exv10w2



 




EXHIBIT
10.2


 

 





AMENDED AND RESTATED TRUST AGREEMENT


among


WINTRUST FINANCIAL CORPORATION,

as Depositor


WILMINGTON TRUST COMPANY,

as Property Trustee


WILMINGTON TRUST COMPANY,

as Delaware Trustee


and


THE ADMINISTRATIVE TRUSTEES NAMED HEREIN

as Administrative Trustees



 





Dated as of August 2, 2005


WINTRUST CAPITAL TRUST VIII



 

 






 









 












TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE I. Defined Terms	 	 	1	 
	SECTION 1.1.
	 	Definitions	 	 	1	 
	 
	 	 	 	 	 	 
	ARTICLE II. The Trust	 	 	11	 
	SECTION 2.1.
	 	Name	 	 	11	 
	SECTION 2.2.
	 	Office of the Delaware Trustee; Principal Place of Business	 	 	11	 
	SECTION 2.3.
	 	Initial Contribution of Trust Property; Fees, Costs and Expenses	 	 	11	 
	SECTION 2.4.
	 	Purposes of Trust	 	 	11	 
	SECTION 2.5.
	 	Authorization to Enter into Certain Transactions	 	 	12	 
	SECTION 2.6.
	 	Assets of Trust	 	 	14	 
	SECTION 2.7.
	 	Title to Trust Property	 	 	14	 
	 
	 	 	 	 	 	 
	ARTICLE III. Payment Account; Paying Agents	 	 	15	 
	SECTION 3.1.
	 	Payment Account	 	 	15	 
	SECTION 3.2.
	 	Appointment of Paying Agents	 	 	15	 
	 
	 	 	 	 	 	 
	ARTICLE IV. Distributions; Redemption	 	 	16	 
	SECTION 4.1.
	 	Distributions	 	 	16	 
	SECTION 4.2.
	 	Redemption	 	 	17	 
	SECTION 4.3.
	 	Subordination of Common Securities	 	 	20	 
	SECTION 4.4.
	 	Payment Procedures	 	 	20	 
	SECTION 4.5.
	 	Withholding Tax	 	 	21	 
	SECTION 4.6.
	 	Tax Returns and Other Reports	 	 	21	 
	SECTION 4.7.
	 	Payment of Taxes, Duties, Etc. of the Trust	 	 	21	 
	SECTION 4.8.
	 	Payments under Indenture or Pursuant to Direct Actions	 	 	22	 
	SECTION 4.9.
	 	Exchanges	 	 	22	 
	SECTION 4.10.
	 	Calculation Agent	 	 	22	 
	SECTION 4.11.
	 	Certain Accounting Matters	 	 	23	 
	 
	 	 	 	 	 	 
	ARTICLE V. Securities	 	 	24	 
	SECTION 5.1.
	 	Initial Ownership	 	 	24	 
	SECTION 5.2.
	 	Authorized Trust Securities	 	 	24	 
	SECTION 5.3.
	 	Issuance of the Common Securities; Subscription and Purchase of Notes	 	 	24	 
	SECTION 5.4.
	 	The Securities Certificates	 	 	24	 
	SECTION 5.5.
	 	Rights of Holders	 	 	25	 
	SECTION 5.6.
	 	Book-Entry Preferred Securities	 	 	25	 
	SECTION 5.7.
	 	Registration of Transfer and Exchange of Preferred Securities Certificates	 	 	27	 
	SECTION 5.8.
	 	Mutilated, Destroyed, Lost or Stolen Securities Certificates	 	 	28	 
	SECTION 5.9.
	 	Persons Deemed Holders	 	 	29	 
	SECTION 5.10.
	 	Cancellation	 	 	29	 
	SECTION 5.11.
	 	Ownership of Common Securities by Depositor	 	 	30	 
	SECTION 5.12.
	 	Restricted Legends	 	 	30	 
	SECTION 5.13.
	 	Form of Certificate of Authentication	 	 	33	 
	 
