Exhibit
4.(n)


 




 





CAPITOL TRUST XII


 


AMENDED AND RESTATED


 


TRUST AGREEMENT


 


AMONG


 


CAPITOL BANCORP LTD., AS DEPOSITOR,


 


WELLS FARGO BANK, N.A., AS PROPERTY TRUSTEE,


 


WELLS FARGO DELAWARE TRUST COMPANY, AS DELAWARE
TRUSTEE,


 


AND


 


THE ADMINISTRATIVE TRUSTEES NAMED HEREIN


 


DATED AS OF
                  ,
2008




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  I

  	
  DEFINED TERMS

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 101

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  II

  	
  ESTABLISHMENT OF THE TRUST

  	
  9

  
	
   

  	
   

  	
   

  
	
  SECTION 201

  	
  NAME

  	
  9

  
	
   

  	
   

  	
   

  
	
  SECTION 202

  	
  OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF
  BUSINESS

  	
  9

  
	
   

  	
   

  	
   

  
	
  SECTION 203

  	
  INITIAL CONTRIBUTION OF TRUST PROPERTY;
  ORGANIZATIONAL EXPENSES

  	
  10

  
	
   

  	
   

  	
   

  
	
  SECTION 204

  	
  ISSUANCE OF THE PREFERRED SECURITIES

  	
  10

  
	
   

  	
   

  	
   

  
	
  SECTION 205

  	
  ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION AND
  PURCHASE OF DEBENTURES

  	
  10

  
	
   

  	
   

  	
   

  
	
  SECTION 206

  	
  DECLARATION OF TRUST

  	
  11

  
	
   

  	
   

  	
   

  
	
  SECTION 207

  	
  AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS

  	
  11

  
	
   

  	
   

  	
   

  
	
  SECTION 208

  	
  ASSETS OF TRUST

  	
  15

  
	
   

  	
   

  	
   

  
	
  SECTION 209

  	
  TITLE TO TRUST PROPERTY

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  III

  	
  PAYMENT ACCOUNT

  	
  15

  
	
   

  	
   

  	
   

  
	
  SECTION 301

  	
  PAYMENT ACCOUNT

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IV

  	
  DISTRIBUTIONS; REDEMPTION

  	
  16

  
	
   

  	
   

  	
   

  
	
  SECTION 401

  	
  DISTRIBUTIONS

  	
  16

  
	
   

  	
   

  	
   

  
	
  SECTION 402

  	
  REDEMPTION

  	
  17

  
	
   

  	
   

  	
   

  
	
  SECTION 403

  	
  SUBORDINATION OF COMMON SECURITIES

  	
  19

  
	
   

  	
   

  	
   

  
	
  SECTION 404

  	
  PAYMENT PROCEDURES

  	
  19

  
	
   

  	
   

  	
   

  
	
  SECTION 405

  	
  TAX RETURNS AND REPORTS

  	
  20

  
	
   

  	
   

  	
   

  
	
  SECTION 406

  	
  PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST

  	
  20

  
	
   

  	
   

  	
   

  
	
  SECTION 407

  	
  PAYMENTS UNDER INDENTURE

  	
  20

  
	
   

  	
   

  	
   

  
	
  SECTION 408

  	
  WITHHOLDING TAX

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  V

  	
  TRUST SECURITIES CERTIFICATES

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 501

  	
  INITIAL OWNERSHIP

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 502

  	
  THE TRUST SECURITIES CERTIFICATES

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 503

  	
  EXECUTION, AUTHENTICATION AND DELIVERY OF TRUST
  SECURITIES CERTIFICATES

  	
  21

  
				



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 504

  	
  REGISTRATION OF TRANSFER AND EXCHANGE OF PREFERRED SECURITIES
  CERTIFICATES

  	
  23

  
	
   

  	
   

  	
   

  
	
  SECTION 505

  	
  MUTILATED, DESTROYED, LOST OR STOLEN TRUST
  SECURITIES CERTIFICATES

  	
  25

  
	
   

  	
   

  	
   

  
	
  SECTION 506

  	
  PERSONS DEEMED SECURITYHOLDERS

  	
  25

  
	
   

  	
   

  	
   

  
	
  SECTION 507

  	
  ACCESS TO LIST OF SECURITYHOLDERS’ NAMES AND ADDRESSES

  	
  25

  
	
   

  	
   

  	
   

  
	
  SECTION 508

  	
  MAINTENANCE OF OFFICE OR AGENCY

  	
  26

  
	
   

  	
   

  	
   

  
	
  SECTION 509

  	
  APPOINTMENT OF PAYING AGENT

  	
  26

  
	
   

  	
   

  	
   

  
	
  SECTION 510

  	
  OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 511

  	
  TRUST SECURITIES CERTIFICATES

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 512

  	
  NOTICES TO CLEARING AGENCY

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 513

  	
  RIGHTS OF SECURITYHOLDERS

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VI

  	
  ACTS OF SECURITYHOLDERS; MEETINGS; VOTING

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 601

  	
  LIMITATIONS ON VOTING RIGHTS

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 602

  	
  NOTICE OF MEETINGS

  	
  29

  
	
   

  	
   

  	
   

  
	
  SECTION 603

  	
  MEETINGS OF PREFERRED SECURITYHOLDERS

  	
  29

  
	
   

  	
   

  	
   

  
	
  SECTION 604

  	
  VOTING RIGHTS

  	
  30

  
	
   

  	
   

  	
   

  
	
  SECTION 605

  	
  PROXIES, ETC

  	
  30

  
	
   

  	
   

  	
   

  
	
  SECTION 606

  	
  SECURITYHOLDER ACTION BY WRITTEN CONSENT

  	
  30

  
	
   

  	
   

  	
   

  
	
  SECTION 607

  	
  RECORD DATE FOR VOTING AND OTHER PURPOSES

  	
  30

  
	
   

  	
   

  	
   

  
	
  SECTION 608

  	
  ACTS OF SECURITYHOLDERS

  	
  30

  
	
   

  	
   

  	
   

  
	
  SECTION 609

  	
  INSPECTION OF RECORDS

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VII

  	
  REPRESENTATIONS AND WARRANTIES

  	
  32

  
	
   

  	
   

  	
   

  
	
  SECTION 701

  	
  REPRESENTATIONS AND WARRANTIES OF THE BANK AND THE PROPERTY TRUSTEE

  	
  32

  
	
   

  	
   

  	
   

  
	
  SECTION 702

  	
  REPRESENTATIONS AND WARRANTIES OF THE DELAWARE BANK AND THE DELAWARE
  TRUSTEE

  	
  33

  
	
   

  	
   

  	
   

  
	
  SECTION 703

  	
  REPRESENTATIONS AND WARRANTIES OF DEPOSITOR

  	
  34

  
					



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII

  	
  TRUSTEES

  	
  34

  
	
   

  	
   

  	
   

  
	
  SECTION 801

  	
  CERTAIN DUTIES AND RESPONSIBILITIES

  	
  34

  
	
   

  	
   

  	
   

  
	
  SECTION 802

  	
  CERTAIN NOTICES

  	
  36

  
	
   

  	
   

  	
   

  
	
  SECTION 803

  	
  CERTAIN RIGHTS OF PROPERTY TRUSTEE

  	
  36

  
	
   

  	
   

  	
   

  
	
  SECTION 804

  	
  NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES

  	
  39

  
	
   

  	
   

  	
   

  
	
  SECTION 805

  	
  MAY HOLD SECURITIES

  	
  39

  
	
   

  	
   

  	
   

  
	
  SECTION 806

  	
  COMPENSATION; INDEMNITY; FEES

  	
  39

  
	
   

  	
   

  	
   

  
	
  SECTION 807

  	
  CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF TRUSTEES

  	
  40

  
	
   

  	
   

  	
   

  
	
  SECTION 808

  	
  CONFLICTING INTERESTS

  	
  40

  
	
   

  	
   

  	
   

  
	
  SECTION 809

  	
  CO-TRUSTEES AND SEPARATE TRUSTEE

  	
  41

  
	
   

  	
   

  	
   

  
	
  SECTION 810

  	
  RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR

  	
  42

  
	
   

  	
   

  	
   

  
	
  SECTION 811

  	
  ACCEPTANCE OF APPOINTMENT BY SUCCESSOR

  	
  44

  
	
   

  	
   

  	
   

  
	
  SECTION 812

  	
  MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS

  	
  44

  
	
   

  	
   

  	
   

  
	
  SECTION 813

  	
  PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR OR TRUST

  	
  44

  
	
   

  	
   

  	
   

  
	
  SECTION 814

  	
  REPORTS BY PROPERTY TRUSTEE

  	
  45

  
	
   

  	
   

  	
   

  
	
  SECTION 815

  	
  REPORTS TO THE PROPERTY TRUSTEE

  	
  45

  
	
   

  	
   

  	
   

  
	
  SECTION 816

  	
  EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT

  	
  45

  
	
   

  	
   

  	
   

  
	
  SECTION 817

  	
  NUMBER OF TRUSTEES

  	
  45

  
	
   

  	
   

  	
   

  
	
  SECTION 818

  	
  DELEGATION OF POWER

  	
  46

  
	
   

  	
   

  	
   

  
	
  SECTION 819

  	
  VOTING

  	
  46

  
	
   

  	
   

  	
   

  
	
  SECTION 820

  	
  NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IX

  	
  TERMINATION, LIQUIDATION AND MERGER

  	
  47

  
	
   

  	
   

  	
   

  
	
  SECTION 901

  	
  TERMINATION UPON EXPIRATION DATE

  	
  47

  
	
   

  	
   

  	
   

  
	
  SECTION 902

  	
  EARLY TERMINATION

  	
  47

  
	
   

  	
   

  	
   

  
	
  SECTION 903

  	
  TERMINATION

  	
  47

  
					



 


iii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 904

  	
  LIQUIDATION

  	
  47

  
	
   

  	
   

  	
   

  
	
  SECTION 905

  	
  MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR
  REPLACEMENTS OF THE TRUST

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  X

  	
  MISCELLANEOUS PROVISIONS

  	
  50

  
	
   

  	
   

  	
   

  
	
  SECTION 1001

  	
  LIMITATION OF RIGHTS OF SECURITYHOLDERS

  	
  50

  
	
   

  	
   

  	
   

  
	
  SECTION 1002

  	
  AMENDMENT

  	
  50

  
	
   

  	
   

  	
   

  
	
  SECTION 1003

  	
  SEPARABILITY

  	
  52

  
	
   

  	
   

  	
   

  
	
  SECTION 1004

  	
  GOVERNING LAW

  	
  52

  
	
   

  	
   

  	
   

  
	
  SECTION 1005

  	
  CONSENT TO JURISDICTION; SERVICE OF PROCESS

  	
  52

  
	
   

  	
   

  	
   

  
	
  SECTION 1006

  	
  PAYMENTS DUE ON NON-BUSINESS DAY

  	
  53

  
	
   

  	
   

  	
   

  
	
  SECTION 1007

  	
  SUCCESSORS

  	
  53

  
	
   

  	
   

  	
   

  
	
  SECTION 1008

  	
  HEADINGS

  	
  53

  
	
   

  	
   

  	
   

  
	
  SECTION 1009

  	
  REPORTS, NOTICES AND DEMANDS

  	
  53

  
	
   

  	
   

  	
   

  
	
  SECTION 1010

  	
  AGREEMENT NOT TO PETITION

  	
  54

  
	
   

  	
   

  	
   

  
	
  SECTION 1011

  	
  TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE ACT

  	
  54

  
	
   

  	
   

  	
   

  
	
  SECTION 1012

  	
  ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE
  AND INDENTURE

  	
  55

  
	
   

  	
   

  	
   

  
	
  SECTION 1013

  	
  COUNTERPARTS

  	
  55

  
				



 


	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
  Exhibit A

  	
  Form of
  Certificate of Trust

  
	
  Exhibit B

  	
  Form of Common
  Securities Certificate

  
	
  Exhibit C

  	
  Form of Expense
  Agreement

  
	
  Exhibit D

  	
  Form of Preferred
  Securities Certificate

  
	
  Exhibit E

  	
  Form of Preferred
  Securities Certificate Authentication

  



 


iv

















 


CROSS-REFERENCE TABLE


 


	
  Section of 

  Trust Indenture Act 

  of 1939, as amended

  	
   

  	
  Section of

  Amended and Restated Trust Agreement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  310(a)(1)

  	
   

  	
  807

  	
   

  
	
  310(a)(2)

  	
   

  	
  807

  	
   

  
	
  310(a)(3)

  	
   

  	
  807

  	
   

  
	
  310(a)(4)

  	
   

  	
  207(a)(ii)

  	
   

  
	
  310(b)

  	
   

  	
  808

  	
   

  
	
  311(a)

  	
   

  	
  813

  	
   

  
	
  311(b)

  	
   

  	
  813

  	
   

  
	
  312(a)

  	
   

  	
  507

  	
   

  
	
  312(b)

  	
   

  	
  507

  	
   

  
	
  312(c)

  	
   

  	
  507

  	
   

  
	
  313(a)

  	
   

  	
  814(a)

  	
   

  
	
  313(a)(4)

  	
   

  	
  814(b)

  	
   

  
	
  313(b)

  	
   

  	
  814(b)

  	
   

  
	
  313(c)

  	
   

  	
  1009

  	
   

  
	
  313(d)

  	
   

  	
  814(c)

  	
   

  
	
  314(a)

  	
   

  	
  815

  	
   

  
	
  314(b)

  	
   

  	
  Not Applicable

  	
   

  
	
  314(c)(1)

  	
   

  	
  816

  	
   

  
	
  314(c)(2)

  	
   

  	
  816

  	
   

  
	
  314(c)(3)

  	
   

  	
  Not Applicable

  	
   

  
	
  314(d)

  	
   

  	
  Not Applicable

  	
   

  
	
  314(e)

  	
   

  	
  101, 816

  	
   

  
	
  315(a)

  	
   

  	
  801(a), 803(a)

  	
   

  
	
  315(b)

  	
   

  	
  802, 1009

  	
   

  
	
  315(c)

  	
   

  	
  801(a)

  	
   

  
	
  315(d)

  	
   

  	
  801, 803

  	
   

  
	
  316(a)(2)

  	
   

  	
  Not Applicable

  	
   

  
	
  316(b)

  	
   

  	
  Not Applicable

  	
   

  
	
  316(c)

  	
   

  	
  607

  	
   

  
	
  317(a)(1)

  	
   

  	
  Not Applicable

  	
   

  
	
  317(a)(2)

  	
   

  	
  Not Applicable

  	
   

  
	
  317(b)

  	
   

  	
  509

  	
   

  
	
  318(a)

  	
   

  	
  1011

  	
   

  



 


Note:                   This
Cross-Reference Table does not constitute part of this Agreement and shall not
affect the interpretation of any of its terms or provisions.


 


v

















 


AMENDED AND RESTATED TRUST AGREEMENT


 


AMENDED
AND RESTATED TRUST AGREEMENT, dated as of
                  
2008, among (i) CAPITOL BANCORP LTD., a Michigan corporation (including
any successors or assigns, the “Depositor”), (ii) WELLS FARGO BANK, N.A.,
as property trustee (the “Property Trustee” and, in its separate corporate
capacity and not in its capacity as Property Trustee, the “Bank”), (iii) WELLS
FARGO DELAWARE TRUST COMPANY, as Delaware trustee (the “Delaware Trustee,” and,
in its separate corporate capacity and not in its capacity as Delaware Trustee,
the “Delaware Bank”), (iv) LEE W. HENDRICKSON, an individual, BRUCE A.
THOMAS, an individual, and JEFFREY D. SAUNDERS, an individual, each of whose
address is c/o Company (each an “Administrative Trustee” and collectively the “Administrative
Trustees”) (the Property Trustee, the Delaware Trustee and the Administrative
Trustees referred to collectively as the “Trustees”), and (v) the several
Holders (as hereinafter defined).


 


RECITALS


 


WHEREAS,
the Depositor, the Delaware Trustee, and Lee W. Hendrickson, Bruce A. Thomas
and Jeffrey D. Saunders, each as an Administrative Trustee, have heretofore
duly declared and established a statutory trust pursuant to the Delaware
Statutory Trust Act by the entering into of that certain Trust Agreement, dated
as of May 21, 2008 (the “Original Trust Agreement”), and by the execution
and filing by the Delaware Trustee and the Administrative Trustees with the
Secretary of State of the State of Delaware of the Certificate of Trust, filed
on May 21, 2008, the form of which is attached as Exhibit A; and


 


WHEREAS,
the Depositor, the Delaware Trustee, the Property Trustee and the
Administrative Trustees desire to amend and restate the Original Trust
Agreement in its entirety as set forth herein to provide for, among other
things, (i) the issuance of the Common Securities (as defined herein) by
the Trust (as defined herein) to the Depositor; (ii) the issuance and sale
of the Preferred Securities (as defined herein) by the Trust pursuant to the
Underwriting Agreement (as defined herein); and (iii) the acquisition by
the Trust from the Depositor of all of the right, title and interest in the
Debentures (as defined herein);


 


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


 


ARTICLE I

DEFINED TERMS


 


SECTION 101  DEFINITIONS.


 


For all purposes of
this Trust Agreement, except as otherwise expressly provided or unless the
context otherwise requires:


 


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


 

















 


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


 


(c)           unless
the context otherwise requires, any reference to an “Article” or a “Section”
refers to an Article or a Section, as the case may be, of this Trust
Agreement; and


 


(d)           the
words “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Trust Agreement as a whole and not to any particular Article, Section or
other subdivision.


 


“Act” has the meaning specified in Section 608(a).


 


“Additional Amount” means, with respect to Trust
Securities of a given Liquidation Amount and/or a given period, the amount of
additional interest accrued on interest in arrears and paid by the Depositor on a Like Amount of
Debentures for such period.


 


“Additional Interest” has the meaning specified in Section 1.1
of the Indenture.


