Exhibit 4.14


 


EXECUTION COPY


 


AMENDED AND RESTATED TRUST AGREEMENT


 


 


among


 


 


Silicon Valley Bancshares, as Depositor,


 


 


Wilmington Trust Company,

as Property Trustee,


 


 


Wilmington Trust Company,

as Delaware Trustee,


 


 


and


 


 


The Administrative Trustees Named Herein


 


 


Dated as of
October 30, 2003


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I.
  DEFINED TERMS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.1.

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II.
  ESTABLISHMENT OF THE TRUST SECTION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.1.

  	
  Name

  	
   

  
	
  Section 2.2.

  	
  Office
  of the Delaware Trustee; Principal Place of Business

  	
   

  
	
  Section 2.3.

  	
  Initial
  Contribution of Trust Property; Organizational Expenses

  	
   

  
	
  Section 2.4.

  	
  Issuance
  of the Preferred Securities

  	
   

  
	
  Section 2.5.

  	
  Issuance
  of the Common Securities; Subscription and Purchase of Debentures

  	
   

  
	
  Section 2.6.

  	
  Declaration of
  Trust

  	
   

  
	
  Section 2.7.

  	
  Authorization
  to Enter into Certain Transactions

  	
   

  
	
  Section 2.8.

  	
  Assets of Trust

  	
   

  
	
  Section 2.9.

  	
  Title to
  Trust Property

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III.
  PAYMENT ACCOUNT

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.1.

  	
  Payment Account

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV.
  DISTRIBUTIONS; REDEMPTION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.1.

  	
  Distributions

  	
   

  
	
  Section 4.2.

  	
  Redemption

  	
   

  
	
  Section 4.3.

  	
  Subordination of Common Securities

  	
   

  
	
  Section 4.4.

  	
  Payment Procedures

  	
   

  
	
  Section 4.5.

  	
  Tax Returns
  and Reports

  	
   

  
	
  Section 4.6.

  	
  Payment of Taxes, Duties, Etc. of the
  Trust

  	
   

  
	
  Section 4.7.

  	
  Payments under Indenture or Pursuant
  to Direct Actions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V. TRUST
  SECURITIES CERTIFICATES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.1.

  	
  Initial Ownership

  	
   

  
	
  Section 5.2.

  	
  The Trust Securities Certificates

  	
   

  
	
  Section 5.3.

  	
  Execution and Delivery of Trust
  Securities Certificates

  	
   

  
	
  Section 5.4.

  	
  Registration of Transfer and Exchange
  of Preferred Securities Certificates

  	
   

  
	
  Section 5.5.

  	
  Mutilated, Destroyed, Lost or Stolen Trust
  Securities Certificates

  	
   

  
	
  Section 5.6.

  	
  Persons
  Deemed Securityholders

  	
   

  
	
  Section 5.7.

  	
  Access
  to List of Securityholders’ Names and Addresses

  	
   

  
	
  Section 5.8.

  	
  Maintenance
  of Office or Agency

  	
   

  
	
  Section 5.9.

  	
  Appointment
  of Paying Agent

  	
   

  
	
  Section 5.10.

  	
  Ownership
  of Common Securities by Depositor

  	
   

  
	
  Section 5.11.

  	
  Book
  Entry Preferred Securities Certificates; Common Securities Certificate

  	
   

  



 


i

















 


	
  Section 5.12.

  	
  Notices to Clearing Agency

  	
   

  
	
  Section 5.13.

  	
  Definitive
  Preferred Securities Certificates

  	
   

  
	
  Section 5.14.

  	
  Rights of
  Securityholders

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI.
  ACTS OF SECURITYHOLDERS; MEETINGS, VOTING

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.1.

  	
  Limitations
  on Voting Rights

  	
   

  
	
  Section 6.2.

  	
  Notice of
  Meetings

  	
   

  
	
  Section 6.3.

  	
  Meetings
  of Preferred Securityholders

  	
   

  
	
  Section 6.4.

  	
  Voting Rights

  	
   

  
	
  Section 6.5.

  	
  Proxies, etc

  	
   

  
	
  Section 6.6.

  	
  Securityholder
  Action by Written Consent

  	
   

  
	
  Section 6.7.

  	
  Record
  Date for Voting and Other Purposes

  	
   

  
	
  Section 6.8.

  	
  Acts of Securityholders

  	
   

  
	
  Section 6.9.

  	
  Inspection of
  Records

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII.
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.1.

  	
  Representations
  and Warranties of the Bank

  	
   

  
	
  Section 7.2.

  	
  Representations and Warranties of
  Depositor

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII.
  THE TRUSTEES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.1.

  	
  Certain
  Duties and Responsibilities

  	
   

  
	
  Section 8.2.

  	
  Certain Notices

  	
   

  
	
  Section 8.3.

  	
  Certain
  Rights of Property Trustee

  	
   

  
	
  Section 8.4.

  	
  Not
  Responsible for Recitals or Issuance of Securities

  	
   

  
	
  Section 8.5.

  	
  May Hold
  Securities

  	
   

  
	
  Section 8.6.

  	
  Compensation;
  Indemnity; Fees

  	
   

  
	
  Section 8.7.

  	
  Corporate
  Property Trustee Required; Eligibility of Trustees

  	
   

  
	
  Section 8.8.

  	
  Conflicting
  Interests

  	
   

  
	
  Section 8.9.

  	
  Co-Trustees
  and Separate Trustee

  	
   

  
	
  Section 8.10.

  	
  Resignation
  and Removal; Appointment of Successor

  	
   

  
	
  Section 8.11.

  	
  Acceptance
  of Appointment by Successor

  	
   

  
	
  Section 8.12.

  	
  Merger,
  Conversion, Consolidation or Succession to Business

  	
   

  
	
  Section 8.13.

  	
  Preferential
  Collection of Claims Against Depositor or Trust

  	
   

  
	
  Section 8.14.

  	
  Reports
  by Property Trustee

  	
   

  
	
  Section 8.15.

  	
  Reports
  to the Property Trustee

  	
   

  
	
  Section 8.16.

  	
  Evidence
  of Compliance with Conditions Precedent

  	
   

  
	
  Section 8.17.

  	
  Number of
  Trustees

  	
   

  
	
  Section 8.18.

  	
  Delegation of
  Power

  	
   

  
	
  Section 8.19.

  	
  Voting

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX.
  DISSOLUTION, LIQUIDATION AND MERGER

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.1.

  	
  Dissolution Upon
  Expiration Date

  	
   

  
	
  Section 9.2.

  	
  Early Dissolution

  	
   

  



 


ii

















 


	
  Section 9.3.

  	
  Dissolution

  	
   

  
	
  Section 9.4.

  	
  Liquidation

  	
   

  
	
  Section 9.5.

  	
  Mergers,
  Consolidations, Amalgamations or Replacements of the Trust

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X.
  MISCELLANEOUS PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.1.

  	
  Limitation
  of Rights of Securityholders

  	
   

  
	
  Section 10.2.

  	
  Amendment

  	
   

  
	
  Section 10.3.

  	
  Counterparts

  	
   

  
	
  Section 10.4.

  	
  Separability

  	
   

  
	
  Section 10.5.

  	
  Governing Law

  	
   

  
	
  Section 10.6.

  	
  Payments
  Due on Non-Business Day

  	
   

  
	
  Section 10.7.

  	
  Successors

  	
   

  
	
  Section 10.8.

  	
  Headings

  	
   

  
	
  Section 10.9.

  	
  Reports,
  Notices and Demands

  	
   

  
	
  Section 10.10.

  	
  Agreement
  Not to Petition

  	
   

  
	
  Section 10.11.

  	
  Trust
  Indenture Act; Conflict with Trust Indenture Act

  	
   

  
	
  Section 10.12.

  	
  Acceptance
  of Terms of Trust Agreement, Guarantee and Indenture

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Certificate of Trust

  	
   

  
	
  Exhibit B

  	
  Form of
  Common Securities Certificate

  	
   

  
	
  Exhibit C

  	
  Form of
  Agreement as to Expenses and Liabilities

  	
   

  
	
  Exhibit D

  	
  Form
  of Preferred Securities Certificate

  	
   

  



 


iii

















SVB CAPITAL II


 


SVB CAPITAL II


 


Certain Sections of this Trust Agreement relating to

Sections 310 through 318 of the

Trust Indenture Act of 1939:


 


	
   

  	
   

  	
  Trust

  Indenture

  Act Section

  	
   

  	
  Trust

  Agreement

  Section

  	
   

  
	
  §310

  	
   

  	
  (a) (1) 

  	
   

  	
  8.7

  	
   

  
	
   

  	
   

  	
  (a) (2)

  	
   

  	
  8.7

  	
   

  
	
   

  	
   

  	
  (a) (3)

  	
   

  	
  8.7, 8.9

  	
   

  
	
   

  	
   

  	
  (a) (4)

  	
   

  	
  2.7 (a) (ii)

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  8.8

  	
   

  
	
  §311

  	
   

  	
  (a)

  	
   

  	
  8.13

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  8.13

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  Not Applicable

  	
   

  
	
  §312

  	
   

  	
  (a)

  	
   

  	
  5.7

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  5.7

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  5.7

  	
   

  
	
  §313

  	
   

  	
  (a)

  	
   

  	
  8.14 (a)

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  8.14 (b)

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  10.9

  	
   

  
	
   

  	
   

  	
  (d)

  	
   

  	
  8.14 (c)

  	
   

  
	
  §314

  	
   

  	
  (a)

  	
   

  	
  8.15

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  Not Applicable

  	
   

  
	
   

  	
   

  	
  (c) (1)

  	
   

  	
  8.16

  	
   

  
	
   

  	
   

  	
  (c) (2)

  	
   

  	
  8.16

  	
   

  
	
   

  	
   

  	
  (c) (3)

  	
   

