Exhibit 4.06


 


AMENDED AND RESTATED


 


DECLARATION OF TRUST


 


LEHMAN BROTHERS HOLDINGS CAPITAL TRUST VIII


 


Dated as of May 17, 2007


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I

  
	
   

  
	
  INTERPRETATION AND DEFINITIONS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  1.1.

  	
   

  	
  Interpretation
  and Definitions.

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  
	
  TRUST INDENTURE ACT

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  2.1.

  	
   

  	
  Trust
  Indenture Act; Application.

  	
   

  	
  12

  
	
  SECTION
  2.2.

  	
   

  	
  Lists
  of Holders of Trust Securities.

  	
   

  	
  12

  
	
  SECTION
  2.3.

  	
   

  	
  Reports
  by the Property Trustee.

  	
   

  	
  12

  
	
  SECTION
  2.4.

  	
   

  	
  Periodic
  Reports to Property Trustee.

  	
   

  	
  13

  
	
  SECTION
  2.5.

  	
   

  	
  Evidence
  of Compliance with Conditions Precedent.

  	
   

  	
  13

  
	
  SECTION
  2.6.

  	
   

  	
  Trust
  Enforcement Events; Waiver.

  	
   

  	
  13

  
	
  SECTION
  2.7.

  	
   

  	
  Trust
  Enforcement Event; Notice.

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  
	
  ORGANIZATION

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  3.1.

  	
   

  	
  Name.

  	
   

  	
  16

  
	
  SECTION
  3.2.

  	
   

  	
  Office.

  	
   

  	
  16

  
	
  SECTION
  3.3.

  	
   

  	
  Purpose.

  	
   

  	
  16

  
	
  SECTION
  3.4.

  	
   

  	
  Authority.

  	
   

  	
  16

  
	
  SECTION
  3.5.

  	
   

  	
  Title
  to Property of the Trust.

  	
   

  	
  17

  
	
  SECTION
  3.6.

  	
   

  	
  Powers
  and Duties of the Regular Trustees.

  	
   

  	
  17

  
	
  SECTION
  3.7.

  	
   

  	
  Prohibition
  of Actions by the Trust and the Trustees.

  	
   

  	
  20

  
	
  SECTION
  3.8.

  	
   

  	
  Powers
  and Duties of the Property Trustee.

  	
   

  	
  21

  
	
  SECTION
  3.9.

  	
   

  	
  Certain
  Duties and Responsibilities of the Property Trustee.

  	
   

  	
  23

  
	
  SECTION
  3.10.

  	
   

  	
  Certain
  Rights of Property Trustee.

  	
   

  	
  24

  
	
  SECTION
  3.11.

  	
   

  	
  Delaware
  Trustee.

  	
   

  	
  27

  
	
  SECTION
  3.12.

  	
   

  	
  Execution
  of Documents.

  	
   

  	
  27

  
	
  SECTION
  3.13.

  	
   

  	
  Not
  Responsible for Recitals or Issuance of Trust Securities.

  	
   

  	
  27

  
	
  SECTION
  3.14.

  	
   

  	
  Duration
  of Trust.

  	
   

  	
  27

  
	
  SECTION
  3.15.

  	
   

  	
  Mergers.

  	
   

  	
  27

  
	
  SECTION
  3.16.

  	
   

  	
  Property
  Trustee May File Proofs of Claim.

  	
   

  	
  29

  



 


i

















 


	
  ARTICLE IV

  
	
   

  
	
  SPONSOR

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  4.1.

  	
   

  	
  Responsibilities
  of the Sponsor.

  	
   

  	
  31

  
	
  SECTION
  4.2.

  	
   

  	
  Indemnification
  and Fees and Expenses of the Trustees

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TRUST COMMON SECURITIES HOLDER

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  5.1.

  	
   

  	
  Company’s
  Purchase of Trust Common Securities.

  	
   

  	
  32

  
	
  SECTION
  5.2.

  	
   

  	
  Covenants
  of the Trust Common Securities Holder.

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TRUSTEES

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  6.1.

  	
   

  	
  Number
  of Trustees.

  	
   

  	
  33

  
	
  SECTION
  6.2.

  	
   

  	
  Delaware
  Trustee.

  	
   

  	
  33

  
	
  SECTION
  6.3.

  	
   

  	
  Property
  Trustee; Eligibility.

  	
   

  	
  33

  
	
  SECTION
  6.4.

  	
   

  	
  Qualifications
  of Regular Trustees and Delaware Trustee Generally.

  	
   

  	
  34

  
	
  SECTION
  6.5.

  	
   

  	
  Regular
  Trustees.

  	
   

  	
  35

  
	
  SECTION
  6.6.

  	
   

  	
  Delaware
  Trustee.

  	
   

  	
  35

  
	
  SECTION
  6.7.

  	
   

  	
  Appointment,
  Removal and Resignation of Trustees.

  	
   

  	
  35

  
	
  SECTION
  6.8.

  	
   

  	
  Vacancies
  among Trustees.

  	
   

  	
  37

  
	
  SECTION
  6.9.

  	
   

  	
  Effect
  of Vacancies.

  	
   

  	
  37

  
	
  SECTION
  6.10.

  	
   

  	
  Meetings.

  	
   

  	
  37

  
	
  SECTION
  6.11.

  	
   

  	
  Delegation
  of Power.

  	
   

  	
  37

  
	
  SECTION
  6.12.

  	
   

  	
  Merger,
  Conversion, Consolidation or Succession to Business.

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TERMS OF SECURITIES

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  7.1.

  	
   

  	
  General
  Provisions Regarding Securities.

  	
   

  	
  39

  
	
  SECTION
  7.2.

  	
   

  	
  Distributions.

  	
   

  	
  41

  
	
  SECTION
  7.3.

  	
   

  	
  Redemption
  of Trust Securities.

  	
   

  	
  41

  
	
  SECTION
  7.4.

  	
   

  	
  Redemption
  Procedures.

  	
   

  	
  42

  
	
  SECTION
  7.5.

  	
   

  	
  Voting
  and Enforcement Rights of Trust Preferred Securities.

  	
   

  	
  43

  
	
  SECTION
  7.6.

  	
   

  	
  Voting
  and Enforcement Rights of Trust Common Securities

  	
   

  	
  45

  
	
  SECTION
  7.7.

  	
   

  	
  Paying
  Agent and Security Registrar.

  	
   

  	
  47

  
	
  SECTION
  7.8.

  	
   

  	
  Certificates
  of Trust Securities.

  	
   

  	
  47

  
	
  SECTION
  7.9.

  	
   

  	
  Transfer
  of Trust Securities.

  	
   

  	
  49

  
	
  SECTION
  7.10.

  	
   

  	
  Mutilated,
  Destroyed, Lost or Stolen Certificates.

  	
   

  	
  50

  
	
  SECTION
  7.11.

  	
   

  	
  Deemed
  Security Holders.

  	
   

  	
  50

  
	
  SECTION
  7.12.

  	
   

  	
  Global
  Securities.

  	
   

  	
  50

  



 


ii

















 


	
  ARTICLE VIII

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DISSOLUTION AND LIQUIDATION OF THE TRUST

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  8.1.

  	
   

  	
  Dissolution
  and Termination of Trust.

  	
   

  	
  53

  
	
  SECTION
  8.2.

  	
   

  	
  Liquidation
  Distribution Upon Dissolution and Termination of the Trust.

  	
   

  	
  53

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIMITATION OF LIABILITY OF

  
	
  HOLDERS OF TRUST SECURITIES, TRUSTEES OR OTHERS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  9.1.

  	
   

  	
  Liability.

  	
   

  	
  55

  
	
  SECTION
  9.2.

  	
   

  	
  Exculpation.

  	
   

  	
  55

  
	
  SECTION
  9.3.

  	
   

  	
  Fiduciary
  Duty.

  	
   

  	
  56

  
	
  SECTION
  9.4.

  	
   

  	
  Indemnification.

  	
   

  	
  57

  
	
  SECTION
  9.5.

  	
   

  	
  Outside
  Businesses.

  	
   

  	
  59

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ACCOUNTING AND TAX MATTERS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  10.1.

  	
   

  	
  Fiscal
  Year.

  	
   

  	
  60

  
	
  SECTION
  10.2.

  	
   

  	
  Certain
  Accounting Matters; Returns and Information.

  	
   

  	
  60

  
	
  SECTION
  10.3.

  	
   

  	
  Banking.

  	
   

  	
  60

  
	
  SECTION
  10.4.

  	
   

  	
  Withholding.

  	
   

  	
  61

  
	
  SECTION
  10.5.

  	
   

  	
  Treatment
  as Grantor Trust for Federal Income Tax Purposes.

  	
   

  	
  61

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AMENDMENTS AND MEETINGS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  11.1.

  	
   

  	
  Amendments
  of this Declaration of Trust.

  	
   

  	
  62

  
	
  SECTION
  11.2.

  	
   

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

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  REPRESENTATIONS OF PROPERTY TRUSTEE

  
	
  AND DELAWARE TRUSTEE

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  12.1.

  	
   

  	
  Representations
  and Warranties of Property Trustee.

  	
   

  	
  66

  
	
  SECTION
  12.2.

  	
   

  	
  Representations
  and Warranties of Delaware Trustee.

  	
   

  	
  67

  



 


iii

















 


	
  ARTICLE XIII

  
	
   

  
	
  REMARKETING AND RESET RATE MECHANICS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  13.1.

  	
   

  	
  Obligation
  to Conduct Remarketing and Related Requirements

  	
   

  	
  68

  
	
  SECTION
  13.2.

  	
   

  	
  Company
  Decisions in Connection with Remarketing.

  	
   

  	
  68

  
	
  SECTION
  13.3.

  	
   

  	
  Reset
  of Interest Rate on Debentures in Connection with Remarketings and Related
  Changes in Terms.

  	
   

  	
  69

  
	
  SECTION
  13.4.

  	
   

  	
  Early
  Remarketing.

  	
   

  	
  71

  
	
  SECTION
  13.5.

  	
   

  	
  Remarketing
  Procedures.

  	
   

  	
  71

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OTHER MCAPS RELATED PROVISIONS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  14.1.

  	
   

  	
  Agreed
  Tax Treatment.

  	
   

  	
  74

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XV

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION
  15.1.

  	
   

  	
  Notices.

  	
   

  	
  75

  
	
  SECTION
  15.2.

  	
   

  	
  Governing
  Law.

  	
   

  	
  76

  
	
  SECTION
  15.3.

  	
   

  	
  Headings.

  	
   

  	
  76

  
	
  SECTION
  15.4.

  	
   

  	
  Successors
  and Assigns.

  	
   

  	
  76

  
	
  SECTION
  15.5.

  	
   

  	
  Partial
  Enforceability.

  	
   

  	
  76

  
	
  SECTION
  15.6.

  	
   

  	
  Counterparts.

  	
   

  	
  76

  



 


	
  EXHIBIT
  A-1

  	
   

  	
  Form
  of Global Trust Preferred Security Certificate

  	
   

  	
   

  
	
  EXHIBIT
  A-2

  	
   

  	
  Form
  of Trust Preferred Security

  	
   

  	
   

  
	
  EXHIBIT
  A-2

  	
   

  	
  Form
  of Trust Common Security Certificate

  	
   

  	
   

  



 


iv

















 


CROSS-REFERENCE TABLE*


	
  Section of 

  Trust Indenture Act 

  of 1939, as amended

  	
   

  	
  Section of 

  Declaration of Trust

  
	
   

  	
   

  	
   

  
	
  310(a)

  	
   

  	
  6.3(a)

  
	
  310(b)

  	
   

  	
  6.3(c)

  
	
  310(c)

  	
   

  	
  Inapplicable

  
	
  311(a)

  	
   

  	
  2.2(b)

  
	
  311(b)

  	
   

  	
  2.2(b)

  
	
  311(c)

  	
   

  	
  Inapplicable

  
	
  312(a)

  	
   

  	
  2.2(a)

  
	
  312(b)

  	
   

  	
  2.2(b)

  
	
  313

  	
   

  	
  2.3

  
	
  314(a)

  	
   

  	
  2.4

  
	
  314(b)

  	
   

  	
  Inapplicable

  
	
  314(c)

  	
   

  	
  2.5

  
	
  314(d)

  	
   

  	
  Inapplicable

  
	
  314(f)

  	
   

  	
  Inapplicable

  
	
  315(a)

  	
   

  	
  3.9(b)

  
	
  315(c)

  	
   

  	
  3.9(a)

  
	
  315(d)

  	
   

  	
  3.9(a)

  
	
  316(a)

  	
   

  	
  2.6(a)

  
	
  316(c)

  	
   

  	
  3.6(e)

  



 






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


 


v

















 


AMENDED AND RESTATED DECLARATION OF TRUST

OF

LEHMAN BROTHERS HOLDINGS CAPITAL TRUST VIII


 


May 17, 2007


 


AMENDED
AND RESTATED DECLARATION OF TRUST (the “Declaration of Trust”) dated and
effective as of May 17, 2007 by and among Lehman Brothers Holdings Inc., a
Delaware corporation, as Sponsor, and Barrett S. DiPaolo, James Killerlane and
Andrew Yeung, as the Regular Trustees, U.S. Bank National Association, as the
Property Trustee and U.S. Bank Trust National Association, as the Delaware
Trustee, not in their individual capacities but solely as Trustees, and by the
Holders, from time to time, of undivided beneficial ownership interests in the
Trust to be issued pursuant to this Declaration of Trust.


