 11.1.          Amendments.


 


(a)          Except
as otherwise provided in this Declaration or by any applicable terms of the Securities, this Declaration may only be amended by
a written instrument approved and executed (i) by the Institutional Trustee, or (ii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Delaware Trustee, by the Delaware Trustee.


 


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


 


(i)          the
Institutional Trustee shall have first received


 


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


 


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


 


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


 




    	36



    	 



    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(i)          cure
any ambiguity;


 


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


 


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


 


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


 


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


 




    	37



    	 



    

 


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


 


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


 


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


 


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


 


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


 


(iii)        unless
the Statutory Trust Act, this Declaration, or the terms of the Securities otherwise provides, the Administrators, in their sole
discretion, shall establish all other provisions relating to meetings of Holders of Securities, including notice of the time,
place or purpose of any meeting at which any matter is to be voted on by any Holders of the Securities, waiver of any such notice,
action by consent without a meeting, the establishment of a record date, quorum requirements, voting in person or by proxy or
any other matter with respect to the exercise of any


 




    	38



    	 



    

 


such right to vote;
provided, however, that each meeting shall be conducted in the United States (as that term is defined in Treasury
Regulations section 301.7701-7).


 


ARTICLE
XII


 


REPRESENTATIONS
OF INSTITUTIONAL TRUSTEE AND THE DELAWARE TRUSTEE


 


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


 


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


 


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


 


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


 


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


 


Section
12.2.          Representations of the 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,
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)          if
it is not a natural person, the Delaware Trustee is duly organized, validly existing and in good standing under the laws of the
State of Delaware;


 


(b)          if
it is not a natural person, the execution, delivery and performance by the Delaware Trustee of this Declaration has been duly
authorized by all necessary corporate action on the part of the Delaware Trustee. This Declaration has been duly executed and
delivered by the Delaware Trustee, and under Delaware law (excluding any securities laws) 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 considered in a proceeding in equity or at law);


 


(c)          if
it is not a natural person, the execution, delivery and performance of this Declaration by the Delaware Trustee does not conflict
with or constitute a breach of the charter or by-laws of the Delaware Trustee;


 




    	39



    	 



    

 


(d)          it
has trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, this Declaration;


 


(e)          no
consent, approval or authorization of, or registration with or notice to, any state or federal banking authority governing the
trust powers of the Delaware Trustee is required for the execution, delivery or performance by the Delaware Trustee of this Declaration;
and


 


(f)          the
Delaware Trustee is a natural person who is a resident of the State of Delaware or, if not a natural person, it is an entity which
has its principal place of business in the State of Delaware and, in either case, a Person that satisfies for the Trust the requirements
of Section 3807 of the Statutory Trust Act.


 


ARTICLE
XIII


 


MISCELLANEOUS


 


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


 


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


 


Pathfinder Statutory
Trust II


c/o Pathfinder Bancorp,
Inc.


214 West First Street


Oswego, New York 13126


Attention: James A. Dowd


Telecopy: 315-342-9403


 


(b)


 


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


 


Wilmington Trust Company


Rodney Square North


1100 North Market Street


Wilmington, Delaware
19890-1600


Attention: Corporate
Trust Administration


Telecopy: 302-636-4140


 


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


 


Wilmington Trust Company


Rodney Square North


1100 North Market Street


Wilmington, Delaware
19890-1600


Attention: Corporate
Trust Administration


Telecopy: 302-636-4140


 




    	40



    	 



    

 


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


 


Pathfinder Bancorp, Inc.


c/o Pathfinder Bank


214 West First Street


Oswego, New York 13126


Attention: James A. Dowd


Telecopy: 315-342-9403


 


(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.


 


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


 


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


 


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


 


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


 


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


 




    	41



    	 



    

 


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


 


Signatures
appear on the following page


 




    	42



    	 



    




 


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


 


	 	WILMINGTON TRUST COMPANY, 

as Delaware Trustee
	 	 
	 	By:	/s/ Christopher J. Slaybaugh
	 	 	Name: Christopher J. Slaybaugh
	 	 	Title: Senior Financial Services Officer
	 	 
	 	WILMINGTON TRUST COMPANY,

 as Institutional Trustee
	 	 	 
	 	By: 	/s/ Christopher J. Slaybaugh
	 	 	Name: Christopher J. Slaybaugh
	 	 	Title: Senior Financial Services Officer
	 	 	 
	 	PATHFINDER BANCORP, INC.., 

as Sponsor
	 	 
	 	By:	/s/ Thomas W. Schneider
	 	 	Name: Thomas W. Schneider
	 	 	Title: President, CEO
	 	 
	 	ADMINISTRATORS OF PATHFINDER STATUTORY TRUST II
	 	 	 
	 	By: 	 
	 	 	Administrator
	 	 	 
	 	By: 	 
	 	 	Administrator
	 	 	 
	 	By: 	 
	 	 	Administrator


 


 




    	43



    	 



    

 


ANNEX
I


 


TERMS
OF SECURITIES


 


Pursuant
to Section 6.1 of the Amended and Restated Declaration of Trust, dated as of March 22, 2007 (as amended from time to time, the
“Declaration”), the designation, rights, privileges, restrictions, preferences and other terms and provisions of the
Capital Securities and the Common Securities are set out below (each capitalized term used but not defined herein has the meaning
set forth in the Declaration):


 


1.          Designation
and Number.


 


(a)          5,000
Floating Rate Capital Securities of Pathfinder Statutory Trust II (the “Trust”), with an aggregate stated liquidation
amount with respect to the assets of the Trust of five million dollars ($5,000,000.00) and a stated liquidation amount with respect
to the assets of the Trust of $1,000.00 per Capital Security, are hereby designated for the purposes of identification only as
the “Capital Securities”. The Capital Security Certificates evidencing the Capital Securities shall be substantially
in the form of Exhibit A-1 to the Declaration, with such changes and additions thereto or deletions therefrom as may be required
by ordinary usage, custom or practice.