  	
  Not Applicable

  	
   

  
	
   

  	
   

  	
  (d)

  	
   

  	
  Not Applicable

  	
   

  
	
   

  	
   

  	
  (e)

  	
   

  	
  1.1, 8.16

  	
   

  
	
  §315

  	
   

  	
  (a)

  	
   

  	
  8.1 (a), 8.3 (a)

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  8.2. 10.9

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  8.1 (a)

  	
   

  
	
   

  	
   

  	
  (d)

  	
   

  	
  8.1, 8.3

  	
   

  
	
   

  	
   

  	
  (e)

  	
   

  	
  Not Applicable

  	
   

  
	
  §316

  	
   

  	
  (a)

  	
   

  	
  1.1, 6.1(b)

  	
   

  
	
   

  	
   

  	
  (a) (1) (A)

  	
   

  	
  6.1(b)

  	
   

  
	
   

  	
   

  	
  (a) (1) (B)

  	
   

  	
  6.1(b), 5.14

  	
   

  
	
   

  	
   

  	
  (a) (2)

  	
   

  	
  Not Applicable

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  5.14

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  6.7

  	
   

  
	
  §317

  	
   

  	
  (a) (1)

  	
   

  	
  Not Applicable

  	
   

  
	
   

  	
   

  	
  (a) (2)

  	
   

  	
  8.13

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  5.9

  	
   

  
	
  §318

  	
   

  	
  (a)

  	
   

  	
  10.11

  	
   

  



 












Note:  This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Trust Agreement.


 

















 


AMENDED AND
RESTATED TRUST AGREEMENT (this “Trust  Agreement”), dated as of October 30, 2003, among
(i) Silicon Valley Bancshares, a Delaware corporation (including any
successors or assigns, the “Depositor”), (ii) Wilmington Trust Company, as
property trustee, (in such capacity, the “Property  Trustee” and, in its separate corporate
capacity and not in its capacity as Property Trustee, the “Bank”),
(iii) Wilmington Trust Company, as Delaware trustee (the “Delaware  Trustee”),
(iv) Marc Verissimo, an individual, Paulette Mehas, an individual, and
Donal D. Delaney, an individual, each of whose address is c/o Silicon Valley
Bancshares, 3003 Tasman Drive, Santa Clara, California, 95054 (each an “Administrative  Trustee” and
collectively the “Administrative
Trustees”)
(the Property Trustee, the Delaware Trustee and the Administrative Trustees are
referred to collectively herein as the “Trustees”) and (v) the several Holders,
as hereinafter defined.


 


WITNESSETH


 


WHEREAS, the
Depositor, the Delaware Trustee and each of the Administrative Trustees, have
heretofore duly declared and established a statutory trust pursuant to that
Delaware Statutory Trust Act by the entering into this certain Trust Agreement,
dated as of September 11, 2003 (the “Original  Trust  Agreement”), and by the execution and filing
by the Administrative Trustees and the Delaware Trustee with the Secretary of
State of the State of Delaware of the Certificate of Trust, filed on
September 11, 2003, attached as Exhibit  A; and


 


WHEREAS, the parties desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (a) the issuance of the Common Securities by .the
Trust to the Depositor, (b) the issuance and sale of the Preferred
Securities by the Trust pursuant to the Underwriting Agreement, (c) the
acquisition by the Trust from the Depositor of all of the right, title and
interest in the Debentures and (d) the appointment of the Property
Trustee;


 


NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Securityholders, hereby agrees as
follows:


 


ARTICLE I.



DEFINED TERMS


 


Section 1.1.           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 have the meanings assigned to them in this
Article 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 6.8.


 


“Additional  Amount”
means, with respect to Trust Securities of a given Liquidation Amount and/or a
given period, the amount of Additional Interest (as defined in the Indenture)
paid by the Depositor on a Like Amount of Debentures for such period.


 


“Additional  Sums”
has the meaning specified in Section 10.6 of the Indenture.


 


“Administrative  Trustee”
means each of the Persons identified as an “Administrative Trustee” in the
preamble to this Trust Agreement solely in such Person’s capacity as
Administrative Trustee of the Trust created and continued hereunder and not in
such Person’s individual capacity, or such Administrative Trustee’s successor
in interest in such capacity, or any successor trustee appointed as herein
provided.


 


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


 


“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 judging such Person a
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in respect of
such Person under any applicable Bankruptcy Law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of such
Person or of any substantial part of its property or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days; or


 


(b)           the institution by such
Person of proceedings to be adjudicated a bankrupt or insolvent, or the consent
by it to the institution of bankruptcy or insolvency proceedings against it, or
the filing by it of a petition or answer or consent seeking reorganization or
relief under any


 


2

















 


applicable Bankruptcy Law, or
the consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission by it in writing
of its inability to pay its debts generally as they become due and its
willingness to be adjudicated a bankrupt, or the taking of corporate action by
such Person in furtherance of any such action.


 


“Bankruptcy  Law”
means any Federal or state bankruptcy, insolvency, reorganization or similar
law.


 


“Board  Resolution”
means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Depositor to have been duly adopted by the Depositor’s Board
of Directors, or such committee of the Board of Directors or officers of the
Depositor to which authority to act on behalf of the Board of Directors has been
delegated, and to be in full force and effect on the date of such
certification, and delivered to the appropriate Trustees.


 


“Book-Entry  Preferred  Securities
Certificates” means a
beneficial interest in the Preferred Securities Certificates, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 5.11.


 


“Business  Day”
means a day other than (a) a Saturday or Sunday, (b) a day on which
banking institutions in the State of California are authorized or required by
law or executive order to remain closed, or (c) a day on which the
Property Trustee’s Corporate Trust Office or the Corporate Trust Office of the
Debenture Trustee is closed for business.


 


“Capital  Treatment
Event” means, the
reasonable determination by the Depositor that, as a result of any amendment
to, or change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision
thereof or therein, or as a result of any official or administrative
pronouncement or action or judicial decision interpreting or applying such laws
or regulations, which amendment or change is effective or such prospective
change, pronouncement or decision is announced on or after the original
issuance of the Preferred Securities, there is more than an insubstantial risk
that the Depositor will not be entitled to treat the Preferred Securities (or
any substantial portion thereof) as “Tier I Capital” (or the then
equivalent thereof) for purposes of the capital adequacy guidelines of the
primary federal regulator of the Depositor, as then in effect and applicable to
the Depositor.


 


“Certificate  Depository
Agreement” means the
agreement among the Trust, the Depositor and The Depository Trust Company, as
the initial Clearing Agency, dated as of the Closing Date, relating to the
Preferred Securities Certificates, as the same may be amended and supplemented
from time to time.


 


“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.


 


3

















 


“Clearing  Agency”
means an organization registered as a “clearing agency” pursuant to
Section 17A of the Exchange Act. 
The Depository Trust Company will act as the initial Clearing Agency
hereunder.


 


“Clearing  Agency  Participant” means a broker,
dealer, bank, other financial institution or other Person for whom from time to
time a Clearing Agency effects book-entry transfers and pledges of securities
deposited with the 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  Securityholder”
means the Securityholder holding the Common Security.


 


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


 


“Corporate  Trust  Office” means (i) when used
with respect to the Property Trustee, Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware19890, Attention: Corporate
Trust Administration, and (ii) when used with respect to the Debenture
Trustee, Rodney Square North, 1100 North Market Street, Wilmington, Delaware
19890, Attention: Corporate Trust Administration.


 


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


 


“Debenture  Trustee”
means Wilmington Trust Company and any successor thereto, as trustee under the
Indenture.


 


“Debentures” means the
aggregate principal amount of the Depositor’s 7% Junior Subordinated Deferrable
Interest Debentures, issued pursuant to the Indenture.


 


4

















 


“Definitive  Preferred
Securities  Certificates” means either or
both (as the context requires) of (a) Preferred Securities Certificates
issued as Book-Entry Preferred Securities Certificate as provided in
Section 5.11(a) and (b) Preferred Securities Certificates issued in
certificated, fully registered form as provided in Section 5.13.


 


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


 


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


 


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


 


“Distribution Date”
has the meaning specified in Section 4.1(a).


 


“Distributions” means
amounts payable in respect of the Trust Securities as provided in
Section 4.1.


 


“Early  Dissolution
Event” has the meaning
specified in Section 9.2.


 


“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 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 (subject to the
Depositor exercising its right to defer the payment of interest on the
Debentures pursuant to Section 3.11 of the Indenture); 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 Property Trustee in this Trust Agreement (other than a covenant or warranty
a default in the performance or 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
Property Trustee and the Trust by the Holders of at least 25% in aggregate
liquidation preference 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


 


5

















 


(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 9.1.


 


“Guarantee” means the
Guarantee Agreement, dated as of October 30, 2003, executed and delivered
by the Depositor and Wilmington Trust Company, 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.


 


“Holder” means a
Securityholder.


 


“Indenture” means the
Junior Subordinated Indenture, dated as of October 30, 2003, between the
Depositor and the Debenture Trustee, as trustee, as amended or supplemented
from time to time.


 


“Investment  Company
Event” means the
receipt by the Depositor and the Trust of an Opinion of Counsel experienced in
such matters to the effect that, as a result of a change in law or regulation
or a written change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority, there
is more than an insubstantial risk that the Trust is or will be considered an
“investment company” that is required to be registered under the 1940 Act,
which change becomes effective on or after the date or original issuance of the
Preferred Securities under this Trust Agreement.


 


“Lien” means any lien, pledge, charge,
encumbrance, mortgage, deed of trust, adverse, ownership interest, adverse
claim, 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 a Liquidation Amount equal to the principal amount of
Debentures to be contemporaneously redeemed in accordance with the Indenture,
allocated to the Common Securities and the Preferred Securities based upon the
relative Liquidation Amounts of such classes and the proceeds of which will 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 dissolution 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.