	 	 	 	 	 	 
	ARTICLE VI. Meetings; Voting; Acts of Holders	 	 	33	 
	SECTION 6.1.
	 	Notice of Meetings	 	 	33	 






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	 	 	 	 	Page	 
	SECTION 6.2.
	 	Meetings of Holders of the Preferred Securities	 	 	33	 
	SECTION 6.3.
	 	Voting Rights	 	 	34	 
	SECTION 6.4.
	 	Proxies	 	 	34	 
	SECTION 6.5.
	 	Holder Action by Written Consent	 	 	34	 
	SECTION 6.6.
	 	Record Date for Voting and Other Purposes	 	 	34	 
	SECTION 6.7.
	 	Acts of Holders	 	 	35	 
	SECTION 6.8.
	 	Inspection of Records	 	 	36	 
	SECTION 6.9.
	 	Limitations on Voting Rights	 	 	36	 
	SECTION 6.10.
	 	Acceleration of Maturity; Rescission of Annulment; Waivers of Past Defaults	 	 	37	 
	 
	 	 	 	 	 	 
	ARTICLE VII. Representations and Warranties	 	 	39	 
	SECTION 7.1.
	 	Representations and Warranties of the Property Trustee and the Delaware Trustee	 	 	39	 
	SECTION 7.2.
	 	Representations and Warranties of Depositor	 	 	40	 
	 
	 	 	 	 	 	 
	ARTICLE VIII. The Trustees	 	 	41	 
	SECTION 8.1.
	 	Number of Trustees	 	 	41	 
	SECTION 8.2.
	 	Property Trustee Required	 	 	41	 
	SECTION 8.3.
	 	Delaware Trustee Required	 	 	41	 
	SECTION 8.4.
	 	Appointment of Administrative Trustees	 	 	42	 
	SECTION 8.5.
	 	Duties and Responsibilities of the Trustees	 	 	42	 
	SECTION 8.6.
	 	Notices of Defaults and Extensions	 	 	44	 
	SECTION 8.7.
	 	Certain Rights of Property Trustee	 	 	44	 
	SECTION 8.8.
	 	Delegation of Power	 	 	46	 
	SECTION 8.9.
	 	May Hold Securities	 	 	47	 
	SECTION 8.10.
	 	Compensation; Reimbursement; Indemnity	 	 	47	 
	SECTION 8.11.
	 	Resignation and Removal; Appointment of Successor	 	 	48	 
	SECTION 8.12.
	 	Acceptance of Appointment by Successor	 	 	49	 
	SECTION 8.13.
	 	Merger, Conversion, Consolidation or Succession to Business	 	 	49	 
	SECTION 8.14.
	 	Not Responsible for Recitals or Issuance of Securities	 	 	50	 
	SECTION 8.15.
	 	Property Trustee May File Proofs of Claim	 	 	50	 
	SECTION 8.16.
	 	Reports to and from the Property Trustee	 	 	51	 
	 
	 	 	 	 	 	 
	ARTICLE IX. Termination, Liquidation and Merger	 	 	51	 
	SECTION 9.1.
	 	Dissolution Upon Expiration Date	 	 	51	 
	SECTION 9.2.
	 	Early Termination	 	 	51	 
	SECTION 9.3.
	 	Termination	 	 	52	 
	SECTION 9.4.
	 	Liquidation	 	 	52	 
	SECTION 9.5.
	 	Mergers, Consolidations, Amalgamations or Replacements of Trust	 	 	53	 
	 
	 	 	 	 	 	 
	ARTICLE X. Information to Purchaser	 	 	55	 
	SECTION 10.1.
	 	Depositor Obligations to Purchaser	 	 	55	 
	SECTION 10.2.
	 	Trustee’s Obligations to Purchaser	 	 	55	 
	 