 


(b)          155
Floating Rate Common Securities of the Trust (the “Common Securities”) will be evidenced by Common Security
Certificates substantially in the form of Exhibit A-2 to the Declaration, with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or practice.


 


2.          Distributions.


 


(a)          Distributions
will be payable on each Security for the Distribution Period beginning on (and including) the date of original issuance and ending
on (but excluding) the Distribution Payment Date in June 2007 at a rate per annum of 7.00% and shall bear interest for each successive
Distribution Period beginning on (and including) the Distribution Payment Date in June 2007, and each succeeding Distribution
Payment Date, and ending on (but excluding) the next succeeding Distribution Payment Date at a rate per annum equal to the 3-Month
LIBOR, determined as described below, plus 1.65% (the “Coupon Rate”), applied to the stated liquidation amount
thereof, such rate being the rate of interest payable on the Debentures to be held by the Institutional Trustee. Distributions
in arrears will bear interest thereon compounded quarterly at the applicable Distribution Rate (to the extent permitted by law).
Distributions, as used herein, include cash distributions and any such compounded distributions unless otherwise noted. A Distribution
is payable only to the extent that payments are made in respect of the Debentures held by the Institutional Trustee and to the
extent the Institutional Trustee has funds available therefor. The amount of the Distribution payable for any Distribution Period
will be calculated by applying the Distribution Rate to the stated liquidation amount outstanding at the commencement of the Distribution
Period on the basis of the actual number of days in the Distribution Period concerned divided by 360. All percentages resulting
from any calculations on the Capital Securities will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward (e.g., 9.876545% (or .09876545) being rounded to 9.87655%
(or .0987655), and all dollar amounts used in or resulting from such calculation will be rounded to the nearest cent (with one-half
cent being rounded upward)).


 


(b)          Distributions
on the Securities will be cumulative, will accrue from the date of original issuance, and will be payable, subject to extension
of distribution payment periods as described herein, quarterly in arrears on March 15, June 15, September 15 and December 15 of
each year, or if such day is not a Business Day, then the next succeeding Business Day (each a “Distribution Payment
Date”)


 




    	I-1



    	 



    

 


(it being
understood that interest accrues for any such non-Business Day), commencing on the Distribution Payment Date in June 2007 when,
as and if available for payment. The Debenture Issuer has the right under the Indenture to defer payments of interest on the Debentures,
so long as no Acceleration Event of Default has occurred and is continuing, by deferring the payment of interest on the Debentures
for up to 20 consecutive quarterly periods (each an “Extension Period”) at any time and from time to time,
subject to the conditions described below, during which Extension Period no interest shall be due and payable. During any Extension
Period, interest will continue to accrue on the Debentures, and interest on such accrued interest will accrue at an annual rate
equal to the Distribution Rate in effect for each such Extension Period, compounded quarterly from the date such interest would
have been payable were it not for the Extension Period, to the extent permitted by law (such interest referred to herein as “Additional
Interest”). No Extension Period may end on a date other than a Distribution Payment Date. At the end of any such Extension
Period, the Debenture Issuer shall pay all interest then accrued and unpaid on the Debentures (together with Additional Interest
thereon); provided, however, that no Extension Period may extend beyond the Maturity Date and provided further,
however, that during any such Extension Period, the Debenture Issuer and its Affiliates shall not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any of the Debenture
Issuer’s or its Affiliates’ capital stock (other than payments of dividends or distributions to the Debenture Issuer)
or make any guarantee payments with respect to the foregoing, or (ii) make any payment of principal of or interest or premium,
if any, on or repay, repurchase or redeem any debt securities of the Debenture Issuer or any Affiliate that rank pari passu
in all respects with or junior in interest to the Debentures (other than, with respect to clauses (i) and (ii) above, (a)
repurchases, redemptions or other acquisitions of shares of capital stock of the Debenture Issuer in connection with any employment
contract, benefit plan or other similar arrangement with or for the benefit of one or more employees, officers, directors or consultants,
in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock
of the Debenture Issuer (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as a result of any exchange or conversion of any class
or series of the Debenture Issuer’s capital stock (or any capital stock of a subsidiary of the Debenture Issuer) for any
class or series of the Debenture Issuer’s capital stock or of any class or series of the Debenture Issuer’s indebtedness
for any class or series of the Debenture Issuer’s capital stock, (c) the purchase of fractional interests in shares of the
Debenture Issuer’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, (d) any declaration of a dividend in connection with any stockholders’ rights plan, or the
issuance of rights, stock or other property under any stockholders’ rights plan, or the redemption or repurchase of rights
pursuant thereto, (e) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock
issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid
or ranks pari passu with or junior to such stock and any cash payments in lieu of fractional shares issued in connection
therewith, or (f) payments under the Capital Securities Guarantee). Prior to the termination of any Extension Period, the Debenture
Issuer may further extend such period, provided that such period together with all such previous and further consecutive extensions
thereof shall not exceed 20 consecutive quarterly periods, or extend beyond the Maturity Date. Upon the termination of any Extension
Period and upon the payment of all accrued and unpaid interest and Additional Interest, the Debenture Issuer may commence a new
Extension Period, subject to the foregoing requirements. No interest or Additional Interest shall be due and payable during an
Extension Period, except at the end thereof, but each installment of interest that would otherwise have been due and payable during
such Extension Period shall bear Additional Interest. During any Extension Period, Distributions on the Securities shall be deferred
for a period equal to the Extension Period. If Distributions are deferred, the Distributions due shall be paid on the date that
the related Extension Period terminates to Holders of the Securities as they appear on the books and records of the Trust on the
record date immediately preceding such date. Distributions on the Securities must be paid on the dates payable (after giving effect
to any Extension Period) to the extent that the Trust has