 


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


 


6

















 


“Liquidation  Date”
means the date on which Debentures are to be distributed to Holders of Trust
Securities in connection with a dissolution and liquidation of the Trust
pursuant to Section 9.4(a).


 


“Liquidation  Distribution”
has the meaning specified in Section 9.4(d).


 


“1940  Act”
means the Investment Company Act of 1940, as amended.


 


“Officers’  Certificate”
means a certificate signed by the Chairman of the Board of Directors, a Vice
Chairman of the Board of Directors, the Chief Executive Officer, the President
or a Vice President, and by the Chief Financial Officer, Treasurer, the
Secretary or an Assistant Secretary of the Depositor, and delivered to the
appropriate Trustee.  One of the
officers signing an Officers’ Certificate given pursuant to Section 8.16
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 a written opinion
of counsel, who may be counsel for the Trust, the Property Trustee, the
Delaware Trustee or the Depositor, but not including an employee of any
thereof, and who shall be reasonably acceptable to the Property Trustee.


 


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


 


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


 


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


 


(b)           Trust 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


 


7

















 


such Trust Securities; provided
that, if such Trust Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Trust Agreement; and


 


(c)           Trust Securities which
have been paid or in exchange for or in lieu of which other Trust Securities
have been executed and delivered pursuant to Sections 5.4, 5.5, 5.11 and
5.13; 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 (i) 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 (ii) 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 that
the pledgee is not the Depositor or any Affiliate of the Depositor.  Upon the written request of any Trustee, the
Depositor shall furnish to such Trustee promptly an Officers’ Certificate
listing and identifying all Trust Securities, if any, known by the Depositor to
be owned or held by or for the account of the Depositor, any Trustee or any
Affiliate of the Depositor or any Trustee, and, subject to the provisions of
Section 8.1, such Trustee shall be entitled to accept such Officers’
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Trust Securities not listed therein are Outstanding for the
purpose of any such determination.


 


“Owner” means each Person who is the beneficial
owner of a Book-Entry Preferred Securities Certificate as reflected in the
records of the Clearing Agency or, if a Clearing Agency Participant is not the
Owner, then as reflected in the records of a Person maintaining an account with
such Clearing Agency (directly or indirectly, in accordance with the rules of
such Clearing Agency).


 


“Paying  Agent”
means any paying agent or co-paying agent appointed pursuant to Section 5.9
and shall initially be the Bank.


 


“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 will
be held and from which the Property Trustee, through the Paying Agent, shall
make payments to the Securityholders in accordance with Sections 4.1 and
4.2.


 


“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.


 


“Preferred  Security”
means an undivided beneficial interest in the assets of the Trust designated as
“7% Cumulative Trust Preferred Securities,” having a Liquidation Amount of $25
per


 


8

















 


security and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.


 


“Preferred  Securityholder”
means a Holder of Preferred Securities.


 


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


 


“Property  Trustee”
means the Person identified as the “Property Trustee” in the preamble to this
Trust Agreement solely in its capacity as Property Trustee of the Trust
heretofore created and 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 Preferred 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
Preferred Securities.


 


“Relevant  Trustee”
shall have the meaning specified in Section 8.10.


 


“Securities  Register”
and “Securities  Registrar”
have the respective meanings specified in Section 5.4.


 


“Securityholder” means
a Person in whose name a Trust Security is registered in the Securities
Register, any such Person shall be deemed to be a beneficial owner within the
meaning of the Delaware Statutory Trust Act.


 


“Subscription Agreement”
means the Common Securities Subscription Agreement between the Trust and the
Depositor, dated as of the date hereof, relating to the Common Securities.


 


“Tax  Event”
means the receipt by the Depositor and the Trust of an Opinion of Counsel
experienced in such matters to the effect that, as a result of any amendment
to, or change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, or as a result of any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or which
prospective change, pronouncement or decision is announced on or after the
original issuance of the Preferred Securities under this Trust Agreement, there
is more than an insubstantial risk that (a) the Trust is, or will be
within 90 days after the date of such Opinion of Counsel, subject to
United States Federal income tax with respect to income received or accrued on
the Debentures, (b) interest payable by the Depositor on the Debentures is
not, or within 90 days after the date of such Opinion of Counsel will not be,
deductible by the


 


9

















 


Depositor, in whole or in part,
for United States Federal income tax purposes or (c) the Trust is, or will
be within 90 days after the date of such Opinion of Counsel subject to
more than a de  minimis amount of other taxes, duties or
other governmental charges.


 


“Trust” means the
Delaware statutory trust created and 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 (a) all exhibits hereto and (b) for all purposes of this
Amended and Restated 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 and 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 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.


 


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


 


“Underwriters” means
the underwriters named in the Underwriting Agreement.


 


“Underwriting  Agreement”
means that certain Underwriting Agreement dated as of October 23, 2003,
among the Trust, the Depositor, and Morgan Stanley & Co., Incorporated and
Bear, Stearns & Co. Inc., as the Underwriters.


 


10

















 


ARTICLE II.



ESTABLISHMENT OF THE TRUST SECTION


 


Section 2.1.            Name.


 


The Trust
continued hereby shall be known as “SVB Capital II,” 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 2.2.            Office
of the Delaware Trustee; Principal Place of Business.


 


The address of
the Delaware Trustee in the State of Delaware is Rodney Square North, 1100
North Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust
Administration, 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 Silicon Valley Bancshares, 3003 Tasman Drive, Santa
Clara, California, 95054.


 


Section 2.3.            Initial
Contribution of Trust Property; Organizational Expenses.


 


The Trustees
acknowledges receipt in trust from the Depositor in connection with the Trust
Agreement of the sum of $10, which constituted the initial Trust Property.  The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee.  The Depositor shall make no claim upon the
Trust Property for the payment of such expenses.


 


Section 2.4.            Issuance
of the Preferred Securities.


 


The Depositor
and the Depositor, acting on behalf of the Trust and pursuant to the Trust
Agreement, have 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 5.2 and deliver to the
Underwriters named in the Underwriting Agreement, Preferred Securities Certificates,
registered in the name of the nominee of the initial Clearing Agency, as
instructed by Morgan Stanley & Co., Incorporated, as the Underwriter, in an
aggregate amount of 2,000,000 Preferred Securities having an aggregate
Liquidation Amount of $50,000,000, against receipt of such aggregate purchase
price of such Preferred Securities of $50,000,000 which amount the
Administrative Trustee shall promptly deliver to the Property Trustee.


 


11

















 


Section 2.5.            Issuance
of the Common Securities; Subscription and Purchase of Debentures.


 


Contemporaneously
with the execution and delivery of this Trust Agreement, an Administrative
Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Depositor Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of 61,856
Common Securities having an aggregate Liquidation Amount of $1,546,400, against
payment by the Depositor of such amount, which amount such Administrative
Trustee shall promptly deliver to the Property Trustee.  An Administrative Trustee, on behalf of the
Trust, shall subscribe to and purchase from the Depositor Debentures,
registered in the name of Cede & Co., as nominee of The Depository
Trust Company, and having an aggregate principal amount equal to $51,546,400
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
$51,546,400, such amount being the sum of the amounts delivered to the Property
Trustee pursuant to (a) the second sentence of Section 2.4 and
(b) the first sentence of this Section 2.5.


 


Section 2.6.            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 appoints
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 accept such
appointment.  The Property Trustee
hereby declares that it will hold the Trust Property in trust upon and subject
to the conditions set forth herein for the benefit of the Trust and 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.  The
Trust Agreement shall constitute the governing instrument of the Trust.


 


Section 2.7.            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 and
Section 2.6, and in accordance with the following provisions (i) and
(ii), the Trustees shall have the authority to enter into all transactions and
agreements determined by the Trustees to be appropriate in exercising the
authority, express or implied, otherwise granted to the 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 shall have the power and
authority to act on behalf of the Trust with respect to the following matters:


 


12

















 


(A)          the issuance and sale of
the Trust Securities;


 


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


 


(C)           assisting in the
registration (including the execution of a registration statement on the
appropriate form) 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 Trust Agreement as a trust indenture under the Trust Indenture Act,


 


(D)          assisting in the listing
of the Preferred Securities upon such securities exchange or exchanges as shall
be determined by the Depositor and the registration of the Preferred Securities
under the Exchange Act, 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)           registering transfer of
the Trust Securities in accordance with this Trust Agreement;


 


(H)          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;


 


(I)            unless otherwise
determined by the Depositor, the Property Trustee or the Administrative
Trustees, or as otherwise required by the Delaware Statutory Trust Act or the
Trust Indenture Act, to execute on behalf of the Trust (either acting alone or
together with any or all of the Administrative Trustees) any documents that the
Administrative Trustees have the power to execute pursuant to this Trust
Agreement; and


 


(J)            the taking of any
action incidental to the foregoing as the 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).


 


(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:


 


13

















 


(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 through
the Paying Agent of amounts owed to the Securityholders in respect of the Trust
Securities;


 


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


 


(F)           the sending of notices
of default and other information regarding the 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)          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,


 


(I)            after an Event of
Default (other than under paragraph (b), (c), (d) or (e) of the definition of
such term if such Event of Default is by or with respect to the Property
Trustee) 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);


 


(J)            so long as the
Property Trustee is the Securities Registrar, registering transfers of the
Trust Securities in accordance with this Trust Agreement; and


 


(K)          except as otherwise
provided in this Section 2.7(a)(ii), the Property Trustee shall have none
of the duties, liabilities, powers or the authority of the Administrative
Trustees set forth in Section 2.7(a)(i).


