exv4w1



 






EXHIBIT 4.1



 




AMENDED AND RESTATED TRUST AGREEMENT




among




MetroCorp, Inc.




as Depositor,




Wilmington Trust Company,




as Property Trustee,




Wilmington Trust Company,




as Delaware Trustee,




and




the Administrators named herein




Dated as of November 1, 2001



 





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I INTERPRETATION AND DEFINITIONS
	 	 	1	 
	Section 1.1. Interpretation
	 	 	1	 
	Section 1.2. Certain Definitions
	 	 	2	 
	 
	 	 	 	 
	ARTICLE II THE TRUST
	 	 	11	 
	Section 2.1. Name
	 	 	11	 
	Section 2.2. Office of the Delaware Trustee; Principal Place of Business
	 	 	11	 
	Section 2.3. Organizational Expenses
	 	 	11	 
	Section 2.4. Issuance of the Capital Securities
	 	 	12	 
	Section 2.5. Issuance of the Common Securities; Subscription and Purchase of Subordinated Notes
	 	 	12	 
	Section 2.6. Declaration of Trust
	 	 	12	 
	Section 2.7. Authorization to Enter into Certain Transactions
	 	 	13	 
	Section 2.8. Assets of Trust
	 	 	16	 
	Section 2.9. Title to Trust Property
	 	 	16	 
	 
	 	 	 	 
	ARTICLE III PAYMENT ACCOUNT
	 	 	16	 
	Section 3.1. Payment Account
	 	 	16	 
	 
	 	 	 	 
	ARTICLE IV DISTRIBUTIONS; REDEMPTION
	 	 	17	 
	Section 4.1. Distributions
	 	 	17	 
	Section 4.2. Redemption
	 	 	17	 
	Section 4.3. Distributions to and Subordination of Common Securities
	 	 	19	 
	Section 4.4. Payment Procedures
	 	 	20	 
	Section 4.5. Tax Returns and Reports
	 	 	20	 
	Section 4.6. Payment of Taxes; Duties of the Trustee
	 	 	20	 
	Section 4.7. Payments under Subordinated Loan Agreement or Guarantee Agreement or Pursuant to Direct Actions
	 	 	20	 
	Section 4.8. Liability of the Holder of Common Securities
	 	 	21	 
	 
	 	 	 	 
	ARTICLE V TRUST SECURITIES CERTIFICATES
	 	 	21	 
	Section 5.1. Initial Ownership
	 	 	21	 
	Section 5.2. The Trust Securities Certificates
	 	 	21	 
	Section 5.3. Execution and Delivery of Trust Securities Certificates
	 	 	21	 
	Section 5.4. Registration of Transfer and Exchange of Capital Securities Certificates
	 	 	21	 
	Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates
	 	 	23	 
	Section 5.6. Persons Deemed Holders
	 	 	23	 
	Section 5.7. Access to List of Holders= Names and Addresses
	 	 	23	 
	Section 5.8. Maintenance of Office or Agency
	 	 	24	 
	Section 5.9. Appointment of Paying Agent
	 	 	24	 
	Section 5.10. Ownership of Common Securities by Depositor
	 	 	24	 






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	Section 5.11. Rights of Holders
	 	 	25	 
	 
	 	 	 	 
	ARTICLE VI ACTS OF HOLDERS; VOTING
	 	 	26	 
	Section 6.1. Limitations on Voting Rights
	 	 	26	 
	Section 6.2. Acts of Holders
	 	 	27	 
	Section 6.3. Inspection of Records
	 	 	28	 
	 
	 	 	 	 
	ARTICLE VII REPRESENTATIONS AND WARRANTIES
	 	 	28	 
	Section 7.1. Representations and Warranties of the Property Trustee and the Delaware Trustee
	 	 	28	 
	Section 7.2. Representations and Warranties of Depositor
	 	 	29	 
	 
	 	 	 	 
	ARTICLE VIII THE TRUSTEES; THE ADMINISTRATORS
	 	 	29	 
	Section 8.1. Certain Duties and Responsibilities
	 	 	29	 
	Section 8.2. Certain Notices
	 	 	31	 
	Section 8.3. Certain Rights of Property Trustee
	 	 	31	 
	Section 8.4. Not Responsible for Recitals or Issuance of Securities
	 	 	34	 
	Section 8.5. May Hold Securities
	 	 	34	 
	Section 8.6. Compensation; Indemnity Fees
	 	 	34	 
	Section 8.7. Corporate Property Trustee Required; Eligibility of Trustees and Administrators
	 	 	36	 
	Section 8.8. Co-Trustees and Separate Trustee
	 	 	36	 
	Section 8.9. Resignation and Removal; Appointment of Successor
	 	 	37	 
	Section 8.10. Acceptance of Appointment by Successor
	 	 	38	 
	Section 8.11. Merger, Conversion, Consolidation or Succession to Business
	 	 	39	 
	Section 8.12. Preferential Collection of Claims Against Depositor or Trust
	 	 	39	 
	Section 8.13. Reports by Property Trustee
	 	 	40	 
	Section 8.14. Number of Trustees
	 	 	40	 
	Section 8.15. Delegation of Power
	 	 	40	 
	Section 8.16. Appointment of Administrators
	 	 	41	 
	 
	 	 	 	 
	ARTICLE IX TERMINATION AND MERGER
	 	 	41	 
	Section 9.1. Termination Upon Expiration Date
	 	 	41	 
	Section 9.2. Early Termination
	 	 	41	 
	Section 9.3. Termination
	 	 	42	 
	Section 9.4. Liquidation
	 	 	42	 
	Section 9.5. No Mergers, Consolidations, Amalgamations or Replacements of the Trust
	 	 	43	 
	Section 9.6. Certificate of Cancellation
	 	 	43	 
	 
	 	 	 	 
	ARTICLE X MISCELLANEOUS PROVISIONS
	 	 	43	 
	Section 10.1. Limitation of Rights of Holders
	 	 	43	 
	Section 10.2. Amendment
	 	 	43	 
	Section 10.3. Separability
	 	 	44	 
	Section 10.4. Governing Law
	 	 	44	 






- iii -









 






	 	 	 	 	 
	Section 10.5. Payments Due on Non-Business Day
	 	 	45	 
	Section 10.6. Successors
	 	 	45	 
	Section 10.7. Headings
	 	 	45	 
	Section 10.8. Reports, Notices and Demands
	 	 	45	 
	Section 10.9. Agreement Not to Petition
	 	 	46	 
	Section 10.10. Acceptance of Terms of Trust Agreement, Guarantee Agreement and Subordinated Loan Agreement
	 	 	46	 
	Section 10.11. Counterparts
	 	 	47	 
	Section 10.12. Limited Liability
	 	 	47	 







- iv -









 








Exhibit A — Certificate of Trust




Exhibit B — Form of Common Securities Certificate




Exhibit C — Form of Preferred Securities Certificate




Exhibit D — Form of Expense Agreement





-v-









 









AMENDED AND RESTATED TRUST AGREEMENT




     Amended and Restated Trust Agreement dated as of November 1, 2001 among (i) MetroCorp, Inc., a
Delaware corporation (including any successors or assigns, the
“Depositor”), (ii)
Wilmington Trust Company, a banking corporation organized under the laws of the State of Delaware,
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, a banking corporation organized under the laws of the State of Delaware,
as Delaware trustee (in such capacity the “Delaware Trustee”) (the Property Trustee and
the Delaware Trustee collectively, the “Trustees”), and (iv) Gary Andersen, an
individual, and Julius J. Van Paemel, an individual, each of whose address is c/o MetroCorp, Inc.,
1523 8th Street, East Moline, Illinois 61244 (each, together with any successor thereto,
an
“Administrator” and, collectively, the “Administrators”).



     WHEREAS, the Depositor, the Trustees and the Administrators have heretofore duly declared and
established a business trust pursuant to the Delaware Business Trust Act (as hereinafter defined)
by entering into that certain Declaration of Trust, dated as of August 1, 2001 (the “Original
Declaration”), and by the execution and filing by the Delaware Trustee with the Secretary of State
of the State of Delaware of the Certificate of Trust, filed on August 8, 2001, (the “Certificate of
Trust”) attached as Exhibit A; and



     WHEREAS, the Depositor and the Trustees desire to enter into this Amended and Restated Trust
Agreement to amend and restate the Original Declaration in its entirety as set forth herein to
provide for, among, other things, (i) the issuance of the Common Securities by the Trust to the
Depositor, (ii) the issuance and sale of the Capital Securities by the Trust pursuant to the
Subscription Agreement, and (iii) the acquisition by the Trust from the Depositor of all of the
right, title and interest in the Subordinated Note;



     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 Holders (as hereinafter defined),
hereby amends and restates the Original Declaration in its entirety and agrees as follows:



ARTICLE I

INTERPRETATION AND DEFINITIONS



Section 1.1. Interpretation. 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;



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




     (c) 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




     (d) unless the context otherwise requires, any reference to a statute, rule or
regulation refers to the same (including any successor statute, rule or regulation thereto)
as it may be amended from time to time.


Section 1.2. Certain Definitions. For all purposes of this Trust Agreement, the following terms
shall have the meanings assigned below:




“Act”
has the meaning specified in Section 6.2.




“Administrators”
has the meaning set forth in the preamble to this Trust Agreement.



“Affiliate”
means, at any time, and with respect to any Person, (i) any other Person
which at such time directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such first Person, (ii) any Person which
beneficially owns or holds, directly or indirectly, 10% or more of any class of the Voting Stock
(as defined in the Subordinated Note Agreement) of the Depositor, (iii) any Person 10% or more of
the Voting Stock (or in the case of a Person which is not a corporation, 10% or more of the equity
interest) of which is beneficially owned or held by the Depositor or a Subsidiary (as defined in
the Subordinated Note Agreement), or (iv) any person who is related by blood, adoption or marriage
to any person described in clause (ii); provided, however, that the Trust shall not be
deemed to be an Affiliate of the Depositor. The term “control” means the possession,
directly or indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of Voting Stock, by contract or otherwise.
Unless the context otherwise clearly requires, any reference to an “Affiliate” is a reference to an
Affiliate of the Depositor.




“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 Federal or State bankruptcy, insolvency, reorganization or other
similar law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of such Person or of all or any substantial part of its property or
ordering the winding up or liquidation of its affairs, and (in the case of any of the
foregoing other than a



2









 






decree or order relating to the appointment of a receiver for a
Significant Bank Subsidiary) 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 applicable Federal or State bankruptcy, insolvency,
reorganization or other similar 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
Laws” has the meaning specified in Section 10.9.



“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 such board of directors to which authority to act on behalf of such
board of directors has been delegated, and to be in full force and effect on the date of such
certification, and delivered to the Trustees.



“Business
Day” means a day other than (a) a Saturday or Sunday, (b) a day on which
banking institutions in The City of New York or East Moline, Illinois 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 is closed for business.



“Capital
Securities Certificate” means a certificate evidencing Capital Securities,
substantially in the form attached as Exhibit C.



“Capital
Security” means a Floating Rate Cumulative Capital Security (Initial
Liquidation Preference $1,000 per Capital Security) of the Trust, constituting a preferred
undivided beneficial interest in the assets of the Trust and having the rights provided therefor in
this Trust Agreement, including the right to receive Distributions, Redemption Amounts and a
liquidation distribution as provided herein.



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



“Closing
Date” means the date upon which the Closing, as such term is defined in the
Subscription Agreement, occurs, which date is also the date of the initial issuance, sale and
delivery of the Trust Securities and the Subordinated Note.




3









 







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



“Common
Security” means a Common Security (Initial Liquidation Amount $309,278 in the
aggregate for all Common Securities) of the Trust, constituting a beneficial interest in the assets
of the Trust, subject to the preferences of the Capital Securities, and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions, Redemption Amounts
and a liquidation distribution as provided herein.



“Corporate
Trust Office” means the principal corporate trust office of the Property
Trustee, which on the date hereof is located at Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration – MetroCorp Capital
Trust I.



“Default”
has the meaning specified in the Subordinated Loan Agreement.



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



“Delaware
Trustee” means the Person identified as the ADelaware
Trustee” in
the preamble to this Trust Agreement, solely in its capacity as Delaware Trustee of the Trust 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.



“Direct
Action” has the meaning specified in Section 5.11(c).