	 	 	 	 	 	 
	ARTICLE XI. Miscellaneous Provisions	 	 	55	 
	SECTION 11.1.
	 	Limitation of Rights of Holders	 	 	55	 
	SECTION 11.2.
	 	Agreed Tax Treatment of Trust and Trust Securities	 	 	55	 
	SECTION 11.3.
	 	Amendment	 	 	56	 
	SECTION 11.4.
	 	Separability.	 	 	57	 
	SECTION 11.5.
	 	Governing Law	 	 	57	 
	SECTION 11.6.
	 	Successors	 	 	57	 






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	 	 	 	 	Page	 
	SECTION 11.7.
	 	Headings	 	 	57	 
	SECTION 11.8.
	 	Reports, Notices and Demands	 	 	58	 
	SECTION 11.9.
	 	Agreement Not to Petition	 	 	58	 






	 	 	 
	Exhibit A

	 	Certificate of Trust of Wintrust Capital Trust VIII
	Exhibit B

	 	Form of Common Securities Certificate
	Exhibit C

	 	Form of Preferred Securities Certificate
	Exhibit D

	 	Junior Subordinated Indenture
	Exhibit E

	 	Form of Transferee Certificate to be Executed by Transferees other than QIBs
	Exhibit F

	 	Form of Transferee Certificate to be Executed by QIBs
	Exhibit G

	 	Form of Officer’s Certificate
	Schedule A

	 	Calculation of LIBOR






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     AMENDED AND RESTATED TRUST AGREEMENT, dated as of August 2, 2005, among (i) Wintrust Financial
Corporation, an Illinois corporation (including any successors or permitted assigns, the
“Depositor”), (ii) Wilmington Trust Company, a Delaware banking corporation, as property trustee
(in such capacity, the “Property Trustee”), (iii) Wilmington Trust Company, a Delaware banking
corporation, as Delaware trustee (in such capacity, the “Delaware Trustee”), (iv) Edward J. Wehmer,
an individual, David A. Dykstra, an individual, and David L. Stoehr, an individual, each of whose
address is c/o Wintrust Financial Corporation, 727 North Bank Lane, Lake Forest, Illinois, 60045,
as administrative trustees (in such capacities, each an “Administrative Trustee” and, collectively,
the “Administrative Trustees” and, together with the Property Trustee and the Delaware Trustee, the
“Trustees”) and (v) the several Holders, as hereinafter defined.



Witnesseth




     Whereas, the Depositor, the Property Trustee and the Delaware Trustee have heretofore
created a Delaware statutory trust pursuant to the Delaware Statutory Trust Act, as hereinafter
defined, by entering into a Trust Agreement, dated as of July 29, 2005 (the “Original Trust
Agreement”), and by executing and filing with the Secretary of State of the State of Delaware the
Certificate of Trust, substantially in the form attached as Exhibit A; and



     Whereas, the Depositor and the Trustees desire to amend and restate the Original
Trust Agreement in its entirety as set forth herein to provide for, among other things, (i) the
issuance of the Common Securities by the Trust to the Depositor, (ii) the issuance and sale of the
Preferred Securities by the Trust pursuant to the Subscription Agreement and (iii) the acquisition
by the Trust from the Depositor of all of the right, title and interest in and to the Notes (as
defined herein);



     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 Holders
(as defined herein), hereby amends and restates the Original Trust Agreement in its entirety and
agrees as follows:



ARTICLE I.




Defined Terms



     SECTION 1.1. Definitions.



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




     (a) the terms defined in this Article I have the meanings assigned to them in
this Article I;




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



 









 






     (c) all accounting terms used but not defined herein have the meanings assigned to them
in accordance with United States generally accepted accounting principles;




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




     (e) the words “hereby,” “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;




     (f) a reference to the singular includes the plural and vice versa; and



     (g) the masculine, feminine or neuter genders used herein shall include the masculine,
feminine and neuter genders.



     “Act” has the meaning specified in Section 6.7.