 


(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 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


 


14

















 


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 by
the Trust of a registration statement on the appropriate form in relation to
the Preferred Securities, 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 the determination
of any and all such acts, other than actions which must be taken by or on
behalf of the Trust, and the advice to the Trustees of actions they must take
on behalf of the Trust, and the preparation for execution and filing of any
documents to be executed and filed by the Trust or on behalf of the Trust, as
the 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 any other national stock exchange or the Nasdaq National Market for
listing upon notice of issuance of any Preferred Securities;


 


(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;


 


(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 Administrative Trustees are authorized and
directed to conduct the affairs of the Trust and to operate the Trust so that
the Trust will not be deemed to be an “investment company” required to be
registered under the 1940 Act, or fail to be classified as a grantor trust for
United States federal income tax purposes and so that the Debentures will be
treated as indebtedness of the Depositor for United States federal income tax
purposes.  In this connection, the
Depositor and the Administrative Trustees are authorized to take any action,
not inconsistent with applicable law, the Certificate of Trust or this Trust
Agreement, that each of the Depositor and any Administrative Trustee determines
in its discretion to be necessary or


 


15

















 


desirable
for such purposes, as long as such action does not adversely affect in any
material respect the interests of the holders of the Preferred Securities.


 


Section 2.8.            Assets
of Trust.


 


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


 


Section 2.9.            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 3.1.            Payment
Account.


 


(a)           On
or prior to the Closing Date, the Property Trustee shall establish the Payment
Account.  The Property Trustee and any
agent of the Property Trustee 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.


 


ARTICLE IV.


 


DISTRIBUTIONS; REDEMPTION


 


Section 4.1.            Distributions.


 


(a)           The
Trust Securities represent undivided beneficial interests in the Trust
Property, and Distributions (including of Additional Amounts) will be made on
the Trust Securities at the rate and on the dates that payments of interest
(including of Additional Interest, as defined in the Indenture) are made on the
Debentures.  Accordingly:


 


16

















 


(i)         Distributions
on the Trust Securities shall be cumulative, and will accumulate whether or not
there are funds of the Trust available for the payment of Distributions.  Distributions shall accrue from the date of
original issuance of the Trust Securities, and, except in the event (and to the
extent) that the Depositor exercises its right to defer the payment of interest
on the Debentures pursuant to the Indenture, shall be payable quarterly in
arrears on the 15th day of January, April, July and
October of each year, commencing on January 15, 2004.  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) with the same force and effect as if made on such date (each date on
which distributions are payable in accordance with this Section 4.1(a), a
“Distribution
Date”).


 


(ii)        Assuming
payments of interest on the Debentures are made when due (and before giving
effect to Additional Amounts, if applicable), Distributions on the Trust
Securities shall be payable at a rate of 7% per annum of the Liquidation Amount
of the Trust Securities.  The amount of
Distributions payable for any full period shall be computed on the basis of a
360-day year of twelve 30-day months. 
The amount of Distributions for any partial period shall be computed on
the basis of the number of days elapsed in a 360-day year of twelve 30-day
months.  The amount of Distributions
payable for any period shall include the Additional Amounts, if any.


 


(iii)       Distributions on the Trust Securities shall be
made by the Property Trustee from the Payment Account and shall be payable on
each Distribution Date only to the extent that the Trust has funds then on hand
and available in the Payment Account for the payment of such Distributions.


 


(b)           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 relevant record date, which shall be
the date 15 days prior to the relevant Distribution Date (or if such date
is not a Business Day, the next Business Day following such date).


 


Section 4.2.            Redemption.


 


(a)           On
each Debenture Redemption Date and on the stated maturity of the Debentures,
the Trust will be required to redeem, subject to Section 4.3, 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 Security Register.  All notices of redemption shall state:


 


(i)            the Redemption Date;


 


(ii)           the
Redemption Price;


 


17

















 


(iii)          the CUSIP number;


 


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


 


(v)           that
on the Redemption Date the Redemption Price will become due and payable upon
each such Trust Security to be redeemed and that Distributions thereon will
cease to accrue on and after said date.


 


(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 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 noon, Eastern time, on the Redemption Date, subject
to Section 4.2(c), with respect to Preferred Securities held in book-entry
form, the Property Trustee will irrevocably deposit with the Clearing Agency
for the Preferred Securities, to the extent funds are available, funds sufficient
to pay the applicable Redemption Price and will give such Clearing Agency
irrevocable instructions and authority to pay the Redemption Price to the
holders thereof. With respect to Preferred Securities held in certificated
form, the Property Trustee, subject to Section 4.2(c), will irrevocably
deposit with the Paying Agent, to the extent funds are available, funds
sufficient to pay the applicable Redemption Price and will give the Paying
Agent irrevocable instructions and authority to pay the Redemption Price to the
Holders thereof upon surrender of their Preferred 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 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, all rights of Securityholders holding Trust
Securities so called for redemption will cease, except the right of such
Securityholders to receive the Redemption Price and any Distribution payable on
or prior to the Redemption Date, but without interest, on such Redemption Date
and such Securities will cease to be outstanding.  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 will 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), 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 will continue to accrue, 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 will be the date fixed for redemption for
purposes of calculating the Redemption Price.


 


18

















 


(e)           Payment
of the Redemption Price on the Trust Securities shall be made to the
recordholders thereof as they appear on the Securities Register for the Trust
Securities.


 


(f)            Subject
to Section 4.3(a), if less than all the Outstanding Trust Securities are
to be redeemed on a Redemption Date, then the aggregate Redemption Price 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 on a pro rata basis (based upon
Liquidation Amounts) 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 $25 or an integral
multiple of $25 in excess thereof) of the Liquidation Amount of Preferred
Securities of a denomination larger than $25. 
The Property Trustee shall promptly notify the Security 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 that has been
or is to be redeemed.


 


Section 4.3.            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 4.2(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
is 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 any Debenture
Event of Default, the Holder of Common Securities will 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 have been cured, waived or otherwise eliminated.  Until any such Event of Default under this
Trust Agreement with respect to the Preferred Securities has been so cured,
waived or otherwise eliminated, the Property Trustee shall


 


19

















 


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 will
have the right to direct the Property Trustee to act on their behalf.


 


Section 4.4.            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 to the Clearing Agency in immediately available funds, which
shall credit the relevant Persons’ accounts at such Clearing Agency 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 Common Securityholder.


 


Section 4.5.            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 form required to be filed
in respect of the Trust in each taxable year of the Trust and (b) prepare
and furnish (or cause to be prepared and furnished) to each Securityholder the
appropriate Internal Revenue Service form required to be provided on such
form.  The Administrative Trustees shall
provide the Depositor and the Property Trustee with a copy of all such returns
and reports promptly after such filing or furnishing.  The Trustees shall comply with United States federal withholding
and backup withholding tax laws and information reporting requirements with
respect to any payments to Securityholders under the Trust Securities.


 


Section 4.6.            Payment of Taxes, Duties, Etc. of the Trust.


 


Upon receipt
under the Debentures of Additional Sums, the Property Trustee 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 4.7.            Payments under Indenture or Pursuant to Direct
Actions.


 


Any amount
payable hereunder to any Holder of Preferred Securities shall be reduced by the
amount of any corresponding payment that such Holder (and any Owner with
respect thereto) has directly received pursuant to Section 5.8 of the
Indenture or Section 5.14 of this Trust Agreement.


 


20

















 


ARTICLE V.



TRUST SECURITIES CERTIFICATES


 


Section 5.1.            Initial Ownership.


 


Upon the
formation of the Trust and the contribution by the Depositor pursuant to
Section 2.3 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.


 


Section 5.2.            The Trust Securities Certificates.


 


The Preferred Securities
Certificates shall be issued in minimum denominations of $25 Liquidation Amount
and integral multiples of $25 in excess thereof, and the Common Securities
Certificates shall be issued in denominations of $25 Liquidation Amount and
integral multiples thereof.  The Trust
Securities Certificates shall be executed on behalf of the Trust by manual
signature of at least one Administrative Trustee.  Trust Securities Certificates bearing the manual 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 5.4, 5.11 and 5.13.


 


Section 5.3.            Execution and Delivery of Trust Securities
Certificates.


 


On the Closing
Date, the Administrative Trustees shall cause Trust Securities Certificates, in
an aggregate Liquidation Amount as provided in Section 2.4 and
Section 2.5, to be executed on behalf of the Trust and delivered to or
upon the written order of the Depositor, signed by its chief executive officer,
its president, any executive vice president or any vice president, treasurer or
assistant treasurer or controller without further corporate action by the
Depositor, in authorized denominations.


 


Section 5.4.            Registration of Transfer and Exchange of Preferred
Securities Certificates.


 


The Depositor
shall keep or cause to be kept, at the office or agency maintained pursuant to
Section 5.8, a register or registers for the purpose of registering Trust
Securities Certificates and transfers and exchanges of Preferred Securities
Certificates (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 5.10 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.


 


21

















 


Upon surrender
for registration of transfer of any Preferred Securities Certificate at the
office or agency maintained pursuant to Section 5.8, the Administrative
Trustees or any one of them shall execute 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 5.8.


 


Every Preferred
Securities Certificate presented or surrendered for registration of transfer or
exchange shall be accompanied by a written instrument of transfer in form
satisfactory to an Administrative 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 an Administrative Trustee in accordance with such
Person’s customary practice.  The Trust
shall not be required to (a) 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 business on
the day of such mailing or (b) 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.


 


No service
charge shall be made for any registration of transfer or exchange of Preferred
Securities Certificates, 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.


 


Section 5.5.            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 Trustees, or any one of them, on behalf of the Trust shall
execute and make available for delivery, 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,
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 


 


22

















 


Section 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 5.6.            Persons
Deemed Securityholders.


 


The Trustees
or 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 5.7.            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) semi-annually on or before January 1 and
July 1 in 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, such other information as the Property Trustee may reasonably require
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 Securityholder, 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 5.8.            Maintenance
of Office or Agency.