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



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



“Early
Termination 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 Subordinated Note Event of Default; or




     (b) default by the Trust in the payment of any Distribution when it becomes due
and payable after the corresponding payment has been made to the Trust on the Subordinated
Note; or



4









 






     (c) default by the Trust in the payment of any Redemption Amount of any Trust Security
when it becomes due and payable after the corresponding payment has been made to the Trust
on the Subordinated Note; or




     (d) default in the performance or breach of any covenant or warranty of the Trust in
the Subscription Agreement and continuation of any such default or breach for a period of 30
days after the earlier of (i) a Responsible Officer of the defaulting Trustee obtaining
actual knowledge of such default, and (ii) there having been given, in the manner provided
in Section 10.8, to the defaulting Trustee or Trustees by any Holder 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 a
successor Property Trustee has not been appointed within 90 days thereof.


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



“Exchange
Notes” has the meaning specified in Section 9.2(b).



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



“Expiration
Date” has the meaning specified in Section 9.1.



“Guarantee
Agreement” means the Guarantee Agreement dated as of even date herewith
executed and delivered by the Depositor contemporaneously with the execution and delivery of this
Trust Agreement, for the benefit of the holders of the Capital Securities, as amended from time to
time.



“Holder”
means a Person in whose name a Trust Security or Trust Securities are
registered in the Securities Register, such Person being a beneficial owner within the meaning of
the Delaware Business Trust Act.



“Initial
Liquidation Amount” means the aggregate original Liquidation Amount of the Common
Securities on the date of this Trust Agreement, which is $309,278.



“Initial Liquidation Preference”  means the original Liquidation Preference of each Capital Security
on the date of this Trust Agreement, which is $1,000 per Capital Security.



“Institutional Investor”  means (a) any original Purchaser of a Capital Security, (b) any
holder of a Capital Security holding more than 2% of the aggregate Liquidation Preference of the
Capital Securities, and (c) any bank, trust company, savings and loan association or other
financial institution, any pension plan, any trust fund, any investment fund, any investment
company, any




5









 







insurance company, any broker or dealer, or any other similar financial institution or
entity, regardless of legal form.



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



“Like
Amount” means (a) with respect to a redemption of Trust Securities, Trust
Securities having a Liquidation Preference or Liquidation Amount, as the case may be, equal to the
principal amount of the portion of the Subordinated Note to be contemporaneously repaid in
accordance with the Subordinated Loan Agreement, the proceeds of which will be used to pay the
Redemption Amount of such Trust Securities, and (b) with respect to the distribution of an Exchange
Note pursuant to Section 9.2(b) upon the occurrence of an Early Termination Event, the portion of
the Subordinated Note (and therefore the principal amount of such Exchange Note) equal to the
Liquidation Preference of the Capital Security exchanged for such Exchange Note.



“Liquidation Amount”  means the amount of the Common Securities which shall be distributed in
respect thereto, following the making of preferential Distributions with respect to the Capital
Securities, in the event of the liquidation of the Trust; the Liquidation Amount shall be in an
original amount of $309,278 for the Common Securities in the aggregate and shall be reduced
effective upon each Unscheduled Redemption by the Redemption Amount distributed in each such event
in respect of the Common Securities.



“Liquidation
Date” means the date on which Exchange Notes are to be distributed to
Holders of Capital Securities in connection with a termination and liquidation of the Trust
pursuant to Section 9.2.



“Liquidation
Preference” means the amount of each Capital Security which shall be
distributed in respect thereto in preference to and prior to any distribution to the Common
Securities in the event of the liquidation of the Trust; the Liquidation Preference shall be in an
original amount of $100,000 per Capital Security and shall be reduced effective upon each
Unscheduled Redemption by the Redemption Amount distributed in each such event in respect of each
Capital Security.



“Loan”
has the meaning specified in the Subordinated Loan Agreement.



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



“Officers
Certificate” means a certificate signed by the Chairman and Chief
Executive Officer, President or a Vice President, and by the Treasurer, an Associate Treasurer, an
Assistant Treasurer, the Controller, the Secretary or an Assistant Secretary, of the Depositor, and
delivered to the appropriate Trustee. Any
Officers’ Certificate delivered with respect to
compliance with a covenant or condition provided for in this Trust Agreement shall include:




6









 











     (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 or the Depositor, and who shall be reasonably acceptable to the
Property Trustee.



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



“Past
Due Distribution Rate” has the meaning specified in Section 4.1.



“Paying
Agent” has the meaning specified in Section 5.9.



“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
Holders in which all amounts paid in respect of the Subordinated Note will be held and from which
the Property Trustee, as Paying Agent, shall make payments to the Holders 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.



“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 and
not in its individual capacity, or its successor in interest in such capacity, or any successor
property trustee appointed as herein provided.



“Subscription
Agreement” means the Subscription Agreement dated as of even date
herewith, among the Trust, the Depositor and the Purchasers.



“Purchasers”
shall mean the person or persons listed on the execution page to the
Subscription Agreement duly accepted and counter-executed by the Depositor.




7









 







“Redemption
Amount” means, with respect to any Trust Security, the portion of the
Liquidation Preference or Liquidation Amount, as the case may be, thereof that shall be called for
redemption in the case of an Unscheduled Redemption.



“Redemption
Date” means, with respect to any Trust Security to be redeemed, the date
fixed for redemption thereof, which shall be for each Unscheduled Redemption the date notified
therefor as provided in Section 4.2(b).



“Relevant
Trustee” has the meaning specified in Section 8.9.



“Responsible
Officer” means, when used with respect to either Trustee, any officer in
the Corporate Trust Administration Department of such Trustee with direct responsibility for the
administration of this Trust Agreement and also means, with respect to a particular corporate trust
matter, any other officer of such Trustee to whom such matter is referred because of such
officer’s knowledge of and familiarity with the particular subject.



“Restricted
Legend” means a legend to be imprinted on each Capital Security as set
forth on the form of Capital Security attached hereto as Exhibit C.



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



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



“Settlement
Date” means, with respect to the Redemption Amount of any Capital Security,
the date prior to the scheduled maturity thereof on which such Capital Security is to be redeemed
pursuant to Section 4.2(b).



“Significant
Bank Subsidiary” means, at any time, any Subsidiary that is a national
bank or a state bank and that, during any of the three fiscal years then most recently ended, shall
have contributed more than 10% of the consolidated net income of the Depositor and its Subsidiaries
(as determined in accordance with generally accepted accounting principles).



“Special
Event” shall have the meaning specified in the Subordinated Loan Agreement.



“Subordinated
Loan Agreement” means the Subordinated Loan Agreement dated as of even
date herewith between the Depositor and the Trust.



“Subordinated
Note” means the Depositor’s Floating Rate Subordinated Note due
November 1, 2031 issued pursuant to the Subordinated Loan Agreement in the original principal
amount of $10,309,278.




8









 








“Subordinated
Note Event of Default” means an AEvent of Default” as defined
in the Subordinated Loan Agreement.



“Subordinated
Note Repayment Date” means, with respect to any repayment of the
Subordinated Note under the Subordinated Loan Agreement, the date fixed for repayment under the
Subordinated Loan Agreement.



“Suspension
Event” has the meaning specified in the Subordinated Loan Agreement.



“Trust”
means the Delaware business trust identified in Section 2.1.



“Trust Agreement”  means this Amended and Restated Trust Agreement, as the same may be modified,
amended or supplemented, from time to time, in accordance with the applicable provisions hereof.



“Trust
Property” means, at any time, (i) the Subordinated Note and rights of the holder
of the Subordinated Note under the Subordinated Loan Agreement, (ii) the rights of the Trust under
the Expense Agreement, (iii) any cash on deposit in, or owing to, the Payment Account and (iv) all
proceeds and rights in respect of the foregoing and any other property and assets at such time
being held or deemed to be held by the Property Trustee pursuant to the terms of this Trust
Agreement.



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



“Trust
Security” means the Common Securities or the Capital Securities or both or any
portion of either class, as relevant in the context in which the term is used.



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



“Unscheduled
Redemption” has the meaning set forth in Section 4.2.



“Unscheduled
Redemption Date” means each date specified in a notice provided for in and
as defined in Section 4.2(c).




ARTICLE II

THE TRUST



Section 2.1. Name. The Trust continued pursuant hereto shall be known as “MetroCorp Capital
Trust I”, in which name the Property Trustee or the Administrators, as the case may be, may
conduct the business of the Trust, make and execute contracts and other instruments on behalf of
the Trust and sue and be sued, and the Trust shall be a statutory business trust for the purposes
permitted and with all legal rights granted under the laws of the State of Delaware.




9









 







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 19890-0001, Attention: Corporate Trust Administration-MetroCorp Capital
Trust I, or such other address in the State of Delaware as the Delaware Trustee may designate by
written notice to the
Holders and the Depositor. The principal executive office of the Trust is in care of MetroCorp,
Inc., 1523 8th Street, East Moline, Illinois 61244 1601, Attention: General Counsel.



Section 2.3. Organizational Expenses. The Depositor shall pay organizational and
administrative expenses of the Trust as they arise or shall, upon request of any Trustee, promptly
reimburse such Trustee, at cost, for any such expenses paid by such Trustee. The Depositor shall
make no claim upon the Trust Property for the payment or reimbursement of such expenses.



Section 2.4. Issuance of the Capital Securities. Contemporaneously with the execution and
delivery of this Trust Agreement, the Depositor and an Administrator, on behalf of the Trust, shall
execute and deliver the Subscription Agreement. Contemporaneously with the execution and delivery
of this Trust Agreement and the Subscription Agreement, an Administrator, on behalf of the Trust,
shall execute in accordance with Section 5.2 and deliver to the Purchasers, Capital Securities
Certificates representing all Capital Securities, collectively, having an aggregate Initial
Liquidation Preference of $10,000,000, against receipt of the aggregate purchase price of such
Capital Securities of $10,000,000 by the Trust.



Section 2.5. Issuance of the Common Securities; Subscription and Purchase of Subordinated Notes.
Contemporaneously with the execution and delivery of this Trust Agreement, an Administrator, on
behalf of the Trust, shall execute in accordance with Section 5.2 and deliver to the Depositor, the
Common Securities Certificate, registered in the name of the Depositor, representing the Common
Securities and having an aggregate Liquidation Amount of $309,278 against payment by the Depositor
of $309,278 to the Trust. The Administrators, on behalf of the Trust, shall thereupon advance the
aggregate purchase price of the Common Securities and the Capital Securities, in the principal
amount of $10,309,278 to the Depositor, subject to fulfillment of conditions precedent under the
Subordinated Loan Agreement, and in exchange for an executed Subordinated Note in such principal
amount issued by the Depositor to the Trust.



Section 2.6. Declaration of Trust. The sole and exclusive purpose and function of the Trust is
(i) to issue and sell the Trust Securities as provided in Sections 2.4 and 2.5; (ii) to advance the
purchase price from the issuance of the Trust Securities as proceeds of a loan under the
Subordinated Loan Agreement evidenced by the Subordinated Note; (iii) to distribute the income of
the Trust as provided in this Trust Agreement; and (iv) to engage in those activities necessary,
convenient or incidental to the foregoing. The Trust shall not have the authority to issue
additional Common Securities or additional Capital Securities. The Depositor hereby appoints the
Trustees as trustees of the Trust, to have all the rights, powers and duties 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 Holders. The Administrators shall have all rights, powers and duties
set forth herein with respect to accomplishing




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the purposes of the Trust and shall not be trustees
or fiduciaries with respect to the Trust. The Property Trustee shall have the power (but shall
have no duty) to perform those duties assigned to the Administrators. 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 Administrators 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 Business Trust Act.



