Exhibit 4.14


 


AMENDED AND RESTATED


 


TRUST AGREEMENT


 


Among


 


SCBT FINANCIAL CORPORATION


as Depositor,


 


 


WILMINGTON TRUST COMPANY


as Property Trustee,


 


 


WILMINGTON TRUST COMPANY,


as Delaware Trustee, and


 


 






 


 


and


 


 






 


as Administrators


 


 


Dated as of                   


 






 


 


SCBT CAPITAL TRUST IV


 






 


1

















 


Certain Sections of this Trust Agreement relating to Sections 310
through 318 of the Trust Indenture Act of 1939:


 


	
  Trust Indenture Act Section

  	
   

  	
  Trust Agreement Section

  
	
  Section

  	
  310

  	
  (a)(1)

  	
   

  	
  8.7

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  8.7

  
	
   

  	
   

  	
  (a)(3)

  	
   

  	
  8.9

  
	
   

  	
   

  	
  (a)(4)

  	
   

  	
  2.7 (a)(ii)

  
	
   

  	
   

  	
  (b)

  	
   

  	
  8.8, 10.10 (b)

  
	
  Section

  	
  311

  	
  (a)

  	
   

  	
  8.13, 10.10 (b)

  
	
   

  	
   

  	
  (b)

  	
   

  	
  8.13, 10.10 (b)

  
	
  Section

  	
  312

  	
  (a)

  	
   

  	
  10.10 (b)

  
	
   

  	
   

  	
  (b)

  	
   

  	
  10.10(b), (f)

  
	
   

  	
   

  	
  (c)

  	
   

  	
  5.7

  
	
  Section  

  	
  313

  	
  (a)

  	
   

  	
  8.15 (a)

  
	
   

  	
   

  	
  (a)(4)

  	
   

  	
  10.10 (c)

  
	
   

  	
   

  	
  (b)

  	
   

  	
  8.15(c), 10.10 (c)

  
	
   

  	
   

  	
  (c)

  	
   

  	
  10.8, 10.10 (c)

  
	
   

  	
   

  	
  (d)

  	
   

  	
  10.10 (c)

  
	
  Section

  	
  314

  	
  (a)

  	
   

  	
  8.16, 10.10 (d)

  
	
   

  	
   

  	
  (b)

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
  (c)(1)

  	
   

  	
  8.17, 10.10(d), (e)

  
	
   

  	
   

  	
  (c)(2)

  	
   

  	
  8.17, 10.10(d),
  (e)

  
	
   

  	
   

  	
  (c)(3)

  	
   

  	
  8.17, 10.10(d),
  (e)

  
	
   

  	
   

  	
  (e)

  	
   

  	
  8.17, 10.10 (e)

  
	
  Section

  	
  315

  	
  (a)

  	
   

  	
  8.1 (d)

  
	
   

  	
   

  	
  (b)

  	
   

  	
  8.2

  
	
   

  	
   

  	
  (c)

  	
   

  	
  8.1 (c)

  
	
   

  	
   

  	
  (d)

  	
   

  	
  8.1 (d)

  
	
   

  	
   

  	
  (e)

  	
   

  	
  Not Applicable

  
	
  Section

  	
  316

  	
  (a)

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
  (a)(1)(A)

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
  (a)(1)(B)

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
  (b)

  	
   

  	
  5.13

  
	
   

  	
   

  	
  (c)

  	
   

  	
  6.7

  
	
  Section

  	
  317

  	
  (a)(1)

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  8.14

  
	
   

  	
   

  	
  (b)

  	
   

  	
  5.10

  
	
  Section

  	
  318

  	
  (a)

  	
   

  	
  10.10 (a)

  



 


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


 


2

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I
  DEFINED TERMS

  	
  6

  
	
   

  	
   

  
	
  SECTION 1.1. Definitions

  	
  6

  
	
   

  	
   

  
	
  ARTICLE II
  CONTINUATION OF THE ISSUER TRUST

  	
  17

  
	
   

  	
   

  
	
  SECTION 2.1. Name

  	
  17

  
	
  SECTION 2.2. Office of the Delaware Trustee; Principal Place of
  Business

  	
  17

  
	
  SECTION 2.3. Initial Contribution of Trust Property;
  Organizational Expenses

  	
  17

  
	
   

  	
   

  
	
  SECTION 2.4.
  Issuance of the Preferred Capital Securities

  	
  17

  
	
   

  	
   

  
	
  SECTION 2.5. Issuance of the Common Securities; Subscription and
  Purchase of Junior Subordinated Debentures

  	
  18

  
	
  SECTION 2.6. Authorization to Issue Additional Trust Securities;
  Authorization to Subscribe and Purchase Additional Junior Subordinated
  Debentures

  	
  18

  
	
  SECTION 2.7. Declaration of Trust

  	
  19

  
	
  SECTION 2.8. Authorization to Enter into Certain Transactions

  	
  19

  
	
   

  	
   

  
	
  SECTION 2.9.
  Assets of Trust

  	
  22

  
	
   

  	
   

  
	
  SECTION 2.10.
  Title to Trust Property

  	
  23

  
	
   

  	
   

  
	
  ARTICLE III
  PAYMENT ACCOUNT

  	
  23

  
	
   

  	
   

  
	
  SECTION 3.1. Payment Account

  	
  23

  
	
   

  	
   

  
	
  ARTICLE IV
  DISTRIBUTIONS; REDEMPTION

  	
  23

  
	
   

  	
   

  
	
  SECTION 4.1. Distributions

  	
  23

  
	
  SECTION 4.2. Redemption

  	
  24

  
	
  SECTION 4.3. Subordination of Common Securities

  	
  27

  
	
  SECTION 4.4. Payment Procedures

  	
  27

  
	
  SECTION 4.5. Tax Returns and Reports

  	
  28

  
	
  SECTION 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust

  	
  28

  
	
  SECTION 4.7. Payments under Indenture or Pursuant to Direct
  Actions

  	
  28

  
	
  SECTION 4.8. Liability of the Holder of Common Securities

  	
  28

  
	
   

  	
   

  
	
  ARTICLE V
  TRUST SECURITIES CERTIFICATES

  	
  29

  
	
   

  	
   

  
	
  SECTION 5.1. Initial Ownership

  	
  29

  
	
  SECTION 5.2. The Trust Securities Certificates

  	
  29

  
	
  SECTION 5.3. Execution and Delivery of Trust Securities
  Certificates

  	
  29

  



 


3

















 


	
  SECTION 5.4. Global Preferred Capital Securities

  	
  29

  
	
  SECTION 5.5. Registration of Transfer and Exchange of Preferred
  Capital Securities Certificates

  	
  31

  
	
  SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Trust
  Securities Certificates

  	
  32

  
	
  SECTION 5.7. Persons Deemed Holders

  	
  33

  
	
  SECTION 5.8. Access to List of Holders’ Names and Addresses

  	
  33

  
	
  SECTION 5.9. Maintenance of Office or Agency

  	
  33

  
	
  SECTION 5.10. Appointment of Paying Agent

  	
  33

  
	
  SECTION 5.11. Ownership of Common Securities by Depositor

  	
  34

  
	
  SECTION 5.12. Notices to Clearing Agency

  	
  35

  
	
  SECTION 5.13. Rights of Holders

  	
  35

  
	
   

  	
   

  
	
  ARTICLE VI
  ACTS OF HOLDERS; MEETINGS; VOTING

  	
  37

  
	
   

  	
   

  
	
  SECTION 6.1. Limitations on Holders’ Voting Rights

  	
  37

  
	
  SECTION 6.2. Notice of Meetings

  	
  38

  
	
  SECTION 6.3. Meetings of Holders

  	
  38

  
	
  SECTION 6.4. Voting Rights

  	
  39

  
	
  SECTION 6.5. Proxies, etc

  	
  39

  
	
  SECTION 6.6. Holder Action by Written Consent

  	
  39

  
	
  SECTION 6.7. Record Date for Voting and Other Purposes

  	
  39

  
	
  SECTION 6.8. Acts of Holders

  	
  40

  
	
  SECTION 6.9. Inspection of Records

  	
  41

  
	
   

  	
   

  
	
  ARTICLE VII
  REPRESENTATIONS AND WARRANTIES

  	
  41

  
	
   

  	
   

  
	
  SECTION 7.1. Representations and Warranties of the Property
  Trustee and the Delaware Trustee

  	
  41

  
	
  SECTION 7.2. Representations and Warranties of Depositor

  	
  42

  
	
   

  	
   

  
	
  ARTICLE VIII
  THE ISSUER TRUSTEES; THE ADMINISTRATORS

  	
  42

  
	
   

  	
   

  
	
  SECTION 8.1. Certain Duties and Responsibilities

  	
  42

  
	
  SECTION 8.2. Certain Notices

  	
  45

  
	
  SECTION 8.3. Certain Rights of Property Trustee

  	
  45

  
	
  SECTION 8.4. Not Responsible for Recitals or Issuance of Securities

  	
  47

  
	
  SECTION 8.5. May Hold Securities

  	
  47

  
	
  SECTION 8.6. Compensation; Indemnity; Fees

  	
  47

  
	
  SECTION 8.7. Corporate Property Trustee Required; Eligibility of
  Trustees and Administrators

  	
  48

  
	
  SECTION 8.8. Conflicting Interests

  	
  49

  
	
  SECTION 8.9. Co-Trustees and Separate Trustee

  	
  49

  
	
  SECTION 8.10. Resignation and Removal; Appointment of Successor

  	
  50

  
	
  SECTION 8.11. Acceptance of Appointment by Successor

  	
  52

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

  	
  52

  



 


4

















 


	
  SECTION 8.13. Preferential Collection of Claims Against
  Depositor or Issuer Trust

  	
  52

  
	
  SECTION 8.14. Trustee May File Proofs of Claim

  	
  53

  
	
  SECTION 8.15. Reports by Property Trustee

  	
  53

  
	
  SECTION 8.16. Reports to the Property Trustee

  	
  54

  
	
  SECTION 8.17. Evidence of Compliance with Conditions Precedent

  	
  54

  
	
  SECTION 8.18. Number of Issuer Trustees

  	
  54

  
	
  SECTION 8.19. Delegation of Power

  	
  54

  
	
  SECTION 8.20. Appointment of Administrators

  	
  55

  
	
   

  	
   

  
	
  ARTICLE IX
  DISSOLUTION, LIQUIDATION AND MERGER

  	
  55

  
	
   

  	
   

  
	
  SECTION 9.1. Dissolution Upon Expiration Date

  	
  55

  
	
  SECTION 9.2. Early Dissolution

  	
  56

  
	
  SECTION 9.3. Termination

  	
  56

  
	
  SECTION 9.4. Liquidation

  	
  56

  
	
  SECTION 9.5. Mergers, Consolidations, Amalgamations or
  Replacements of the Issuer Trust

  	
  58

  
	
   

  	
   

  
	
  ARTICLE X
  MISCELLANEOUS PROVISIONS

  	
  59

  
	
   

  	
   

  
	
  SECTION 10.1. Limitation of Rights of Holders

  	
  59

  
	
  SECTION 10.2. Amendment

  	
  59

  
	
  SECTION 10.3. Separability

  	
  60

  
	
  SECTION 10.4. Governing Law

  	
  61

  
	
  SECTION 10.5. Payments Due on Non-Business Day

  	
  61

  
	
  SECTION 10.6. Successors

  	
  62

  
	
  SECTION 10.7. Headings

  	
  62

  
	
  SECTION 10.8. Reports, Notices and Demands

  	
  62

  
	
  SECTION 10.9. Agreement Not to Petition

  	
  62

  
	
  SECTION 10.10. Trust Indenture Act; Conflict with Trust
  Indenture Act

  	
  63

  
	
  SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee
  and Indenture

  	
  64

  
	
  SECTION 10.12. Force Majeure

  	
  64

  
	
   

  	
   

  
	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
  Exhibit A
  — Certificate of Trust

  	
   

  
	
  Exhibit B
  — Form of Common Securities Certificate

  	
   

  
	
  Exhibit C
  — Form of Preferred Capital Securities Certificate

  	
   

  
	
  Exhibit D
  — Terms of Distribution

  	
   

  



 


5

















 


AMENDED AND RESTATED TRUST AGREEMENT


 


THIS AMENDED AND RESTATED TRUST AGREEMENT, dated as of
      , is by and among (i) SCBT Financial
Corporation, a South Carolina corporation (including any successors or assigns,
the “Depositor”), (ii) Wilmington Trust Company, a Delaware banking
corporation, as property trustee (in such capacity, the “Property Trustee”
and, in its separate corporate capacity and not in its capacity as Property
Trustee or Delaware Trustee, the “Bank”), (iii) Wilmington Trust
Company, a Delaware banking corporation, as Delaware trustee (in such capacity,
the “Delaware Trustee”) (the Property Trustee and the Delaware Trustee are
referred to collectively herein as the “Issuer Trustees”), (iv) the
Administrators, as hereinafter defined, and (v) the several Holders, as
hereinafter defined.


 


WITNESSETH


 


WHEREAS, the Depositor and the Delaware Trustee have heretofore duly
declared and established a statutory trust pursuant to the Delaware Statutory
Trust Act by entering into a certain Trust Agreement, dated as of
      , as amended from time to time (the “Original
Trust Agreement”), 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
[                        ],
2009 (the “Certificate of Trust”), attached as Exhibit A; and


 


WHEREAS, the parties hereto desire to amend and restate the Original
Trust Agreement in its entirety as set forth herein to provide for, among other
things, (i) the issuance of the Common Securities by the Issuer Trust to
the Depositor, (ii) the issuance and sale of the Preferred Capital
Securities by the Issuer Trust pursuant to the Underwriting Agreement, (iii) the
acquisition by the Issuer Trust from the Depositor of all of the right, title
and interest in the Junior Subordinated Debentures, and (iv) the
appointment of the Property Trustee and the Administrators.


 


NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, intending to be
legally bound, for the benefit of the other parties and for the benefit of the
Holders, hereby amends and restates the Original Trust Agreement in its
entirety and agrees, as follows:


 


ARTICLE I


 


DEFINED TERMS


 


SECTION 1.1. Definitions.


 


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


 


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


 


6

















 


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


 


(3)                                  The
words “include,” “includes” and “including” shall be deemed to be followed by
the phrase “without limitation”;


 


(4)                                  All
accounting terms used but not defined herein have the meanings assigned to them
in accordance with United States generally accepted accounting principles as in
effect at the time of determination;


 


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


 


(6)                                  The
words “herein,” “hereby,” “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


 


“Act” has the meaning specified in Section 6.8.