 


The
Administrative Trustees shall maintain 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 Securities Certificates may be served.  The Administrative Trustees initially
designate the principal corporate trust office of the Property Trustee, Rodney
Square North, 1100 North Market Street, Wilmington, Delaware 19890, Attention:
Corporate Trust Administration, as the principal corporate trust office for
such purposes.  The Administrative
Trustees shall give prompt written notice to the Depositor and to the
Securityholders of any change in the location of the Securities Register or any
such office or agency.


 


23

















 


Section 5.9.            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, and 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 will 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 8.1, 8.3 and
8.6 herein 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 Trust Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.


 


Section 5.10.          Ownership
of Common Securities by Depositor.


 


At the Closing
Date, the Depositor shall acquire and retain beneficial and record ownership of
the Common Securities.  To the fullest
extent permitted by law, other than a transfer in connection with a
consolidation or merger of the Depositor into another Person, or any
conveyance, transfer or lease by the Depositor of its properties and assets substantially
as an entirety to any Person, pursuant to Section 8.l of the Indenture,
any attempted transfer of the Common Securities 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”.


 


Section 5.11.          Book Entry
Preferred Securities Certificates; Common Securities Certificate.


 


(a)           The Preferred
Securities Certificates, upon original issuance, will be issued in the form of
a typewritten Preferred Securities Certificate or Certificates representing
Book-Entry Preferred Securities Certificates, to be delivered to The Depository
Trust Company, the initial Clearing Agency, by, or on behalf of, the Trust.  Such Preferred Securities Certificate or
Certificates shall initially be registered on the Securities Register in the
name of Cede & Co., the nominee of the


 


24

















 


initial Clearing Agency, and no
Owner will receive a Definitive Preferred Securities Certificate representing
such Owner’s interest in such Preferred Securities, except as provided in
Section 5.13.  Unless and until
Definitive Preferred Securities Certificates have been issued to Owners
pursuant to Section 5.13:


 


(i)            the provisions of this
Section 5.11(a) shall be in full force and effect;


 


(ii)           the Securities
Registrar, the Paying Agent and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Trust Agreement relating to the
Book-Entry Preferred Securities Certificates (including the payment of the
Liquidation Amount of and Distributions on the Preferred Securities evidenced
by Book-Entry Preferred Securities Certificates) and shall have no obligations
to the Owners thereof;


 


(iii)          to the extent that the
provisions of this Section 5.11 conflict with any other provisions of this
Trust Agreement, the provisions of this Section 5.11 shall control; and


 


(iv)          the rights of the Owners
of the Book-Entry Preferred Securities Certificates 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 and/or the Clearing
Agency Participants.  Pursuant to the
Certificate Depository Agreement, unless and until Definitive Preferred
Securities Certificates are issued pursuant to Section 5.13, the initial
Clearing Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments on the Preferred Securities to
such Clearing Agency Participants.  Any
Clearing Agency designated pursuant hereto will not be deemed an agent of the
Trustee for any purpose.


 


(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 5.12.          Notices to Clearing Agency.


 


To the extent
that a notice or other communication to the Owners is required under this Trust
Agreement, unless and until Definitive Preferred Securities Certificates shall
have been issued to Owners pursuant to Section 5.13, the Trustees shall
give all such notices and communications specified herein to be given to Owners
to the Clearing Agency, and shall have no obligations to the Owners.


 


Section 5.13.          Definitive
Preferred Securities Certificates.


 


If
(a) the Depositor advises the Trustees in writing that the Clearing Agency
is no longer willing or able to properly discharge its responsibilities with
respect to the Preferred Securities Certificates, and the Depositor is unable
to locate a qualified successor, or if at any time the Person then acting as
Clearing Agency ceases to be registered under the Exchange Act at a time when
such Person is required to be so registered, or (b) the Depositor at its
option advises the Trustees in writing that it elects to terminate the
book-entry system through the Clearing Agency, then the Property Trustee shall
notify the Clearing Agency and the Clearing Agency shall notify all Owners


 


25

















 


of Preferred Securities
Certificates and the other Trustees of the occurrence of any such event and of
the availability of the Definitive Preferred Securities Certificates to Owners
of such class or classes, as applicable, requesting the same. Upon surrender to
the Property Trustee of the typewritten Preferred Securities Certificate or
Certificates representing the Book Entry Preferred Securities Certificates by
the Clearing Agency, accompanied by registration instructions, the
Administrative Trustees, or any one of them, shall execute the Definitive
Preferred Securities Certificates in accordance with the instructions of the
Clearing Agency.  Neither the Securities
Registrar nor the Trustees shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying
on, such instructions.  Upon the
issuance of Definitive Preferred Securities Certificates, the Trustees shall
recognize the Holders of the Definitive Preferred Securities Certificates as
Securityholders.  The Definitive
Preferred Securities Certificates shall be engraved and executed in accordance
with the applicable rules of the Nasdaq National Market or such other national
exchange or over-the-counter market on which the Preferred Securities are then
listed for trading.


 


Section 5.14.          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 2.9, 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 and when issued and delivered to Securityholders
against payment of the purchase price therefor will be fully paid and
nonassessable by the Trust.  The Holders
of the Trust 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 payable, provided
that the payment of principal and interest on such Debentures shall
remain subordinated to the extent provided in the Indenture.


 


At any time
after such a declaration of acceleration with respect to the Debentures has
been made and before a judgment or decree for payment of the money due has been
obtained by the Debenture Trustee as in the Indenture provided, the Holders of
a majority in Liquidation Amount of the Preferred Securities, by written notice
to the Property Trustee, the Depositor and the Debenture Trustee, may rescind
and annul such declaration and its consequences if:


 


26

















 


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


 


(A)          all overdue installments
of interest (including any Additional Interest (as defined in the Indenture))
on all of the Debentures,


 


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


 


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


 


(ii)           all Events of Default
with respect to the Debentures, other than the non-payment of the principal of
the Debentures which has become due solely by such acceleration, have been
cured or waived as provided in Section 5.13 of the Indenture.


 


The Holders of
a majority in aggregate Liquidation Amount of the Preferred Securities may, on
behalf of the Holders of all the Preferred Securities, waive any past default
under the Indenture, except a default in the payment of principal or interest
(unless such default has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by acceleration has
been deposited with the Debenture Trustee) or a default in respect of a
covenant or provision which under the Indenture cannot be modified or amended
without the consent of the holder of each outstanding Debenture. No such
rescission shall affect any subsequent default or impair any right consequent
thereon.


 


Upon receipt
by the Property Trustee of written notice declaring such an acceleration, or
rescission and annulment thereof, by Holders of the Preferred Securities, all
or part of which is represented by Book-Entry Preferred Securities
Certificates, a record date shall be established for determining Holders of
Outstanding Preferred Securities entitled to join in such notice, which record
date shall be at the close of business on the day the Property Trustee receives
such notice.  The Holders on such record
date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such notice, whether or not such Holders remain Holders
after such record date; provided, that, unless such declaration
of acceleration, or rescission and annulment, as the case may be, shall have
become effective by virtue of the requisite percentage having joined in such
notice prior to the day which is 90 days after such record date, such notice of
declaration of acceleration, or rescission and annulment, as the case may be,
shall automatically and without further action by any Holder be canceled and of
no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this
Section 5.14(b).


 


27

















 


(c)           For so long as any
Preferred Securities remain Outstanding, to the fullest extent permitted by law
and subject to the terms of this Trust Agreement and the Indenture, upon a
Debenture Event of Default specified in Section 5.1(a) or 5.1(b) of the
Indenture, any Holder of Preferred Securities shall have the right to institute
a proceeding directly against the Depositor, pursuant to Section 5.8 of
the Indenture, for enforcement of payment to such Holder of the principal
amount of (premium, if any) and (subject to Section 3.7 of the Indenture)
interest (including any Additional Interest (as defined on the Indenture)) on
Debentures having a principal amount equal to the Liquidation Amount of the
Preferred Securities of such Holder (a “Direct  Action”). Except as set forth in
Section 5.14(b) and this Section 5.14(c), the Holders of Preferred
Securities shall have no right to exercise directly any right or remedy
available to the holders of, or in respect of, the Debentures.


 


ARTICLE VI.


 


ACTS OF SECURITYHOLDERS;
MEETINGS, VOTING


 


Section 6.1.            Limitations
on Voting Rights.


 


(a)           Except as provided in
this Section, in Sections 5.14, 8.10 and 10.2 and in the Indenture and as
otherwise required by law, no 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, the Trustees shall not
(i) direct the time, method and place of conducting any proceeding for any
remedy available to the Debenture Trustee, or execute any trust or power
conferred on the Property Trustee with respect to such Debentures,
(ii) waive any past default which is waivable under Section 5.13 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 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 Preferred Securities, except
by a subsequent vote of the Holders of Preferred Securities.  The Property Trustee shall notify all
Holders of the 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 such action shall not cause the
Trust to fail to be classified as a grantor trust for United States federal
income tax purposes.


 


28

















 


(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 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 will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with the
approval of the Holders of at least a majority in Liquidation Amount of the
Outstanding Preferred Securities. Notwithstanding any other provision of this
Trust Agreement, no amendment to this Trust Agreement may be made if, as a
result of such amendment, it would cause the Trust to fail to be classified as
a grantor trust for United States federal income tax purposes.


 


Section 6.2.            Notice
of Meetings.


 


Notice of all
meetings of the Preferred Securityholders, stating the time, place and purpose
of the meeting, shall be given by the Property Trustee pursuant to
Section 10.9 to each Preferred Securityholder of record, at his, her or
its 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 6.3.            Meetings
of Preferred Securityholders.


 


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


 


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


 


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


 


Section 6.4.            Voting
Rights.


 


Securityholders
shall be entitled to one vote for each $25 of Liquidation Amount represented by
their Trust Securities in respect of any matter as to which such
Securityholders are entitled to vote.