 


WHEREAS,
certain initial trustees of the Trust and the Sponsor have heretofore duly
declared and established Lehman Brothers Holdings Capital Trust VIII (the “Trust”)
pursuant to the Delaware Statutory Trust Act (as hereinafter defined) by
entering into that certain Declaration of Trust, dated November 23, 2004 (the “Original
Declaration of Trust”), and by the execution and filing with the Secretary
of State of the State of Delaware the Certificate of Trust, filed on December
8, 2004 (the “Certificate of Trust”); and


 


WHEREAS,
the sole purpose of the Trust shall be to issue certain securities representing
undivided beneficial ownership interests in the assets of the Trust, in exchange
for the Debentures issued by the Sponsor and to engage in only those activities
necessary or incidental thereto; and


 


WHEREAS,
the parties hereto, 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
constitute the governing instrument of such statutory trust, the Trustees
hereby declare that all assets contributed to the Trust be held in trust for
the benefit of the Holders, from time to time, of the Securities representing
undivided beneficial ownership interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.


 

















 


ARTICLE I



INTERPRETATION AND DEFINITIONS


 


SECTION 1.1.                                                                   Interpretation
and Definitions.


 


Unless
the context otherwise requires:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


2

















 


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


 


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


 


“Closing
Date” means the date on which the Normal MCAPS are issued and sold.


 


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


 


“Commission”
means the Securities and Exchange Commission.


 


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


 


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


 


“Collateral
Account” has the meaning set forth in the Collateral Agreement.


 


“Collateral
Agent” means The Bank of New York, as Collateral Agent under the Collateral
Agreement until a successor Collateral Agent shall have been appointed and
qualified pursuant to the applicable provisions of the Collateral Agreement,
and thereafter “Collateral Agent” shall mean the Person who is then the
Collateral Agent thereunder.


 


“Collateral
Agreement” means the Collateral Agreement, dated as of the date hereof,
among the Sponsor, the Collateral Agent, the Securities Intermediary, and U.S.
Bank National Association, as Stock Purchase Contract Agent and
attorney-in-fact for the Holders (as defined in the Stock Purchase Contract
Agreement) of the Stock Purchase Contracts, as amended from time to time.


 


“Corporate
Trust Office” means the principal corporate trust office of the Property
Trustee at which, at any particular time, its corporate trust business shall be
administered, which office at the date hereof is located at 100 Wall Street,
Suite 1600, Mail Station EX-NY-WALL, New York, New York 10005.


 


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


 


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


 


“Debenture
Issuer” means Lehman Brothers Holdings Inc., in its capacity as issuer of
the Debentures under the Indenture.


 


3

















 


“Debentures”
means the $500,001,000 initial aggregate principal amount of the Company’s
Floating Rate Remarketable Junior Subordinated Debentures due 2043 issued
pursuant to the Indenture.


 


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


 


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


 


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


 


“Determination
Date” means the 20th business day prior to the last day of each fiscal
quarter.


 


“Direct
Action” has the meaning set forth in Section 3.8(e) hereof.


 


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


 


“Early
Remarketing” has the meaning set forth in Section 13.4 hereof.


 


“Early
Remarketing Event” shall occur if on any Determination Date, both of the
following conditions exist:


 


(i)
the Trailing Two Quarters Consolidated Net Income Amount is zero or a negative
amount for the two-fiscal quarter period ending on the last day of the Sponsor’s
fiscal quarter that is two fiscal quarters prior to the most recently completed
fiscal quarter before that Determination Date; and


 


(ii)
the Tangible Common Stockholders’ Equity Amount as of the end of the Sponsor’s
most recently completed fiscal quarter before that Determination Date and as of
the end of the Company’s fiscal quarter that is two quarters before the Company’s
most recently completed quarter before that Determination Date has declined in
each case by 10% or more as compared to the Tangible Common Stockholders’
Equity Amount at the end of the Company’s fiscal quarter ending six quarters
prior to the Company’s most recently completed fiscal quarter before that
Determination Date.


 


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


 


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


 


“Failed
Remarketing” means a Final Remarketing that is not Successful.


 


4

















 


“Final
Remarketing” means (i) a Remarketing for a settlement date on May 31, 2013
(or if such day is not a Business Day, the immediately succeeding Business Day)
or (ii) in the case of an Early Remarketing, the fifth scheduled Remarketing.


 


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


 


“Fixed
Rate Reset Cap”, as of any Remarketing Settlement Date, means the
prevailing market yield, as determined by the Remarketing Agent, of the
benchmark U.S. treasury security having a remaining maturity that most closely
corresponds to the period from such date until the earliest date on which the
Debentures may be redeemed at the option of the Company in the event of a
Successful Remarketing, plus 3.50%, per annum.


 


“Floating
Rate Reset Cap” means 3.00%, per annum.


 


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


 


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


 


“Global
Certificate Legend” means the legend set forth in Section 7.12 hereof,
which is required to be placed on all Global Certificates issued under this
Declaration of Trust.


 


“Guarantee”
means the Guarantee Agreement dated as of May 17, 2007 entered into by the
Company, as Guarantor, for the benefit of the Holders of the Trust Securities.


 


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


 


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


 


“Indenture”
means the Base Indenture, dated as of February 1, 1996, between the Company and
JPMorgan Chase Bank, N.A., as trustee, as supplemented by the First
Supplemental Indenture, dated as of February 1, 1996, and the Supplemental Indenture,
as further amended or supplemented from time to time.


 


“Indenture
Event of Default” means any event of default under the Indenture.


 


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


 


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


 


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


 


5

















 


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


 


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


 


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


 


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


 


“New
York Business Day” means any day that is not a Saturday or Sunday and that,
in New York City, is not a day on which banking institutions generally are
authorized or obligated by law or executive order to be closed.


 


“Normal
MCAPS” means the collective rights and obligations of a Holder of a Normal
MCAPS Certificate in respect of one Trust Preferred Security subject to the
Pledge thereof, and the related Stock Purchase Contract.


 


“Normal
MCAPS Certificate” means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Normal MCAPS specified on
such certificate.


 


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


 


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


 


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


 


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


 


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


 


6

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Redemption
Notice” has the meaning set forth in Section 7.4(a) hereof.


 


“Redemption
Price” means such amount as each Trust Security would receive if all the
assets then held by the Trust were paid in full in cash in accordance with
their terms and the Trust were liquidated in accordance with its terms.


 


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


 


“Remarketing”
means a remarketing of Trust Preferred Securities pursuant to Article XIII
hereof and the related Remarketing Agreement.


 


“Remarketing
Agent” means, as to a Remarketing and Remarketing Agreement, the
remarketing agent and any successor or replacement remarketing agent appointed
by the Sponsor.


 


 “Remarketing Agreement” means the
remarketing agreement to be entered into prior to the first Remarketing among
the Sponsor, the Trust (acting through the Property Trustee) and the
Remarketing Agent, as amended or supplemented from time to time pursuant with
respect to such Remarketing of Trust Preferred Securities.


 


7

















 


“Remarketing
Date” means, as to a Remarketing Settlement Date, the third business day immediately
preceding such Remarketing Settlement Date.


 


“Remarketing
Fee” means, as to a Remarketing, the fee payable to the Remarketing Agent
provided for in the Remarketing Agreement.


 


 “Remarketing Period” means the five
Business Day Period beginning on the seventh Business Day preceding each of May
31, 2012, August 31, 2012, November 30, 2012, February 28, 2013 and May 31,
2013 (or if any such day is not a Business Day, the preceding Business Day)
until the settlement of a Successful Remarketing, or if an Early Remarketing
Event shall have occurred, each of the periods determined in accordance with
Section 13.4.


 


“Remarketing
Settlement Date” means the May 31, August 31, November 30 or February 28
immediately following a Successful Remarketing (or if any such day is not a
Business Day, the preceding Business Day).


 


“Reset
Date” means the first date that is a Remarketing Settlement Date or a Final
Remarketing that is not Successful.


 


 “Reset Rate” means, if the Debentures
are remarketed as fixed rate notes, the rate of interest on the Debentures, if
any, set in a Remarketing, as set forth in Section 2 of the Supplemental
Indenture.


 


“Reset
Spread” means, if the Debentures are remarked as floating rate notes, the
spread, if any, set in a Remarketing, as set forth in Section 2 of the
Supplemental Indenture.


 


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


 


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


 


“Securities
Intermediary” means The Bank of New York, and any successor thereto as
securities intermediary under the Collateral Agreement.


 


“Security
Register” has the meaning set forth in Section 7.7(a) hereof.


 


“Security
Registrar” has the meaning set forth in Section 7.7(c) hereof.


 


“Separate
Trust Preferred Securities” means Trust Preferred Securities that are no
longer a component of Normal MCAPS.


 


“Special
Event” has the meaning set forth in the Indenture.


 


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


 


8

















 


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


 


“Stock
Purchase Contract” has the meaning set forth in the Stock Purchase Contract
Agreement.


 


“Stock
Purchase Contract Agent” means U.S. Bank National Association, and any
successor thereto as stock purchase contract agent under the Stock Purchase
Contract Agreement.


 


“Stock
Purchase Contract Agreement” means the Stock Purchase Contract Agreement,
dated as of the date hereof, between the Sponsor and the Stock Purchase
Contract Agent.


 


“Stock
Purchase Date” has the meaning set forth in the Stock Purchase Contract
Agreement.


 


“Successful”
means, as to a Remarketing, that the Remarketing is conducted in accordance
with Article XIII and the Remarketing Agent finds buyers for all Trust
Preferred Securities offered in the Remarketing by 4:00 PM, New York City time,
on the Remarketing Date.


 


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


 


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


 


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


 


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


 


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


 


“Supplemental
Indenture” means the Twelfth Supplemental Indenture, dated as of May 17,
2007, between Lehman Brothers Holdings Inc. and U.S. Bank National Association,
to the Indenture, as further amended or supplemented from time to time with
respect to the Debentures.


 


“Tangible
Common Stockholders’ Equity Amount” means, as of any quarter end and
subject to the adjustments below, the Sponsor’s common stockholders’ equity
minus identifiable intangible assets and goodwill, in each case as reflected on
the company’s consolidated GAAP balance sheets as of such quarter end.


 


All financial
terms in the preceding paragraph and in the definition of “Trailing Two
Quarters Consolidated Net Income Amount” below shall be determined in
accordance with GAAP as applied to and reflected in the Company’s consolidated
financial statements as of the relevant dates, except (i) that the Company’s
common stockholders’ equity and consolidated net income at any date and for any
period shall be adjusted to exclude extraordinary items, unusual 


 


9

















 


items and infrequently
occurring items as defined in Accounting Principles Bulletin 30, goodwill
impairment as defined in Financial Accounting Standards Board Statements of
Financial Accounting Standards No. 142 and amounts relating to discontinued
operations as defined in Financial Accounting Standards Board Statements of
Financial Accounting Standards No. 144 or, in ech case, in any successor
accounting bulletins or statements and (ii) as provided in the next sentence.
If because of a change in GAAP that results in a cumulative effect of a change
in accounting principle or a restatement, either (i) the Company’s consolidated
net income is higher or lower than it would have been absent such change, then,
for purposes of calculating the calculations described in “Early Remarketing
Event,” commencing with the fiscal quarter for which such changes in GAAP
becomes effective, such consolidated net income shall be calculated on a pro
forma basis as if such changes had not occurred; or (ii) the Tangible Common
Stockholders’ Equity Amount as of a fiscal quarter end is higher or lower than
it would have been absent such change, then, for purposes of the calculations
described in the preceding paragraph, the Tangible Common Stockholders’ Equity
Amount shall be calculated on a pro forma basis as if such change had not
occurred.


 


“Trailing
Two Quarters Consolidated Net Income Amount” means, as of the last day of
any fiscal quarter, the sum of the Sponsor’s consolidated net income for the
two fiscal quarters ending as of the last day of such fiscal quarter.


 


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


 


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


 


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


 


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


 


“Trust
Enforcement Event” means (i) a default by the Company in respect of any of
its obligations under the Guarantee or (ii) an Indenture Event of Default.


 


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


 


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


 


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


 


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


 


“Trustee”
or “Trustees” means each Person who has signed this Declaration of Trust
as a trustee, so long as such Person shall continue as a trustee in accordance
with the terms 


 


10

















 


hereof,
and all other Persons who may from time to time be duly appointed, qualified
and serving as Trustees in accordance with the provisions hereof, and
references herein to a Trustee or the Trustees shall refer to such Person or
Persons solely in their capacity as trustees hereunder.


 


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


 


“Underwriters”
means the underwriters named in Schedule II to the Underwriting Agreement.


 


“Underwriting
Agreement” means the underwriting agreement by and among the Sponsor, the
Trust and Lehman Brothers Inc. as representative of the Underwriters, dated as
of May 8, 2007.


 


11

















 


ARTICLE II


 


TRUST INDENTURE ACT


 


SECTION 2.1.                                                                   Trust
Indenture Act; Application.


 


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


 


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


 


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


 


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


 


SECTION 2.2.                                                                   Lists
of Holders of Trust Securities.


 


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


 


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


 


SECTION 2.3.                                                                   Reports
by the Property Trustee.


 


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


 


12

















 


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


 


SECTION 2.4.                                                                   Periodic
Reports to Property Trustee.


 


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


 


SECTION 2.5.                                                                   Evidence
of Compliance with Conditions Precedent.


 


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


 


SECTION 2.6.                                                                   Trust
Enforcement Events; Waiver.


 


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


 


(i)            is not waivable
under the Indenture, the Trust Enforcement Event under the Declaration shall
also not be waivable; or


 


(ii)           requires the
consent or vote of the Holders of greater than a simple majority in principal
amount of the Debentures (a “Super Majority”) to be waived under the Indenture,
the related Trust Enforcement Event under the Declaration may only be waived by
the vote or written consent of the Holders of at least the proportion in
liquidation amount of the Trust Preferred Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding.