 


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


 


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


 


“Administrator” means each Person appointed in accordance with Section 8.20
solely in such Person’s capacity as Administrator of the Issuer Trust and not
in such Person’s individual capacity, or any successor Administrator appointed
as herein provided; with the initial Administrators being
[                        ],
an individual, and
[                        ],
an individual.


 


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


 


“Applicable Procedures” mean, with respect to any transfer or
transaction involving a Global Preferred Capital Security or beneficial
interest therein, the rules and procedures of the Depositary for such
Preferred Capital Security, in each case to the extent applicable to such
transaction and as in effect from time to time.


 


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


 


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


 


7

















 


(1)                                  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,
conservator, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding-up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or


 


(2)                                  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,
conservator, 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 of Directors” means the board of directors of the
Depositor or a committee designated by the board of directors of the Depositor.


 


“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,
New York or the City of Wilmington, Delaware are authorized or required by law
or executive order to remain closed or (c) a day on which either the
Property Trustee’s corporate trust office or the Indenture Trustee’s corporate
trust office is closed for business.


 


“Capital Treatment Event” means, in respect of the Issuer Trust,
and in the event that the Depositor is a bank holding company for purposes of
the Bank Holding Company Act of 1956, as amended, the receipt by the Property
Trustee of an Opinion of Counsel, experienced in such matters and who may be
counsel to the Depositor, and determination by the Depositor that, as a result
of the occurrence of any amendment to, or change (including any announced
prospective change) in, the laws (or any rules or regulations thereunder)
of the United States or any political subdivision thereof or therein, or as a
result of any official or administrative pronouncement or action (including any
action taken in connection with a regulatory examination or in connection with
or as a result of any change in regulatory policy) or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such pronouncement, action or decision is announced on or after
the date of the issuance of the Preferred Capital Securities of the Issuer
Trust, there is more than an insubstantial risk that the Depositor will not be
entitled to treat an amount equal to the Liquidation Amount of such Preferred
Capital Securities as “Tier 1 Capital” (or the then


 


8

















 


equivalent thereof) for purposes of the risk-based capital adequacy
guidelines of the Board of Governors of the Federal Reserve System, as then in
effect and applicable to the Depositor.


 


“[        ]” means
[                        ],
as the nominee of the Depositary.


 


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


 


“Clearing Agency” means an organization registered as a “clearing
agency” pursuant to Section 17A of the Exchange Act. The Depositary shall
be the initial Clearing Agency.


 


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


 


“Closing” and “Closing Date” means the closing of the
offering of Trust Securities as contemplated herein, including any subsequent
closings if the parties agree (i) to close the sale of some, but not all
of the Trust Securities offered at closing, (ii) to continue the offering
as to any unsold Trust Securities, if any, or (iii) to offer additional
Trust Securities thereafter.


 


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


 


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


 


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


 


“Common Securities Purchase Agreement” means the Common
Securities Purchase Agreement, dated of even date herewith, between the Issuer
Trust and the Depositor, as the same may be amended from time to time.


 


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


 


“Corporate Trust Office” means the principal office of the
Property Trustee located in the City of Wilmington, Delaware, which at the time
of the execution of this Trust Agreement is located at Rodney Square North,
1100 North Market Street, Wilmington, Delaware 19890, Attention: Corporate
Trust Administration.


 


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


 


9














 


“Debenture Purchase Agreement” means the Junior Subordinated
Debenture Purchase Agreement, dated of even date herewith, between the
Depositor and the Issuer Trust, as the same may be amended from time to time.


 


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


 


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


 


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


 


“Depositary” means The Depository Trust Company or any successor
thereto.


 


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


 


“Direct Action” has the meaning specified in Section 5.13(c).


 


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


 


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


 


“DTC” means The Depository Trust Company.


 


“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):


 


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


 


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


 


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


 


(4)                                  default
in the performance, or breach, in any material respect, of any covenant or
warranty of the Issuer Trustees in this Trust Agreement (other than a covenant
or warranty a default in the performance of which or the breach of which is
dealt with in clause (2) or (3)


 


10

















 


above) and continuation of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the Issuer
Trustees and the Depositor by the Holders of at least 25% in aggregate
Liquidation Amount of the Outstanding Preferred Capital Securities, a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a “Notice of Default” hereunder; or


 


(5)                                  the
occurrence of any Bankruptcy Event with respect to the Property Trustee or all
or substantially all of its property if a successor Property Trustee has not
been appointed within a period of 90 days thereof.


 


“Exchange Act” shall mean the Securities Exchange Act of 1934,
as amended, and any successor statute thereto, as amended from time to time.


 


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


 


“Global Preferred Capital Securities Certificate” means a
Preferred Capital Securities Certificate evidencing ownership of Preferred
Capital Securities, the ownership and transfers of which shall be made through
book entries by a Clearing Agency as described in Section 5.4.


 


“Global Preferred Capital Security” means those Preferred
Capital Securities evidenced by the Global Preferred Capital Securities
Certificate.


 


“Guarantee” means the Guarantee Agreement executed and delivered
by the Depositor and the Guarantee Trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit of the Holders
of the Preferred Capital Securities, as amended from time to time.


 


“Guarantee Trustee” means Wilmington Trust Company, solely in
its capacity as the trustee that holds the Guarantee for the benefit of the
Holders and not in its individual capacity, or its successor in interest in
such capacity, or any successor trustee appointed as herein provided.


 


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


 


“Indemnified Person” has the meaning provided in Section 8.6.


 


“Indenture” means the Junior Subordinated Indenture, dated as of
[                        ],
2009 by and between the Depositor and the Indenture Trustee (as amended or
supplemented from time to time), relating to the issuance of the Junior
Subordinated Debentures.


 


“Indenture Trustee” means Wilmington Trust Company, a Delaware
banking corporation, in its capacity as trustee under the Indenture, or any
successor trustee appointed thereunder.


 


11

















 


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


 


“Investment Company Event” means the receipt by the Issuer Trust
of an Opinion of Counsel experienced in such matters to the effect that, as a
result of the occurrence of a change in law or regulation or a written change
(including any announced prospective change) in interpretation or application
of law or regulation by any legislative body, court, governmental agency or
regulatory authority, there is more than an insubstantial risk that the Issuer
Trust is or will be considered an “investment company” that is required to be
registered under the Investment Company Act, which change or prospective change
becomes effective or would become effective, as the case may be, on or after
the date of the issuance of the Preferred Capital Securities.


 


“Issuer Trust” means the Delaware statutory trust known as “SCBT
Capital Trust IV” which was created on
[                        ],
2009 under the Delaware Statutory Trust Act pursuant to the Original Trust
Agreement and the filing of the Certificate of Trust, and continued pursuant to
this Trust Agreement.


 


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


 


“Junior Subordinated Debentures” means the
[                        ],
issued pursuant to the Indenture.


 


“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 Amount equal to that
portion of the principal amount of Junior Subordinated Debentures to be
contemporaneously redeemed in accordance with the Indenture, allocated to the
Common Securities and to the Preferred Capital Securities pro rata based upon
the relative Liquidation Amounts of such classes and (b) with respect to a
distribution of Junior Subordinated Debentures to Holders of Trust Securities
in connection with a dissolution or liquidation of the Issuer Trust, Junior
Subordinated Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such Junior Subordinated
Debentures are distributed.


 


“Liquidation Amount” means the stated amount of
$[                        ]
per Preferred Capital Security and $1,000.00 per Common Security.


 


“Liquidation Date” means the date of the dissolution, winding up
or liquidation of the Issuer Trust pursuant to Section 9.4.


 


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


 


“Majority in Liquidation Amount of the Preferred Capital Securities”
or “Majority in Liquidation Amount of the Common Securities” means, except as
provided by the Trust Indenture Act, Preferred Capital Securities or Common
Securities, as the case may be,


 


12

















 


representing more than 50% of the aggregate Liquidation Amount of all
then Outstanding Preferred Capital Securities or Common Securities, as the case
may be.


 


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


 


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


 


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


 


(3)                                  a
statement that 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


 


(4)                                  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 or an employee of the Depositor or any Affiliate of the
Depositor.


 


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


 


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


 


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


 


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


 


(3)                                  Trust
Securities that have been paid or for which other Trust Securities have been
executed and delivered in exchange therefor or in lieu thereof pursuant to
Sections 5.4, 5.5 and 5.6; provided, however, that in determining whether the
Holders of the requisite Liquidation Amount of the Outstanding Preferred
Capital Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Preferred Capital Securities owned by the
Depositor, any Issuer Trustee, any Administrator or any Affiliate of the
Depositor, shall be disregarded and deemed not to be Outstanding, except that (a) in


 


13

















 


determining whether any Issuer Trustee or any Administrator shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Preferred Capital Securities that such Issuer
Trustee or such Administrator, as the case may be, knows to be so owned shall
be so disregarded and (b) the foregoing shall not apply at any time when
all of the Outstanding Preferred Capital Securities are owned by the Depositor,
one or more of the Issuer Trustees, one or more of the Administrators and/or
any such Affiliate. Preferred Capital Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Administrators the pledgee’s right so to act with
respect to such Preferred Capital Securities and that the pledgee is not the
Depositor or any Affiliate of the Depositor.


 


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


 


“Paying Agent” means any paying agent or co-paying agent
appointed pursuant to Section 5.10 and shall initially be the Property
Trustee.


 


“Payment Account” means a segregated non-interest-bearing
corporate trust account maintained with the Property Trustee in its trust department
for the benefit of the Holders in which all amounts paid in respect of the
Junior Subordinated Debentures will be held and from which the Property
Trustee, through the Paying Agent, shall make payments to the Holders in
accordance with Sections 4.1, 4.2 and 9.4.


 


“Person” means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, company, limited liability company, trust, unincorporated organization
or government or any agency or political subdivision thereof, or any other
entity of whatever nature.


 


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


 


“Preferred Capital Security” means a preferred undivided
beneficial interest in the assets of the Issuer Trust, having a Liquidation
Amount of
$[                        ]
or an integral multiple in excess of such amount and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.


 


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


 


14

















 


“Purchase Agreement” means, collectively, all purchase
agreements executed by or on behalf of the Depositor, the Issuer Trust, and the
Owners.


 


“Redemption Date” means, with respect to any Trust Security to
be redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the stated maturity
of the Junior Subordinated Debentures shall be a Redemption Date for a Like
Amount of Trust Securities, including but not limited to any date of redemption
pursuant to the occurrence of any Special Event.


 


“Redemption Price” means a price equal to the Liquidation
Amount, together with accumulated Distributions to, but excluding, the date
fixed for redemption.


 


“Relevant Trustee” has the meaning specified in Section 8.10.


 


“Responsible Officer” when used with respect to the Property
Trustee means any officer assigned to the Corporate Trust Office, including any
managing director, vice president, principal, assistant vice president,
assistant treasurer, assistant secretary or any other officer of the Property
Trustee customarily performing functions similar to those performed by any of
the above designated officers and having direct responsibility for the
administration of the Indenture, and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer’s
knowledge of and familiarity with the particular subject.


 


“Securities Act” means the Securities Act of 1933, as amended,
and any successor statute thereto, in each case as amended from time to time.


 


“Senior Indebtedness” has the meaning specified in the
Indenture.


 


“Securities Register” and “Securities Registrar” have the
respective meanings specified in Section 5.5.


 


“Special Event” means any Tax Event, Capital Treatment Event or
Investment Company Event.


 


“Successor Preferred Capital Securities Certificate” of any
particular Preferred Capital Securities Certificate means every Preferred
Capital Securities Certificate issued after, and evidencing all or a portion of
the same beneficial interest in the Issuer Trust as that evidenced by, such
particular Preferred Capital Securities Certificate; and, for the purposes of
this definition, any Preferred Capital Securities Certificate executed and
delivered under Section 5.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Preferred Capital Securities Certificate shall be
deemed to evidence the same beneficial interest in the Issuer Trust as the
mutilated, destroyed, lost or stolen Preferred Capital Securities Certificate.


 


“Successor Preferred Capital Securities” has the meaning
specified in Section 9.5.


 


“Tax Event” means the receipt by the Issuer Trust of an Opinion
of Counsel experienced in such matters to the effect that, as a result of any
amendment to, or change


 


15

















 


(including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, or as a result of any official or
administrative pronouncement or action or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement, action or decision is announced on or after the date of
issuance of the Preferred Capital Securities (including, without limitation,
any of the foregoing arising with respect to, or resulting from, any proceeding
or other action commencing on or before such date), there is more than an
insubstantial risk that (i) the Issuer Trust is, or will be within 90 days
of the delivery of such Opinion of Counsel, subject to United States federal
income tax with respect to income received or accrued on the Junior
Subordinated Debentures, (ii) interest payable by the Depositor on the Junior
Subordinated Debentures is not, or within 90 days of the delivery of such
Opinion of Counsel will not be, deductible by the Depositor, in whole or in
part, for United States federal income tax purposes, or (iii) the Issuer
Trust is, or will be within 90 days of the delivery of such Opinion of Counsel,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.


 


“Time of Delivery” means any initial and subsequent Closing Date
for the delivery of the Preferred Capital Securities pursuant to an
Underwriting Agreement.


 


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


 


“Trust Indenture Act” means the Trust Indenture Act of 1939 or
any successor statute, in each case as amended from time to time.


 


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


 


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


 


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


 


“Underwriting Agreement” means, collectively, all underwriting,
purchase, agency or similar agreements executed by or on behalf of, the
Depositor, the Issuer Trust and the Owners with an underwriter, purchaser,
agent or similar party.


 


16

















 


ARTICLE II


 


CONTINUATION OF THE ISSUER TRUST


 


SECTION 2.1. Name.


 


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


 


SECTION 2.2. Office of the Delaware
Trustee; Principal Place of Business.


 


The address of the Delaware Trustee in the State of Delaware is
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890, Attention: Corporate Trust Administration, or such
other address in the State of Delaware as the Delaware Trustee may designate by
written notice to the Holders and the Depositor. The principal executive office
of the Issuer Trust is in care of SCBT Financial Corporation, 520 Gervais
Street, Columbia, South Carolina,
Attention:[                        ],
as such address may be changed from time to time by the Administrators
following written notice to the Holders and the other Trustees.


 


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


 


The Property Trustee acknowledges receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of $10.00, which
constitutes the initial Trust Property. The Depositor shall pay all
organizational expenses of the Issuer Trust as they arise or shall, upon
request of any Issuer Trustee, promptly reimburse such Issuer Trustee for any
such expenses paid by such Issuer Trustee. The Depositor shall make no claim
upon the Trust Property for the payment of such expenses.


 


SECTION 2.4. Issuance of the Preferred
Capital Securities.