 




    	I-2



    	 



    

 


funds available
for the payment of such distributions in the Property Account of the Trust. The Trust’s funds available for Distribution
to the Holders of the Securities will be limited to payments received from the Debenture Issuer. The payment of Distributions
out of moneys held by the Trust is guaranteed by the Guarantor pursuant to the Guarantee.


 


(c)          Distributions
on the Securities will be payable to the Holders thereof as they appear on the books and records of the Trust on the relevant
record dates. The relevant record dates shall be fifteen days before the relevant Distribution Payment Date. Distributions payable
on any Securities that are not punctually paid on any Distribution Payment Date, as a result of the Debenture Issuer having failed
to make a payment under the Debentures, as the case may be, when due (taking into account any Extension Period), will cease to
be payable to the Person in whose name such Securities are registered on the relevant record date, and such defaulted Distribution
will instead be payable to the Person in whose name such Securities are registered on the special record date or other specified
date determined in accordance with the Indenture.


 


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


 


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


 


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


 


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


 




    	I-3



    	 



    

 


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


 


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


 


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


 


4.          Redemption
and Distribution.


 


(a)
The Debentures will mature on June 15, 2037. The Debentures may be redeemed by the Debenture Issuer, in whole or in part, at any
Distribution Payment Date on or after the Distribution Payment Date in March 2012, at the Redemption Price. In addition, the Debentures
may be redeemed by the Debenture Issuer at the Special Redemption Price, in whole but not in part, at any Distribution Payment
Date, upon the occurrence and continuation of a Special Event within 120 days following the occurrence of such Special Event at
the Special Redemption Price, upon not less than 30 nor more than 60 days’ notice to holders of such Debentures so long
as such Special Event is continuing. In each case, the right of the Debenture Issuer to redeem the Debentures is subject to the
Debenture Issuer having received prior approval from the Federal Reserve (if the Debenture Issuer is a bank holding company) or
prior approval from the OTS (if the Debenture Issuer is a savings and loan holding company), in each case if then required under
applicable capital guidelines or policies of the applicable federal agency.


 


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


 


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


 




    	I-4



    	 



    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 




    	I-5



    	 



    

 


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


 


“Maturity
Date” means June 15, 2037.


 


“Redemption
Date” shall mean the date fixed for the redemption of Capital Securities, which shall be any Distribution Payment Date
on or after the Distribution Payment Date in March 2012.


 


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


 


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


 


“Special
Redemption Date” means a date on which a Special Event redemption occurs, which shall be a Distribution Payment Date.


 


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


 





	Month
    in which Special Redemption Date Occurs	Special
    Redemption Price
	June
    2007	104.625%
	September
    2007	104.300%
	December
    2007	104.000%
	March
    2008	103.650%
	June
    2008	103.350%
	September
    2008	103.000%
	December
    2008	102.700%
	March
    2009	102.350%
	June
    2009	102.050%
	September
    2009	101.700%
	December
    2009	101.400%



 





 







    	I-6



    	 



    

 


	March
    2010	101.050%
	June
    2010	100.750%
	September
    2010	100.450%
	December
    2010	100.200%
	March
    2011 and thereafter	100.000%


 





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


 


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


 


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


 


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


 


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


 




    	I-7



    	 



    

 


(e)          Redemption
or Distribution Procedures.