 


“Administrative Trustee” means each of Lee W.
Hendrickson, Bruce A. Thomas and Jeffrey D. Saunders, solely in his capacity as
Administrative Trustee of the Trust continued hereunder and not in his
individual capacity, or such Administrative Trustee’s successor in interest in
such capacity, or any successor trustee appointed as herein provided.


 


“Affiliate” means, with respect to a specified
Person, (a) any Person directly or indirectly owning, controlling or
holding with power to vote 10% or more of the outstanding voting securities or other ownership interests of the
specified Person; (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person; (c) any
Person directly or indirectly controlling, controlled by, or under common
control with the specified Person; (d) a partnership in which the
specified Person is a general partner; (e) any officer or director of the
specified Person; and (f) if the specified Person is an individual, any
entity of which the specified Person is an officer, director or general
partner.


 


“Applicable Procedures” has the meaning specified in Section 503A(c).


 


“Authenticating Agent” means an authenticating agent
with respect to the Preferred Securities appointed by the Property Trustee
pursuant to Section 503.


 


“Bank” has the meaning specified in the Preamble to
this Trust Agreement.


 


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


 


(a)           the
entry of a decree or order by a court having jurisdiction in the premises
adjudging such Person a bankrupt or insolvent, or approving as properly filed a
petition seeking liquidation or reorganization of or in respect of such Person
under the United States Bankruptcy Code of 1978, as amended, or any other
similar applicable federal or state law, and the continuance of any such decree
or
order unvacated and unstayed for a period of 90 days; or the
commencement of an involuntary case under the United States Bankruptcy Code of
1978, as 


 


2

















 


amended, in respect of such Person, which shall
continue undismissed for a period of 90 days or entry of an order for relief in
such case; or the entry of a decree or order of a court having
jurisdiction in the premises for the appointment on the ground of insolvency or
bankruptcy of a receiver, custodian, liquidator, trustee or assignee in
bankruptcy or insolvency of such Person or of its property, or for the winding
up or liquidation of its affairs, and such decree or order shall have remained
in force unvacated and unstayed for a period of 90 days; or


 


(b)           the
institution by such Person of proceedings to be adjudicated a voluntary
bankrupt, or the consent by such Person to the filing of a bankruptcy
proceeding against it, or the filing by such Person of a petition or answer or
consent seeking liquidation or reorganization under the United States
Bankruptcy Code of 1978, as amended, or other similar applicable federal or
state law, or the consent by such Person to the filing of any such petition or
to the appointment on the ground of insolvency or bankruptcy of a receiver or
custodian or liquidator or trustee or assignee in bankruptcy or insolvency of
such Person or of its property, or shall make a general assignment for the
benefit of creditors.


 


“Bankruptcy
Laws” has the meaning specified in Section 1010.


 


 “Business Day” means a day other than a
Saturday or Sunday, a day on which federal banking institutions in The City of
New York are authorized or required by law, executive order or regulation to
remain closed, or a day on which the Corporate Trust Office of the Debenture
Trustee or the Property Trustee, as applicable, is closed for business.


 


 “Certificate of Trust” means the certificate
of trust filed with the Secretary of State of the State of Delaware with
respect to the Trust, as amended or restated from time to time.


 


 “Clearing Agency” means an organization
registered as a “clearing agency” pursuant to Section 17A of the
Securities Exchange Act of 1934, as amended. DTC shall be the initial Clearing
Agency.


 


 “Closing Date” means the date of execution and
delivery of this Trust Agreement.


 


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


 


 “Commission” means the Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act,
or, if at any time after the execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.


 


“Common
Security” means an undivided beneficial interest in the assets of the Trust,
having a Liquidation Amount of $25 and having the rights provided therefor in
this Trust Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.


 


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


 


3

















 


“Company”
means Capitol Bancorp Ltd.


 


“Corporate
Trust Office” means the office at which, at any particular time, the corporate
trust business of the Property Trustee or the Debenture Trustee, as the case
may be, shall be principally administered, which office at the date hereof, in
each such case, is located at 919 North Market Street, Suite 1600,
Wilmington, Delaware 19801, Attention: 
Corporate Trust Services.


 


“Debenture
Event of Default” means an “Event of Default” as defined in Section 7.1 of
the Indenture.


 


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


 


 “Debenture Trustee” means Wells Fargo Bank,
N.A. and any successor thereto, as trustee under the indenture.


 


“Debentures”
means up to
$                      
aggregate principal amount of the Depositor’s
        % Junior Subordinated
Debentures due 2038, issued pursuant to the Indenture.


 


 “Delaware Bank” has the meaning specified in
the Preamble to this Trust Agreement.


 


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


 


“Delaware
Trustee” means the commercial bank or trust company identified as the “Delaware
Trustee” in the Preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any successor
trustee appointed as herein provided.


 


“Depositary”
means DTC or any successor thereto.


 


“Depositor”
has the meaning specified in the Preamble to this Trust Agreement.


 


“Distribution
Date” has the meaning specified in Section 401(a).


 


“Distributions”
means amounts payable in respect of the Trust Securities as provided in Section 401.


 


“DTC”
means The Depository Trust Company.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.


 


“Event
of Default” means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by 


 


4

















 


operation
of law or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):


 


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


 


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


 


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


 


(d)           default
in the performance, or breach, in any material respect, of any covenant or
warranty of the Trustees in this Trust Agreement (other than a covenant or
warranty a default in the performance of which or the breach of which is dealt
with in clause (b) or (c), above) and continuation of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the defaulting Trustee or Trustees by the Holders of at
least 25% in aggregate Liquidation Amount of the Outstanding Preferred
Securities a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a “Notice of Default” hereunder;
or


 


(e)           the
occurrence of a Bankruptcy Event with respect to the Property Trustee and the
failure by the Depositor to appoint a successor Property Trustee within 60 days
thereof.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


“Expense
Agreement” means the Agreement as to Expenses and Liabilities between the
Depositor and the Trust, substantially in the form attached as Exhibit C,
as amended from time to time.


 


“Expiration
Date” has the meaning specified in Section 901.


 


“Extended
Interest Payment Period” has the meaning specified in Section 4.1 of the
Indenture.


 


“Global
Preferred Securities Certificate” means a Preferred Securities Certificate
evidencing ownership of a Global Preferred Security.


 


“Global
Preferred Security” means a Preferred Security, the ownership and transfer of
which shall be made through book entries by a Clearing Agency as described
herein.


 


“Guarantee”
means the Preferred Securities Guarantee Agreement executed and delivered by
the Depositor and Wells Fargo Bank, N.A., as trustee, contemporaneously with
the execution and delivery of this Trust Agreement, for the benefit of the
Holders of the Preferred Securities, as amended from time to time.


 


“Indenture”
means the Indenture, dated as of
                ,
2008, between the Depositor and the Debenture Trustee, as trustee, as amended
or supplemented from time to time.


 


5

















 


“Investment
Company Act,” means the Investment Company Act of 1940, as amended, as in
effect at the date of execution of this instrument.


 


 “Lien” means any lien, pledge, charge,
encumbrance, mortgage, deed of trust, adverse ownership interest, hypothecation,
assignment, security interest or preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever.


 


“Like
Amount” means (a) with respect to a redemption of Trust Securities, Trust
Securities having an aggregate Liquidation Amount equal to the aggregate
principal amount of Debentures to be contemporaneously redeemed in accordance
with the Indenture and the proceeds of which shall be used to pay the
Redemption Price of such Trust Securities; and (b) with respect to a
distribution of Debentures to Holders of Trust Securities in connection with a
termination or liquidation of the Trust, Debentures having a principal amount
equal to the Liquidation Amount of the Trust Securities of the Holder to whom
such Debentures are distributed. Each Debenture distributed pursuant to clause (b) above
shall carry with it accrued interest in an amount equal to the accrued and
unpaid interest then due on such Debentures.


 


“Liquidation
Amount” means the stated amount of $25 per Trust Security.


 


“Liquidation
Date” means the date on which Debentures are to be distributed to Holders of
Trust Securities in connection with a termination and liquidation of the Trust
pursuant to Section 904(a).


 


“Liquidation
Distribution” has the meaning specified in Section 904(d).


 


“Officers’
Certificate” means a certificate signed by the President or an Executive Vice
President and by the Chief Financial Officer or the Treasurer or the Secretary,
of the Depositor, and delivered to the appropriate Trustee. One of the officers
signing an Officers’ Certificate given pursuant to Section 816 shall be
the principal executive, financial or accounting officer of the Depositor. Any
Officers’ Certificate delivered with respect to compliance with a condition or
covenant provided for in this Trust Agreement shall include:


 


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


 


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


 


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


 


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


 


“Opinion
of Counsel” means an opinion in writing of independent, outside legal counsel
for the Trust, the Property Trustee, the Delaware Trustee or the Depositor, who
shall be reasonably acceptable to the Property Trustee.


 


6

















 


“Option
Closing Date” has the meaning specified in the Underwriting Agreement.


 


“Original
Trust Agreement” has the meaning specified in the Recitals to this Trust
Agreement.


 


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


 


(a)           Preferred
Securities theretofore canceled by the Property Trustee or delivered to the
Property Trustee for cancellation;


 


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


 


(c)           Preferred
Securities which have been paid or in exchange for or in lieu of which other
Preferred Securities have been executed and delivered pursuant to Sections 504,
505 and 511; provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Preferred Securities have given
any request, demand, authorization, direction, notice, consent or waiver
hereunder, Preferred Securities owned by the Depositor, any Trustee or any
Affiliate of the Depositor or any Trustee shall be disregarded and deemed not
to be Outstanding, except that (a) in determining whether any Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Preferred Securities that such
Trustee knows to be so owned shall be so disregarded; and (b) the
foregoing shall not apply at any time when all of the outstanding Preferred
Securities are owned by the Depositor, one or more of the Trustees and/or any
such Affiliate. Preferred Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Administrative Trustees the pledgee’s right so to act with
respect to such Preferred Securities and the pledgee is not the Depositor or
any other Obligor upon the Preferred Securities or a Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Depositor or any Affiliate of the Depositor.


 


“Paying
Agent” means any paying agent or co-paying agent appointed pursuant to Section 509
and shall initially be the Property Trustee.


 


“Payment
Account” means a segregated non-interest-bearing corporate trust account
maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures shall be held and from which the Property Trustee
shall make payments to the Securityholders in accordance with Sections 401 and
402.


 


“Person”
means any individual, corporation, partnership, joint venture, trust, limited
liability company or corporation, unincorporated organization or government or
any agency or political subdivision thereof.


 


7

















 


“Preferred
Security” means an undivided beneficial interest in the assets of the Trust,
having a Liquidation Amount of $25 and having the rights provided therefor in
this Trust Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.


 


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


 


“Property
Trustee” means the commercial bank or trust company identified as the “Property
Trustee,” in the Preamble to this Trust Agreement solely in its capacity as
Property Trustee of the Trust continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any successor
property trustee appointed as herein provided.


 


“Redemption
Date” means, with respect to any Trust Security to be redeemed, the date fixed
for such redemption by or pursuant to this Trust Agreement; provided that each
Debenture Redemption Date and the stated maturity of the Debentures shall be a
Redemption Date for a Like Amount of Trust Securities.


 


“Redemption
Price” means, with respect to any Trust Security, the Liquidation
Amount of such Trust Security, plus accumulated and unpaid Distributions to the
Redemption Date allocated on a pro rata basis (based on Liquidation Amounts)
among the Trust Securities.


 


“Relevant
Trustee” shall have the meaning specified in Section 810(a).


 


“Responsible
Officer” when used with respect to the Trustee means any officer within the
Corporate Trust Office of the Trustee with direct responsibility for the
administration of this Trust Agreement, including any vice president, any trust
officer, any assistant secretary or any other officer or assistant officer of
the Trustee who customarily performs functions similar to those performed by
the Persons who at the time shall be such officers, respectively, or to whom
any corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.


 


“Securities
Register” and “Securities Registrar” have the respective meanings specified in Section 504.


 


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


 


“Trust”
means the Delaware statutory trust continued hereby and identified on the cover
page to this Trust Agreement.


 


“Trust
Agreement” means this Amended and Restated Trust Agreement, as the same may be
modified, amended or supplemented in accordance with the applicable provisions
hereof, including all exhibits hereto, including, for all purposes of this
Trust Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and
govern this Trust Agreement and any such modification, amendment or supplement,
respectively.


 


“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended, as in force
at the date as of which this instrument was executed; provided, however, that
in the event the Trust Indenture Act of 1939, as amended, is amended after such
date, “Trust Indenture Act” means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.


 


8














 


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


 


“Trust
Security” means any one of the Common Securities or the Preferred Securities.


 


“Trust
Securities Certificate” means any one of the Common Securities Certificates or
the Preferred Securities Certificates.


 


“Trustees”
means, collectively, the Property Trustee, the Delaware Trustee and the
Administrative Trustees.


 


“Underwriter”
has the meaning ascribed to such term in the Underwriting Agreement.


 


“Underwriting
Agreement” means the Underwriting Agreement, dated as of
                          
2008, among the Trust, the Depositor and the Underwriters named therein.


 


ARTICLE II

ESTABLISHMENT OF THE TRUST


 


SECTION 201  NAME.


 


The
Trust continued hereby shall be known as “Capitol Trust XII,” as such name may
be modified from time to time by the Administrative Trustees following written
notice to the Holders of Trust Securities and the other Trustees, in which name
the Trustees may engage in the transactions contemplated hereby, make and
execute contracts and other instruments on behalf of the Trust and sue and be
sued.


 


SECTION 202  OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL
PLACE OF BUSINESS.


 


The
address of the Delaware Trustee in the State of Delaware is 919 North Market
Street, Suite 1600, Wilmington, Delaware 19801, Attention: Corporate Trust
Services, or such other address in the State of Delaware as the Delaware
Trustee may designate by written notice to the Securityholders and the Depositor.
The principal executive office of the Trust is c/o Capitol Bancorp Center, 200
Washington Square North, Lansing, Michigan 48933.


 


SECTION 203  INITIAL CONTRIBUTION OF TRUST PROPERTY;
ORGANIZATIONAL EXPENSES.


 


The
Property Trustee acknowledges receipt in trust of the sum of $10, which the
Depositor contributed to the Trust in connection with the Original Trust
Agreement, which constitutes the initial Trust Property. The Depositor
shall pay all fees, costs and organizational expenses of the Trust as they
arise or shall, upon request of any Trustee, promptly reimburse 


 


9

















 


such Trustee for any such fees, costs or expenses paid
by such Trustee. The Depositor shall make no claim upon the Trust Property for
the payment of such expenses.


 


SECTION 204  ISSUANCE OF THE PREFERRED SECURITIES.


 


On
              ,
2008, the Depositor and an Administrative Trustee, on behalf of the Trust and
pursuant to the Original Trust Agreement, executed and delivered the Underwriting
Agreement. Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 502 and deliver in accordance with the
Underwriting Agreement, Preferred Securities Certificates, registered in the
name of Persons entitled thereto in an aggregate amount of 2,000,000 Preferred
Securities having an aggregate Liquidation Amount of $50,000,000 against
receipt of the aggregate purchase price of such Preferred
Securities of $50,000,000, which amount such Administrative Trustee shall
promptly deliver to the Property Trustee. If the Underwriters exercise their
over allotment option and there is an Option Closing Date, then an Administrative Trustee,
on behalf of the Trust, shall execute in accordance with Section 502 and
deliver in accordance with the Underwriting Agreement, Preferred Securities
Certificates, registered in the name of the Persons entitled thereto, in an
additional aggregate amount of up to 300,000 Preferred Securities having an
aggregate Liquidation Amount of up to $7,500,000 against receipt of the
aggregate purchase price of such Preferred Securities of up to $7,500,000,
which amount such Administrative Trustee shall promptly deliver to the Property
Trustee.


 


SECTION 205  ISSUANCE OF THE COMMON SECURITIES;
SUBSCRIPTION AND PURCHASE OF DEBENTURES.


 


(a)           Contemporaneously
with the execution and delivery of this Trust Agreement, an Administrative
Trustee, on behalf of the Trust, shall execute in accordance with Section 502
and deliver to the Depositor, Common Securities Certificates, registered in the
name of the Depositor, in an aggregate amount of Common Securities having an
aggregate Liquidation Amount of $1,546,392 against payment by the Depositor of
such amount. Contemporaneously therewith, an Administrative Trustee, on behalf
of the Trust, shall subscribe to and purchase from the Depositor Debentures,
registered in the name of the Property Trustee on behalf of the Trust and
having an aggregate principal amount equal to $51,546,392, and, in satisfaction
of the purchase price for such Debentures, the Property Trustee, on behalf of
the Trust, shall deliver to the Depositor the sum of $51,546,392.


 


(b)           If
the Underwriters exercise their over allotment option and there is an Option
Closing Date, then an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 502 and deliver to the Depositor,
Common Securities Certificates, registered in the name of the Depositor, in an
additional aggregate amount of Common Securities having an aggregate
Liquidation Amount of up to $231,959 against payment by the Depositor of such
amount. Contemporaneously therewith, an Administrative Trustee, on behalf of
the Trust, shall subscribe to and purchase from the Depositor, additional
Debentures, registered in the name of the Trust and having an aggregate
principal amount of up to $7,731,959, and, in satisfaction of the purchase
price of such Debentures, the Property Trustee, on behalf of the Trust, shall
deliver to the Depositor up to $7,731,959, such aggregate amount to be equal to
the sum of the amounts 


 


10

















 


received from the
Depositor pursuant to this Section 205(b) and from one of the
Administrative Trustees pursuant to the last sentence of Section 204.


 


SECTION 206  DECLARATION OF TRUST.


 


The
exclusive purposes and functions of the Trust are (a) to issue and sell
Trust Securities and use the proceeds from such sale to acquire the Debentures;
and (b) to engage in those activities necessary, advisable or incidental
thereto. The Depositor hereby confirms the appointment of the Trustees as
trustees of the Trust, to have all the rights, powers and duties to the extent
set forth herein, and the Trustees hereby acknowledge such appointment. The
Property Trustee hereby declares that it shall hold the Trust Property in trust
upon and subject to the conditions set forth herein for the benefit of the
Securityholders. The Administrative Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of the Trustees of
the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807
of the Delaware Statutory Trust Act.


