Exhibit 4.5


 




 





S.Y. BANCORP CAPITAL TRUST II


 


AMENDED AND RESTATED


 


TRUST AGREEMENT


 


AMONG


 


S.Y. BANCORP, INC., AS DEPOSITOR


 


WILMINGTON TRUST COMPANY, AS PROPERTY TRUSTEE


 


WILMINGTON TRUST COMPANY, AS DELAWARE
TRUSTEE,


 


AND


 


THE ADMINISTRATIVE TRUSTEES NAMED HEREIN


 


DATED AS OF [DECEMBER
        , 2008]


 




 


1






















 





TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
  ARTICLE
  I

  	
  DEFINED TERMS

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 101

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  II

  	
  ESTABLISHMENT OF THE TRUST

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 201

  	
  Name

  	
  9

  
	
  Section 202

  	
  Office of the Delaware Trustee; Principal Place of
  Business

  	
  9

  
	
  Section 203

  	
  Initial Contribution of Trust Property;
  Organizational Expenses

  	
  10

  
	
  Section 204

  	
  Issuance of the Preferred Securities

  	
  10

  
	
  Section 205

  	
  Issuance of the Common Securities; Subscription and
  Purchase of the Debentures

  	
  10

  
	
  Section 206

  	
  Declaration of Trust

  	
  11

  
	
  Section 207

  	
  Authorization to Enter Into Certain Transactions

  	
  11

  
	
  Section 208

  	
  Assets of Trust

  	
  14

  
	
  Section 209

  	
  Title to Trust Property

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  III

  	
  PAYMENT ACCOUNT

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 301

  	
  Payment Account

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IV

  	
  DISTRIBUTIONS; REDEMPTION

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 401

  	
  Distributions

  	
  15

  
	
  Section 402

  	
  Redemption

  	
  16

  
	
  Section 403

  	
  Subordination of the Common Securities

  	
  18

  
	
  Section 404

  	
  Payment Procedures

  	
  19

  
	
  Section 405

  	
  Tax Returns and Reports

  	
  19

  
	
  Section 406

  	
  Payment of Taxes, Duties, Etc

  	
  19

  
	
  Section 407

  	
  Payments under the Indenture

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  V

  	
  THE TRUST SECURITIES CERTIFICATES

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 501

  	
  Initial Ownership

  	
  19

  
	
  Section 502

  	
  The Trust Securities Certificates

  	
  20

  
	
  Section 503

  	
  Execution, Authentication and Delivery of the Trust
  Securities Certificates

  	
  20

  
	
  Section 503A. Global Preferred Security

  	
  21

  



 


i

















 


	
  Section 504

  	
  Registration of Transfer and Exchange of the
  Preferred Securities Certificates

  	
  22

  
	
  Section 505

  	
  Mutilated, Destroyed, Lost or Stolen Trust
  Securities Certificates

  	
  23

  
	
  Section 506

  	
  Persons Deemed the Securityholders

  	
  23

  
	
  Section 507

  	
  Access to List of the Securityholders’ Names and
  Addresses

  	
  24

  
	
  Section 508

  	
  Maintenance of Office or Agency

  	
  24

  
	
  Section 509

  	
  Appointment of the Paying Agent

  	
  24

  
	
  Section 510

  	
  Ownership of the Common Securities by the Depositor

  	
  25

  
	
  Section 511

  	
  The Trust Securities Certificates

  	
  25

  
	
  Section 512

  	
  [Reserved]

  	
  25

  
	
  Section 513

  	
  Notices

  	
  25

  
	
  Section 514

  	
  Rights of the Securityholders

  	
  25

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VI

  	
  ACTS OF THE SECURITYHOLDERS; MEETINGS; VOTING

  	
  26

  
	
   

  	
   

  	
   

  
	
  Section 601

  	
  Limitations on Voting Rights

  	
  26

  
	
  Section 602

  	
  Notice of Meetings

  	
  27

  
	
  Section 603

  	
  Meetings of the Preferred Securityholders

  	
  27

  
	
  Section 604

  	
  Voting Rights

  	
  28

  
	
  Section 605

  	
  Proxies, Etc

  	
  28

  
	
  Section 606

  	
  Securityholder Action by Written Consent

  	
  28

  
	
  Section 607

  	
  Record Date for Voting and Other Purposes

  	
  28

  
	
  Section 608

  	
  Acts of the Securityholders

  	
  29

  
	
  Section 609

  	
  Inspection of Records

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VII

  	
  REPRESENTATIONS AND WARRANTIES

  	
  30

  
	
   

  	
   

  	
   

  
	
  Section 701

  	
  Representations and Warranties of the Bank and the
  Property Trustee

  	
  30

  
	
  Section 702

  	
  Representations and Warranties of the Delaware Bank
  and the Delaware Trustee

  	
  31

  
	
  Section 703

  	
  Representations and Warranties of the Depositor

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII

  	
  TRUSTEES

  	
  32

  
	
   

  	
   

  	
   

  
	
  Section 801

  	
  Certain Duties and Responsibilities

  	
  32

  
	
  Section 802

  	
  Certain Notices

  	
  34

  
	
  Section 803

  	
  Certain Rights of the Property Trustee

  	
  34

  
	
  Section 804

  	
  Not Responsible for Recitals or Issuance of Securities

  	
  36

  



 


ii

















 


	
  Section 805

  	
  May Hold Securities

  	
  36

  
	
  Section 806

  	
  Compensation; Indemnity; Fees

  	
  36

  
	
  Section 807

  	
  Corporate Property Trustee Required; Eligibility of
  Trustees

  	
  37

  
	
  Section 808

  	
  Conflicting Interests

  	
  38

  
	
  Section 809

  	
  Co-Trustees and Separate Trustee

  	
  38

  
	
  Section 810

  	
  Resignation and Removal; Appointment of Successor

  	
  39

  
	
  Section 811

  	
  Acceptance of Appointment by Successor

  	
  40

  
	
  Section 812

  	
  Merger, Conversion, Consolidation or Succession to
  Business

  	
  41

  
	
  Section 813

  	
  Preferential Collection of Claims Against the
  Depositor or the Trust

  	
  41

  
	
  Section 814

  	
  Reports by the Property Trustee

  	
  41

  
	
  Section 815

  	
  Reports to the Property Trustee

  	
  41

  
	
  Section 816

  	
  Evidence of Compliance with Conditions Precedent

  	
  42

  
	
  Section 817

  	
  Number of Trustees

  	
  42

  
	
  Section 818

  	
  Delegation of Power

  	
  42

  
	
  Section 819

  	
  Voting

  	
  42

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IX

  	
  TERMINATION, LIQUIDATION AND MERGER

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 901

  	
  Dissolution upon Expiration Date

  	
  43

  
	
  Section 902

  	
  Early Dissolution

  	
  43

  
	
  Section 903

  	
  Termination

  	
  43

  
	
  Section 904

  	
  Liquidation

  	
  43

  
	
  Section 905

  	
  Mergers, Consolidations, Amalgamations or
  Replacements of the Trust

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  X

  	
  MISCELLANEOUS PROVISIONS

  	
  46

  
	
   

  	
   

  	
   

  
	
  Section 1001

  	
  Limitation of Rights of the Securityholders

  	
  46

  
	
  Section 1002

  	
  Amendment

  	
  46

  
	
  Section 1003

  	
  Separability

  	
  47

  
	
  Section 1004

  	
  Governing Law

  	
  47

  
	
  Section 1005

  	
  Payments Due on Non-Business Day

  	
  48

  
	
  Section 1006

  	
  Successors

  	
  48

  
	
  Section 1007

  	
  Headings

  	
  48

  
	
  Section 1008

  	
  Reports, Notices and Demands

  	
  48

  
	
  Section 1009

  	
  Agreement Not to Petition

  	
  49

  



 


iii

















 


 


	
  Section 1010

  	
  Trust Indenture Act; Conflict with Trust Indenture
  Act

  	
  49

  
	
  Section 1011

  	
  Acceptance of Terms of the Trust Agreement, the
  Guarantee and the Indenture

  	
  49

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Certificate of Trust

  	
   

  
	
  Exhibit B

  	
  Form of Common Securities Certificate

  	
   

  
	
  Exhibit C

  	
  Form of Expense Agreement

  	
   

  
	
  Exhibit D

  	
  Form of Preferred Securities
  Certificate

  	
   

  
	
  Exhibit E

  	
  Form of Certificate of Authentication

  	
   

  



 


iv

















 


CROSS-REFERENCE TABLE


 


	
  Section of

  	
   

  	
  Section of Amended

  	
   

  
	
  Trust Indenture Act

  	
   

  	
  and Restated

  	
   

  
	
  of 1939, as amended

  	
   

  	
  Trust Agreement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  310(a)(1)

  	
   

  	
  807

  	
   

  
	
  310(a)(2)

  	
   

  	
  807

  	
   

  
	
  310(a)(3)

  	
   

  	
  807

  	
   

  
	
  310(a)(4)

  	
   

  	
  207(a)(ii)

  	
   

  
	
  310(b)

  	
   

  	
  808

  	
   

  
	
  311(a)

  	
   

  	
  813

  	
   

  
	
  311(b)

  	
   

  	
  813

  	
   

  
	
  312(a)

  	
   

  	
  507

  	
   

  
	
  312(b)

  	
   

  	
  507

  	
   

  
	
  312(c)

  	
   

  	
  507

  	
   

  
	
  313(a)

  	
   

  	
  814(a)

  	
   

  
	
  313(a)(4)

  	
   

  	
  814(b)

  	
   

  
	
  313(b)

  	
   

  	
  814(b)

  	
   

  
	
  313(c)

  	
   

  	
  1008

  	
   

  
	
  313(d)

  	
   

  	
  814(c)

  	
   

  
	
  314(a)

  	
   

  	
  815

  	
   

  
	
  314(b)

  	
   

  	
  Not Applicable

  	
   

  
	
  314(c)(1)

  	
   

  	
  816

  	
   

  
	
  314(c)(2)

  	
   

  	
  816

  	
   

  
	
  314(c)(3)

  	
   

  	
  Not Applicable

  	
   

  
	
  314(d)

  	
   

  	
  Not Applicable

  	
   

  
	
  314(e)

  	
   

  	
  101, 816

  	
   

  
	
  315(a)

  	
   

  	
  801(a), 803(a)

  	
   

  
	
  315(b)

  	
   

  	
  802, 1008

  	
   

  
	
  315(c)

  	
   

  	
  801(a)

  	
   

  
	
  315(d)

  	
   

  	
  801, 803

  	
   

  
	
  316(a)(2)

  	
   

  	
  Not Applicable

  	
   

  
	
  316(b)

  	
   

  	
  Not Applicable

  	
   

  
	
  316(c)

  	
   

  	
  607

  	
   

  
	
  317(a)(1)

  	
   

  	
  Not Applicable

  	
   

  
	
  317(a)(2)

  	
   

  	
  Not Applicable

  	
   

  
	
  317(b)

  	
   

  	
  509

  	
   

  
	
  318(a)

  	
   

  	
  1010

  	
   

  



 


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


 


v














 


AMENDED
AND RESTATED TRUST AGREEMENT


 


AMENDED AND
RESTATED TRUST AGREEMENT, dated as of [December         ,
2008,] among (a) S.Y. BANCORP, INC., a Kentucky corporation (including any
successors or assigns, the “Depositor”), (b)WILMINGTON TRUST COMPANY, a banking
corporation duly organized and existing under the laws of Delaware, as property
trustee (the “Property Trustee” and, in its separate corporate capacity and not
in its capacity as Property Trustee, the “Bank”), (c) WILMINGTON TRUST
COMPANY, a banking corporation duly organized and existing under the laws of
the State of Delaware, as Delaware trustee (the “Delaware Trustee,” and, in its
separate corporate capacity and not in its capacity as Delaware Trustee, the “Delaware
Bank”), (d) DAVID P. HEINTZMAN, an individual, NANCY B. DAVIS, an
individual, and T. CLAY STINNETT, an individual, each of whose address is c/o
S.Y. Bancorp, Inc., 1040 East Main Street, Louisville, Kentucky 40206
(each an “Administrative Trustee” and collectively the “Administrative Trustees”)
(the Property Trustee, the Delaware Trustee and the Administrative Trustees
referred to collectively as the “Trustees”), and (e) the several Holders
(as hereinafter defined).