Section 2.7. Authorization to Enter into Certain Transactions. (a) The Trustees and the
Administrators shall conduct the affairs of the Trust in accordance with the terms of this Trust
Agreement. Subject to the limitations set forth in Section 2.7(b), and in accordance with the
following clauses (i) and (ii), the Property Trustee and the Administrators shall have the
authority and are hereby specifically authorized and directed to cause the Trust to enter into all
transactions and execute, deliver and perform agreements determined by the Property Trustee or the
Administrators to be appropriate under this Trust Agreement, and to perform all acts in
furtherance thereof, including without limitation the following:





     (i) Notwithstanding any provision in this Trust Agreement to the contrary, each
Administrator shall have the power and authority and is hereby authorized and directed to
act on behalf of the Trust with respect to the following matters:




     (A) to execute, deliver, issue and sell the Trust Securities and to acquire the
Subordinated Note with the proceeds of such sale; provided, however,
that the Administrators shall cause legal title to the Subordinated Note to be held
of record in the name of the Property Trustee for the benefit of the Holders;




     (B) to cause the Trust to enter into, and to execute, deliver and perform on
behalf of the Trust, the Expense Agreement, the Subscription Agreement, the
Subordinated Loan Agreement, and each other agreement and instrument (including,
without limitation, such certificates, cross-receipts and other papers as may be
necessary in connection with the issuance and sale of the Trust Securities and the
purchase of the Subordinated Note) as such Administrator deems necessary, incidental
or desirable in connection with the purposes and function of the Trust;




     (C) to send notices (other than notices of default) and other information
regarding the Trust Securities and the Subordinated Notes to the Holders in
accordance with this Trust Agreement;




     (D) to consent to the appointment of a Paying Agent and Securities Registrar in
accordance with this Trust Agreement, which consent shall not be unreasonably
withheld;




     (E) to remove a Paying Agent and to appoint a successor Paying Agent in
accordance with this Trust Agreement;



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     (F) to the extent provided in this Trust Agreement, to wind up the affairs of
and liquidate the Trust;




     (G) unless otherwise determined in accordance with the provisions of
this Agreement or the Subordinated Loan Agreement by the Property Trustee or the
Holders of at least a majority of the sum of the Liquidation Preference of the
Capital Securities then outstanding and the Liquidation Amount of the Common
Securities then outstanding, or as otherwise required by the Delaware Business Trust
Act, to execute on behalf of the Trust (either acting alone or together with any or
all of the other Administrators) any documents that the Administrators have the
power to execute pursuant to this Trust Agreement; and




     (H) to take any action incidental or convenient to the foregoing as such
Administrator 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 Holders (without
consideration of the effect of any such action on any particular Holder).




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




     (A) to act as Paying Agent and/or Securities Registrar to the extent appointed
as such hereunder;




     (B) to establish the Payment Account;




     (C) to collect in the Payment Account interest, principal and any other
payments made to the Property Trustee in respect of the Subordinated Note;




     (D) to distribute from the Trust Property amounts owed to the Holders in
respect of the Trust Securities pursuant to this Trust Agreement;




     (E) to receive and take title to the Subordinated Note and to exercise all of
the rights, powers and privileges of the holder of the Subordinated Note;




     (F) to send notices of default and other information regarding the Trust
Securities and the Subordinated Note to the Holders in accordance with this Trust
Agreement;




     (G) to distribute 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, to wind up of the affairs
of and liquidate the Trust and to prepare, execute and file the certificate of
cancellation with the Secretary of State of the State of Delaware;




     (I) to take any action incidental or convenient to the foregoing (including
executing any certificate or acknowledgment of the Property Trustee’s receipt of the
Subordinated Note) 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 to
protect and conserve the Trust Property for the benefit of the Holders (without
consideration of the effect of any such action on any particular Holder); and




     (J) subject to the provisions of this Section 2.7(a)(ii), the Property Trustee
shall have none of the duties, liabilities, powers or the authority of the
Administrators set forth in this Trust Agreement.



     In the event of a conflict between the action of the Administrators and the action of the
Property Trustee, the action of the Property Trustee shall prevail.



     (b) So long as this Trust Agreement remains in effect, the Trust (or the Trustees or
Administrators acting on behalf of the Trust) shall not undertake any business, activities or
transaction except as expressly provided herein or contemplated hereby. In particular, neither the
Trustees nor the Administrators shall (i) acquire any investments or engage in any activities not
authorized by this Trust Agreement, (ii) issue any securities other than the Trust Securities the
issuance of which is provided for in this Trust Agreement, (iii) sell, assign, transfer, exchange,
mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or interests therein,
including to Holders, except as expressly provided herein, (iv) take any action that, to such
Trustee’s or Administrator’s actual knowledge, would cause the Trust to be classified as an
association taxable as a corporation for United States federal income tax purposes, (v) incur any
indebtedness for borrowed money or issue any other debt or (vi) take or consent to any action that
would result in the placement of a Lien on any of the Trust Property. The Administrators and the
Property Trustee shall defend the Trust Property against 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
Holders in their capacity as Holders.



     (c) In connection with the issue and sale of the Capital 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 by the Trust of any private offering documents, including any
amendment or supplement thereto, in relation to the Capital Securities and the taking of any
action necessary to obtain an exemption from the Securities Act;



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




     (iii) the negotiation of the terms of, and the execution and delivery of, the
Subscription Agreement providing for the sale of the Capital Securities; and




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



     (d) Notwithstanding anything herein to the contrary, the Administrators 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 Ainvestment company@ required to be registered under the 1940 Act, or
to be classified as an association taxable as a corporation for United States federal income tax
purposes, and so that the Subordinated Note will be treated as indebtedness of the Depositor for
United States federal income tax purposes. In this connection, the Administrators and the
Depositor are authorized to take any action, not inconsistent with applicable law, the Certificate
of Trust or this Trust Agreement, that each of any Administrator and the Depositor determines in
its discretion to be necessary or desirable for such purposes, as long as such action does not
adversely affect the interests of the Holders of the Capital Securities or vary the terms of the
Capital Securities or the Subordinated Note.


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 Holders in accordance with this Trust
Agreement.




ARTICLE III

PAYMENT ACCOUNT



Section 3.1. Payment Account. (a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the Property Trustee shall
have exclusive control and sole right of withdrawal with respect to the Payment Account for the
purpose of making deposits in and withdrawals from the Payment Account in accordance with this
Trust Agreement. All monies and other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account for the exclusive benefit of
the Holders and for distribution as herein provided, including (and subject to) any priority of
payments provided for herein.




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     (b) The Property Trustee shall deposit in the Payment Account, promptly upon receipt, all
payments of principal of or interest on, or any other payments, in respect of the Subordinated
Note.



     (c) 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 will be made on the Trust Securities as provided herein on
the dates that payments of interest are made on the Subordinated Note. 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 Closing Date, and, except to the extent that the
Depositor exercises its right to defer the payment of interest on the Subordinated Note in
accordance with Section 3.02 of the Subordinated Loan Agreement, shall be payable quarterly
in arrears on March 31, June 30, September 30 and December 31, of each year, commencing on
December 31, 2001. If any date on which a Distribution otherwise would be 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), or, if such Business Day falls in the next calendar year, on
the immediately preceding Business Day, in each case with the same force and effect as if
made on such date (each date on which Distributions are payable in accordance with this
Section 4.1(a), a “Distribution Date”).




     (ii) Distributions on the Trust Securities shall accrue and accumulate until paid at
the prime rate of interest as last reported in the “Money Rate” section of the Wall Street
Journal adjusted on the first Business Day of each month, plus seventy-five (75) basis
points (the “Scheduled
Rate”) from the date it is made until maturity (the “Scheduled
Distribution Rate”). The Distributions payable for any full period shall be computed
on the basis of a 360-day year of twelve 30-day months. The 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.




     (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 actually received by the Property Trustee and 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



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the relevant record date for such Distribution Date, which shall be the date five days prior
to such Distribution Date.



Section 4.2. Redemption. (a) Unscheduled Redemptions, Including Upon Acceleration of the
Loan. The Loan may be prepaid in whole or in part on dates and subject to the terms and conditions
specified in the Subordinated Loan Agreement; provided that if during the 90-Day Period (as defined
in the Subordinated Loan Agreement) there is available to the Trust (alone or in conjunction with
the Company) the opportunity to eliminate, within the 90-Day Period, the Special Event that has
given rise to the right of the Company to prepay the Loan pursuant to Section 2.02 of the
Subordinated Loan Agreement by the Trust’s taking some Ministerial Action (as defined in the
Subordinated Loan Agreement), the Trust shall pursue such Ministerial Action in lieu of the
Unscheduled Redemption. Subject to the provisions of the final paragraph of Section 4.2(c) and to
Section 4.3, in the event of a prepayment of the Loan (including any payments made as a result of
acceleration of the Loan), the Trust shall redeem the Trust Securities in an amount corresponding
to the Like Amount of the prepayment on the Loan (an “Unscheduled Redemption”), and any
such Unscheduled Redemption shall be made on the date of the prepayment of the Loan (including the
payment made by the Depositor as a result of acceleration of the Loan) together with accumulated
and unpaid Distributions payable on such date to the Trust Securities. Each Unscheduled
Redemption, with respect to each Trust Security so redeemed, shall reduce the Liquidation
Preference or the Liquidation Amount, as the case may be, of such Trust Security by the Redemption
Amount paid to the Holder thereof.




     (b) Redemption Procedures. Notice of any Unscheduled Redemption (which notice will be
irrevocable) other than an Unscheduled Redemption that results from acceleration of the Loan (in
which event the Property Trustee, upon a Responsible Officer of the Property Trustee obtaining
actual knowledge thereof, will give prompt notice to each record Holder of Trust Securities) shall
be prepared by the Administrators and will be given by the Trust to each record Holder of Trust
Securities not less than 30 days and not more than 60 days prior to the date fixed for such
Unscheduled Redemption which notice shall specify such date (the “Unscheduled Redemption
Date”), the applicable Redemption Amount and accumulated and unpaid Distributions, each as
payable to said Holder on said Unscheduled Redemption Date and shall provide a reasonably detailed
computation of such amounts. If the Trust gives a notice of redemption, then the applicable
Redemption Amount in such notice will become due and payable on such Unscheduled Redemption Date
and by 1:00 p.m., New York City time on the date fixed for redemption, the Trust will redeem the
Trust Securities at the Redemption Amount. In the event that payment of the Redemption Amount is
improperly withheld or refused and not paid by either the Trust or the Depositor pursuant to the
Guarantee Agreement, Distributions on the Trust Securities, called for redemption will continue to
accumulate at the Past Due Distribution Rate until the date that the Redemption Amount (adjusted
for additional Distributions accrued until the date of actual payment) is actually paid, and the
Holders of Capital Securities may, until such payment, exercise all of their rights as Holders of
the Capital Securities.



     (c) Other Redemption Matters. In the event of any partial redemption of the Capital
Securities pursuant to Section 4.2(a), the amount to be so applied to the redemption of the Capital



16









 




Securities will be allocated among all outstanding Capital Securities, as nearly as practicable in
proportion to the respective Liquidation Preferences thereof (with adjustments to equalize for any
prior redemption not in such proportion).




     The Trust will redeem Trust Securities on any Unscheduled Redemption Date only to the extent
it has funds then on hand and available therefor in the Payment Account.



     The Depositor will promptly cancel all Capital Securities acquired by it or any Affiliate
pursuant to any payment, prepayment or purchase of the Capital Securities pursuant to any provision
of this Agreement, or otherwise, and no Capital Securities may be issued in substitution or
exchange for any such Capital Securities.



     Notwithstanding anything to the contrary herein, no Common Securities shall be redeemed or
purchased by the Trust until all Capital Securities shall have been redeemed or purchased by the
Trust in full in accordance with Section 4.2(a), and no amounts received following an acceleration
of the Subordinated Note shall be distributed to the Holder of the Common Securities until all
amounts owing on the Capital Securities, including the Liquidation Preference and all accrued
Distributions are paid in full.


Section 4.3. Distributions to and Subordination of Common Securities. (a) The Trust shall not
make any Distribution to, or Unscheduled Redemption of, Common Securities on any date other than a
date on which it is making a Distribution to, or Unscheduled Redemption of, Capital Securities. On
any date for payment of Distributions to or for any Unscheduled Redemption of Capital Securities,
the Trust shall make the payment of the Distribution and Redemption Amount to the Holders of
Capital Securities prior to making any payment in respect of the Common Securities. If there is
any excess monies in the Trust, so long as no Default, Event of Default or Suspension Event of
which a Responsible Officer of the Trustee has actual knowledge, has occurred and is continuing,
Common Securities shall be paid such excess on the date Distributions are made to the Capital
Securities. After payment in full of all Distributions and the aggregate Liquidation Preference
has been made in respect of the Capital Securities, any balance remaining in the Payment Account
shall be distributed by the Trust to the Depositor as the Holder of Common Securities either by way
of Distribution or redemption of Common Securities as the Trust shall declare. If, at any time, a
Responsible Officer of the Property Trustee has actual knowledge that a Default, Event of Default
or Suspension Event shall have occurred and be continuing, no payment of any kind shall be made in
respect of the Common Securities, 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
amounts with respect to the Capital Securities has been made or provided for including, without
limitation, all accumulated and unpaid Distributions on all outstanding Capital Securities for all
Distribution periods terminating on or prior thereto, and in the case of payment of the Redemption
Amount the full amount of such Redemption Amount on all outstanding Capital Securities together
with all accrued Distributions. At all times and for all distributions and payments on Trust
Securities, all
funds available to the Property Trustee shall first be applied to the payment in full of all
Distributions on, or the Redemption Amount of, Capital Securities before any payment on the Common
Securities.