 


SECTION 207  AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.


 


(a)           The Trustees shall
conduct the affairs of the Trust in accordance with the terms of this Trust
Agreement. Subject to the limitations set forth in paragraph (b) of this Section 207
and Article VIII, and in accordance
with the following provisions (i) and (ii), the Administrative Trustees
shall have the authority to enter into all transactions and agreements
determined by the Administrative Trustees to be appropriate in exercising the
authority, express or implied, otherwise granted to the Administrative Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:


 


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


 


(A)          the issuance and sale of
the Trust Securities and the compliance with the Underwriting Agreement in connection
therewith;


 


(B)          to cause the Trust to
enter into, and to execute, deliver and perform on behalf of the Trust, the
Expense Agreement and such other agreements or documents as may be necessary or
desirable in connection with the purposes and function of the Trust;


 


(C)          assisting in the
registration of the Preferred Securities under the Securities Act of 1933, as
amended, and under state securities or blue sky laws, and the qualification of
this 


 


11

















 


Trust Agreement as
a trust indenture under the Trust Indenture Act;


 


(D)          assisting in the listing
of the Preferred Securities upon the New York Stock Exchange or such securities
exchange or exchanges as shall be determined by the Depositor, the registration
of the Preferred Securities under the Exchange Act, the compliance with the
listing requirements of the New York Stock Exchange or other applicable
securities exchange and the preparation and filing of all periodic and other
reports and other documents pursuant to the foregoing;


 


(E)           the sending of notices
(other than notices of default) and other information regarding the Trust
Securities and the Debentures to the Securityholders in accordance with this
Trust Agreement;


 


(F)           the appointment of a
Paying Agent, Authenticating Agent and Securities Registrar in accordance with
this Trust Agreement;


 


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


 


(H)          the
taking of 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 Preferred Securities or to enable the
Trust to effect the purposes for which the Trust was created;


 


(I)            the taking of any action incidental
to the foregoing as the Administrative Trustees may from time to time determine
is necessary or advisable to give effect to the terms of this Trust Agreement
for the benefit of the Securityholders (without consideration of the effect of
any such action on any particular Securityholder); and


 


(J)            preparation and filing
of all applicable tax returns and tax information reports that are required to
be filed on behalf of the Trust.


 


12

















 


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


 


(A)          the establishment of the Payment Account;


 


(B)           the receipt of the
Debentures;


 


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


 


(D)          the distribution of
amounts owed to the Securityholders in respect of the Trust Securities in accordance
with the terms of this Trust Agreement;


 


(E)           the exercise of all of
the rights, powers and privileges of a holder of the Debentures in accordance
with the terms of this Trust Agreement;


 


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


 


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


 


(H)          after an Event of
Default, the taking of any action incidental to the foregoing as the Property Trustee
may from time to time determine is necessary or advisable to give effect to the
terms of this Trust Agreement and protect and conserve the Trust Property for
the benefit of the Securityholders (without consideration of the effect of any
such action on any particular Securityholder);


 


(I)            registering transfers
of the Trust Securities in accordance with this Trust Agreement;


 


(J)            except as otherwise
provided in this Section 207(a)(ii), the Property Trustee shall have none
of the duties, liabilities, powers or the authority of the Administrative
Trustees set forth in Section 207(a)(i); and


 


(K)          the authentication of
the Preferred Securities as provided in this Trust Agreement.


 


13

















 


(b)           So
long as this Trust Agreement remains in effect, the Trust (or the Trustees
acting on behalf of the Trust) shall not undertake any business, activities or
transaction except as expressly provided herein or contemplated hereby. In
particular, the Trustees shall not (i) acquire any investments or engage
in any activities not authorized by this Trust Agreement; (ii) sell,
assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of
any of the Trust Property or interests therein, including to Securityholders,
except as expressly provided herein; (iii) take any action that would
cause (or, in the case of the Property Trustee, to the actual knowledge of a
Responsible Officer would cause) the Trust to fail or cease to qualify as a “grantor
trust” for United States federal income tax purposes; (iv) incur any
indebtedness for borrowed money or issue any other debt; or (v) take or
consent to any action that would result in the placement of a Lien on any of
the Trust Property. The Administrative Trustees shall defend all claims and
demands of all Persons at any time claiming any Lien on any of the Trust
Property adverse to the interest of the Trust or the Securityholders in their
capacity as Securityholders.


 


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


 


(i)                                   the
preparation and filing by the Trust with the Commission and the execution on
behalf of the Trust of a registration statement on the appropriate form in
relation to the Preferred Securities, the Debentures, and the Guarantee,
including any amendments thereto;


 


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


 


(iii)                             the
preparation for filing by the Trust and execution on behalf of the Trust of an
application to the New York Stock Exchange or a national stock exchange or
other organizations for listing upon notice of issuance of any Preferred
Securities and to file or cause an Administrative Trustee to file thereafter
with such exchange or organization such notifications and documents as may be
necessary from time to time;


 


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


 


14

















 


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


 


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


 


(d)           Notwithstanding
anything herein to the contrary, the Trustees are authorized and directed to
conduct the affairs of the Trust and to operate the Trust so that the Trust
shall not be deemed to be an “investment company” required to be registered
under the Investment Company Act, shall be classified as a “grantor trust” and
not as an association taxable as a corporation for United States federal income
tax purposes and so that the Debentures shall be treated as indebtedness of the
Depositor for
United States federal income tax purposes. In this connection, subject
to Section 1002, the Depositor and the Administrative Trustees are
authorized to take any action, not inconsistent with applicable law or this
Trust Agreement, that each of the Depositor and the Trustees determines in
their discretion to be necessary or desirable for such purposes.


 


SECTION 208  ASSETS OF TRUST.


 


The
assets of the Trust shall consist of the Trust Property.


 


SECTION 209  TITLE TO TRUST PROPERTY.


 


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


 


ARTICLE III

PAYMENT ACCOUNT


 


SECTION 301  PAYMENT ACCOUNT.


 


(a)           On
or prior to
the Closing Date, the Property Trustee shall establish the Payment Account. The
Property Trustee and the Paying Agent shall have exclusive control and sole
right of withdrawal with respect to the Payment Account for the purpose of
making deposits in and withdrawals from the Payment Account in accordance with
this Trust Agreement. All monies and other property deposited or held from time
to time in the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Securityholders and for
distribution as herein provided, including (and subject to) any priority of
payments provided for herein.


 


(b)           The
Property Trustee shall deposit in the Payment Account, promptly upon receipt,
all payments of principal of or interest on, and any other payments or proceeds
with respect to, the Debentures. Amounts held in the Payment Account shall not
be invested by the Property Trustee pending distribution thereof.


 


15

















 


ARTICLE IV

DISTRIBUTIONS; REDEMPTION


 


SECTION 401  DISTRIBUTIONS.


 


(a)           Distributions
on the Trust Securities shall be cumulative, and shall accumulate whether or
not there are funds of the Trust available for the payment of Distributions.
Distributions shall accumulate from               ,
2008, and, except during any Extended Interest Payment Period with respect to
the Debentures, shall be payable quarterly in arrears on the last calendar day
of March, June, September and December of each year, commencing on
              
2008. If any date on which a Distribution is otherwise payable on the Trust
Securities is not a Business Day, then the payment of such Distribution shall
be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day (and without any reduction of interest or any other
payment in respect of any such acceleration), in each case with the same force
and effect as if made on such date (each date on which Distributions are payable in
accordance with this Section 401(a), a “Distribution Date”).


 


(b)           The
Trust Securities represent undivided beneficial interests in the Trust
Property. Distributions on the Trust Securities shall be payable at a rate of
      % per annum of the Liquidation Amount of
the Trust Securities. The amount of Distributions payable for any period ending
on or prior to March 31, 2038 shall be computed on the basis of a 360-day
year of twelve 30-day months. The amount of Distributions for any period ending
on or after March 31, 2038 shall be computed on the basis of a 360-day
year and the actual number of days elapsed during the relevant period. During
any Extended Interest Payment Period with respect to the Debentures,
Distributions on the Preferred Securities shall be deferred for a period equal
to the Extended Interest Payment Period. The amount of Distributions payable
for any period shall include the Additional Amount, if applicable.


 


(c)           Distributions
on the Trust Securities shall be made by the Property Trustee solely from the
Payment Account and shall be payable on each Distribution Date only to the
extent that the Trust has funds on hand and immediately available by 12:00 p.m.
(Noon), New York City time, on each Distribution Date in the Payment Account
for the payment of such Distributions.


 


(d)           Distributions
on the Trust Securities with respect to a Distribution Date shall be payable to
the Holders thereof as they appear on the Securities Register for the Trust
Securities on the close of business on the relevant record date, which shall be the 15th
day of March, June, September or December for Distributions payable
on the last calendar day of the respective month; provided, however, that for
any Trust Securities held in global form, Distributions shall be payable to the
Holder thereof as of one Business Day immediately preceding the Distribution
Date.


 


(e)           As
a condition to the payment of any principal of or interest on the Trust
Securities without the imposition of withholding tax, the Property Trustee or
any Paying Agent shall require the previous delivery of properly completed and
signed applicable U.S. federal income tax 


 


16

















 


certifications (generally, an Internal Revenue Service
Form W-9 (or applicable successor form) in the case of a person that is a “United
States person” within the meaning of Section 7701(a)(30) of the Code or an
Internal Revenue Service Form W-8 (or applicable successor form) in the
case of a person that is not a “United States person” within the meaning of Section 7701(a)(30)
of the Code), and any other certification acceptable to it to enable the
Property Trustee or any Paying Agent to determine their respective duties and
liabilities with respect to any taxes or other charges that they may be
required to pay, deduct or withhold in respect of such Trust Securities.


 


SECTION 402  REDEMPTION.


 


(a)           On
each Debenture Redemption Date and on the maturity of the Debentures, the Trust
shall be required to redeem a Like Amount of Trust Securities at the Redemption
Price.


 


(b)           Notice
of redemption shall be given by the Property Trustee by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date to each Holder of Trust Securities to be redeemed, at such
Holder’s address appearing in the Securities Register. The Property Trustee
shall have no responsibility for the accuracy of any CUSIP number contained in
such notice. All notices of redemption shall state:


 


(i)                                     the
Redemption Date;


 


(ii)                                  the
Redemption Price;


 


(iii)                               the
CUSIP number;


 


(iv)                              if
less than all the Outstanding Trust Securities are to be redeemed, the
identification and the aggregate Liquidation Amount of the particular Trust
Securities to be redeemed;


 


(v)                                 that,
on the Redemption Date, the Redemption Price shall become due and payable upon
each such Trust Security to be redeemed and that Distributions thereon shall
cease to accumulate on and after said date, except as provided in Section 402(d);
and


 


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


 


(c)           The
Trust Securities redeemed on each Redemption Date shall be redeemed at the
Redemption Price with the proceeds from the contemporaneous redemption of
Debentures. Redemptions of the Trust Securities shall be made and the
Redemption Price shall be payable on each Redemption Date only to the extent
that the Trust has immediately available funds then on hand and available in
the Payment Account for the payment of such Redemption Price.


 


(d)           If
the Property Trustee gives a notice of redemption in respect of any Preferred
Securities, then, by 12:00 p.m. (noon), New York City time, on the Redemption
Date, the Property
Trustee, subject to Section 402(c), shall, with respect to
Preferred Securities held in 


 


17

















 


global form, deposit with the Clearing Agency for such Preferred
Securities, to the extent available therefor, funds sufficient to pay the
applicable Redemption Price. With respect to Trust Securities that are not held
in global form, the Property Trustee, subject to Section 402(c), shall deposit
with the Paying Agent funds sufficient to pay the applicable Redemption Price
and shall give the Paying Agent irrevocable instructions and authority to pay
the Redemption Price to the record holders thereof upon surrender of their
Trust Securities Certificates. Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any Trust Securities called for
redemption shall be payable to the Holders of such Trust Securities as they
appear on the Securities Register for the Trust Securities on the relevant
record dates for the related Distribution Dates. If notice of redemption shall
have been given and funds deposited as required, then upon the date of such
deposit, (i) all rights of Securityholders holding Trust Securities so called
for redemption shall cease, except the right of such Securityholders to receive
the Redemption Price, but without interest and (ii) such Trust Securities shall
cease to be Outstanding. Payment of the Redemption Price on the Trust
Securities shall be made to the record holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date.  In the event that any date on which any
Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date shall. be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day (and without any reduction of interest or any other payment in respect of
any such acceleration), in each case with the same force and effect as if made
on such date. In the event that payment of the Redemption Price in respect of
any Trust Securities called for redemption is improperly withheld or refused
and not paid either by the Trust or by the Depositor pursuant to the Guarantee,
Distributions on such Trust Securities shall continue to accumulate, at the
then applicable rate, from the Redemption Date originally established by the
Trust for such Trust Securities to the date such Redemption Price is actually
paid, in which case the actual payment date shall be the date fixed for
redemption for purposes of calculating the Redemption Price.


 


(e)           Subject
to Section 403(a), if less than all the Outstanding Trust Securities are
to be redeemed on a Redemption Date, then the aggregate Liquidation Amount of
Trust Securities to be redeemed shall be allocated on a pro rata basis (based
on Liquidation Amounts) among the Common Securities and the Preferred
Securities. The particular Preferred Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Property
Trustee from the Outstanding Preferred Securities not previously called for
redemption, by such method (including, without limitation, by lot) as the
Property Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the Liquidation Amount or an
integral multiple of the Liquidation Amount) of the Liquidation Amount of
Preferred Securities of a denomination larger than such Liquidation Amount;
provided, however, in the event the redemption relates only to Preferred
Securities purchased and held by the Depositor being redeemed in exchange for a
Like Amount of Debentures, the Property Trustee shall select those particular
Preferred Securities for redemption. The Property Trustee shall promptly notify
the Securities Registrar in writing of the Preferred Securities selected for
redemption and, in the case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed. For all purposes of
this Trust Agreement, unless the context otherwise requires, all provisions
relating to the redemption of Preferred Securities shall relate, in the case of
any Preferred Securities redeemed or to be redeemed only in part, to the
portion of the Liquidation Amount of Preferred Securities which has been or is to be
redeemed.


 


18

















 


SECTION 403  SUBORDINATION OF COMMON SECURITIES.


 


(a)           Payment
of Distributions (including Additional Amounts, if applicable) on, and the
Redemption Price of, the Trust Securities, as applicable, shall be made,
subject to Section 402(f), pro rata among the Common Securities and the
Preferred Securities based on the Liquidation Amount of the Trust Securities;
provided, however, that if on any Distribution Date or Redemption Date any
Event of Default resulting from a Debenture Event of Default shall have
occurred and be continuing, no payment of any Distribution (including
Additional Amounts, if applicable) on, or Redemption Price of, any Common
Security, and no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made unless payment in full in
cash of all accumulated and unpaid Distributions (including Additional Amounts,
if applicable) on all Outstanding Preferred Securities for all Distribution
periods terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all Outstanding
Preferred Securities then called for redemption, shall have been made or provided for,
and all funds immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or the Redemption Price of, Preferred
Securities then due and payable.


 


(b)           In
the case of the occurrence of any Event of Default resulting from a Debenture
Event of Default, the Holder of Common Securities shall be deemed to have waived any
right to act with respect to any such Event of Default under this Trust
Agreement until the effect of all such Events of Default with respect to the
Preferred Securities shall have been cured, waived or otherwise eliminated.
Until any such Event of Default under this Trust Agreement with respect to the
Preferred Securities shall have been so cured, waived or otherwise eliminated,
the Property Trustee shall act solely on behalf of the Holders of the Preferred
Securities and not the Holder of the Common Securities, and only the Holders of
the Preferred Securities shall have the right to direct the Property Trustee to
act on their behalf.


 


SECTION 404  PAYMENT PROCEDURES.


 


Payments
of Distributions (including Additional Amounts, if applicable) in respect of
the Preferred Securities shall be made by check mailed to the address of the
Person entitled thereto as such address shall appear on the Securities Register
or, if the Preferred Securities are held by a Clearing Agency, such
Distributions shall be made by wire transfer to the Clearing Agency in
immediately available funds, which will credit the relevant accounts on the
applicable Distribution Dates. Payments in respect of the Common Securities
shall be made in such manner as shall be mutually agreed between the Property
Trustee and the Holder of Common Securities.


 


SECTION 405  TAX RETURNS AND REPORTS.


 


The
Administrative Trustees shall prepare (or cause to be prepared), at the
Depositor’s expense, and file all United States federal, state and local tax
and information returns and reports required to be filed by or in respect of
the Trust. In this regard, the Administrative Trustees shall (a) prepare
and file (or cause to be prepared and filed) the appropriate Internal Revenue
Service forms required to be filed in respect of the Trust in each taxable year
of the 


 


19

















 


Trust;
and (b) prepare and furnish (or cause to be prepared and furnished) to
each Securityholder the appropriate Internal Revenue Service forms required to
be furnished to such Securityholder or the information required to be provided on such form. The
Administrative Trustees shall provide the Depositor with a copy of all such
returns and reports promptly after such filing or furnishing.


 


SECTION 406  PAYMENT OF TAXES, DUTIES, ETC. OF THE
TRUST.


 


Upon receipt under the Debentures of Additional
Interest, the Property Trustee, at the written direction of an Administrative
Trustee or the Depositor, shall promptly pay any taxes, duties or governmental charges of whatsoever nature
(other than withholding taxes) imposed on the Trust by the United States or any
other taxing authority.


 


SECTION 407  PAYMENTS UNDER INDENTURE.


 


Any amount payable hereunder to any Holder of
Preferred Securities shall be reduced by the amount of any corresponding payment such Holder has directly
received under the Indenture pursuant to Section 513(b) or (c) hereof.


 


SECTION 408  WITHHOLDING TAX.