 


The Depositor, both on its own behalf and on behalf of the Issuer Trust
pursuant to the Original Trust Agreement, executed and delivered the
Underwriting Agreement. Contemporaneously with the execution and delivery of
this Trust Agreement, an Administrator, on behalf of the Issuer Trust, shall
execute in accordance with Section 5.3 and the Property Trustee shall
authenticate in accordance with Section 5.3 and deliver to the
[underwriters named in the Underwriting Agreement] [Clearing Agency or its
custodian], a Global Preferred Capital Securities Certificate, registered in
the name of
[                        ]
and such other clearing agencies as the Depositor may designate, in an
aggregate amount of
[                        ]
Preferred Capital Securities having an aggregate Liquidation Amount of
$[                        ],
against receipt of the aggregate purchase price in cash of such Preferred
Capital Securities of
$[                        ]
by the Property Trustee. Contemporaneously with any subsequent closing pursuant
to an Underwriting Agreement or a reopening of the offering of Preferred
Capital Securities hereunder, an Administrator on behalf of the Issuer Trust,
shall execute in accordance with Section 5.3 and the Property Trustee
shall authenticate in accordance with Section 5.3 and deliver to the
[underwriters named in the Underwriting Agreement] [Clearing Agency or its
custodian], a Global Preferred Capital Securities


 


17

















 


Certificate, registered in the name of
[                        ]
and such other clearing agencies as the Depositor may designate, having an
aggregate Liquidation Amount equal to the aggregate Liquidation Amount of
additional Preferred Capital Securities to be sold at such time, against
receipt by the Property Trustee of the aggregate purchase price in cash equal
to the Liquidation Amount of such Preferred Capital Securities.


 


SECTION 2.5. Issuance of the Common
Securities; Subscription and Purchase of Junior Subordinated Debentures.


 


Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrator, on behalf of the Issuer Trust, shall execute in
accordance with Section 5.3 and the Property Trustee shall authenticate
and shall deliver to the Depositor, Common Securities Certificates, registered
in the name of the Depositor, having an aggregate Liquidation Amount of
$[                        ]
against receipt of the aggregate purchase price in cash of such Common
Securities of
$[                        ]
by the Property Trustee. Contemporaneously therewith, an Administrator, on
behalf of the Issuer Trust, shall subscribe for and purchase from the Depositor
the Junior Subordinated Debentures, registered in the name of Wilmington Trust
Company, not in its individual capacity, but solely as Property Trustee for the
Issuer Trust, and having an aggregate principal amount equal to
$[                        ],
and, in satisfaction of the purchase price for such Junior Subordinated
Debentures, the Property Trustee, on behalf of the Issuer Trust, shall deliver
to the Depositor the sum of
$[                        ]
(being the sum of the amounts delivered to the Property Trustee pursuant to (i) the
second sentence of Section 2.4, and (ii) the first sentence of this Section 2.5)
and receive on behalf of the Issuer Trust the Junior Subordinated Debentures.
Contemporaneously with any subsequent closing pursuant to an Underwriting
Agreement or a reopening of the offering of Preferred Capital Securities
hereunder, an Administrator, on behalf of the Issuer Trust, shall execute in
accordance with Section 5.3 and the Property Trustee shall authenticate
and shall deliver to the Depositor, Common Securities Certificates, registered
in the name of the Depositor, such issuance to be made against receipt by the
Property Trustee of the aggregate purchase price in cash of such Common
Securities at their Liquidation Amount. Contemporaneously therewith, an
Administrator, on behalf of the Issuer Trust, shall subscribe for and purchase
from the Depositor the Junior Subordinated Debentures, registered in the name
of Wilmington Trust Company, not in its individual capacity, but solely as
Property Trustee for the Issuer Trust, and having an aggregate principal amount
equal to the sum of the additional Preferred Capital Securities and Common
Securities, and, in satisfaction of the purchase price for such Junior
Subordinated Debentures, the Property Trustee, on behalf of the Issuer Trust,
shall deliver to the Depositor cash equal to the total Liquidation Amount of
the new issuance of Preferred Capital Securities and Common Securities (being
the sum of the amounts delivered to the Property Trustee pursuant to (i) the
third sentence of Section 2.4, and (ii) the third sentence of this Section 2.5)
and receive the Junior Subordinated Debentures on behalf of the Issuer Trust.


 


SECTION 2.6. Authorization to Issue
Additional Trust Securities; Authorization to Subscribe and Purchase Additional
Junior Subordinated Debentures.


 


During the period ending 90 days following the date of any offering
documents for the offer and sale of Preferred Capital Securities, the
Administrators, acting unanimously on


 


18

















 


behalf of the Issuer Trust, at their discretion, may cause the Issuer
Trust to issue additional Preferred Capital Securities and Common Securities on
the same terms and in the manner and relative proportions set forth in Sections
2.4 and 2.5; provided, however, that any such additional issuance of Trust
Securities shall occur contemporaneously with the issuance by the Depositor of
additional Junior Subordinated Debentures on the same terms and in the manner
set forth in Section 2.5, which shall be subscribed for and purchased by
an Administrator on behalf of the Issuer Trust, having a principal amount equal
to the aggregate Liquidation Amount of the additional Trust Securities to be
issued. The amount of any issuance of additional Trust Securities by the Issuer
Trust, or of additional Junior Subordinated Debentures by the Depositor, is
unlimited.


 


SECTION 2.7. Declaration of Trust.


 


The exclusive purposes and functions of the Issuer Trust are to (a) issue
and sell Trust Securities and use the proceeds from such sale to acquire the
Junior Subordinated Debentures, and (b) engage in only those other
activities necessary, convenient or incidental thereto. The Depositor hereby
appoints the Issuer Trustees as trustees of the Issuer Trust, to have all the
rights, powers and duties to the extent set forth herein, and the Issuer
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 Issuer Trust and the Holders. The
Depositor hereby appoints the Administrators, with such Administrators having
all rights, powers and duties set forth herein with respect to accomplishing
the purposes of the Issuer Trust, and the Administrators hereby accept such
appointment; provided, however, that it is the intent of the parties hereto
that such Administrators shall not be trustees or, to the fullest extent
permitted by law, fiduciaries with respect to the Issuer Trust and this Trust
Agreement shall be construed in a manner consistent with such intent. The
Property Trustee shall have the right and power (but shall not be obligated) to
perform those duties assigned to the Administrators. The Delaware Trustee, in such
capacity, shall not be entitled to exercise any powers, nor shall the Delaware
Trustee, in such capacity, have any of the duties and responsibilities, of the
Property Trustee or the Administrators set forth herein. The Delaware Trustee,
in such capacity, shall be one of the trustees of the Issuer Trust for the sole
and limited purpose of fulfilling the requirements of Section 3807 of the
Delaware Statutory Trust Act and for taking such actions as are required to be
taken by a Delaware trustee under the Delaware Statutory Trust Act.


 


SECTION 2.8. Authorization to Enter into
Certain Transactions.


 


(a)                                  The
Issuer Trustees and the Administrators shall conduct the affairs of the Issuer
Trust in accordance with the terms of this Trust Agreement. Subject to the
limitations set forth in paragraph (b) of this Section and in
accordance with the following provisions (i), (ii) and (iii), the Issuer
Trustees and the Administrators shall act as follows:


 


(i)                                     each
Administrator, acting jointly or singly, shall:


 


(A)                              comply with the
Underwriting Agreement regarding the issuance and sale of the Trust Securities;


 


19

















 


(B)                                assist in compliance
with the Securities Act, applicable state securities or blue sky laws, and the
Trust Indenture Act;


 


(C)                                assist in the listing
of the Preferred Capital Securities upon such securities exchange or exchanges,
if any, as shall be determined by the Depositor, with the registration of the
Preferred Capital Securities under the Exchange Act, if required or if
requested by the Depositor, and the preparation and filing of all periodic and
other reports and other documents pursuant to the foregoing;


 


(D)                               execute the Trust
Securities on behalf of the Issuer Trust in accordance with this Trust Agreement;


 


(E)                                 execute and deliver an
application for a taxpayer identification number for the Issuer Trust;


 


(F)                                 assist in the filing
with the Commission, at such time as determined by the Depositor, any
registration statement, if any, under the Securities Act relating to the Trust
Securities, including any amendments thereto;


 


(G)                                unless otherwise
required by the Trust Indenture Act, execute on behalf of the Issuer Trust any
documents that the Administrators have the power to execute pursuant to this
Trust Agreement, including without limitation, the Debenture Purchase Agreement
and the Common Securities Purchase Agreement; and


 


(H)                               take any action
incidental to the foregoing as necessary or advisable to give effect to the
terms of this Trust Agreement.


 


(ii)                                  The Property Trustee
shall have the power and authority to act on behalf of the Issuer Trust with
respect to the following matters:


 


(A)                              the establishment of the
Payment Account;


 


(B)                                the receipt of the
Junior Subordinated Debentures;


 


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


 


(D)                               the distribution of
amounts owed to the Holders in respect of the Trust Securities;


 


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


 


20














 


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


 


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


 


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


 


(I)                                    after an Event of
Default (other than under paragraph (2), (3), (4), or (5) of the
definition of such term if such Event of Default is by or with respect to the
Property Trustee), comply with the provisions of this Trust Agreement and take
any action to give effect to the terms of this Trust Agreement and 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);


 


provided, however, that nothing in this Section 2.8(a)(ii) shall
require the Property Trustee to take any action that is not otherwise required
in this Trust Agreement.


 


(iii)                               The Administrators shall
comply with the listing requirements of the Preferred Capital Securities upon
such securities exchange or exchanges, if any, as shall be determined by the
Depositor, the registration of the Preferred Capital Securities under the
Exchange Act, if required or if requested by the Depositor, and the preparation
and filing of all periodic and other reports and other documents pursuant to
the foregoing.


 


(b)                                 So
long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer
Trustees or Administrators acting on behalf of the Issuer Trust) shall not
undertake any business, activity or transaction except as expressly provided
herein or contemplated hereby. In particular, neither the Issuer Trustees nor
the Administrators shall (i) acquire any investments or engage in any
activities not authorized by this Trust Agreement, (ii) sell, assign,
transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of
the Trust Property or interests therein, including to Holders, except as
expressly provided herein, (iii) ensure that neither the Depositor nor the
Holders will instruct them to take any action that would cause the Issuer Trust
to become taxable other than as a grantor trust for United States Federal
income tax purposes, (iv) incur any indebtedness for borrowed money or
issue any other debt, or (v) take or consent to any action that would
result in the placement of a Lien on any of the Trust Property, except as
expressly provided herein. The Property Trustee shall defend, to the fullest
extent permitted by law, and at the expense of the Depositor, 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 Issuer Trust or the Holders in their
capacity as Holders.


 


21

















 


(c)                                  In
connection with the issue and sale of the Preferred Capital Securities, the
Depositor shall have the right and responsibility to assist the Issuer Trust
with respect to, or effect on behalf of the Issuer 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,
execution and filing with the Commission of a registration statement on the
appropriate form under the Securities Act or the preparation of offering
documents in reliance on one or more exemptions from registration under the
Securities Act with respect to the Preferred Capital Securities;


 


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


 


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


 


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


 


(d)                                 Notwithstanding
anything herein to the contrary, the Administrators are authorized and directed
to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so
that the Issuer Trust will not be deemed to be an “investment company” required
to be registered under the Investment Company Act, and will not be taxable
other than as a grantor trust for United States Federal income tax purposes and
so that the Junior Subordinated Debentures will be treated as indebtedness of
the Depositor for United States Federal income tax purposes. In this connection,
the Property Trustee and the Holders of Common Securities are authorized to
take any action, not inconsistent with applicable law, the Certificate of Trust
or this Trust Agreement, that the Administrators and Holders of Common
Securities determine in their discretion to be necessary or desirable for such
purposes, as long as such action does not adversely affect in any material
respect the interests of the Holders of the Outstanding Preferred Capital
Securities. In no event shall the Administrators or the Issuer Trustees be
liable to the Issuer Trust or the Holders for any failure to comply with this Section that
results from a change in law or regulations or in the interpretation thereof.


 


SECTION 2.9. Assets of Trust.


 


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


 


22

















 


SECTION 2.10. 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 Issuer Trust and the Holders in
accordance with this Trust Agreement.


 


ARTICLE III


 


PAYMENT ACCOUNT


 


SECTION 3.1. Payment Account.


 


(a)                                  At
or prior to the Closing Date, the Property Trustee shall establish the Payment
Account. The Property Trustee and its agents 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.


 


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


 


ARTICLE IV


 


DISTRIBUTIONS; REDEMPTION


 


SECTION 4.1. Distributions.


 


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


 


(i)                                     Distributions on
the Trust Securities shall be cumulative and will accumulate whether or not
there are funds of the Issuer Trust available for the payment of Distributions.
Distributions shall accumulate from the date of issue of the Trust Securities,
and, except in the event (and to the extent) that the Depositor exercises its
right to defer the payment of interest on the Junior Subordinated Debentures
pursuant to the Indenture, shall be payable [quarterly in arrears on the
      day of
      ,       ,
      , and       of
each year, commencing on       .] If any date on
which a Distribution is otherwise payable on the Trust Securities is not a
Business Day, then the payment of such Distribution shall be made on the next
succeeding day that is a Business Day


 


23

















 


(without any additional Distributions or other payment in respect of
any such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on the date on
which such payment was originally payable (each date on which distributions are
payable in accordance with this Section 4.I(a), a “Distribution Date”).


 


(ii)                                  The Trust Securities
shall be entitled to Distributions payable at a fixed rate or floating rate
determined and payable as set forth in Exhibit D hereto. The amount
of Distributions payable for any period shall include any Additional Amounts in
respect of such period.


 


(iii)                               [So long as no Debenture
Event of Default has occurred and is continuing, the Depositor has the right
under the Indenture to defer the payment of interest on the Junior Subordinated
Debentures at any time and from time to time for a period not exceeding 20
consecutive quarterly periods (an “Extension Period”), provided that no Extension Period may extend beyond [Date 30
years after first Distribution Date], or end on a date that is not a scheduled
interest payment date. As a consequence of any such deferral, quarterly
Distributions on the Trust Securities by the Issuer Trust will also be deferred
and the amount of Distributions to which Holders of the Trust Securities are
entitled will accumulate additional Distributions thereon at the rate set forth
in Exhibit D hereto to the extent permitted by applicable law, from
the relevant payment date for such Distributions, computed in the same manner
as set forth for Distributions in subsection 4.1(a)(ii) immediately above.
The term “Distributions” as used in Section 4.1 shall include any such
additional Distributions provided pursuant to this Section 4.1(a)(iii).]


 


(iv)                              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
Issuer Trust has funds then on hand and available in the Payment Account for
the payment of such Distributions.