 


29

















 


Section 6.5.            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.  Pursuant to a resolution of the
Property Trustee, proxies may be solicited in the name of the Property Trustee
or one or more officers of the Property Trustee.  Only Securityholders 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 6.6.            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 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 6.7.            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 a 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 6.8.            Acts of
Securityholders.


 


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 or Owners may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Securityholders or
Owners 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 or Owners
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


 


30

















 


of this Trust Agreement and
(subject to Section 8.1) conclusive in favor of the Trustees, if made in
the manner provided in this Section.


 


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 his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his 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.


 


The ownership
of Preferred Securities shall be proved by the Securities Register.


 


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.


 


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.


 


If any dispute
shall arise between the Securityholders and the Administrative Trustees or
among such Securityholders or Trustees with respect to the authenticity,
validity or binding nature of any request, demand, authorization, direction,
consent, waiver or other Act of such Securityholder or Trustee under this
Article VI, then the determination of such matter by the Property Trustee
shall be conclusive with respect to such matter.


 


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.


 


Section 6.9.            Inspection
of Records.


 


Upon
reasonable notice to the Administrative Trustees and the Property Trustee, the
records of the Trust shall be open to inspection by Securityholders during
normal business hours for any purpose reasonably related to such
Securityholder’s interest as a Securityholder.


 


31

















 


ARTICLE VII.


 


REPRESENTATIONS AND WARRANTIES


 


Section 7.1.            Representations
and Warranties of the Bank.


 


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


 


(a)           the Bank is a Delaware
banking corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware;


 


(b)           the Bank has full
corporate 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 Bank and, assuming due
authorization, execution and delivery by the other parties thereto, constitutes
the valid and legally binding agreement of the Bank 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 of this Trust Agreement has been duly authorized by all
necessary corporate or other action on the part of the Bank and does not
require any approval of stockholders of the Bank and such execution, delivery
and performance will not (i) violate the charter or bylaws of the Bank,
(ii) violate any provision of, or constitute, with or without notice or lapse
of time (or both), 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 Bank is a party or by which it is bound,
or (iii) violate any law, governmental rule or regulation of the United
States governing the banking or trust powers of the Bank or of the State of
Delaware or any order, judgment or decree applicable to the Bank;


 


(e)           neither the
authorization, execution or delivery by the Bank of this Trust Agreement nor
the consummation of any of the transactions by it, the Property Trustee or the
Delaware Trustee (as appropriate in context) 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, 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 the Bank’s knowledge, threatened against or
affecting it, the Property Trustee 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 


 


32

















 


authority of the Bank to enter
into or perform its obligations as one of the Trustees under this Trust
Agreement.


 


Section 7.2.            Representations and Warranties of Depositor.


 


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


 


(a)           the Trust Securities
Certificates issued at the Closing Date on behalf of the Trust have been duly
authorized and will have been, duly and validly executed, issued and delivered
by the Trustees pursuant to the terms and provisions of, and in accordance with
the requirements of, this Trust Agreement and the Securityholders will be, as
of each 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 Bank, this Trust Agreement.


 


ARTICLE VIII.


 


THE TRUSTEES


 


Section 8.1.            Certain
Duties and Responsibilities.


 


(a)           The 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 the Trustees to expend or risk their own
funds or otherwise incur any financial liability in the performance of any of
their duties hereunder, or in the exercise of any of their rights or powers,
unless they are afforded reasonable indemnity against such risk or
liability.  Whether or not therein
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 of this Section. 
No Administrative Trustee or the Delaware Trustee shall be subject to
any liability under this Trust Agreement except for its own grossly negligent
action, its own grossly negligent failure to act, or its own willful
misconduct.  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 


 


33

















 


Securityholder, by its
acceptance of a Trust Security, agrees that it will look solely to the revenue
and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees 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 8.1(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 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 the Trust
Securities given in accordance with this Trust Agreement 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;


 


(iv)       the Property Trustee shall
not be liable for any interest on any money received by it except as it may
otherwise agree with the Depositor; 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 3.1 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 default or misconduct of the
Administrative Trustees or the Depositor.


 


Section 8.2.            Certain
Notices.


 


(a)           Within five Business
Days after the occurrence of any Event of Default actually known to a Responsible
Officer of the Property Trustee, the Property Trustee shall transmit, in the
manner and to the extent provided in Section 10.9, notice of such Event of
Default to the Securityholders, the Administrative Trustees and the Depositor,
unless the Event of Default shall


 


34

















 


have been cured or waived.  For purposes of this Section 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 10.9, notice of the Depositor’s election to begin or
further extend an Extension Period on the Debentures (unless such election shall
have been revoked) within the time specified for transmitting such notice to
the holders of the Debentures pursuant to the Indenture as originally executed.


 


Section 8.3.            Certain
Rights of Property Trustee.


 


Subject to the
provisions of Section 8.1:


 


(a)           the Property Trustee
may rely and shall be protected in acting or refraining from acting in good
faith upon any resolution, Opinion of Counsel, certificate, written
representation of a Holder or transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, 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;


 


(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 any 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 Preferred Securityholders 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 ten 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 two Business Days), it may, but shall be
under no duty to, take or refrain from taking such action not inconsistent with
this Trust Agreement as it 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 or the Administrative Trustees contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officers’ Certificate;


 


(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 rely upon an Officers’ Certificate which, upon receipt of such
request, shall be promptly delivered by the Depositor or the Administrative
Trustees;


 


35

















 


(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 registration
thereof,


 


(f)            the Property Trustee
may consult with counsel 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, but not an employee thereof; 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 and liabilities which might be incurred by it in
compliance with such request or direction;


 


(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, 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;


 


(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 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 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


 


36

















 


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


 


Section 8.5.            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, except as
provided in the definition of the term “Outstanding” in Article I and
subject to Sections 8.8 and 8.13, may otherwise deal with the Trust with
the same rights it would have if it were not a Trustee or such other agent.


 


Section 8.6.            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) as specified in a
separate agreement between any of the Trustees and the Depositor;


 


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


 


(c)           to the fullest extent
permitted by applicable law, to indemnify and hold harmless (i) each
Trustee, (ii) any Affiliate of any Trustee, (iii) any officer,
director, shareholder, employee, representative or agent of any Trustee, and
(iv) any employee or agent of the Trust or its Affiliates, (referred to
herein as an “Indemnified
Person”)
from and against any loss, damage, liability, tax, penalty, expense or claim of
any kind or nature whatsoever incurred by such Indemnified Person by reason of
the creation, operation or dissolution of the Trust or any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of the
Trust and in a manner such Indemnified Person reasonably believed to be within
the scope of authority conferred on such Indemnified Person by this Trust
Agreement, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of gross negligence (or ordinary negligence in the
case of the Property Trustee), bad faith or willful misconduct with respect to
such acts or omissions.


 


37

















 


The provisions
of this Section 8.6 shall survive the termination of this Trust Agreement.


 


No Trustee may
claim any lien or charge on any Trust Property as a result of any amount due
pursuant to this Section 8.6.


 


The Depositor
and any Trustee may (subject to Section 8.8) engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the business of the Trust, and the Trust
and the Holders of Trust Securities shall have no rights by virtue of this
Trust Agreement in and to such independent ventures or the income or profits
derived therefrom, and the pursuit of any such venture, even if competitive
with the business of the Trust, shall not be deemed wrongful or improper.
Neither the Depositor, nor any Trustee, shall be obligated to present any
particular investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the Trust, could be taken
by the Trust, and the Depositor or any Trustee shall have the right to take for
its own account (individually or as a partner or fiduciary) or to recommend to
others any such particular investment or other opportunity.  Any Trustee may engage or be interested in
any financial or other transaction with the Depositor or any Affiliate of the
Depositor, or may act as depository for, trustee or agent for, or act on any
committee or body of holders of, securities or other obligations of the Depositor
or its Affiliates.


 


Section 8.7.            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 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, 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, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.


 


(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.


 


38

















 


Section 8.8.            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 8.9.            Co-Trustees
and Separate Trustee.


 


Unless an
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 Indenture Act or
of any jurisdiction in which any part of the Trust Property may at the time be
located, the Depositor and the Administrative Trustees, by agreed action of the
majority of such Trustees, shall have power to appoint, and upon the written
request of the Administrative Trustees, the Depositor shall for such purpose
join with the Administrative Trustees 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. 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 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.


 


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.


 


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


 


(a)           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.


 


(b)           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-


 


39

















 


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.


 


(c)           The Property Trustee at
any time, by an instrument in writing executed by it, with the written
concurrence of the Depositor, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section, and, in case a
Debenture Event of Default has occurred and is continuing, the Property Trustee
shall have 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.


 


(d)           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.


 


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


 


(f)            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 8.10.          Resignation
and Removal; Appointment of Successor.


 


No resignation
or removal of any Trustee (the “Relevant  Trustee”) and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 8.11.


 


Subject to the
immediately preceding paragraph, the Relevant Trustee may resign at any time by
giving written notice thereof to the Common Securityholder.  If the instrument of acceptance by the
successor Trustee required by Section 8.11 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 Trust,
any court of competent jurisdiction for the appointment of a successor Relevant
Trustee.


 


Unless a
Debenture Event of Default shall have occurred and be continuing, any Trustee
may be removed at any time by Act of the Common Securityholder.  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).  In no event will the Holders of the
Preferred Securities have the right to vote to appoint, remove or replace the
Administrative Trustee.  An
Administrative Trustee may be removed by the Common Securityholder at any time.