 


The Property Trustee shall, and shall cause the Trust
to, comply with all withholding and backup withholding tax requirements under
United States federal, state and local law. 
The Property Trustee on behalf of 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 and backup withholding tax with
respect to each Holder and any representations and forms as shall reasonably be
requested by the Property Trustee on behalf of the Trust to assist it in
determining the extent of, and in fulfilling, its withholding and backup
withholding tax obligations, including without limitation, the forms specified
in Section 401(e).  The Property
Trustee shall file required forms with applicable jurisdictions and, unless an
exemption from withholding and backup withholding tax is properly established
by a Holder, shall remit amounts withheld with respect to the Holder to
applicable jurisdictions.  To the extent
that the Trust is required to withhold and pay over any amounts to any
jurisdiction with respect to Distributions or allocations to any Holder, the
amount withheld shall be deemed to be a Distribution in the amount of the
withholding to the Holder.  In the event
of any claimed over-withholding, Holders shall be limited to an action against
the applicable jurisdiction.  If the
amount required to be withheld was not withheld from actual Distributions made,
the Property Trustee on behalf of the Trust may reduce subsequent Distributions
by the amount of such required withholding.


 


ARTICLE V

TRUST SECURITIES CERTIFICATES


 


SECTION 501  INITIAL OWNERSHIP.


 


Upon the creation of the Trust and the contribution
by the Depositor pursuant to Section 203 and until the issuance of the
Trust Securities, and at any time during which no Trust Securities are
Outstanding, the Depositor shall be the sole beneficial owner of the Trust.


 


20

















 


SECTION 502  THE TRUST SECURITIES CERTIFICATES.


 


The Preferred Securities Certificates shall be issued
in minimum denominations of the Liquidation Amount and integral multiples of
the Liquidation Amount in excess thereof, and the Common Securities
Certificates shall be issued in denominations of the Liquidation Amount and
multiples thereof (which may, in the case of the Common Securities, include
fractional amounts). The Trust Securities Certificates shall be executed on
behalf of the Trust by manual or facsimile signature of at least one
Administrative Trustee. Trust Securities Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee’s name pursuant to Sections 504 and
511.


 


SECTION 503  EXECUTION, AUTHENTICATION AND DELIVERY OF
TRUST SECURITIES CERTIFICATES.


 


(a)           On
the Closing Date and on any Option Closing Date, as applicable, the
Administrative Trustees shall cause Trust Securities Certificates, in an
aggregate Liquidation Amount as provided in Sections 204 and 205, to be
executed on behalf of the Trust by at least one of the Administrative Trustees
and delivered to or upon the written order of the Depositor, signed by its
Chief Executive Officer, President, any Vice President or its Treasurer without
further corporate action by the Depositor, in authorized denominations.


 


(b)           A
Preferred Securities Certificate shall not be valid until authenticated by the
manual signature of an authorized signatory of the Property Trustee in
substantially the form of Exhibit E attached hereto. The signature shall
be conclusive evidence that the Preferred Securities Certificate has been
authenticated under this Trust Agreement. Each Preferred Security Certificate
shall be dated the date of its authentication.


 


(c)           Upon the written order
of the Trust signed by one of the Administrative Trustees, the Property Trustee
shall authenticate and make available for delivery the Preferred Securities
Certificates.


 


(d)           The Property Trustee
may appoint an Authenticating Agent acceptable to the Trust to authenticate the
Preferred Securities. An Authenticating Agent may authenticate the Preferred
Securities whenever the Property Trustee may do so. Each reference in this
Trust Agreement 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 Company or the Trust.


 


21

















 


SECTION 503A.  GLOBAL PREFERRED SECURITY.


 


(a)           Any
Global Preferred Security issued under this Trust Agreement shall be registered
in the name of the nominee of the Clearing Agency and delivered to such
custodian or its agent therefor, and such Global Preferred Security shall
constitute a single Preferred Security for all purposes of this Trust
Agreement.


 


(b)           Notwithstanding
any other provision in this Trust Agreement, no Global Preferred Security may
be exchanged for Preferred Securities registered in the names of persons other
than the Depositary or its nominee unless (i) the Depositary notifies the
Property Trustee that it is unwilling or unable to continue as a depositary for
such Global Preferred Securities and the Depositor is unable to locate a
qualified successor depositary, (ii) the Depositor executes and delivers
to the Property Trustee a written order stating that it elects to terminate the
book-entry system through the Depositary or (iii) there shall have occurred
and be continuing a Debenture Event of Default.


 


(c)           If a Preferred Security
Certificate is to be exchanged in whole or in part for a beneficial interest in
a Global Preferred Security, then either (i) such Preferred Security
Certificate shall be so surrendered for exchange or cancellation as provided in
this Article V or (ii) the Liquidation Amount thereof shall be
reduced or increased by an amount equal to the portion thereof to be so
exchanged or cancelled, or equal to the Liquidation Amount of such other
Preferred Securities Certificate to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment made on the
records of the Securities Registrar, whereupon the Property Trustee, in
accordance with the rules and procedures of the Depositary for such Global
Preferred Security (the “Applicable Procedures”), shall instruct the Clearing
Agency or its authorized representative to make a corresponding adjustment to
its records. Upon any such surrender or adjustment of a Global Preferred
Security by the Clearing Agency,
accompanied by registration instructions, the Administrative Trustees shall
execute and the Property Trustee shall, upon receipt of a written order of the
Trust to do so and subject to Section 504(b) and as otherwise
provided in this Article V, authenticate and deliver any Preferred
Securities Certificate issuable in exchange for such Global Preferred Security
(or any portion thereof) in accordance with the instructions of the Clearing
Agency. The Property Trustee shall not be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be fully protected in
relying on, such instructions.


 


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


 


(e)           The
Clearing Agency or its nominee, as the registered owner of a Global Preferred
Security, shall be considered the Holder of the Preferred Securities
represented by such Global Preferred Security for all purposes under this Trust
Agreement and the Preferred Securities, and owners of beneficial interests in
such Global Preferred Security shall hold such interests pursuant to the
Applicable Procedures and, except as otherwise provided herein, shall 


 


22

















 


not be entitled to receive physical delivery of any
such Preferred Securities in definitive form and shall not be considered the
Holders thereof under this Trust Agreement. Accordingly, any such owner’s
beneficial interest in the Global Preferred Securities shall be shown only on,
and the transfer of such interest shall be effected only through, records
maintained by the Clearing Agency or its nominee. Neither the Property Trustee,
the Securities Registrar nor the Depositor shall have any liability in respect
of any transfers effected by the Clearing Agency.


 


(f)            The rights of owners
of beneficial interests in a Global Preferred Security shall be exercised only
through the Clearing Agency and shall be limited to those established by law
and agreements between such owners and the Clearing Agency, provided that, solely for the purpose of determining whether
the Holders of the requisite amount of Preferred Securities have voted on any
matter provided for in this Trust Agreement, to the extent that Preferred
Securities are represented by a Global Preferred Security, the Trustees may conclusively
rely on, and shall be fully protected in relying on, any written instrument
(including a proxy) delivered to the Property Trustee by the Clearing
Agency setting forth the beneficial owners’ votes or assigning the right
to vote on any matter to any other Persons either in whole or in part.


 


SECTION 504  REGISTRATION OF TRANSFER AND EXCHANGE OF
PREFERRED SECURITIES CERTIFICATES.


 


(a)           The
Depositor shall keep or cause to be kept, at the office or agency maintained
pursuant to Section 508, a register or registers for the purpose of
registering Trust Securities Certificates and, subject to the provisions of Section 503A,
transfers and exchanges of Preferred Securities Certificates (herein referred
to as the “Securities Register”) in which the registrar designated by the
Depositor (the ‘Securities Registrar”), subject to such reasonable regulations
as it may prescribe, shall provide for the registration of Preferred Securities
Certificates and Common Securities Certificates (subject to Section 510 in
the case of the Common Securities Certificates) and registration of transfers
and exchanges of Preferred Securities Certificates as herein provided. The
Property Trustee shall be the initial Securities Registrar.  The provisions of Article VIII shall
apply to the Property Trustee in its role as Securities Registrar.


 


(b)           Subject to the
provisions of Section 503A, upon surrender for registration of transfer of
any Preferred Securities Certificate at the office or agency maintained
pursuant to Section 508, the Administrative Trustees or any one of them
shall execute and deliver to the Property Trustee, and upon receipt thereof the
Property Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Preferred Securities Certificates in
authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such Administrative
Trustee or Trustees. The Securities Registrar shall not be required to register
the transfer of any Preferred Securities that have been called for redemption.
At the option of a Holder, Preferred Securities Certificates may be exchanged
for other Preferred Securities Certificates in authorized denominations of the
same class and of a like aggregate Liquidation Amount upon surrender of the
Preferred Securities Certificates to be exchanged at the office or agency
maintained pursuant to Section 508.


 


(c)           Every
Preferred Securities Certificate presented or surrendered for registration of
transfer or exchange, subject to the provisions of Section 503A, shall be 


 


23

















 


accompanied by a written instrument of transfer in
form satisfactory to the Property Trustee and the Securities Registrar duly
executed by the Holder or his attorney duly authorized in writing. Each
Preferred Securities Certificate surrendered for registration of transfer or
exchange shall be canceled and subsequently disposed of by the Property Trustee
in accordance with its customary practice. The Trust shall not be required to (i) issue,
register the transfer of, or exchange any Preferred Securities during a period
beginning at the opening of business 15 calendar days before the date of
mailing of a notice of redemption of any Preferred Securities called for
redemption and ending at the close of business on the day of such mailing; or (ii) register
the transfer of or exchange any Preferred Securities so selected for
redemption, in whole or in part, except the unredeemed portion of any such
Preferred Securities being redeemed in part.


 


(d)           No
service charge shall be made for any registration of transfer or exchange of
Preferred Securities Certificates, subject to the provisions of Section 503A,
but the Securities Registrar may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Preferred Securities Certificates.


 


(e)           Preferred
Securities may only be transferred, in whole or in part, in accordance with the
terms and conditions set forth in this Trust Agreement. Any transfer or
purported transfer of any Preferred Security not made in accordance with this
Trust Agreement shall be null and void. A Preferred Security that is not a
Global Preferred Security may be transferred, in whole or in part, to a Person
who takes delivery in the form of another Preferred Security that is not a
Global Preferred Security as provided in Section 504(a). A beneficial
interest in a Global Preferred Security may be exchanged for a Preferred
Security that is not a Global Preferred Security only as provided in Section 503A.


 


(f)            Neither
the Property Trustee nor the Securities Registrar shall be responsible for
ascertaining whether any transfer hereunder complies with the registration
provisions of or any exemptions from the Securities Act, applicable state
securities laws or the applicable laws of any other jurisdiction, ERISA, the
Code or the Investment Company Act; provided, that if a Preferred Securities
Certificate is specifically required by the express terms of this Section 504 to
be delivered to the Property Trustee or the Securities Registrar by a Holder or
transferee of a Preferred Security, the Property Trustee and the Securities
Registrar shall be under a duty to receive and examine the same to determine
whether or not the Preferred Securities Certificate substantially conforms on
its face to the requirements of this Trust Agreement and shall promptly notify
the party delivering the same if such certificate does not comply with such
terms.


 


SECTION 505  MUTILATED, DESTROYED, LOST OR STOLEN TRUST
SECURITIES CERTIFICATES.


 


If (a) any mutilated Trust Securities
Certificate shall be surrendered to the Securities Registrar, or if the
Securities Registrar shall receive evidence to its satisfaction of the destruction,
loss or theft of any Trust Securities Certificate; and (b) there shall be
delivered to the Securities Registrar and the Administrative Trustees such
security or indemnity as may be required by them to save each of them harmless,
then in the absence of notice that such Trust Securities Certificate shall have
been acquired by a bona fide purchaser, the Administrative 


 


24

















 


Trustees, or any one of them, on behalf of the Trust
shall execute and make available for delivery, and, with respect to Preferred
Securities, the Property Trustee shall authenticate, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Certificate,
a new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section 505, the Administrative Trustees or the Securities Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith. Any duplicate Trust
Securities Certificate issued pursuant to this Section 505 shall
constitute conclusive evidence of an undivided beneficial interest in the
assets of the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Trust Securities Certificate shall be found at any time.


 


SECTION 506  PERSONS DEEMED SECURITYHOLDERS.


 


The
Trustees, the Paying Agent and the Securities Registrar shall treat the Person
in whose name any Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities Certificate for the
purpose of receiving Distributions and for all other purposes whatsoever, and
neither the Trustees nor the Securities Registrar shall be bound by any notice
to the contrary.


 


SECTION 507  ACCESS TO LIST OF SECURITYHOLDERS’ NAMES AND
ADDRESSES.


 


At any
time when the Property Trustee is not also acting as the Securities Registrar,
the Administrative Trustees or the Depositor shall furnish or cause to be
furnished to the Property Trustee (a) within five Business Days after March 15,
June 15, September 15 and December 15 of each year, a list, in such form
as the Property Trustee may reasonably require, of the names and addresses of
the Securityholders as of the most recent record date; and (b) promptly
after receipt by any Administrative Trustee or the Depositor of a request
therefor from the Property Trustee in order to enable the Property Trustee to discharge its
obligations under this Trust Agreement, in each case to the extent such
information is in the possession or control of the Administrative Trustees or
the Depositor and is not identical to a previously supplied list or has not
otherwise been received by the Property Trustee in its capacity as Securities
Registrar. The rights of Securityholders to communicate with other
Securityholders with respect to their rights under this Trust Agreement or
under the Trust Securities, and the corresponding rights of the Trustee shall
be as provided in the Trust Indenture Act. Each Holder, by receiving and
holding a Trust Securities Certificate, and each owner shall be deemed to have agreed not
to hold the Depositor, the Property Trustee or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.


 


SECTION 508  MAINTENANCE OF OFFICE OR AGENCY.


 


The
Administrative Trustees shall maintain, or cause to be maintained, in a
location or locations designated by the Administrative Trustees, an office or
offices or agency or agencies where Preferred Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust 


 


25

















 


Securities
Certificates may be served. The Administrative Trustees initially designate the
Corporate Trust Office of the Property Trustee, 919 North Market Street, Suite 1600,
Wilmington, Delaware 19801, Attention: Corporate Trust Services, as the
principal corporate trust office for such purposes. The Administrative Trustees
shall give prompt written notice to the Depositor, the Property Trustee and to
the Securityholders of any change in the location of the Securities Register or
any such office or agency.


 


SECTION 509  APPOINTMENT OF PAYING AGENT.


 


The
Paying Agent shall make Distributions to Securityholders from the Payment
Account and shall report the amounts of such Distributions to the Property
Trustee and the Administrative Trustees. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account for the purpose of
making the Distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. The Paying
Agent shall initially be the Property Trustee, and any co-paying agent chosen
by the Property Trustee must be acceptable to the Administrative Trustees and
the Depositor. Any Person acting as Paying Agent shall be permitted to resign
as Paying Agent upon 30 days’ written notice to the Administrative Trustees,
the Property Trustee and the Depositor. In the event that the Property Trustee
shall no longer be the Paying Agent or a successor Paying Agent shall resign or
its authority to act be revoked, the Administrative Trustees shall appoint a
successor that is acceptable to the Property Trustee and the Depositor to act
as Paying Agent (which shall be a bank or trust company). The Administrative
Trustees shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Administrative Trustees to execute and deliver to the Trustees
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent shall hold all sums, if any, held by it for payment
to the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and, upon removal of a
Paying Agent, such Paying Agent shall also return all
funds in its possession to the Property Trustee. The provisions of Sections
801, 803 and 806 shall apply to the Property Trustee also in its role as Paying
Agent, for so long as the Property Trustee shall act as Paying Agent and, to
the extent applicable, to any other Paying Agent appointed hereunder. Any
reference in this Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.


 


SECTION 510  OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR.


 


On the
Closing Date, the Depositor shall acquire and retain beneficial and record
ownership of the Common Securities. To the fullest extent permitted by law, any
attempted transfer of the Common Securities (other than a transfer in
connection with a merger or consolidation of the Depositor into another
corporation pursuant to Section 12.1 of the Indenture) shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued
to the Depositor to contain a legend stating “THIS CERTIFICATE IS NOT
TRANSFERABLE.”


 


26














 


SECTION 511 
TRUST SECURITIES CERTIFICATES.


 


(a)           Upon their original issuance, Preferred Securities
Certificates shall be issued in the form of one or more fully registered Global
Preferred Securities Certificates which will be deposited with or on behalf of
the Clearing Agency and registered in the name of the Clearing Agency’s
nominee. Unless and until it is exchangeable in whole or in part for the
Preferred Securities in definitive form, a global security may not be
transferred except as a whole by the Clearing Agency to a nominee of the
Clearing Agency or by a nominee of the Clearing Agency to the Clearing Agency
or another nominee of the Clearing Agency or by the Clearing Agency or any such
nominee to a successor of such Clearing Agency or a nominee of such successor.


 


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


 


SECTION 512 
NOTICES TO CLEARING AGENCY.


 


To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Preferred Securities are
represented by a Global Preferred Securities Certificate, the Trustees shall
give all such notices and communications specified herein to be given to the
Clearing Agency, and shall have no obligation to provide notice to
the owners of the beneficial interest in the Global Preferred Securities.


 


SECTION 513 
RIGHTS OF SECURITYHOLDERS.


 


(a)           The legal title to
the Trust Property is vested exclusively in
the Property Trustee (in its capacity
as such) in accordance with Section 209 and the Securityholders shall not
have any right or title therein other than the undivided beneficial interest in
the assets of the Trust conferred by their Trust Securities and they shall have
no right to call for any partition or division of property,
profits or rights of the Trust except as described below. The Trust Securities
shall be personal property giving only the rights specifically set forth
therein and in this Trust Agreement. The Trust Securities shall have no
preemptive or similar rights. When issued and delivered to Holders of the
Preferred Securities against payment of the purchase price therefor, the
Preferred Securities shall be fully paid and nonassessable interests in the
Trust. The Holders of the Preferred Securities, in their capacities as such,
shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General Corporation
Law of the State of Delaware.