 


(b)                                 Distributions
on the Trust Securities with respect to a Distribution Date shall be payable to
the Holders thereof as they appear on the Securities Register for the Trust
Securities at the close of business on the relevant record date, which shall be
at the close of business on the fifteenth day of the month in which the
relevant Distribution Date occurs (or if such date is not a Business Day, the
immediately preceding Business Day).


 


SECTION 4.2. Redemption.


 


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


 


(b)                                 Notice
of redemption shall be given by the Property Trustee by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date


 


24

















 


to each Holder of Trust Securities to be redeemed, at such Holder’s
address appearing in the Securities Register. All notices of redemption shall
state:


 


(i)                                     the Redemption
Date;


 


(ii)                                  the Redemption Price,
or if the Redemption Price cannot be calculated prior to the time the notice is
required to be sent, the estimate of the Redemption Price provided pursuant to
the Indenture together with a statement that it is an estimate and that the
actual Redemption Price will be calculated on the third Business Day prior to
the Redemption Date (and if an estimate is provided, a further notice shall be
sent of the actual Redemption Price on the date, or as soon as practicable
thereafter, that notice of such actual Redemption Price is received pursuant to
the Indenture);


 


(iii)                               the CUSIP number or
CUSIP numbers of the Preferred Capital Securities affected;


 


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


 


(v)                                 that on the Redemption
Date, the Redemption Price will become due and payable upon each such Trust
Security to be redeemed and that Distributions thereon will cease to accumulate
on and after said date, except as provided in Section 4.2(d) below;
and


 


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


 


The Issuer Trust in issuing the Trust Securities may use “CUSIP” or “private
placement” numbers (if then generally in use), and, if so, the Property Trustee
shall indicate the “CUSIP” or “private placement” numbers of the Trust
Securities in notices of redemption and related materials as a convenience to
Holders; provided, that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Trust Securities or as contained in any notice of redemption and
related material.


 


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


 


(d)                                 If
the Issuer Trust gives a notice of redemption in respect of any Preferred
Capital Securities, then, by 12:00 noon, Eastern Time, on the Redemption Date,
subject to Section 4.2(c), the Property Trustee will, with respect to
Preferred Capital Securities held in global form, irrevocably deposit with the
Clearing Agency for such Preferred Capital Securities, to the extent available
therefor, funds sufficient to pay the applicable Redemption


 


25

















 


Price and will give such Clearing Agency irrevocable instructions and
authority to pay the Redemption Price to the Holders of the Preferred Capital
Securities. With respect to Preferred Capital Securities that are not held in
global form, if any, the Property Trustee, subject to Section 4.2(c), will
irrevocably deposit with the Paying Agent, to the extent available therefor,
funds sufficient to pay the applicable Redemption Price and will give the
Paying Agent irrevocable instructions and authority to pay the Redemption Price
to the Holders of the Preferred Capital Securities upon surrender of their
Preferred Capital Securities Certificates. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any Trust
Securities called for redemption shall be payable to the Holders of such Trust
Securities as they appear on the Securities Register for the Trust Securities
on the relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then, upon
the date of such deposit, all rights of Holders holding Trust Securities so
called for redemption will cease, except the right of such Holders to receive
the Redemption Price and any Distribution payable in respect of the Trust
Securities on or prior to the Redemption Date, but without interest, and such
Trust Securities will cease to be Outstanding. In the event that any date on
which any applicable Redemption Price is payable is not a Business Day, then
payment of the applicable Redemption Price payable on such date will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
falls in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case, with the same force and effect as if made
on such date. In the event that payment of the Redemption Price in respect of
any Trust Securities called for redemption is improperly withheld or refused
and not paid either by the Issuer Trust or by the Depositor pursuant to the
Guarantee, Distributions on such Trust Securities will continue to accumulate,
as set forth in Section 4.1 and in accordance with the continued accrual
of interest on the Junior Subordinated Debentures, from the Redemption Date
originally established by the Issuer Trust for such Trust Securities to the
date such applicable Redemption Price is actually paid, in which case the
actual payment date will be the date fixed for redemption for purposes of
calculating the applicable Redemption Price.


 


(e)                                  Subject
to Section 4.3(a), if less than all the Outstanding Trust Securities are
to be redeemed on a Redemption Date, then the aggregate Liquidation Amount of
such Trust Securities to be redeemed shall be allocated pro rata
to the Common Securities and the Preferred Capital Securities based on the
relative aggregate Liquidation Amounts of such classes. The particular
Preferred Capital Securities to be redeemed shall be selected on a pro rata
basis based on their respective Liquidation Amounts not more than 60 days prior
to the Redemption Date by the Property Trustee from the Outstanding Preferred
Capital Securities not previously called for redemption, or if the Preferred
Capital Securities are then held in the form of a Global Preferred Security in
accordance with the customary procedures for the Clearing Agency. The Property
Trustee shall promptly notify the Securities Registrar in writing of the
aggregate Liquidation Amount of Preferred Capital Securities to be redeemed and
the particular Preferred Capital Securities selected for redemption. For all
purposes of this Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Capital Securities shall relate,
in the case of any Preferred Capital


 


26

















 


Securities redeemed, to the portion of the aggregate Liquidation Amount
of Preferred Capital Securities that has been or is to be redeemed.


 


SECTION 4.3. Subordination of Common
Securities.


 


(a)                                  Payment
of Distributions (including Additional Amounts, if applicable) on, the
Redemption Price of, and the Liquidation Distribution in respect of, the Trust
Securities, as applicable, shall be made, as set forth in Section 4.2(e),
pro rata among the Common Securities and the Preferred Capital Securities based
on the Liquidation Amount of such Trust Securities; provided,
however, that if on any Distribution Date or Redemption Date any
Event of Default resulting from a Debenture Event of Default in Sections 5.1(1) or
5.1(2) of the Indenture shall have occurred and be continuing, no payment
of any Distribution (including any Additional Amounts) on, Redemption Price of,
or Liquidation Distribution in respect of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of
Common Securities, shall be made, unless payment in full in cash of all
accumulated and unpaid Distributions (including any Additional Amounts) on all
Outstanding Preferred Capital Securities for all Distribution periods
terminating on or prior thereto, or, in the case of payment of the Redemption
Price, the full amount of such Redemption Price on all Outstanding Preferred
Capital Securities then called for redemption, or in the case of payment of the
Liquidation Distribution, the full amount of such Liquidation Distribution on
all Outstanding Preferred Capital Securities, shall have been made or provided
for, and all funds immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions (including any
Additional Amounts) on, or the Redemption Price of, or Liquidation Distribution
in respect of, Preferred Capital Securities then due and payable. The existence
of an Event of Default does not entitle the Holders of Preferred Capital
Securities to accelerate the maturity thereof.


 


(b)                                 In
the case of the occurrence of any Event of Default resulting from any Debenture
Event of Default, the Holder of the Common Securities shall be deemed to have
waived any right to act with respect to any such Event of Default under this
Trust Agreement until the effects of all such Events of Default with respect to
the Preferred Capital Securities have been cured, waived or otherwise eliminated.
Until all such Events of Default under this Trust Agreement with respect to the
Preferred Capital Securities have been so cured, waived or otherwise
eliminated, to the fullest extent permitted by applicable law, the Property
Trustee shall act solely on behalf of the Holders of the Preferred Capital
Securities and not on behalf of the Holder of the Common Securities, and only
the Holders of the Preferred 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 any Additional Amounts) in respect
of the Preferred 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 or, if the Preferred Capital Securities are held by a Clearing Agency,
such Distributions shall be made to the Clearing Agency in immediately
available funds, which will credit the relevant accounts on the applicable
Distribution Dates. Payments in respect of the Common Securities shall be made
in


 


27

















 


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
and information returns and reports required to be filed by or in respect of
the Issuer Trust. In this regard, the Administrators shall (a) prepare and
file (or cause to be prepared and filed) all Internal Revenue Service forms
required to be filed in respect of the Issuer Trust in each taxable year of the
Issuer Trust and (b) prepare and furnish (or cause to be prepared and
furnished) to each Holder all Internal Revenue Service forms required to be
provided by the Issuer Trust. The Administrators shall provide the Depositor
and the Property Trustee with a copy of all such returns and reports promptly
after such filing or furnishing. The Issuer Trustees 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.


 


On or before December 15 of each year during which any Preferred
Capital Securities are Outstanding, the Administrators shall furnish to the
Paying Agent such information as may be reasonably requested by the Property
Trustee in order that the Property Trustee may prepare the information which it
is required to report for such year on Internal Revenue Service Forms 1096 and
1099 pursuant to Section 6049 of the Code. Such information shall include
the amount of original issue discount includable in income for each Outstanding
Preferred Capital Security during such year, if any.


 


SECTION 4.6. Payment of Taxes, Duties,
Etc. of the Issuer Trust.


 


Upon receipt under the Junior Subordinated Debentures of Additional
Sums, the Property Trustee shall promptly pay out of such Additional Sums any
taxes, duties or governmental charges of whatsoever nature (other than
withholding taxes) imposed on the Issuer Trust by the United States or any
other taxing authority and actually known to a Responsible Officer of the
Property Trustee.


 


SECTION 4.7. Payments under Indenture or
Pursuant to Direct Actions.


 


Any amount payable hereunder to any Holder of Preferred Capital
Securities shall be reduced by the amount of any corresponding payment such
Holder (or Owner) has directly received pursuant to Section 5.8 of the
Indenture or Section 5.13 of this Trust Agreement.


 


SECTION 4.8. Liability of the Holder of
Common Securities.


 


The Holder of Common Securities shall be liable for the debts and
obligations of the Issuer Trust as set forth in Section 6.6 of the
Indenture regarding allocation of expenses.


 


28

















 


ARTICLE V


 


TRUST SECURITIES CERTIFICATES


 


SECTION 5.1. Initial Ownership.


 


Upon the creation of the Issuer Trust and the contribution by the
Depositor pursuant to Section 2.3 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are Outstanding,
the Depositor shall be the sole beneficial owner of the Issuer Trust.


 


SECTION 5.2. The Trust Securities
Certificates.


 


(a)                                  The
Trust Securities Certificates shall be issued in fully registered form. The
Trust Securities Certificates shall be executed on behalf of the Issuer 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 Issuer 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 5.5.


 


(b)                                 Upon
their original issuance, Preferred Capital Securities Certificates shall be
issued in the form of one or more Global Preferred Capital Securities
Certificates, registered in the name of
[                        ]
as the Depositary’s nominee and deposited with or on behalf of Depositary for
credit by Depositary to the respective accounts of the Owners thereof (or such
other accounts as they may direct). Except as set forth herein, record
ownership of the Global Preferred Capital Securities may be transferred, in
whole or in part, only to another nominee of Depositary or to a successor of
the Depository or its nominee.


 


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


 


SECTION 5.3. Execution and Delivery of
Trust Securities Certificates.


 


At the Time of Delivery, an Administrator shall execute, on behalf of
the Trust, Trust Securities Certificates, in an aggregate Liquidation Amount as
provided in Sections 2.4, 2.5 and 2.6, and deliver such Trust Securities
Certificates to the Property Trustee for authentication. Upon such delivery,
the Property Trustee shall authenticate such Trust Securities Certificates and
deliver such Trust Securities Certificates in authorized denominations upon the
written order of the Trust, executed by an Administrator thereof, without
further corporate action by the Depositor.


 


SECTION 5.4. Global Preferred Capital
Securities.


 


(a)                                  The
Global Preferred Capital Security issued under this Trust Agreement shall be
registered in the name of
[                        ],
as the nominee of the Clearing Agency and


 


29

















 


delivered to such custodian therefor, or, in the name of and delivered
to such other Clearing Agencies as the Depositor may direct, and such Global
Preferred Capital Security shall constitute a single Preferred Capital Security
for all purposes of this Trust Agreement.


 


(b)                                 Notwithstanding
any other provision in this Trust Agreement, the Global Preferred Capital
Security may not be exchanged in whole or in part for registered Preferred
Capital Securities, and no transfer of the Global Preferred Capital Security in
whole or in part may be registered, in the name of any Person other than the
Clearing Agency for such Global Preferred Capital Security,
[                        ],
or other nominee thereof or of other Clearing Agencies unless: (i) such
Clearing Agency advises the Depositor and the Property Trustee in writing that
such Clearing Agency is no longer willing or able to properly discharge its
responsibilities as the Clearing Agency with respect to such Global Preferred
Capital Security, and the Depositor is unable to locate a qualified successor
within 90 days, (ii) at any time the Depositary ceases to be a Clearing
Agency registered as such under the Exchange Act, or (iii) the Depositor
on behalf of the Issuer Trust at its option advises the Depositary in writing
that it elects to terminate the book-entry system through the Clearing Agency.


 


(c)                                  If
the Global Preferred Capital Security is to be exchanged or canceled in whole,
it shall be surrendered by or on behalf of the Clearing Agency or its nominee
to the Securities Registrar for exchange or cancellation as provided in this Article V.
If the Global Preferred Capital Security is to be exchanged or canceled in
part, or if another Preferred Capital Security is to be exchanged in whole or
in part for a beneficial interest in the Global Preferred Capital Security, then
either: (i) such Global Preferred Capital Security shall be so surrendered
for exchange or cancellation as provided in this Article V, or (ii) the
Liquidation Amount thereof shall be reduced or increased by an amount equal to
the portion thereof to be so exchanged or canceled or equal to the Liquidation
Amount of such other Preferred Capital Security to be so exchanged for a
beneficial interest therein, as the case may be, by means of an appropriate
adjustment made on the records of the Securities Registrar, whereupon the
Property Trustee, in accordance with the Applicable Procedures, shall instruct
the Clearing Agency or its authorized representative to make a corresponding
adjustment to its records. Upon any such surrender or adjustment of the Global Preferred
Capital Security by the Clearing Agency, accompanied by registration
instructions, the Property Trustee shall, subject to Section 5.4(b) and
as otherwise provided in this Article V, authenticate and deliver any
Preferred Capital Securities as instructed by the Administrators, issuable in
exchange for such Global Preferred Capital Security (or any portion thereof) in
accordance with the instructions of the Clearing Agency. The Property Trustee
shall not be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be fully protected in relying on, such
instructions.