 


40

















 


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 Common
Securityholder, by Act of the Common Securityholder delivered to the retiring
Trustee, shall promptly appoint a successor Trustee or Trustees, and the
retiring Trustee shall comply with the applicable requirements of
Section 8.11.  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 be
continuing, the Preferred Securityholders, 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, and such successor Trustee shall comply with the
applicable requirements of Section 8.11. 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 Common Securityholder by Act of the Common Securityholder
delivered to the Administrative Trustee shall promptly appoint a successor
Administrative Trustee or Administrative Trustees and such successor
Administrative Trustee or Trustees shall comply with the applicable requirements
of Section 8.11.  If no successor
Relevant Trustee shall have been so appointed by the Common Securityholder or
the Preferred Securityholders and accepted appointment in the manner required
by Section 8.11, any Securityholder who has been a Securityholder of Trust
Securities for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.


 


The Property
Trustee 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 10.9 and shall give notice to the Depositor.  Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust Office if it
is tire Property Trustee.


 


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 8.7).


 


Section 8.11.          Acceptance
of Appointment by Successor.


 


In case of the
appointment hereunder of a successor Relevant Trustee, the retiring Relevant
Trustee and each successor Relevant Trustee with respect to the Trust
Securities shall execute and deliver an amendment hereto wherein each successor
Relevant Trustee shall accept such appointment and which (a) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to,
and to vest in, each successor Relevant Trustee all the rights, powers, trusts
and duties of the retiring Relevant Trustee with respect to the Trust
Securities and the Trust and (b) shall add to or change any of the
provisions of this Trust Agreement as shall be necessary to provide for


 


41

















 


or facilitate the administration
of the Trust by more than one Relevant Trustee, it being understood that
nothing herein or in such amendment shall constitute such Relevant Trustees
co-trustees and upon the execution and delivery of such amendment the
resignation or removal of the retiring Relevant Trustee shall become effective
to the extent provided therein and each such successor Relevant Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Relevant Trustee; but, on
request of the Trust or any successor Relevant Trustee such retiring Relevant
Trustee shall duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.


 


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 first or second preceding paragraph, as the case may be.


 


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.


 


Section 8.12.          Merger, Conversion, Consolidation or Succession to
Business.


 


Any Person
into which the Property Trustee, the Delaware Trustee or any Administrative
Trustee that is not a natural person may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall be a party, or
any corporation 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 corporation shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.


 


Section 8.13.          Preferential
Collection of Claims Against Depositor or Trust.


 


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


 


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


 


42

















 


(b)           to collect and receive
any moneys or other property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Property Trustee and, in the event the Property Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Property Trustee
any amount due it for the reasonable compensation, expenses, disbursements and
advances of the Property Trustee, its agents and counsel, and any other amounts
due the Property Trustee.


 


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


 


If and when
the Property Trustee shall be or become a creditor of the Trust (or any other
obligor upon the Trust Securities), the Property Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Trust (or any such other obligor).


 


Section 8.14.          Reports by
Property Trustee.


 


(a)           Not later than
March 31 of each year commencing with the year commencing January 1,
2004, the Property Trustee shall transmit to all Securityholders in accordance
with Section 10.9, and to the Depositor, a brief report dated as of the
immediately preceding December 31 with respect to:


 


(i)         its eligibility under
Section 8.7 or, in lieu thereof, if to the best of its knowledge it has
continued to be eligible under said Section, a written statement to such
effect;


 


(ii)        a statement that the
Property Trustee has complied with all of its obligations under this Trust
Agreement during the twelve-month period (or, in the case of the initial
report, the period since the Closing Date) ending with such December 31
or, if the Property Trustee has not complied in any material respect with such
obligations, a description of such noncompliance; and


 


(iii)       any change in the property
and funds in its possession as Property Trustee since the date of its last
report and any action taken by the Property Trustee in the performance of its
duties hereunder which it has not previously reported and which in its opinion
materially affects the Trust Securities.


 


(b)           In addition the
Property Trustee shall transmit to Securityholders such reports concerning the
Property Trustee and its actions under this Trust Agreement as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.


 


(c)           A copy of each such
report shall, at the time of such transmission to Holders, be filed by the
Property Trustee with each national stock exchange, the Nasdaq National Market
or such other interdealer quotation system or self-regulatory organization upon
which the Trust Securities are listed or traded, with the Commission and with
the Depositor.


 


43

















 


Section 8.15.          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 8.16.          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 8.17.          Number of
Trustees.


 


(a)           The number of Trustees
shall be five (5) 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 8.17(a), or if the number of Trustees is
increased pursuant to Section 8.17(a), a vacancy shall occur.  The vacancy shall be filled with a Trustee
appointed in accordance with Section 8.10.


 


(c)           The death, resignation,
retirement, removal, bankruptcy, incompetence or incapacity to perform the
duties of a Trustee shall not operate to dissolve, terminate or 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 8.10,
the Administrative Trustees in office, regardless of their number (and notwithstanding
any other provision of this Trust 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 8.18.          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 2.7(a), including any registration
statement or amendment thereto filed with the Commission, or making any other
governmental filing.


 


(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


 


44

















 


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 this Trust Agreement, as set
forth herein.


 


(c)           Unless otherwise
specified in this Trust Agreement or otherwise required by applicable law, the
signature of one Administrative Trustee is effective to execute on behalf of
the Trust any document that the Administrative Trustees have the power and
authority to execute pursuant to Section 2.7.


 


Section 8.19.          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.


 


ARTICLE IX.


 


DISSOLUTION,
LIQUIDATION AND MERGER


 


Section 9.1.            Dissolution Upon Expiration Date.


 


Unless
dissolved earlier, the Trust shall automatically dissolve on October 15,
2033 (the “Expiration
Date”),
following the distribution of the Trust Property in accordance with
Section 9.4.


 


Section 9.2.            Early
Dissolution.


 


The first to
occur of any of the following events is an “Early  Dissolution  Event,” upon the
occurrence of which the Trust shall dissolve:


 


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


 


(b)           the written direction
to the Property Trustee from the Depositor at any time to dissolve the Trust
and distribute Debentures to Securityholders in exchange for a Like Amount of
the Preferred Securities (which direction is optional and wholly within the
discretion of the Depositor);


 


(c)           the redemption of all
of the Preferred Securities in connection with the redemption of all the
Debentures; and


 


(d)           the entry of an order
for dissolution of the Trust by a court of competent jurisdiction.


 


Section 9.3.            Dissolution.


 


The respective
obligations and responsibilities of the Trustees and the Trust created and
continued hereby shall dissolve upon the latest to occur of the following:
(a) the distribution by the


 


45

















 


Property Trustee to
Securityholders upon the liquidation of the Trust pursuant to Section 9.4;
or upon the redemption of all of the Trust Securities pursuant to
Section 4.2, 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; and (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 the Administrative Trustee under the
Delaware Statutory Trust Act.


 


Section 9.4.            Liquidation.


 


(a)           If an Early Dissolution
Event specified in clause (a), (b) or (d) of Section 9.2 occurs or upon
the Expiration Date, the Trust shall be liquidated by the Trustees as
expeditiously as the Trustees determine to be possible by distributing, 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 9.4(d).  Notice of
liquidation shall be given by the Property Trustee 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 will no longer be deemed to be
Outstanding and any Trust Securities Certificates not surrendered for exchange
will 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 certificates representing the Like Amount of the Debentures,
or if Section 9.4(d) applies receive a Liquidation Distribution, as the
Administrative Trustees or the Property Trustee shall deem appropriate.


 


(b)           Except where
Section 9.2(c) or 9.4(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 9.2(c) or 9.4(d) applies, after the Liquidation Date, (i) the
Trust Securities will no longer be deemed to be Outstanding,
(ii) certificates representing a Like Amount of Debentures will 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 its best efforts to have the Debentures
listed on the Nasdaq National Market or on such other exchange, interdealer
quotation system or self-regulatory organization as the Preferred Securities
are then listed, (iv) any Trust Securities Certificates not so surrendered
for exchange will be deemed to represent a Like Amount of Debentures, accruing
interest at the rate provided for in the Debentures


 


46

















 


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 will be made to Holders of
Debentures represented by such certificates) and (v) all rights of
Securityholders holding Trust Securities will cease, except the right of such
Securityholders to receive a Like Amount of Debentures upon surrender of Trust
Securities Certificates.


 


(d)           In the event that,
notwithstanding the other provisions of this Section 9.4, 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 Property Trustee not to be practical, the Trust Property shall be
liquidated, and the Trust shall be wound-up or terminated, by the Property
Trustee in such manner as the Property Trustee determines.  In such event, on the date of the
dissolution of the Trust, Securityholders will 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 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 will be entitled to receive Liquidation Distributions
upon any such 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, Holders of the Preferred Securities shall have
a priority over the Holders of Common Securities.


 


Section 9.5.            Mergers, Consolidations, Amalgamations or
Replacements of the Trust.


 


The Trust may not merge with or
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 body, except pursuant to this Section 9.5 or Section 9.4.  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, consolidate, amalgamate, or 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 (a) such successor entity either (i) expressly assumes
all of the obligations of the Trust with respect to the Preferred Securities or
(ii) 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, (b) the Depositor expressly appoints a trustee
of such successor entity possessing the same powers and duties as the Property
Trustee as the holder of the Debentures, (c) the Successor Securities are
listed or traded, or any Successor Securities will be listed upon notification
of issuance, on any national securities exchange or other organization on which
the Preferred Securities are then listed or traded, if any, (d) such


 


47

















 


merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the Preferred
Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization, (e) such merger,
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, (f) such successor entity has a purpose substantially identical
to that of the Trust, (g) prior to such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Depositor has
received an Opinion of Counsel to the effect that (i) such merger,
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 (ii) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such
successor entity will be required to register as an investment company under
the 1940 Act and (h) 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. Notwithstanding the foregoing, the Trust shall not, except with the
consent of holders of 100% in Liquidation Amount of the Preferred Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or the
successor entity to be classified as other than a grantor trust for United
States federal income tax purposes.


 


ARTICLE X.