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     (b) If an Event of Default resulting from any Subordinated Note Event of Default shall
occur and be continuing, 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 effects of all
such Events of Default with respect to the Capital Securities have been cured, waived or otherwise
eliminated. If a Responsible Officer of the Property Trustee has obtained actual knowledge that
any such Event of Default under this Trust Agreement has occurred, then until the Property Trustee
has received written notice from the Holders of not less than 51% of the Liquidation Preference of
the Capital Securities at the time outstanding that the effects of such Event of Default with
respect to the Capital Securities have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Capital Securities and not on behalf of
the Holder of the Common Securities, and only the Holders of the Capital Securities will have the
right to direct the Property Trustee to act on their behalf.


Section 4.4. Payment Procedures. Payments of Distributions (including interest accrued at the
Past Due Distribution Rate on any past due Redemption Amount or Distributions, if applicable) and
Redemption Amounts in respect of the Capital Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall appear on the Securities Register on
the relevant Distribution Dates. Payments in respect of the Common Securities shall be made in
such manner as shall be mutually agreed between the Property Trustee and the Holder of the Common
Securities.



Section 4.5. Tax Returns and Reports. The Administrators shall prepare (or cause to be prepared),
at the Depositor=s expense, and file all United States federal, state and local tax returns
and reports required to be filed by or in respect of the Trust. In this regard, the Administrators
shall 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 shall
prepare and furnish (or cause to be prepared and furnished) to each Holder a Form 1099 or the
appropriate Internal Revenue Service form required to be furnished to such Holder or the
information required to be provided on such form. The Administrators shall provide the Depositor
and the Property Trustee with a copy of all such returns, reports and information promptly after
such filing or furnishing. The Administrators and the Property Trustee shall comply with United
States federal withholding and backup withholding tax laws and information reporting requirements
with respect to any payments to Holders under the Trust Securities.



Section 4.6. Payment of Taxes; Duties of the Trustee. The Property Trustee, upon receipt of
written notice and direction from the Depositor or the Administrators, and only to the extent the
Property Trustee actually has received and holds amounts legally available therefor, shall promptly
cause 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 to be paid. The Depositor
agrees to pay all such amounts so that the Trust Property will not be used or diminished by such
tax payments.




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Section 4.7. Payments under Subordinated Loan Agreement or Guarantee Agreement or Pursuant
to Direct Actions. Any amount payable hereunder to any Holder of Capital Securities shall be
reduced by the amount of any corresponding payment such Holder has directly received pursuant to
Section 8.01 of the Subordinated Loan Agreement or pursuant to the Guarantee Agreement or pursuant
to Section 5.11 of this Trust Agreement.



Section 4.8. Liability of the Holder of Common Securities. The Holder of the Common Securities
shall be liable for the debts and obligations of the Trust as set forth in the Expense Agreement.




ARTICLE V

TRUST SECURITIES CERTIFICATES



Section 5.1. Initial Ownership. From the formation of the Trust and the contribution by the
Depositor pursuant to the Original Declaration and until the issuance of the Trust Securities the
Depositor has been, and at any time during which no Trust Securities are outstanding the Depositor
shall be, the holder of the sole beneficial interest in the Trust.



Section 5.2. The Trust Securities Certificates. The Capital Securities Certificates shall be
issued in minimum denominations of $1,000 Initial Liquidation Preference and integral multiples
thereof, and the Common Securities Certificate shall be issued in the initial denomination of
$309,278 Initial Liquidation Amount. The Trust Securities Certificates shall be executed on behalf
of the Trust by manual or facsimile signature of at least one Administrator. Trust Securities
Certificates bearing the manual or facsimile signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the delivery of such
Trust Securities Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall become a Holder, and
shall be entitled to the rights and subject to the obligations of a Holder hereunder, upon due
registration of such Trust Securities Certificate in such transferee=s name pursuant to
Section 5.4.



Section 5.3. Execution and Delivery of Trust Securities Certificates. On the Closing Date, the
Administrators shall cause Trust Securities Certificates, consisting of the Capital Securities in
the aggregate Initial Liquidation Preference as provided in Section 2.4 and the Common Securities
having an aggregate Initial Liquidation Amount as provided in Section 2.5, to be executed by an
Administrator on behalf of the Trust and delivered to or upon the written order of the Depositor,
signed by its chairman of the board, its president, any executive vice president or any vice
president, treasurer or assistant treasurer
or controller, without further corporate action by the Depositor and without further action by the
Trust, in authorized denominations.



Section 5.4. Registration of Transfer and Exchange of Capital Securities Certificates. (a)
The Securities Registrar 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




19









 







transfers and exchanges of Capital Securities Certificates as herein provided (the
“Securities Register”), in which the registrar thereof (the “Securities
Registrar”) designated by the Property Trustee with the reasonable consent of the
Administrators, subject to such reasonable regulations as the Securities Registrar may prescribe,
shall provide for the registration of Capital 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 Capital Securities Certificates as herein provided. The
Property Trustee shall be the initial Securities Registrar. The provisions of this Trust
Agreement, including Sections 8.1, 8.3 and 8.6, shall apply to the Property Trustee also in its
role as Securities Registrar, for so long as the Property Trustee shall act as Securities
Registrar.




     Upon surrender for registration of transfer of any Capital Securities Certificate at the
office or agency maintained pursuant to Section 5.8, the Administrators or any one of them shall
(i) prepare, execute and deliver, in the name of the designated transferee or transferees, one or
more new Capital Securities Certificates in authorized denominations of a like aggregate
Liquidation Preference as the then current Liquidation Preference of the Capital Securities
Certificate so surrendered for registration of transfer and dated the date of execution by such
Administrator, and (ii) notify and instruct the Securities Registrar regarding the appropriate
entries to be made in the Securities Register.



     The Securities Registrar shall not be required to register the transfer of any Capital
Securities that have been called for redemption.



     At the option of a Holder, Capital Securities Certificates may be exchanged for other Capital
Securities Certificates in authorized denominations of a like aggregate Liquidation Preference as
the then current aggregate Liquidation Preference of the Capital Securities Certificates to be
surrendered for exchange upon surrender of the Capital Securities Certificates to be exchanged at
the office or agency maintained pursuant to Section 5.8. Whenever any Capital Securities
Certificates are so surrendered for exchange, an Administrator shall (i) prepare, execute and
deliver the Capital Securities Certificates which the Holder making the exchange is entitled to
receive, and (ii) notify and instruct the Securities Registrar regarding the appropriate entries to
be made in the Securities Register.



     Every Capital Securities Certificate presented or surrendered for registration of transfer or
exchange shall be accompanied by a written instrument of transfer in customary form duly executed
by the Holder or his attorney duly authorized in writing. Each Capital Securities Certificate
surrendered for registration of transfer or exchange shall be delivered by an Administrator to the
Securities Registrar and, upon receipt thereof by the Securities Registrar, shall be canceled
and subsequently disposed of by the Securities Registrar in accordance with its customary practice.



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



20









 





     (b) Capital Securities Certificates shall bear a Restricted Legend. At any time after
the Securities Registrar has received an Opinion of Counsel stating that the Capital Securities may
be freely transferred without registration under the Securities Act or without being subject to
transfer restrictions pursuant to the Securities Act, a new Capital Securities Certificate which
does not bear a Restricted Legend may be issued in exchange for or in lieu of a Capital Securities
Certificate or any portion thereof which bears such a legend. Neither the Property Trustee nor the
Securities Registrar shall be required to ensure or verify compliance with securities laws,
including the Securities Act, Exchange Act and 1940 Act in connection with transfers and exchanges
of Capital Securities Certificates.


Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates. If (i) 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 (ii) there shall be delivered to the Securities Registrar
and the Administrators such security or indemnity as may be required by them to save each of them
harmless (provided that if the Holder of such Trust Securities Certificate is an original Purchaser
or an Institutional Investor, such Holder=s own unsecured agreement of indemnity shall be
deemed acceptable) then, in the absence of notice that such Trust Securities Certificate shall have
been acquired by a protected purchaser (as such term is used in section 8-303 of the Delaware
Uniform Commercial Code), the Administrators, or any of them, on behalf of the Trust shall prepare,
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 or, after the Liquidation Date, an Exchange Note. In connection with
the issuance of any new Trust Securities Certificate or any Exchange Note under this Section, the
Administrators 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 Trust Property, 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 Holders. The Property Trustee, the Administrators and the Securities
Registrar shall treat the Person in whose name any Trust Securities Certificate shall be registered
in the Securities Register as the owner of such Trust Securities Certificate for the purpose of
receiving Distributions and for all other purposes
whatsoever, and neither the Property Trustee, the Administrators nor the Securities Registrar shall
be bound by any notice to the contrary.



Section 5.7.
Access to List of Holders= Names and Addresses. The Administrators or
the Depositor shall furnish or cause to be furnished (unless the Property Trustee is acting as
Securities Registrar with respect to the Trust Securities) a list, in such form as the Property
Trustee may reasonably require, of the names and addresses of the Holders as of the most recent
record date (a) to the Property Trustee, quarterly at least five Business Days before each
Distribution Date, and (b) to the Property Trustee, promptly after receipt by the Depositor of a
request therefor from the Property Trustee in order to enable the Property Trustee to discharge its
obligations under this Trust Agreement, in each case to the extent such information is in the
possession or control of the




21









 







Administrators 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. Each Holder, by receiving and holding a Trust Securities Certificate, shall
be deemed to have agreed not to hold the Depositor, the Property Trustee or the Administrators
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 Trust shall maintain an office or offices or
agency or agencies where Capital Securities Certificate may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Trust in respect of the Trust
Securities may be served. The Administrators initially designate Wilmington Trust Company, Rodney
Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention: MetroCorp
Capital Trust I Administrators, c/o Corporate Trust Administration, as the office for such
purposes. The Administrators or the Property Trustee, as the case may be, shall give prompt
written notice to the Depositor and to the Holders of any change in the location of the Securities
Registrar or any such office or agency.



Section 5.9. Appointment of Paying Agent. The Trust shall maintain an office or agency (the
“Paying Agent”) where the Capital Securities may be presented for payment and from which
Distributions and other payments may be made. The Trust appoints the Property Trustee as the
initial Paying Agent. The Paying Agent shall make Distributions to Holders from the Payment
Account and shall report the amounts of such Distributions to the Property Trustee (if the Property
Trustee is not also the Paying Agent) and the Administrators. 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 Administrators, on behalf of the Trust, may revoke such power
and remove the Paying Agent in their sole discretion. The Paying Agent shall initially be the
Property Trustee and any co-paying agent chosen by the Property Trustee and reasonably acceptable
to the Administrators and the Depositor. Any Person acting as Paying Agent shall be permitted to
resign as Paying Agent upon
30 days= written notice to the Administrators and the Property
Trustee. 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 Administrators shall appoint a
successor that is reasonably acceptable to the Property Trustee and the
Depositor to act as Paying Agent (which shall be a bank or trust company having a combined capital
and surplus of at least $100,000,000). Such successor Paying Agent or any additional Paying Agent
shall execute and deliver to the Property Trustee an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Property Trustee that, as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if any, held by it for
payment to the Holders in trust for the benefit of the Holders entitled thereto until such sums
shall be paid to such Holders. 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 this Trust Agreement, including Sections
8.1, 8.3 and 8.6, 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.




