Exhibit 4.05


 




 





AMENDED AND RESTATED


 


DECLARATION OF TRUST


 


LEHMAN BROTHERS HOLDINGS CAPITAL TRUST VII


 


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

  	
  34

  
	
  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 VII


 


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
VII (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 $1,000,001,000 initial aggregate
principal amount of the Company’s 5.707% 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.


 


“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).


 


“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;


 


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)


 


6

















 


“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.


 


“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.


 


7

















 


“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.


 


“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.


 


8

















 


“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 Eleventh 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
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


 


9

















 


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 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.


 


10

















 


“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 Indenture Act, if any, in
the form and in the manner provided by Section 313 of the Trust 


 


12

















 


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 VII,” 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


 


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(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.


 


35

















 


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


 


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


 


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


 


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


 


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


 


(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. 1,000,000 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 $1,000,000,000. 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 semiannual 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.


 


51

















 


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.


 


52

















 


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 


 


55

















 


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.


 


61

















 


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


 


63

















 


(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.


 


65

















 


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 


 


68

















 


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);


 


70

















 


(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);


 


71

















 


(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.


 


73

















 


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.


 


74

















 


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.


 


75

















 


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. 52521KAB2


Certificate Evidencing Trust Preferred
Securities


 


of


 


LEHMAN BROTHERS HOLDINGS CAPITAL TRUST VII


 


$


 


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 VII

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  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 semiannual 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 semiannually in arrears, on May 31 and
November 30 of each year, commencing on November 30, 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 Business Day, payment of
such distribution shall be made on the next succeeding day which is a 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.


 


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


 


A1 - 5

















 


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 VII


 


$


 


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 VII, 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 (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.


 


A2 - 2

















 


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


 


	
   

  	
   

  	
  LEHMAN BROTHERS HOLDINGS CAPITAL

  
	
   

  	
   

  	
  TRUST VII

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  
				



 


 


(See reverse for additional terms)


 


A2 - 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

  



 


A2 - 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 semiannual 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 semiannually in arrears, on May 31 and
November 30 of each year, commencing on November 30, 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 Business Day, payment of
such distribution shall be made on the next succeeding day which is a 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.


 


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


 


A2 - 5

















 


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.


 


A2 - 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)


 


A2 - 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 VII


 


$1,000


Trust Common Securities

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


 


LEHMAN BROTHERS HOLDINGS CAPITAL TRUST VII, 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 Securities of the Trust
representing undivided beneficial ownership interests in the assets of the
Trust designated the Trust Common Securities (liquidation amount $1,000 per
security) (the “Trust Common Securities”). The Trust Securities shall
mature on 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 VII

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  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 seminannual 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 semiannually in arrears, on May 31 and November
30 of each year, commencing on November 30, 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 Business
Day, payment of such distribution shall be made on the next succeeding day
which is a 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