 


MISCELLANEOUS
PROVISIONS


 


Section 10.1.          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 10.2.          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) 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, which shall not be inconsistent with the other provisions of this
Trust Agreement, or (ii) to modify, eliminate or add to any provisions of
this Trust Agreement to such extent as shall be necessary to ensure that the
Trust will be classified for United States federal income tax purposes as a
grantor trust at all times that any Trust Securities are outstanding or to


 


48

















 


ensure that the Trust will not
be required to register as an investment company under the 1940 Act; provided,
however, that in the case of clause (i), such action shall not adversely
affect in any material respect the interests of any Securityholder, and any
such amendments of this Trust Agreement shall become effective when notice
thereof is given to the Securityholders.


 


(b)           Except as provided in
Section 10.2(c) hereof, any provision of this Trust Agreement may be
amended by the Administrative Trustees and the Property Trustee with
(i) the consent of Trust Securityholders representing not less than a
majority (based upon Liquidation Amounts) of the Trust Securities then
Outstanding and (ii) 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 will not affect the Trust’s status
as a grantor trust for United States federal income tax purposes or the Trust’s
exemption from status of an investment company under the 1940 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 6.3 or 6.6 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 6.3 or 6.6
hereof), this paragraph (c) of this Section 10.2 may not be amended.


 


(d)           Notwithstanding any
other provisions of this Trust Agreement, no Administrative Trustee shall enter
into or consent to any amendment to this Trust Agreement which would
(i) cause the Trust to fail or cease to qualify for the exemption from
status of an investment company under the 1940 Act, (ii) cause the Trust
to fail or cease to be classified as a grantor trust for United States federal
income tax purposes, or (iii) cause the Preferred Securities to be
delisted by the Nasdaq National Market or such other national exchange or
over-the-counter market on which the Preferred Securities are then listed for
trading.


 


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


 


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


 


(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 is in compliance
with this Trust Agreement.


 


49

















 


Section 10.3.          Counterparts.


 


This Trust
Agreement may be executed in one or more counterparts, each of which shall be
an original and all of which shall constitute one and the same instrument.


 


Section 10.4.          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 10.5.          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).


 


Section 10.6.          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 that is a Business Day, with the same force and
effect as though made on the date fixed for such payment, and no interest shall
accrue thereon for the period after such date.


 


Section 10.7.          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, including any successor by
operation of law.  Except in connection
with a consolidation, merger or sale involving the Depositor that is permitted
under Article Eight 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 10.8.          Headings.


 


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


 


Section 10.9.          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
Preferred Securityholder, to such Preferred Securityholder as such
Securityholder’s name and


 


50

















 


address may appear on the
Securities Register; and (b) in the case of the Common Securityholder or
the Depositor, to Silicon Valley Bancshares, 3003 Tasman Drive, Santa Clara,
California, 95054, Attention: Chief Financial Officer, facsimile number: (408)
496-2405. 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.


 


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, the Delaware 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 Wilmington Trust Company,
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890;
(b) with respect to the Delaware Trustee, to Wilmington Trust Company,
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890,
Attention: Corporate Trust Administration; and (c) with respect to the Administrative
Trustees, to them at the address above for notices to the Depositor, marked
“Attention Administrative Trustees of SVB Capital II.” 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 10.10.        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 Laws or otherwise join in the
commencement of any proceeding against the Trust under any Bankruptcy Law.  In the event the Depositor takes action in
violation of this Section 10.10, the Property Trustee agrees, for the
benefit of Securityholders, that at the expense of the Depositor, it shall file
an answer with the bankruptcy court or otherwise properly contest the filing of
such petition by the Depositor against the Trust or the commencement of such
action and raise the defense that the Depositor has agreed in writing not to
take such action and should be stopped and precluded therefrom ,and such other
defenses, if any, as counsel for the Trustee or the Trust may assert. The
provisions of this Section 10.10 shall survive the termination of this
Trust Agreement.


 


Section 10.11.        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


 


51

















 


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 excluded, as the case may be.


 


(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 10.12.        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.


 


52

















 


IN WITNESS
WHEREOF, the undersigned have executed this Amended and Restated Trust
Agreement this as of the day and year first above written.


 


	
  Silicon
  Valley Bancshares

  	
   

  	
  SVB
  Capital II

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Kenneth P. Wilcox

  	
   

  	
   

  	
  /s/ Marc J. Verissimo

  	
   

  
	
   

  	
  Name:   Kenneth P. Wilcox

  	
   

  	
  Marc J. Verissimo,

  
	
   

  	
  Title:     President and Chief Executive Officer

  	
   

  	
  as
  Administrative Trustee

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Wilmington
  Trust Company,

  	
   

  	
  /s/ Paulette Mehas

  	
   

  
	
   

  	
  as Property Trustee

  	
   

  	
  Paulette Mehas,

  
	
   

  	
   

  	
   

  	
  as
  Administrative Trustee

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Denise M. Geran

  	
   

  	
   

  	
   

  
	
   

  	
  Name:   Denise M. Geran

  	
   

  	
  /s/ Donal D. Delaney

  	
   

  
	
   

  	
  Title:     Vice President

  	
   

  	
  Donal D. Delaney,

  
	
   

  	
   

  	
  as
  Administrative Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Wilmington
  Trust Company,

  	
   

  	
   

  
	
   

  	
  as Delaware Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Denise M. Geran

  	
   

  	
   

  	
   

  
	
   

  	
  Name:   Denise M. Geran

  	
   

  	
   

  
	
   

  	
  Title:     Vice President

  	
   

  	
   

  
							



 

















 


EXHIBIT
A


 


Certificate of Trust


 

















 


EXHIBIT
B


 


Form of Common Securities Certificate


 


THIS CERTIFICATE IS NOT TRANSFERABLE


 


	
  Certificate Number C-1

  	
   

  	
  Number of Common Securities:

  



 


Certificate Evidencing Common Securities


 


of


 


SVB CAPITAL II


 


7% Common Securities

(liquidation amount $25 per Common Security)


 


SVB CAPITAL I,
a statutory trust formed under the laws of the State of Delaware (the “Trust”), hereby
certifies that SILICON VALLEY BANCSHARES (the “Holder”) is the registered owner of
        common securities of the Trust
representing undivided beneficial interests of the Trust and designated the 7% Common  Securities
(liquidation amount $25 per Common Security) (the “Common Securities”).  In accordance with Section 5.10 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
October 30, 2003, (as the same may be amended, restated, modified or
otherwise supplemented from time to time, the “Trust  Agreement”) including the designation of
the terns of the Common Securities as set forth therein.  The Trust will 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, an Administrative Trustee of the Trust has executed this certificate
this       day of      ,
2003.


 


	
   

  	
  SVB CAPITAL II

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


EXHIBIT
C


 


Form
of Agreement as to Expenses and Liabilities


 

















 


EXHIBIT
D


 


Form of Preferred Securities
Certificate


 


This Preferred
Security is a Global Certificate within the meaning of the Trust Agreement
hereinafter referred to and is registered in the name of The Depository Trust
Company (the “Depository”)
or a nominee of the Depository.  This
Preferred Security is exchangeable for Trust Preferred Securities registered in
the name of a person other than the Depository or its nominee only in the
limited circumstances described in the Trust Agreement and no transfer of this
Preferred Security (other than a transfer of this Preferred Security as a whole
by the Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository) may be
registered except in limited circumstances.


 


Unless this
Preferred Security is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York) to SVB CAPITAL II or its
agent for registration of transfer, exchange or payment, and any Preferred
Security issued is registered in the name of Cede & Co. or such other name
as requested by an authorized representative of The Depository Trust Company
and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.


 


	
  Certificate
  Number P-1

  	
   

  	
  Number of Trust Preferred
  Securities                    

  



 


CUSIP NO. 86959H 20 1


 


Certificate Evidencing
Trust Preferred Securities


 


of


 


SVB CAPITAL II


 


7% Cumulative Trust
Preferred Securities, 

(liquidation amount $25 per Preferred Security)


 


SVB CAPITAL II,
a statutory trust formed under the laws of the State of Delaware (the “Trust”), hereby
certifies that
                      
(the “Holder”)
is the registered owner of
                
(    ) Trust Preferred Securities of the Trust representing
an undivided beneficial interest in the assets of the Trust and designated the
SVB CAPITAL II 7% Cumulative Trust Preferred Securities, (liquidation amount
$25 per Preferred Security) (the “Trust  Preferred  Securities”).  The Trust 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 5.4 of the Trust Agreement (as defined below).  The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Trust Preferred
Securities are set forth in, and this certificate and the Trust 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 October 30, 2003, (as the same may be amended, restated, modified or
other wise supplemented from time to time, the “Trust  Agreement”) including the designation of
the terms of Trust Preferred Securities as set forth therein.  The Holder is entitled to the benefits of
the Guarantee Agreement entered into by Silicon Valley Bancshares, a Delaware
corporation, and Wilmington Trust Company, as guarantee trustee, dated as of
October 30, 2003, (the “Guarantee”), to the extent provided therein.  The Trust will 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.


 


This Preferred
Security is not a savings account or deposit or other obligation of a bank and
is not insured by the Federal Deposit Insurance Corporation, by any other
governmental agency, or otherwise.


 


In Witness
Whereof, an Administrative Trustee of the Trust has executed this certificate
this             day of
             ,
2003.


 


	
  SVB CAPITAL II

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  
	
  Administrative
  Trustee

  



 

















 


ASSIGNMENT


 


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


 


 


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


 


 


(Insert address and zip code of assignee)


 


and irrevocably appoints


 


 


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


 


	
  Date:

  	
   

  	
   

  
	
   

  
	
  Signature:

  	
   

  	
   

  
					



 


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


 


The signature(s) should be
guaranteed by an eligible guarantor institution (banks, stockbrokers, savings
and loan associations and credit unions with membership in an approved
signature guarantee medallion program), pursuant to SEC Rule 17Ad-15.