 


The foregoing
provisions of this Section 2.6(a) shall be in lieu of Section 316(a)(1)(B) of
the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture
Act is hereby expressly excluded from this Declaration of Trust and the Trust
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Trust Enforcement Event with respect to
the Trust Preferred Securities arising therefrom shall be deemed to have been
cured, for every purpose of this Declaration of Trust, but no such waiver shall
extend to any subsequent or other default or Trust Enforcement Event with
respect to the Trust Preferred Securities or impair any right consequent
thereon. Any waiver by the Holders of the Trust Preferred Securities of Trust
Enforcement Events with respect to the Trust Preferred Securities shall also be
deemed to constitute a waiver by the Holders of the Trust Common Securities of
any such Trust Enforcement Event with respect to the Trust Common Securities
for 


 


13

















 


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


 


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


 


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


 


(ii)           requires the
consent or vote of a Super Majority to be waived under the Indenture, except
where the Holders of the Trust Common Securities are deemed to have waived such
Trust Enforcement Event under the Declaration as provided below in this Section
2.6(b), the Trust Enforcement Event under the Declaration may only be waived by
the vote or written consent of the Holders of at least the proportion in
liquidation amount of the Trust Common Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding;


 


provided
further, each Holder of Trust Common Securities shall
be deemed to have waived any such Trust Enforcement Event and all Trust
Enforcement Events with respect to the Trust Common Securities and its
consequences until all Trust Enforcement Events with respect to the Trust
Preferred Securities have been cured, waived or otherwise eliminated, and until
such Trust Enforcement Events have been so cured, waived or otherwise
eliminated, the Property Trustee shall be deemed to be acting solely on behalf
of the Holders of the Trust Preferred Securities and only the Holders of the
Trust Preferred Securities shall have the right to direct the Property Trustee
in accordance with the terms of the Trust Securities. The foregoing provisions
of this Section 2.6(b) shall be in lieu of Sections 316(a) (1) (A) and
316(a)(1)(B) of the Trust Indenture Act and such Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act are hereby expressly excluded from this
Declaration of Trust and the Trust Securities, as permitted by the Trust
Indenture Act. Subject to the foregoing provisions of this Section 2.6(b), upon
such waiver, any such default shall cease to exist and any Trust Enforcement
Event with respect to the Trust Common Securities arising therefrom shall be
deemed to have been cured for every purpose of this Declaration of Trust, but
no such waiver shall extend to any subsequent or other default or Trust
Enforcement Event with respect to the Trust Common Securities or impair any
right consequent thereon.


 


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


 


14

















 


SECTION 2.7.                                                                   Trust
Enforcement Event; Notice.


 


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


 


(b)           The Property Trustee shall not be
deemed to have knowledge of any default except:


 


(i)            a default under
Section 501(1) of the Indenture; or


 


(ii)           any default as to
which the Property Trustee shall have received written notice or of which a
Responsible Officer of the Property Trustee charged with the administration of
this Declaration of Trust shall have actual knowledge.


 


15

















 


ARTICLE III



ORGANIZATION


 


SECTION 3.1.                                                                   Name.


 


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


 


SECTION 3.2.                                                                   Office.


 


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


 


SECTION 3.3.                                                                   Purpose.


 


The
exclusive purposes and functions of the Trust are (a) to issue and sell Trust
Securities in exchange for the Debentures, and (b) except as otherwise limited
herein, to engage in only those other activities necessary or incidental
thereto. The Trust shall not borrow money, issue debt or reinvest proceeds
derived from investments, pledge any of its assets, or otherwise undertake (or
permit to be undertaken) any activity that would cause the Trust not to be
classified for United States federal income tax purposes as a grantor trust.


 


By
the acceptance of this Trust, the Trustees, the Sponsor, the Holders of the
Trust Preferred Securities and Trust Common Securities agree to treat the Trust
as a grantor trust for United States federal income tax purposes and not to
take any position that is contrary to such classification.


 


SECTION 3.4.                                                                   Authority.


 


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


 


(b)           Except as expressly set forth in this
Declaration and except if a meeting of the Regular Trustees is called with
respect to any matter over which the Regular Trustees have 


 


16

















 


power to act, any power of the
Regular Trustees may be exercised by, or with the consent of, any one such
Regular Trustee.


 


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


 


(d)           A Regular Trustee may, by power of
attorney consistent with applicable law, delegate to any other natural person
over the age of 21 his or her power for the purposes of signing any documents
which the Regular Trustees have power and authority to cause the Trust to
execute pursuant to Section 3.6; provided that such natural person is a
U.S. Person.


 


SECTION 3.5.                                                                   Title
to Property of the Trust.


 


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


 


SECTION 3.6.                                                                   Powers
and Duties of the Regular Trustees.


 


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


 


(a)           to establish the terms and form of
the Trust Preferred Securities and the Trust Common Securities in the manner
specified in Section 7.1(a) and issue and sell the Trust Preferred Securities
and the Trust Common Securities in accordance with this Declaration of Trust; provided,
however, that the Trust may issue no more than one series of Trust
Preferred Securities and no more than one series of Trust Common Securities; provided,
further, that there shall be no interests in the Trust other than the
Trust Securities, and the issuance of Trust Securities shall be limited to a
one-time, simultaneous issuance of both Trust Preferred Securities and Trust
Common Securities on the Closing Date;


 


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


 


(i)            execute and file an
application, prepared by the Sponsor, to The New York Stock Exchange or any
other national stock exchange or the NASDAQ Stock Market for listing of any Trust
Preferred Securities, the Guarantee and the Debentures;


 


(ii)           issue the Trust
Preferred Securities in exchange for the Debentures and to take any action as
may be necessary or desirable in connection with the consummation of the
Underwriting Agreement and the Remarketing Agreement;


 


17

















 


(iii)          cause the Trust to
execute, deliver and perform its obligations under Remarketing Agreements
entered into pursuant to Article XIII and, except as otherwise expressly provided
in Article XIII, causing the Trust to take such actions with respect to
Remarketings as are provided for in Article XIII or as may be necessary or, as
determined by the Regular Trustees, useful in connection with Remarketings;


 


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


 


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


 


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


 


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


 


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


 


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


 


(f)            to give prompt written notice to the
Holders of the Trust Securities of any notice received from the Company of its
election to defer payments of interests on the Debentures by extending the
interest payment period under the Debentures as authorized by the Indenture;


 


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


 


(h)           to bring or defend, pay, collect,
compromise, arbitrate, resort to legal action, or otherwise adjust claims or
demands of or against the Trust (“Legal Action”), unless 


 


18

















 


pursuant to Section 3.8(h), the
Property Trustee has the exclusive power to bring such Legal Action;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(ii)           causing the Trust
to be classified as a grantor trust for United States federal income tax
purposes; and


 


(iii)          cooperating with
the Sponsor as the issuer of the Debentures to ensure that the Debentures will
be treated as indebtedness of the Sponsor for United States federal income tax
purposes;


 


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


 


19

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(iv)          make any loans or
incur any indebtedness or acquire any securities other than the Debentures;


 


(v)           possess any power or
otherwise act in such a way as to vary the Trust assets;


 


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


 


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


 


(viii)        other than as
provided in this Declaration or by the terms of the Trust Securities, (A)
direct the time, method and place of exercising any trust or power conferred
upon the Indenture 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 


 


20

















 


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 an opinion of counsel to the effect that such modification will not cause
more than an insubstantial risk that the Trust will be deemed an Investment
Company required to be registered under the Investment Company Act, or the
Trust will be classified as other than a grantor trust for United States
federal income tax purposes;


 


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


 


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


 


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


 


SECTION 3.8.                                                                   Powers
and Duties of the Property Trustee.


 


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


 


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


 


(c)           The Property Trustee shall:


 


(i)            establish and maintain
a segregated non-interest bearing trust account (the “Property Account”)
in the name of and under the exclusive control of the Property Trustee on
behalf of the Holders of the Trust Securities and, upon the receipt of payments
of funds from the Company on the Debentures or the Guarantee, deposit such
funds into the Property Account and make payments to the Holders of the Trust
Preferred Securities and Holders of the Trust Common Securities from the
Property Account in accordance with Sections 7.3 and 8.2. Funds in the Property
Account shall be held uninvested until disbursed in accordance with this
Declaration of Trust. The Property Account shall be an account that is
maintained with a banking institution authorized to exercise corporate trust
powers and having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by Federal or state authority, and the
rating on whose long term unsecured indebtedness is at least equal to the
rating assigned to the Trust Preferred Securities by a “nationally recognized
statistical rating organization”, within the meaning of Rule 436(g)(2) under
the Securities Act; and


 


21

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


The
Property Trustee must exercise the powers set forth in this Section 3.8 in a manner
that is consistent with the purposes and functions of the Trust set out in
Section 3.3, and 


 


22

















 


the
Property Trustee shall have no power to, and shall not, take any action that is
inconsistent with the purposes and functions of the Trust set out in Section
3.3.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


23

















 


remedy
available to the Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under this Declaration of Trust;


 


(iv)          no provision of this
Declaration of Trust shall require the Property Trustee to expend or risk its
own funds or otherwise incur personal financial liability in the performance of
any of its duties or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Declaration
of Trust or indemnity reasonably satisfactory to the Property Trustee against
such risk or liability is not reasonably assured to it;


 


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


 


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


 


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


 


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


 


SECTION 3.10.                                                             Certain
Rights of Property Trustee.


 


(a)           Subject to the provisions of Section
3.9:


 


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


 


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


 


(iii)          whenever in the
administration of this Declaration of Trust, the Property Trustee shall deem it
desirable that a matter be proved or established before taking, 


 


24

















 


suffering or
omitting any action hereunder, the Property Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers’ Certificate which, upon receipt
of such request, shall be promptly delivered by the Sponsor or the Regular
Trustees;


 


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


 


(v)           the Property Trustee
may consult with counsel or other experts and the advice or opinion of such
counsel and experts with respect to legal matters or advice within the scope of
such experts’ area of expertise shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with such advice or opinion and such counsel
may be counsel to the Sponsor or any of its Affiliates, and may include any of
its employees. The Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Declaration of Trust from
any court of competent jurisdiction;


 


(vi)          the Property Trustee
shall be under no obligation to exercise any of the rights or powers vested in
it by this Declaration of Trust at the request or direction of any Holder
unless such Holder shall have provided to the Property Trustee security and
indemnity, reasonably satisfactory to the Property Trustee, against the costs,
expenses (including attorneys’ fees and expenses and the expenses of the
Property Trustee’s agents, nominees or custodians) and liabilities that might
be incurred by it in complying with such request or direction, including such
reasonable advances as may be requested by the Property Trustee; provided
that nothing contained in this Section 3.10(a)(vi) shall be taken to relieve
the Property Trustee, upon the occurrence of a Trust Enforcement Event, of its
obligation to exercise the rights and powers vested in it by this Declaration
of Trust;


 


(vii)         the Property Trustee
shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Property Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit;


 


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


 


(ix)           any action taken by
the Property Trustee or its agents hereunder shall bind the Trust and the
Holders of the Trust Securities, and the signature of the Property Trustee or
its agents alone shall be sufficient and effective to perform any such action
and 


 


25

















 


no third party
shall be required to inquire as to the authority of the Property Trustee to so
act or as to its compliance with any of the terms and provisions of this
Declaration of Trust, both of which shall be conclusively evidenced by the
Property Trustee’s or its agent’s taking such action;


 


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


 


(xi)           except as otherwise
expressly provided by this Declaration of Trust, the Property Trustee shall not
be under any obligation to take any action that is discretionary under the
provisions of this Declaration of Trust;


 


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


 


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


 


(xiv)        the Property Trustee
shall not be charged with knowledge of a Trust Enforcement Event unless a
Responsible Officer of the Property Trustee obtains actual knowledge of such
event or the Property Trustee received written notice of such event from
Holders holding more than a Majority in Liquidation Amount of the Trust
Preferred Securities; and


 


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


 


(b)           No provision of this Declaration of
Trust shall be deemed to impose any duty or obligation on the Property Trustee
to perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it, in any jurisdiction in which it shall be 


 


26

















 


illegal, or in which the
Property Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts, or to exercise any such right,
power, duty or obligation. No permissive power or authority available to the
Property Trustee shall be construed to be a duty.


 


SECTION 3.11.                                                             Delaware
Trustee.


 


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


 


SECTION 3.12.                                                             Execution
of Documents.


 


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


 


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


 


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


 


SECTION 3.14.                                                             Duration
of Trust.


 


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


 


SECTION 3.15.                                                             Mergers.


 


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


 


(b)           The Trust may, at the request of the
Sponsor and with the consent of the Regular Trustees or, if there are more than
two, a majority of the Regular Trustees and without the consent of the Holders
of the Trust Securities, the Delaware Trustee or the Property Trustee, 


 


27

















 


consolidate, amalgamate, merge
with or into, or be replaced by or convey, transfer or leave its properties
substantially as an entirety to a trust organized as such under the laws of any
State of the United States; provided that:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(B)           following such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
the Trust (or the Successor Entity) shall not be required to register as an
investment company under the Investment Company Act; and


 


28














(C)           following such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
the Trust (or the Successor Entity) shall not be classified as other than a
grantor trust for United States federal income tax purposes.


 


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


 


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


 


(c)           Notwithstanding
Section 3.15(b), the Trust shall not, except with the consent of Holders of
100% in aggregate liquidation amount of the Trust Preferred Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to,
any other entity or permit any other entity to consolidate, amalgamate, merge
with or into, or replace it if such consolidation, amalgam­ation, merger,
replacement conveyance, transfer or lease would cause the Trust or Successor
Entity to be classified as other than a grantor trust for United States federal
income tax purposes.


 


SECTION
3.16.                                    Property Trustee May File Proofs of Claim.


 


In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other similar judicial proceeding
relative to the Trust or any other obligor upon the Trust Securities or the
property of the Trust or of such other obligor or their creditors, the Property
Trustee (irrespective of whether any distributions on the Trust Securities
shall then be due and payable as therein expressed or by declaration or otherwise
and irrespective of whether the Property Trustee shall have made any demand on
the Trust for the payment of any past due distributions) shall be entitled and
empowered, to the fullest extent permitted by law, by intervention in such
proceeding or otherwise:


 


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


 


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


 


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


 


29

















 


reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel, and
any other amounts due the Property Trustee.