 


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


 


(ii)         If
the Securities are to be redeemed and the Trust gives a Redemption/ Distribution Notice, which notice may only be issued if the
Debentures are redeemed as set out in this paragraph 4 (which notice will be irrevocable), then, provided that the Institutional
Trustee has a sufficient amount of cash in connection with the related redemption or maturity of the Debentures, the Institutional
Trustee will pay the relevant Redemption Price or Special Redemption Price, as applicable, to the Holders of such Securities by
check mailed to the address of each such Holder appearing on the books and records of the Trust on the Redemption Date. If a Redemption/Distribution
Notice shall have been given and funds deposited as required then immediately prior to the close of business on the date of such
deposit Distributions will cease to accrue on the Securities so called for redemption and all rights of Holders of such Securities
so called for redemption will cease, except the right of the Holders of such Securities to receive the applicable Redemption Price
or Special Redemption Price specified in paragraph 4(a), but without interest on such Redemption Price or Special Redemption Price.
If payment of the Redemption Price or Special Redemption Price in respect of any Securities is improperly withheld or refused
and not paid either by the Trust or by the Debenture Issuer as guarantor pursuant to the Guarantee, Distributions on such Securities
will continue to accrue at the Distribution Rate from the original Redemption Date to the actual date of payment, in which case
the actual payment date will be considered the date fixed for redemption for purposes of calculating the Redemption Price or Special
Redemption Price. In the event of any redemption of the Capital Securities issued by the Trust in part, the Trust shall not be
required to (i) issue, register the transfer of or exchange any Security during a period beginning at the opening of business
fifteen days before any selection for redemption of the Capital Securities and ending at the close of business on the earliest
date on which the relevant notice of redemption is deemed to have been given to all Holders of the Capital Securities to be so
redeemed or (ii) register the transfer of or exchange any Capital Securities so selected for redemption, in whole or in part,
except for the unredeemed portion of any Capital Securities being redeemed in part.


 


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


 


(iv)        Subject
to the foregoing and applicable law (including, without limitation, United States federal securities laws), and provided that
the acquiror is not the Holder of the Common Securities or the obligor under the Indenture, the Sponsor or any of its


 




    	I-8



    	 



    

 


subsidiaries may at
any time and from time to time purchase outstanding Capital Securities by tender, in the open market or by private agreement.


 


5.          Voting
Rights - Capital Securities.


 


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


 


(b)          Subject
to the requirements of obtaining a tax opinion by the Institutional Trustee in certain circumstances set forth in the last sentence
of this paragraph, the Holders of a Majority in liquidation amount of the Capital Securities, voting separately as a class, have
the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Institutional Trustee,
or exercising any trust or power conferred upon the Institutional Trustee under the Declaration, including the right to direct
the Institutional Trustee, as holder of the Debentures, to (i) exercise the remedies available under the Indenture as the holder
of the Debentures, (ii) waive any past default that is waivable under the Indenture, (iii) exercise any right to rescind or annul
a declaration that the principal of all the Debentures shall be due and payable or (iv) consent on behalf of all the Holders of
the Capital Securities to any amendment, modification or termination of the Indenture or the Debentures where such consent shall
be required; provided, however, that, where a consent or action under the Indenture would require the consent or
act of the holders of greater than a simple majority in aggregate principal amount of Debentures (a “Super Majority”)
affected thereby, the Institutional Trustee may only give such consent or take such action at the written direction of the Holders
of at least the proportion in liquidation amount of the Capital Securities outstanding which the relevant Super Majority represents
of the aggregate principal amount of the Debentures outstanding. If the Institutional Trustee fails to enforce its rights under
the Debentures after the Holders of a Majority in liquidation amount of such Capital Securities have so directed the Institutional
Trustee, to the fullest extent permitted by law, a Holder of the Capital Securities may institute a legal proceeding directly
against the Debenture Issuer to enforce the Institutional Trustee’s rights under the Debentures without first instituting
any legal proceeding against the Institutional Trustee or any other person or entity. Notwithstanding the foregoing, if an Event
of Default has occurred and is continuing and such event is attributable to the failure of the Debenture Issuer to pay interest
or principal on the Debentures on the date the interest or principal is payable (or in the case of redemption, the Redemption
Date or the Special Redemption Date, as applicable), then a Holder of record of the Capital Securities may directly institute
a proceeding for enforcement of payment, on or after the respective due dates specified in the Debentures, to such Holder directly
of the principal of or interest on the Debentures having an aggregate principal amount equal to the aggregate liquidation amount
of the Capital Securities of such Holder. The Institutional Trustee shall notify all Holders of the Capital Securities of any
default actually known to the Institutional Trustee with respect to the Debentures unless (x) such default has been cured prior
to the giving of such notice or (y) the Institutional Trustee determines in good faith that the withholding of such notice is
in the interest of the Holders of such Capital Securities, except where the default relates to the payment of principal of or
interest on any of the Debentures. Such notice shall state that such Indenture Event of Default also constitutes an Event of Default
hereunder. Except with respect to directing the time, method and place of conducting a proceeding for a remedy, the Institutional
Trustee shall not take any of the actions described in clauses (i), (ii) or (iii) above unless the Institutional Trustee has obtained
an opinion of tax counsel to the effect that, as a result of such action, the Trust will not be classified as other than a grantor
trust for United States federal income tax purposes.