 


RECITALS


 


WHEREAS, the
Depositor, the Delaware Trustee and the Administrative Trustees have heretofore
duly declared and established a statutory trust pursuant to the Delaware
Statutory Trust Act (as hereinafter defined) by the entering into that certain
Trust Agreement, dated as of [December         ,
2008] (the “Original Trust Agreement”), and by the execution and filing by the
Delaware Trustee, the Property Trustee and the Administrative Trustees with the
Secretary of State of the State of Delaware of the Certificate of Trust, filed
on [December         , 2008], the
form of which is attached as Exhibit A; and


 


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


 


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


 


ARTICLE
I


DEFINED
TERMS


 


Section 101          Definitions.  For all purposes of this Trust Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:


 

















 


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


 


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


 


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


 


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


 


“Act” has the
meaning specified in Section 608.


 


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


 


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


 


“Administrative
Trustee” means each of DAVID P. HEINTZMAN, NANCY B. DAVIS and T. CLAY STINNETT,
solely in his or her capacity as Administrative Trustee of the Trust formed and
continued hereunder and not in his or her individual capacity, or such
Administrative Trustee’s successor in interest in such capacity, or any
successor trustee appointed as herein provided.


 


“Affiliate”
has the same meaning as given to that term in Rule 405 of the Securities
Act or any successor rule thereunder.


 


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


 


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


 


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


 


(a)           the entry of a decree
or order by a court having jurisdiction in the premises adjudging such Person a
bankrupt or insolvent, or approving as properly filed a petition seeking
liquidation or reorganization of or in respect of such Person under the United
States Bankruptcy Code of 1978, as amended, or any other similar applicable
federal or state law, and the continuance of any such decree or order unvacated
and unstayed for a period of ninety (90) days; or the commencement of an
involuntary case under the United States Bankruptcy Code of 1978, as amended,
in respect of such Person, which shall continue undismissed for a period of
ninety (90) days or entry of an order for relief in such case; or the entry of
a decree or order of a court having jurisdiction in the premises for the
appointment on the ground of insolvency or bankruptcy of a receiver, custodian,
liquidator, trustee or assignee in bankruptcy or insolvency of 


 


2

















 


such Person or of its
property, or for the winding up or liquidation of its affairs, and such decree
or order shall have remained in force unvacated and unstayed for a period of
ninety (90) days; or


 


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


 


“Bankruptcy
Laws” has the meaning specified in Section 1009.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Common
Security” means an undivided beneficial interest in the assets of the Trust,
having a Liquidation Amount of $10 and having the rights provided therefor in
this Trust Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.


 


“Common
Securityholder” means a holder of a Common Security.


 


“Company”
means S.Y. Bancorp, Inc., a Kentucky corporation and registered bank
holding company under the Bank Holding Company Act of 1956, as amended.


 


3

















 


“Corporate
Trust Office” means the office at which, at any particular time, the corporate
trust business of the Property Trustee or the Debenture Trustee, as the case
may be, shall be principally administered, which office at the date hereof, in
each such case, is located at Rodney Square North, 1100 North Market Street,
Wilmington, Delaware,  19890-0001,
Attention: Corporate Trust Administration.


 


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


 


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


 


“Debenture
Trustee” means Wilmington Trust Company, a banking corporation organized under
the laws of the State of Delaware and any successor thereto, as trustee under
the Indenture.


 


“Debentures”
means the $27,810,000 (or $30,900,000 if the Underwriters exercise their Option
as such term is defined in the Underwriters Agreement) aggregate principal
amount of the Depositor’s
[            %]
Subordinated Debentures due 2038, issued pursuant to the Indenture.


 


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


 


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


 


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


 


“Depositary”
means DTC or any successor thereto.


 


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


 


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


 


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


 


“DTC” means
The Depository Trust Company.


 


“Early
Termination Event” has the meaning specified in Section 902.


 


“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):


 


4

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Guaranty
Federal” means Guaranty Federal Bancshares, Inc., a corporation duly
organized and existing under the laws of the State of Delaware and shall also
include its successors and assigns.


 


5

















 


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


 


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


 


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


 


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


 


“Liquidation
Amount” means the stated amount of $10 per Trust Security.


 


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


 


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


 


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


 


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


 


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


 


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


 


6

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(c)           the Preferred
Securities which have been paid or in exchange for or in lieu of which other
Preferred Securities have been executed and delivered pursuant to Sections 504,
505, 511 and 514; provided, however, that in determining whether the Holders of
the requisite Liquidation Amount of the Outstanding Preferred Securities have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, the Preferred Securities owned by the Depositor, any Trustee or any
Affiliate of the Depositor or any Trustee shall be disregarded and deemed not
to be Outstanding, except that (i) in determining whether any Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only the Preferred Securities that such
Trustee knows to be so owned shall be so disregarded; and (ii) the
foregoing shall not apply at any time when all of the Outstanding Preferred
Securities are owned by the Depositor, one or more of the Trustees and/or any
such Affiliate.  The Preferred Securities
so owned which have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Administrative Trustees
the pledgee’s right so to act with respect to such Preferred Securities and the
pledgee is not the Depositor or any other Obligor upon the Preferred Securities
or a Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Depositor or any Affiliate of the
Depositor.


 


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


 


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


 


7

















 


which the Property Trustee shall make payments to the Securityholders
in accordance with Sections 401 and 402.


 


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


 


“Preferred
Security” means an undivided beneficial interest in the assets of the Trust,
having a Liquidation Amount of $10 and having the rights provided therefor in
this Trust Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.


 


“Preferred
Securityholder” means a holder of a Preferred Security.


 


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


 


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


 


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


 


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


 


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


 


“Securities
Act” means the Securities Act of 1933, as amended from time to time, or any
successor legislation.


 


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


 


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


 


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


 


8

















 


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


 


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


 


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


 


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


 


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


 


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


 


“Underwriting
Agreement” means the Underwriting Agreement, dated as of [December         ,
2008], among the Trust, the Depositor, J.J.B. Hilliard, W.L. Lyons, Inc.
and the underwriters named therein.


 


ARTICLE
II

ESTABLISHMENT OF THE TRUST


 


Section 201          Name.  The Trust continued hereby shall be known as “S.Y.
BANCORP CAPITAL TRUST II,” as such name may be modified from time to time by the
Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees may engage in the
transactions contemplated hereby, make and execute contracts and other
instruments on behalf of the Trust and sue and be sued.


 


Section 202          Office of the Delaware
Trustee; Principal Place of Business.  The
address of the Delaware Trustee in the State of Delaware is c/o Wilmington
Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware
19890-0001, Attention: Corporate Trust Administration, or such other address in
the State of Delaware as the Delaware Trustee may designate by written notice
to the Securityholders and the Depositor. The principal executive office of the
Trust is c/o S.Y. Bancorp, Inc., 1040 East Main Street, Louisville,
Kentucky 40206, Attention: Chief Financial Officer.


 


9














 


Section 203          Initial Contribution of
Trust Property; Organizational Expenses. 
The Trustees acknowledge receipt in trust from the Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.


 


Section 204          Issuance of the
Preferred Securities.  On [December         ,
2008], the Depositor, on behalf of the Trust and pursuant to the Original Trust
Agreement, executed and delivered the Underwriting Agreement.  Contemporaneously with the execution and
delivery of this Trust Agreement, an Administrative Trustee, on behalf of the
Trust, shall execute in accordance with Section 502, and deliver in
accordance with the Underwriting Agreement, Preferred Securities Certificates,
registered in the name of the Persons entitled thereto, in an aggregate amount
of 2,700,000 Preferred Securities having an aggregate Liquidation Amount of
$27,000,000 against receipt of the aggregate purchase price of such Preferred
Securities of $27,000,000, which amount such Administrative Trustee shall
promptly deliver to the Property Trustee. 
If the underwriters exercise their over-allotment option and there is an
Option Closing Date (as such term is defined in the Underwriting Agreement),
then an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 502 and deliver in accordance with the
Underwriting Agreement, Preferred Securities Certificates, registered in the
name of the Persons entitled thereto in an aggregate amount of up to 300,000
Preferred Securities having an aggregate Liquidation Amount of up to $3,000,000
against receipt of the aggregate purchase price of such Preferred Securities of
up to $3,000,000, which amount such Administrative Trustee shall promptly deliver
to the Property Trustee.


 


Section 205          Issuance of the Common
Securities; Subscription and Purchase of the Debentures.


 


(a)           Contemporaneously with
the execution and delivery of this Trust Agreement, an Administrative Trustee,
on behalf of the Trust, shall execute in accordance with Section 502 and
deliver to the Depositor, Common Securities Certificates, registered in the
name of the Depositor, in an aggregate amount of 81,000 Common Securities
having an aggregate Liquidation Amount of $810,000 against payment by the
Depositor of such amount. Contemporaneously therewith, an Administrative
Trustee, on behalf of the Trust, shall subscribe to and purchase from the
Depositor Debentures, registered in the name of the Property Trustee on behalf
of the Trust and having an aggregate principal amount equal to $27,810,000,
and, in satisfaction of the purchase price for such Debentures, the Property
Trustee, on behalf of the Trust, shall deliver to the Depositor the sum of
$27,810,000.


 


(b)           If the underwriters
exercise the Option and there is an Option Closing Date, then an Administrative
Trustee, on behalf of the Trust, shall execute in accordance with Section 502
and deliver to the Depositor, Common Securities Certificates, registered in the
name of the Depositor, in an additional aggregate amount of 9,000 Common
Securities having an aggregate Liquidation Amount of up to $90,000 against
payment by the Depositor of such amount. 
Contemporaneously therewith, an Administrative Trustee, on behalf of the
Trust, shall subscribe to and purchase from the Depositor, additional
Debentures, registered in the name of the Trust and having an aggregate
principal amount of up to $3,090,000, and, in satisfaction of 


 


10

















 


the purchase price of
such Debentures, the Property Trustee, on behalf of the Trust, shall deliver to
the Depositor up to $3,090,000, such aggregate amount to be equal to the sum of
the amounts received from the Depositor pursuant to this Section 205(b) and
from one of the Administrative Trustees pursuant to the last sentence of Section 204.


 


Section 206          Declaration of Trust.  The exclusive purposes and functions of the
Trust are (a) to issue and sell Trust Securities and use the proceeds from
such sale to acquire the Debentures; and (b) to engage in those activities
necessary, convenient or incidental thereto. The Depositor hereby appoints the
Trustees as trustees of the Trust, to have all the rights, powers and duties to
the extent set forth herein, and the Trustees hereby accept such appointment.
The Property Trustee hereby declares that it shall hold the Trust Property in
trust upon and subject to the conditions set forth herein for the benefit of
the Securityholders. The Administrative Trustees shall have all rights, powers
and duties set forth herein and in accordance with applicable law with respect
to accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of the Trustees of
the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807
of the Delaware Statutory Trust Act.