22









 







Section 5.10. Ownership of Common Securities by Depositor. On the Closing Date, the
Depositor shall acquire and retain beneficial and record ownership of the Common Securities. To
the fullest extent permitted by law, 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 7.04
of the Subordinated Loan Agreement, any attempted transfer of the Common Securities shall be void.
The Administrators shall cause each Common Securities Certificate issued to the Depositor to
contain a legend stating, AThis Certificate Is Not Transferable@. At no time shall
there be more than one Common Securities Certificate outstanding.



Section 5.11. Rights of Holders. (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 Holders
shall not have any right or title therein other than the undivided beneficial interest in the
assets of the Trust conferred by their Trust Securities, and they shall have no right to call for
any partition or division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights specifically set forth
therein and in this Trust Agreement. Holders of the Trust Securities shall have no preemptive or
similar rights to subscribe for additional Trust Securities. When issued and delivered to Holders
of Capital Securities against payment of the purchase price therefor, the Capital Securities will
be validly issued, fully paid and nonassessable undivided beneficial interests in the Trust
Property. Subject to Section 4.8 in the case of the Common Securities, the Holders, 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 Capital Securities remain outstanding, if, upon a Subordinated Note
Event of Default which gives the holder of the Subordinated Note the right to declare the principal
of such Subordinated Note to be immediately due and payable, the Property Trustee fails to declare
the principal of the Subordinated Note to be immediately due and payable after having been
requested in writing to do by the Holders of at least 51% of the Liquidation Preference of the
Capital Securities then outstanding, the Holders of at least 51% of the Liquidation Preference of the
Capital Securities then outstanding shall have such right by a notice in writing to the Depositor
and the Property Trustee; and upon any such declaration such principal amount of and the accrued
interest on the Subordinated Note shall become immediately due, provided that the payment of
principal and interest on such Subordinated Note shall remain subordinated to the extent provided
in the Subordinated Loan Agreement.



     At any time after such a declaration of acceleration with respect to the Subordinated Note has
been made and before a judgment or decree for payment of the money due has been obtained by the
Property Trustee, the Holders of at least 51% of the Liquidation Preference of the Capital
Securities then outstanding, by written notice to the Property Trustee and the Depositor, may
rescind and annul such declaration and its consequences if:



23









 






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




     (A) all overdue installments of interest on the Subordinated Note; and




     (B) the principal of the portion of the Subordinated Note which has
become due otherwise than by such declaration of acceleration; and




     (ii) all Defaults and Subordinated Note Events of Default, other than the non-payment
of the principal of the Subordinated Note which has become due solely by such acceleration,
have been cured or waived as provided in Article VIII of the Subordinated Loan Agreement.



     The Holders of at least 66 2/3% of the Liquidation Preference of the Capital Securities then
outstanding may, on behalf of the Holders of all the Capital Securities, waive any Default or
Subordinated Note Event of Default, 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 and interest on any of the foregoing has
been deposited with the Property Trustee) or a default in respect of a covenant or provision which
under the Subordinated Loan Agreement cannot be modified or amended without the consent of all of
the Holders of the Capital Securities. No such rescission shall affect any subsequent Default or
Subordinated Note Event of Default or impair any right consequent thereon.



     (c) For so long as any Capital Securities remain outstanding, upon a Subordinated Note Event
of Default specified in Section 8.01(a), 8.01(b) or 8.01 (c) of the Subordinated Loan Agreement,
any Holder of Capital Securities shall have the right to institute a proceeding directly against
the Depositor for enforcement of payment to such Holder of the principal amount of and interest on
the portion of the Subordinated Note having the principal amount equal to the Liquidation
Preference of the Capital Securities of such Holder (a ADirect Action@). Except as set
forth in Section 5.11(b) and this Section 5.11(c) Holders of Capital Securities shall have no right
to exercise directly any right or remedy available to holders of, or in respect of, the Subordinated Note
unless and until Exchange Notes shall have been distributed to them pursuant to Section 9.2(b).



ARTICLE VI

ACTS OF HOLDERS; VOTING




Section 6.1. Limitations on Voting Rights. (a) Except as provided in this Section 6.1 and in
Sections 5.11(b) and (c) hereof, in Article VIII in the Subordinated Loan Agreement and in Section
7.3 of the Subscription Agreement, and as otherwise required by law, no Holder of Capital
Securities, shall have any right to vote or in any manner otherwise control the administration,
operation and management of the Trust or the obligations of the parties hereto.



     (b) So long as the Subordinated Note is held by the Property Trustee, the Property
Trustee shall not (i) declare that the principal of the Subordinated Note shall be due and payable
or



24









 




otherwise direct the time, method or place of conducting any proceeding for any remedy available
under the Subordinated Loan Agreement with respect to such Subordinated Note, (ii) waive any
Default or Subordinated Note Event of Default which is waivable under Section 9.05 of the
Subordinated Loan Agreement, (iii) exercise any right to rescind or annul a declaration that the
principal of the Subordinated Note shall be due and payable or (iv) consent to any amendment,
modification or termination of the Subordinated Loan Agreement or the Subordinated Note without, in
each case, obtaining the prior approval of the Holders of at least a majority of the Liquidation
Preference of the Capital Securities then outstanding; provided, however, that where a consent
under the Subordinated Loan Agreement would require the consent of the holder of the Subordinated
Note or the consent of all of the Holders of the outstanding Capital Securities or, where a consent
under this Trust Agreement would change the amount or time of any Redemption Amount, Redemption
Date, or reduce the rate or change the method of computing or change the time of payment of
Distributions, or change the provisions of Section 5.11(b) or (c) or of this Section 6.1, no such
consent shall be given by the Property Trustee without the prior written consent of each Holder of
Capital Securities then outstanding. The Administrators and the Property Trustee shall not revoke
any action previously authorized or approved by a vote of the Holders of Capital Securities, except
by a subsequent vote of the Holders of Capital Securities. The Property Trustee shall notify all
Holders of Capital Securities of any notice of Default or Subordinated Note Event of Default
received by the Property Trustee under the Subordinated Loan Agreement. In addition to obtaining
the foregoing approvals of Holders of Capital Securities, prior to taking any of the foregoing
actions, the Administrators and the Property Trustee 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 be classified as an association taxable as a corporation for United States federal
income tax purposes. The Trust at no time shall elect to be classified as an association taxable
as a corporation for United States federal income tax purposes.




     (c) No amendment to this Trust Agreement shall be effective except with the approval of the
Holders of at least a majority (100% in the case of an amendment of the terms of Section 6.1(b))
of the Liquidation Preference of the Capital Securities then outstanding. 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 be classified as an association taxable as a
corporation for United States federal income tax purposes.



Section 6.2. Acts of Holders. 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
Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor
signed by such Holders 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 the Property Trustee. Such instrument or instruments (and the action embodied
therein and instrument and evidenced thereby) are herein sometimes referred to as the
“Act” of the Holders 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.



25









 





     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 provided in any other manner which any Trustee receiving the same deems sufficient.



     Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Trust Security shall bind every future Holder of the same Trust Security and the
Holder 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.


Section 6.3. Inspection of Records. Upon reasonable notice to the Administrators and the Property
Trustee, the records of the Trust shall be open to inspection by Holders during normal business
hours for any purpose reasonably related to such Holder=s interest as a Holder.




ARTICLE VII

REPRESENTATIONS AND WARRANTIES



Section 7.1. Representations and Warranties of the Property Trustee and the Delaware Trustee. The
Property Trustee and the Delaware Trustee, each severally on behalf of and only as to itself,
hereby represents and warrants for the benefit of the Depositor and the Holders that:




     (a) the Property Trustee (i) is a banking corporation, duly organized, validly existing and in
good standing under the laws of the State of Delaware, (ii) has its principal place of business in
the State of Delaware, and (iii) has a combined capital and surplus of at least $100,000,000;



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



     (d) the Delaware Trustee 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;



26









 





     (e) this Trust Agreement has been duly authorized, executed and delivered by the Property
Trustee and the Delaware Trustee and (assuming due authorization, execution and delivery hereof by
the Depositor) constitutes the valid and legally binding agreement of each of the Property Trustee
and the Delaware Trustee enforceable against each of them 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;



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



     (g) neither the authorization, execution or delivery by the Property Trustee or the Delaware
Trustee of this Trust Agreement nor the consummation of any of the transactions by the Property
Trustee or the Delaware Trustee (as appropriate in context) contemplated herein 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 Delaware or United States federal governmental authority or agency under
the laws of the United States or the State of Delaware governing the banking or trust powers
of the Property Trustee or the Delaware Trustee, as the case may be; and



     (h) there are no proceedings pending or, to the best of each of the Property Trustee=s
and the Delaware
Trustee=s knowledge, threatened against or affecting 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 Property Trustee or the Delaware
Trustee, as the case may be, 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 Holders that the Trust Securities Certificates issued hereunder on
behalf of the Trust have been duly authorized and will have been, duly and validly executed, issued
and delivered by the Administrators pursuant to the terms and provisions of, and in accordance with
the requirements of, this Trust Agreement and the Holders will be, as of each such date, entitled
to the benefits of this Trust Agreement.



27









 





ARTICLE VIII

THE TRUSTEES; THE ADMINISTRATORS



Section 8.1. Certain Duties and Responsibilities. (a) The duties and responsibilities of
the Trustees and Administrators shall be as provided by this Trust Agreement. The Property
Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of
Default that may have occurred, shall undertake to perform such duties and only such duties as are
specifically set forth in this Trust Agreement, and no implied covenants shall be read into this
Trust Agreement against the Trustees. In case an Event of Default has occurred (that has not been
cured or waived), the Property Trustee shall exercise such of the rights and powers vested in it by
this Trust Agreement, and use the same degree of care and skill in the exercise thereof, as a
prudent man would exercise or use under the circumstances in the conduct of his own affairs.
Notwithstanding the foregoing, no provision of this Trust Agreement shall require the Trustees or
the Administrators to expend or risk their own funds or otherwise to incur any financial liability
in the performance of any of their duties hereunder, or in the exercise of any of their rights or
powers, if they shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to it. 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 or the Administrators shall be
subject to the provisions of this Section 8.1.




     (b) No provision in this Trust Agreement shall be construed to release an Administrator from
liability for his own negligent action, his own negligent failure to act, or his own willful
misconduct. To the extent that, at law or in equity, an Administrator has duties (including
fiduciary duties) to the Trust or to the Holders, and liabilities relating thereto, such
Administrator shall not be liable to the Trust or to any Holder for
such Administrator=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 Administrators otherwise
existing at law or in equity, are agreed by the Depositor and the Holders to replace such other
duties and liabilities of the Administrators.



     (c) 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
Holder, 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(c) does not limit the liability of the Trustees expressly set forth elsewhere in this
Trust Agreement.



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



28









 







     (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 upon which such judgment
was made;




     (ii) the Property Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of the Holders
of not less than 51% of the Liquidation Preference of the Capital Securities at the time
outstanding (or such lesser percentage of the Liquidation Preference of Capital Securities
specified herein for the taking of any such action) relating to the time, method and place
of conducting any proceeding for any remedy available to the Property Trustee, or exercising
any trust or power conferred upon the Property Trustee under this Trust Agreement;




     (iii)
the Property Trustee=s sole duty with respect to the custody, safe keeping
and physical preservation of the Subordinated Note and the Payment Account shall be to deal
with such property in a manner similar to that which the Property Trustee uses when dealing
with similar property for its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Trust Agreement;




     (iv) the Property Trustee shall not be liable for any interest on any money received by
it except as it may otherwise agree separately in writing 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
Administrators 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 Administrators or
the Depositor.


Section 8.2. Certain Notices. Within five Business Days after a Responsible Officer of the
Property Trustee obtains actual knowledge of the occurrence of any Default or Event of Default, the
Property Trustee shall transmit, in the manner and to the extent provided in Section 10.8, notice
of such Default or Event of Default to the Holders, the Administrators and the Depositor.




     Within two Business Days after the Property Trustee’s receipt of written notice of the
Depositor=s exercise of its right to defer the payment of interest on the Subordinated Note
pursuant to the Subordinated Loan Agreement, the Property Trustee shall transmit, in the manner and
to the extent provided in Section 10.8, notice of such exercise to the Holders, unless prior to
transmitting such notice the Property Trustee has received written notice that such exercise shall
have been revoked.