 


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


 


30

















 


ARTICLE
IV



SPONSOR


 


SECTION 4.1.                                          Responsibilities of the Sponsor.


 


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


 


(a)           to negotiate the
terms of an underwriting agreement providing for the sale of the Trust
Preferred Securities to the underwriters in connection with the issuance of
Mandatory Capital Advantages Preferred Securities;


 


(b)           to register the
Trust Preferred Securities under the Securities Act and under state securities
or blue sky laws and the qualification of this Declaration of Trust as a trust
indenture under the Trust Indenture Act;


 


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


 


(d)           to list the Trust
Preferred securities upon such national securities exchange of exchanges, if
any, and to register the Trust Preferred Securities under the Exchange Act, if
required, and prepare for filing by the Trust with the Commission a
registration statement on Form 8-A, including any amendments thereto.


 


SECTION 4.2.              Indemnification
and Fees and Expenses of the Trustees


 


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


 


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


 


31

















 


ARTICLE
V



TRUST COMMON SECURITIES HOLDER


 


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


 


On the Closing Date, the
Company shall receive all of the Trust Common Securities and all of the Trust
Preferred Securities issued by the Trust in exchange for the Debentures issued
to the Trust by the Company.  The Trust
Common Securities will be issued in an amount equal to $1,000.


 


SECTION
5.2.                                          Covenants of the Trust Common Securities
Holder.


 


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


 


32

















 


ARTICLE
VI



TRUSTEES


 


SECTION
6.1.                                          Number of Trustees.


 


The number of Trustees
initially shall be five, and:


 


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


 


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


 


(c)           at all times, either
or both of the Property Trustee or the Delaware Trustee must be (i) a bank as
defined in Section 581 of the Code or (ii) a U.S. government-owned agency or
U.S. government sponsored enterprise.


 


SECTION
6.2.                                          Delaware Trustee.


 


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


 


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


 


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


 


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


 


SECTION
6.3.                                          Property Trustee; Eligibility.


 


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


 


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


 


33

















 


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


 


Pursuant to the Original Declaration of
Trust, JPMorgan Chase Bank, N.A. was named Property Trustee. Effective
immediately prior to the issuance of the Trust Securities, U.S. Bank National
Association is hereby appointed by the Sponsor as Property Trustee. 


 


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


 


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


 


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


 


(e)           Nothing herein shall prevent the Trustee from filing with
the Commission the application referred to in the penultimate paragraph of
Section 310(b) of the Trust Indenture Act.


 


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


 


Each Regular Trustee and the
Delaware Trustee (unless the Property Trustee also acts as Delaware Trustee)
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more Authorized Officers.


 


34

















 


SECTION
6.5.                                          Regular Trustees.


 


(a)           Pursuant
to the Original Declaration of Trust, Jeffrey A. Welikson, Barrett S. DiPaolo
and Oliver Budde were named as the Regular Trustees. Effective immediately
prior to the issuance of the Trust Securities, Barrett S. DiPaolo, James
Killerlane and Andrew Yeung are hereby appointed by the Sponsor as the Regular
Trustees.


 


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


 


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


 


SECTION
6.6.                                          Delaware Trustee.


 


Pursuant to the Original
Declaration of Trust, J.P.Morgan Chase Bank, N.A. was named Delaware Trustee.
Effective immediately prior to the issuance of the Trust Securities, U.S. Bank
Trust National Association is hereby appointed by the Sponsor as Delaware
Trustee.


 


SECTION 6.7.                                          Appointment, Removal and Resignation of
Trustees.


 


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


 


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


 


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


 


(iii)          after the issuance
of the Trust Preferred Securities and the occurrence of an Indenture Event of
Default, by vote of the Holders of a Majority in Liquidation Amount of the
Trust Preferred Securities.


 


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


 


(c)           The
Trustee that acts as Delaware Trustee shall not be removed in accordance with
Section 6.7(a) until a successor Trustee possessing the qualifications to act
as


 


35

















 


Delaware
Trustee under Sections 6.2 and 6.4 (a “Successor Delaware Trustee”) has
been appointed and has accepted such appointment by written instrument executed
by such Successor Delaware Trustee and delivered to the Regular Trustees and
the Sponsor.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


36

















 


SECTION
6.8.                                          Vacancies among Trustees.


 


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


 


SECTION
6.9.                                          Effect of Vacancies.


 


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


 


SECTION
6.10.                                    Meetings.


 


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


 


SECTION
6.11.                                    Delegation of Power.


 


(a)           Any
Regular Trustee may, by power of attorney consistent with applicable law,
delegate to any other natural person over the age of 21 his or her power for
the purpose of executing any documents contemplated in Section 3.6, including
any registration statement or amendment thereto filed with the Commission, or
making any other governmental filing; provided that such person is a
U.S. Person; and


 


37

















 


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


 


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


 


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


 


38

















 


ARTICLE
VII


 


TERMS
OF SECURITIES


 


SECTION 7.1.                                          General Provisions Regarding Securities.


 


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


 


(i)            Trust Preferred
Securities. 500,000 Trust Preferred Securities of the Trust with an
aggregate liquidation amount with respect to the assets of the Trust of $1,000
per Trust Preferred Security are hereby designated for the purposes of
identification only as Trust Preferred Securities (the “Trust Preferred
Securities”). The Trust Preferred Securities shall have an aggregate
liquidation amount not greater than $500,000,000.  The Trust Preferred Securities may be issued
in the form of one or more Global Certificates or in fully registered,
definitive form as set forth in Section 7.12 hereof.  The Global Trust Preferred Security
Certificates evidencing the Trust Preferred Securities shall be substantially
in the form of Exhibit A-1 to this Declaration of Trust and the Trust Preferred
Securities in registered, definitive form shall be substantially in the form of
Exhibit A-2 to this Declaration of Trust, in each case, with such changes and
additions thereto or deletions therefrom as may be required by ordinary usage,
custom or practice.


 


(ii)           Trust Common
Securities. $1,000 in Trust Common Securities of the Trust are hereby designated
for the purposes of identification only as Trust Common Securities (the “Trust
Common Securities” and, together with the Trust Preferred Securities, the “Trust
Securities”). The Trust Common Security Certificate evidencing the Trust
Common Securities shall be substantially in the form of Exhibit A-3 to this
Declaration of Trust, with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or practice.


 


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


 


39

















 


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


 


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


 


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


 


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


 


(d)           The
Trust Preferred Securities rank pari  passu and payment thereon
shall be made Pro Rata with the Trust Common Securities; provided that
if an Indenture Event of Default shall have occurred and be continuing, (i) no
payment of any distribution on any of the Trust Common Securities shall be made
unless payment in full in cash of the Distributions on all outstanding Trust
Preferred Securities for all quarterly distribution periods terminating on or
prior thereto and (ii) no payment on account of the redemption, liquidation or
other acquisition of Trust Common Securities shall be made unless the full amount
of the Redemption Price for all of the outstanding Trust Preferred Securities
then called for redemption or, in the case of amounts payable upon liquidation
of the Trust in accordance with Section 8.2 hereof, assets in an amount equal
to the Redemption Price for all outstanding Trust Preferred Securities shall
have been made or provided for, and all funds available to the Property Trustee
shall first be applied to the payment in full of, or the Redemption Price of,
or all liquidation amounts on the Trust Preferred Securities then due and
payable.  


 


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


 


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


 


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


 


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


 


40

















 


SECTION
7.2.                                          Distributions.


 


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



 


(b)           Distributions
on the Trust Securities shall be payable only to the extent that the Trust has
funds available for the payment of such distributions in the Property
Account.  Amounts available to the Trust
for distribution to the Holders of the Trust Securities shall be limited to
payments received by the Trust from the Company on the Debentures and the
Guarantee. If the Property Trustee, as the holder of the Debentures for the
benefit of the Holders of the Trust Securities, receives notice of any
determination by the Company to defer interest on such Debentures, the Property
Trustee shall give notice of such determination to the Holders promptly.


 


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


 


(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 among the Holders of the Trust Securities.


 


SECTION
7.3.                                          Redemption of Trust Securities.


 


(a)           Upon
a redemption for cash of the Debentures by the Company, the proceeds from such
redemption shall be simultaneously applied on a Pro Rata basis, except as
otherwise provided in Section 7.1(d), to redeem Trust Securities having an
aggregate liquidation amount equal to the aggregate liquidation preference of
the Debentures so redeemed, at the Redemption Price on a Pro Rata basis.  Holders shall be given not less than 30 nor
more than 60 days’ notice of such redemption.


 


41

















 


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


 


SECTION
7.4.                                          Redemption Procedures.


 


(a)           Notice
of any redemption of the Trust Securities (a “Redemption Notice”) shall
be given by the Trust by mail to each Holder of Trust Securities to be redeemed
not fewer than 30 nor more than 60 days before the date fixed for redemption of
the Debentures. For purposes of the calculation of the date of redemption and
the date on which notices are given pursuant to this Section 7.4, a Redemption
Notice shall be deemed to be given on the day such notice is first mailed by
first-class mail, postage prepaid, to Holders of Trust Securities. Each
Redemption Notice shall be addressed to the Holders of Trust Securities at the
address of each such Holder appearing in the books and records of the Trust. No
defect in the Redemption Notice or in the mailing of either thereof with
respect to any Holder shall affect the validity of the redemption proceedings
with respect to any other Holder.


 


(b)           In
the event that fewer than all the outstanding Trust Securities are to be
redeemed, the Trust Securities to be redeemed shall be redeemed Pro Rata from
each Holder of Trust Securities; provided that in respect of Trust
Preferred Securities registered in the name of and held of record by DTC or its
nominee (or any successor Depositary or its nominee) or any nominee, the
distribution of the proceeds of such redemption shall be made to each
Participant (or Person on whose behalf such nominee holds such securities) in
accordance with the procedures applied by such agency or nominee. The Trust may
not redeem the Trust Securities in part unless all accumulated and unpaid
distributions to the date of redemption have been paid in full on all Trust
Securities then outstanding.  For all
purposes of this Declaration of Trust, unless the context otherwise requires,
all provisions relating to the redemption of Trust Preferred Securities shall
relate, in the case of any Trust Preferred Security redeemed or to be redeemed
only in part, to the portion of the aggregate liquidation amount of Trust
Preferred Securities that has been or is to be redeemed.


 


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


 


42

















 


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


 


Neither the Regular Trustees
nor the Trust shall be required to register or cause to be registered the
transfer of any Trust Securities that have been called for redemption, except
in the case of any Trust Securities being redeemed in part, any portion thereof
not to be redeemed.


 


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


 


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


 


(b)           The
Holders of a Majority in liquidation amount of the Trust Preferred Securities
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or direct the
exercise of any trust or power conferred upon the Property Trustee under this
Declaration of Trust, including the right to direct the Property Trustee, as
Holder of the Debentures, to (i) exercise the remedies available to it under
the Indenture as a Holder of the Debentures, including the right to enforce (x)
the Company’s creditors rights and other rights with respect to the Debentures,
(y) the rights of the Holders of the Debentures under the Indenture and (z) the
rights of the Holders of the Debentures to receive interest payments on the
Debentures; (ii) consent to any amendment, modification, or termination of the
Indenture or the Debentures where such consent shall be required or
(iii) waive any past default and its consequences that is waivable under
Section 513 of the Indenture; provided, however, that if an Indenture Event of
Default has occurred and is continuing, then the Holders of 25% of the
aggregate liquidation amount of the Trust Preferred Securities may direct the
Property Trustee to declare the principal of and interest on the Debentures due
and payable; provided, further, that where a consent or action under the
Indenture would require the consent or act of the Holders of more than a
majority of the aggregate principal amount of Debentures affected thereby, only
the Holders of the percentage of


 


43

















 


the
aggregate stated liquidation amount of the Trust Preferred Securities which is
at least equal to the percentage required under the Indenture may direct the
Property Trustee to give such consent to take such action.


 


(c)           If
the Property Trustee fails to enforce its rights under the Indenture after a
Holder of record of Trust Preferred Securities has made a written request, such
Holder of record of Trust Preferred Securities may institute a legal proceeding
directly against the Company to (i) enforce the Property Trustee’s rights under
the Indenture or (ii) enforce the Property Trustee’s rights under the
Guarantee, without first instituting any legal proceeding against the Property
Trustee or any other Person or entity. 


 


(d)           Notwithstanding
anything to the contrary in this Declaration of Trust, (i) if the Company fails
to comply with its obligations under the Indenture, including its obligation
under Section 1.7 of the Supplemental Indenture to issue Qualifying APM
Securities (as defined therein), or (ii) if a Trust Enforcement Event has
occurred and is continuing and such event is attributable to the failure of the
Company to pay interest, principal or other required payments on the Debentures
or the Guarantee on the date such interest, principal or other required
payments are otherwise payable, then a Holder of Trust Preferred Securities may
directly institute a proceeding against the Company (a “Direct Action”) for
enforcement of such obligation or payment to such Holder of the principal of or
interest on Debentures or the Guarantee having a principal amount equal to the
aggregate liquidation amount of the Trust Preferred Securities of such Holder
on or after the respective due date specified in the Debentures.


 


(e)           The
Property Trustee shall notify all Holders of the Trust Preferred Securities of
any notice of any Indenture Event of Default received from the Debenture Issuer
with respect to the Debentures.  Such
notice shall state that such Indenture Event of Default also constitutes a
Trust Enforcement Event.  