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



     “Additional Interest Amount” means, with respect to Trust Securities of a given Liquidation
Amount and/or a given period, the amount of Additional Interest paid by the Depositor on a Like
Amount of Notes for such period.



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



     “Additional Tax Sums” has the meaning specified in Section 10.5 of the Indenture.



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



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



     “Applicable Depositary Procedures” means, with respect to any transfer or transaction
involving a Book-Entry Preferred Security, the rules and procedures of the Depositary for such
Book-Entry Preferred Security, in each case to the extent applicable to such transaction and as in
effect from time to time.



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



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     (a) the entry of a decree or order by a court having jurisdiction in the premises (i)
judging such Person a bankrupt or insolvent, (ii) approving as properly filed a petition
seeking reorganization, arrangement, adjudication or composition of or in respect of such
Person under any applicable Federal or state bankruptcy, insolvency, reorganization or other
similar law, (iii) appointing a custodian, receiver, conservator, liquidator, assignee,
trustee, sequestrator or other similar official of such Person or of any substantial part of
its property or (iv) ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period of sixty (60)
consecutive days; or




     (b) the institution by such Person of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law, or the consent by it to the filing of any such petition or to the appointment
of a custodian, receiver, conservator, liquidator, assignee, trustee, sequestrator or
similar official of such Person or of any substantial part of its property, or the making by
it of an assignment for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due and its willingness to be
adjudicated a bankrupt or insolvent, or the taking of corporate action by such Person in
furtherance of any such action.



     “Bankruptcy Laws” means all Federal and state bankruptcy, insolvency, reorganization and other
similar laws, including the United States Bankruptcy Code.



     “Book-Entry Preferred Security” means a Preferred Security, the ownership and transfers of
which shall be made through book entries by a Depositary.



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



     “Calculation Agent” has the meaning specified in Section 4.10.



     “Capital Disqualification Event” has the meaning specified in Section 1.1 of the
Indenture.



     “Closing Date” has the meaning specified in the Placement Agreement.



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



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



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     “Common Security” means an undivided beneficial interest in the assets of the Trust, having a
Liquidation Amount of $1,000 and having the rights provided therefor in this Trust Agreement.



     “Corporate Trust Office” means the principal office of the Property Trustee at which any
particular time its corporate trust business shall be administered, which office at the date of
this Trust Agreement is located at Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890-1600, Attention: Corporate Trust Administration.



     “Definitive Preferred Securities Certificates” means Preferred Securities issued in
certificated, fully registered form that are not Global Preferred Securities.



     “Delaware Statutory Trust Act” means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code
§ 3801 et seq., or any successor statute thereto, in each case as amended from time to time.



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



     “Depositary” means an organization registered as a clearing agency under the Exchange Act that
is designated as Depositary by the Depositor or any successor thereto. DTC will be the initial
Depositary.



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



     “Depositor” has the meaning specified in the preamble to this Trust Agreement and any
successors and permitted assigns.



     “Depositor Affiliate” has the meaning specified in Section 4.9.



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



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



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



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



     “Event of Default” means any one of the following events (whatever the reason for such event
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 Note Event of Default; or




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




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




     (d) default in the performance, or breach, in any material respect of any covenant or
warranty of the Trustees in this Trust Agreement (other than those specified in clause (b)
or (c) above) and continuation of such default or breach for a period of thirty (30) days
after there has been given, by registered or certified mail, to the Trustees and to the
Depositor by the Holders of at least twenty five percent (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 if a
successor Property Trustee has not been appointed within ninety (90) days thereof.



     “Exchange Act” means the Securities Exchange Act of 1934, and any successor statute thereto,
in each case as amended from time to time.



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



     “Extension Period” has the meaning specified in Section 4.1(a)(ii).



     “Federal Reserve” means the Board of Governors of the Federal Reserve System, the staff
thereof, or a Federal Reserve Bank, acting through delegated authority, in each case under the
rules, regulations and policies of the Federal Reserve System, or if at any time after the
execution of this Trust Agreement any such entity is not existing and performing the duties now
assigned to it , any successor body performing similar duties or functions.



