EXHIBIT 4.5


 


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 ____________, 2003


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I. DEFINED
  TERMS

  	
   

  	
  1

  
	
  Section 1.1.

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II.
  ESTABLISHMENT OF THE TRUST SECTION

  	
   

  	
  10

  
	
  Section 2.1.

  	
   

  	
  Name

  	
   

  	
  10

  
	
  Section 2.2.

  	
   

  	
  Office
  of the Delaware Trustee; Principal Place of Business

  	
   

  	
  11

  
	
  Section 2.3.

  	
   

  	
  Initial
  Contribution of Trust Property; Organizational Expenses

  	
   

  	
  11

  
	
  Section 2.4.

  	
   

  	
  Issuance
  of the Preferred Securities

  	
   

  	
  11

  
	
  Section 2.5.

  	
   

  	
  Issuance
  of the Common Securities; Subscription and Purchase of Debentures

  	
   

  	
  11

  
	
  Section 2.6.

  	
   

  	
  Declaration of
  Trust

  	
   

  	
  12

  
	
  Section 2.7.

  	
   

  	
  Authorization
  to Enter into Certain Transactions

  	
   

  	
  12

  
	
  Section 2.8.

  	
   

  	
  Assets of Trust

  	
   

  	
  15

  
	
  Section 2.9.

  	
   

  	
  Title to
  Trust Property

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III.
  PAYMENT ACCOUNT

  	
   

  	
  16

  
	
  Section 3.1.

  	
   

  	
  Payment Account

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV.
  DISTRIBUTIONS; REDEMPTION

  	
   

  	
  16

  
	
  Section 4.1.

  	
   

  	
  Distributions

  	
   

  	
  16

  
	
  Section 4.2.

  	
   

  	
  Redemption

  	
   

  	
  17

  
	
  Section 4.3.

  	
   

  	
  Subordination
  of Common Securities

  	
   

  	
  19

  
	
  Section 4.4.

  	
   

  	
  Payment
  Procedures

  	
   

  	
  19

  
	
  Section 4.5.

  	
   

  	
  Tax Returns
  and Reports

  	
   

  	
  20

  
	
  Section 4.6.

  	
   

  	
  Payment
  of Taxes, Duties, Etc. of the Trust

  	
   

  	
  20

  
	
  Section 4.7.

  	
   

  	
  Payments
  under Indenture or Pursuant to Direct Actions

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V.
  TRUST SECURITIES CERTIFICATES

  	
   

  	
  20

  
	
  Section 5.1.

  	
   

  	
  Initial Ownership

  	
   

  	
  20

  
	
  Section 5.2.

  	
   

  	
  The
  Trust Securities Certificates

  	
   

  	
  20

  
	
  Section 5.3.

  	
   

  	
  Execution
  and Delivery of Trust Securities Certificates

  	
   

  	
  21

  
	
  Section 5.4.

  	
   

  	
  Registration
  of Transfer and Exchange of Preferred Securities Certificates

  	
   

  	
  21

  
	
  Section 5.5.

  	
   

  	
  Mutilated,
  Destroyed, Lost or Stolen Trust Securities Certificates

  	
   

  	
  22

  
	
  Section 5.6.

  	
   

  	
  Persons
  Deemed Securityholders

  	
   

  	
  22

  
	
  Section 5.7.

  	
   

  	
  Access
  to List of Securityholders’ Names and Addresses

  	
   

  	
  22

  
	
  Section 5.8.

  	
   

  	
  Maintenance
  of Office or Agency

  	
   

  	
  23

  
	
  Section 5.9.

  	
   

  	
  Appointment
  of Paying Agent

  	
   

  	
  23

  
	
  Section 5.10.

  	
   

  	
  Ownership
  of Common Securities by Depositor

  	
   

  	
  24

  



 


 


-i-

















 


	
  Section 5.11.

  	
   

  	
  Book
  Entry Preferred Securities Certificates; Common Securities Certificate

  	
   

  	
  24

  
	
  Section 5.12.

  	
   

  	
  Notices
  to Clearing Agency

  	
   

  	
  25

  
	
  Section 5.13.

  	
   

  	
  Definitive
  Preferred Securities Certificates

  	
   

  	
  25

  
	
  Section 5.14.

  	
   

  	
  Rights of
  Securityholders

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI.
  ACTS OF SECURITYHOLDERS; MEETINGS, VOTING

  	
   

  	
  27

  
	
  Section 6.1.

  	
   

  	
  Limitations
  on Voting Rights

  	
   

  	
  27

  
	
  Section 6.2.

  	
   

  	
  Notice of
  Meetings

  	
   

  	
  28

  
	
  Section 6.3.