 


Section 207          Authorization to Enter
Into Certain Transactions.


 


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


 


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


 


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


 


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


 


(C)           assisting in the
registration of the Preferred Securities under the Securities Act, and under
state securities or blue sky laws, and the qualification of this Trust
Agreement as a trust indenture under the Trust Indenture Act;


 


11

















 


(D)          assisting in the
inclusion of the Preferred Securities in the NASDAQ Global Select Market or in
the listing of the Preferred Securities on such securities exchange or
exchanges as shall be determined by the Depositor and the registration of the
Preferred Securities under the Exchange Act, and the preparation and filing of
all periodic and other reports and other documents pursuant to the foregoing;


 


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


 


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


 


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


 


(H)          to take all action that
may be necessary or appropriate for the preservation and the continuation of
the Trust’s valid existence, rights, franchises and privileges as a statutory
trust under the laws of the State of Delaware and of each other jurisdiction in
which such existence is necessary to protect the limited liability of the
Holders of the Preferred Securities or to enable the Trust to effect the
purposes for which the Trust was created; and


 


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


 


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


 


(A)          the establishment of the
Payment Account;


 


(B)           the receipt of the
Debentures;


 


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


 


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


 


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


 


12

















 


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


 


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


 


(H)          to the extent provided
in this Trust Agreement, the winding up of the affairs of and liquidation of
the Trust;


 


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


 


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


 


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


 


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


 


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


 


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


 


13

















 


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


 


(iii)          the preparation for
filing by the Trust and execution on behalf of the Trust of an application to
the NASDAQ Global Select Market or a national stock exchange or other
organization for inclusion, listing or quotation upon notice of issuance of any
Preferred Securities and to file or cause an Administrative Trustee to file
thereafter with such exchange or organization such notifications and documents
as may be necessary from time to time;


 


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


 


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


 


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


 


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


 


Section 208          Assets of Trust.  The assets of the Trust shall consist of the
Trust Property.


 


Section 209          Title to Trust Property.  Legal title to all Trust Property shall be vested
at all times in the Property Trustee (in its capacity as such) and shall be
held and administered by the Property Trustee for the benefit of the
Securityholders in accordance with this Trust Agreement.


 


14

















 


ARTICLE
III

PAYMENT ACCOUNT


 


Section 301          Payment Account.


 


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


 


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


 


ARTICLE
IV

DISTRIBUTIONS; REDEMPTION


 


Section 401          Distributions.


 


(a)           Distributions on the
Trust Securities shall be cumulative, and shall accumulate whether or not there
are funds of the Trust available for the payment of Distributions.
Distributions shall accumulate from the date of issuance of the Trust
Securities, and, except during any Extended Interest Period with respect to the
Debentures, shall be payable quarterly in arrears on March 31, June 30,
September 30 and December 31 of each year, commencing on March 31,
2009.  If any date on which a
Distribution is otherwise payable on the Trust Securities is not a Business
Day, then the payment of such Distribution shall be made on the next succeeding
day that is a Business Day (and without any interest or other payment in
respect of any such delay) except that if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day (and without any reduction in interest or any other
payment in respect of any such acceleration), in each case with the same force
and effect as if made on such date (each date on which distributions are
payable in accordance with this Section 401(a), a “Distribution Date”).


 


(b)           The Trust Securities
represent undivided beneficial interests in the Trust Property.  Distributions on the Trust Securities shall
be payable at a rate of
[            %] per
annum of the Liquidation Amount of the Trust Securities. The amount of
Distributions payable for any full period shall be computed on the basis of a
360-day year of twelve 30-day months. The amount of Distributions for any
partial period shall be computed on the basis of the number of days elapsed in
a 360-day year of twelve 30-day months. During any Extended Interest Period
with respect to the Debentures, Distributions on the Preferred Securities shall
be deferred for a period equal to the Extended Interest Period. The amount of
Distributions payable for any period shall include the Additional Amounts, if
any.


 


15

















 


(c)           Distributions on the
Trust Securities shall be made by the Property Trustee solely from the Payment
Account and shall be payable on each Distribution Date only to the extent that
the Trust has funds then on hand and immediately available by 12:30 p.m.
on each Distribution Date in the Payment Account for the payment of such
Distributions.


 


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


 


Section 402          Redemption.


 


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


 


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


 


(i)            the Redemption Date;


 


(ii)           the Redemption Price;


 


(iii)          the CUSIP number;


 


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


 


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


 


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


 


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


 


16

















 


(d)           If the Property Trustee
gives a notice of redemption in respect of any Preferred Securities, then, by
12:00 noon, New York City time, on the Redemption Date, subject to Section 402(c),
the Property Trustee, subject to Section 402(c), shall, with respect to
Preferred Securities held in global form, deposit with the Clearing Agency for
such Preferred Securities, to the extent available therefor, funds sufficient
to pay the applicable Redemption Price and will give such Clearing Agency
irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Preferred Securities. 
With respect to Trust Securities that are not held in global form, the
Property Trustee, subject to Section 402(c), shall deposit with the Paying
Agent funds sufficient to pay the applicable Redemption Price and shall give
the Paying Agent irrevocable instructions and authority to pay the Redemption
Price to the record holders thereof upon surrender of their Preferred
Securities Certificates.  Notwithstanding
the foregoing, Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Securities Register for the Trust
Securities on the relevant record dates for the related Distribution Dates.  If notice of redemption shall have been given
and funds deposited as required, then upon the date of such deposit, (i) all
rights of Securityholders holding Trust Securities so called for redemption
shall cease, except the right of such Securityholders to receive the Redemption
Price, but without interest, (ii) such Trust Securities shall cease to be
Outstanding, (iii) the Clearing Agency for the Preferred Securities or its
nominee, as the registered Holder of the Global Preferred Securities
Certificate, shall receive a registered global certificate or certificates
representing the Debentures to be delivered upon such distribution with respect
to Preferred Securities held by the Clearing Agency or its nominee, and (iv) any
Trust Securities Certificates not held by the Clearing Agency for the Preferred
Securities or its nominee as specified in clause (iii) above will be
deemed to represent 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.  In the event that any date on which any
Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date shall be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day (and without any reduction of interest or any other payment in respect of
any such acceleration), in each case with the same force and effect as if made
on such date.  In the event that payment
of the Redemption Price in respect of any Trust Securities called for
redemption is improperly withheld or refused and not paid either by the Trust
or by the Depositor pursuant to the Guarantee, Distributions on such Trust
Securities shall continue to accumulate, at the then applicable rate, from the
Redemption Date originally established by the Trust for such Trust Securities
to the date such Redemption Price is actually paid, in which case the actual payment
date shall be the date fixed for redemption for purposes of calculating the
Redemption Price.


 


(e)           Payment of the
Redemption Price on the Trust Securities shall be made to the record holders
thereof as they appear on the Securities Register for the Trust Securities on
the relevant record date, which shall be the date fifteen (15) days prior to
the relevant Redemption Date; provided, however, that for any Trust Securities
held in global form, payment of the 


 


17

















 


Redemption Price shall be
made to the Holder thereof as of one Business Day immediately preceding the
Redemption Date.


 


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


 


Section 403          Subordination of the
Common Securities.


 


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


 


(b)           In the case of the
occurrence of any Event of Default resulting from a Debenture Event of Default,
the Holder of 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 effect of all such Events of Default with respect to the Preferred
Securities shall have 


 


18

















 


been cured, waived or
otherwise eliminated. Until any such Event of Default under this Trust
Agreement with respect to the Preferred Securities shall have been so cured,
waived or otherwise eliminated, the Property Trustee shall act solely on behalf
of the Holders of the Preferred Securities and not the Holder of the Common
Securities, and only the Holders of the Preferred Securities shall have the
right to direct the Property Trustee to act on their behalf.


 


Section 404          Payment Procedures.  Payments of Distributions (including
Additional Amounts, if applicable) in respect of the Preferred Securities shall
be made by check mailed to the address of the Person entitled thereto as such
address shall appear on the Securities Register or, if the Preferred Securities
are held by a Clearing Agency, such Distributions shall be made to the Clearing
Agency in immediately available funds, which will credit the relevant accounts
on the applicable Distribution Dates. 
Payments in respect of the Common Securities shall be made in such
manner as shall be mutually agreed between the Property Trustee and the Common
Securityholder.


 


Section 405          Tax Returns and Reports.
 The Administrative Trustees shall
prepare (or cause to be prepared), at the Depositor’s expense, and file all
United States federal, state and local tax and information returns and reports
required to be filed by or in respect of the Trust. In this regard, the
Administrative Trustees shall (a) prepare and file (or cause to be
prepared and filed) the appropriate Internal Revenue Service form required to
be filed in respect of the Trust in each taxable year of the Trust; and (b) prepare
and furnish (or cause to be prepared and furnished) to each Securityholder the
appropriate Internal Revenue Service forms required to be furnished to such
Securityholder or the information required to be provided on such forms. The
Administrative Trustees shall provide the Depositor with a copy of all such
returns and reports promptly after such filing or furnishing. The Property
Trustee shall comply with United States federal withholding and backup
withholding tax laws and information reporting requirements with respect to any
payments to the Securityholders under the Trust Securities.


 


Section 406          Payment of Taxes,
Duties, Etc. of the Trust.  Upon receipt
under the Debentures of Additional Payments, the Property Trustee, at the
direction of an Administrative Trustee or the Depositor, shall promptly pay any
taxes, duties or governmental charges of whatsoever nature (other than
withholding taxes) imposed on the Trust by the United States or any other
taxing authority.


 


Section 407          Payments under the
Indenture.  Any amount payable
hereunder to any Holder of Preferred Securities shall be reduced by the amount
of any corresponding payment such Holder has directly received under the
Indenture pursuant to Section 514(b) or (c) hereof.


 


ARTICLE
V

THE TRUST SECURITIES CERTIFICATES


 


Section 501          Initial Ownership.  Upon the creation of the Trust and the
contribution by the Depositor pursuant to Section 203 and until the
issuance of the Trust Securities, and at any time during which no Trust
Securities are Outstanding, the Depositor shall be the sole beneficial owner of
the Trust.


 


19














 


Section 502          The Trust Securities
Certificates.  The Preferred
Securities Certificates shall be issued in minimum denominations of the
Liquidation Amount and integral multiples of such Liquidation Amount in excess
thereof, and the Common Securities Certificates shall be issued in
denominations of the Liquidation Amount and integral multiples thereof. The
Trust Securities Certificates shall be executed on behalf of the Trust by
manual or facsimile signature of at least one Administrative Trustee.  The Trust Securities Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee’s name pursuant to Sections 504, 511
and 514.


 


Section 503          Execution,
Authentication and Delivery of the Trust Securities Certificates.


 


(a)           On the Closing Date
and, if applicable, the Option Closing Date, as such term is defined in the
Underwriting Agreement, or upon the occurrence of any of the events described
in clauses (i) through (iii) of Section 503A, the Administrative
Trustees shall cause Trust Securities Certificates, in an aggregate Liquidation
Amount as provided in Sections 204 and 205, to be executed on behalf of the
Trust by the manual or facsimile signature of at least one of the
Administrative Trustees and delivered to or upon the written order of the
Depositor, signed by its Chief Executive Officer, President, any Senior or
Executive Vice President, the Treasurer or any Assistant Treasurer without
further corporate action by the Depositor, in authorized denominations.