 


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


 


30














 


(e)           The Clearing Agency
or its nominee, as the registered owner of the Global Preferred Capital
Security, shall be considered the Holder of the Preferred Capital Securities
represented by the Global Preferred Capital Security for all purposes under
this Trust Agreement and the Preferred Capital Securities, and Owners of
beneficial interests in the Global Preferred Capital Security shall hold such
interests pursuant to the Applicable Procedures and, except as otherwise
provided herein, shall not be entitled to have any of the individual Preferred
Capital Securities represented by the Global Preferred Capital Security
registered in their names, shall not receive nor be entitled to receive
physical delivery of any such Preferred Capital Securities in definitive form
and shall not be considered the Holders thereof under this Trust Agreement.
Accordingly, any such Owner’s beneficial interest in the Global Preferred
Capital Security shall be shown only on, and the transfer of such interest
shall be effected only through, records maintained by the Clearing Agency or
its nominee. Neither the Property Trustee nor the Securities Registrar shall
have any liability in respect of any transfers effected by the Clearing Agency.


 


(f)            The rights of
Owners of beneficial interests in the Global Preferred Capital Security shall
be exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Owners and the Clearing Agency.


 


SECTION 5.5. Registration of Transfer
and Exchange of Preferred Capital Securities Certificates.


 


(a)           The Property Trustee
shall keep or cause to be kept at its Corporate Trust Office a register or
registers (the “Securities Register”) for the purpose of registering
Preferred Capital Securities Certificates and Common Securities Certificates
and transfers and exchanges of Preferred Capital Securities Certificates and
Common Securities Certificates and acting as the registrar and transfer agent
with respect to the Preferred Capital Securities and Common Securities
Certificates (the “Securities Registrar”), subject to such reasonable
regulations as it may prescribe, and shall provide for the registration of
Preferred Capital Securities Certificates and Common Securities Certificates
(subject to Section 5.11 in the case of Common Securities Certificates) in
the Securities Register. The Property Trustee is hereby appointed Securities
Registrar.


 


Upon surrender for registration of transfer of any Preferred Capital
Securities Certificate at the offices or agencies of the Property Trustee
designated for that purpose, the Administrators shall execute, and the Property
Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Preferred Capital Securities Certificates
of the same series of any authorized denominations of like tenor and aggregate
principal amount and bearing such restrictive legends as may be required by
this Trust Agreement.


 


At the option of the Holder, Preferred Capital Securities Certificates
may be exchanged for other Preferred Capital Securities Certificates of any
authorized denominations, of like tenor and aggregate Liquidation Amount and
bearing such restrictive legends as may be required by this Trust Agreement
upon surrender of the Preferred Capital Securities Certificates to be exchanged
at such office or agency of the Property Trustee. Whenever any 


 


31

















 


securities are so surrendered for exchange, the Administrators shall
execute and the Property Trustee shall authenticate and deliver the Preferred
Capital Securities Certificates that the Holder making the exchange is entitled
to receive.


 


All Preferred Capital Securities issued upon any transfer or exchange
of Preferred Capital Securities shall be the valid obligations of the Issuer
Trust, evidencing the same obligations, and entitled to the same benefits under
this Trust Agreement, as the Preferred Capital Securities surrendered upon such
transfer or exchange.


 


Every Preferred Capital Securities Certificate presented or surrendered
for transfer or exchange shall (if so required by the Property Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Property Trustee and the Securities Registrar, duly
executed by the Holder thereof or such Holder’s attorney duly authorized in
writing.


 


No service charge shall be made to a Holder for any transfer or
exchange of Preferred Capital Securities Certificates, but the Property Trustee
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Preferred Capital Securities Certificates.


 


Neither the Issuer Trust nor the Property Trustee shall be required, pursuant
to the provisions of this Section: (i) to issue, register the transfer of,
or exchange any Preferred Capital Securities Certificates during a period
beginning at the opening of 15 Business Days before the day of selection for
redemption of Preferred Capital Securities pursuant to Article IV and
ending at the close of business on the day of mailing of the notice of
redemption, or (ii) to register the transfer of or exchange any Preferred
Capital Security so selected for redemption in whole or in part, except, in the
case of any such Preferred Capital Security to be redeemed in part, any portion
thereof not to be redeemed.


 


(b)           Certain Transfers
and Exchanges. Notwithstanding any other provision of this Trust Agreement,
transfers and exchanges of Preferred Capital Securities and beneficial
interests in a Global Preferred Capital Security shall be made only in
accordance with this Section 5.


 


(c)           Exchanges Between
Global Preferred Capital Security and Non-Global Preferred Capital Security.
A beneficial interest in the Global Preferred Capital Security may be exchanged
for a Preferred Capital Security that is not a Global Preferred Capital
Security only as provided in Section 5.4.


 


SECTION 5.6. Mutilated, Destroyed, Lost
or Stolen Trust Securities Certificates.


 


If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the
Securities Registrar and the Administrators such security, indemnity and/or
other assurance as may be required by them, in their discretion, to save each
of them harmless, then 


 


32

















 


in the absence of notice that such Trust Securities Certificate shall
have been acquired by a protected purchaser, the Administrators, or any one of
them, on behalf of the Issuer Trust shall execute and make available for
delivery, and the Property Trustee shall authenticate, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class, tenor and
denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section, 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 5.6 shall
constitute conclusive evidence of an undivided beneficial interest in the
assets of the Issuer Trust corresponding to that evidenced by the lost, stolen
or destroyed Trust Securities Certificate, as if originally issued, whether or
not the lost, stolen or destroyed Trust Securities Certificate shall be found
at any time.


 


SECTION 5.7. Persons Deemed Holders.


 


The Issuer Trustees and the Securities Registrar shall treat the Person
in whose name any Trust Securities are issued as the sole owner of such Trust
Securities for the purpose of receiving Distributions and for all other
purposes whatsoever, and none of the Issuer Trustees, the Administrators or the
Securities Registrar shall be bound by any notice to the contrary.


 


SECTION 5.8. Access to List of Holders’
Names and Addresses.


 


Each Holder and each Owner 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 5.9. Maintenance of Office or
Agency.


 


The Property Trustee shall designate, with the consent of the
Administrators, which consent shall not be unreasonably withheld, an office or
offices or agency or agencies where Preferred Capital Securities Certificates
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Issuer Trustees in respect of the Trust Securities Certificates
may be served. The Property Trustee initially designates its Corporate Trust
Office as its corporate trust office for such purposes. The Property Trustee
shall give prompt written notice to the Depositor, the Administrators and to
the Holders of any change in the location of the Securities Register or any
such office or agency.


 


SECTION 5.10. Appointment of 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 and the Administrators. Any Paying Agent shall have the revocable power
to withdraw funds from the Payment Account solely for the purpose of making the
Distributions referred to above. The Property Trustee may revoke such power and
remove any Paying Agent in its sole discretion. The Paying Agent shall
initially be the Property Trustee. Any Person acting as Paying Agent shall be
permitted to resign as Paying Agent upon 30 days’ written notice to the
Administrators and 


 


33

















 


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 Property Trustee shall appoint a successor
(which shall be a bank or trust company) that is reasonably acceptable to the
Administrators to act as Paying Agent. Such successor Paying Agent or any
additional Paying Agent appointed by the Administrators shall execute and
deliver to the Issuer Trustees an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Issuer Trustees that as
Paying Agent, such successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the 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 Sections
8.1, 8.3 and 8.6 herein shall apply to the Bank also in its role as Paying
Agent, for so long as the Bank 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
chosen by the Property Trustee, unless the context requires otherwise.


 


SECTION 5.11. Ownership of Common
Securities by Depositor.


 


At Time of Delivery, the Depositor shall acquire and retain beneficial
and record ownership of the Common Securities. Neither the Depositor nor any
successor Holder of the Common Securities may transfer less than all the Common
Securities, and the Depositor or any such successor Holder may transfer the
Common Securities only (i) in connection with a consolidation or merger of
the Depositor into another Person or any conveyance, transfer or lease by the
Depositor of its properties and assets substantially as an entirety to any
Person, pursuant to Section 8.1 of the Indenture, or (ii) to an
Affiliate of the Depositor in compliance with applicable law (including the
Securities Act and applicable state securities and blue sky laws); provided
that any such transfer shall be subject to the condition that the transferor
shall have obtained (A) either a ruling from the Internal Revenue Service
or an unqualified written Opinion of Counsel by a firm experienced in such
matters addressed to the Issuer Trust and delivered to the Issuer Trustees to
the effect that such transfer will not (1) cause the Issuer Trust to be
treated as issuing a class of interests in the Issuer Trust differing from the
class of interests represented by the Common Securities originally issued to
the Depositor, (2) result in the Issuer Trust acquiring or disposing of,
or being deemed to have acquired or disposed of, an asset, or (3) result
in or cause the Issuer Trust to be treated as anything other than a grantor
trust for United States Federal income tax purposes and (B) an unqualified
written Opinion of Counsel by a firm experienced in such matters addressed to
the Issuer Trust and delivered to the Issuer Trustees to the effect that such
transfer will not cause the Issuer Trust to be an “investment company” or
controlled by an “investment company” that is required to be registered under
the Investment Company Act. To the fullest extent permitted by law, any
attempted transfer of the Common Securities, other than as set forth in the
immediately preceding sentence, shall be void. The Administrators shall cause
each Common Securities Certificate issued to the Depositor to contain a legend
stating “THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH
APPLICABLE LAW AND SECTION 5.11 OF THE TRUST AGREEMENT”


 


34

















 


SECTION 5.12. Notices to Clearing
Agency.


 


To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, with respect to Preferred Capital Securities
represented by Global Preferred Capital Securities Certificates, the
Administrators and the Issuer Trustees shall give all such notices and
communications specified herein to be given to the Clearing Agency, and shall
have no obligations to give such notice or other communication to the Owners.


 


SECTION 5.13. 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 2.10, and the Holders shall
not have any right or title therein other than the undivided beneficial
ownership interest in the assets of the Issuer 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 Issuer Trust, except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust
Securities shall have no preemptive or similar rights, and when issued and
delivered to Holders against payment of the purchase price therefor, as
provided herein, will be, and will be deemed to be, validly issued, fully paid,
nonassessable, and entitled to the benefits of this Trust Agreement. Except as
otherwise provided in Section 4.8, the Holders of the Trust Securities, in
their capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Laws of the State of Delaware.


 


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


 


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


 


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


 


(A)          all
overdue installments of interest on all of the Junior Subordinated Debentures,


 


35

















 


(B)           any
accrued Additional Interest on all of the Junior Subordinated Debentures,


 


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


 


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


 


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


 


If the Property Trustee fails to annul any such declaration and waive
such default, the Holders of at least a Majority in Liquidation Amount of the
Preferred Capital Securities shall also have the right to rescind and annul
such declaration and its consequences by written notice to the Depositor, the
Property Trustee and the Indenture Trustee, subject to the satisfaction of the
conditions set forth in clauses (i) and (ii) of this Section 5.13(b).


 


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


 


Upon receipt by the Property Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, by Holders of the
Preferred Capital Securities, all or part of which is represented by the Global
Preferred Capital Securities Certificate, a record date shall be established
for determining Holders of Outstanding Preferred Capital Securities entitled to
join in such notice, which record date shall be at the close of business on the
day the Property Trustee receives such notice. The Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled to
join in such notice, whether or not such Holders remain Holders after such
record date; provided that, unless such declaration of acceleration, or
rescission and annulment, as the case may be, shall have become effective by
virtue of the requisite percentage having joined in such notice prior to the
day which is 90 days after such record date, such notice of declaration of
acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder 


 


36

















 


be canceled and of no further effect. Nothing in this paragraph shall
prevent a Holder, or a proxy of a Holder, from giving, after expiration of such
90-day period, a new written notice of declaration of acceleration, or
rescission and annulment thereof, as the case may be, that is identical to a
written notice which has been canceled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established pursuant to the
provisions of this Section 5.13(b).


 


(c)           For so long as any
Preferred Capital Securities remain Outstanding, to the fullest extent
permitted by law and subject to the terms of this Trust Agreement and the
Indenture, upon a Debenture Event of Default specified in Section 5.1(1) or
5.1(2) of the Indenture, any Holder of Preferred Capital Securities shall
have the right to institute a proceeding directly against the Depositor,
pursuant to Section 5.8 of the Indenture, for enforcement of payment to
such Holder of the principal amount of or interest on Junior Subordinated
Debentures having an aggregate principal amount equal to the aggregate
Liquidation Amount of the Preferred Capital Securities of such Holder (a “Direct
Action”). Except as set forth in Sections 5.13(b) and 5.13(c), the
Holders of Preferred Capital Securities shall have no right to exercise
directly any right or remedy available to the holders of, or in respect of, the
Junior Subordinated Debentures.


 


ARTICLE VI


 


ACTS OF HOLDERS; MEETINGS; VOTING


 


SECTION 6.1. Limitations on Holders’
Voting Rights.


 


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


 


(b)           So long as any
Junior Subordinated Debentures are held by the Property Trustee on behalf of
the Issuer Trust, the Property Trustee shall not (i) direct the time,
method and place of conducting any proceeding for any remedy available to the
Indenture Trustee, or execute any trust or power conferred on the Property
Trustee with respect to such Junior Subordinated Debentures, (ii) waive
any past default that may be waived under Section 5.13 of the Indenture, (iii) exercise
any right to rescind or annul a declaration that the principal of all the Junior
Subordinated Debentures shall be due and payable or (iv) consent to any
amendment, modification or termination of the Indenture or the Junior
Subordinated Debentures, where such consent shall be required, without, in each
case, obtaining the prior approval of the Holders of at least a Majority in
Liquidation Amount of the Preferred Capital Securities, provided, however, that
where a consent under the Indenture would require the consent of each holder of
Junior Subordinated Debentures affected thereby, no such consent shall be given
by the Property Trustee without the prior written consent of each Holder of
Preferred Capital Securities. The Property Trustee shall not revoke any action
previously 


 


37

















 


authorized or approved by a vote of the Holders of Preferred Capital
Securities, except by a subsequent vote of the Holders of Preferred Capital
Securities. The Property Trustee shall notify all Holders of the Preferred
Capital Securities of any notice of default received with respect to the Junior
Subordinated Debentures. In addition to obtaining the foregoing approvals of
the Holders of the Preferred Capital Securities, prior to taking any of the
foregoing actions, the Property Trustee shall, at the expense of the Depositor,
receive an Opinion of Counsel experienced in such matters to the effect that
such action will not cause the Issuer Trust to be taxable other than as a
grantor trust for United States Federal income tax purposes.


 


(c)           If any proposed
amendment to the Trust Agreement provides for, or the Issuer Trust otherwise
proposes to effect, (i) any action that would adversely affect in any
material respect the interests, powers, preferences or special rights of the
Preferred Capital Securities, whether by way of amendment to the Trust
Agreement or otherwise, or (ii) the dissolution, winding-up or termination
of the Issuer Trust, other than pursuant to the terms of this Trust Agreement,
then the Holders of Outstanding Trust Securities as a class will be entitled to
vote on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a Majority in
Liquidation Amount of the Preferred Capital Securities. Notwithstanding any
other provision of this Trust Agreement, no amendment to this Trust Agreement
may be made if, as a result of such amendment, it would cause the Issuer Trust
to be taxable other than as a grantor trust for United States Federal income
tax purposes.