  	
   

  	
  Meetings
  of Preferred Securityholders

  	
   

  	
  29

  
	
  Section 6.4.

  	
   

  	
  Voting Rights

  	
   

  	
  29

  
	
  Section 6.5.

  	
   

  	
  Proxies, etc.

  	
   

  	
  29

  
	
  Section 6.6.

  	
   

  	
  Securityholder
  Action by Written Consent

  	
   

  	
  29

  
	
  Section 6.7.

  	
   

  	
  Record
  Date for Voting and Other Purposes

  	
   

  	
  30

  
	
  Section 6.8.

  	
   

  	
  Acts of
  Securityholders

  	
   

  	
  30

  
	
  Section 6.9.

  	
   

  	
  Inspection of
  Records

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII.
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
  31

  
	
  Section 7.1.

  	
   

  	
  Representations
  and Warranties of the Bank

  	
   

  	
  31

  
	
  Section 7.2.

  	
   

  	
  Representations
  and Warranties of Depositor

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII.
  THE TRUSTEES

  	
   

  	
  33

  
	
  Section 8.1.

  	
   

  	
  Certain
  Duties and Responsibilities

  	
   

  	
  33

  
	
  Section 8.2.

  	
   

  	
  Certain Notices

  	
   

  	
  34

  
	
  Section 8.3.

  	
   

  	
  Certain
  Rights of Property Trustee

  	
   

  	
  34

  
	
  Section 8.4.

  	
   

  	
  Not
  Responsible for Recitals or Issuance of Securities

  	
   

  	
  36

  
	
  Section 8.5.

  	
   

  	
  May Hold
  Securities

  	
   

  	
  36

  
	
  Section 8.6.

  	
   

  	
  Compensation;
  Indemnity; Fees

  	
   

  	
  37

  
	
  Section 8.7.

  	
   

  	
  Corporate
  Property Trustee Required; Eligibility of Trustees

  	
   

  	
  38

  
	
  Section 8.8.

  	
   

  	
  Conflicting
  Interests

  	
   

  	
  38

  
	
  Section 8.9.

  	
   

  	
  Co-Trustees
  and Separate Trustee

  	
   

  	
  38

  
	
  Section 8.10.

  	
   

  	
  Resignation
  and Removal; Appointment of Successor

  	
   

  	
  40

  
	
  Section 8.11.

  	
   

  	
  Acceptance
  of Appointment by Successor

  	
   

  	
  41

  
	
  Section 8.12.

  	
   

  	
  Merger,
  Conversion, Consolidation or Succession to Business

  	
   

  	
  42

  
	
  Section 8.13.

  	
   

  	
  Preferential
  Collection of Claims Against Depositor or Trust

  	
   

  	
  42

  
	
  Section 8.14.

  	
   

  	
  Reports
  by Property Trustee

  	
   

  	
  43

  
	
  Section 8.15.

  	
   

  	
  Reports
  to the Property Trustee

  	
   

  	
  43

  
	
  Section 8.16.

  	
   

  	
  Evidence
  of Compliance with Conditions Precedent

  	
   

  	
  43

  
	
  Section 8.17.

  	
   

  	
  Number of
  Trustees

  	
   

  	
  44

  
	
  Section 8.18.

  	
   

  	
  Delegation of
  Power

  	
   

  	
  44

  
	
  Section 8.19.

  	
   

  	
  Voting

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX.
  DISSOLUTION, LIQUIDATION AND MERGER

  	
   

  	
  45

  
	
  Section 9.1.

  	
   

  	
  Dissolution
  Upon Expiration Date

  	
   

  	
  45

  
	
  Section 9.2.

  	
   

  	
  Early Dissolution

  	
   

  	
  45

  



 


 


-ii-

















 


	
  Section 9.3.

  	
   

  	
  Dissolution

  	
   

  	
  45

  
	
  Section 9.4.

  	
   

  	
  Liquidation

  	
   

  	
  45

  
	
  Section 9.5.

  	
   

  	
  Mergers,
  Consolidations, Amalgamations or Replacements of the Trust

  	
   

  	
  47

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X.
  MISCELLANEOUS PROVISIONS

  	
   

  	
  48

  
	
  Section 10.1.

  	
   

  	
  Limitation
  of Rights of Securityholders

  	
   

  	
  48

  
	
  Section 10.2.

  	
   

  	
  Amendment

  	
   

  	
  48

  
	
  Section 10.3.

  	
   

  	
  Counterparts

  	
   

  	
  49

  
	
  Section 10.4.

  	
   

  	
  Separability

  	
   

  	
  49

  
	
  Section 10.5.

  	
   

  	
  Governing Law

  	
   

  	
  50

  
	
  Section 10.6.