 


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


 


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


 


(d)           The Property Trustee
may appoint an Authenticating Agent acceptable to the Trust to authenticate the
Preferred Securities.  An Authenticating
Agent may authenticate the Preferred Securities whenever the Property Trustee
may do so.  Each reference in this Trust
Agreement to authentication by the Property Trustee includes authentication by
such agent.  An Authenticating Agent has
the same rights as the Property Trustee to deal with the Depositor or the
Trust.


 


20

















 


Section 503A.      Global Preferred Security.


 


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


 


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


 


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


 


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


 


(e)            The
Clearing Agency or its nominee, as the registered owner of a Global Preferred
Security, shall be considered the Holder of the Preferred Securities
represented by such Global Preferred Security for all purposes under this Trust
Agreement and the Preferred Securities, and owners of beneficial interests in
such Global Preferred Security shall hold such interests pursuant to the
Applicable Procedures and, except as otherwise provided herein, shall not be
entitled to receive physical delivery of any such Preferred Securities in
definitive form 


 


21

















 


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


 


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


 


(g)           Notwithstanding
any other provision of this Trust Agreement, so long as any Preferred Security
is a Global Preferred Security, the parties to this Trust Agreement will be
bound at all times by the Applicable Procedures of the Depositary with respect
to such Global Preferred Security.


 


Section 504          Registration of Transfer
and Exchange of the Preferred Securities Certificates.


 


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


 


(b)           Subject to the
provisions of Section 503A, upon surrender for registration of transfer of
any Preferred Securities Certificate at the office or agency maintained
pursuant to Section 508, the Administrative Trustees or any one of them
shall execute in accordance with Section 502 and the Property Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Preferred Securities Certificates in authorized
denominations of a like aggregate Liquidation Amount dated the date of
authentication. The Securities Registrar shall not be required to register the
transfer of any of the Preferred Securities that have been called for
redemption. At the option of a Holder, the Preferred Securities Certificates
may be exchanged for other Preferred Securities Certificates in authorized
denominations of the same class and of a like aggregate Liquidation Amount upon
surrender of the Preferred Securities Certificates to be exchanged at the
office or agency maintained pursuant to Section 508.


 


(c)           Every Preferred
Securities Certificate presented or surrendered for registration of transfer or
exchange, subject to the provisions of Section 503A, shall be accompanied
by a written instrument of transfer in form satisfactory to the Property
Trustee and the Securities Registrar duly executed by the Holder or his
attorney duly authorized in writing. Each Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be 


 


22

















 


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


 


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


 


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


 


Section 505          Mutilated, Destroyed,
Lost or Stolen Trust Securities Certificates.  If (a) any mutilated Trust Securities
Certificate shall be surrendered to the Securities Registrar, or if the
Securities Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Trust Securities Certificate; and (b) there
shall be delivered to the Securities Registrar, the Property Trustee and the
Administrative Trustees such security or indemnity as may be required by them
to save each of them harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a protected purchaser, the
Administrative Trustees, or any one of them, on behalf of the Trust shall
execute and make available for delivery, and the Property Trustee shall
authenticate if necessary, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Securities Certificate, a new Trust Securities
Certificate of like class, tenor and denomination. In connection with the
issuance of any new Trust Securities Certificate under this Section 505,
the Administrative Trustees or the Securities Registrar may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Trust Securities Certificate
issued pursuant to this Section 505 shall constitute conclusive evidence
of an undivided beneficial interest in the assets of the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Trust
Securities Certificate shall be found at any time.


 


Section 506          Persons Deemed the
Securityholders.  The Trustees, the
Paying Agent and the Securities Registrar shall treat the Person in whose name
any Trust Securities Certificate shall be registered in the Securities Register
as the owner of such Trust Securities Certificate for the purpose of receiving
Distributions and for all other purposes whatsoever, and neither the Trustees
nor the Securities Registrar shall be bound by any notice to the contrary.


 


23

















 


Section 507          Access to List of the
Securityholders’ Names and Addresses. 
At any time when the Property Trustee is not also acting as the
Securities Registrar, the Administrative Trustees or the Depositor shall
furnish or cause to be furnished to the Property Trustee (a) within five
Business Days of March 15, June 15, September 15 and December 15
in each year, a list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Securityholders as of the most
recent record date; and (b) promptly after receipt by any Administrative
Trustee or the Depositor of a request therefor from the Property Trustee in
order to enable the Property Trustee to discharge its obligations under this
Trust Agreement, in each case to the extent such information is in the
possession or control of the Administrative Trustees or the Depositor and is
not identical to a previously supplied list or has not otherwise been received
by the Property Trustee in its capacity as Securities Registrar. The rights of
the Securityholders to communicate with other Securityholders with respect to
their rights under this Trust Agreement or under the Trust Securities, and the
corresponding rights of the Trustees shall be as provided in the Trust
Indenture Act. Each Holder, by receiving and holding a Trust Securities
Certificate, and each owner shall be deemed to have agreed not to hold the
Depositor, the Property Trustee or the Administrative Trustees accountable by
reason of the disclosure of its name and address, regardless of the source from
which such information was derived.


 


Section 508          Maintenance of Office or
Agency.  The Administrative Trustees
shall maintain in a location or locations designated by the Administrative
Trustees, an office or offices or agency or agencies where the Preferred
Securities Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Trustees in respect of
the Trust Securities Certificates may be served. The Administrative Trustees
initially designate the Corporate Trust Office of the Property Trustee,
Wilmington Trust Company, as the principal corporate trust office for such
purposes. The Administrative Trustees shall give prompt written notice to the
Depositor and to the Securityholders of any change in the location of the
Securities Register or any such office or agency.


 


Section 509          Appointment of the
Paying Agent.  The Property Trustee
shall initially serve as the Paying Agent, and any co-paying agent chosen by
the Property Trustee must be acceptable to the Administrative Trustees and the
Depositor. The Paying Agent shall make Distributions to the Securityholders
from the Payment Account and shall report the amounts of such Distributions to
the Property Trustee and the Administrative Trustees. Any Paying Agent shall
have the revocable power to withdraw funds from the Payment Account for the purpose
of making the Distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. Any Person
acting as Paying Agent shall be permitted to resign as Paying Agent upon thirty
(30) days’ written notice to the Administrative Trustees, the Property Trustee
and the Depositor. In the event that the Property Trustee shall no longer be
the Paying Agent or a successor Paying Agent shall resign or its authority to
act be revoked, the Administrative Trustees shall appoint a successor (which
shall be a bank or trust company) that is acceptable to the Property Trustee
and the Depositor to act as the Paying Agent. The Administrative Trustees shall
cause such successor Paying Agent or any additional Paying Agent appointed by
the Administrative Trustees to execute and deliver to the Trustees an
instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent shall hold all sums, if any, held 


 


24

















 


by it for payment to the
Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and, upon removal of a
Paying Agent, such Paying Agent shall also return all funds in its possession
to the Property Trustee. The provisions of Sections 801, 803 and 806 shall
apply to the Property Trustee also in its role as the Paying Agent, for so long
as the Property Trustee shall act as Paying Agent and, to the extent
applicable, to any other Paying Agent appointed hereunder. Any reference in
this Trust Agreement to the Paying Agent shall include any co-paying agent
unless the context requires otherwise.


 


Section 510          Ownership of the Common
Securities by the Depositor.  On the
Closing Date, the Depositor shall acquire and retain beneficial and record
ownership of the Common Securities. To the fullest extent permitted by law, any
attempted transfer of the Common Securities (other than a transfer in
connection with a merger or consolidation of the Depositor into another
corporation pursuant to Section 12.1 of the Indenture) shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued
to the Depositor to contain a legend stating “THIS CERTIFICATE IS NOT
TRANSFERABLE EXCEPT IN COMPLIANCE WITH SECTION 510 OF THE TRUST AGREEMENT”.


 


Section 511          The Trust Securities
Certificates.


 


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


 


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


 


Section 512          [Reserved].


 


Section 513          Notices.  To the extent that a notice or other
communication to the Holders is required under this Trust Agreement, for so
long as Preferred Securities are represented by a Global Preferred Securities
Certificate, the Trustees shall give all such notices and communications
specified herein to be given to the Clearing Agency, and shall have no
obligation to provide notice to the owners of the beneficial interest in the
Global Preferred Securities.


 


Section 514          Rights of the
Securityholders.


 


(a)           The legal title to the
Trust Property is vested exclusively in the Property Trustee (in its capacity
as such) in accordance with Section 209, and the Securityholders shall 


 


25

















 


not have any right or
title therein other than the undivided beneficial interest in the assets of the
Trust conferred by their Trust Securities and they shall have no right to call
for any partition or division of property, profits or rights of the Trust
except as described below. The Trust Securities shall be personal property
giving only the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive or similar rights.
When issued and delivered to Holders of the Preferred Securities against payment
of the purchase price therefor, the Preferred Securities shall be fully paid
and, subject to the provisions of this Trust Agreement and to the fullest
extent permitted by applicable law, nonassessable interests in the Trust. The
Holders of the Preferred Securities, in their capacities as such, shall be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware.


 


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


 


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


 


ARTICLE
VI

ACTS OF THE SECURITYHOLDERS; MEETINGS; VOTING


 


Section 601          Limitations on Voting
Rights.


 


(a)           Except as provided in
this Section 601, in Sections 514, 810 and 1002 and in the Indenture and
as otherwise set forth in the Guarantee or required by law, no record Holder of
Preferred Securities shall have any right to vote or in any manner otherwise
control the administration, operation and management of the Trust or the
obligations of the parties hereto; nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed so as
to constitute the Securityholders from time to time as partners or members of
an association.


 


(b)           So long as any Debentures
are held by the Property Trustee, on behalf of the Trust, the Trustees shall
not (i) direct the time, method and place of conducting any proceeding for
any remedy available to the Debenture Trustee, or executing any trust or power
conferred on the Debenture Trustee with respect to such Debentures; (ii) waive
any past default which is waivable under Article VII of the Indenture; (iii) exercise
any right to rescind or annul a 


 


26

















 


declaration that the principal
of all the Debentures shall be due and payable; or (iv) consent to any
amendment, modification or termination of the Indenture or the Debentures,
where such consent shall be required, without, in each case, obtaining the
prior approval of the Holders of not less than a majority in Liquidation Amount
of all the Outstanding Preferred Securities; provided, however, that where a
consent under the Indenture would require the consent of each holder of
outstanding Debentures affected thereby, no such consent shall be given by the
Property Trustee without the prior written consent of each holder of the
Preferred Securities. The Trustees shall not revoke any action previously
authorized or approved by a vote of the Holders of the Outstanding Preferred
Securities, except when authorized by a subsequent vote of the Holders of the
Outstanding Preferred Securities. The Property Trustee shall notify each holder
of the Outstanding Preferred Securities of any notice of default received from
the Debenture Trustee with respect to the Debentures. In addition to obtaining
the foregoing approvals of the Holders of the Preferred Securities, prior to
taking any of the foregoing actions, the Trustees shall, at the expense of the
Depositor, obtain an Opinion of Counsel experienced in such matters to the
effect that the Trust shall continue to be classified as a grantor trust and
not as an association taxable as a corporation for United States federal income
tax purposes on account of such action.