 


SECTION 6.2. Notice of Meetings.


 


Notice of all meetings of the Holders, stating the time, place and
purpose of the meeting, shall be given by the Property Trustee pursuant to Section 10.8
to each Holder of record, at his registered address, at least 15 days and not
more than 90 days before the meeting. At any such meeting, any business
properly before the meeting may be so considered whether or not stated in the
notice of the meeting. Any adjourned meeting may be held as adjourned without
further notice.


 


SECTION 6.3. Meetings of Holders.


 


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


 


Holders of at least a Majority in Liquidation Amount of the Preferred
Capital Securities, present in person or represented by proxy, shall constitute
a quorum at any meeting of Holders of the Preferred Capital Securities.


 


If a quorum is present at a meeting, an affirmative vote by the Holders
of record present, in person or by proxy, holding Preferred Capital Securities
representing at least a 


 


38

















 


Majority in Liquidation Amount of the Preferred Capital Securities held
by the Holders present, either in person or by proxy, at such meeting shall
constitute the action of the Holders of Preferred Capital Securities, unless
this Trust Agreement requires a greater number of affirmative votes.


 


SECTION 6.4. Voting Rights.


 


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


 


SECTION 6.5. Proxies, etc.


 


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


 


SECTION 6.6. Holder Action by Written
Consent.


 


Any action that may be taken by Holders at a meeting may be taken
without a meeting and without prior notice if Holders holding at least a
Majority in Liquidation Amount of all Trust Securities entitled to vote in
respect of such action (or such larger proportion thereof as shall be required
by any other provision of this Trust Agreement) shall consent to the action in
writing.


 


SECTION 6.7. Record Date for Voting and
Other Purposes.


 


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


 


39

















 


SECTION 6.8. 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 evidenced thereby) are herein sometimes referred to as an “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 Issuer Trustees, if made in the manner provided in
this Section.


 


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


 


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


 


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 Issuer
Trustees, the Administrators or the Issuer Trust in reliance thereon, whether
or not notation of such action is made upon such Trust Security.


 


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


 


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


 


40














 


SECTION 6.9. Inspection of Records.


 


Upon reasonable notice to the Administrators and the Property Trustee,
the records of the Issuer 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 as to itself, hereby represents and warrants for the benefit of the
Depositor and the Holders that:


 


(a)           The Property Trustee
is a banking corporation with trust powers, duly organized, validly existing
and in good standing under the laws of the State of Delaware with the trust
powers and authority to execute and deliver, and to carry out and perform its
obligations under the terms of this Trust Agreement.


 


(b)           The execution,
delivery and performance by the Property Trustee of this Trust Agreement have
been duly authorized by all necessary corporate action on the part of the
Property Trustee; and this Trust Agreement has been duly executed and delivered
by the Property Trustee, and constitutes a legal, valid and binding obligation
of the Property Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, receivership,
conservatorship, moratorium, insolvency, and other similar laws affecting
creditors’ rights generally and to general principles of equity and the discretion
of the court (regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law).


 


(c)           The execution,
delivery and performance of this Trust Agreement by the Property Trustee do not
conflict with or constitute a breach of the certificate of incorporation or
by-laws of the Property Trustee.


 


(d)           At Time of Delivery,
the Property Trustee has not knowingly created any Liens on the Trust
Securities.


 


(e)           No consent, approval
or authorization of, or registration with or notice to, any state or federal
banking authority is required for the execution, delivery or performance by the
Property Trustee, of this Trust Agreement.


 


(f)            The Delaware
Trustee is duly organized, validly existing and in good standing under the laws
of the State of Delaware, with the trust powers and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, this
Trust Agreement.


 


(g)           The execution,
delivery and performance by the Delaware Trustee of this Trust Agreement have
been duly authorized by all necessary corporate action on the part of the
Delaware Trustee; and this Trust Agreement has been duly executed and delivered
by the 


 


41

















 


Delaware Trustee, and constitutes a legal, valid and binding obligation
of the Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, receivership,
conservatorship, moratorium, insolvency, and other similar laws affecting
creditors’ right generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such remedies
is considered in a proceeding in equity or at law).


 


(h)           The execution,
delivery and performance of this Trust Agreement by the Delaware Trustee do not
conflict with or constitute a breach of the certificate of incorporation or
by-laws of the Delaware Trustee.


 


(i)            No consent,
approval or authorization of, or registration with or notice to any state or
Federal banking authority is required for the execution, delivery or
performance by the Delaware Trustee, of this Trust Agreement.


 


(j)            The Delaware
Trustee is an entity that has its principal place of business in the State of
Delaware.


 


SECTION 7.2. Representations and
Warranties of Depositor.


 


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


 


(a)           The Trust Securities
Certificates issued at Time of Delivery on behalf of the Issuer Trust have been
duly authorized and will have been duly and validly executed, and, subject to
payment therefor, issued and delivered by the Issuer Trustees 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; and


 


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


 


ARTICLE VIII


 


THE ISSUER TRUSTEES; THE ADMINISTRATORS


 


SECTION 8.1. Certain Duties and
Responsibilities.


 


(a)           The duties and
responsibilities of the Issuer Trustees and the Administrators shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Trust Agreement shall require the Issuer Trustees or the Administrators to
expend or risk their own funds or otherwise incur any financial liability in
the performance of any of their duties hereunder, or in the exercise of any of
their rights or powers, if they shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is 


 


42

















 


not reasonably assured to it. Whether or not herein expressly so
provided, every provision of this Trust Agreement relating to the conduct or
affecting the liability of or affording protection to the Issuer Trustees or
the Administrators shall be subject to the provisions of this Section. Nothing
in this Trust Agreement shall be construed to release an Administrator or an
Issuer Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct. To the extent that, at law or in
equity, an Issuer Trustee or Administrator has duties and liabilities relating
to the Issuer Trust or to the Holders, such Issuer Trustee or Administrator
shall not be liable to the Issuer Trust or to any Holder for such Issuer
Trustee’s or 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 Issuer Trustees and
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
Issuer Trustees and Administrators.


 


(b)           All payments made by
the Property Trustee or a Paying Agent in respect of the Trust Securities shall
be made only from the revenue and proceeds from the Trust Property and only to
the extent that there shall be sufficient revenue or proceeds from the Trust
Property to enable the Property Trustee or a Paying Agent to make payments in
accordance with the terms hereof. Each 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 neither the Issuer Trustees nor the Administrators are personally
liable to it for any amount distributable in respect of any Trust Security or
for any other liability in respect of any Trust Security. This Section 8.1(b) does
not limit the liability of the Issuer Trustees expressly set forth elsewhere in
this Trust Agreement or, in the case of the Property Trustee, in the Trust
Indenture Act.


 


(c)           The Property
Trustee, before the occurrence of any Event of Default and after the curing of
all Events of Default that may have occurred, shall undertake to perform only such
duties as are specifically set forth in this Trust Agreement (including
pursuant to Section 10.10), and no implied covenants shall be read into
this Trust Agreement against the Property Trustee. If an Event of Default has
occurred (that has not been cured or waived pursuant to Section 5.13 of
the Indenture), the Property Trustee shall enforce this Trust Agreement for the
benefit of the Holders and 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 its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs. The Property Trustee
shall not be deemed to have notice or knowledge of any Event of Default unless
a Responsible Officer of the Property Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is received
by the Property Trustee at the Corporate Trust Office of the Property Trustee,
and such notice references the Trust Securities and this Trust Agreement.


 


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


 


43

















 


(i)            prior
to the occurrence of any Event of Default and after the curing or waiving of
all such Events of Default that may have occurred:


 


(A)          the
duties and obligations of the Property Trustee shall be determined solely by
the express provisions of this Trust Agreement (including pursuant to Section 10.10),
and the Property Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Trust Agreement
(including pursuant to Section 10.10); and


 


(B)           in
the absence of bad faith on the part of the Property Trustee, the Property
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Property Trustee and conforming, on their face, to
the requirements of this Trust Agreement; but in the case of any such
certificates or opinions that by any provision hereof or of the Trust Indenture
Act are specifically required to be furnished to the Property Trustee, the
Property Trustee shall be under a duty to examine the same to determine whether
or not they conform, on their face, to the requirements of this Trust
Agreement;


 


(ii)           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;


 


(iii)          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 at least a Majority in Liquidation Amount of the Preferred Capital
Securities relating to the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee, or exercising any trust or
power conferred upon the Property Trustee under this Trust Agreement;


 


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


 


(v)           the
Property Trustee shall not be liable for any interest on any money received by
it; and money held by the Property Trustee need not be segregated from other
funds held by it except in relation to the Payment Account maintained by the
Property Trustee pursuant to Section 3.1 and except to the extent
otherwise required by law;


 


(vi)          the
Property Trustee shall not be responsible for monitoring the compliance by the
Administrators or the Depositor with their respective duties under 


 


44

















 


this Trust Agreement, nor shall the Property Trustee be liable for the
default or misconduct of any other Issuer Trustee, the Administrators or the
Depositor; and


 


(vii)         no
provision of this Trust Agreement shall require the Property Trustee to expend
or risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers, if the Property Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably assured to it
under the terms of this Trust Agreement or adequate indemnity against such risk
or liability is not reasonably assured to it.


 


(e)           The Administrators
shall not be responsible for monitoring the compliance by the Issuer Trustees
or the Depositor with their respective duties under this Trust Agreement, nor
shall any Administrator be liable for the default or misconduct of any other
Administrator, the Issuer Trustees or the Depositor.


 


SECTION 8.2. Certain Notices.


 


(a)           Within thirty
Business Days after the occurrence of any Event of Default actually known to a
Responsible Officer of the Property Trustee, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.8, notice
of such Event of Default to the Holders and the Administrators, unless such
Event of Default shall have been cured or waived.


 


(b)           Within five Business
Days after the receipt of written notice of the Depositor’s exercise of its
right to defer the payment of interest on the Junior Subordinated Debentures
pursuant to the Indenture, the Property Trustee shall transmit, in the manner
and to the extent provided in Section 10.8, notice of such exercise to the
Holders and the Administrators, unless such exercise shall have been revoked.


 


SECTION 8.3. Certain Rights of Property
Trustee.


 


Subject to the provisions of Section 8.1:


 


(a)           the Property Trustee
may conclusively rely and shall be fully protected in acting or refraining from
acting in good faith upon any resolution, Opinion of Counsel, certificate,
written representation of a Holder or transferee, certificate of auditors or
any other certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond, debenture, note, other evidence of
indebtedness or other paper or document (including e-mail, facsimile or other
electronic transmission) believed by it to be genuine and to have been signed
or presented by the proper party or parties (without being required to
determine the correctness of any fact stated therein);


 


(b)           any direction or act
of the Depositor contemplated by this Trust Agreement shall be sufficiently
evidenced by an Officers’ Certificate;


 


45

















 


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


 


(d)           the Property Trustee
may consult with counsel of its own choosing (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;


 


(e)           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 satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction; provided that nothing contained in this Section 8.3(e) shall
be taken to relieve the Property Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers vested in it by
this Trust Agreement;


 


(f)            the Property
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, debenture, note or other
evidence of indebtedness or other paper or document, unless requested in
writing to do so by one or more Holders, but the Property Trustee may make such
further inquiry or investigation into such facts or matters as it may see fit;


 


(g)           the Property Trustee
may execute any of the trusts or powers hereunder or perform any of its duties
hereunder either directly or by or through its agents or attorneys, provided
that the Property Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;


 


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


 


(i)            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.


 


46

















 


No provision of this Trust Agreement shall be deemed to impose any duty
or obligation on any Issuer Trustee or Administrator 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 any Issuer Trustee or
Administrator 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 Issuer Trust, and neither the Issuer
Trustees nor the Administrators assume any responsibility for their correctness.
The Issuer Trustees and the Administrators shall not be accountable for the use
or application by the Depositor of the proceeds of the Junior Subordinated
Debentures.


 


SECTION 8.5. May Hold Securities.


 


The Depositor, the Administrators, any Issuer Trustee or any other
agent of any Issuer Trustee or the Issuer Trust, in its individual or any other
capacity, may become the owner or pledgee of Trust Securities and, subject to
Sections 5.5(c), 8.8 and 8.13 and except as provided in the definition of the
term “Outstanding” in Article I, may otherwise deal with the Issuer Trust
with the same rights it would have if it were not the Depositor, an
Administrator, Issuer Trustee or such other agent.


 


SECTION 8.6. Compensation; Indemnity;
Fees.


 


The Depositor agrees:


 


(a)           to pay to the Issuer
Trustees from time to time reasonable compensation for all services rendered by
them hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);


 


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


 


(c)           to the fullest
extent permitted by applicable law, to indemnify and hold harmless (i) each
Issuer Trustee, (ii) each Administrator, (iii) any Affiliate of any
Issuer Trustee, (iv) any officer, director, shareholder, employee,
representative or agent of any Issuer Trustee, and (v) any employee or
agent of the Issuer Trust, (referred to herein as an “Indemnified Person”)
from and against any loss, damage, liability, tax, penalty, expense or claim of
any kind or nature whatsoever incurred by such Indemnified Person arising out
of or in connection with the creation, operation or dissolution of the Issuer
Trust or any act or omission performed 


 


47

















 


or omitted by such Indemnified Person in good faith on behalf of the
Issuer Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this
Trust Agreement, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of negligence or willful misconduct with respect
to such acts or omissions.


 


The provisions of this Section 8.6 shall survive the termination
of this Trust Agreement and the resignation or removal of the Indemnified
Persons.


 


The obligation of the Depositor under this Section 8.6 to
compensate, reimburse and indemnify the Issuer Trustees shall be secured by a
Lien upon all Trust Property (except funds held in trust for the benefit of
Holders of particular Trust Securities), but only to the extent of the interest
of the Holder of the Common Securities therein.


 


Notwithstanding any duty otherwise existing at law or in equity, (i) the
Depositor, any Administrator and any Issuer 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 Issuer Trust, and
the Issuer 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 Issuer Trust, shall not be deemed
wrongful or improper, (ii) neither the Depositor, any Administrator, nor
any Issuer Trustee shall be obligated to present any particular investment or
other opportunity to the Issuer Trust even if such opportunity is of a
character that, if presented to the Issuer Trust, could be taken by the Issuer
Trust, and the Depositor, any Administrator or any Issuer 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, and (iii) any Issuer Trustee may engage or be interested in
any financial or other transaction with the Depositor or any Affiliate of the
Depositor, or may act as depository for, trustee or agent for, or act on any
committee or body of holders of, securities or other obligations of the
Depositor or its Affiliates.