 


In
the event the consent of the Institutional Trustee, as the holder of the Debentures, is required under the Indenture with respect
to any amendment, modification or termination of the Indenture, the Institutional Trustee shall request the direction of the Holders
of the Securities with respect to such


 




    	I-9



    	 



    

 


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


 


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


 


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


 


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


 


6.          Voting
Rights - Common Securities.


 


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


 


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


 


(c)          Subject
to Section 6.7 of the Declaration and only after each Event of Default (if any) with respect to the Capital Securities has been
cured, waived, or otherwise eliminated and subject to the requirements of the second to last sentence of this paragraph, the Holders
of a Majority in liquidation amount of the Common Securities, voting separately as a class, may direct the time, method, and place
of conducting any proceeding for any remedy available to the Institutional Trustee, or exercising any trust or power conferred
upon the Institutional Trustee under the Declaration, including (i) directing the time, method, place of conducting any proceeding
for any remedy available to the Debenture Trustee, or exercising any trust or power conferred on the Debenture Trustee with respect
to the Debentures, (ii) waiving any past default and its consequences that is waivable under the Indenture, or (iii) exercising


 




    	I-10



    	 



    

 


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


 


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


 


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


 


7.           Amendments
to Declaration and Indenture.


 


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


 


(b)          In
the event the consent of the Institutional Trustee as the holder of the Debentures is required under the Indenture with respect
to any amendment, modification or termination of the Indenture or the Debentures, the Institutional Trustee shall request the
written direction of the Holders of the Securities with respect to such amendment, modification or termination and shall vote
with respect to such amendment, modification, or termination as directed by a Majority in liquidation amount of the


 




    	I-11



    	 



    

 


Securities
voting together as a single class; provided, however, that where a consent under the Indenture would require a
Super Majority, the Institutional Trustee may only give such consent at the direction of the Holders of at least the proportion
in liquidation amount of the Securities which the relevant Super Majority represents of the aggregate principal amount of the
Debentures outstanding.


 


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


 


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


 


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


 


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


 


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


 


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


 




    	I-12



    	 



    

 


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


 




    	I-13



    	 



    

 


EXHIBIT
A-1


 


FORM
OF CAPITAL SECURITY CERTIFICATE


 


[FORM
OF FACE OF SECURITY]


 


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


 


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


 




    	A-1-1



    	 



    

 


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


 


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


 


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


 


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


 


	Certificate Number P-1	5,000 Capital Securities
	[CUSIP NO. [_______] **To be inserted at the request
    of the Holder]


 


March
22, 2007


 


Certificate
Evidencing Floating Rate Capital Securities


 


of


 


Pathfinder
Statutory Trust II


 


(liquidation
amount $1,000.00 per Capital Security)


 


Pathfinder
Statutory Trust II, a statutory trust created under the laws of the State of Delaware (the “Trust”), hereby certifies
that Hare & Co. (the “Holder”), as the nominee of The Bank of New York, indenture trustee under the Indenture
dated as of March 22, 2007 among Preferred Term Securities XXV, Ltd., Preferred Term Securities XXV, Inc. and The Bank of New
York, is the registered owner of capital securities of the Trust representing undivided beneficial interests in the assets of
the Trust, (liquidation amount $1,000.00 per capital security) (the “Capital Securities”). Subject to the Declaration
(as defined below), the Capital Securities are transferable on the books and records of the Trust in person or by a duly authorized
attorney, upon surrender of this Certificate duly endorsed and in proper form for transfer. The Capital Securities represented
hereby are issued pursuant to, and the designation, rights, privileges, restrictions, preferences and other terms and provisions
of the Capital Securities shall in all respects be subject to, the provisions of the Amended and Restated Declaration of Trust
of the Trust dated as of March 22, 2007, among Thomas W. Schneider, James A. Dowd and Shelley J. Tafel, as Administrators, Wilmington
Trust Company, as Delaware Trustee, Wilmington Trust Company, as Institutional Trustee, Pathfinder Bancorp, Inc., as Sponsor,
and the holders from time to time of undivided beneficial interests in the assets of the Trust, including the designation of the
terms of the Capital Securities as set forth in Annex I to such amended and restated declaration as the same may be amended from
time to time (the “Declaration”). Capitalized terms used herein but not defined shall have the meaning given them
in the Declaration. The Holder is entitled to the benefits of the Guarantee to the extent provided therein. The


 




    	A-1-2



    	 



    

 


Sponsor will provide a copy of
the Declaration, the Guarantee, and the Indenture to the Holder without charge upon written request to the Sponsor at its principal
place of business.


 


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


 


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


 


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


 


Signatures
appear on following page


 




    	A-1-3



    	 



    

 


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


 


	 	PATHFINDER STATUTORY TRUST II
	 	 	 
	 	By:	 
	 	 	Name:
	 	 	Title: Administrator


 


CERTIFICATE
OF AUTHENTICATION


 


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


 


	 	WILMINGTON TRUST COMPANY,
	 	as the Institutional Trustee
	 	 	 
	 	By:	 
	 	 	Authorized Officer


 




    	A-1-4



    	 



    

 


[FORM
OF REVERSE OF CAPITAL SECURITY]


 


Distributions
payable on each Capital Security will be payable at an annual rate equal to 7.00% beginning on (and including) the date of original
issuance and ending on (but excluding) the Distribution Payment Date in June 2007 and at an annual rate for each successive period
beginning on (and including) the Distribution Payment Date in June 2007, and each succeeding Distribution Payment Date, and ending
on (but excluding) the next succeeding Distribution Payment Date (each a “Distribution Period”), equal to 3-Month
LIBOR, determined as described below, plus 1.65% (the “Coupon Rate”), applied to the stated liquidation amount of
$1,000.00 per Capital Security, such rate being the rate of interest payable on the Debentures to be held by the Institutional
Trustee. Distributions in arrears will bear interest thereon compounded quarterly at the Distribution Rate (to the extent permitted
by applicable law). The term “Distributions” as used herein includes cash distributions and any such compounded distributions
unless otherwise noted. A Distribution is payable only to the extent that payments are made in respect of the Debentures held
by the Institutional Trustee and to the extent the Institutional Trustee has funds available therefor. As used herein, “Determination
Date” means the date that is two London Banking Days (i.e., a business day in which dealings in deposits in U.S. dollars
are transacted in the London interbank market) preceding the commencement of the relevant Distribution Period. The amount of the
Distribution payable for any Distribution Period will be calculated by applying the Distribution Rate to the stated liquidation
amount outstanding at the commencement of the Distribution Period on the basis of the actual number of days in the Distribution
Period concerned divided by 360.