 


(c)           If any proposed
amendment to the Trust Agreement provides for, or the Trustees otherwise
propose to effect, (i) any action that would adversely affect in any
material respect the powers, preferences or special rights of the holders of
the Preferred Securities, whether by way of amendment to the Trust Agreement or
otherwise; or (ii) the dissolution, winding-up or termination of the
Trust, other than pursuant to the terms of this Trust Agreement, then the
Holders of the Outstanding Preferred Securities as a class shall be entitled to
vote on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a Majority in
Liquidation Amount of the Outstanding Preferred Securities. No amendment to
this Trust Agreement may be made if, as a result of such amendment, the Trust
would cease to be classified as a grantor trust or would be classified as an
association taxable as a corporation for United States federal income tax
purposes.


 


Section 602          Notice of Meetings.  Notice of all meetings of the Preferred
Securityholders, stating the time, place and purpose of the meeting, shall be
given by the Property Trustee pursuant to Section 1008 to each Preferred
Securityholder of record, at his or her registered address, at least fifteen
(15) days and not more than ninety (90) days before the meeting. At any such
meeting, any business properly before the meeting may be so considered whether
or not stated in the notice of the meeting. Any adjourned meeting may be held
as adjourned without further notice.


 


Section 603          Meetings of the
Preferred Securityholders.


 


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


 


27

















 


Preferred Securityholders
to vote on any matters as to which the Preferred Securityholders are entitled to
vote.


 


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


 


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


 


Section 604          Voting Rights.  The Securityholders shall be entitled to one
vote for each dollar value of Liquidation Amount represented by their Trust
Securities (with any fractional multiple thereof rounded up or down as the case
may be to the closest integral multiple) in respect of any matter as to which
such Securityholders are entitled to vote (and such dollar value shall be $10
per Preferred Security until such time, if any, as the Liquidation Amount is
changed as provided herein).


 


Section 605          Proxies, Etc.  At any meeting of the Securityholders, any
Securityholder entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or agent of the
Trust as the Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Only Holders shall be entitled to
vote.  When Trust Securities are held
jointly by several persons, any one of them may vote at any meeting in person
or by proxy in respect of such Trust Securities, but if more than one of them
shall be present at such meeting in person or by proxy, and such joint owners
or their proxies so present disagree as to any vote to be cast, such vote shall
not be received in respect of such Trust Securities. A proxy purporting to be
executed by or on behalf of a Securityholder shall be deemed valid unless
challenged at or prior to its exercise, and, the burden of proving invalidity
shall rest on the challenger. No proxy shall be valid more than three years
after its date of execution.


 


Section 606          Securityholder Action by
Written Consent.  Any action which
may be taken by the Securityholders at a meeting may be taken without a meeting
if the Securityholders holding more than a majority of all of the Outstanding
Trust Securities (based upon their aggregate Liquidation Amount) entitled to
vote in respect of such action (or such larger proportion thereof as shall be
required by any express provision of this Trust Agreement) shall consent to the
action in writing.


 


Section 607          Record Date for Voting
and Other Purposes.  For the purposes
of determining the Securityholders who are entitled to notice of and to vote at
any meeting or by written consent, or to participate in any Distribution on the
Trust Securities in respect of which a record date is not otherwise provided
for in this Trust Agreement, or for the purpose of any other action, the
Administrative Trustees or the Property Trustee may from time to time fix a
date, not more than 90 days prior to the date of any meeting of the
Securityholders or the payment of 


 


28

















 


Distribution or other
action, as the case may be, as a record date for the determination of the
identity of the Securityholders of record for such purposes.


 


Section 608          Acts of the
Securityholders.


 


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


 


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


 


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


 


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


 


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


 


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


 


29














 


Section 609          Inspection
of Records.  Upon reasonable
notice to the Administrative Trustees and the Property Trustee, the records of
the Trust shall be open to inspection at the principal executive office of the
Trustee (as indicated in Section 202) to Holders of the Trust Securities
during normal business hours for any purpose reasonably related to such
Securityholder’s interest as a Securityholder.


 


ARTICLE
VII

REPRESENTATIONS AND WARRANTIES


 


Section 701          Representations
and Warranties of the Bank and the Property Trustee.  The Bank and the Property Trustee, each
severally on behalf of and as to itself, as of the date hereof, and each
successor Property Trustee at the time of the successor Property Trustee’s
acceptance of its appointment as Property Trustee hereunder (in the case of a
successor Property Trustee, the term “Bank” as used herein shall be deemed to
refer to such successor Property Trustee in its separate corporate capacity)
hereby represents and warrants (as applicable) for the benefit of the Depositor
and the Securityholders that:


 


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


 


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


 


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


 


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


 


(e)           neither the
authorization, execution or delivery by the Property Trustee of this Trust
Agreement nor the consummation of any of the transactions by the Property
Trustee contemplated herein requires the consent or approval of, the giving of
notice to, the registration with or the taking of any other action with respect
to any governmental authority or agency under 


 


30

















 


any existing federal law
governing the banking or trust powers of the Bank or the Property Trustee, as
the case may be, under the laws of the United States or its jurisdiction of
incorporation; and


 


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


 


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


 


Section 702          Representations
and Warranties of the Delaware Bank and the Delaware Trustee.  The Delaware Bank and the Delaware Trustee,
each severally on behalf of and as to itself, as of the date hereof, and each
successor Delaware Trustee at the time of the successor Delaware Trustee’s
acceptance of appointment as Delaware Trustee hereunder (the term “Delaware
Bank” being used to refer to such successor Delaware Trustee in its separate
corporate capacity), hereby represents and warrants (as applicable) for the
benefit of the Depositor and the Securityholders that:


 


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


 


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


 


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


 


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


 


31

















 


powers of the Delaware
Bank or the Delaware Trustee (as appropriate in context) or any order, judgment
or decree applicable to the Delaware Bank or the Delaware Trustee;


 


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


 


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


 


Section 703          Representations
and Warranties of the Depositor. 
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:


 


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


 


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


 


ARTICLE
VIII

TRUSTEES


 


Section 801          Certain
Duties and Responsibilities.


 


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


 


32

















 


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


 


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


 


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


 


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


 


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


 


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


 


(iv)          the Property Trustee
shall not be liable for any interest on any money received by it except as it
may otherwise agree with the Depositor and money held by the Property Trustee
need not be segregated from other funds held by it except in 


 


33

















 


relation to the Payment Account maintained by the
Property Trustee pursuant to Section 301 and except to the extent
otherwise required by law; and


 


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


 


Section 802          Certain
Notices.


 


(a)           Within five (5) Business
Days after the occurrence of any Event of Default actually known to a
Responsible Officer (as defined in the Indenture) of the Property Trustee, the
Property Trustee shall transmit, in the manner and to the extent provided in Section 1008,
notice of such Event of Default to the Securityholders, the Administrative
Trustees and the Depositor, unless such Event of Default shall have been cured
or waived. For purposes of this Section 802, the term “Event of Default”
means any event that is, or after notice or lapse of time or both would become,
an Event of Default.


 


(b)           The Administrative
Trustees shall transmit to the Securityholders in the manner and to the extent
provided in Section 1008 notice of the Depositor’s election to begin or
further extend an Extended Interest Period on the Debentures (unless such
election shall have been revoked), and of any election by the Depositor to
accelerate the Maturity Date of the Debentures within the time specified for
transmitting such notice to the holders of the Debentures pursuant to the
Indenture as originally executed.


 


Section 803          Certain
Rights of the Property Trustee. 
Subject to the provisions of Section 801:


 


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


 


(b)           if (i) in
performing its duties under this Trust Agreement the Property Trustee is
required to decide between alternative courses of action; or (ii) in
construing any of the provisions of this Trust Agreement, the Property Trustee
finds the same ambiguous or inconsistent with other provisions contained
herein; or (iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to which
the Preferred Securityholders are entitled to vote under the terms of this
Trust Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken and the Property Trustee shall take such action, or refrain from
taking such action, as the Property Trustee shall be instructed in writing to
take, or to refrain from taking, by the Depositor; provided, however, that if
the Property Trustee does not receive such instructions of the Depositor within
ten (10) Business Days after it has delivered such notice, or such
reasonably shorter period of time set forth in such notice (which to the 


 


34

















 


extent practicable shall
not be less than two (2) Business Days), it may, but shall be under no
duty to, take or refrain from taking such action not inconsistent with this
Trust Agreement as it shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee shall have no liability
except for its own bad faith, negligence or willful misconduct;


 


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


 


(d)           whenever in the
administration of this Trust Agreement, the Property Trustee shall deem it
desirable that a matter be established before undertaking, suffering or
omitting any action hereunder, the Property Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers’ Certificate which, upon receipt
of such request, shall be promptly delivered by the Depositor or the
Administrative Trustees;


 


(e)           the Property Trustee
shall have no duty to see to any recording, filing or registration of any
instrument (including any financing or continuation statement or, except as
provided in Section 405, any filing under tax or securities laws) or any
re-recording, refiling or reregistration thereof;


 


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


 


(g)           the Property Trustee
shall be under no obligation to exercise any of the rights or powers vested in
it by this Trust Agreement at the request, order or direction of any of the
Securityholders, pursuant to this Trust Agreement, unless such Securityholders
shall have offered to the Property Trustee reasonable security or indemnity
against the costs, expenses and liabilities that might be incurred by it in
compliance with such request, order or direction; nothing contained herein shall,
however, relieve the Property Trustee of the obligation, upon the occurrence of
an Event of Default (that has not been cured or waived) to exercise such of the
rights and powers vested in it by this Trust Agreement, and to use the same
degree of care and skill in its exercise thereof, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs;


 


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


 


35

















 


(i)            the Property Trustee
may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through its agents or attorneys, provided
that the Property Trustee shall be responsible for its own negligence or
recklessness with respect to selection of any agent or attorney appointed by it
hereunder;


 


(j)            whenever in the
administration of this Trust Agreement the Property Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy or right
or taking any other action hereunder the Property Trustee (i) may request
instructions from the Holders of the Trust Securities which instructions may
only be given by the Holders of the same proportion in Liquidation Amount of
the Trust Securities as would be entitled to direct the Property Trustee under
the terms of the Trust Securities in respect of such remedy, right or action; (ii) may
refrain from enforcing such remedy or right or taking such other action until
such instructions are received; and (iii) shall be protected in acting in
accordance with such instructions; and


 


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


 


Section 804          Not
Responsible for Recitals or Issuance of Securities.  The Recitals contained herein and in the
Trust Securities Certificates shall be taken as the statements of the Trust,
and the Trustees do not assume any responsibility for their correctness. The
Trustees shall not be accountable for the use or application by the Depositor
of the proceeds of the Debentures.


 


Section 805          May Hold
Securities.  Any Trustee or
any other agent of any Trustee or the Trust, in its individual or any other
capacity, may become the owner or pledgee of the Trust Securities and, subject
to Sections 808 and 813 and except as provided in the definition of the term “Outstanding”
in Article I, may otherwise deal with the Trust with the same rights it
would have if it were not a Trustee or such other agent.