     “Fiscal Year” shall be the fiscal year of the Trust, which shall be the calendar year, or such
other period as is required by the Code.



     “Global Preferred Security” means a Preferred Securities Certificate evidencing ownership of
Book-Entry Preferred Securities.



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



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



5









 





     “Indemnified Person” has the meaning specified in Section 8.10(c).



     “Indenture” means the Junior Subordinated Indenture executed and delivered by the Depositor
and the Note Trustee contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the holders of the Notes, a copy of which is attached hereto as Exhibit D,
as amended or supplemented from time to time.



     “Indenture Redemption Price” has the meaning specified in Section 4.2(c).



     “Interest Payment Date” has the meaning specified in Section 1.1 of the Indenture.



     “Investment Company Act” means the Investment Company Act of 1940, or any successor statute
thereto, in each case as amended from time to time.



     “Investment Company Event” has the meaning specified in Section 1.1 of the Indenture.



     “LIBOR” has the meaning specified in Schedule A.



     “LIBOR Business Day” has the meaning specified in Schedule A.



     “LIBOR Determination Date” has the meaning specified in Schedule A.



     “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 any Trust Securities, Trust Securities
having a Liquidation Amount equal to the principal amount of Notes to be contemporaneously redeemed
or paid at maturity in accordance with the Indenture, the proceeds of which will be used to pay the
Redemption Price of such Trust Securities, (b) with respect to a distribution of Notes to Holders
of Trust Securities in connection with a dissolution of the Trust, Notes having a principal amount
equal to the Liquidation Amount of the Trust Securities of the Holder to whom such Notes are
distributed and (c) with respect to any distribution of Additional Interest Amounts to Holders of
Trust Securities, Notes having a principal amount equal to the Liquidation Amount of the Trust
Securities in respect of which such distribution is made.



     “Liquidation Amount” means the stated amount of $1,000 per Trust Security.



     “Liquidation Date” means the date on which assets are to be distributed to Holders in
accordance with Section 9.4(a) hereunder following dissolution of the Trust.



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



     “Majority in Liquidation Amount of the Preferred Securities” means Preferred Securities
representing more than fifty percent (50%) of the aggregate Liquidation Amount of all (or a
specified group of) then Outstanding Preferred Securities.



6









 





     “Note Event of Default” means any “Event of Default” specified in Section 5.1 of the
Indenture.



     “Note Redemption Date” means, with respect to any Notes to be redeemed under the Indenture,
the date fixed for redemption of such Notes under the Indenture.



     “Note Trustee” means the Person identified as the “Trustee” in the Indenture, solely in its
capacity as Trustee pursuant to the Indenture and not in its individual capacity, or its successor
in interest in such capacity, or any successor Trustee appointed as provided in the Indenture.



     “Notes” means the Depositor’s Floating Rate Junior Subordinated Notes issued pursuant to the
Indenture.



     “Office of Thrift Supervision” means the Office of Thrift Supervision, as from time to time
constituted or, if at any time after the execution of this Trust Agreement such Office is not
existing and performing the duties now assigned to it, then the body performing such duties at such
time.



     “Officers’ Certificate” means a certificate signed by the Chief Executive Officer, the
President or an Executive Vice President, and by the Chief Financial Officer, Treasurer or an
Assistant Treasurer, of the Depositor, and delivered to the Trustees. Any Officers’ Certificate
delivered with respect to compliance with a condition or covenant provided for in this Trust
Agreement (other than the Officers’ Certificate provided pursuant to Section 8.16(a)) shall
include:




     (a) a statement by each officer signing the Officers’ Certificate that such officer 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 such officer in rendering the Officers’ Certificate;




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




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



     “Operative Documents” means the Placement Agreement, the Indenture, the Trust Agreement, the
Guarantee Agreement, the Subscription Agreement, the Notes and the Trust Securities.