 


(b)           For
so long as any Preferred Securities remain Outstanding, if, upon a Debenture
Event of Default, the Debenture Trustee fails or the holders of not less than
25% in principal amount of the outstanding Debentures fail to declare the
principal of all of the Debentures to be immediately due and payable, the
Holders of at least 25% in Liquidation Amount of the Preferred Securities then
Outstanding shall have such right by a notice in writing to the Depositor and
the Debenture Trustee; and upon any such declaration such principal amount of
and the accrued interest on all of the Debentures shall become immediately due
and 


 


27

















 


payable, provided that the payment of principal and
interest on such Debentures shall remain subordinated to the extent provided in
the Indenture.


 


(c)           For
so long as any Preferred Securities remain Outstanding, upon a
Debenture Event of Default arising from the failure to pay interest or principal
on the Debentures, the Holders of any Preferred Securities then Outstanding
shall, to the fullest extent permitted by law, have the right to directly
institute proceedings for enforcement of payment to such Holders of principal
of or interest on the Debentures having a principal amount equal to the
Liquidation Amount of the Preferred Securities of such Holders.


 


ARTICLE VI

ACTS OF SECURITYHOLDERS; MEETINGS; VOTING


 


SECTION 601 
LIMITATIONS ON VOTING RIGHTS.


 


(a)           Except
as provided in this Section 601, in Sections 513, 810 and 1002 and in the
Indenture and as otherwise required by law, no record
Holder of Preferred
Securities shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed so as
to constitute the Securityholders from time to time as partners or members of
an association.


 


(b)           So
long as any Debentures are held by the Property Trustee on behalf of the Trust,
the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee, or
executing any trust or power conferred on the Debenture Trustee with respect to
such Debentures; (ii) waive any past default which is waivable under Article VII
of the Indenture; (iii) exercise any right to rescind or annul a
declaration that the principal of all the Debentures shall be due and payable;
or (iv) consent to any amendment, modification or termination of the
Indenture or the Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of at least a majority
in Liquidation Amount of all Outstanding Preferred Securities; provided,
however, that where a consent under the Indenture would
require the consent of each holder of outstanding Debentures affected thereby,
no such consent shall be given by the Property Trustee without the prior
written consent of each Holder of Preferred Securities. The Trustees shall not
revoke any action previously authorized or approved by a vote of the Holders of
the Outstanding Preferred Securities, except by a subsequent vote of the
Holders of the Outstanding Preferred Securities. The Property Trustee shall
notify each Holder of the Outstanding Preferred Securities of any notice of
default received from the Debenture Trustee with respect to the Debentures. In
addition to obtaining the foregoing approvals of the Holders of the Preferred
Securities, prior to taking any of the foregoing actions, the Trustees shall,
at the expense of the Depositor, obtain an Opinion of Counsel experienced in
such matters to the effect that the Trust shall continue to be classified as a
grantor trust and not as an association taxable as a corporation for United
States federal income tax purposes on account of such action.


 


(c)           If
any proposed amendment to the Trust Agreement provides for, or the Trustees
otherwise propose to effect, (i) any action that would adversely affect in
any material respect the powers, preferences or special rights of the Preferred
Securities, whether by way of 


 


28

















 


amendment to the Trust Agreement or otherwise; or (ii) the
dissolution, winding-up or termination of the Trust, other than pursuant to the
terms of this Trust Agreement, then the Holders of Outstanding Preferred
Securities as a class shall be entitled to vote on such amendment or proposal and
such amendment or proposal shall not be effective except with the approval of
the Holders of at least a majority in Liquidation Amount of the Outstanding
Preferred Securities. No amendment to this Trust Agreement may be made if, as a
result of such amendment, the Trust would cease to be classified as a grantor
trust or would be classified as an association taxable as a corporation for
United States federal income tax purposes.


 


SECTION 602 
NOTICE OF MEETINGS.


 


Notice of all meetings of the Holders of Preferred Securities, stating
the time, place and purpose of the meeting, shall be given by the Property
Trustee pursuant to Section 1009 to each Holder of the Preferred
Securities of record, at such Holder’s registered address, at least 15 days and
not more than 90 days before the meeting. At any such meeting, any business
properly before the meeting may be so considered whether or not stated in the
notice of the meeting. Any adjourned meeting may be held as adjourned without
further notice.


 


SECTION 603 
MEETINGS OF PREFERRED SECURITYHOLDERS.


 


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


 


(b)           Holders
of record of 50% of the Outstanding Preferred Securities (based upon their
aggregate Liquidation Amount), present in person or by proxy, shall constitute
a quorum at any meeting of Securityholders.


 


(c)           If
a quorum is present at a meeting, an affirmative vote by the Holders of
Preferred Securities of record present, in person or by proxy, holding at least
a majority of the Preferred Securities (based upon their aggregate Liquidation
Amount) held by the Holders of Preferred Securities of record present, either
in person or by proxy, at such meeting shall constitute the action of the Holders
of Preferred Securities, unless this Trust Agreement requires a greater number
of affirmative votes.


 


SECTION 604 
VOTING RIGHTS.


 


Securityholders shall be entitled to one vote for each $25 of
Liquidation Amount represented by their Trust Securities (with any fractional
multiple thereof rounded up or down as the case may be to the closest integral
multiple) in respect of any matter as to which such Securityholders are
entitled to vote.


 


29

















 


SECTION 605 
PROXIES, ETC.


 


At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Administrative Trustees, or
with such other officer or agent of the Trust as the Administrative Trustees
may direct, for verification prior to the time at which such vote shall be
taken. Only Holders of record shall be entitled to vote. When Trust Securities
are held jointly by several Persons, any one of them may vote at any meeting in
person or by proxy in respect of such Trust Securities, but if more than one of
them shall be present at such meeting in person or by proxy, and such joint
owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Securityholder shall be deemed valid unless challenged at
or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.


 


SECTION 606 
SECURITYHOLDER ACTION BY WRITTEN CONSENT.


 


Any action which may be taken by
Securityholders at a meeting may be taken without a meeting if Securityholders
holding more than a majority of all Outstanding Trust Securities (based upon
their aggregate Liquidation Amount) entitled to vote in respect of such action
(or such larger proportion thereof as shall be required by any express
provision of this Trust Agreement) shall consent to the action in writing
(based upon their aggregate Liquidation Amount).


 


SECTION 607 
RECORD DATE FOR VOTING AND OTHER PURPOSES.


 


For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate
in any Distribution on the Trust Securities in respect of which a record date
is not otherwise provided for in this Trust Agreement, or for the purpose of
any other action, the Administrative Trustees may from time to time fix a date,
not more than 90 days prior to the date of any meeting of Securityholders or
the payment of Distribution or other action, as the case may be, as a record
date for the determination of the identity of the Securityholders of record for
such purposes.


 


SECTION 608 
ACTS OF SECURITYHOLDERS.


 


(a)           Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Trust Agreement to be given, made or taken
by Securityholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Securityholders in person or by an agent duly appointed in writing; and, except as otherwise
expressly provided herein, such action shall become effective when such
instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred
to as the “Act” of the Securityholders signing such instrument or
instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject to Section 801)
conclusive in favor of the Trustees, if made in the manner provided in this Section 608.


 


30

















 


(b)           The
fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than such signer’s
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of such signer’s authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which any Trustee receiving the
same deems sufficient.


 


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


 


(d)           Any
request, demand, authorization, direction, notice, consent, waiver or other Act
of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the
Securityholder of every Trust Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon such Trust
Security.


 


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


 


(f)            A
Securityholder may institute a legal proceeding directly against the Depositor
under the Guarantee to enforce its rights under the Guarantee without first
instituting a legal proceeding against the Guarantee Trustee (as defined in the
Guarantee), the Trust or any Person.


 


(g)           If
any dispute shall arise among the Holders or the Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization,
direction, notice, consent, waiver or other Act of such Holder or Trustee under
this Article VI, then the determination of such matter by the Property
Trustee shall be conclusive with respect to such matter.


 


SECTION 609 
INSPECTION OF RECORDS.


 


Upon reasonable written notice to the Administrative Trustees and the
Property Trustee, the records of the Trust shall be open to inspection at the
principal executive office of the Trust (as indicated in Section 202) by
Holders of the Trust Securities during normal business hours for any purpose
reasonably related to such Holder’s interest as a Holder.


 


31

















 


ARTICLE VII

REPRESENTATIONS AND WARRANTIES


 


SECTION 701 
REPRESENTATIONS AND WARRANTIES OF THE BANK AND THE PROPERTY TRUSTEE.


 


The Bank and the Property Trustee, each severally on behalf of and as
to itself, as of the date hereof, and each successor Property Trustee at the
time of the successor Property Trustee’s acceptance of its appointment as
Property Trustee hereunder (in the case of a successor Property Trustee, the
term “Bank” as used herein shall be deemed to refer to such successor Property
Trustee in its separate corporate capacity), hereby represents and warrants (as
applicable) for the benefit of the Depositor and the Securityholders that:


 


(a)           the
Bank is a national banking association, validly existing and in good standing
under the laws of the United States of America;


 


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


 


(c)           this
Trust Agreement has been duly authorized, executed and delivered by the
Property Trustee and constitutes the valid and legally binding agreement of the
Property Trustee enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors’
rights and to general equity principles;


 


(d)           the
execution, delivery and performance by the Property Trustee of this Trust
Agreement has been duly authorized by all necessary corporate or other action
on the part of the Property Trustee and does not require any approval of
stockholders of the Bank and such execution, delivery and performance shall not
(i) violate the Bank’s charter or by-laws; (ii) violate any provision
of, or constitute, with or without notice or lapse of time, a default under, or result in the creation or
imposition of, any Lien on any properties included in the Trust Property
pursuant to the provisions of, any indenture, mortgage, credit agreement,
license or other agreement or instrument to which the Property Trustee or the
Bank is a party or by which it is bound; or (iii) violate any law,
governmental rule or regulation of the United States or Delaware, as the
case may be, governing the banking or trust powers of the Bank or the Property
Trustee (as appropriate in context) or any order, judgment or decree applicable
to the Property Trustee or the Bank;


 


(e)           neither
the authorization, execution or delivery by the Property Trustee of this Trust
Agreement nor the consummation of any of the transactions by the Property
Trustee contemplated herein or therein requires the consent or approval of, the
giving of notice to, the registration with or the taking of any other action
with respect to any governmental authority or agency under any existing federal
law governing the banking or trust powers of the Bank or the Property Trustee,
as the case may be, under the laws of the United States or Delaware;


 


(f)            there
are no proceedings pending or, to the best of the Property Trustee’s knowledge,
threatened against or affecting the Bank or the Property Trustee in any court
or 


 


32

















 


before any governmental authority, agency or
arbitration board or tribunal which, individually or in the aggregate, would
materially and adversely affect the Trust or would question the right, power
and authority of the Property Trustee to enter into or perform its obligations
as one of the Trustees under this Trust Agreement; and


 


(g)           the
Property Trustee is a Person eligible pursuant to the Trust Indenture Act to
act as such and has (or has a parent that has) a combined capital and surplus
of at least $50,000,000.


 


SECTION 702 
REPRESENTATIONS AND WARRANTIES OF THE DELAWARE BANK AND THE DELAWARE
TRUSTEE.


 


The Delaware Bank and the Delaware Trustee, each severally on behalf of
and as to itself, as of the date hereof, and each successor Delaware Trustee at
the time of the successor Delaware Trustee’s acceptance of appointment as
Delaware Trustee hereunder (the term “Delaware Bank” being used to refer to
such successor Delaware Trustee in its separate corporate capacity), hereby
represents and warrants (as applicable) for the benefit of the Depositor and
the Securityholders that:


 


(a)           the
Delaware Bank is a national banking association or Delaware banking
corporation, validly existing and in good standing under the laws of the United
States of America or the state of Delaware;


 


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


 


(c)           this
Trust Agreement has been duly
authorized, executed and delivered by the Delaware Trustee and constitutes the
valid and legally binding agreement of the Delaware Trustee enforceable against
it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights and to general equity principles;


 


(d)           the
execution, delivery and performance by the Delaware Trustee of this Trust
Agreement has been duly authorized by all necessary trust or other action on
the part of the Delaware Trustee and does not require any approval of
stockholders of the Delaware Bank and such execution, delivery and performance
shall not (i) violate the Delaware Bank’s charter or by-laws; (ii) violate
any provision of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation or imposition of, any Lien on any
properties included in the Trust Property pursuant to the provisions of, any
indenture, mortgage, credit agreement, license or other agreement or instrument
to which the Delaware Bank or the Delaware Trustee is a party or by which it is
bound; or (iii) violate any law, governmental rule or regulation of
the United States or the State of Delaware, as the case may be, governing the
banking or trust powers of the Delaware Bank or the Delaware Trustee (as
appropriate in context) or any order, judgment or decree applicable to the
Delaware Bank or the Delaware Trustee;


 


33

















 


(e)           neither
the authorization, execution or delivery by the Delaware Trustee of this Trust
Agreement nor the consummation of any of the transactions by the Delaware
Trustee contemplated herein or therein requires the consent or approval of, the
giving of notice to, the registration with or the taking of any other action
with respect to any governmental authority or agency under any existing federal
law or existing law of the State of Delaware governing the banking or trust
powers of the Delaware Bank or the Delaware Trustee, as the case may be, under
the laws of the United States or the State of Delaware; and


 


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


 


SECTION 703 
REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.


 


The Depositor hereby represents and warrants for the benefit of the
Securityholders that:


 


(a)           the
Trust Securities Certificates issued on the Closing Date or the Option Closing
Date, if applicable, on behalf of the Trust have been duly authorized and,
shall have been, duly and validly executed, issued and delivered by the
applicable Trustees pursuant to the terms and provisions of, and in accordance
with the requirements of, this Trust Agreement and the Securityholders shall
be, as of such date, entitled to the benefits of this Trust Agreement; and


 


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


 


ARTICLE VIII

TRUSTEES


 


SECTION 801 
CERTAIN DUTIES AND RESPONSIBILITIES.


 


(a)           The
rights, immunities, duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the
case of the Property
Trustee, by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Trust Agreement shall require any of the Trustees to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its or their duties hereunder, or in the exercise of any
of its rights or powers, if they shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it. No Administrative Trustee nor the
Delaware Trustee shall be liable for its act or omissions hereunder except as a
result of its own gross negligence or willful misconduct. The Property Trustee’s
liability shall be determined under the Trust Indenture Act. Whether or not
herein expressly so provided, every provision of this Trust Agreement relating
to the conduct or affecting the liability of or affording protection to the
Trustees shall be subject to the provisions 


 


34

















 


of this Section 801. To the extent that, at law
or in equity, a Trustee has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or to the Securityholders, such Trustee shall not
be liable to the Trust or to any Securityholder for such Trustee’s
good faith reliance on the provisions of this Trust Agreement. The provisions
of this Trust Agreement, to the extent that they restrict the duties and
liabilities of the Trustees otherwise existing at law or in equity, are agreed
by the Depositor and the Securityholders to replace
such other duties and
liabilities of the Trustees.


 


(b)           All
payments made by the Property Trustee or a Paying Agent in respect of the Trust
Securities shall be made only from the revenue and proceeds from the Trust
Property and only to the extent that there shall be sufficient revenue or
proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it shall
look solely to the revenue and proceeds from the Trust Property to the extent
legally available for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount distributable in
respect of any Trust Security or for any other liability in respect of any
Trust Security. This Section 801(b) does not limit the liability of
the Trustees expressly set forth elsewhere in this Trust Agreement or, in the
case of the Property Trustee, in the Trust Indenture Act.


 


(c)           No
provision of this Trust Agreement shall be construed to relieve the Property
Trustee from liability with respect to matters that are within the authority of
the Property Trustee under this Trust Agreement for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that:


 


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


 


(ii)           the Property Trustee shall not be liable
with respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
majority in Liquidation Amount of the Preferred Securities relating to the
time, method and place of conducting any proceeding for any remedy available to
the Property Trustee, or exercising any trust or power conferred upon the
Property Trustee under this Trust Agreement;


 


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


 


35

















 


(iv)                              the Property Trustee shall not be liable
for any interest on any money received by it and money held by the Property
Trustee need not be segregated from other funds held by it except in relation
to the Payment Account maintained by the Property Trustee pursuant to Section 301
and except to the extent otherwise required by law; and


 


(v)                                 the Property Trustee shall not be
responsible for monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust Agreement, nor shall
the Property Trustee be liable for the negligence, default or misconduct of the
Delaware Trustee, the Administrative Trustees or the Depositor.


 


SECTION 802 
CERTAIN NOTICES.


 


(a)           Within
thirty (30) days after the occurrence of any Event of Default actually known to
the Property Trustee, the Property Trustee shall transmit, in the manner and to
the extent provided in Section 1009, notice of such Event of Default to
the Securityholders, the Administrative Trustees and the Depositor, unless such
Event of Default shall have been cured or waived. For purposes of this Section 802
the term “Event of Default” means any event that is, or after notice or lapse
of time or both would become, an Event of Default.


 


(b)           The
Administrative Trustees shall transmit, to the Securityholders in the manner
and to the extent provided in Section 1009, notice of the Depositor’s
election to begin or further extend an Extended Interest Payment Period on the
Debentures (unless such election shall have been revoked) and of any election
by the Depositor to accelerate the Maturity Date of the Debentures, as defined
in the Indenture, within the time specified for transmitting such notice to the
holders of the Debentures pursuant to the Indenture.


 


(c)           The
Property Trustee shall not be deemed to have knowledge of any default or Event
of Default unless the Property Trustee shall have received written notice
thereof from the Depositor, any Administrative Trustee or any Holder or unless
a Responsible Officer of the Property Trustee shall have obtained actual
knowledge of such default or Event of Default.


 


SECTION 803 
CERTAIN RIGHTS OF PROPERTY TRUSTEE.