 


SECTION 8.7. Corporate Property Trustee
Required; Eligibility of Trustees 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 a national or state chartered bank
and eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Property Trustee with
respect to the Trust Securities shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article VIII.


 


48

















 


(b)           There shall at all
times be one or more Administrators hereunder. 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. An
employee, officer or Affiliate of the Depositor may serve as an Administrator.


 


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


 


SECTION 8.8. Conflicting Interests.


 


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


 


(b)           The Guarantee and
the Indenture shall be deemed to be sufficiently described in this Trust
Agreement for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.


 


SECTION 8.9. Co-Trustees and Separate
Trustee.


 


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


 


49

















 


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


 


(a)           The Trust Securities
shall be executed by one or more Administrators, and the Trust Securities shall
be authenticated and delivered by the Property Trustee and all rights, powers,
duties, and obligations hereunder in respect of the custody of securities, cash
and other personal property held by, or required to be deposited or pledged
with, the Property Trustee specified hereunder, shall be exercised, solely by
the Property Trustee 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 and such
co-trustee or separate trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the extent that under
any law of any jurisdiction in which any particular act is to be performed, the
Property Trustee shall be incompetent or unqualified to perform such act, in
which event such rights, powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee.


 


(c)           The Property Trustee
at any time, by an instrument in writing executed by it, with the written
concurrence of the Depositor, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section, and, in case a
Debenture Event of Default has occurred and is continuing, the Property Trustee
shall have power to accept the resignation of, or remove, any such co-trustee
or separate trustee without the concurrence of the Depositor. Upon the written
request of the Property Trustee, the Depositor shall join with the Property
Trustee in the execution, delivery and performance of all instruments and
agreements necessary or proper to effectuate such resignation or removal. A
successor to any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section 8.9.


 


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


 


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


 


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


 


SECTION 8.10. Resignation and Removal;
Appointment of Successor.


 


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


 


50














 


Subject to the immediately preceding paragraph, a Relevant Trustee may
resign at any time by giving written notice thereof to the Holders. The Holder
of the Common Securities shall appoint a successor by requesting from at least
three Persons meeting the eligibility requirements such Persons’ expenses and
charges to serve as the successor trustee on a form provided by the
Administrators, and selecting the Person who agrees to the lowest expenses and
charges. If the instrument of acceptance by the successor trustee required by Section 8.11
shall not have been delivered to the Relevant Trustee within 30 days after the
giving of such notice of resignation, the Relevant Trustee may petition, at the
expense of the Issuer Trust, any court of the State of Delaware for the
appointment of a successor Relevant Trustee.


 


The Property Trustee or the Delaware Trustee may be removed at any time
(i) for cause (including upon the occurrence of an Event of Default
described in subparagraph (5) of the definition thereof with respect to
the Relevant Trustee) by the Holder of the Common Securities, or (ii) if a
Debenture Event of Default shall have occurred and be continuing at any time,
by Act of the Holders of at least a Majority in Liquidation Amount of the
Preferred Capital Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Issuer Trust).


 


If a Relevant Trustee shall be removed or become incapable of acting as
Issuer Trustee, or if any vacancy shall occur in the office of any Issuer
Trustee for any cause, the Holder of the Common Securities shall promptly
appoint a successor Relevant Trustee or Trustees, and such successor Issuer
Trustee shall comply with the applicable requirements of Section 8.11,
provided, however, if a Debenture Event of Default shall have occurred and be
continuing at such time, the Holders of the Preferred Capital Securities, by
Act of the Holders of record of not less than 25% in aggregate Liquidation
Amount of the Preferred Capital Securities then Outstanding delivered to such
Relevant Trustee, shall appoint such successor trustee. If no successor trustee
shall have been so appointed by the Holder of the Common Securities or the
Holders of the Preferred Capital Securities, as applicable, or shall not have
accepted appointment in the manner required by Section 8.11 hereof, any
Holder, on behalf of himself and all others similarly situated, or any other
Issuer Trustee, may petition any court in the State of Delaware for the
appointment of a successor trustee.


 


The Property Trustee shall give notice of each resignation and each
removal of a Relevant 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 and to the Administrators. Each notice shall include the name
of the Relevant Trustee and the address of its Corporate Trust Office if it is
the Property Trustee.


 


Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Delaware Trustee who is a natural person dies or
becomes, in the opinion of the Holder of the Common Securities, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by the Property Trustee following the procedures regarding
expenses and charges set forth above (with the successor in each case being a
Person who satisfies the eligibility requirements for the Delaware Trustee, as
the case may be, set forth in Section 8.7).


 


51

















 


SECTION 8.11. Acceptance of Appointment
by Successor.


 


In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each such successor Relevant Trustee (if
requested by the Depositor) with respect to the Trust Securities shall execute,
acknowledge and deliver an amendment hereto wherein each successor Relevant
Trustee shall accept such appointment and which (a) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Trust Securities
and the Issuer Trust, and (b) shall add to or change any of the provisions
of this Trust Agreement as shall be necessary to provide for or facilitate the
administration of the Issuer Trust by more than one Relevant Trustee, it being
understood that nothing herein or in such amendment shall constitute such
Relevant Trustee a co-trustee, and upon the execution and delivery of such
amendment, the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor
Relevant Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Relevant
Trustee; but, on request of the Issuer Trust or any successor Relevant Trustee
such retiring Relevant Trustee shall duly assign, transfer and deliver to such
successor Relevant Trustee all Trust Property, all proceeds thereof and money
held by such retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Issuer Trust.


 


Upon request of any such successor Relevant Trustee, the Issuer 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 preceding paragraph.


 


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


 


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


 


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


 


SECTION 8.13. Preferential Collection of
Claims Against Depositor or Issuer Trust.


 


If and when the Property Trustee shall be or become a creditor of the
Depositor (or any other obligor upon the Trust Securities), the Property
Trustee shall be subject to the provisions 


 


52

















 


of the Trust Indenture Act regarding the collection of claims against
the Depositor (or any such other obligor) only if this Trust Agreement is
subject to the Trust Indenture Act.


 


SECTION 8.14. Trustee May File
Proofs of Claim.


 


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


 


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


 


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


 


Nothing contained herein 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 8.15. Reports by Property
Trustee.


 


(a)           Not later than January 31
of each year commencing with January 31,
20      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; and


 


(ii)           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 


 


53

















 


the performance of its duties hereunder which it has not previously
reported and which in its opinion materially affects the Trust Securities.


 


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


 


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


 


SECTION 8.16. Reports to the Property
Trustee.


 


The Depositor and the Administrators on behalf of the Issuer Trust
shall provide to the Property Trustee such documents, reports and information
as required or specified by Section 314 of the Trust Indenture Act (if any
and to the extent applicable) and the compliance certificate required or
specified by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times set forth in Section 314 of the Trust
Indenture Act. The Depositor and the Administrators shall annually file with
the Property Trustee a certificate specifying whether such Person is in
compliance with all the terms and covenants applicable to such Person
hereunder.


 


SECTION 8.17. Evidence of Compliance
with Conditions Precedent.


 


Each of the Depositor and the Administrators on behalf of the Issuer
Trust shall provide to the Property Trustee such evidence of compliance with
any conditions precedent, if any, provided for in this Trust Agreement that
relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) of the Trust Indenture Act shall be
given in the form of an Officers’ Certificate.


 


SECTION 8.18. Number of Issuer Trustees.


 


(a)           The number of Issuer
Trustees shall be two; provided, however,
the Property Trustee and the Delaware Trustee may be the same Person, in which
case, the number of Issuer Trustees may be one.


 


(b)           If an Issuer Trustee
ceases to hold office for any reason, a vacancy shall occur. The vacancy shall
be filled with an Issuer Trustee appointed in accordance with Section 8.10.


 


(c)           The death,
resignation, retirement, removal, bankruptcy, incompetence or incapacity to
perform the duties of an Issuer Trustee shall not operate to dissolve,
terminate or annul the Issuer Trust or terminate this Trust Agreement.


 


SECTION 8.19. 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 


 


54

















 


executing any documents contemplated in Section 2.8(a) or
making any governmental filing; and


 


(b)           The Administrators
shall have power to delegate from time to time to such of their number the
doing of such things and the execution of such instruments either in the name
of the Issuer 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.


 


SECTION 8.20. Appointment of
Administrators.


 


(a)           The Administrators
shall be appointed by the Holder of the Common Securities and may be removed by
the Holder of the Common Securities or may resign at any time. Upon any
resignation or removal, the Holder of the Common Securities shall appoint a
successor Administrator. Each Administrator shall execute this Trust Agreement
thereby agreeing to comply with, and be legally bound by, all of the terms,
conditions and provisions of this Trust Agreement. If at any time there is no
Administrator, the Property Trustee or any Holder who has been a 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 8.20,
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.


 


(c)           Notwithstanding the
foregoing, or any other provision of this Trust Agreement, in the event any
Administrator who is a natural person dies or becomes, in the opinion of the
Holder of the Common Securities, incompetent, or incapacitated, the vacancy
created by such death, incompetence or incapacity may be appointed by the
Holder of the Common Securities (with the successor being a Person who
satisfies the eligibility requirement for Administrators set forth in Section 8.7).


 


Except as otherwise provided in this Trust Agreement, or by applicable
law, any one Administrator may execute any document or otherwise take any
action that the Administrators are authorized to take under this Trust
Agreement.


 


ARTICLE IX


 


DISSOLUTION,
LIQUIDATION AND MERGER


 


SECTION 9.1. Dissolution Upon Expiration
Date.


 


Unless earlier dissolved, the Issuer Trust shall automatically dissolve
on [Date 45 years from first distribution date,
20      ] (the “Expiration Date”), and
thereafter the Trust Property shall be distributed in accordance with Section 9.4.


 


55

















 


SECTION 9.2. Early Dissolution.


 


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


 


(a)           the occurrence of
the appointment of a receiver or other similar official in any liquidation,
insolvency or similar proceeding with respect to the Depositor or all or
substantially all of its property, or entry by a court or other governmental
agency of a decree or order and such decree or order shall remain unstayed and
undischarged for a period of 60 days, unless the Depositor shall transfer the
Common Securities as provided by Section 5.11, in which case this
provision shall refer instead to any such successor Holder of the Common
Securities;


 


(b)           the written
direction to the Property Trustee from the Holder of the Common Securities at
any time to dissolve the Issuer Trust and, after paying or making reasonable
provision to pay all charges and obligations of the Issuer Trust in accordance
with Section 3808(e) of the Delaware Statutory Trust Act, to
distribute the Junior Subordinated Debentures to Holders in exchange for the
Trust Securities (which direction, subject to Section 9.4(a), is optional
and wholly within the discretion of the Holder of the Common Securities);


 


(c)           the repayment of all
of the Preferred Capital Securities in connection with the repayment at
maturity or redemption of all the Junior Subordinated Debentures, including,
without limitation, a redemption of the Junior Subordinated Debentures upon a
Special Event; and


 


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


 


SECTION 9.3. Termination.


 


As soon as is practicable after the occurrence of an event referred to
in Section 9.1 or 9.2, and upon the completion of the winding-up and
liquidation of the Issuer Trust, the Administrators and the Issuer Trustees
(each of whom is hereby authorized to take such action) shall file a
certificate of cancellation with the Secretary of State of the State of
Delaware terminating the Issuer Trust and, upon such filing, the respective
obligations and responsibilities of the Issuer Trustees, the Administrators and
the Issuer Trust created and continued hereby shall terminate.


 


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 Issuer Trust shall be wound-up and
liquidated by the Property Trustee as expeditiously as the Property Trustee
determines to be possible by distributing, after paying or making reasonable
provision to pay all claims and obligations of the Issuer Trust in accordance
with Section 3808(e) of the Delaware Statutory Trust Act, to each
Holder a Like Amount of Junior Subordinated Debentures, subject to Section 9.4(d).
Notice of liquidation shall be given by the Property Trustee by first-class
mail, postage 


 


56

















 


prepaid, mailed not later than 15 nor more than 45 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 Junior
Subordinated Debentures; and


 


(iii)          provide
such information with respect to the mechanics by which Holders may exchange
Trust Securities Certificates for Junior Subordinated Debentures, or if Section 9.4(d) applies
receive a Liquidation Distribution, as the Administrators or the Property
Trustee shall deem appropriate.


 


(b)           Except where Section 9.2(c) or
9.4(d) applies, in order to effect the liquidation of the Issuer Trust and
distribution of the Junior Subordinated Debentures to Holders, the Property
Trustee shall establish a record date for such distribution (which shall be not
more than 30 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 Junior Subordinated Debentures in exchange for the Outstanding
Trust Securities Certificates.


 


(c)           Except where Section 9.2(c) or
9.4(d) applies, after the Liquidation Date, (i) the Trust Securities
will no longer be deemed to be Outstanding, (ii) the Clearing Agency for
the Preferred Capital Securities or its nominee, as the registered Holder of
the Global Preferred Capital Securities Certificates, shall receive a
registered global certificate or certificates representing the Junior
Subordinated Debentures to be delivered upon such distribution with respect to
Preferred Capital Securities held by the Clearing Agency or its nominee, and (iii) any
Trust Securities Certificates not held by the Clearing Agency for the Preferred
Capital Securities or its nominee as specified in clause (ii) above will
be deemed to represent Junior Subordinated Debentures having a principal amount
equal to the stated Liquidation Amount of the Trust Securities represented
thereby and bearing accrued and unpaid interest in an amount equal to the
accumulated and unpaid Distributions on such Trust Securities until such
certificates are presented to the Securities Registrar for transfer or
reissuance.


 


(d)           If, notwithstanding
the other provisions of this Section 9.4, whether because of an order for
dissolution entered by a court of competent jurisdiction or otherwise,
distribution of the Junior Subordinated Debentures is not practical, or if any
Early Termination Event specified in clause (c) of Section 9.2
occurs, the Issuer Trust shall be dissolved, and the Trust Property shall be
liquidated, by the Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution of the Issuer Trust,
Holders will be entitled to receive out of the assets of the Issuer Trust
available for distribution to Holders, after paying or making reasonable
provision to pay all claims and obligations of the Issuer Trust in accordance
with Section 3808(e) of the Delaware Statutory Trust Act, an amount 


 


57

















 


equal to the aggregate of Liquidation Amount per Trust Security plus
accumulated and unpaid Distributions thereon to the date of payment (such
amount being the “Liquidation Distribution”). If, upon any such
dissolution, the Liquidation Distribution can be paid only in part because the
Issuer Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding sentence, the
amounts payable by the Issuer Trust on the Trust Securities shall be paid on a
pro rata basis (based upon Liquidation Amounts). The Holder of the Common
Securities will be entitled to receive Liquidation Distributions upon any such
dissolution, pro rata (determined as aforesaid) with Holders of Preferred
Capital Securities, except that, if a Debenture Event of Default in Sections
5.1(1) or 5.1(2) of the Indenture has occurred and is continuing, the
Preferred Capital Securities shall have a priority over the Common Securities
as provided in Section 4.3.