     “Opinion of Counsel” means a written opinion of counsel, who may be counsel for, or an
employee of, the Depositor or any Affiliate of the Depositor.



     “Original Issue Date” means the date of original issuance of the Trust Securities.



7









 





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



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




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




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




     (c) Trust Securities that have been paid or in exchange for or in lieu of which other
Trust Securities have been executed and delivered pursuant to the provisions of this Trust
Agreement, unless proof satisfactory to the Property Trustee is presented that any such
Trust Securities are held by Holders in whose hands such Trust Securities are valid, legal
and binding obligations of the Trust;


provided, that in determining whether the Holders of the requisite Liquidation Amount of the
Outstanding Preferred Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Preferred Securities owned by the Depositor, any Trustee or any
Affiliate of the Depositor or of any Trustee shall be disregarded and deemed not to be Outstanding,
except that (i) in determining whether any Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only Preferred Securities
that such Trustee knows to be so owned shall be so disregarded and (ii) the foregoing shall not
apply at any time when all of the Outstanding Preferred Securities are owned by the Depositor, one
or more of the Trustees and/or any such Affiliate. Preferred Securities so owned that have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Administrative Trustees the pledgee’s right so to act with respect to such Preferred
Securities and that the pledgee is not the Depositor, any Trustee or any Affiliate of the Depositor
or of any Trustee.




     “Owner” means each Person who is the beneficial owner of Book-Entry Preferred Securities as
reflected in the records of the Depositary or, if a Depositary Participant is not the beneficial
owner, then the beneficial owner as reflected in the records of the Depositary Participant.



     “Paying Agent” means any Person authorized by the Administrative Trustees to pay Distributions
or other amounts in respect of any Trust Securities on behalf of the Trust.



     “Payment Account” means a segregated non-interest-bearing corporate trust account maintained
by the Property Trustee for the benefit of the Holders in which all amounts paid in respect of the
Notes will be held and from which the Property Trustee, through the Paying Agent, shall make
payments to the Holders in accordance with Sections 3.1, 4.1 and 4.2.



8









 





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



     “Placement Agent” means SunTrust Capital Markets, Inc., as Placement Agent pursuant to the
Placement Agreement, whose address is 303 Peachtree Street, 24th Floor, Mail Code 3950, Atlanta,
Georgia 30308.



     “Placement Agreement” means the Placement Agreement, dated as of August 2, 2005, executed and
delivered by the Trust, the Depositor and SunTrust Capital Markets, Inc., as placement agent.



     “Preferred Security” means an undivided beneficial interest in the assets of the Trust, having
a Liquidation Amount of $1,000 and having the rights provided therefor in this Trust Agreement.



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



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



     “Purchaser” means STI Investment Management, Inc., as purchaser of the Preferred Securities
pursuant to the Subscription Agreement, whose address is 2202 Polly Drummond Office Park, Newark,
Delaware 19711.



     “QIB” means a “qualified institutional buyer” as defined in Rule 144A under the Securities
Act.



     “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 Note Redemption Date
and the stated maturity (or any date of principal repayment upon early maturity) of the Notes 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, plus the related
amount of the premium, if any, paid by the Depositor upon the concurrent redemption or payment at
maturity of a Like Amount of Notes.



     “Reference Banks” has the meaning specified in Schedule A.



     “Responsible Officer” means, with respect to the Property Trustee, any Senior Vice President,
any Vice President, any Assistant Vice President, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, any Financial Services Officer or Assistant Financial Services
Officer or any other officer of the Corporate Trust Department of the Property



9









 




Trustee and also means, with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of that officer’s knowledge of and familiarity with the
particular subject.




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



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



     “Securities Register” and “Securities Registrar” have the respective meanings specified in
Section 5.7.



     “Special Event Redemption Price” has the meaning specified in Section 11.2 of the
Indenture.



     “Subscription Agreement” means the Preferred Securities Subscription Agreement, dated as of
August 2, 2005, by and among the Company, the Trust, the Purchaser and SunTrust Capital Markets,
Inc. (as to certain provisions thereof).