 


“3-Month
LIBOR” as used herein, means the London interbank offered interest rate for three-month U.S. dollar deposits determined
by the Debenture Trustee in the following order of priority: (i) the rate (expressed as a percentage per annum) for U.S. dollar
deposits having a three-month maturity that appears on Telerate Page 3750 as of 11:00 a.m. (London time) on the related Determination
Date (“Telerate Page 3750” means the display designated as “Page 3750” on the Moneyline Telerate Service
or such other page as may replace Page 3750 on that service or such other service or services as may be nominated by the British
Bankers’ Association as the information vendor for the purpose of displaying London interbank offered rates for U.S. dollar
deposits); (ii) if such rate cannot be identified on the related Determination Date, the Debenture Trustee will request the principal
London offices of four leading banks in the London interbank market to provide such banks’ offered quotations (expressed
as percentages per annum) to prime banks in the London interbank market for U.S. dollar deposits having a three-month maturity
as of 11:00 a.m. (London time) on such Determination Date. If at least two quotations are provided, 3-Month LIBOR will be the
arithmetic mean of such quotations; (iii) if fewer than two such quotations are provided as requested in clause (ii) above, the
Debenture Trustee will request four major New York City banks to provide such banks’ offered quotations (expressed as percentages
per annum) to leading European banks for loans in U.S. dollars as of 11:00 a.m. (London time) on such Determination Date. If at
least two such quotations are provided, 3-Month LIBOR will be the arithmetic mean of such quotations; and (iv) if fewer than two
such quotations are provided as requested in clause (iii) above, 3-Month LIBOR will be a 3-Month LIBOR determined with respect
to the Distribution Period immediately preceding such current Distribution Period. If the rate for U.S. dollar deposits having
a three-month maturity that initially appears on Telerate Page 3750 as of 11:00 a.m. (London time) on the related Determination
Date is superseded on the Telerate Page 3750 by a corrected rate by 12:00 noon (London time) on such Determination Date, then
the corrected rate as so substituted on the applicable page will be the applicable 3-Month LIBOR for such Determination Date.


 


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


 


All
percentages resulting from any calculations on the Capital Securities will be rounded, if necessary, to the nearest one hundred-thousandth
of a percentage point, with five one-millionths of a percentage point rounded upward (e.g., 9.876545% (or .09876545) being rounded
to 9.87655% (or


 




    	A-1-5



    	 



    

 


.0987655), and all dollar amounts
used in or resulting from such calculation will be rounded to the nearest cent (with one-half cent being rounded upward)).


 


Except
as otherwise described below, Distributions on the Capital Securities will be cumulative, will accrue from the date of original
issuance and will be payable quarterly in arrears on March 15, June 15, September 15 and December 15 of each year or if any such
day is not a Business Day, then the next succeeding Business Day (each such day, a “Distribution Payment Date”) (it
being understood that interest accrues for any such non-Business Day), commencing on the Distribution Payment Date in June 2007.
The Debenture Issuer has the right under the Indenture to defer payments of interest on the Debentures, so long as no Acceleration
Event of Default has occurred and is continuing, by extending the interest payment period for up to 20 consecutive quarterly periods
(each an “Extension Period”) at any time and from time to time on the Debentures, subject to the conditions described
below, during which Extension Period no interest shall be due and payable. During any Extension Period, interest will continue
to accrue on the Debentures, and interest on such accrued interest will accrue at an annual rate equal to the Distribution Rate
in effect for each such Extension Period, compounded quarterly from the date such interest would have been payable were it not
for the Extension Period, to the extent permitted by law (such interest referred to herein as “Additional Interest”).
No Extension Period may end on a date other than a Distribution Payment Date. At the end of any such Extension Period, the Debenture
Issuer shall pay all interest then accrued and unpaid on the Debentures (together with Additional Interest thereon); provided,
however, that no Extension Period may extend beyond the Maturity Date. Prior to the termination of any Extension Period,
the Debenture Issuer may further extend such period, provided that such period together with all such previous and further consecutive
extensions thereof shall not exceed 20 consecutive quarterly periods, or extend beyond the Maturity Date. Upon the termination
of any Extension Period and upon the payment of all accrued and unpaid interest and Additional Interest, the Debenture Issuer
may commence a new Extension Period, subject to the foregoing requirements. No interest or Additional Interest shall be due and
payable during an Extension Period, except at the end thereof, but each installment of interest that would otherwise have been
due and payable during such Extension Period shall bear Additional Interest. During any Extension Period, Distributions on the
Capital Securities shall be deferred for a period equal to the Extension Period. If Distributions are deferred, the Distributions
due shall be paid on the date that the related Extension Period terminates, to Holders of the Securities as they appear on the
books and records of the Trust on the record date immediately preceding such date. Distributions on the Securities must be paid
on the dates payable (after giving effect to any Extension Period) to the extent that the Trust has funds available for the payment
of such distributions in the Property Account of the Trust. The Trust’s funds available for Distribution to the Holders
of the Securities will be limited to payments received from the Debenture Issuer. The payment of Distributions out of moneys held
by the Trust is guaranteed by the Guarantor pursuant to the Guarantee.