 


(f)            In
the event that the consent of the Property Trustee, as the Holder of the
Debentures, is required under the Indenture with respect to any amendment,
modification or waiver of the Indenture, the Property Trustee shall request the
direction of the Holders of the Trust Preferred Securities with respect to such
amendment, modification or waiver and shall vote with respect to such
amendment, modification or waiver as directed by not less than 66-2/3% of the
aggregate liquidation amount of the Trust Securities voting together as a
single class; provided, however, that where a consent under the
Indenture would require the consent of the Holders of more than 66-2/3% of the
aggregate principal amount of the Debentures, the Property Trustee may only
give such consent at the direction of the Holders of at least the same
proportion in aggregate stated liquidation amount of the Trust Preferred
Securities.


 


(g)           A
waiver of an Indenture Event of Default with respect to the Debentures shall
constitute a waiver of the corresponding Trust Enforcement Event. 


 


(h)           Any
required approval or direction of Holders of Trust Preferred Securities may be
given at a separate meeting of Holders of Trust Preferred Securities convened
for such purpose, at a meeting of all of the Holders of Trust Securities or
pursuant to written consent. The Regular Trustees shall cause a notice of any
meeting at which Holders of Trust Preferred Securities are entitled to vote, or
of any matter upon which action by written consent of


 


44

















 


such
Holders is to be taken, to be mailed to each Holder of record of Trust
Preferred Securities. Each such notice shall include a statement setting forth
the following information: (i) the date of such meeting or the date by which
such action is to be taken; (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such matter
upon which written consent is sought; and (iii) instructions for the delivery
of proxies or consents.


 


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


 


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


 


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


 


(l)            If
an Indenture Event of Default has occurred and is continuing, the Trustees may
be removed at such time only by a Majority in Liquidation Amount of the Trust
Preferred Securities.


 


SECTION
7.6.                                          Voting and Enforcement Rights of Trust Common
Securities


 


(a)           Except
as provided under Section 6.1, this Section 7.6, Section 11.1 or as otherwise
required by the Statutory Trust Act, the Trust Indenture Act or other
applicable law or provided by the Declaration of Trust, the Holders of the
Trust Common Securities shall have no voting rights.


 


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


 


(c)           Subject
to Section 2.6 hereof and only after all Trust Enforcement Events with respect
to the Trust Preferred Securities have been cured, waived, or otherwise
eliminated, the Holders of a Majority in liquidation amount of the Trust Common
Securities have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Property Trustee, or direct the
exercise of any trust or power conferred upon the Property Trustee under this
Declaration of Trust, including the right to direct the Property Trustee, as
Holder of the Debentures, to (i) exercise the remedies available to it under
the Indenture as a Holder of the Debentures, including (A) the right to enforce
the rights of the Holders of the Debentures under the Indenture or (B) consent
to any amendment, modification or waiver of the Indenture or the


 


45

















 


Debentures
where such consent shall be required or (iii) waive any past default and
its consequences that is waivable under Section 513 of the Indenture; provided,
however, that where a consent or action under the Indenture would require the
consent or act of the Holders of more than a majority of the aggregate
principal amount of Debentures affected thereby, only the Holders of the
percentage of the aggregate stated liquidation amount of the Trust Common
Securities which is at least equal to the percentage required under the
Indenture may direct the Property Trustee to have such consent or take such
action.


 


(d)           If
the Property Trustee fails to enforce its rights under the Indenture after a
Holder of record of Trust Common Securities has made a written request (and is
permitted to do so pursuant to Section 7.6(c)), such Holder of record of Trust
Common Securities may directly institute a legal proceeding directly against
the Company, to enforce the Property Trustee’s rights under the Indenture
without first instituting any legal proceed­ing against the Property Trustee or
any other Person or entity. In addition, if a Trust Enforcement Event has
occurred and is continuing and such event is attributable to the failure of the
Company to make any required payment when due on the Debentures or on the
Guarantee, then a Holder of Trust Common Securities may directly institute a
proceeding against the Company for enforcement of payment with respect to such
Debentures or the Guarantee.   


 


(e)           A
waiver of an Indenture Event of Default with respect to the Debentures shall
constitute a waiver of the corresponding Trust Enforcement Event.


 


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


 


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


 


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


 


46

















 


SECTION
7.7.                                          Paying Agent and Security Registrar.


 


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


 


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


 


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


 


SECTION
7.8.                                          Certificates of Trust Securities.


 


(a)           The
Trust Preferred Securities may be issued in the form of one or more Global
Certificates or in fully registered, definitive form as set forth in Section
7.12 hereof.  If the Trust Preferred
Securities are to be issued in the form of one or more Global Certificates,
then the Regular Trustee on behalf of the Trust shall execute and the Property
Trustee shall authenticate and deliver one or more Global Certificates that (i)
shall represent and shall be denominated in an amount equal to the aggregate
liquidation amount of all of the Trust Preferred Securities to be issued in the
form of Global Certificates and not yet cancelled, (ii) shall be registered in
the name of the Depositary for such Global Certificate or Trust Preferred
Securities or the nominee of such Depositary, and (iii) shall be delivered by
the Property Trustee to such Depositary or pursuant to such Depositary’s
instructions.  Global Certificates shall
bear a legend as set forth in Section 7.12 hereof.


 


(b)           Trust
Preferred Securities Certificates that are no longer a component of Normal
MCAPS and are released from the Collateral Account will be issued in the form
of a Trust Preferred Security Certificate or Certificates representing a
book-entry Trust Preferred Security Certificate, to be delivered to, or on
behalf of the Depositary, by, or on behalf of, the Trust.  Such Trust Preferred Security Certificate or
Certificates shall initially be registered on the Securities Register in the
name of Cede & Co., the nominee of the Depositary, and no Holder will
receive a Trust Preferred Security Certificate in definitive form representing
such Holder’s interest in such Trust Preferred Securities, except as provided
in Sections 7.8(e) and 7.8(f).


 


47

















 


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


 


(d)           Trust
Preferred Securities not represented by a Global Certificate issued in exchange
for all or a part of a Global Certificate pursuant to Section 7.12 hereof shall
be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its Participant or Indirect
Participants or otherwise, shall instruct the Property Trustee.  Upon execution and authentication, the
Property Trustee shall deliver such Trust Preferred Securities not represented
by a Global Certificate to the Persons in whose names such definitive Trust
Preferred Securities are so registered in the form of Trust Preferred
Securities Certificates.


 


(e)           If
at any time the Depositary for any Trust Preferred Securities represented by
one or more Global Certificates notifies the Trust that it is unwilling or
unable to continue as Depositary for such Trust Preferred Securities or if at
any time the Depositary for such Trust Preferred Securities shall no longer be
eligible under this Section 7.8, the Trust shall appoint a successor Depositary
with respect to such Trust Preferred Securities.  If a successor Depositary for such Trust
Preferred Securities is not appointed by the Trust within 90 days after the
Trust receives such notice or becomes aware of such ineligibility, the Trust’s
election that such Trust Preferred Securities be represented by one or more
Global Certificates shall no longer be effective and the Trust shall execute,
and the Property Trustee shall authenticate and deliver, Trust Preferred Securities
in definitive registered form, in any authorized denominations, in an aggregate
liquidation amount equal to the principal amount of the Global Certificate or
Trust Preferred Securities representing such Trust Preferred Securities in
exchange for such Global Certificate or Trust Preferred Securities.


 


(f)            The
Trust may at any time and in its sole discretion determine that the Preferred
Securities issued in the form of one or more Global Certificates shall no
longer be represented by a Global Certificate or Trust Preferred
Securities.  In such event the Trust
shall execute, and the Property Trustee shall authenticate and deliver, Trust
Preferred Securities in definitive registered form, in any authorized
denominations, in an aggregate liquidation amount equal to the principal amount
of the Global Certificate or Trust Preferred Securities representing such
Preferred Securities, in exchange for such Global Certificate or Trust
Preferred Securities.


 


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


 


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


 


48

















 


SECTION 7.9.                                          Transfer of Trust Securities.


 


(a)           Trust
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.  Any transfer or purported transfer
of any Security not made in accordance with this Declaration shall be null and
void.


 


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


 


(c)           The
Trust shall cause to be kept at the Corporate Trust Office of the Property
Trustee a register (the register maintained in such office being herein
sometimes referred to as the “Security Register”) in which, subject to such
reasonable regulations as it may prescribe, the Trust shall provide for the
registration of Trust Preferred Securities and of transfers of Trust Preferred
Securities.  The Property Trustee is
hereby appointed “Security Registrar” for the purpose of registering Trust
Preferred Securities and transfers of Trust Preferred Securities as herein
provided.


 


(d)           Upon
surrender for registration of transfer of any Trust Security at an office or
agency of the Trust designated for such purpose, the Trust shall execute, and
the Property Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of any
authorized denominations and of a like aggregate principal amount.


 


(e)           At
the option of the Holder, Trust Securities may be exchanged for other Trust
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Trust Securities to be exchanged at such office
or agency.  Whenever any Trust Securities
are so surrendered for exchange, the Trust shall execute, and in the case of Trust
Preferred Securities the Property Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.


 


(f)            Every
Trust Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Trust or the Property Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Trust and the Trust Security Registrar duly executed, by
the Holder thereof or his attorney duly authorized in writing.


 


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


 


(h)           If
the Trust Securities are to be redeemed in part, the Trust shall not be
required (A) to issue, register the transfer of or exchange any Trust
Securities during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of any such Securities selected
for redemption under Section 7.4 and ending at the close of business on the day
of such mailing, or (B) 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.


 


49

















 


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


 


If:


 


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


 


(b)           there
shall be delivered to the Regular Trustees such security or indemnity as may be
required by them to keep each of the Trustees, the Sponsor and the Trust
harmless, then, in the absence of notice that such Certificate shall have been
acquired by a protected purchaser, any Regular Trustee on behalf of the Trust
shall execute and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like
denomination.  In connection with the
issuance of any new Certificate under this Section 7.10, each of the Trustees
or the Regular Trustees may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection
therewith.  Any duplicate Certificate
issued pursuant to this Section shall constitute conclusive evidence of an
ownership interest in the relevant Trust Securities, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.


 


SECTION 7.11.                                    Deemed Security Holders.


 


The Trustees may treat the
Person in whose name any Certificate shall be registered on the register of the
Trust as the sole holder of such Certificate and of the Trust 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 shall have actual or other notice thereof.


 


SECTION
7.12.                                    Global Securities.


 


The Trust Preferred
Securities will initially be issued in the form of definitive certificates
registered in the name of the Stock Purchase Contract Agent. To the extent that
Holders of Normal MCAPS create Treasury MCAPS and hold their Trust Preferred
Securities separately, such Trust Preferred Securities may be issued in the
form of one or more Global Securities. 
If Trust Preferred Securities are to be issued in the form of one or
more Global Securities, then the Regular Trustee on behalf of the Trust shall
execute and the Property Trustee shall authenticate and deliver one or more
Global Securities that (i) shall represent and shall be denominated in an
amount equal to the aggregate liquidation amount of all of the Preferred
Securities to be issued in the form of Global Securities and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Global Security
or Trust Preferred Securities or the nominee of such Depositary, and (iii)
shall be delivered by the Property Trustee to such Depositary or pursuant to
such Depositary’s instructions.  Global
Securities shall bear a legend substantially to the following effect:


 


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


 


50

















 


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


 


Trust Preferred Securities
not represented by a Global Security issued in exchange for all or a part of a
Global Security pursuant to this Section 7.12 shall be registered in such names
and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Property Trustee.  Upon
execution and authentication, the Property Trustee shall deliver such Trust
Preferred Securities not represented by a Global Security to the Persons in
whose names such definitive Trust Preferred Securities are so registered.


 


At such time as all
interests in Global Securities have been redeemed, repurchased or cancelled,
such Global Securities shall be, upon receipt thereof, cancelled by the Property
Trustee in accordance with standing procedures of the Depositary.  At any time prior to such cancellation, if
any interest in Global Securities is exchanged for Trust Preferred Securities
not represented by a Global Security, redeemed, cancelled or transferred to a
transferee who receives Trust Preferred Securities not represented by a Global
Security therefor or any Trust Preferred Security not represented by a Global
Security is exchanged or transferred for part of Global Securities, the principal
amount of such Global Securities shall, in accordance with the standing
procedures of the Depositary, be reduced or increased, as the case may be, and
an endorsement shall be made on such Global Securities by the Property Trustee
to reflect such reduction or increase.


 


While the Trust Preferred
Securities are held in the form of Global Securities, Trust and the Property
Trustee may for all purposes, including the making of payments due on the Trust
Preferred Securities, deal with the Depositary as the authorized representative
of the Holders for the purposes of exercising the rights of Holders
hereunder.  The rights of the owner of
any beneficial interest in a Global Security shall be limited to those
established by law and agreements between such owners and depository
participants or Euroclear and Clearstream Banking; provided that no such
agreement shall give any rights to any Person against the Trust or the Property
Trustee without the written consent of the parties so affected.  Multiple requests and directions from and
votes of the Depositary as holder of Trust Preferred Securities in global form
with respect to any particular matter shall not be deemed inconsistent to the
extent they do not represent an amount of Trust Preferred Securities in excess
of those held in the name of the Depositary or its nominee.


 


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If at any time the
Depositary for any Trust Preferred Securities represented by one or more Global
Securities notifies the Trust that it is unwilling or unable to continue as
Depositary for such Trust Preferred Securities or if at any time the Depositary
for such Trust Preferred Securities shall no longer be eligible under this
Section 7.12, the Trust shall appoint a successor Depositary with respect to
such Preferred Securities.  If a
successor Depositary for such Trust Preferred Securities is not appointed by
the Trust within 90 days after the Trust receives such notice or becomes aware
of such ineligibility, the Trust’s election that such Trust Preferred
Securities be represented by one or more Global Securities shall no longer be
effective and the Trust shall execute, and the Property Trustee will
authenticate and deliver, Trust Preferred Securities in definitive registered
form, in any authorized denominations, in an aggregate liquidation amount equal
to the principal amount of the Global Security or Trust Preferred Securities
representing such Trust Preferred Securities in exchange for such Global
Security or Trust Preferred Securities.