Section 8.3. Certain Rights of Property Trustee. Subject to the provisions of Section 8.1:




29









 








     (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining
from acting in good faith upon any resolution, Opinion of Counsel, certificate, written
representation or instruction 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 in
good faith to be genuine and to have been signed or presented by the proper party or parties;



     (b) any direction or act of the Depositor or the Administrators contemplated by this
Trust Agreement may be sufficiently evidenced by an
Officers= Certificate or by a writing
signed by the Administrators and including the statements set forth in clauses (a) — (d) of the
definition of Officer’s Certificate, respectively;



     (c) 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
Officer=s Certificate as to
such factual matters (other than the interpretation of this Agreement) and/or an Opinion of
Counsel, which, upon receipt of such request, shall be promptly delivered by the Depositor or the
Administrators;



     (d) 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 securities
laws, or, except to the extent specifically provided in Section 4.5 and Section 4.6 of this Trust
Agreement, any filing under tax laws) or any rerecording, refiling or reregistration thereof;



     (e) the Property Trustee may consult with counsel as to legal matters (which counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its employees) 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; 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;



     (f) 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 Holders pursuant to
this Trust Agreement, unless such Holders shall have offered to the Property Trustee security or
indemnity reasonably satisfactory to it (which shall be limited to an unsecured undertaking, in
form and substance reasonably satisfactory to the Property Trustee, in the case of an Institutional
Investor) against the costs, expenses (including reasonable attorney’s fees and expenses) and
liabilities which might be incurred by it in compliance with such request or direction, including
such reasonable advances as may be requested by the Property Trustee;



     (g) the Property Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, approval, bond, debenture, note or other
evidence of
indebtedness or other



30









 




paper or document, unless specifically requested and directed in writing to
do so by one or more Holders, but the Property Trustee may in its discretion make such further
inquiry or investigation into such facts or matters as it may see fit;




     (h) the Property Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through its agent, attorneys, custodians or nominees or
an Affiliate, provided that the Property Trustee shall be responsible for its own gross negligence
or recklessness with respect to selection of any agent or attorney appointed by it hereunder but
shall not be responsible for any misconduct by or negligence of such Person;



     (i) 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 Capital Securities, which instructions may only be given by the Holders of the same proportion
in Liquidation Preference of the Capital Securities as would be entitled to direct the Property
Trustee under the terms of the Capital Securities in respect of such remedy, right or action, (ii)
may refrain from enforcing such remedy or right or taking such other action until such instructions
are received, and (iii) shall be protected in conclusively relying on or acting in accordance with
such instructions;



     (j) 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 unless directed to do so by any Holder or Holders pursuant to the provisions
hereof;



     (k) when the Property Trustee incurs expenses or renders services in connection with a
Bankruptcy Event, such expenses (including the fees and expenses of its counsel) and the
compensation for such services are intended to constitute expenses of administration under any
bankruptcy law or law relating to
creditors= rights generally;



     (l) the Property Trustee shall not be charged with knowledge of an Event of Default unless a
Responsible Officer of the Property Trustee has obtained actual knowledge of such event or the
Property Trustee has received written notice of such event from any Holder or the Depositor;



     (m) at any time that no Responsible Officer of the Property Trustee has actual knowledge that
an Event of Default has occurred and is continuing, if (i) in construing any of the provisions in
this Trust Agreement, the Property Trustee finds the same ambiguous or inconsistent with any other
provisions contained herein, or (ii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement or determines that it desires clarification or guidance regarding
its performance under any provision of this Trust Agreement, then, except as to any matter as to
which the Holders of Capital Securities are specifically entitled to vote under the terms of this
Trust Agreement, the Property Trustee may deliver a notice to the Depositor (with a copy to each
Holder) requesting written instruction of the Depositor (a copy of which instruction shall also be
sent by the Depositor to each Holder) 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



31









 




to take, or to refrain from taking, by the Depositor, and the Property
Trustee may rely conclusively on such instructions and shall have no liability whatsoever for such
action or inaction by it in accordance with such instructions; provided, however,
that until the Property Trustee has received such requested instructions it may, but shall be under
no duty to, take or refrain from taking such action with respect to the matters specified in its
request as it shall in good faith deem to be in the best interests of the Holders of Capital
Securities;




     (n) if a Responsible Officer of the Property Trustee has actual knowledge that an Event
of Default has occurred and is continuing, and (i) in construing any of the provisions in this
Trust Agreement, the Property Trustee finds the same ambiguous or inconsistent with any other
provision contained herein, or (ii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement or determines that it desires clarification or guidance regarding
its performance under any provision of this Trust Agreement, then, except as to any matter as to
which the Holders of Capital Securities are specifically entitled to vote under the terms of this
Trust Agreement, the Property Trustee may deliver a notice to the Holders of Capital Securities
requesting written instructions of such Holders 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 Holders of not less
than 51% of the Liquidation Preference of the Capital Securities then outstanding, and the Property
Trustee may rely conclusively on such instructions and shall have no liability whatsoever for such
action or inaction by it in accordance
with such instructions; provided, however, that until the Property Trustee has
received such requested instructions, it may, but shall be under no duty to, take or refrain from
taking such action with respect to the matters specified in its request as it shall in good faith
deem to be in the best interests of the Holders of Capital Securities; and



     (o) subject to the provisions of the third sentence of Section 8.1(a), the Property Trustee
shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith,
without gross negligence or willful misconduct, and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Declaration.



     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
not as the statements of the Trustees, 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 Subordinated Notes. The Trustees make no representations as to the value or
condition of the Trust Property or any part thereof, or as to the validity or sufficiency of this
Trust Agreement or the Trust Securities.




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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 may
otherwise deal with the Trust with the same rights it would have if it were not a Trustee or such
other agent.



Section 8.6. Compensation; Indemnity Fees. The Depositor agrees:




     (a) to pay to each Trustee from time to time such compensation for all services rendered by it
hereunder as the Depositor and such Trustee may agree upon in writing from time to time (which
compensation shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);



     (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 gross negligence or bad faith;



     (c) to the fullest extent permitted by applicable law, to indemnify and hold harmless (i) the
Bank, (ii) each Trustee, (iii) any Affiliate of the Bank or any Trustee, (iv) any officer,
director, shareholder, employee, representative or agent of any Trustee or the Bank and (v) any
employee or agent of the Trust or its Affiliates (each of the foregoing referred to herein as an
AIndemnified 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, liquidation or termination 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 pursuant to this Section 8.6 in respect of any loss, damage or claim to the extent
incurred by such Indemnified Person by reason of its own gross negligence or willful misconduct
with respect to such acts or omissions; and



     (d) to the fullest extent permitted by applicable law, to advance, from time to time, prior to
the final disposition of any claim, demand, action, suit or proceeding for which indemnification is
authorized pursuant to subsection (c) above, any expenses (including reasonable legal fees)
incurred by an Indemnified Person in defending such claim, demand, action, suit or proceeding upon
receipt by the Depositor of an undertaking by or on behalf of the Indemnified Person to repay such
amount if it shall be determined that the Indemnified Person is not entitled to be indemnified as
authorized in subsection (c) above.



     The provisions of this Section 8.6 shall survive the resignation or removal of the Property
Trustee and/or the Delaware Trustee and shall survive the termination or the satisfaction and
discharge of this Trust Agreement.



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



     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 Holders to replace such other duties and liabilities of the Trustees.


Section 8.7. Corporate Property Trustee Required; Eligibility of Trustees and Administrators. (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 not an Affiliate of the Depositor and that is a national
or state chartered bank or trust company and has a combined capital and surplus of at least
$100,000,000. 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. At the time of appointment, any Property Trustee (other
than the original Property Trustee) must have its outstanding long term unsecured indebtedness
rated in one of the three highest rating categories by a nationally recognized statistical rating
organization.




     (b) There shall at all times be one or more Administrators hereunder with respect to the Trust
Securities. Each Administrator 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 not be an Affiliate of the Depositor and 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



34









 




requirements of applicable Delaware law that shall act through one or more persons authorized to
bind such entity.



Section 8.8. Co-Trustees and Separate Trustee. Unless an Event of Default shall have
occurred and be continuing, at any time or times, the Property Trustee shall have the power to
appoint, and upon the written request of the Property Trustee, the Depositor and the Administrators
shall for such purpose join in the execution, delivery, and performance of all instruments and
agreements necessary or proper to appoint, one or more Persons approved by the Property Trustee
either to act as co-trustee, jointly with the Property Trustee, of all or any part of such Trust
Property, or to the extent required by law to act as separate trustee of any such property, in
either case with such powers as may be provided in the instrument of appointment, and to vest in
such Person or Persons in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Section. 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) 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, may accept
the resignation of or remove any co-trustee or separate trustee appointed under this Section. 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



35









 




effectuate such resignation or removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this Section.




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



     (e) The Property Trustee shall not be liable by reason of any act or omission of a co-trustee
or separate trustee appointed hereunder and shall have no obligation to supervise the performance
by any such co-trustee or separate trustee so appointed in accordance with this Trust Agreement.



     (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 8.9. Resignation and Removal; Appointment of Successor. No resignation or removal
of any Trustee (the ARelevant Trustee@) and no appointment of a successor Trustee
pursuant to this Article shall
become effective until the acceptance of appointment by the successor Trustee (which shall meet all
of the requirements of Section 8.7(a) in the case of a successor Property Trustee and all of the
requirements of Section 8.7(c) in the case of a successor Delaware Trustee) in accordance with the
applicable requirements of Section 8.10.




     Subject to the immediately preceding paragraph, the Relevant Trustee may resign at any time by
giving written notice thereof to the Holders. If the instrument of acceptance by the successor
Trustee required by Section 8.10 shall not have been delivered to the Relevant Trustee within 60
days after the giving of such notice of resignation, the Relevant Trustee may petition, at the
expense of the Depositor, any court of competent jurisdiction for the appointment of a successor
Relevant Trustee.



     The Property Trustee or the Delaware Trustee, or both of them, may be removed by Act of the
Holders of not less than 51% in Liquidation Preference of the Capital Securities then outstanding,
delivered to the Relevant Trustee (in its individual capacity and on behalf of the Trust).



     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, the Holders of the Capital
Securities, by Act of the Holders of not less than 51% in Liquidation Preference of the Capital
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 Sections 8.7 and 8.10. If no successor Relevant Trustee shall have been so
appointed by the Holders of the Capital Securities and accepted appointment in the manner required
by Section 8.10, any Holder who has been a Holder 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.



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     The Property Trustee shall give notice of each resignation and each removal of a Trustee and
each appointment of a successor Trustee to all Holders in the manner provided in Section 10.8 and
shall give notice to the Depositor. Each notice of the appointment of a successor Trustee shall
include the name of such successor Trustee and the address of its Corporate Trust Office if it is
the Property Trustee.


Section 8.10. Acceptance of Appointment by Successor. In case of the appointment hereunder
of a successor Relevant Trustee, the retiring Relevant Trustee, upon the payment in full to it of
all amounts due to it under this Trust Agreement, including Section 8.6, 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 (i) 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 (ii) 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. 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 and the payment in full to the retiring
Trustee of all amounts due to it under this Trust Agreement, including Section 8.6, such retiring
Relevant Trustee shall duly assign, transfer and deliver to such successor Relevant Trustee all
Trust Property, all proceeds thereof and money held by such retiring Relevant Trustee hereunder
with respect to the Trust Securities and the Trust.




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



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


Section 8.11. Merger, Conversion, Consolidation or Succession to Business. Any Person into which
the Property Trustee or the Delaware Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or consolidation to which such
Relevant Trustee shall be a party, or any Person succeeding to all or substantially all the
corporate trust business of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, without the execution or filing, except for any Delaware filing required by the Delaware
Business Trust Act, of any paper or any further act on the part of any of the parties hereto,
provided such Person shall be otherwise qualified and eligible under this Article.




37









 







Section 8.12. 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:




     (i) 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



     (ii) 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 amount 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.


Section 8.13. Reports by Property Trustee. (a) Not later than March 31 of each year commencing
with March 31, 2002, the Property Trustee shall transmit to all Holders in accordance with Section
10.8, 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



38









 





     (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) A copy of each such report shall, at the time of such transmission to Holders, be filed by
the Property Trustee with the Depositor.


Section 8.14. Number of Trustees. (a) The number of Trustees shall be two. The Property Trustee
and the Delaware Trustee may be the same Person.