  	
   

  	
  Payments
  Due on Non-Business Day

  	
   

  	
  50

  
	
  Section 10.7.

  	
   

  	
  Successors

  	
   

  	
  50

  
	
  Section 10.8.

  	
   

  	
  Headings

  	
   

  	
  50

  
	
  Section 10.9.

  	
   

  	
  Reports,
  Notices and Demands

  	
   

  	
  50

  
	
  Section 10.10.

  	
   

  	
  Agreement
  Not to Petition

  	
   

  	
  51

  
	
  Section 10.11.

  	
   

  	
  Trust
  Indenture Act; Conflict with Trust Indenture Act

  	
   

  	
  51

  
	
  Section 10.12.

  	
   

  	
  Acceptance
  of Terms of Trust Agreement, Guarantee and Indenture

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  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 ____________, 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) Lauren Friedman, 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 the Delaware Statutory Trust Act by the entering
into that 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;


 


(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; and


 


(e)           all accounting terms not otherwise
defined herein have the meanings assigned to them in accordance with generally
accepted accounting principles, and the term “generally accepted accounting
principles” with respect to any computation required or permitted hereunder
shall mean such accounting principles which are generally accepted at the date
or time of such computation: provided, that when two or more principles are so
generally accepted, it shall mean that set of principles consistent with those
in use by the Company.


 


“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.


 


 


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


 


“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.


 


“Corporate  Trust  Office” means (i) when used
with respect to the Property Trustee, Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890, 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 __% Junior Subordinated
Deferrable Interest Debentures, issued pursuant to the Indenture.


 


“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 


 


 


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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


 


(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.


 


 


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“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 ____________, 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 ____________, 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.


 


“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).


 


 


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“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 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


 


 


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(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
“__% Cumulative Trust Preferred Securities,” having a Liquidation Amount of $25
per 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.


 


 


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“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.


 


“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 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.


 


 


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“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 Underwriter named in the Underwriting Agreement.


 


“Underwriting  Agreement”
means that certain Underwriting Agreement dated as of ____________, 2003, among
the Trust, the Depositor, and Morgan Stanley & Co., Incorporated, as
the Underwriter.


 


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.


 


 


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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 an Administrative Trustee, 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 _______ Preferred Securities having an aggregate
Liquidation Amount of $__________, against receipt of such aggregate purchase
price of such Preferred Securities of $________ which amount the Administrative
Trustee shall promptly deliver to the Property Trustee.


 


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 _______ Common
Securities having an aggregate Liquidation Amount of $________, 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 $_____________ 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 $__________, 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.


 


 


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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. This 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:


 


(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
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;


 


 


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(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 Business 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:


 


(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;


 


 


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(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 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


 


 


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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 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.


 


 


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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:


 


(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 ____ day of____, ____, ______and __________of each year, commencing
on________, 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


 


 


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be payable at a rate of
___% 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;


 


(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.


 


 


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(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.


 


(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 


 


 


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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 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.


 


 


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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.


 


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 


 


 


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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.


 


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 


 


 


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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 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



 


 


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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.


 


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


 


 


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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 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


 


 


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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 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


 


 


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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:


 


(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,


 


 


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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).


 


(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 


 


 


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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.


 


(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.


 


 


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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.


 


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 


 


 


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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 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.


 


 


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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.


 


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 


 


 


-31-

















 


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 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.


 


 


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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
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 


 


 


-33-

















 


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 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, and 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;


 


 


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(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;


 


(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, 


 


 


-35-

















 


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 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.


 


 


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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.


 


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 


 


 


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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.


 


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 


 


 


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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-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.


 


 


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(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.


 


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 


 


 


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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 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.


 


 


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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


 


(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).


 


 


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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.


 


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.


 


 


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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; and


 


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


 


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.


 


 


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ARTICLE IX.



DISSOLUTION, LIQUIDATION AND MERGER


 


Section 9.1.            Dissolution Upon Expiration Date.


 


Unless dissolved earlier,
the Trust shall automatically dissolve on _____, 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 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 


 


-45-

















 


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 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 


 


 


-46-

















 


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
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 


 


 


-47-

















 


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 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.


 


 


-48-

















 


(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.


 


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.


 


 


-49-

















 


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
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 


 


 


-50-

















 


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 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.