 


The Trust may at any time
and in its sole discretion determine that the Trust Preferred Securities issued
in the form of one or more Global Securities shall no longer be represented by
a Global Security or Trust Preferred Securities.  In such event the Trust shall execute, and
the Property Trustee, shall authenticate and deliver, Trust Preferred
Securities in definitive registered form, in any authorized denominations, in
an aggregate liquidation amount equal to the principal amount of the Global
Security or Preferred Securities representing such Trust Preferred Securities,
in exchange for such Global Security or Preferred Securities.


 


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


 


Interests of beneficial
owners in a Global Security may be transferred or exchanged for Trust Preferred
Securities not represented by a Global Security and Trust Preferred Securities
not represented by a Global Security may be transferred or exchange for Global
Securities in accordance with rules of the Depositary and the provisions of
Section 7.9.


 


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ARTICLE
VIII



DISSOLUTION AND LIQUIDATION OF THE TRUST


 


SECTION 8.1.                                          Dissolution and Termination of Trust.


 


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


 


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


 


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


 


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


 


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


 


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


 


(vi)          upon the election of
the Regular Trustees, following the occurrence and continuation of a Special
Event; provided that the Trust shall have been dissolved and the
Debentures distributed to the Holders of the Trust Securities in exchange for
the Trust Securities; or


 


(vii)         at the Sponsor’s
election by notice and direction to the Property Trustee to distribute the
Debentures to the Holders of the Trust Securities in exchange for all of the
Trust Securities; provided that the Sponsor shall give notice of such election
to the Holders of the Trust Securities at least 10 Business Days prior to such
dissolution.


 


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


 


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


 


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


 


(a)           In
the event of any voluntary or involuntary liquidation, dissolution, winding-up
or termination of the Trust (a “Liquidation”), the Holders of the Trust
Securities on the date of the Liquidation shall be entitled to receive all assets
of the Trust available for


 


53

















 


distribution
to Holders of Trust Securities after satisfaction of the Trust’s liabilities to
creditors, if any, distributions in cash or other immediately available funds
in an amount equal to the aggregate of the stated liquidation amount of $1,000
per Trust Security plus accumulated and unpaid distributions thereon to the
date of payment (such amount being the “Liquidation Distribution”), unless, in
connection with such Liquidation, Debentures in an aggregate stated principal
amount equal to the aggregate stated liquidation amount of, with an interest
rate identical to the distribution rate of, and accrued and unpaid interest equal
to accumulated and unpaid distributions on, such Trust Securities shall be
distributed on a Pro Rata basis to the Holders of the Trust Securities in
exchange for such Trust Securities.


 


(b)           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 the Trust Securities shall be paid on a Pro Rata basis.  The Holders of the Trust Common Securities
will be entitled to receive distributions upon any such Liquidation Pro Rata
with the Holders of the Trust Preferred Securities except that if an Indenture
Event of Default has occurred and is continuing, the Trust Preferred Securities
shall have a preference over the Trust Common Securities with regard to such
distributions.


 


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ARTICLE
IX



LIMITATION OF LIABILITY OF

HOLDERS OF TRUST SECURITIES, TRUSTEES OR OTHERS


 


SECTION
9.1.                                          Liability.


 


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


 


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


 


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


 


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


 


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


 


SECTION
9.2.                                          Exculpation.


 


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


 


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


 


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statements
as to the value and amount of the assets, liabilities, profits, losses, or any
other facts pertinent to the existence and amount of assets from which
distributions to Holders of Trust Securities might properly be paid.


 


SECTION
9.3.                                          Fiduciary Duty.


 


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


 


(b)           Unless
otherwise expressly provided herein:


 


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


 


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


 


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


 


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


 


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


 


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


 


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SECTION 9.4.                                          Indemnification.


 


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


 


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


 


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


 


(iii)          Any indemnification
under paragraphs (i) and (ii) of this Section 9.4(a) (unless ordered by a
court) shall be made by the Sponsor only as authorized in the specific case
upon a determination that indemnification of the Company Indemnified Person is
proper in the circumstances because he has met the applicable standard of
conduct set forth in paragraphs (i) and (ii). Such determination shall be made
(1) by the Regular Trustees by a majority vote of a quorum consisting of such
Regular Trustees who


 


57

















 


were not
parties to such  action, suit or proceeding, (2) if such a quorum is
not obtainable, or, even if obtainable, if a quorum of disinterested Regular
Trustees so directs, by independent legal counsel in a written opinion, or (3)
by the Holder of the Trust Common Securities.


 


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


 


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


 


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


 


(vii)         For purposes of this
Section 9.4(a), references to “the Trust” shall include, in addition to the
resulting or surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a consolidation or merger, so that
any Person


 


58

















 


who is or was
a director, trustee, officer or employee of such constituent entity, or is or
was serving at the request of such constituent entity as a director, trustee,
officer, employee or agent of another entity, shall stand in the same position
under the provisions of this Section 9.4(a) with respect to the resulting or
surviving entity as he would have with respect to such constituent entity if
its separate existence had continued.


 


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


 


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


 


SECTION
9.5.                                          Outside Businesses.


 


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


 


59

















 


ARTICLE
X



ACCOUNTING AND TAX MATTERS


 


SECTION
10.1.                                    Fiscal Year.


 


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


 


SECTION
10.2.                                    Certain Accounting Matters; Returns and
Information.


 


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


 


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


 


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


 


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


 


SECTION
10.3.                                    Banking.


 


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


 


60

















 


SECTION
10.4.                                    Withholding.


 


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


 


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


 


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


 


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ARTICLE
XI



AMENDMENTS AND MEETINGS


 


SECTION 11.1.                                    Amendments of this Declaration of Trust.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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(c)           Any
amendment that would (i) change the amount or timing of any distribution of the
Trust Securities or otherwise adversely affect the amount of any distribution
required to be made in respect of the Trust Securities as of a specified date
or (ii) restrict the right of a Holder of Trust Securities to institute suit
for the enforcement of any such payment on or after such date, may be effected
only with the approval of each of the Holders of the Trust Securities affected
thereby (excluding any Trust Securities held by the Sponsor of any of its
Affiliates).


 


(d)           Any
amendment that would adversely affect the rights, preferences or privileges of
the Trust Securities, including any amendment of this Section 11.1, or (ii)
provide for the dissolution, winding-up or termination of the Trust other than
pursuant to the terms of this Declaration of Trust, may be effected only with
the approval of the Holders of at least 66 2/3% in Liquidation Amount of the
Trust Securities affected thereby (except in the case of an amendment affecting
only Trust Common Securities, excluding any Trust Securities held by the
Sponsor of any of its Affiliates); provided that if any amendment or
proposal referred to in clause (i) hereof would adversely affect only the Trust
Preferred Securities or the Trust Common Securities, then only the affected
class (excluding any Trust Preferred Securities held by the Sponsor of any of
its Affiliates) shall be entitled to vote on such amendment or proposal and
such amendment or proposal shall not be effective except with the approval of
66 2/3% in Liquidation Amount of such class of Trust Securities.


 


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


 


(f)            Article
VI and the rights of the Holders of the Trust Common Securities under Article
VI to increase or decrease the number of, and appoint and remove, Trustees
shall not be amended without the consent of the Holders of 66 2/3%in
Liquidation Amount of the Trust Common Securities.


 


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


 


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


 


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


 


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


 


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


 


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(v)           conform the terms of
this Declaration of Trust to the terms of the Trust Securities as set forth in
the Prospectus dated May 8, 2007 of the Trust and the Company relating to the
Trust Preferred Securities (the “Prospectus”); provided, however,
that in connection with such amendment, each of the Sponsor and the Trust shall
deliver to the Property Trustee an Officers’ Certificate and an opinion of
counsel (who may be counsel to the Sponsor or the Trust), in each case
confirming that such amendment has the effect of conforming the terms of this
Declaration of Trust to the terms of the Trust Securities as set forth in the
Prospectus.


 


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


 


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


 


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


 


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


 


(i)            notice of any such
meeting shall be given to all the Holders of Trust Securities having a right to
vote thereat at least seven days and not more than 60 days before the date of
such meeting. Whenever a vote, consent or approval of the Holders of Trust
Securities is permitted or required under this Declaration of Trust, such vote,
consent or approval may be given at a meeting of the Trust Securities.  Any action that may be taken at a meeting of
the Holders of Trust Securities may be taken without a meeting if a consent in
writing setting forth the action so taken is signed by the Holders


 


64

















 


of Trust
Securities owning not less than the minimum amount of Trust Securities that
would be necessary to authorize or take such action at a meeting at which all
Holders of Trust Securities having a right to vote thereon were present and
voting. Prompt notice of the taking of action without a meeting shall be given
to the Holders of Trust Securities entitled to vote who have not consented in
writing. The Regular Trustees may specify that any written ballot submit­ted to
the Holder for the purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the Regular Trustees;


 


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


 


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


 


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


 


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ARTICLE XII



REPRESENTATIONS OF PROPERTY TRUSTEE

AND DELAWARE TRUSTEE


 


SECTION 12.1.                                    Representations
and Warranties of Property Trustee.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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SECTION 12.2.                                    Representations
and Warranties of Delaware Trustee.


 


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


 


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


 


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


 


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


 


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


 


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ARTICLE XIII



 REMARKETING AND RESET RATE MECHANICS 


 


SECTION 13.1.                                    Obligation
to Conduct Remarketing and Related Requirements


 


(a)           The Sponsor and the Property Trustee
(on behalf of the Trust) shall appoint the Remarketing Agent and enter into a
Remarketing Agreement prior to the first Remarketing to effect the Remarketing
of the Trust Preferred Securities upon the terms, conditions and other
provisions to substantially the following effect:


 


(i)            provide that that
the Sponsor and the Remarketing Agent agree to use commercially reasonable
efforts to effect the Remarketing of the Trust Preferred Securities as
described in this Article XIII and Section 2 of the Supplemental Indenture;


 


(ii)           provide that the
Remarketing Fee for the Remarketing will be as agreed among the Sponsor, the
Trust and the Remarketing Agent and set forth in the Remarketing Agreement.


 


(iii)          provide that the
Remarketing Agent will deduct the Remarketing Fee from the proceeds of the
Remarketing and remit any proceeds remaining after such deduction to or at the
direction of the Property Trustee, who will apply such proceeds (or will have
given the Remarketing Agent instructions to remit such proceeds in a manner
that will result in their application) as follows (allocated to the Trust
Preferred Securities that participated in the Remarketing on a pro rata basis
in proportion to their liquidation amounts): 


 


(a)           to the extent such
proceeds relate to Trust Preferred Securities that are a part of Normal MCAPS,
to pay such proceeds up to the aggregate liquidation amount of such Trust
Preferred Securities to the Collateral Agent for application in accordance with
the Stock Purchase Contract Agreement and to pay the balance, if any, to the
applicable selling Holders; and 


 


(b)           to the extent the
proceeds relate to Separate Trust Preferred Securities, to pay such proceeds to
the applicable selling Holders.


 


(b)           On any day other than the last day of
a Remarketing Period, the Sponsor shall have the right, in its absolute discretion
and without prior notice to the Holders, to postpone the Remarketing until the
following Business Day. 


 


SECTION 13.2.                                    Company
Decisions in Connection with Remarketing. 


 


In connection
with Remarketings, the Company shall have the right under Section 2 of the
Supplemental Indenture to make changes in certain terms of the Debentures
underlying the Trust Preferred Securities, without the consent of any Holder of
the Trust Preferred Securities. By not later than the 21st day prior to the
first day of each Remarketing Period, the Sponsor will specify the following
information or decisions in a notice to the Remarketing Agent, the Property
Trustee (on behalf of the Trust), the Indenture Trustee and the Stock


 


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Purchase Contract Agent
(clauses (a) through (e) applying only if the Remarketing is Successful and
clause (f) applying only in the case of a Failed Remarketing):


 


(a)           whether the Stated Maturity Date of
the Debentures underlying the Trust Preferred Securities will remain at June 1,
2043 or will be changed to an earlier date (specifying such date if
applicable);


 


(b)           whether the date after which the
Debentures (and, accordingly, the Trust Preferred Securities) will be
redeemable at the Sponsor’s option will be changed and whether the redemption
price or prices will be changed; 


 


(c)           whether, in connection with an Early
Remarketing that is not the first scheduled Remarketing, the Company is
exercising its right under Section 2 of the Indenture to cause the
subordination provisions in the Indenture and the Guarantee Agreement to cease
to apply to the Debentures from and after the Remarketing Settlement Date , if
the Remarketing is Successful, and if so, whether it also elects that the
Debentures shall no longer be subject to the interest deferral provisions of
Section 1.6 of the Indenture; 


 


(d)           whether the Debentures will be
remarketed as fixed rate notes or floating rate notes;


 


(e)           if the Debentures will be remarketed
as floating rate notes, the applicable index and the interest payment dates and
manner of calculation of interest on the Debentures (and, accordingly, the
Trust Preferred Securities), which the Company may change to correspond with
the market conventions applicable to notes bearing interest at rates based on
the applicable index; and


 


(f)            whether following a Failed
Remarketing:


 


(i)            the Stated Maturity
Date will remain at June 1, 2043 or will be changed to an earlier date; and


 


(ii)           the date after
which the Debentures (and, accordingly, the Trust Preferred Securities) will be
redeemable at the Company’s option will be changed and the redemption price or
prices will be changed;


 


SECTION 13.3.                                    Reset
of Interest Rate on Debentures in Connection with Remarketings and Related
Changes in Terms.