 


Section 806          Compensation;
Indemnity; Fees.  The
Depositor agrees:


 


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


 


(b)           except as otherwise
expressly provided herein, to reimburse the Trustees upon request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustees in accordance with any provision of this Trust Agreement (including
the reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such 


 


36

















 


expense, disbursement or
advance as may be attributable to such Trustee’s negligence, bad faith or
willful misconduct (or, in the case of the Administrative Trustees or the
Delaware Trustee, any such expense, disbursement or advance as may be
attributable to its, his or her gross negligence, bad faith or willful
misconduct); and


 


(c)           to indemnify each of
the Trustees or any predecessor Trustee for, and to hold the Trustees harmless
against, any loss, damage, claims, liability, penalty or expense incurred
without negligence, bad faith or willful misconduct on its part, arising out of
or in connection with the acceptance or administration of this Trust Agreement,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder, except any such expense, disbursement or advance as may be
attributable to such Trustee’s negligence, bad faith or willful misconduct (or,
in the case of the Administrative Trustees or the Delaware Trustee, any such
expense, disbursement or advance as may be attributable to its, his or her
gross negligence, bad faith or willful misconduct).


 


No
Trustee may claim any Lien or charge on any Trust
Property as a result of any amount due pursuant to this Section 806.


 


The provisions of this Section 806 shall survive the termination
of this Trust Agreement and the removal or resignation of any Trustee.


 


Section 807          Corporate
Property Trustee Required; Eligibility of Trustees.


 


(a)           There shall at all
times be a Property Trustee hereunder with respect to the Trust Securities. The
Property Trustee shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section 807, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Property Trustee with respect to the Trust
Securities shall cease to be eligible in accordance with the provisions of this
Section 807, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article VIII.  The Property Trustee and the Delaware Trustee
may, but need not be, the same person.


 


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


 


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


 


37

















 


Section 808          Conflicting
Interests.  If the Property
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Property Trustee shall either eliminate such interest
or resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Trust Agreement.


 


Section 809          Co-Trustees
and Separate Trustee.


 


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


 


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


 


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


 


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


 


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


 


38

















 


perform such act, in which event such rights, powers,
duties and obligations shall be exercised and performed by such co-trustee or
separate trustee.


 


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


 


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


 


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


 


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


 


Section 810          Resignation
and Removal; Appointment of Successor.


 


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


 


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


 


(c)           Unless a Debenture
Event of Default shall have occurred and be continuing, any Trustee may be
removed at any time by an Act of the Common Securityholder. If a Debenture
Event of Default shall have occurred and be continuing, the Property Trustee or
the Delaware Trustee, or both of them, may be removed at such time by an Act of
the Holders of not less than a majority in Liquidation Amount of the Preferred
Securities, delivered to the Relevant Trustee (in its individual capacity and
on behalf of the Trust). An Administrative Trustee may be removed by the Common
Securityholder at any time.


 


39














 


(d)           If any Trustee shall resign, be
removed or become incapable of acting as Trustee, or if a vacancy shall occur
in the office of any Trustee for any cause, at a time when no Debenture Event
of Default shall have occurred and be continuing, the Common Securityholder, by
an Act of the Common Securityholder delivered to the retiring Trustee, shall
promptly appoint a successor Trustee or Trustees with respect to the Trust
Securities and the Trust, and the successor Trustee shall comply with the
applicable requirements of Section 811. If the Property Trustee or the
Delaware Trustee shall resign, be removed or become incapable of continuing to
act as the Property Trustee or the Delaware Trustee, as the case may be, at a
time when a Debenture Event of Default shall have occurred and is continuing,
the Preferred Securityholders, by an Act of the Securityholders of not less
than a majority in Liquidation Amount of the Preferred Securities then
Outstanding delivered to the retiring Relevant Trustee, shall promptly appoint
a successor Trustee or Trustees with respect to the Trust Securities and the
Trust, and such successor Trustee shall comply with the applicable requirements
of Section 811. If an Administrative Trustee shall resign, be removed or
become incapable of acting as an Administrative Trustee, at a time when a
Debenture Event of Default shall have occurred and be continuing, the Common
Securityholder, by an Act of the Common Securityholder delivered to an
Administrative Trustee, shall promptly appoint a successor Administrative
Trustee or Administrative Trustees with respect to the Trust Securities and the
Trust, and such successor Administrative Trustee or Administrative Trustees
shall comply with the applicable requirements of Section 811. If no
successor Trustee with respect to the Trust Securities shall have been so
appointed by the Common Securityholder or the Preferred Securityholders and
accepted appointment in the manner required by Section 811, any
Securityholder who has been a Securityholder of Trust Securities for six
consecutive months on behalf of himself or herself and all others similarly
situated may petition a court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Trust Securities.


 


(e)           The Property Trustee shall give
notice of each resignation and each removal of a Trustee and each appointment
of a successor Trustee to all the Securityholders in the manner provided in Section 1008
and shall give notice to the Depositor. Each notice shall include the name of
the successor Trustee and the address of its Corporate Trust Office if it is
the Property Trustee.


 


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


 


Section 811          Acceptance of Appointment by
Successor.


 


(a)           In case of the appointment hereunder
of a successor Trustee with respect to the Trust Securities and the Trust, the
retiring Relevant Trustee and each successor Trustee with respect to the Trust
Securities shall execute and deliver an instrument hereto wherein each
successor Trustee shall accept such appointment and which shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor Trustee all the 


 


40

















 


rights, powers, trusts
and duties of the retiring Relevant Trustee with respect to the Trust
Securities and the Trust and upon the execution and delivery of such instrument
the resignation or removal of the retiring Relevant Trustee shall become effective
to the extent provided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust; but, on request of the Trust or any successor
Trustee such retiring Relevant Trustee shall duly assign, transfer and deliver
to such successor Trustee all the Trust Property, all proceeds thereof and
money held by such retiring Relevant Trustee hereunder with respect to the
Trust Securities and the Trust.


 


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


 


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


 


Section 812          Merger, Conversion, Consolidation or
Succession to Business. 
Any Person into which the Property Trustee, the Delaware Trustee or any
Administrative 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 Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of such
Trustee, shall be the successor of such Trustee hereunder, provided such Person
shall be otherwise qualified and eligible under this Article VIII, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto.


 


Section 813          Preferential Collection of Claims
Against the Depositor or the Trust.  If and when the Property Trustee or the
Delaware Trustee shall be or become a creditor of the Depositor or the Trust
(or any other obligor upon the Debentures or the Trust Securities), the
Property Trustee or the Delaware Trustee, as the case may be, shall be subject
to and shall take all actions necessary in order to comply with the provisions
of the Trust Indenture Act regarding the collection of claims against the
Depositor or the Trust (or any such other obligor).


 


Section 814          Reports by the Property Trustee.


 


(a)           The Property Trustee shall transmit
to the Securityholders such reports concerning the Property Trustee, its
actions under this Trust Agreement and the property and funds in its possession
in its capacity as the Property Trustee as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.


 


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


 


Section 815          Reports to the Property Trustee.  The Depositor and the Administrative Trustees
on behalf of the Trust shall provide to the Property Trustee such documents,
reports and 


 


41

















 


information as required
by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314 of the
Trust Indenture Act.


 


Section 816          Evidence of Compliance with Conditions
Precedent.  Each of the
Depositor and the Administrative Trustees on behalf of the Trust shall provide
to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Trust Agreement that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) of
the Trust Indenture Act shall be given in the form of an Officers’ Certificate.


 


Section 817          Number of Trustees.


 


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


 


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


 


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


 


Section 818          Delegation of Power.


 


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


 


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


 


Section 819          Voting.  Except as otherwise provided in this Trust
Agreement, the consent or approval of the Administrative Trustees shall require
consent or approval by not less than a majority of the Administrative Trustees,
unless there are only two, in which case both must consent.


 


42

















 


ARTICLE
IX

TERMINATION, LIQUIDATION AND MERGER


 


Section 901          Dissolution upon Expiration Date.  Unless earlier dissolved, the Trust shall
automatically dissolve on [December 31, 2038] (the “Expiration Date”)
subject to distribution of the Trust Property in accordance with Section 904.


 


Section 902          Early Dissolution.  The first to occur of any of the following
events is an “Early Termination Event”:


 


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


 


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


 


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


 


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


 


Section 903          Termination.  As soon as is practicable after the last to
occur of the following:  (a) the
distribution by the Property Trustee to the Securityholders upon the
liquidation of the Trust pursuant to Section 904, or upon the redemption
of all of the Trust Securities pursuant to Section 402, of all amounts
required to be distributed hereunder upon the final payment of the Trust
Securities; (b) the payment of any expenses owed by the Trust; (c) the
discharge of all administrative duties of the Administrative Trustees,
including the performance of any tax reporting obligations with respect to the
Trust or the Securityholders; and (d) after satisfaction of liabilities to
creditors as required by applicable law, including Section 3808 of the
Delaware Statutory Trust Act, the Administrative Trustees shall terminate the
Trust by filing, at the expense of the Depositor, a certificate of cancellation
with the Secretary of State of the State of Delaware.  The Administrative Trustees shall notify the
Property Trustee and the Delaware Trustee of such filing.  Upon filing of such certificate of
cancellation, the Trust, this Trust Agreement (other than provisions, including
Section 806, which by their terms survive), and the respective obligations
and responsibilities of the Trustees shall terminate.


 


Section 904          Liquidation.


 


(a)           If an Early Termination Event
specified in clause (a), (b), or (d) of Section 902 occurs or upon
the Expiration Date, the Trust shall be liquidated by the Trustees as
expeditiously as the Trustees determine to be possible by distributing, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, to each Securityholder a Like 


 


43

















 


Amount of Debentures, subject
to Section 904(d). Notice of liquidation shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not later than thirty (30)
nor more than sixty (60) days prior to the Liquidation Date to each Holder of
Trust Securities at such Holder’s address appearing in the Securities Register.
All notices of liquidation shall:


 


(i)            state the Liquidation Date;


 


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


 


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


 


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


 


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


 


(d)           In the event that, notwithstanding
the other provisions of this Section 904, whether because of an order for
dissolution entered by a court of competent jurisdiction or otherwise,
distribution of the Debentures in the manner provided herein is determined by
the Property Trustee not to be practical, the Trust Property shall be
liquidated, and the Trust shall be dissolved, wound-up and terminated, by the
Property Trustee in such manner as the Property Trustee determines. In such
event, on the date of the dissolution, winding-up or other termination of the
Trust, the Securityholders shall be entitled to receive out of the assets of
the Trust 


 


44

















 


available for
distribution to the Securityholders, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, an amount equal to the
Liquidation Amount per Trust Security plus accumulated and unpaid Distributions
thereon to the date of payment (such amount being the “Liquidation Distribution”).
If, upon any such dissolution, winding-up or termination, the Liquidation
Distribution can be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Liquidation Distribution, then, subject
to the next succeeding sentence, the amounts payable by the Trust on the Trust
Securities shall be paid on a pro rata basis (based upon Liquidation Amounts,
subject to Section 407). The Holder of the Common Securities shall be
entitled to receive the Liquidation Distributions upon any such dissolution,
winding-up or termination pro rata (determined as aforesaid) with the Holders
of the Preferred Securities, except that, if a Debenture Event of Default has
occurred and is continuing, the Preferred Securities shall have a priority over
the Common Securities.