 


Subject to the provisions of Section 801:


 


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


 


36

















 


(b)           if (i) in
performing its duties under this Trust Agreement the Property Trustee is
required to decide between alternative courses of action; or (ii) in
construing any of the provisions of this Trust Agreement the Property Trustee
finds the same ambiguous or inconsistent with other provisions contained
herein; or (iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to which
the Holders of Preferred Securities are entitled to vote under the terms of
this Trust Agreement, the Property Trustee shall deliver a notice to the
Depositor requesting written instructions of the Depositor as to the course of
action to be taken and the Property Trustee shall take such action, or refrain
from taking such action, as the Property Trustee shall be instructed in writing
to take, or to refrain from taking, by the Depositor; provided,
however, that if the Property Trustee does not receive such instructions of the
Depositor within 10 Business Days after it has delivered such notice, or such
reasonably shorter period of time set forth in such notice (which to the extent
practicable shall not be less than 2 Business Days), the Property Trustee may,
but shall be under no duty to, take or refrain from taking such action not
inconsistent with this Trust Agreement as the Property Trustee shall deem
advisable and in the best interests of the Securityholders, in which event the
Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;


 


(c)           any
direction or act of the Depositor contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officers’ Certificate, and any direction or act of
an Administrative Trustee contemplated by this Trust Agreement shall be
sufficiently evidenced by a certificate executed by such Administrative Trustee
and setting forth such direction or act;


 


(d)           whenever
in the administration of this Trust Agreement, the Property Trustee shall deem
it desirable that a matter be established before undertaking, 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 Depositor;


 


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


 


(f)            the
Property Trustee may consult with counsel of its choice (which counsel may be
counsel to the Depositor or any of its Affiliates) and the advice of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon and, in accordance with such advice, such counsel may be
counsel to the Depositor 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 Trust Agreement from any
court of competent jurisdiction;


 


(g)           the
Property Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Trust Agreement at the request or direction of any
of the Securityholders pursuant to this Trust
Agreement, unless
such Securityholders shall have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses (including reasonable
attorney’s fees and expenses) and liabilities which might be incurred by it in 


 


37

















 


compliance with such request or direction, including
reasonable advances as may be requested by the Property Trustee; nothing
contained herein shall, however, relieve the Property Trustee of the
obligation, upon the occurrence of any Event of Default (that has not been
cured or waived) to exercise the rights and powers vested in it by this Trust
Agreement or imposed on it under applicable law;


 


(h)           the
Property Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, approval, bond, debenture, note or
other evidence of indebtedness or
other paper or
document, unless requested in writing to do so by one or more Securityholders,
but the Property Trustee may make such further inquiry or investigation into
such facts or matters as it may see fit and, if the Property Trustee has a
reasonable need to make such inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Depositor, personally or by
agent or attorney, during normal business hours, on reasonable notice to the
Depositor, and after signing a confidentiality agreement containing terms and
provisions that are reasonable under the circumstances;


 


(i)            the
Property Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through its agents, custodians,
nominees or attorneys, and the Property Trustee shall not be liable for the
default or misconduct of such other agents, custodians, nominees or attorneys;
provided that the Property Trustee shall be responsible for its own negligence
or recklessness with respect to selection of any agent or attorney appointed by
it hereunder;


 


(j)            whenever
in the administration of this Trust Agreement 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 and this Trust
Agreement in respect of such remedy, right or action; (ii) may refrain
from enforcing such remedy or right or taking such other action until such
instructions are received; and (iii) shall be protected in acting in
accordance with such instructions; and


 


(k)           except
as otherwise expressly provided by this Trust Agreement, the Property Trustee
shall not be under any obligation to take any action that is discretionary
under the provisions of this Trust Agreement. No provision of this Trust Agreement shall
be deemed to impose any duty or obligation on the Property Trustee to perform
any act or acts or exercise any right, power, duty or obligation conferred or
imposed on it, in any jurisdiction in which it shall be illegal, or in which the
Property Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts, or to exercise any such right,
power, duty or obligation. No permissive power or authority available to the
Property Trustee shall be construed to be a duty.


 


SECTION 804 
NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.


 


The Recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Trust, and the Trustees do not assume
any responsibility for their 


 


38

















 


correctness. The Trustees
shall not be accountable for the use or application by the Depositor of the
proceeds of the Debentures.


 


SECTION 805  MAY HOLD
SECURITIES.


 


Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 808 and 813 and except as provided in the
definition of the term “Outstanding” in Article I, may otherwise deal with
the Trust with the same rights it would have if it were not a Trustee or such
other agent.


 


SECTION 806 
COMPENSATION; INDEMNITY; FEES.


 


The Depositor agrees:


 


(a)           to
pay to the Trustees from time to time reasonable compensation for all services
rendered by them hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust), in the case of the Property Trustee and Delaware Trustee, as set forth
in a written agreement between the Depositor, the Property Trustee and Delaware
Trustee;


 


(b)           to
reimburse the Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the expenses
and disbursements of their agents and counsel), except any such expense,
disbursement or advance as may be attributable to such Trustee’s negligence,
bad faith or willful misconduct (or, in the case of the Administrative Trustees
or the Delaware Trustee, any such expense, disbursement or advance as may be
attributable to its, his or her gross negligence, bad faith or willful
misconduct); and


 


(c)           to
indemnify each of the Trustees and their respective managers, directors,
agents, shareholders and employees or any predecessor Trustee for, and to hold
the Trustees harmless from and against, any loss, damage, claims, liability,
penalty, tax or expense of any kind or
nature whatsoever,
arising out of or in connection with the acceptance or administration of the
Trust or this Trust Agreement, including the advancement of funds to cover the
reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder, except any such expense, disbursement or advance as may be
attributable to such Trustee’s negligence, bad faith or willful misconduct for
(or, in the case of the Administrative Trustees or the Delaware Trustee, any
such expense, disbursement or advance as may be attributable to its, his or her gross
negligence, bad faith or willful misconduct). 
The provisions of this Section 806 shall survive the termination of
this Trust Agreement and the earlier removal or resignation of any Trustee.


 


(d)           No
Trustee may claim any Lien or charge on the Trust Property as a result of any
amount due and unpaid pursuant to this Section 806.


 


(e)           To
the fullest extent permitted by law, in no event shall any of the Trustees be
liable for any indirect, special, punitive or consequential loss or damage of
any kind whatsoever, including, but not limited to, lost profits, even if such 


 


39

















 


Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action.


 


(f)            In
no event shall any of the Trustees be liable for any failure or delay in the
performance of its obligations hereunder because of circumstances beyond its
control, including, but not limited to, acts of God, flood, war (whether
declared or undeclared), terrorism, fire, riot, embargo, government action,
including any laws, ordinances, regulations, governmental action or the like
which delay, restrict or prohibit the providing of the services contemplated by
this Trust Agreement.


 


SECTION 807 
CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF TRUSTEES.


 


(a)           There
shall at all times be a Property Trustee hereunder with respect to the Trust
Securities. The Property Trustee shall be a Person that is eligible pursuant to
the Trust Indenture Act to act as such and has (or has a parent that has) a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section 807,
the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions
of this Section 807, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article VIII.


 


(b)           There
shall at all times be one or more Administrative Trustees hereunder with
respect to the Trust Securities. Each Administrative Trustee shall be either a
natural person who is at least 21 years of age or a legal entity that shall act
through one or more persons authorized to bind that entity.


 


(c)           There
shall at all times be a Delaware Trustee with respect to the Trust Securities.
The Delaware Trustee shall either be (i) a natural person who is at least
21 years of age and a resident of the State of Delaware; or (ii) a legal
entity with its principal place of business in the State of Delaware and that
otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.  The Delaware Trustee shall have the same
rights, privileges and immunities as the Property Trustee.


 


SECTION 808 
CONFLICTING INTERESTS.


 


If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall
either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Trust Agreement.


 


SECTION 809 
CO-TRUSTEES AND SEPARATE TRUSTEE.


 


(a)           Unless
a Debenture Event of Default shall have occurred and be continuing, at any time
or times, for the purpose of meeting the legal requirements of the Trust 


 


40

















 


Indenture Act or of any jurisdiction in which any part
of the Trust Property may at the time be located, the Depositor shall have
power to appoint, and upon the written request of the Property Trustee, the
Depositor shall for such purpose join with the Property Trustee in the
execution, delivery and performance of all instruments and agreements necessary
or proper to appoint, one or more Persons approved by the Property Trustee
either to act as co-trustee, jointly with the Property Trustee, of all or any
part of such Trust Property, or to the extent required by law to act as
separate trustee of any such property, in either case with such powers as may
be provided in the instrument of appointment, and to vest in such Person or
Persons in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Section 809.
If the Depositor does not join in such appointment within 15 days after the
receipt by it of a request so to do, or in case a Debenture Event of Default
has occurred and is continuing, the Property Trustee alone shall have power to
make such appointment. Any co-trustee or separate trustee appointed pursuant to
this Section 809 shall either be (i) a natural person who is at least
21 years of age and a resident of the United States; or (ii) a legal
entity with its principal place of business in the United States that shall act
through one or more persons authorized to bind such entity.


 


(b)           Should
any written instrument from the Depositor be required by any co-trustee or
separate trustee so appointed for more fully confirming to such co-trustee or
separate trustee such property, title, right, or power, any and all such
instruments shall, on request, be executed, acknowledged, and delivered by the
Depositor.


 


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


 


(i)            The Trust Securities shall be executed and delivered
and all rights, powers, duties and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or required to
be deposited or pledged with, the Trustees specified hereunder, shall be
exercised, solely by such Trustees and not by such co-trustee or separate
trustee.


 


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


 


(iii)          The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor, may 


 


41

















 


accept the
resignation of or remove any co-trustee or separate trustee appointed under
this Section 809, and, in case a Debenture Event of Default has occurred
and is continuing, the Property Trustee shall have the power to accept the
resignation of, or remove, any such co-trustee or separate trustee without the
concurrence of the Depositor. Upon the written request of the Property Trustee,
the Depositor shall join with the Property Trustee in the execution, delivery
and performance of all instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor to any co-trustee or
separate trustee so resigned or removed may be appointed in the manner provided
in this Section 809.


 


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


 


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


 


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


 


SECTION 810  RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.


 


(a)           No
resignation or removal of any Trustee (the “Relevant Trustee”) and no
appointment of a successor Trustee pursuant to this Article VIII shall
become effective until the acceptance of appointment by the successor Trustee
in accordance with the applicable requirements of Section 811.


 


(b)           Subject
to the immediately preceding paragraph, the Relevant Trustee may resign at any
time with respect to the Trust Securities by giving written notice thereof to
the Depositor and the Securityholders. If the instrument of acceptance by the
successor Trustee required by Section 811 shall not have been delivered to
the Relevant Trustee within 30 days after the giving of such notice of
resignation, the Relevant Trustee may petition, at the expense of the
Depositor, any court of competent jurisdiction for the appointment of a
successor Relevant Trustee with respect to the Trust Securities.


 


(c)           Unless
a Debenture Event of Default shall have occurred and be continuing, any Trustee
may be removed at any time by Act of the Holder of Common Securities. If a
Debenture Event of Default shall have occurred and be continuing, the Property
Trustee or the Delaware Trustee, or both of them, may be removed at such time
by Act of the Holders of a majority in Liquidation Amount of the Preferred
Securities, delivered to the Relevant Trustee (in its individual capacity and
on behalf of the Trust). An Administrative Trustee may be removed by the Holder
of Common Securities at any time.


 


42














 


(d)           If
any Trustee shall resign, be removed or become incapable of acting as Trustee,
or if a vacancy shall occur in the office of any Trustee for any cause, at a
time when no Debenture Event of Default shall have occurred and be continuing,
the Holder of Common Securities, by Act of the Holder of Common Securities
delivered to the retiring Trustee, shall promptly appoint a successor Trustee
or Trustees with respect to the Trust Securities and the Trust, and the
successor Trustee shall comply with the applicable requirements of Section 811.
If the Property Trustee or the Delaware Trustee shall resign, be removed or
become incapable of continuing to act as the Property Trustee or the Delaware
Trustee, as the case may be, at a time when a Debenture Event of Default shall
have occurred and is continuing, the Holders of Preferred Securities, by Act of
the Securityholders of a majority in Liquidation Amount of the Preferred
Securities then Outstanding delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees with respect to the
Trust Securities and the Trust, and such successor Trustee shall comply with
the applicable requirements of Section 811. If an Administrative Trustee
shall resign, be removed or become incapable of acting as Administrative
Trustee, at a time when a Debenture Event of Default shall have occurred and be
continuing, the Holder of Common Securities, by Act of the Holder of Common
Securities delivered to an Administrative Trustee, shall promptly appoint a
successor Administrative Trustee or Administrative Trustees with respect to the
Trust Securities and the Trust, and such successor Administrative Trustee or
Administrative Trustees shall comply with the applicable requirements of Section 811.
If no successor Relevant Trustee with respect to the Trust Securities shall
have been so appointed by the Holder of Common Securities or the Holders of
Preferred Securities and accepted appointment in the manner required by Section 811,
any Securityholder who has been a Securityholder of Trust Securities on behalf
of himself and all others similarly situated and any resigning Trustee may, in
each case, at the expense of the Depositor, petition a court of competent
jurisdiction for the appointment of a Trustee with respect to the Trust
Securities.


 


(e)           The
Depositor shall give notice of each resignation and each removal of a Trustee
and each appointment of a successor Trustee to all Securityholders in the
manner provided in Section 1009. Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust Office if it
is the Property Trustee.


 


(f)            Notwithstanding
the foregoing or any other provision of this Trust Agreement, in the event any
Administrative Trustee or a Delaware Trustee who is a natural person dies or
becomes, in the opinion of the Depositor, incompetent or incapacitated, the
vacancy created by such death, incompetence or incapacity may be filled by (a) the
unanimous act of the remaining Administrative Trustees if there are at least
two of them; or (b) otherwise by the Depositor (with the successor in each
case being a Person who satisfies the eligibility requirement for
Administrative Trustees or Delaware Trustee, as the case may be, set forth in Section 807).


 


(g)           Upon
the appointment of a successor Delaware Trustee, such successor Delaware
Trustee shall file a Certificate of Amendment to the Certificate of Trust in
accordance with Section 3810 of the Delaware Statutory Trust Act.


 


43

















 


SECTION 811 
ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.


 


(a)           In
case of the appointment hereunder of a successor Relevant Trustee with respect
to the Trust Securities and the Trust, the retiring Relevant Trustee and each
successor Relevant Trustee with respect to the Trust Securities shall execute
and deliver an instrument hereto wherein each successor Relevant Trustee shall
accept such appointment and which shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers,
trusts and duties of
the retiring Relevant Trustee with respect to the Trust Securities and the
Trust and upon the execution and delivery of such instrument the resignation or
removal of the retiring Relevant Trustee shall become effective to the extent
provided therein and each such successor Relevant Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Relevant Trustee with respect to the Trust
Securities and the Trust; but, on request of the Trust or any successor
Relevant Trustee such retiring Relevant Trustee shall, upon payment of its
charges, duly assign, transfer and deliver to such successor Relevant Trustee
all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.


 


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


 


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


 


SECTION 812 
MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.


 


Any
Person into which the Property Trustee or the Delaware Trustee may be merged or
converted or with which it may
be consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Relevant Trustee shall be a party, or any Person
succeeding to all or substantially all the corporate trust business of such
Relevant Trustee, shall be the successor of such Relevant Trustee hereunder,
provided such Person shall be otherwise qualified and eligible under this Article VIII,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.


 


SECTION 813  PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR OR
TRUST.


 


If
and when the Property Trustee or the Delaware Trustee shall be or become a
creditor of the Depositor or the Trust (or any other obligor upon the
Debentures or the Trust Securities),
the Property Trustee or the Delaware Trustee, as the case may be, shall
be subject to and shall take all actions necessary in order to comply with the
provisions of the Trust Indenture Act regarding the collection of claims
against the Depositor or Trust (or any such other obligor).


 


44

















 


SECTION 814 
REPORTS BY PROPERTY TRUSTEE.


 


(a)           On
or before July 15 of each year, commencing July 15, 2009, the
Property Trustee shall transmit to the Securityholders such reports concerning
the Property Trustee, its actions under this Trust Agreement and the property
and funds in its possession in its capacity as the Property Trustee as of May 15
if and to the extent required pursuant to the Trust Indenture Act in the manner
provided pursuant thereto.


 


(b)           A
copy of each such report shall, at the time of such transmission to Holders, be
filed by the Property Trustee with the New York Stock Exchange, and each
national securities exchange or other organization upon which the Trust
Securities are listed, and also with the Commission and the Depositor.


 


SECTION 815 
REPORTS TO THE PROPERTY TRUSTEE.


 


The Depositor and the
Administrative 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(a) of
the Trust Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.


 


SECTION 816 
EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.


 


Each of the Depositor and
the Administrative 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 Trust Agreement 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) of
the Trust Indenture Act shall be given in the form of an Officers’ Certificate.


 


SECTION 817  NUMBER OF TRUSTEES.


 


(a)           The
number of Trustees shall be five, provided that the Holder of all of the Common
Securities by written instrument may increase or decrease the number of
Administrative Trustees. The Property Trustee and the Delaware Trustee may be
the same Person.


 


(b)           If
a Trustee ceases to hold office for any reason and the number of Administrative
Trustees is not reduced pursuant to Section 817(a), or if the number of
Trustees is increased pursuant to Section 817(a), a vacancy shall occur.
The vacancy shall be filled with a Trustee appointed in accordance with Section 810.


 


(c)           The
death, resignation, retirement, removal, bankruptcy, incompetence or incapacity
to perform the duties of a Trustee shall not operate to annul the Trust.
Whenever a vacancy in the number of Administrative Trustees shall occur, until
such vacancy is filled by the appointment of an Administrative Trustee in
accordance with Section 810, the Administrative Trustees in office,
regardless of their number (and notwithstanding any other provision of this 


 


45

















 


Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.


 


SECTION 818 
DELEGATION OF POWER.


 


(a)           Any
Administrative Trustee may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purpose of executing any documents contemplated in Section 207(a);
and


 


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


 


SECTION 819 
VOTING.