 


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


 




    	A-1-6



    	 



    

 


ASSIGNMENT


 


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


 


_______________________________________________________________________


 


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


 


_______________________________________________________________________


 


_______________________________________________________________________


 


 


 


 


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


 


_______________________________________________________________________


 


 


 


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


 


	Date: 	 	 






	 	 	 
	Signature: 	 	 


 


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


 


Signature Guarantee:1


 


 


 


 


 


 


 


 


 


 


 


 


 





 











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


 




    	A-1-7



    	 



    

 


EXHIBIT
A-2


 


FORM
OF COMMON SECURITY CERTIFICATE


 


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


 


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


 


	Certificate Number C-1	155 Common Securities


 


March
22, 2007


 


Certificate
Evidencing Floating Rate Common Securities


 


of


 


Pathfinder
Statutory Trust II


 


Pathfinder
Statutory Trust II, a statutory trust created under the laws of the State of Delaware (the “Trust”), hereby certifies
that Pathfinder Bancorp, Inc. (the “Holder”) is the registered owner of common securities of the Trust representing
undivided beneficial interests in the assets of the Trust (the “Common Securities”). The Common Securities represented
hereby are issued pursuant to, and the designation, rights, privileges, restrictions, preferences and other terms and provisions
of the Common Securities shall in all respects be subject to, the provisions of the Amended and Restated Declaration of Trust
of the Trust dated as of March 22, 2007, among Thomas W. Schneider, James A. Dowd and Shelley J. Tafel, as Administrators, Wilmington
Trust Company, as Delaware Trustee, Wilmington Trust Company, as Institutional Trustee, Pathfinder Bancorp, Inc., as Sponsor,
and the holders from time to time of undivided beneficial interest in the assets of the Trust including the designation of the
terms of the Common Securities as set forth in Annex I to such amended and restated declaration, as the same may be amended from
time to time (the “Declaration”). Capitalized terms used herein but not defined shall have the meaning given them
in the Declaration. The Holder is entitled to the benefits of the Guarantee to the extent provided therein. The Sponsor will provide
a copy of the Declaration, the Guarantee and the Indenture to the Holder without charge upon written request to the Sponsor at
its principal place of business.


 


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


 


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


 


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


 


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


 




    	A-2-1



    	 



    

 


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


 


	 	PATHFINDER STATUTORY TRUST II
	 	 	 
	 	By:	 
	 	 	Name:
	 	 	Title: Administrator


 




    	A-2-2



    	 



    

 


[FORM
OF REVERSE OF COMMON SECURITY]


 


Distributions
payable on each Common Security will be payable at an annual rate equal to 7.00% beginning on (and including) the date of original
issuance and ending on (but excluding) the Distribution Payment Date in June 2007 and at an annual rate for each successive period
beginning on (and including) the Distribution Payment Date in June 2007, and each succeeding Distribution Payment Date, and ending
on (but excluding) the next succeeding Distribution Payment Date (each a “Distribution Period”), equal to 3-Month
LIBOR, determined as described below, plus 1.65% (the “Coupon Rate”), applied to the stated liquidation amount of
$1,000.00 per Common Security, such rate being the rate of interest payable on the Debentures to be held by the Institutional
Trustee. Distributions in arrears will bear interest thereon compounded quarterly at the Distribution Rate (to the extent permitted
by applicable law). The term “Distributions” as used herein includes cash distributions and any such compounded distributions
unless otherwise noted. A Distribution is payable only to the extent that payments are made in respect of the Debentures held
by the Institutional Trustee and to the extent the Institutional Trustee has funds available therefor. As used herein, “Determination
Date” means the date that is two London Banking Days (i.e., a business day in which dealings in deposits in U.S. dollars
are transacted in the London interbank market) preceding the commencement of the relevant Distribution Period. The amount of the
Distribution payable for any Distribution Period will be calculated by applying the Distribution Rate to the stated liquidation
amount outstanding at the commencement of the Distribution Period on the basis of the actual number of days in the Distribution
Period concerned divided by 360.