 


Section 905          Mergers, Consolidations, Amalgamations
or Replacements of the Trust. 
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except
pursuant to this Section 905. At the request of the Depositor, with the
consent of the Administrative Trustees and without the consent of the Holders
of the Preferred Securities, the Property Trustee or the Delaware Trustee, the
Trust may merge with or into, consolidate, amalgamate, be replaced by or
convey, transfer or lease its properties and assets substantially as an
entirety to a trust organized as such under the laws of any State; provided,
that (a) such successor entity either (i) expressly assumes all of
the obligations of the Trust with respect to the Preferred Securities; or (ii) substitutes
for the Preferred Securities other securities having substantially the same terms
as the Preferred Securities (the “Successor Securities”) so long as the
Successor Securities rank the same as the Preferred Securities rank in priority
with respect to distributions and payments upon liquidation, redemption and
otherwise; (b) the Depositor expressly appoints a trustee of such
successor entity possessing substantially the same powers and duties as the
Property Trustee as the holder of the Debentures; (c) the Successor
Securities are listed or traded, or any Successor Securities shall be listed or
traded upon notification of issuance, on any national securities exchange or
other organization on which the Preferred Securities are then listed, if any; (d) such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the Holders
of the Preferred Securities (including any Successor Securities) in any
material respect; (e) such successor entity has a purpose substantially
identical to that of the Trust; (f) prior to such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Depositor has
received an Opinion of Counsel to the effect that (i) such merger
consolidation, amalgamation, replacement, conveyance, transfer or lease does
not adversely affect the rights, preferences and privileges of the Holders of
the Preferred Securities (including any Successor Securities) in any material
respect; and (ii) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such
successor entity shall be required to register as an “investment company” under
the Investment Company Act; and (g) the Depositor owns all of the Common
Securities of such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to the extent provided
by the Guarantee, the Debentures, this Trust Agreement and the Expense
Agreement. For purposes of this Section 905, any such consolidation,
merger, sale, conveyance, transfer or other disposition as a result of which (a) the
Company is not the surviving Person, and (b) the same Person is not both (i) the
primary obligor in respect of the Debentures and (ii) the 


 


45

















 


Guarantor under the
Preferred Securities Guarantee shall be deemed to constitute a replacement of
the Trust by a successor entity; provided further that, notwithstanding the
foregoing, in the event that upon the consummation of such a consolidation, merger,
sale, conveyance, transfer or other disposition, the parent company (if any) of
the Company, or its successor, is a bank holding company or financial holding
company or comparably regulated financial institution, such parent company
shall guarantee the obligations of the Trust (and any successor thereto) under
the Preferred Securities (including any Successor Securities) at least to the
extent provided by the Guarantee, the Debentures, the Trust Agreement and the
Expense Agreement.  Notwithstanding the
foregoing, the Trust shall not, except with the consent of the Holders of 100%
in Liquidation Amount of the Preferred Securities, consolidate, amalgamate,
merge with or into, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to any other Person or
permit any other Person to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger or replacement would
cause the Trust or the successor entity to be classified as other than a
grantor trust for United States federal income tax purposes.


 


ARTICLE
X

MISCELLANEOUS PROVISIONS


 


Section 1001        Limitation of Rights of the
Securityholders.  The
death or incapacity of any Person having an interest, beneficial or otherwise,
in the Trust Securities shall not operate to terminate this Trust Agreement,
nor entitle the legal representatives or heirs of such Person or any
Securityholder for such Person to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding-up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.


 


Section 1002        Amendment.


 


(a)           This Trust Agreement may be amended
from time to time by the Trustees and the Depositor, without the consent of any
Securityholders, (i) as provided in Section 811 with respect to
acceptance of appointment by a successor Trustee; (ii) to cure any
ambiguity, correct or supplement any provision herein or therein which may be
inconsistent with any other provision herein or therein, or to make any other
provisions with respect to matters or questions arising under this Trust
Agreement, that shall not be inconsistent with the other provisions of this
Trust Agreement; (iii) to modify, eliminate or add to any provisions of
this Trust Agreement to such extent as shall be necessary to ensure that the
Trust shall be classified for United States federal income tax purposes as a
grantor trust at all times that any of the Trust Securities are outstanding or
to ensure that the Trust shall not be required to register as an “investment
company” under the Investment Company Act; or (iv) to reduce or increase
the Liquidation Amount per Trust Security and simultaneously to correspondingly
increase or decrease the number of Trust Securities issued and Outstanding
solely for the purpose of maintaining the eligibility of the Preferred
Securities for quotation or listing on any national securities exchange or
other organization on which the Preferred Securities are then included, quoted
or listed (including, if applicable, the NASDAQ Global Select Market);
provided, however, that in the case of clause (ii), such action shall not
adversely affect in any material respect the interests of any Securityholder,
and provided further, that in the case of clause (iv) the aggregate
Liquidation Amount of the Trust Securities Outstanding upon completion of any
such reduction must be the same as the aggregate Liquidation Amount of the
Trust Securities outstanding immediately prior 


 


46

















 


to such reduction or
increase, and any amendments of this Trust Agreement shall become effective
when notice thereof is given to the Securityholders (or, in the case of an
amendment pursuant to clause (iv), as of the date specified in the notice).


 


(b)           Except as provided in Section 601(c) or
Section 1002(c) hereof, any provision of this Trust Agreement may be
amended by the Trustees and the Depositor (i) with the consent of the Securityholders
representing not less than a majority (based upon Liquidation Amounts) of the
Trust Securities then Outstanding; and (ii) upon receipt by the Trustees
of an Opinion of Counsel to the effect that such amendment or the exercise of
any power granted to the Trustees in accordance with such amendment shall not
affect the Trust’s status as a grantor trust for United States federal income
tax purposes or the Trust’s exemption from status 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 Securityholder (such consent being obtained in accordance with Section 603
or 606 hereof), this Trust Agreement may not be amended to (i) change the
amount or timing of any Distribution on the Trust Securities or otherwise
adversely affect the amount of any Distribution required to be made in respect
of the Trust Securities as of a specified date; or (ii) restrict the right
of a Securityholder to institute suit for the enforcement of any such payment
on or after such date; notwithstanding any other provision herein, without the
unanimous consent of the Securityholders (such consent being obtained in
accordance with Section 603 or 606 hereof), this paragraph (c) of
this Section 1002 may not be amended.


 


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


 


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


 


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


 


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


 


Section 1003        Separability.  In case any provision in this Trust Agreement
or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.


 


Section 1004        Governing Law.  THIS TRUST AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE 


 


47

















 


TRUSTEES WITH RESPECT TO
THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO ITS
CONFLICT OF LAWS PRINCIPLES).


 


Section 1005        Payments Due on Non-Business Day.  If the date fixed for any payment on any
Trust Security shall be a day that is not a Business Day, then such payment
need not be made on such date but may be made on the next succeeding day which
is a Business Day, except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day (and without any reduction of interest or any other payment in respect of
any such acceleration), in each case with the same force and effect as though
made on the date fixed for such payment, and no distribution shall accumulate
thereon for the period after such date.


 


Section 1006        Successors.  This Trust Agreement shall be binding upon
and shall inure to the benefit of any successor to the Depositor, the Trust or
the Relevant Trustee(s), including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article XII of the Indenture and pursuant to which the
assignee agrees in writing to perform the Depositor’s obligations hereunder,
the Depositor shall not assign its obligations hereunder.


 


Section 1007        Headings.  The Article and Section headings
are for convenience only and shall not affect the construction of this Trust
Agreement.


 


Section 1008        Reports, Notices and Demands.  Any report, notice, demand or other
communication which by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Securityholder or the Depositor
may be given or served in writing by deposit thereof, first-class postage
prepaid, in the United States mail, hand delivery or facsimile transmission, in
each case, addressed, (a) in the case of a Preferred Securityholder, to
such Preferred Securityholder as such Securityholder’s name and address may
appear on the Securities Register; and (b) in the case of the Common
Securityholder or the Depositor, to S.Y. Bancorp, Inc., 1040 East Main
Street, Louisville, Kentucky 40206, Attention: Chief Financial Officer,
facsimile no.: (502) 625-2295.  Any
notice to the Preferred Securityholders shall also be given to such owners as
have, within two years preceding the giving of such notice, filed their names
and addresses with the Property Trustee for that purpose. Such notice, demand
or other communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.


 


Any notice,
demand or other communication which by any provision of this Trust Agreement is
required or permitted to be given or served to or upon the Trust, the Property
Trustee or the Administrative Trustees shall be given in writing addressed
(until another address is published by the Trust) as follows: (a) with
respect to the Property Trustee, to Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:
Corporate Trust Administration; (b) with respect to the Delaware Trustee,
to Wilmington Trust Company, at the address above; and (c) with respect to
the Administrative Trustees, to them at the address above for notices to the
Depositor, marked “Attention: Administrative Trustees of S.Y. Bancorp Capital
Trust II, c/o S.Y. Bancorp, Inc.”  


 


48

















 


Such notice, demand or other communication to or upon the Trust or the
Property Trustee shall be deemed to have been sufficiently given or made only
upon actual receipt of the writing by the Trust or the Property Trustee.


 


Section 1009        Agreement Not to Petition.  Each of the Trustees and the Depositor agrees
for the benefit of the Securityholders that, until at least one year and one
day after the Trust has been terminated in accordance with Article IX,
they shall not file, or join in the filing of, a petition against the Trust
under any bankruptcy, insolvency, reorganization or other similar law
(including, without limitation, the United States Bankruptcy Code of 1978, as
amended) (collectively, “Bankruptcy Laws”) or otherwise join in the
commencement of any proceeding against the Trust under any Bankruptcy Law. In
the event the Depositor or any of the Trustees takes action in violation of
this Section 1009, the Property Trustee agrees, for the benefit of the
Securityholders, that at the expense of the Depositor (which expense shall be
paid prior to the filing), it shall file an answer with the bankruptcy court or
otherwise properly contest the filing of such petition by the Depositor or such
Trustee against the Trust or the commencement of such action and raise the
defense that the Depositor or such Trustee has agreed in writing not to take
such action and should be stopped and precluded therefrom. The provisions of
this Section 1009 shall survive the termination of this Trust Agreement.


 


Section 1010        Trust Indenture Act; Conflict with Trust
Indenture Act.


 


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


 


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


 


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


 


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


 


Section 1011        Acceptance of Terms of the Trust
Agreement, the Guarantee and the Indenture.  THE RECEIPT AND ACCEPTANCE OF A TRUST
SECURITY OR ANY INTEREST THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY
BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT,
SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL
OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND
PROVISIONS OF THIS TRUST AGREEMENT AND AGREEMENT TO THE SUBORDINATION
PROVISIONS AND 


 


49

















 


OTHER TERMS OF THE
GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST,
SUCH SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS. 
WITHOUT LIMITING THE FOREGOING, BY ACCEPTANCE OF A PREFERRED SECURITY,
EACH HOLDER THEREOF SHALL BE DEEMED TO HAVE AGREED TO TREAT, FOR ALL UNITED
STATES FEDERAL INCOME TAX AND FINANCIAL ACCOUNTING PURPOSES, THE DEBENTURES AS
INDEBTEDNESS OF THE COMPANY AND THE PREFERRED SECURITIES AS EVIDENCING AN
UNDIVIDED BENEFICIAL OWNERSHIP INTEREST IN THE DEBENTURES.


 


50














 


	
   

  	
  S.Y. BANCORP, INC.,

  
	
   

  	
  as Depositor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  David P. Heintzman

  
	
   

  	
  Title:

  	
  Chairman and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WILMINGTON TRUST COMPANY,

  
	
   

  	
  as Property Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WILMINGTON TRUST COMPANY,

  
	
   

  	
  as Delaware Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DAVID P. HEINTZMAN,

  
	
   

  	
  as Administrative Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NANCY B. DAVIS, as Administrative Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  T. CLAY STINNETT, as Administrative Trustee

  



 

















 


EXHIBIT A


 


CERTIFICATE OF TRUST


OF


S.Y. BANCORP CAPITAL TRUST II


 


THIS
CERTIFICATE OF TRUST OF S.Y. BANCORP CAPITAL TRUST II (the “Trust”) is being
duly executed and filed by the undersigned, as trustee, to form a statutory
trust under the Delaware Statutory Trust Act (12 Del. C. Section 3801 et
seq.) (the “Act”).