 


Except as otherwise provided in this Trust Agreement, the
consent or approval of the Administrative Trustees shall require consent or
approval by not less than a majority of the Administrative Trustees, unless
there are only two, in which case both must consent.


 


SECTION 820 
NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.


 


The recitals contained herein and in the Trust
Securities Certificates shall be taken as the statements of the Trust and the
Depositor, and the Trustees do not assume any responsibility for their
correctness.  The Trustees make no
representations as to the title to, or value or condition of, the property of
the Trust or any part thereof, nor as to the validity or sufficiency of this
Trust Agreement, the Debentures or the Trust Securities.  The Trustees shall not be accountable for the
use or application by the Depositor of the proceeds of the Debentures. It is
expressly understood and agreed by the parties hereto that insofar as any
document, agreement or certificate is executed on behalf of the Trust by any
Trustee (a) such document, agreement or certificate is executed and
delivered by such Trustee, not in its individual capacity but solely as Trustee
under this Trust Agreement in the exercise of the powers and authority
conferred and vested in it, (b) each of the representations, warranties,
covenants, undertakings and agreements made on the part of the Trust is made
and intended not as a representation, warranty, covenant, undertaking or
agreement by any Trustee in its individual capacity but is made and intended
for the purpose of binding only the Trust and (c) under no circumstances
shall any Trustee in its individual capacity be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Trust under this Trust Agreement or any other document,
agreement or certificate.


 


46

















 


ARTICLE IX

TERMINATION, LIQUIDATION AND MERGER


 


SECTION 901  TERMINATION UPON EXPIRATION DATE.


 


Unless earlier dissolved, the Trust shall automatically
dissolve on
                  ,
2038 (the “Expiration Date”) subject to distribution of the Trust Property in
accordance with Section 904.


 


SECTION 902 
EARLY TERMINATION.


 


The first to occur of any
of the following
events is an “Early
Termination Event:”


 


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


 


(b)           delivery
of written direction to the Administrative Trustees and the Property Trustee by
the Depositor at any time (which direction is wholly optional and within the
discretion of the Depositor, subject to Depositor having received prior
approval of the Board of Governors of the Federal Reserve System if so required
under applicable guidelines, policies or regulations thereof) to dissolve the
Trust and distribute the Debentures to Securityholders in exchange for the
Preferred Securities in accordance with Section 904;


 


(c)           the
redemption of all of the Preferred Securities in connection with the redemption
of all of the Debentures (whether upon a Debenture Redemption Date or the
maturity of the Debentures); or


 


(d)           an
order for dissolution of the Trust shall have been entered by a court of
competent jurisdiction.


 


SECTION 903 
TERMINATION.


 


The
respective obligations and responsibilities of the Trustees and the Trust
continued hereby shall terminate upon the latest to occur of the following: (a) the
distribution by the Property Trustee to Securityholders upon the instruction of
the Administrative Trustees and the liquidation of the Trust pursuant to Section 904,
or upon the redemption of all of the Trust Securities pursuant to Section 402,
of all amounts required to be distributed hereunder upon the final payment of
the Trust Securities; (b) the payment of any expenses owed by the Trust; (c) the
discharge of all administrative duties of the Administrative Trustees,
including the performance of any tax reporting obligations with respect to the
Trust or the Securityholders; and (d) the filing of a Certificate of
Cancellation by an Administrative Trustee under the Delaware Statutory Trust
Act after satisfaction of liabilities to creditors of the Trust as required by
applicable law.


 


SECTION 904 
LIQUIDATION.


 


(a)           If
an Early Termination Event specified in clause (a), (b), or (d) of Section 902
occurs or upon the Expiration Date, the Trust shall be liquidated by the
Trustees as expeditiously as the Administrative Trustees determine to be
possible by instructing the Property 


 


47

















 


Trustee to distribute, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, to each
Securityholder a Like Amount of Debentures, subject to Section 904(d).
Notice of liquidation shall be given by the Administrative Trustees by
first-class mail, postage prepaid, mailed not later than 30 nor more than 60
days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder’s address appearing in the Securities Register. All notices of
liquidation shall:


 


(i)                                   state the Liquidation Date;


 


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


 


(iii)                             provide such information with respect to
the mechanics by which Holders may exchange Trust Securities Certificates for
Debentures, or, if Section 904(d) applies, receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee shall deem
appropriate.


 


(b)           Except
where Section 902(c) or 904(d) applies, in order to
effect the liquidation of the Trust and distribution of the Debentures to
Securityholders, the Administrative Trustees shall establish a record date for
such distribution (which shall be not more than 45 days prior to the
Liquidation Date) and, either itself acting as exchange agent or through the
appointment of a separate exchange agent, shall establish such procedures as it
shall deem appropriate to effect the distribution of Debentures in exchange for
the Outstanding Trust Securities Certificates.


 


(c)           Except
where Section 902(c) or 904(d) applies, after the Liquidation
Date, (i) the Trust Securities shall no longer be deemed to be
Outstanding; (ii) certificates representing a Like Amount of Debentures
shall be issued to Holders of Trust Securities Certificates upon surrender of such
certificates to the Administrative Trustees or their agent for exchange; (iii) the
Depositor shall use commercially reasonable efforts to have the Debentures
listed on the New York Stock Exchange or on such other securities exchange or
automated quotation system as the Preferred Securities are then listed or traded; (iv) any Trust Securities Certificates not so
surrendered for exchange shall be deemed to represent a Like Amount of
Debentures, accruing interest at the rate provided for in the Debentures from
the last Distribution Date on which a Distribution was made on such Trust
Securities Certificates until such certificates are so surrendered (and until
such certificates are so surrendered, no payments of interest or principal
shall be made to Holders of Trust Securities Certificates with respect to such
Debentures); and (v) all rights of Securityholders holding Trust
Securities shall cease, except the right of such Securityholders to receive
Debentures upon surrender of Trust Securities Certificates.


 


(d)           In
the event that, notwithstanding the other provisions of this Section 904,
whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Debentures in the manner
provided herein is determined by the Administrative Trustees not to be
practical, the Trust Property shall be liquidated, and the Trust 


 


48

















 


shall be dissolved, wound-up or terminated, by the
Administrative Trustees in such manner as the Administrative Trustees
determine. In such event, on the date of the dissolution, winding-up or other
termination of the Trust, Securityholders shall be entitled to receive out of
the assets of the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to the Liquidation Amount per Trust Security plus
accumulated and unpaid Distributions thereon to the date of payment (such
amount being the “Liquidation Distribution”). If, upon any such dissolution,
winding-up or termination, 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, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust Securities shall be
paid on a pro rata basis (based upon Liquidation Amounts). The Holder of the
Common Securities shall be entitled to receive Liquidation Distributions upon
any such dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that, if a Debenture
Event of Default has occurred and is continuing, the Preferred Securities
shall have a priority over the Common Securities.


 


SECTION 905 
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST.


 


The
Trust may not merge with or into, convert into, consolidate, amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any corporation or other
Person, except pursuant to this Section 905. At the request of the
Depositor, with the consent of the Administrative Trustees and without the
consent of the Holders of the Preferred Securities, the Property Trustee or the
Delaware Trustee, the Trust may merge with or into, convert into, consolidate,
amalgamate, be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to a trust organized as such under the laws
of any state; provided, that (i) such successor entity either (a) expressly
assumes all of the obligations of the Trust with respect to the Preferred
Securities; or (b) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred Securities (the
“Successor Securities”) so long as the Successor Securities rank the same as
the Preferred Securities rank in priority with respect to distributions and
payments upon liquidation, redemption and otherwise; (ii) the Depositor
expressly appoints a trustee of such successor entity possessing substantially
the same powers and duties as the Property Trustee as the holder of the
Debentures; (iii) the Successor Securities are listed or traded, or
any Successor Securities shall be listed or traded upon notification of
issuance, on any national securities exchange or other organization on which
the Preferred Securities are then listed, if any; (iv) such merger,
conversion, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
Holders of the Preferred Securities (including any Successor Securities) in any
material respect; (v) such successor entity has a purpose substantially
identical to that of the Trust; (vi) prior to such merger, conversion,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Depositor has received an Opinion of Counsel to the effect that (a) such
merger, conversion, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the Holders of the Preferred Securities (including any Successor
Securities) in any material respect; and (b) following such merger,
conversion, consolidation, amalgamation, replacement, conveyance, transfer or
lease, neither the Trust nor such successor entity shall be required to register
as an “investment company” under the Investment Company 


 


49

















 


Act; and (vii) the
Depositor owns all of the Common Securities of such successor entity and
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee, the Debentures,
this Trust Agreement and the Expense Agreement. For purposes of this Section 905,
any consolidation, conversion, merger, sale, conveyance, transfer or other disposition
involving the Depositor, as a result of which (a) the Depositor is not the
surviving Person, and (b) the surviving Person is not both (i) the
primary obligor in respect of the Debentures and (ii) the Guarantor under
the Guarantee, shall be deemed to constitute a replacement of the Trust by a
successor entity; provided further that, notwithstanding the foregoing, in the
event that upon the consummation of such a consolidation, conversion, merger,
sale, conveyance, transfer or other disposition, the parent company (if any) of
the Depositor, or its successor, is a bank holding company or financial holding
company or comparably regulated financial institution, such parent company
shall guarantee the obligations of the Trust (and any successor thereto) under
the Preferred Securities (including any Successor Securities) at least to the
extent provided by the Guarantee, the Debentures, the Trust Agreement and the
Expense Agreement. Notwithstanding the foregoing, the Trust shall not, except
with the consent of Holders of 100% in Liquidation Amount of the Preferred
Securities, consolidate, convert, 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 Person or permit any other Person to
consolidate, convert, amalgamate, merge with or into, or replace it if such
consolidation, conversion, amalgamation, merger or replacement would cause the
Trust or the successor entity to be classified as other than a grantor trust for
United States federal income tax purposes.


 


ARTICLE X

MISCELLANEOUS PROVISIONS


 


SECTION 1001 
LIMITATION OF RIGHTS OF SECURITYHOLDERS.


 


The death or incapacity
of any Person having an interest, beneficial or otherwise, in Trust Securities
shall not operate to terminate this Trust Agreement, nor entitle the legal
representatives or heirs of such Person or any Securityholder for such Person,
to claim an accounting, take any action or bring any proceeding in any court
for a partition or winding-up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.


 


SECTION 1002 
AMENDMENT.


 


(a)           This
Trust Agreement may be amended from time to time by the Property Trustee, the Administrative
Trustees and the Depositor, without the consent of any Securityholders, (i) as
provided in Section 811 with respect to acceptance of appointment by a
successor Trustee; or (ii) to cure any ambiguity, correct or supplement
any provision herein which may be inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Trust Agreement, that shall not be inconsistent with the other
provisions of this Trust Agreement; or (iii) to modify, eliminate or add
to any provisions of this Trust Agreement to such extent as shall be necessary
to ensure that the Trust shall be classified for United States federal income
tax purposes as a grantor trust at all times that any Trust Securities are
Outstanding or to ensure that the Trust shall not be required to register as
an “investment company” under the Investment Company Act; or (iv) to
reduce or increase the Liquidation Amount per
Trust 


 


50

















 


Security and simultaneously to correspondingly
increase or decrease the number of Trust Securities issued and Outstanding
solely for the purpose of maintaining the eligibility of the Preferred Securities
for quotation or listing on any national securities exchange or other
organization on which the Preferred Securities are then quoted or listed
(including, if applicable, the New York Stock Exchange); provided, however,
that in the case of clause (ii), such action shall not adversely affect in any
material respect the interests of any Securityholder, and provided further,
that in the case of clause (iv) the aggregate Liquidation Amount of the
Trust Securities Outstanding upon completion of any such reduction must be the
same as the aggregate Liquidation Amount of the Trust Securities Outstanding
immediately prior to such reduction or increase; and any amendments of this
Trust Agreement shall become effective when notice thereof is given to the
Securityholders (or in the case of an amendment pursuant to clause (iv), as of the
date specified in the notice).


 


(b)           Except
as provided in Section 601(c) or Section 1002(c) hereof,
any provision of this Trust Agreement may be amended by the Property Trustee,
the Administrative Trustees and the Depositor (i) with the consent of Trust
Securityholders representing not less than a majority (based upon Liquidation
Amounts) of the Trust Securities then Outstanding (such consent being obtained
in accordance with Section 603 or 606 hereof); and (ii) upon receipt
by the Trustees of an Opinion of Counsel to the effect that such amendment or
the exercise of any power granted to the Trustees in accordance with such
amendment shall not affect the Trust’s status as a grantor trust for United
States federal income tax purposes or the Trust’s exemption from status as an ‘investment
company’ under the Investment Company Act.


 


(c)           In
addition to and notwithstanding any other provision in this Trust Agreement,
without the consent of each affected Securityholder (such consent being
obtained in accordance with Section 603 or 606 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount
of any Distribution required to be made in respect of the Trust Securities as
of a specified date; or (ii) restrict the right of a Securityholder to
institute suit for the enforcement of any such payment on or after such date;
notwithstanding any other provision herein, without the unanimous consent of
the Securityholders (such consent being obtained in accordance with Section 603
or 606 hereof), this paragraph (c) of this Section 1002 may not be
amended.


 


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


 


(e)           Notwithstanding
anything in this Trust Agreement to the contrary, without the consent of the
Depositor, this Trust Agreement may not be amended in a manner which imposes
any additional obligation on the Depositor.


 


(f)            In
the event that any amendment to this Trust Agreement is made, the
Administrative Trustees shall promptly provide to the Depositor and the
Debenture Trustee a copy of such amendment.


 


51

















 


(g)           Neither
the Property Trustee nor the Delaware Trustee shall be required to
enter into any amendment to this Trust Agreement which affects its own rights,
duties or immunities under this Trust Agreement. The Property Trustee shall be
entitled to receive an Opinion of Counsel and an Officers’ Certificate stating
that any amendment to this Trust Agreement has been effected in compliance with
this Trust Agreement and all conditions precedent herein provided for relating
to such action have been met.


 


SECTION 1003 
SEPARABILITY.


 


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


 


SECTION 1004 
GOVERNING LAW.


 


THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF
THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST
AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES THEREOF); PROVIDED, HOWEVER, THAT THERE SHALL NOT
BE APPLICABLE TO THE PARTIES HEREUNDER OR THIS AGREEMENT ANY PROVISION OF THE
LAWS (COMMON OR STATUTORY) OF THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT
RELATE TO OR REGULATE, IN A MANNER INCONSISTENT WITH THE TERMS HEREOF, (A) THE
FILING WITH ANY COURT OR GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR
SCHEDULES OF TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST
BONDS FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C) THE
NECESSITY FOR OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL CONCERNING THE
ACQUISITION, HOLDING OR DISPOSITION OF REAL OR PERSONAL PROPERTY, (D) FEES
OR OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (E) THE
ALLOCATION OF RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL, (F) RESTRICTIONS
OR LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR CONCENTRATION OF TRUST
INVESTMENTS OR REQUIREMENTS RELATING TO THE TITLING, STORAGE OR OTHER MANNER OF
HOLDING OR INVESTING TRUST ASSETS OR (G) THE ESTABLISHMENT OF FIDUCIARY OR
OTHER STANDARDS OF RESPONSIBILITY OR LIMITATIONS ON THE ACTS OR POWERS OF
TRUSTEES THAT ARE INCONSISTENT WITH THE LIMITATIONS OR AUTHORITIES AND POWERS
OF THE TRUSTEE HEREUNDER AS SET FORTH OR REFERENCED IN THIS AGREEMENT.  SECTION 3540 OF TITLE 12 OF THE
DELAWARE CODE SHALL NOT APPLY TO THE TRUST.


 


SECTION 1005 
CONSENT TO JURISDICTION; SERVICE OF PROCESS.


 


Each party hereto (a) irrevocably
submits to the
exclusive jurisdiction of any federal or state court sitting in Wilmington,
Delaware in respect of any action or proceeding arising out of or related to in
any manner whatsoever this Trust Agreement, (b) expressly submits 


 


52

















 


and consents in advance
to such jurisdiction in any action or suit commenced in any such court, and
hereby waives any objection such party may have based upon lack of personal
jurisdiction, improper venue or forum non conveniens, and (c) consents to the
service of process by mail. Nothing herein shall affect the right of any party
to serve legal process in any manner permitted by law or affect its right to
bring any action in any other court.


 


SECTION 1006 
PAYMENTS DUE ON NON-BUSINESS DAY.


 


If the date fixed for any
payment on any Trust Security shall be a day that is not a Business Day, then
such payment need not be made on such date but may be made on the next
succeeding day which is a Business Day, except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day (and without any reduction of interest or
any other payment in respect of any such acceleration), in each case with the
same force and effect as though made on the date fixed for such payment, and no
distribution shall accumulate thereon for the period after such date.


 


SECTION 1007 
SUCCESSORS.


 


This Trust Agreement
shall be binding upon and shall inure to the benefit of any successor to the Depositor,
the Trust or the Relevant Trustee(s), including any successor by operation of
law. Except in connection with a consolidation, merger or sale involving the
Depositor that is permitted under Article XII of the Indenture and
pursuant to which the assignee agrees in writing to perform the Depositor’s
obligations hereunder, the Depositor shall not assign its obligations
hereunder.


 


SECTION 1008 
HEADINGS.


 


The Article and Section headings
are for convenience
only and shall not affect the construction of this Trust Agreement.


 


SECTION 1009 
REPORTS, NOTICES AND DEMANDS.


 


Any report, notice,
demand or other communication
which by any provision of this Trust Agreement is required or permitted to be
given or served to or upon any Securityholder or the Depositor may be given or
served in writing by deposit thereof, first-class postage prepaid, in the
United States mail, hand delivery or facsimile transmission, in each case,
addressed, (a) in the case of a Holder of Preferred Securities, to such
Holder as such Securityholder’s name and address may appear on the Securities
Register; and (b) in the case of the Holder of Common Securities or the
Depositor, to Capitol Bancorp Center, 200 Washington Square North, Lansing,
Michigan 48933, Attention: Cristin K. Reid, Esq., facsimile no.: (517)
374-2576. Any notice to the Holders of Preferred Securities shall also be given
to such owners as have, within two years preceding the giving of such notice,
filed their names and addresses with the Property Trustee for that purpose.
Such notice, demand or other communication to or upon a Securityholder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission.