     (b) If a Trustee ceases to hold office for any reason a vacancy shall occur. The vacancy
shall be filled with a Trustee appointed in accordance with Section 8.9.



     (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.


Section 8.15. Delegation of Power. (a) Any Administrator 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).




     (b) The Administrators 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 Administrators or otherwise as the Administrators 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 8.16. Appointment of Administrators. (a) The Administrators shall be appointed by the
Common Security Holder and may be removed by the Common Security Holder at any time. Each
Administrator shall either execute a counterpart of this Trust Agreement or sign an agreement
agreeing to comply with the terms of this Trust Agreement. If at any time there is no
Administrator, the Property Trustee or any Security Holder who has been a Security Holder of Trust
Securities for at least six months may petition any court of competent jurisdiction for the
appointment of one or more Administrators.




     (b) Whenever a vacancy in the number of Administrators shall occur, until such vacancy is
filled by the appointment of an Administrator in accordance with this Section 8.16, the
Administrators in office, regardless of their number (and notwithstanding any other provision of
this Agreement), shall have all the powers granted to the Administrators and shall discharge all
the duties imposed upon the Administrators by this Trust Agreement.



     Notwithstanding the foregoing or any other provision of this Trust Agreement, in the event any
Administrator or a Delaware Trustee who is a natural person dies or becomes, in the opinion of the
Holder of Common Securities, incompetent or incapacitated, the vacancy created by such death,



39









 




incompetence or incapacity may be filled by (a) in the case of an Administrator, the unanimous act
of the remaining Administrator or Administrators and (b) in the case of the Delaware Trustee, the
Property Trustee (with the successor in each case being a Person who satisfies the eligibility
requirement for Administrators or Delaware Trustee, as the case may be, set forth in Section 8.7).




ARTICLE IX

TERMINATION AND MERGER



Section 9.1. Termination Upon Expiration Date. Unless earlier terminated, the Trust shall
automatically terminate on November 1, 2031 (the “Expiration Date”), following the
distribution of the Trust Property.



Section 9.2. Early Termination. The Trust shall, subject to the provisions of Section 9.3,
terminate prior to the Expiration Date upon the occurrence of any of the following events (each an
“Early Termination Event”):





     (a) the occurrence of a Bankruptcy Event in respect of, or the dissolution or
liquidation of, the Holder of the Common Securities;




     (b) the written direction to the Property Trustee from the Holder of the Common
Securities at any time to terminate the Trust and, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, distribute note certificates prepared
by the Administrators and delivered to the Property Trustee (the “Exchange
Notes”) representing Like Amounts of the Subordinated Note to Holders in exchange for
the respective Capital Securities held by them; provided, however, that the Property Trustee
and the Holders shall have first received an Opinion of Counsel to the effect that such
distribution will not be a taxable event to the Holders of Capital Securities; and provided,
further, that, in any such event, the Depositor will issue to each Holder of Capital
Securities a Subordinated Note in its own name in the principal amount of its fractional
interest in the Subordinated Note and the Depositor agrees that the Subordinated Loan
Agreement shall be amended, on or prior to the Liquidation Date, pursuant to Section 9.05 of
the Subordinated Loan Agreement to include provisions regarding transfer and exchange of
Subordinated Notes, voting and enforcement of rights and such other related matters as would
customarily be provided if the Subordinated Loan Agreement was an agreement between the
Depositor and the then Holders of Capital Securities as lenders, all on terms and provisions
and pursuant to documentation reasonably satisfactory to at least 66% in Liquidation
Preference of the Capital Securities then outstanding;




     (c) the redemption of all of the Capital Securities in connection with the repayment in
full of the Subordinated Note pursuant to the terms of the Subordinated Loan Agreement; and



40









 






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


Section 9.3. Termination. The respective obligations and responsibilities of the Trustees and the
Trust shall terminate upon the latest to occur of the following:





     (a) the distribution by the Property Trustee to Holders upon the liquidation of the
Trust, 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 Administrators, including the
performance of any tax reporting obligations with respect to the Trust or the Holders.


Section 9.4. Liquidation. (a) If an Early Termination 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 Property
Trustee as expeditiously as the Property Trustee determines to be possible by distributing, after
satisfaction of liabilities to creditors of the Trust as provided by Section 3808(e) of the
Delaware Business Trust Act and any other applicable law, to each Holder a Like Amount of the
Subordinated Note. Notice of liquidation shall be given by the Property Trustee by a recognized
overnight delivery service (charges prepaid) sent not later than 30 days or 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 the Subordinated Note; and




     (iii) provide such information with respect to the mechanics by which Holders may
exchange Trust Securities Certificates for Exchange Notes.



     (b) The Property Trustee 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 Exchange Notes in exchange for the outstanding Trust
Securities Certificates.



     (c) After the Liquidation Date, (i) the Trust Securities will no longer be deemed to be
outstanding, (ii) Exchange Notes will be issued to Holders of Trust Securities Certificates, upon



41









 




surrender of such certificates to the exchange agent for exchange, (iii) any Trust Securities
Certificates not so surrendered for exchange will be deemed to represent a Like Amount of the
Subordinated Note, accruing interest at the rate provided for in the Subordinated Note from the
last Distribution Date on which Distribution was made on such Trust Securities Certificates until
such certificates are so surrendered (and, subject to the provisions of Section 5.5, until such
certificates are so surrendered, no payments of interest or principal will be made to Holders of
Trust Securities Certificates with respect to such Subordinated Note) and (iv) all rights of
Holders holding Trust Securities will cease, except the right of such Holders to receive Exchange
Notes upon surrender of Trust Securities Certificates.



Section 9.5. No 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 Person.



Section 9.6. Certificate of Cancellation. As soon as practicable upon completion of winding up of
the Trust, the Trustees shall execute and file a certificate of cancellation for the Trust with the
Secretary of State of Delaware if then required by the Delaware Business Trust Act.




ARTICLE X

MISCELLANEOUS PROVISIONS



Section 10.1. Limitation of Rights of Holders. The death or incapacity, or the dissolution,
liquidation, termination, or the bankruptcy 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, successors or heirs of such person or any Holder 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) Except as provided in Section 6.1(b), no amendment to this
Trust Agreement shall be effective except with (i) the approval of the Holders of at least
66% in Liquidation Preference of the Capital 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 cause the Trust to be an
association taxable as a corporation for United States federal income tax purposes or adversely
affect the
Trust’s exemption from status of an investment company under the 1940 Act.




     (b) In addition to and notwithstanding any other provision in this Trust Agreement, without
the consent of each affected Holder, this Trust Agreement may not be amended to (i) change the
amount or timing of any Distribution or the payment of any Redemption Amount or otherwise adversely
affect the amount of any Distribution or Redemption Amount required to be made as of a specified
date or (ii) restrict the right of a Holder 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 Holders, this paragraph (b) of this Section 10.2 may not be amended.



42









 





     (c) Notwithstanding any other provisions of this Trust Agreement, no Trustee shall enter into
or consent to any amendment to this Trust Agreement until it has received the Opinion of Counsel
referred to in Section 10.2(a)(ii) above.



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



     (e) If any amendment to this Trust Agreement is made, the Administrators or the Property
Trustee shall promptly provide to the Depositor and to each Holder of Capital Securities a copy of
such amendment.



     (f) Notwithstanding any other provisions of this Trust Agreement, neither the Property Trustee
nor the Delaware Trustee shall be required to enter into any amendment to this Trust Agreement,
including any amendment to this Section 10.2(f), which affects its own rights, powers, duties,
obligations, liabilities or immunities under this Trust Agreement, and any such amendment or
purported amendment shall be void and ineffective unless executed by such Trustees, which execution
may be withheld or declined by the Trustees in their sole discretion. 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. Separability. If any provision in this Trust Agreement or in the Trust Securities
Certificates shall be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby.



SECTION 10.4. GOVERNING LAW. THIS TRUST AGREEMENT AND THE RIGHTS OF THE PARTIES HEREUNDER
AND OF THE HOLDERS SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD, TO THE MAXIMUM
EXTENT PERMITTED BY LAW, TO PRINCIPLES OF CONFLICTS OF LAWS OF THE STATE OF DELAWARE OR ANY OTHER
JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAW OF ANY JURISDICTION OTHER THAN THE
STATE OF DELAWARE; PROVIDED, HOWEVER, THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THERE SHALL
NOT BE APPLICABLE TO THE PARTIES HEREUNDER OR THIS TRUST AGREEMENT ANY PROVISION OF THE LAWS
(COMMON OR STATUTORY) OF THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT RELATE TO OR REGULATE, IN
A MANNER INCONSISTENT WITH THE TERMS HEREOF, (A) THE FILING WITH ANY COURT OR GOVERNMENTAL BODY OR
AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE REQUIREMENTS
TO POST BONDS FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY FOR
OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION
OF REAL OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS, AGENTS OR
EMPLOYEES OF A TRUST, (E) THE ALLOCATION




43









 







OF RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL, (F)
RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR CONCENTRATION OF TRUST INVESTMENTS
OR REQUIREMENTS RELATING TO THE TITLING, STORAGE OR OTHER MANNER OF HOLDING OR INVESTING TRUST
ASSETS OR (G) THE ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR LIMITATIONS ON
THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE LIMITATIONS OR
AUTHORITIES AND POWERS OF THE TRUSTEES HEREUNDER AS SET FORTH OR REFERENCED IN THIS TRUST
AGREEMENT. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THE TRUST.



Section 10.5. 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 (except as otherwise provided in
Section 4.1(a)), 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 10.6. Successors. This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Administrators, 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 Section 7.04 of the Subordinated Loan
Agreement and pursuant to which the assignee agrees in writing to
perform the Depositor=s
obligations hereunder, the Depositor shall not assign its obligations hereunder (any purported
assignment in contravention of this Section 10.6 being null and void).



Section 10.7. Headings. The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.



Section 10.8. 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 Holder or the Depositor may be given or served in writing by a recognized
overnight delivery service (charges prepaid), hand delivery or facsimile transmission (if the
sender on the same day sends a confirming copy of such notice by a recognized overnight delivery
service, charges prepaid), in each case, addressed, (a) in the case of a Holder of Capital
Securities, to such Holder as such
Holder=s name and address may appear on the Securities
Register; and (b) in the case of the Holder of the Common Securities or the Depositor, to
MetroCorp, Inc., 1523 8th Street, East Moline, Illinois 61244, Attention: General
Counsel, facsimile number: (309) 752-9232 Such notice, demand or other communication to or upon a
Holder shall be deemed to have been sufficiently given or made, for all purposes, upon actual
receipt by the Holder or Depositor.




     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 Administrators shall be given in writing addressed (until another address
provided by the Trust in accordance with the provisions of this Section 10.8) as follows: (a) with
respect to the Property Trustee to Wilmington Trust Company, Rodney Square North, 1100 North



44









 




Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration — MetroCorp
Capital Trust I; (b) with respect to the Delaware Trustee, to Wilmington Trust Company, Rodney
Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate
Trust Administration — MetroCorp Capital Trust I; and (c) with respect to the
Administrators, to them at the address above for notices to the Depositor, marked
“Attention Administrators of MetroCorp Capital Trust I.” 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 10.9. Agreement Not to Petition. Each of the Administrators, Trustees and the Depositor
agree for the benefit of the Holders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join in the filing of, a
petition against the Trust under any bankruptcy, insolvency, reorganization or other similar law
(including, without limitation, the United States Bankruptcy Code (collectively, “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 10.9, the
Property Trustee agrees, for the benefit of Holders, 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 estopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the Trust may assert. The
provision of this Section 10.9 shall survive the termination of this Trust Agreement.



SECTION 10.10. ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE AGREEMENT AND SUBORDINATED
LOAN AGREEMENT. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON
BEHALF OF A HOLDER OR ANY OTHER PERSON HAVING A BENEFICIAL INTEREST THEREIN, WITHOUT ANY SIGNATURE
OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE HOLDER AND
SUCH OTHERS OF ALL THE TERMS AND PROVISIONS OF THE TRUST AGREEMENT AND AGREEMENT TO THE
SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AGREEMENT AND THE SUBORDINATED LOAN, AND
SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND
PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST
AND SUCH HOLDER AND SUCH OTHERS.