 


SECTION 9.5. Mergers, Consolidations,
Amalgamations or Replacements of the Issuer Trust.


 


The Issuer 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 entity, except pursuant to this Section 9.5
or Section 9.4. At the request of the Holder of the Common Securities, and
with the consent of the Holders of at least a Majority in Liquidation Amount of
the Preferred Capital Securities, but without the consent of the Issuer
Trustees, the Issuer Trust may merge with or into, consolidate, amalgamate, or
be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such under the laws of any
state; provided that (i) such successor
entity either (a) expressly assumes all of the obligations of the Issuer
Trust with respect to the Preferred Capital Securities or (b) substitutes
for the Preferred Capital Securities other securities having substantially the
same terms as the Preferred Capital Securities (the “Successor Preferred
Capital Securities”) so long as the Successor Preferred Capital Securities
have the same priority as the Preferred Capital Securities with respect to
distributions and payments upon liquidation, redemption and otherwise, (ii) a
trustee of such successor entity possessing the same powers and duties as the
Property Trustee is appointed to hold the Junior Subordinated Debentures, (iii) such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not cause the Preferred Capital Securities (including any Successor
Preferred Capital Securities) to be downgraded by any nationally recognized
statistical rating organization, if such Preferred Capital Securities have been
rated by such nationally recognized statistical rating organization, (iv) such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the holders
of the Preferred Capital Securities (including any Successor Preferred Capital
Securities) in any material respect, (v) such successor entity has a
purpose substantially identical to that of the Issuer Trust, (vi) prior to
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, the Issuer Trust has received an Opinion of Counsel from a firm
experienced in such matters to the effect that (a) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does
not adversely affect the rights preferences and privileges of the holders of
the Preferred Capital Securities (including any Successor Preferred Capital
Securities) in any material respect, and (b) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or 


 


58

















 


lease, neither the Issuer Trust nor such successor entity will be
required to register as an “investment company” under the Investment Company
Act and (vii) the Depositor or any permitted transferee to whom it has
transferred the Common Securities hereunder owns all of the common securities
of such successor entity and guarantees the obligations of such successor
entity under the Preferred Capital Securities or Successor Preferred Capital
Securities at least to the extent provided by the Guarantee. Notwithstanding
the foregoing, the Issuer Trust shall not, except with the consent of Holders
of 100% in Liquidation Amount of the Preferred Capital Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to, any other entity or
permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Issuer Trust or the successor
entity to be taxable other than as a grantor trust for United States Federal
income tax purposes.


 


ARTICLE X


 


MISCELLANEOUS PROVISIONS


 


SECTION 10.1. Limitation of Rights of
Holders.


 


Except as set forth in Section 9.2, the bankruptcy, dissolution,
termination, death or incapacity of any Person having an interest, beneficial
or otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor dissolve the Trust, nor entitle the legal or personal
representatives 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. Any merger or similar agreement shall be executed by the Administrators
on behalf of the Issuer Trust.


 


SECTION 10.2. Amendment.


 


(a)           This Trust Agreement
may be amended from time to time by the Holder of the Common Securities,
without the consent of any Holder of the Preferred Capital Securities, the
Administrators or the Issuer Trustees (i) to cure any ambiguity, correct
or supplement any provision herein which may be inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this Trust Agreement, provided, however, such amendment
shall not adversely affect in any material respect the interests of any Holder
or (ii) to modify, eliminate or add to any provisions of this Trust
Agreement to such extent as shall be necessary to ensure that the Issuer Trust
will not be taxable other than as a grantor trust for United States Federal income
tax purposes at any time that any Trust Securities are Outstanding or to ensure
that the Issuer Trust will not be required to register as an investment company
under the Investment Company Act.


 


(b)           Except as provided
in Section 10.2(c) hereof, any provision of this Trust Agreement may
be amended by the Holder of the Common Securities with (i) the consent of
Holders of at least a Majority in Liquidation Amount of the Preferred Capital
Securities and 


 


59

















 


(ii) receipt by the Issuer Trustees of an Opinion of Counsel to
the effect that such amendment or the exercise of any power granted to the
Issuer Trustees in accordance with such amendment will not affect the Issuer
Trust’s being taxable as a grantor trust for United States Federal income tax
purposes or the Issuer Trust’s exemption from status of an “investment company”
under the Investment Company Act.


 


(c)           In addition to and
notwithstanding any other provision in this Trust Agreement, without the consent
of each affected Holder, this Trust Agreement may not be amended to (i) change
the amount or timing of any Distribution on the Trust Securities or otherwise
adversely affect the amount of any Distribution required to be made in respect
of the Trust Securities as of a specified date or (ii) restrict the right
of a Holder to institute suit for the enforcement of any such payment on or
after such date.


 


(d)           Notwithstanding any
other provisions of this Trust Agreement, neither the Depositor nor a Holder
shall instruct an Issuer Trustee to enter into or consent to any amendment to
this Trust Agreement which would cause the Issuer Trust to fail or cease to
qualify for the exemption from status as an “investment company” under the
Investment Company Act or be taxable other than as a grantor trust for United
States Federal income tax purposes.


 


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


 


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


 


(g)           No amendment to this
Trust Agreement may be adopted that adversely affects the Property Trustee’s or
the Delaware Trustee’s rights, duties or immunities under this Trust Agreement,
except with the consent of such Property Trustee or Delaware Trustee. 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.


 


(h)           Any amendments to
this Trust Agreement made pursuant to Section 10.2(a) shall become
effective when notice of such amendment is given to the Holders of the Trust
Securities.


 


SECTION 10.3. Separability.


 


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


 


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SECTION 10.4. Governing Law.


 


THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
HOLDERS, THE ISSUER TRUST, THE DEPOSITOR, THE ISSUER TRUSTEES AND THE
ADMINISTRATORS 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 PRINCIPLES OF CONFLICT 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 THERE SHALL NOT BE APPLICABLE TO THE HOLDERS, THE ISSUER TRUST, THE
DEPOSITOR, THE ISSUER TRUSTEES, THE ADMINISTRATORS OR THIS TRUST AGREEMENT ANY
PROVISION OF THE LAWS (STATUTORY OR COMMON) OF THE STATE OF DELAWARE PERTAINING
TO TRUSTS OTHER THAN THE DELAWARE STATUTORY TRUST ACT THAT RELATE TO OR
REGULATE, IN A MANNER INCONSISTENT WITH THE TERMS HEREOF (A) THE FILING
WITH ANY COURT OR GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES
OF TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST BONDS
FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY
FOR OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION,
HOLDING OR DISPOSITION OF REAL OR PERSONAL PROPERTY, (D) FEES OR OTHER
SUMS PAYABLE TO TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (E) THE
ALLOCATION OF RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL, (F) RESTRICTIONS
OR LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR CONCENTRATION OF TRUST
INVESTMENTS OR REQUIREMENTS RELATING TO THE TITLING, STORAGE OR OTHER MANNER OF
HOLDING OR INVESTING TRUST ASSETS OR (G) THE ESTABLISHMENT OF FIDUCIARY OR
OTHER STANDARDS OF RESPONSIBILITY OR LIMITATIONS ON THE ACTS OR POWERS OF
TRUSTEES THAT ARE INCONSISTENT WITH THE LIMITATIONS OR LIABILITIES OR
AUTHORITIES AND POWERS OF THE ISSUER TRUSTEES OR THE ADMINISTRATOR AS SET FORTH
OR REFERENCED IN THIS TRUST AGREEMENT. SECTION 3540 OF TITLE 12 OF THE
DELAWARE CODE SHALL NOT APPLY TO THE ISSUER 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 that, if
such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case, with the same
force and effect as though made on the date fixed for such payment, and no
Distributions or interest shall accumulate on such unpaid amount for the period
after such date.


 


61

















 


SECTION 10.6. Successors.


 


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


 


SECTION 10.7. 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 that 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 deposit
thereof, first class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a
Holder of Preferred 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 Common Securities or the Depositor, to SCBT Financial
Corporation, Attention:       , facsimile no.:
(      )       -      or
to such other address as may be specified in a written notice by the Depositor
to the Property Trustee. 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 hand delivery, mailing or transmission. Such notice, demand or
other communication to or upon the Depositor shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the
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 Issuer Trust, the Property Trustee, the Delaware Trustee, the
Administrators, or the Issuer Trust shall be given in writing addressed (until
another address is published by the Issuer Trust) as follows: (a) with
respect to the Property Trustee to Wilmington Trust Company, 1100 North Market
Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Administration; (b) with respect to the Delaware Trustee to 1100 North
Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Administration; and (c) with respect to the Administrators, to them at the
address above for notices to the Depositor, marked “Attention: SCBT Capital
Trust IV Administrators.” Such notice, demand or other communication to or upon
the Issuer Trust or the Property Trustee shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the
Issuer Trust, the Property Trustee, or such Administrator.


 


SECTION 10.9. Agreement Not to Petition.


 


Each of the Issuer Trustees, the Administrators and the Depositor agree
for the benefit of the Holders that, until at least one year and one day after
the Issuer Trust has been


 


62

















 


terminated in accordance with Article IX, they shall not file, or
join in the filing of, a petition against the Issuer 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
Issuer 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 other court or otherwise properly contest
the filing of such petition by the Depositor against the Issuer 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 Issuer Trustee or
the Issuer Trust may assert. If any Issuer Trustee or Administrator takes
action in violation of this Section 10.9, the Depositor agrees, for the
benefit of the 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 such Person against the Depositor or the commencement of such
action and raise the defense that such Person 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 Issuer Trustee or the Issuer Trust may
assert. The provisions of this Section 10.9 shall survive the termination
of this Trust Agreement.


 


SECTION 10.10. Trust Indenture Act;
Conflict with Trust Indenture Act.


 


(a)           Trust
Indenture Act; Application. (i) This Trust Agreement is subject
to the provisions of the Trust Indenture Act that are required to be a part of
this Trust Agreement and shall, to the extent applicable, be governed by such
provisions; (ii) if and to the extent that any provision of this Trust
Agreement limits, qualifies or conflicts with the duties imposed by Sections
310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control; (iii) for purposes of this Trust Agreement, the Property Trustee,
to the extent permitted by applicable law and/or the rules and regulations
of the Commission, shall be the only Issuer Trustee which is a trustee for the
purposes of the Trust Indenture Act; and (iv) the application of the Trust
Indenture Act to this Trust Agreement shall not affect the nature of the
Preferred Capital Securities and the Common Securities as equity securities
representing undivided beneficial interests in the assets of the Issuer Trust.


 


(b)           Lists of Holders
of Preferred Capital Securities. (i) Each of the Depositor and
the Administrators on behalf of the Trust shall provide the Property Trustee
with such information as is required under Section 312(a) of the
Trust Indenture Act at the times and in the manner provided in Section 312(a) and
(ii) the Property Trustee shall comply with its obligations under Sections
310(b), 311 and 312(b) of the Trust Indenture Act.


 


(c)           Reports by
the Property Trustee. Within 60 days after January 31 of each
year commencing January 31, 20      , the
Property Trustee shall provide to the Holders of the Trust Securities such
reports as are required by Section 313 of the Trust Indenture Act, if any,
in the form, in the manner and at the times provided by Section 313 of the
Trust Indenture Act. The Property Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.


 


63

















 


(d)           Periodic
Reports to Property Trustee. Each of the Depositor and the Administrators
on behalf of the Issuer Trust shall provide to the Property Trustee, the
Commission and the Holders of the Trust Securities, as applicable, such
documents, reports and information as may be required by Section 315(a)(1)-(3) (if
any) of the Trust Indenture Act and the compliance certificates required by Section 314(a)(4) and
(c) of the Trust Indenture Act (provided that any certificate to be
provided pursuant to Section 314(a)(4) of the Trust Indenture Act
shall be provided within 120 days of the end of each fiscal year of the Issuer
Trust).


 


(e)           Evidence of
Compliance with Conditions Precedent. Each of the Depositor and the
Administrators on behalf of the Issuer Trust shall provide to the Property
Trustee such evidence of compliance with any conditions precedent, if any,
provided for in this Trust Agreement which relate to any of the matters set
forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given pursuant to Section 314(c) shall
comply with Section 314(e) of the Trust Indenture Act.


 


(f)            Disclosure Information. The disclosure of information as to
the names and addresses of the Holders of Trust Securities in accordance with Section 312
of the Trust Indenture Act, regardless of the source from which such information
was derived, shall not be deemed to be a violation of any existing law or any
law hereafter enacted which does not specifically refer to Section 312 of
the Trust Indenture Act, nor shall the Property Trustee be held accountable by
reason of mailing any material pursuant to a request made under Section 312(b) of
the Trust Indenture Act.


 


SECTION 10.11. Acceptance of Terms of
Trust Agreement, Guarantee and Indenture.


 


THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, 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 THIS TRUST AGREEMENT, THE GUARANTEE
THE INDENTURE, AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF
THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE
ISSUER TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS
TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE ISSUER
TRUST AND SUCH HOLDER AND SUCH OTHERS.


 


SECTION 10.12. Force Majeure


 


In no event shall any Issuer Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of
or caused by, directly or indirectly, forces beyond their control, including,
without limitation, strikes, work stoppages, accidents, acts of war or
terrorism, civil or military disturbances, nuclear or natural catastrophes or
acts


 


64

















 


of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services; it being
understood that the Issuer Trustees shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.


 


* * * *


 


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


 


[Signatures on Next Page]


 


65

















 


IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed, all as of the day and year first above written.


 


	
   

  	
  SCBT FINANCIAL CORPORATION, as Depositor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WILMINGTON TRUST COMPANY, as Property
  Trustee, and not in its individual capacity

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  WILMINGTON TRUST COMPANY, as Delaware
  Trustee, and not in its individual capacity

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


66














 


EXHIBIT A


 


CERTIFICATE OF TRUST


OF


SCBT CAPITAL  TRUST IV


 


A-1

















 


EXHIBIT B


 


FORM OF COMMON SECURITIES CERTIFICATE


 


B-1

















 


EXHIBIT C


 


FORM OF PREFERRED CAPITAL SECURITIES
CERTIFICATE


 


C-1

















 


EXHIBIT D


 


TERMS OF DISTRIBUTION


 


D-1