 


53

















 


Any notice, demand or
other communication
which by any provision of this Trust Agreement is required or permitted to be
given or served to or upon the Trust, the Property Trustee or the
Administrative Trustees shall be given in writing addressed (until another address
is published by the Trust) as follows: (a) with respect to the Property
Trustee to Wells Fargo Bank, N.A., 919 North Market Street, Suite 1600,
Wilmington, Delaware 19801, Attention: Corporate Trust Services; (b) with
respect to the Delaware Trustee, to Wells Fargo Delaware Trust Company, 919
North Market Street, Suite 1600, Wilmington, Delaware 19801, Attention:
Corporate Trust Services; and (c) with respect to the Administrative
Trustees, to them at the address above for notices to the Depositor, marked “Attention:
Administrative Trustees of Capitol Trust XII.” Such notice, demand or other
communication to or upon the Trust or the Property Trustee shall be deemed to
have been sufficiently given or made only upon actual receipt of the writing by
the Trust or the Property Trustee.


 


SECTION 1010 
AGREEMENT NOT TO PETITION.


 


Each of the Trustees and
the Depositor agree for the benefit of the Securityholders that, until at least
one year and one day after the Trust has been terminated in accordance with Article IX,
they shall not file, or join in the filing of, a petition against the Trust
under any bankruptcy, insolvency, reorganization or other similar law
(including, without limitation, the United States Bankruptcy Code of 1978, as
amended) (collectively, “Bankruptcy Laws”) or otherwise join in the
commencement of any proceeding against the Trust under any Bankruptcy Law. In
the event the Depositor or any of the Trustees takes action in violation of
this Section 1010, the Property Trustee agrees, for the benefit of
Securityholders, that at the expense of the Depositor (which expense shall be
paid prior to the filing), it shall file an answer with the bankruptcy court or
otherwise properly contest the filing of such petition by the Depositor or such
Trustee against the Trust or the commencement of such action and raise the
defense that the Depositor or such Trustee has agreed in writing not to take such
action and should be stopped and precluded therefrom. The provisions of this Section 1010
shall survive the termination of
this Trust Agreement.


 


SECTION 1011 
TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE ACT.


 


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


 


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


 


(c)           If
any provision hereof limits, qualifies or conflicts with another provision
hereof which is required to be included in this Trust Agreement by any of the
provisions of the Trust Indenture Act, such required provision shall control.
If any provision of this Trust Agreement modifies or excludes any provision of the Trust
Indenture Act which may be so modified or excluded, the latter provision shall
be deemed to apply to this Trust Agreement as so modified or to be excluded, as
the case may be.


 


54

















 


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


 


SECTION 1012 
ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE AND INDENTURE.


 


THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY
INTEREST THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER,
WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF
THIS TRUST AGREEMENT AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER
TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF
THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF
THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE
TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.


 


SECTION 1013 
COUNTERPARTS.


 


This Trust Agreement may
be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.


 


[SIGNATURE
PAGE FOLLOWS]


 


55

















 


	
   

  	
  CAPITOL BANCORP LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, N.A.,
  AS 

  PROPERTY TRUSTEE

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WELLS FARGO DELAWARE
  TRUST 

  COMPANY, AS DELAWARE TRUSTEE

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lee W. Hendrickson,

  
	
   

  	
  as Administrative
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Bruce A. Thomas,

  
	
   

  	
  as Administrative
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Jeffrey D. Saunders,

  
	
   

  	
  as Administrative
  Trustee

  
				



 


56














 


EXHIBIT A


 


CERTIFICATE OF TRUST

OF

CAPITOL TRUST XII


 


THIS
CERTIFICATE OF TRUST OF CAPITOL TRUST XII (the “Trust”), is being duly executed
and filed by Wells Fargo Delaware Trust Company, as Delaware Trustee, Lee W.
Hendrickson, Bruce A. Thomas and Jeffrey D. Saunders, as Administrative
Trustees, to form a Delaware statutory trust under the Delaware Statutory Trust
Act (12 Del. C. Section 3801 et seq.) (the “Act”).


 


1.                                       NAME. 
The name of the Delaware statutory trust formed hereby is Capitol Trust
XII.


 


2.                                       DELAWARE TRUSTEE.  The name and business address of the
trustee of the Trust in the State of Delaware is Wells Fargo Delaware Trust
Company, 919 North Market Street, Suite 1600, Wilmington, Delaware 19801.


 


3.                                       EFFECTIVE
DATE.  This Certificate of Trust shall be
effective upon filing.


 


IN WITNESS WHEREOF, the
undersigned have executed this Certificate of Trust in accordance with Section 3811(a)(1) of
the Act.


 


	
   

  	
  Wells Fargo
  Delaware Trust Company, as 

  Delaware trustee 

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
                                                  ,
  as 

  
	
   

  	
  Administrative
  Trustee 

  
	
   

  	
   

  
	
   

  	
  Name: Lee W.
  Hendrickson

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
                                                  ,
  as 

  
	
   

  	
  Administrative
  Trustee 

  
	
   

  	
   

  
	
   

  	
  Name: Bruce
  A. Thomas

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
                                                    ,
  as 

  
	
   

  	
  Administrative
  Trustee 

  
	
   

  	
   

  
	
   

  	
  Name:
  Jeffrey D. Saunders

  
				



 


A-1

















 


EXHIBIT B


 


THIS CERTIFICATE IS NOT TRANSFERABLE


 


	
  CERTIFICATE NUMBER

  	
  NUMBER OF COMMON SECURITIES

  



 


CERTIFICATE EVIDENCING COMMON SECURITIES

OF

CAPITOL TRUST XII


 


COMMON SECURITIES

(LIQUIDATION AMOUNT $25 PER COMMON SECURITY)


 


CAPITOL TRUST
XII, a statutory trust created under the laws of the State of Delaware (the “Trust”),
hereby certifies that CAPITOL BANCORP LTD. (the “Holder”) is
the registered owner of
                                                    
(                  )
common securities of the Trust representing undivided beneficial interests in
the assets of the Trust and designated the Common Securities (liquidation
amount $25 per Common Security) (the “Common Securities”). In accordance with Section 510
of the Trust Agreement (as defined below), the Common Securities are not
transferable and any attempted transfer hereof shall be void. The designations,
rights, privileges, restrictions, preferences, and other terms and provisions
of the Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject
to the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of
              ,
2008, as the same may be amended from time to time (the “Trust Agreement”),
including the designation of the terms of the Common Securities as set forth therein.
The Trust shall furnish a copy of the Trust Agreement to the Holder without
charge upon written request to the Trust at its principal place of business or
registered office.


 


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


 


IN WITNESS
WHEREOF, one of the Administrative Trustees of the Trust has executed this
certificate this        day of
                  ,
2008.


 


	
   

  	
  CAPITOL
  TRUST XII

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:      Administrative
  Trustee

  



 


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EXHIBIT C


 


AGREEMENT AS TO EXPENSES AND LIABILITIES


 


AGREEMENT AS TO EXPENSES
AND LIABILITIES (this “Agreement”) dated as of
                ,
2008, between Capitol Bancorp Ltd., a Michigan corporation (the “Company”), and
Capitol Trust XII, a Delaware statutory trust (the “Trust”).


 


RECITALS


 


WHEREAS, the
Trust intends to issue its common securities (the “Common Securities”) to, and
receive       % Junior Subordinated Debentures
(the “Debentures”) from, the Company and to issue and sell Capitol Trust XII
        % Cumulative Trust Preferred
Securities (the “Preferred Securities’) with such powers, preferences and
special rights and restrictions as are set forth in the Amended and Restated
Trust Agreement of the Trust dated as of
                
2008, as the same may be amended from time to time (the “Trust Agreement”);


 


WHEREAS, the
Company shall directly or indirectly own all of the Common Securities of the
Trust and shall issue the Debentures;


 


NOW,
THEREFORE, in consideration of the purchase by each holder of the Preferred
Securities, which purchase the Company hereby agrees shall benefit the Company
and which purchase the Company acknowledges shall be made in reliance upon the
execution and delivery of this Agreement, the Company, including in its
capacity as holder of the Common Securities, and the Trust hereby agree as
follows:


 


ARTICLE I


 


SECTION 1.1 
GUARANTEE BY THE COMPANY.


 


Subject to the
terms and conditions hereof, the Company, including in its capacity as holder
of the Common Securities, hereby irrevocably and unconditionally guarantees to
each person or entity to whom the Trust is now or hereafter becomes indebted or
liable (the “Beneficiaries”) the full payment when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
“Obligations” means any costs, expenses or liabilities of the Trust other than
obligations of the Trust to pay to holders of any Preferred Securities or other
similar interests in the Trust the amounts due such holders pursuant to the terms of the
Preferred Securities or such other similar interests, as the case may be. This
Agreement is intended to be for the benefit of, and to be enforceable by, all
such Beneficiaries, whether or not such Beneficiaries have received notice
hereof.


 


SECTION 1.2 
TERM OF AGREEMENT.


 


This Agreement
shall terminate and be of no further force and effect upon the later of (a) the
date on which full payment has been made of all amounts payable to all holders
of all the Preferred Securities (whether upon redemption, liquidation, exchange
or otherwise); and (b) the date on which there are no Beneficiaries
remaining; provided, however, that this Agreement shall continue to be
effective or shall be reinstated, as the case may be, if at any time 


 


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any holder of Preferred Securities or any
Beneficiary must restore payment of any sums paid under the Preferred
Securities, under any obligation, under the Preferred Securities Guarantee
Agreement dated the date hereof by the Company and
                            
as guarantee trustee or under this Agreement for any reason
whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.


 


SECTION 1.3 
WAIVER OF NOTICE.


 


The Company
hereby waives notice of acceptance of this Agreement and of any obligation to
which it applies or may apply, and the Company hereby waives presentment,
demand for payment, protest, notice of nonpayment, notice of dishonor, notice
of redemption and all other notices and demands.


 


SECTION 1.4 
NO IMPAIRMENT.


 


The
obligations, covenants, agreements and duties of the Company under this
Agreement shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:


 


(a)           the
extension of time for the payment by the Trust of all or any portion of the
Obligations or for the performance of any other obligation under, arising out
of, or in connection with, the Obligations;


 


(b)           any failure, omission, delay or lack of
diligence on the part of the Beneficiaries to enforce, assert or exercise any
right, privilege, power or remedy conferred on the Beneficiaries with respect
to the Obligations or any action on the part of the Trust granting indulgence
or extension of any kind; or


 


(c)           the
voluntary or involuntary liquidation, dissolution, sale of any collateral,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement composition or readjustment of debt of, or other
similar proceedings affecting, the Trust or any of the assets of the Trust.


 


There shall be
no obligation of the Beneficiaries to give notice to, or obtain the consent of,
the Company with respect to the happening of any of the foregoing.


 


SECTION 1.5 
ENFORCEMENT.


 


A Beneficiary
may enforce this Agreement directly against the Company, and the Company waives
any right or remedy to require that any action be brought against the Trust or
any other person or entity before proceeding against the Company.


 


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ARTICLE II


 


SECTION 2.1 
BINDING EFFECT.


 


All guarantees
and agreements contained in this Agreement shall bind the successors, assigns,
receivers, trustees and representatives of the Company and shall inure to the
benefit of the Beneficiaries.


 


SECTION 2.2 
AMENDMENT.


 


So long as
there remains any Beneficiary or any Preferred Securities of any series are
outstanding, this Agreement shall not be modified or amended in any manner
adverse to such Beneficiary or to any of the holders of the Preferred Securities.


 


SECTION 2.3 
NOTICES.


 


Any notice,
request or other communication required or permitted to be given hereunder
shall be given in writing by delivering the same by facsimile transmission
(confirmed by mail), telex, or by registered or certified mail, addressed as
follows (and if so given, shall be deemed given when mailed or upon receipt of
an answer back, if sent by facsimile):


 


Capitol Trust XII


c/o Capitol Bancorp Ltd.


200 Washington Square North


Lansing, Michigan 48933


Facsimile No.: (      )
      -


Attention:


 


Capitol Bancorp Ltd.


200 Washington Square North


Lansing, Michigan 48933


Facsimile No.: (      )
      -


Attention:


 


SECTION 2.4 
GOVERNING LAW.


 


This agreement
shall be governed by and
construed and interpreted in accordance with the laws of the State of
[Michigan] (without regard to conflict of laws principles).


 


[SIGNATURE PAGE TO FOLLOW]


 


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THIS AGREEMENT is executed
as of the day and year first above written.


 


	
   

  	
  CAPITOL BANCORP LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  CAPITOL TRUST XII

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
       Title:  Administrative
  Trustee

  



 


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EXHIBIT D


 


	
  CERTIFICATE NUMBER

  	
  NUMBER OF
  PREFERRED SECURITIES

  



 


CERTIFICATE
EVIDENCING PREFERRED SECURITIES

OF

CAPITOL TRUST XII


 


        %
CUMULATIVE TRUST PREFERRED SECURITIES

(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)


 


	
   

  	
  CUSIP NO.

  



 


Capitol Trust
XII, a statutory trust created under the laws of the State of Delaware (the “Trust”),
hereby certifies that
                  
(the “Holder”) is the registered owner of preferred securities of the Trust
representing undivided beneficial interests in the assets of the Trust and
designated the         % Cumulative
Trust Preferred Securities (liquidation amount $25 per Preferred Security) (the
“Preferred Securities”).  The Preferred
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this Certificate duly endorsed
and in proper form for transfer as provided in Section 504 of the Trust
Agreement (as defined herein). The designations, rights, privileges,
restrictions, preferences, and other terms and provisions of the Preferred
Securities are set forth in, and this Certificate and the Preferred Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust dated
as of
              ,
2008, as the same may be amended from time to time (the “Trust Agreement”),
including the designation of the terms of Preferred Securities as set forth
therein.  The Holder is entitled to the
benefits of the Preferred Securities Guarantee Agreement entered into by
Capitol Bancorp Ltd., a Michigan corporation, and Wells Fargo Bank, N.A., as
guarantee trustee, dated as of
              ,
2008, as the same may be amended from time to time (the “Guarantee”), to the
extent provided therein. The Trust shall furnish a copy of the Trust Agreement and the Guarantee to
the Holder without charge upon written request to the Trust at its principal
place of business or registered office.


 


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


 


Unless the
Certificate of Authentication has been manually executed by the Property
Trustee, this Certificate is not valid or effective.


 


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IN WITNESS
WHEREOF, one of the Administrative Trustees of the Trust has executed this
Certificate this        day of
                ,
2008.


 


 


	
   

  	
   

  	
  CAPITOL
  TRUST XII

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:
  Administrative Trustee

  
	
   

  	
   

  	
   

  



 


 


This is one of
the               %
Cumulative Trust Preferred Securities referred to in the within-mentioned
Amended and Restated Trust Agreement.


 


 


	
   

  	
   

  	
  WELLS FARGO
  BANK, N.A. as Property 

  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  AUTHORIZED
  SIGNATURE

  



 


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LEGEND

FOR CERTIFICATES EVIDENCING 

GLOBAL PREFERRED SECURITIES ONLY:


 


Unless this certificate is presented by an
authorized representative of The Depository Trust Company, a New York
corporation (“DTC”), to Capitol Trust XII or its agent for registration of
transfer, exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested
by an authorized representative of DTC (and any payment is made to Cede &
Co. 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 & Co., has an interest herein.


 


D-3

















 


(FORM OF
REVERSE OF CERTIFICATE]


 


The Trust will
furnish without charge to any registered owner of Preferred Securities who so
requests, a copy of the Trust Agreement and the Guarantee. Any such request
should be in writing and addressed to Capitol Trust XII, c/o Secretary of
Capitol Bancorp Ltd., 200 Washington Square North, Lansing, Michigan 48933 or
to the Registrar named on the face of this Certificate.


 


The following
abbreviations, when used in the inscription on the face of this Certificate,
shall be construed as though they were written out in full according to
applicable laws or regulations:


 


TEN COM—                         As
tenants in common


 


TEN ENT—                           As
tenants by the entireties


 


CT TEN—                             As
joint tenants with right of survival


 


UNIF GIFT MIN ACT— Under Uniform Gift to
Minors Act and not as tenants


 


Additional
abbreviations may also be used though not in the above list.


 


ASSIGNMENT


 


FOR VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto:


 


 


(Please insert
social security or other identifying number of assignee)


 


 


 (insert address and zip code of assignee)


 


the within Certificate and all rights and
interests represented by the Preferred Securities evidenced thereby, and hereby
irrevocably constitutes and appoints attorney to transfer the said Preferred
Securities on the books of


 


the within-named Trust with full power of
substitution in the premises.


 


	
  Dated:

  	
   

  	
   

  	
  Signature:

  	
   

  
	
   

  	
   

  	
   

  	
  Note: The
  signature(s) to this assignment must correspond with the name(s) as
  written upon the face of this Certificate in every particular, without
  alteration or enlargement, or any change whatever.

  



 


	
  Signature(s) Guaranteed:

  
	
   

  
	
   

  	
   

  
	
  NOTICE:
  Signature(s) must be guaranteed by

  an “eligible guarantor institution” that is

  a member or participant in a “signature

  guarantee program” (i.e., the Securities

  Transfer Agents Medallion Program, the

  Stock Exchange Medallion Program or

  the New York Stock Exchange, Inc.

  Medallion Signature Program).

  



 


D-4

















 


EXHIBIT E


 


FORM OF
PREFERRED SECURITIES CERTIFICATE AUTHENTICATION


 


This is one of
the
              %
Cumulative Trust Preferred Securities referred to in the within-mentioned
Amended and Restated Trust Agreement.


 


	
   

  	
  WELLS FARGO BANK, N.A. as
  Property

  Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  AUTHORIZED
  SIGNATURE

  



 


E-1