 


1.             NAME. The name of the statutory
trust formed hereby is S.Y. Bancorp Capital Trust II.


 


2.             DELAWARE TRUSTEE. The name and
business address of the trustee of the Trust in the State of Delaware are
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration.


 


3.             EFFECTIVE DATE. This Certificate of
Trust shall be effective on the date of filing.


 


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


 


 


	
   

  	
  WILMINGTON TRUST COMPANY, as Property

  Trustee and Delaware Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DAVID P. HEINTZMAN, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NANCY B. DAVIS, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  T. CLAY STINNETT, as Trustee

  



 


A-1

















 


EXHIBIT B


 


THIS CERTIFICATE IS NOT TRANSFERABLE


EXCEPT IN COMPLIANCE WITH


SECTION 510 OF THE TRUST AGREEMENT


 




	
  CERTIFICATE NUMBER
                                         

  	
   

  	
  NUMBER OF COMMON SECURITIES

  	
   

  	
  .

  






 


CERTIFICATE
EVIDENCING COMMON SECURITIES


OF


S.Y. BANCORP
CAPITAL TRUST II


 


COMMON
SECURITIES


LIQUIDATION
AMOUNT $10 PER COMMON SECURITY


 


S.Y. BANCORP
CAPITAL TRUST II, a statutory trust created under the laws of the State of Delaware
(the “Trust”), hereby certifies that S.Y. BANCORP, INC. (the “Holder”) is the
registered owner of
                                        
(                )
common securities of the Trust representing undivided beneficial interests in
the assets of the Trust and designated the Common Securities (liquidation
amount $10 per Common Security) (the “Common Securities”).  In accordance with Section 510 of the
Trust Agreement (as defined below), the Common Securities are not transferable
and any attempted transfer hereof shall be void.  The designations, rights, privileges,
restrictions, preferences, and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust dated
as of [December         , 2008],
as the same may be amended from time to time (the “Trust Agreement”), including
the designation of the terms of the Common Securities as set forth
therein.  The Trust shall furnish a copy
of the Trust Agreement to the Holder without charge upon written request to the
Trust at its principal place of business or registered office.


 


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


 


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


 


 


	
   

  	
  S.Y. BANCORP CAPITAL TRUST II

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


B-1

















 


EXHIBIT C


 


AGREEMENT AS TO EXPENSES AND LIABILITIES


 


AGREEMENT AS
TO EXPENSES AND LIABILITIES (this “Agreement”) dated as of [December         ,
2008,] between S.Y. BANCORP, INC., a Kentucky corporation (the “Company”), and
S.Y. BANCORP CAPITAL TRUST II, a Delaware statutory trust (the “Trust”).


 


RECITALS


 


WHEREAS, the
Trust intends to issue its common securities (the “Common Securities”) to, and
receive
[            %]
Subordinated Debentures (the “Debentures”) from, the Company and to issue and
sell up to 3,000,000
[            %]
Cumulative Trust Preferred Securities (the “Preferred Securities”) with such
powers, preferences and special rights and restrictions as are set forth in the
Amended and Restated Trust Agreement of the Trust dated as of [December         ,
2008,] as the same may be amended from time to time (the “Trust Agreement”);


 


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


 


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


 


ARTICLE I


 


Section 1.1.           Guarantee by the Company.


 


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


 


Section 1.2.           Term of Agreement.


 


This Agreement
shall terminate and be of no further force and effect upon the later of (a) the
date on which full payment has been made of all amounts payable to all holders
of all the Preferred Securities (whether upon redemption, liquidation, exchange
or otherwise); and (b) the 


 


C-1

















 


date on which there are no Beneficiaries remaining; provided, however,
that this Agreement shall continue to be effective or shall be reinstated, as
the case may be, if at any time any holder of the Preferred Securities or any
Beneficiary must restore payment of any sums paid under the Preferred
Securities, under any obligation under the Preferred Securities Guarantee
Agreement dated the date hereof by the Company and Wilmington Trust Company as
guarantee trustee, or under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.


 


Section 1.3.           Waiver of Notice.


 


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


 


Section 1.4.           No Impairment.


 


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


 


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


 


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


 


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


 


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


 


Section 1.5.           Enforcement.


 


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


 


C-2

















 


ARTICLE II


 


Section 2.1.           Binding Effect.


 


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


 


Section 2.2.           Amendment.


 


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


 


Section 2.3.           Notices.


 


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


 


S.Y. Bancorp
Capital Trust II, c/o S.Y. Bancorp, Inc., 1040 East Main Street,
Louisville, Kentucky 40206.  Facsimile
No.: (502) 625-2295.  Attention: Chief
Financial Officer.


 


S.Y. Bancorp, Inc.,
1040 East Main Street, Louisville, Kentucky 40206.  Facsimile No.: (502) 625-2295.  Attention: Chief Financial Officer.


 


Section 2.4.           Governing Law.


 


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


 


[The remainder of this page has been
left blank intentionally]


 


C-3

















 


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


 


	
   

  	
  S.Y. BANCORP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  David P. Heintzman

  
	
   

  	
  Title:

  	
  Chairman and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  S.Y. BANCORP CAPITAL TRUST II

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Nancy B. Davis

  
	
   

  	
  Title:

  	
  Administrative Trustee

  



 


C-4

















 


EXHIBIT D


 


	
  Certificate Number P-1

  	
   

  	
  Number of Preferred Securities 3,000,000

  
	
  CUSIP NO.

  	
   

  	
   

  



 


Certificate Evidencing Preferred Securities


of


S.Y. Bancorp Capital Trust II


 


[            %]
Cumulative Trust Preferred Securities


(Liquidation Amount $10 per Preferred
Security)


 


S.Y. BANCORP
CAPITAL TRUST II, a statutory trust created under the laws of the State of
Delaware (the “Trust”), hereby certifies that Cede & Co. (the “Holder”)
is the registered owner of Three Million (3,000,000)] preferred securities (the
“Preferred Securities”) of the Trust representing undivided beneficial
interests in the assets of the Trust and designated the
[            %]
Cumulative Trust Preferred Securities (Liquidation Amount $10 per Preferred
Security). The Preferred Securities are transferable on the books and records of
the Trust, in person or by a duly authorized attorney, upon surrender of this
Certificate duly endorsed and in proper form for transfer as provided in Section 504
of the Trust Agreement (as defined herein). 
The designations, rights, privileges, restrictions, preferences, and
other terms and provisions of the Preferred Securities are set forth in, and
this Certificate and the Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended
and Restated Trust Agreement of the Trust dated as of [December         ,
2008,] as the same may be amended from time to time (the “Trust Agreement”),
including the designation of the terms of the Preferred Securities as set forth
therein.  The Holder is entitled to the
benefits of the Preferred Securities Guarantee Agreement entered into by S.Y.
Bancorp, Inc., a Kentucky corporation, and Wilmington Trust Company, as
guarantee trustee, dated as of [December         ,
2008] (the “Guarantee”), to the extent provided therein.  The Trust shall furnish a copy of the Trust
Agreement and the Guarantee to the Holder without charge upon written request
to the Trust at its principal place of business or registered office.


 


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


 


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


 


D-1

















 


IN
WITNESS WHEREOF, the Administrative Trustees of the Trust have executed this
Certificate as of this
[        ] day of [December, 2008.]


 


	
   

  	
  S.Y. BANCORP CAPITAL TRUST II

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  David P. Heintzman

  
	
   

  	
   

  	
  Administrative Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Nancy B. Davis

  
	
   

  	
   

  	
  Administrative Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  T. Clay Stinnett

  
	
   

  	
   

  	
  Administrative Trustee

  



 


 


LEGEND


 


FOR CERTIFICATES EVIDENCING


 


GLOBAL PREFERRED SECURITIES ONLY:


 


Unless this certificate is presented by an authorized representative of
the Depository Trust Company, a New York corporation (“DTC”), to Issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is required by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.


 


D-2

















 


[FORM OF REVERSE OF CERTIFICATE]


 


The Trust will furnish without charge to any registered owner of
Preferred Securities who so requests, a copy of the Trust Agreement and the
Guarantee.  Any such request should be in
writing and addressed to S.Y. Bancorp Capital Trust II, c/o S.Y. Bancorp, Inc.,
1040 East Main Street, Louisville, Kentucky 40206 or to the Registrar named on
the face of this Certificate.


 


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


 


	
  TEN COM

  	
  -

  	
  as tenants in common

  	
  UNIF GIFT MIN ACT

  	
  -       Custodian

  
	
   

  	
   

  	
   

  	
   

  	
  (Cust)                  (Minor)

  
	
  TEN ENT

  	
  -

  	
  as tenants by the entireties

  	
   

  	
  under Uniform Gifts to

  
	
   

  	
   

  	
   

  	
   

  	
  Minors Act

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (State)

  
	
  JT TEN

  	
   

  	
  as joint tenants with right 

  	
  UNIF TRF MIN ACT

  	
   

  
	
   

  	
   

  	
  of survivorship and not as 

  	
   

  	
  -

  	
  Custodian

  
	
   

  	
   

  	
  tenants in common

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (until age)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  under Uniform

  
	
   

  	
   

  	
   

  	
   

  	
  (Minor)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Transfers to Minors

  
	
   

  	
   

  	
   

  	
   

  	
  Act

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
                  (State)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOD

  	
  -

  	
  transfer on death direction in event owner’s death, to person named
  on face and subject to TOD rules referenced

  	
   

  	
   

  
									



 


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


 


	
  FOR VALUE RECEIVED, the undersigned hereby sell, assign and transfer unto:

  	
   

  



 




(Please insert Social Security or other

identifying number of assignee)





 


	
   

  	
   

  
	
   

  	
   

  



 


 




(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS,
INCLUDING ZIP CODE, OF ASSIGNEE)





	
   

  
	
   

  
	
   

  	
  Preferred Securities represented by the within Certificate, and
  do(es) hereby 

  



irrevocably constitute and appoint


 


	
   

  	
  attorney

  



to transfer the said Preferred Securities on the books of the within-named
Trust with full power of substitution in the premises.


 


	
  Dated:

  	
   

  	
   

  



 


	
   

  	
  Signature:

  	
   

  
	
   

  	
   

  	
  NOTICE:

  	
  THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPONDWITH THE NAME AS
  WRITTEN UPON THE FACE OF THECERTIFICATE IN EVERY PARTICULAR, WITHOUT
  ALTERNATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.

  



 


	
  SIGNATURE(S) GUARANTEED:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  
	
  THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR
  INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT
  UNIONS WITH MEMBERSHIP IN AN APPROVED MEDALLION SIGNATURE GUARANTEE PROGRAM),
  PURSUANT TO S.E.C. RULE 17Ad-15.

  



 


D-3

















 


EXHIBIT E


 


FORM OF CERTIFICATE OF AUTHENTICATION


 


CERTIFICATE OF AUTHENTICATION


 


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


 


 


Dated:


 


 


WILMINGTON TRUST COMPANY,


as Authenticating Agent and Registrar


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  



 


E-1