 


 


-51-

















 


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

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  [________________]

  	
   

  	
  Lauren Friedman,

  
	
   

  	
  Title:

  	
  [________________]

  	
   

  	
  as Administrative Trustee

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wilmington Trust Company,

  	
   

  	
   

  	
   

  	
   

  
	
  as Property Trustee

  	
   

  	
   

  	
   

  	
  Paulette Mehas,

  
	
   

  	
   

  	
   

  	
   

  	
  as Administrative Trustee

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  [________________]

  	
   

  	
  Donal D. Delaney,

  
	
   

  	
  Title:

  	
  [________________]

  	
   

  	
  as Administrative Trustee

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wilmington Trust Company,

  	
   

  	
   

  	
   

  	
   

  
	
  as Delaware Trustee

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  [___________________]

  	
   

  	
   

  
	
   

  	
  Title:

  	
  [___________________]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
							



 


 

















 


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


 


____%
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 ____% 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 __________, 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


 


AGREEMENT
AS TO EXPENSES AND LIABILITIES


 


THIS
AGREEMENT AS TO EXPENSES AND LIABILITIES (this “Agreement”) dated as
of ____________, 2003, between Silicon Valley Bancshares, a Delaware
corporation (the “Company”)
and SVB Capital II, a Delaware statutory trust (the “Trust”).


 


WHEREAS, the Trust
intends to issue its Common Securities (the “Common Securities”) to, and receive
Junior Subordinated Deferrable Interest Debentures (the “Debentures”) from, the
Company and to issue and sell __% Cumulative Trust Preferred Securities (the “Trust Preferred Securities”)
with such powers, preferences and special rights and restrictions as are set
forth in the Amended and Restated Trust Agreement of the Trust dated as of
____________, 2003 (as the same may be amended, restated, modified or otherwise
supplemented from time to time the “Trust Agreement”);


 


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


 


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


 


ARTICLE I


 


Section 1.1             Guarantee
by the Company.


 


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


 


Section 1.2             Term
of Agreement.


This Agreement shall terminate
and be of no further force and effect on the date on which full payment has
been made of all amounts payable to all holders of all the Trust Preferred
Securities (whether upon redemption, liquidation, exchange or otherwise); provided,
however, that this
Agreement shall continue to be effective or shall be reinstated, as the case
may be, if at any time any holder of Trust Preferred Securities or any
Beneficiary must restore payment of any sums paid under


 

















 


the Trust Preferred Securities, under any
Obligation, under the Guarantee Agreement dated the date hereof by the Company and
Wilmington Trust Company, as guarantee trustee, or under this Agreement for any
reason whatsoever.  This Agreement is
continuing, irrevocable, unconditional and absolute and the Company fully,
knowingly and unconditionally waives any right to revoke the guarantee under
Section 2815 of the California Civil Code or otherwise.


 


Section 1.3             Waiver
of Notice.


 


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


 


Section 1.4             No
Impairment.


 


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


 


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


 


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


 


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


 


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


 


Section 1.5             Enforcement.


 


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


 


-2-

















 


Section 1.6             Subrogation.


 


The Company shall be
subrogated to all (if any) rights of the Trust in respect of any amounts paid
to the Beneficiaries by the Company under this Agreement; provided, however, that the Company shall not (except to
the extent required by mandatory provisions of law) be entitled to enforce or
exercise any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of
payment under this Agreement, if, at the time of any such payment, any amounts
are due and, unpaid under this Agreement.


 


ARTICLE II


 


Section 2.1             Binding
Effect.


 


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


 


Section 2.2             Amendment.


 


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


 


Section 2.3             Notices.


 


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


 


	
   

  	
  SVB Capital II:

  	
   

  	
   

  
	
   

  	
  c/o Silicon Valley
  Bancshares

  	
   

  	
   

  
	
   

  	
  3003 Tasman Drive

  	
   

  	
   

  
	
   

  	
  Santa Clara, California
  95054

  	
   

  	
   

  
	
   

  	
  Facsimile No.: (408)
  496-2405

  	
   

  	
   

  
	
   

  	
  Attention: Chief Financial
  Officer

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Silicon
  Valley Bancshares:

  	
   

  	
   

  
	
   

  	
  3003 Tasman Drive

  	
   

  	
   

  
	
   

  	
  Santa Clara, California
  95054

  	
   

  	
   

  
	
   

  	
  Facsimile No.: (408)
  496-2405

  	
   

  	
   

  
	
   

  	
  Attention: Chief Financial
  Officer

  	
   

  	
   

  



 


Section 2.4             Choice
of Law.


 


THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA (WITHOUT
REGARD TO CONFLICT OF LAW PRINCIPLES).


 


-3-

















 


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


 


	
   

  	
  SILICON
  VALLEY BANCSHARES

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SVB
  CAPITAL II

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


 


 


 


 


 


-4-

















 


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.


 


Certificate
Evidencing Trust Preferred Securities


 


of


 


SVB
CAPITAL II


 


____%
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____% 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
__________, 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 __________,
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.