 


(a)           As part of and in connection with
each Remarketing, the Remarketing Agent shall determine the interest rate on
the Debentures (and, accordingly, the Distribution Rate on the Trust Preferred
Securities), subject to Sections 13.3(b) through (e), pursuant to the
Remarketing Agreement and in accordance with the other provisions of this
Article XIII, that will apply to all outstanding Trust Preferred Securities
(whether or not sold in the Remarketing) if such Remarketing is Successful
commencing on or after the Remarketing Settlement Date. 


 


(b)           If the Remarketing has been
determined to be Successful in accordance with Section 13.5(a), by
approximately 4:30 P.M., New York City time, on the date of such


 


69

















 


Successful Remarketing, the
Remarketing Agent shall notify the Sponsor, the Property Trustee (on behalf of
the Trust), the Indenture Trustee and the Stock Purchase Contract Agent that
the Remarketing was Successful and the Reset Rate or Reset Spread determined as
part of such Remarketing in accordance with this Article XIII and Section 2 of
the Supplemental Indenture.


 


(c)           If a Remarketing is Successful, then
commencing with the related Remarketing Settlement Date the interest rate on
the Debentures (and, accordingly, the Distribution Rate on the Trust Preferred
Securities) shall be reset to the rate, determined in accordance with this
Article XIII and Section 2 of the Supplemental Indenture pursuant to such
Remarketing and the other changes, if any, in the terms of the Debentures and
the Trust Preferred Securities as notified by the Sponsor pursuant to Section
13.2, shall become effective in accordance with this Article XIII (or in
accordance with the Indenture in the case of the Debentures).


 


(d)           If a Remarketing other than the Final
Remarketing is not Successful: 


 


(i)            no Trust Preferred
Securities will be sold in such Remarketing;


 


(ii)           the interest rate
on the Debentures (and, accordingly, the Distribution Rate on the Trust
Preferred Securities) will remain unchanged unless and until it is reset
pursuant to a subsequent Remarketing in accordance with this Article XIII and
Section 2 of the Supplemental Indenture; 


 


(iii)          the other changes,
if any, in the terms of the Debentures and the Trust Preferred Securities, as
applicable, as notified by the Sponsor pursuant to Section 13.2, shall not
become effective (whether pursuant to this Agreement in the case of the Trust
Preferred Securities or pursuant to the Indenture in the case of the
Debentures); and 


 


(iv)          the Sponsor, the
Trust and the Remarketing Agent shall attempt another Remarketing during the
next Remarketing Period.


 


(e)           Upon the occurrence of a Failed
Remarketing:


 


(i)            no Trust Preferred
Securities will be sold in such Remarketing and no further attempts at
Remarketing shall be made;


 


(ii)           the interest rate
on the Debentures (and, accordingly, the Distribution Rate on the Trust
Preferred Securities) will be reset to a quarterly floating rate set forth in
Section 2 of the Supplemental Indenture.


 


(iii)          the other changes,
if any, in the terms of the Debentures and the Trust Preferred Securities as
notified by the Sponsor pursuant to clauses (a) through (e) of the second
sentence of Section 13.2 shall not become effective (whether pursuant to this
Agreement in the case of the Trust Preferred Securities or pursuant to the
Indenture in the case of the Debentures);


 


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(iv)          the stated maturity
date of the Debentures and early redemption date for the Debentures and Trust
Preferred Securities will change in accordance with clause (f) of the second
sentence of Section 13.2, as applicable;


 


(v)           in the case of Trust
Preferred Securities that are included in Normal MCAPS, such Trust Preferred
Securities will be applied in satisfaction of the Holders’ obligations under
Stock Purchase Contracts in accordance with the Collateral Agreement; and


 


(vi)          in the case of
Separate Trust Preferred Securities, such Trust Preferred Securities will be
returned to the related Holders in accordance with the Collateral Agreement.


 


SECTION 13.4.                                    Early
Remarketing.


 


If an Early
Remarketing Event occurs prior to the Stock Purchase Date, the Remarketing
Periods shall be the five Business Day periods commencing on the seventh
Business Day prior to the Remarketing Settlement Date (or if any such day is
not a business day, the immediately preceding business day) that is at least 30
days after the occurrence of such Early Remarketing Event, and concluding with
the earlier to occur of the fifth such date and a Successful Remarketing, and
if the Remarketing conducted on such date is not Successful, it shall be a
Failed Remarketing and the Stock Purchase Date shall be the next succeeding
Remarketing Settlement Date  (or if such
day is not a Business Day, the next Business Day).


 


SECTION 13.5.                                    Remarketing
Procedures.


 


(a)           The Sponsor will give notice to the
Property Trustee of a Remarketing at least 28 days prior to the first day of
the related Remarketing Period. Upon written instruction of the Sponsor, the
Property Trustee will give holders of MCAPS or Trust Preferred Securities, and
will request that the Depositary give to its participants holding MCAPS or
Trust Preferred Securities, and the Stock Purchase Contract Agreement provides
that the Stock Purchase Agent will give Holders (as defined therein) of MCAPS,
notice of a Remarketing at least 21 calendar days prior to the first day of the
related Remarketing Period. Such notices will set forth:


 


(i)            the beginning and
ending dates of the Remarketing Period and the applicable Remarketing
Settlement Date and Stock Purchase Date in the event the Remarketing is
successful;


 


(ii)           the applicable
distribution dates and record dates for cash distributions on the
Debentures  (and accordingly, on the
Trust Preferred Securities) the applicable reference rate if the company is
electing a floating rate an any changes in the method of computation of the
amount of distributions; 


 


(iii)          any change to the
stated maturity date of the Debentures and, if applicable, the date on and
after which the Company will have the right to redeem the Debentures (which is
subject to Section 2 of the Supplemental Indenture); 


 


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(iv)          whether, in
connection with an Early Remarketing that is not the first scheduled
Remarketing, or any other Remarketing after a Remarketing that is not
successful during the first scheduled Remarketing Period, whether the Company’s
obligations under the Debentures and the Guarantee Agreement will remain
subordinated to Senior Debt (as defined in the Supplemental Indenture) after
the Remarketing Settlement Date;


 


(v)           any other changes in
the terms of the Debentures or the Trust Preferred Securities notified by the
Sponsor in connection with such Remarketing pursuant to Section 13.2 (including
on a Final Remarketing that is a Failed Remarketing, any change in the stated
maturity date of the Debentures and, if applicable, the date on or after which
the Sponsor will have the right to redeem the Debentures (resulting in a
redemption by the Trust of the Trust Preferred Securities), which is subject to
Section 8.2);


 


(vi)          the procedures a
beneficial owner must follow if it holds its Trust Preferred Securities as a
component of Normal MCAPS to elect not to participate in the Remarketing and
the date by which such election must be made; and


 


(vii)         the procedures a
beneficial owner must follow if it holds Separate Trust Preferred Securities to
elect to participate in the Remarketing and the date by which such election
must be made; 


 


(b)           On any Remarketing Date, all
outstanding Trust Preferred Securities included in Normal MCAPS will be
tendered or deemed tendered to the Remarketing Agent for Remarketing unless the
Holder thereof elects not to participate in the Remarketing. Each Holder of
Trust Preferred Securities included in Normal MCAPS, by purchasing such Normal
MCAPS agrees to have such Trust Preferred Securities remarketed on any
Remarketing Date (unless such Holder elects not to participate in the
Remarketing as provided herein) and authorizes the Remarketing Agent to take
any and all action on its behalf necessary to effect the Remarketing. On any
Remarketing Date, each Holder of Trust Preferred Securities included in Normal
MCAPS will have the right to elect not to have its Trust Preferred Securities
remarketed by giving notice and taking the other actions provided for in
Section 5 of the Collateral Agreement. 


 


(c)           Each Holder of Separate Trust
Preferred Securities may elect to have such Holder’s Separate Trust Preferred
Securities remarketed in any Remarketing. A Holder making such an election
must, pursuant to the Collateral Agreement, notify the Collateral Agent and
deliver such Separate Trust Preferred Securities to the Collateral Agent on or
prior to 5:00 P.M., New York City time, on or prior to the second Business Day
immediately preceding the beginning of any Remarketing Period (but no earlier
than the Distribution Date immediately preceding the applicable Remarketing
Date). Any such notice and delivery may not be conditioned upon the level at
which the Reset Rate or the Reset Spread, as applicable, is established in the
Remarketing or any other condition. Any such notice and delivery may be
withdrawn on or prior to 5:00 P.M., New York City time, on the second Business
Day immediately preceding the beginning of any Remarketing Period in accordance
with the provisions set forth in the Collateral Agreement. Any such notice and
delivery not withdrawn by such time will be irrevocable with respect to such
Remarketing. Pursuant to Section 5.7(c) of the Collateral Agreement, promptly
after 11:00 A.M., New York City time, on the first Business


 


72

















 


Day immediately preceding the
beginning of any Remarketing Period, the Collateral Agent, based on the notices
and deliveries received by it prior to such time, shall notify the Remarketing
Agent of the liquidation amount of Separate Trust Preferred Securities to be
tendered for Remarketing and shall cause such Separate Trust Preferred Securities
to be presented to the Remarketing Agent. 


 


(d)           If the Remarketing on a Remarketing
Date is Successful, then the Remarketing Agent shall deduct the Remarketing Fee
to which it is entitled as provided in Section 13.1 and the related Remarketing
Agreement from the proceeds of such Remarketing and remit the remaining
proceeds to the Property Trustee in accordance with Section 13.1(a)(iii) for
application as provided therein. 


 


(e)           If by 4:00 P.M., New York City time,
on any Business Day during a Remarketing Period the Remarketing Agent has found
buyers for all of the Trust Preferred Securities offered in the Remarketing in
accordance with this Article XIII, a “Successful” Remarketing shall be deemed
to have occurred. In the event of a Successful Remarketing, the Sponsor shall
issue a press release through Bloomberg Business News or other reasonable means
of distribution stating that such Remarketing was Successful and specifying the
Reset Rate or Reset Spread and shall post such information on its website on
the World Wide Web.


 


(f)            If, by 4:00 P.M., New York City
time, on the last day of any Remarketing Period the Remarketing Agent is unable
to find buyers for all of the Trust Preferred Securities offered in such
Remarketing, including any Remarketing that would qualify as a Final
Remarketing, in accordance with this Article XIII, an “Unsuccessful”
Remarketing shall be deemed to have occurred. In the event of an Unsuccessful
Remarketing, the Sponsor shall issue a press release through Bloomberg Business
News or other reasonable means of distribution stating that such Remarketing
was an Unsuccessful Remarketing, and publish such information on its website on
the World Wide Web.


 


(g)           If on any Business Day during a
Remarketing Period other than the last day thereof the Sponsor has determined
to postpone the Remarketing until the next Business Day, the Sponsor shall
issue a press release through Bloomberg Business News or other reasonable means
of distribution stating that such Remarketing has been postponed and shall post
such information on its website on the World Wide Web.


 


(h)           The right of each Holder (whether of
Separate Trust Preferred Securities or of Trust Preferred Securities included
in Normal MCAPS) to have its Trust Preferred Securities remarketed and sold in
connection with any Remarketing shall be limited to the extent that (i) the
Remarketing Agent conducts a Remarketing pursuant to the terms of the
Remarketing Agreement, (ii) the Remarketing Agent is able to find a purchaser
or purchasers for the Trust Preferred Securities offered in the Remarketing in
accordance with this Article XIII and the Remarketing Agreement, and (iii) the
purchaser or purchasers deliver the purchase price therefor to the Remarketing
Agent as and when required. 


 


(i)            Neither the Property Trustee, the
Sponsor nor the Remarketing Agent shall be obligated in any case to provide
funds to make payment upon tender of Trust Preferred Securities for
remarketing. 


 


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ARTICLE XIV



OTHER MCAPS RELATED PROVISIONS


 


SECTION 14.1.                                    Agreed
Tax Treatment.


 


Each Holder of
Trust Preferred Securities agrees, by acceptance of Trust Preferred Securities,
and each Owner agrees, by acceptance of a beneficial interest in Trust
Preferred Securities, to treat for all U.S. federal income tax purposes (i) the
Trust as one or more grantor trusts or agency arrangements, (ii) itself as the
owner of the Stock Purchase Contracts and the related ownership interest in the
Trust Preferred Securities or treasury securities pledged under the Collateral
Agreement, as the case may be, (iii) the Debentures as indebtedness of the
Sponsor, and (iii) the fair market value of each $1,000 liquidation amount of
the Trust Preferred Securities included in Normal MCAPS as $1,000 and the fair
market value of each Stock Purchase Contract as $0.


 


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ARTICLE XV



MISCELLANEOUS


 


SECTION 15.1.                                    Notices.


 


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


 


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


 


c/o Lehman
Brothers Holdings Inc.


745 Seventh
Avenue

New York, New York 10019

Attention: Corporate Counsel


Facsimile:  (212) 526-0339


 


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


 


U.S. Bank
Trust National Association

300 Delaware Avenue

9th Floor, EX-AE-WDAW

Wilmington, Delaware 19801

Attention:  Corporate Trust Services

Facsimile:  (302) 576-3717


 


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


 


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


 


Lehman
Brothers Holdings Inc.

745 Seventh Avenue

New York, New York 10019

Attention: Corporate Counsel

Facsimile:  (212) 526-0339


 


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


 


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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 15.2.                                    Governing
Law.


 


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


 


SECTION 15.3.                                    Headings.


 


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


 


SECTION 15.4.                                    Successors
and Assigns.


 


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


 


SECTION 15.5.                                    Partial
Enforceability.


 


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


 


SECTION 15.6.                                    Counterparts.