Section 10.11. Counterparts. The Agreement may be executed in any number of counterparts, each of
which shall be an original but all of which together shall constitute one instrument. Each
counterpart may consist of a number of copies hereof, each signed by less than all, but together
signed by all, of the parties hereto.



Section 10.12. Limited Liability. The Holders of the Capital Securities, in their capacities as
such, shall not be personally liable for any liabilities or obligations of the Trust arising out of
this




45









 







Agreement, and the parties hereto hereby agree that the
Holders of the Capital 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.




46









 





     IN WITNESS WHEREOF, the undersigned have executed this Trust Agreement as of the date first
above written.



	 	 	 	 	 	 
	 	 	MetroCorp, Inc.
	 
	 	 	 	 
	 

	 	By:	 	/s/ Gary D. Andersen
	 

	 	 	 	 
	 

	 	 	 	     Name: Gary D. Andersen
	 

	 	 	 	     Title: President
	 
	 	 	 	 
	 	 	Wilmington Trust Company, as Property Trustee
	 
	 	 	 	 
	 

	 	By:	 	/s/
	 

	 	 	 	 
	 

	 	 	 	     Name:
	 

	 	 	 	     Title:
	 
	 	 	 	 
	 	 	Wilmington Trust Company, as Delaware Trustee
	 
	 	 	 	 
	 

	 	By:	 	/s/
	 

	 	 	 	 
	 

	 	 	 	     Name:
	 

	 	 	 	     Title:
	 
	 	/s/ Gary D. Andersen
	 	 	 
	 	 	Gary D. Andersen, as Administrator
	 
	 	/s/ Julius J. Van Paemel
	 	 	 
	 	 	Julius J. Van Paemel, as Administrator







47









 






EXHIBIT A




 









 








CERTIFICATE OF TRUST


OF


METROCORP CAPITAL TRUST I



          This Certificate of Trust of MetroCorp Capital Trust I is being executed and filed by the
undersigned, as trustee, for the purposes of forming a business trust pursuant to the Delaware
Business Trust Act (12 Del.C.
'' 3801, et seq.).




     1. Name. The name of the business trust formed hereby is “MetroCorp Capital Trust I”
(the “Trust”).



     2. Delaware Trustee. The name and business address of the trustee of the Trust that
has its principal place of business in the State of Delaware are as follows:


Wilmington Trust Company

Rodney Square North

1100 North Market Street

Wilmington, Delaware 19890-0001




          IN WITNESS WHEREOF, the undersigned has executed this Certificate of Trust in accordance with
12 Del.C.
'' 3811(a).




	 	 	 	 	 
	 	 	WILMINGTON TRUST COMPANY

as Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 
	 

	 	Name:	 	 






 









 






Exhibit B




THIS CERTIFICATE IS NOT TRANSFERABLE




	 	 	 	 	 
	Certificate Number

A-1

	 	 	 	Number of Common Securities

One (1)





CERTIFICATE EVIDENCING COMMON SECURITIES


OF


METROCORP CAPITAL TRUST I


COMMON SECURITIES


(Initial Liquidation Amount $309,278 per Common Security)



     MetroCorp Capital Trust I, a business trust created under the laws of the State of Delaware
(the “Trust”), hereby certifies that MetroCorp, Inc., a Delaware corporation (the
“Holder”), is the registered owner of one (1) Common Security (Initial Liquidation
Amount $309,278 per Common Security) of the Trust, representing undivided beneficial interest in
the assets of the Trust (such Common Security constituting the sole Common Security with respect to
the Trust and being herein referred to as the “Common
Security” or the
“Common
Securities”). Except as provided in Section 5.10 of the Trust Agreement (as defined below),
the Common Securities are not transferable and any attempted transfer hereof shall be null and
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 respect be subject to the terms and
provisions of, the Amended and Restated Trust Agreement of the Trust dated as of November 1, 2001,
as the same may be amended from time to time (the
“Trust Agreement”
), including the
designation of the terms of the Common Securities as set forth therein. The Trust will furnish a
copy of the Trust Agreement to the Holder without charge upon written request to the Trust as its
principal place of business or registered office.



     THE RECEIPT AND ACCEPTANCE OF A COMMON SECURITY OR ANY INTEREST THEREIN BY OR ON BEHALF OF A
HOLDER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE HOLDER OF ALL THE TERMS AND PROVISIONS OF THE TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE SUBORDINATED
LOAN AGREEMENT, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST AND SUCH HOLDER THAT THE TERMS AND
PROVISIONS OF THE TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST
AND SUCH HOLDER.



B-1









 





     By receipt and acceptance of this certificate, the Holder agrees to be bound by the Trust
Agreement and is entitled to the benefits thereunder.



     IN WITNESS WHEREOF, the undersigned Administrator of the Trust has executed this certificate
as of the 1st day of November, 2001.



	 	 	 	 	 
	 	 	METROCORP CAPITAL TRUST I
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 
	 

	 	 	 	      Name: Gary D. Andersen

     Title: Administrator
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 
	 

	 	 	 	     Name: Julius J. Van Paemel

     Title: Administrator






B-2









 






Exhibit C




THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED

UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE

SECURITIES LAW AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED

EXCEPT IN COMPLIANCE WITH SUCH ACT AND LAWS.




			
	Certificate Number
	 	Number of Capital Securities
	 	 	 
	P-
	 	[                                        ]





Certificate Evidencing Capital Securities


of


MetroCorp Capital Trust I


Floating Rate Cumulative Capital Securities


(Initial Liquidation Preference $1,000 per Capital Security)



     MetroCorp Capital Trust I, a business trust created under the laws of the State of Delaware
(the
“Trust”),
hereby certifies that ____ (the “Holder”)
is the registered owner of [_________ Insert number of Capital Securities] Floating Rate
Cumulative Capital Securities (Initial Liquidation Preference $1,000 per Capital Security) of the
Trust, representing undivided beneficial interests in the assets of
the Trust (the “Capital
Securities”). The Capital 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
Capital Securities are set forth in, and this certificate and the Capital Securities represented
hereby as 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 November 1, 2001, as the same may be amended
further from time to time (the “Trust Agreement”), including the designation of the
terms of Capital Securities as set forth therein. The Holder is entitled to the benefits of the
Guarantee Agreement entered into by MetroCorp, Inc., a Delaware corporation (the
“Depositor”),
dated as of November 1, 2001 (the “Guarantee”), to the extent
provided therein. The Trust will furnish a copy of the Trust Agreement and the Guarantee Agreement
to the Holder without charge upon written request to the Trust as its principal place of business
or registered office.



C-1









 





     By receipt and acceptance of this certificate, the Holder agrees to be bound by the Trust
Agreement and is entitled to the benefits thereunder. The Holder will also be deemed, by its
receipt and acceptance of this certificate, to have made the representation set forth in Section
2.1 of the Subscription Agreement (as defined in the Trust Agreement) on the date of its purchase
of this certificate.



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



     IN WITNESS WHEREOF, the undersigned Administrator of the Trust has executed this certificate
as of the 1st day of November, 2001.



	 	 	 	 	 
	 	 	METROCORP CAPITAL TRUST I
	 
	 	 	 	 
	 

	 	By:  	 	 
	 

	 	 	 
	 

	 	 	 	     Name: Gary D. Andersen

     Title: Administrator
	 
	 	 	 	 
	 

	 	By:   	 	 
	 

	 	 	 
	 

	 	 	 	     Name: Julius J. Van Paemel

     Title: Administrator






C-2









 






ASSIGNMENT




     FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital Securities Certificate
to:



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



     (Insert address and zip code of assignee)


and irrevocably appoints



agent to transfer this Capital Securities 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 Capital Securities 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 S.E.C. Rule 17Ad-15.





 









 








AGREEMENT AS TO EXPENSES AND LIABILITIES




     AGREEMENT dated as of November 1, 2001 between MetroCorp, Inc., a Delaware corporation (the
“Company”), and MetroCorp Capital Trust I, a
Delaware business trust (the “Trust”).



     WHEREAS,
the Trust intends to issue its Common Securities (the “Common
Securities”) to, and
receive a Floating Rate Subordinated Promissory Note due 2031 (the
“Subordinated Note”) from, the
Company and to issue and sell Floating Rate Cumulative Capital Securities (the “Capital
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 even date herewith (as the same
may be amended further from time to time, the “Trust
Agreement”); and



     WHEREAS, the Company will directly or indirectly own all of the Common Securities of the Trust
and will issue the Subordinated Note.



     NOW, THEREFORE, in consideration of the purchase by each holder of the Capital 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, including in its capacity as holder of the Common Securities, and the Trust hereby agree
as follows:



ARTICLE I




     SECTION 1.1. GUARANTEE BY THE COMPANY. Subject to the terms and conditions hereof, the
Company, including in its capacity as holder of the Common Securities, hereby irrevocably and
unconditionally guarantees to each person or entity to whom the Trust is now or hereafter becomes
indebted or liable (the “Beneficiaries”) the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used herein, “Obligations” means
any costs, expenses or liabilities of the Trust other than obligations of the Trust to pay to
holders of any Capital Securities or other similar interests in the Trust the amounts due such
holders pursuant to the terms of the Capital Securities or such other similar interests, as the
case may be. This Agreement is intended to be for the benefit of, and to be enforceable by, all
such Beneficiaries, whether or not such Beneficiaries have received notice hereof.



     SECTION 1.2. TERM OF AGREEMENT. This Agreement shall terminate and be of no further force and
effect upon the later of (a) the date on which full payment has been made of all amounts payable to
all holders of all the Capital Securities (whether upon redemption, liquidation, exchange or
otherwise) and (b) the date on which there are no Beneficiaries remaining; provided, however, that
this Agreement shall continue to be effective or shall be reinstated, as the case may be, if at any
time any holder of Capital Securities or any Beneficiary must restore payment of any sums paid
under the Capital Securities, under any obligation, under the Capital Securities Guarantee
Agreement dated the date hereof by the Company in favor of the Beneficiaries or under this



D-1









 




Agreement, for any reason whatsoever. This Agreement is continuing, irrevocable,
unconditional and absolute.




     SECTION 1.3. WAIVER OF NOTICE. The Company hereby waives notice of acceptance of this
Agreement and of any obligation to which it applies or may apply, and the Company hereby waives
presentment, demand for payment, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.



     SECTION 1.4. NO IMPAIRMENT. The obligations, covenants, agreements and duties of the Company
under this Agreement shall in no way be affected or impaired by reason of the happening from time
to time of any of the following:



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



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



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



     The Beneficiaries shall not be obligated 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.



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 Capital Securities
are outstanding, this Agreement shall not be modified or amended in any manner adverse to such
Beneficiary or to the holders of the Capital Securities.



D-2









 





     SECTION 2.3. NOTICES. Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same by facsimile transmission
(confirmed by mail), telex, or by registered or certified mail, addressed as follows (and if so
given, shall be deemed given when mailed or upon receipt of an answer back, if sent by telex):


MetroCorp Capital Trust I

c/o Wilmington Trust Company

Rodney Square North

1100 North Market Street

Wilmington, Delaware 19890-0001

Facsimile No.: (302) 651-8882

Attention: Corporate Trust Administration — MetroCorp Capital Trust I



MetroCorp Capital Trust I

1523 8th Street

East Moline, Illinois 61244

Facsimile No.:(390) 752-9232

Attention: General Counsel




     SECTION 2.4. GOVERNING LAW. This Agreement shall be governed by and construed and interpreted
in accordance with the laws of the State of Illinois (without regard to conflict of laws
principles).



[SIGNATURE PAGE FOLLOWS]




D-3









 








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



	 	 	 	 	 
	 	 	METROCORP, INC.
	 
	 	 	 	 
	 

	 	By:	 	/s/ Gary Andersen
	 

	 	 	 	 
	 	 	Name: Gary Andersen

Title: President
	 
	 	 	 	 
	 	 	METROCORP CAPITAL TRUST I
	 
	 	 	 	 
	 

	 	By:	 	/s/ Gary D. Andersen
	 

	 	 	 	 
	 	 	Name: Gary D. Andersen

Title: Administrator
	 
	 	 	 	 
	 

	 	By:	 	/s/ Julius J. Van Paemel
	 

	 	 	 	 
	 	 	Name: Julius J. Van Paemel

Title: Administrator







D-4