 


“3-Month
LIBOR” as used herein, means the London interbank offered interest rate for three-month U.S. dollar deposits determined
by the Debenture Trustee in the following order of priority: (i) the rate (expressed as a percentage per annum) for U.S. dollar
deposits having a three-month maturity that appears on Telerate Page 3750 as of 11:00 a.m. (London time) on the related Determination
Date (“Telerate Page 3750” means the display designated as “Page 3750” on the Moneyline Telerate Service
or such other page as may replace Page 3750 on that service or such other service or services as may be nominated by the British
Bankers’ Association as the information vendor for the purpose of displaying London interbank offered rates for U.S. dollar
deposits); (ii) if such rate cannot be identified on the related Determination Date, the Debenture Trustee will request the principal
London offices of four leading banks in the London interbank market to provide such banks’ offered quotations (expressed
as percentages per annum) to prime banks in the London interbank market for U.S. dollar deposits having a three-month maturity
as of 11:00 a.m. (London time) on such Determination Date. If at least two quotations are provided, 3-Month LIBOR will be the
arithmetic mean of such quotations; (iii) if fewer than two such quotations are provided as requested in clause (ii) above, the
Debenture Trustee will request four major New York City banks to provide such banks’ offered quotations (expressed as percentages
per annum) to leading European banks for loans in U.S. dollars as of 11:00 a.m. (London time) on such Determination Date. If at
least two such quotations are provided, 3-Month LIBOR will be the arithmetic mean of such quotations; and (iv) if fewer than two
such quotations are provided as requested in clause (iii) above, 3-Month LIBOR will be a 3-Month LIBOR determined with respect
to the Distribution Period immediately preceding such current Distribution Period. If the rate for U.S. dollar deposits having
a three-month maturity that initially appears on Telerate Page 3750 as of 11:00 a.m. (London time) on the related Determination
Date is superseded on the Telerate Page 3750 by a corrected rate by 12:00 noon (London time) on such Determination Date, then
the corrected rate as so substituted on the applicable page will be the applicable 3-Month LIBOR for such Determination Date.


 


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


 


All
percentages resulting from any calculations on the Common Securities will be rounded, if necessary, to the nearest one hundred-thousandth
of a percentage point, with five one-millionths of a percentage point rounded upward (e.g., 9.876545% (or .09876545) being rounded
to 9.87655% (or


 




    	A-2-3



    	 



    

 


.0987655), and all dollar amounts
used in or resulting from such calculation will be rounded to the nearest cent (with one-half cent being rounded upward)).


 


Except
as otherwise described below, Distributions on the Common Securities will be cumulative, will accrue from the date of original
issuance and will be payable quarterly in arrears on March 15, June 15, September 15 and December 15 of each year or if any such
day is not a Business Day, then the next succeeding Business Day (each such day, a “Distribution Payment Date”) (it
being understood that interest accrues for any such non-Business Day), commencing on the Distribution Payment Date in June 2007.
The Debenture Issuer has the right under the Indenture to defer payments of interest on the Debentures, so long as no Acceleration
Event of Default has occurred and is continuing, by extending the interest payment period for up to 20 consecutive quarterly periods
(each an “Extension Period”) at any time and from time to time on the Debentures, subject to the conditions described
below, during which Extension Period no interest shall be due and payable. During any Extension Period, interest will continue
to accrue on the Debentures, and interest on such accrued interest will accrue at an annual rate equal to the Distribution Rate
in effect for each such Extension Period, compounded quarterly from the date such interest would have been payable were it not
for the Extension Period, to the extent permitted by law (such interest referred to herein as “Additional Interest”).
No Extension Period may end on a date other than a Distribution Payment Date. At the end of any such Extension Period, the Debenture
Issuer shall pay all interest then accrued and unpaid on the Debentures (together with Additional Interest thereon); provided,
however, that no Extension Period may extend beyond the Maturity Date. Prior to the termination of any Extension Period,
the Debenture Issuer may further extend such period, provided that such period together with all such previous and further consecutive
extensions thereof shall not exceed 20 consecutive quarterly periods, or extend beyond the Maturity Date. Upon the termination
of any Extension Period and upon the payment of all accrued and unpaid interest and Additional Interest, the Debenture Issuer
may commence a new Extension Period, subject to the foregoing requirements. No interest or Additional Interest shall be due and
payable during an Extension Period, except at the end thereof, but each installment of interest that would otherwise have been
due and payable during such Extension Period shall bear Additional Interest. During any Extension Period, Distributions on the
Common Securities shall be deferred for a period equal to the Extension Period. If Distributions are deferred, the Distributions
due shall be paid on the date that the related Extension Period terminates, to Holders of the Securities as they appear on the
books and records of the Trust on the record date immediately preceding such date. Distributions on the Securities must be paid
on the dates payable (after giving effect to any Extension Period) to the extent that the Trust has funds available for the payment
of such distributions in the Property Account of the Trust. The Trust’s funds available for Distribution to the Holders
of the Securities will be limited to payments received from the Debenture Issuer.


 


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


 




    	A-2-4



    	 



    

 


ASSIGNMENT


 


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


 


_______________________________________________________________________


 


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


 


_______________________________________________________________________


 


_______________________________________________________________________


 


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


 


_______________________________________________________________________


 


 


 


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


 


	Date: 	 	 






	 	 	 
	Signature: 	 	 


 


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


 


	Signature: 	 	 


 


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


 


Signature Guarantee2


 


 


 


 


 


 


 


 


 


 












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


 




    	A-2-5



    	 



    

 


EXHIBIT
B


 


SPECIMEN
OF INITIAL DEBENTURE


 


(See
Document No. 16)


 




    	B-1



    	 



    

 


EXHIBIT
C


 


PLACEMENT
AGREEMENT


 


(See
Document No. 1)


 




    	C-1