 


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


 


76

















 


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


 


	
   

  	
  /s/ BARRETT S. DIPAOLO

  
	
   

  	
  Barrett S.
  DiPaolo, as Regular Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  /s/ ANDREW YEUNG

  
	
   

  	
  Andrew
  Yeung, as Regular Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  /s/ JAMES KILLERLANE

  
	
   

  	
  James
  Killerlane, as Regular Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  U.S. Bank
  Trust National Association,

  	
   

  
	
   

  	
  as Delaware
  Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ EARL DENNISON

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  U.S. Bank
  National Association,

  	
   

  
	
   

  	
   

  	
  as Property
  Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ EARL DENNISON

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lehman
  Brothers Holdings Inc.,

  	
   

  
	
   

  	
  as Sponsor

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ BARRETT S. DIPAOLO

  
	
   

  	
   

  	
  Name:
  Barrett S. DiPaolo

  	
   

  
	
   

  	
   

  	
  Title: Vice
  President

  	
   

  
					



 

















 


EXHIBIT A-1


 


FORM OF GLOBAL TRUST PREFERRED SECURITY
CERTIFICATE


 


 


 


[Intentionally left blank]


 

















 


PS-[    ]


 


CUSIP No. 52521KAA4  


 


Certificate Evidencing Trust Preferred Securities


 


of


 


LEHMAN BROTHERS HOLDINGS CAPITAL TRUST VIII


 


$


Trust Preferred Securities

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


 


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


 


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


 


A1 - 2

















 


IN WITNESS
WHEREOF, the Trust has executed this certificate this 17th day of May, 2007.


 


 


	
   

  	
  LEHMAN
  BROTHERS HOLDINGS CAPITAL

  
	
   

  	
  TRUST VIII

  
	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  
			



 


 


(See reverse for additional terms)


 


A1 - 3

















 


CERTIFICATE OF AUTHENTICATION


 


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


 


	
   

  	
  U.S. BANK
  NATIONAL ASSOCIATION, as

  
	
   

  	
  Trustee

  
	
   

  
	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Officer

  



 


A1 - 4

















 


[FORM OF REVERSE OF SECURITY]


 


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


 


Except as
otherwise described herein, distributions on the Trust Preferred Securities
shall be cumulative, shall accumulate from the date of initial issuance and
shall be payable quarterly in arrears, on February 28, May 31, August 31 and
November 30 of each year, commencing on August 31, 2007, or such other dates as
may be specified by the Trust following a Remarketing, if, as and when
available for payment by the Property Trustee. If the Trust Preferred
Securities are in book-entry only form, distributions shall be payable to the
Holders of record of Trust Preferred Securities as they appear on the books and
records of the Trust on the relevant record dates, which shall be determined by
the Regular Trustees and shall at be at least one Business Day prior to the
relevant payment dates.  If the Trust
Preferred Securities are issued in definitive form, or if issued in book-entry
form, do not remain in book-entry only form, the relevant record dates shall be
the date determined by the Regular Trustees and shall be at least one Business
Day before the relevant payment dates. If distributions are not paid when
scheduled, the accumulated distributions will be paid to the Holders of Trust
Securities as they appear on the books and records of the Trust on the record
date with respect to the payment date for the Trust Securities that corresponds
to the payment date fixed by the Company with respect to the payment date for
the Trust Securities that corresponds to the payment date fixed by the Company
with respect to the payment of cumulative interest payments on the
Debentures.  In the event that any date
on which distributions are payable is not a New York or London Business Day,
payment of such distribution shall be made on the next succeeding day which is
a New York and London Business Day unless such day falls in the next calendar
month in which case the Interest Payment Date will be the immediately preceding
New York and London Business Day. 
Payments of accumulated distributions shall be payable to Holders of
record of Trust Preferred Securities as they appear on the books and records of
the Trust on the record date with respect to the payment date for the Trust
Preferred Securities which corresponds to the payment date fixed by the Company
with respect to the payment of cumulative interest payments on the Debentures.


 


A1 - 5

















 


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


 


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


 


A1 - 6

















 


ASSIGNMENT


 


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


 


 


                                                                                                                                                                                                                        


                                                                                                                                                                                                                        


                                                                                                                                                                                                                        


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


 


 


                                                                                                                                                                                                                        


                                                                                                                                                                                                                        


                                                                                                                                                                                                                        


(Insert address and zip code of assignee)


 


and irrevocably appoints


 


                                                                                                                                                                                                                                                                                                                                                                                                                                                


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


 


	
  Date:

  	
   

  	
   

  
	
   

  
	
  Signature:

  	
   

  	
   

  
				



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


 


A1 - 7

















 


EXHIBIT A-2


 


FORM OF TRUST PREFERRED SECURITY CERTIFICATE


 


 


[Intentionally left blank]


 

















 


PS-[    ]


 


Certificate Evidencing Trust Preferred Securities


 


of


 


LEHMAN BROTHERS HOLDINGS CAPITAL TRUST VIII


 


$


Trust Preferred Securities

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


 


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


 


LEHMAN
BROTHERS HOLDINGS CAPITAL TRUST VIII, a statutory trust formed under the laws
of the State of Delaware (the “Trust”), hereby certifies that U.S. Bank
National Association, in its capacity as Stock purchase Contract Agent (the “Holder”)
under that certain Stock Purchase Contract Agreement dated as of May 17, 2007
between Lehman Brothers Holdings Inc. and U.S. Bank National Association, is
the registered owner of TWO HUNDRED AND FIFTY THOUSAND (250,000) Trust
Preferred Securities of the Trust representing undivided beneficial ownership
interests in the assets of the Trust designated the Trust Preferred Securities
(liquidation amount $1,000 per security) (the “Trust Preferred Securities”).
The Trust Preferred Securities shall mature on June 1, 2043.  The designation, rights, powers, privileges,
restrictions, preferences and other terms and provisions of the Trust Preferred
Securities represented hereby are set forth in, issued under and shall in all
respects be subject to the provisions of the Declaration of Trust dated as of
May 17, 2007, as the same may be amended from time to time (the “Declaration
of Trust”). Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration of Trust. The Holder is entitled to the
benefits of the Trust Preferred Securities Guarantee to the extent provided
therein.  Each Holder of a Trust
Preferred Security, by acceptance of this Certificate, agrees to treat the
Debentures as indebtedness for United States federal income tax purposes. The
Sponsor shall provide a copy of the Declaration of Trust and the Trust Common
Securities Guarantee to a Holder without charge upon written request to the
Sponsor at its principal place of business. THE TRUST PREFERRED SECURITIES ARE
TRANSFERABLE ON THE BOOKS AND RECORDS OF THE TRUST ONLY IN ACCORDANCE WITH THE
TERMS OF THE DECLARATION.


 


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


 


2

















 


IN WITNESS
WHEREOF, the Trust has executed this certificate this 17th day of May, 2007.


 


	
   

  	
  LEHMAN
  BROTHERS HOLDINGS CAPITAL

  
	
   

  	
  TRUST VIII

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  
			



 


 


(See reverse for additional terms)


 


3

















 


CERTIFICATE OF AUTHENTICATION


 


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


 


	
   

  	
  U.S. BANK
  NATIONAL ASSOCIATION, as

  
	
   

  	
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Officer

  



 


4

















 


[FORM OF REVERSE OF SECURITY]


 


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


 


Except as
otherwise described herein, distributions on the Trust Preferred Securities
shall be cumulative, shall accumulate from the date of initial issuance and
shall be payable quarterly in arrears, on February 38, May 31, August 31 and
November 30 of each year, commencing on August 31, 2007, or such other dates as
may be specified by the Trust following a Remarketing, if, as and when
available for payment by the Property Trustee. If the Trust Preferred
Securities are in book-entry only form, distributions shall be payable to the
Holders of record of Trust Preferred Securities as they appear on the books and
records of the Trust on the relevant record dates, which shall be determined by
the Regular Trustees and shall at be at least one Business Day prior to the
relevant payment dates.  If the Trust
Preferred Securities are issued in definitive form, or if issued in book-entry
form, do not remain in book-entry only form, the relevant record dates shall be
the date determined by the Regular Trustees and shall be at least one Business
Day before the relevant payment dates. If distributions are not paid when
scheduled, the accumulated distributions will be paid to the Holders of Trust
Securities as they appear on the books and records of the Trust on the record
date with respect to the payment date for the Trust Securities that corresponds
to the payment date fixed by the Company with respect to the payment date for
the Trust Securities that corresponds to the payment date fixed by the Company
with respect to the payment of cumulative interest payments on the
Debentures.  In the event that any date
on which distributions are payable is not a New York or London Business Day,
payment of such distribution shall be made on the next succeeding day which is
a New York and London Business Day unless such day falls in the next calendar
month in which case the Interest Payment Date will be the immediately preceding
New York or London Business Day. 
Payments of accumulated distributions shall be payable to Holders of
record of Trust Preferred Securities as they appear on the books and records of
the Trust on the record date with respect to the payment date for the Trust
Preferred Securities which corresponds to the payment date fixed by the Company
with respect to the payment of cumulative interest payments on the Debentures.


 


5

















 


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


 


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


 


6

















 


ASSIGNMENT


 


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


 


 


 


 


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


 


 


 


 


(Insert address and zip code of assignee)


 


and irrevocably appoints


 


                                                                                                                                                                                                                        


                                                                                                                                                                                                                        


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


 


	
  Date:

  	
   

  	
   

  
	
   

  
	
  Signature:

  	
   

  	
   

  
				



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


 


7

















 


EXHIBIT A-3


 


FORM OF TRUST COMMON SECURITY CERTIFICATE 


 


 


[Intentionally left blank]


 

















 


CS-1


 


Certificate Evidencing Trust Common Securities


 


of


 


LEHMAN BROTHERS HOLDINGS CAPITAL TRUST VIII


 


$1,000


Trust Common Securities

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


 


LEHMAN BROTHERS
HOLDINGS CAPITAL TRUST VIII, a statutory trust formed under the laws of the
State of Delaware (the “Trust”), hereby certifies that Lehman Brothers
Holdings Inc., a Delaware corporation (the “Holder”) is the registered
owner of ONE (1) Trust Common Security of the Trust representing undivided
beneficial ownership interests in the assets of the Trust designated the Trust
Common Securities (liquidation amount $1,000 per security) (the “Trust
Common Securities”). The Trust Securities shall mature on June 1,
2043.  The designation, rights, powers,
privileges, restrictions, preferences and other terms and provisions of the
Trust Common Securities represented hereby are set forth in, issued under and
shall in all respects be subject to the provisions of the Declaration of Trust
dated as of May 17, 2007, as the same may be amended from time to time (the “Declaration
of Trust”). Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration of Trust. The Holder is entitled to the
benefits of the Trust Common Securities Guarantee to the extent provided
therein.  Each Holder of a Trust Common
Security, by acceptance of this Certificate, agrees to treat the Debentures as
indebtedness for United States federal income tax purposes. The Sponsor shall
provide a copy of the Declaration of Trust and the Trust Common Securities
Guarantee to a Holder without charge upon written request to the Sponsor at its
principal place of business. THE TRUST COMMON SECURITIES ARE TRANSFERABLE ON THE
BOOKS AND RECORDS OF THE TRUST ONLY IN ACCORDANCE WITH THE TERMS OF THE
DECLARATION.


 


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


 


C-1

















 


IN WITNESS
WHEREOF, the Trust has executed this certificate this 17th day of May, 2007.


 


	
   

  	
  LEHMAN
  BROTHERS HOLDINGS CAPITAL

  
	
   

  	
  TRUST VIII

  
	
   

  	
   

  
	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  
			



 


(See reverse for additional terms)


 


C-2

















 


CERTIFICATE OF AUTHENTICATION


 


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


 


	
   

  	
  U.S. BANK
  NATIONAL ASSOCIATION, as

  
	
   

  	
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Officer

  



 


C-3

















 


[FORM OF REVERSE OF SECURITY]


 


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


 


Except as
otherwise described herein, distributions on the Trust Common Securities shall
be cumulative, shall accumulate from the date of initial issuance and shall be
payable quarterly in arrears, on February 28, May 31, August 31 and November 30
of each year, commencing on August 31, 2007, or such other dates as may be
specified by the Trust following a Remarketing, if, as and when available for
payment by the Property Trustee.  Distributions shall be payable to
the Holders of record of Trust Common Securities as they appear on the books
and records of the Trust on the relevant record dates, which shall be one
Business Day prior to the relevant payment dates. If distributions are not paid
when scheduled, the accumulated distributions will be paid to the Holders of
Trust Securities as they appear on the books and records of the Trust on the
record date with respect to the payment date for the Trust Securities that
corresponds to the payment date fixed by the Company with respect to the
payment date for the Trust Securities that corresponds to the payment date
fixed by the Company with respect to the payment of cumulative interest
payments on the Debentures.  In the event
that any date on which distributions are payable is not a New York or London
Business Day, payment of such distribution shall be made on the next succeeding
day which is a New York and London Business Day unless such day falls in the
next calendar month in which case the Interest Payment Date will be the
immediately preceding New York and London Business Day.  Payments of accumulated distributions shall
be payable to Holders of record of Trust Common Securities as they appear on
the books and records of the Trust on the record date with respect to the
payment date for the Trust Common Securities which corresponds to the payment
date fixed by the Company with respect to the payment of cumulative interest
payments on the Debentures.


 


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


 


The Holder of
this Trust Common Security, by its acceptance hereof, agrees that the
arrangement created by the Declaration of Trust shall be treated as a grantor
trust for federal


 


C-4

















 


income tax purposes and to take
no action inconsistent with the treatment of the Trust Common Securities as
undivided beneficial interest in the assets of the Trust.


 


C-5

















 


ASSIGNMENT


 


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


 


                                                                                                                                                                                                                        


                                                                                                                                                                                                                        


                                                                                                                                                                                                                        


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


 


                                                                                                                                                                                                                        


                                                                                                                                                                                                                        


                                                                                                                                                                                                                        


(Insert address and zip code of assignee)


 


and irrevocably appoints


 


                                                                                                                                                                                                                        


                                                                                                                                                                                                                        


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


 


	
  Date:

  	
   

  	
   

  
	
   

  
	
  Signature:

  	
   

  	
   

  
				



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


 


C-6