     “Successor Securities” has the meaning specified in Section 9.5(a).



     “Tax Event” has the meaning specified in Section 1.1 of the Indenture.



     “Trust” means the Delaware statutory trust known as “Wintrust Capital Trust VIII,” which was
created on July 29, 2005, under the Delaware Statutory Trust Act pursuant to the Original Trust
Agreement and the filing of the Certificate of Trust, and continued pursuant to this Trust
Agreement.



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



     “Trustees” means the Administrative Trustees, the Property Trustee and the Delaware Trustee,
each as defined in this Article I.



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



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



10









 





ARTICLE II.




The Trust



     SECTION 2.1. Name.



     The trust continued hereby shall be known as “Wintrust Capital Trust VIII,” 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 conduct the
business of the Trust, make and execute contracts and other instruments on behalf of the Trust and
sue and be sued.



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



     The address of the Delaware Trustee in the State of Delaware is Rodney Square North, 1100
North Market Street, Wilmington, Delaware 19890-1600, Attention: Corporate Trust Administration,
or such other address in the State of Delaware as the Delaware Trustee may designate by written
notice to the Holders, the Depositor, the Property Trustee and the Administrative Trustees. The
principal executive office of the Trust is c/o Wintrust Financial Corporation 727 North Bank Lane,
Lake Forest, Illinois, 60045, Attention: Chief Financial Officer, as such address may be changed
from time to time by the Administrative Trustees following written notice to the Holders and the
other Trustees.



     SECTION 2.3. Initial Contribution of Trust Property; Fees, Costs and Expenses.



     The Property Trustee acknowledges receipt from the Depositor in connection with the Original
Trust Agreement of the sum of ten dollars ($10), which constituted the initial Trust Property. The
Depositor shall pay all fees, costs and expenses of the Trust (except with respect to the Trust
Securities) as they arise or shall, upon request of any Trustee, promptly reimburse such Trustee
for any such fees, costs and expenses paid by such Trustee. The Depositor shall make no claim upon
the Trust Property for the payment of such fees, costs or expenses.



     SECTION 2.4. Purposes of Trust.



     (a) The exclusive purposes and functions of the Trust are to (i) issue and sell Trust
Securities and use the proceeds from such sale to acquire the Notes and (ii) engage in only those
activities necessary or incidental thereto. The Delaware Trustee, the Property Trustee and the
Administrative Trustees are trustees of the Trust, and have all the rights, powers and duties to
the extent set forth herein. The Trustees hereby acknowledge that they are trustees of the Trust.



     (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 Trust (or the Trustees acting
on behalf of the Trust) 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
Holders, except as expressly provided herein, (iii) incur any indebtedness for borrowed money or
issue any other debt, (iv) take or consent to any action that would result in the placement of a
Lien on



11









 




any of the Trust Property, (v) take or consent to any action that would reasonably be expected
to cause the Trust to become taxable as a corporation or classified as other than a grantor trust
for United States federal income tax purposes, (vi) take or consent to any action that would cause
the Notes to be treated as other than indebtedness of the Depositor for United States federal
income tax purposes or (vii) take or consent to any action that would cause the Trust to be deemed
to be an “investment company” required to be registered under the Investment Company Act.




     SECTION 2.5. Authorization to Enter into Certain Transactions.



     (a) The Trustees shall conduct the affairs of the Trust in accordance with and subject to the
terms of this Trust Agreement. In accordance with the following provisions (i) and (ii), the
Trustees shall have the authority to enter into all transactions and agreements determined by the
Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to
the Trustees, under this Trust Agreement, and to perform all acts in furtherance thereof, including
the following:




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




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




     (B) to cause the Trust to enter into, and to execute, deliver and perform on
behalf of the Trust, such agreements as may be necessary or desirable in connection
with the purposes and function of the Trust, including, without limitation, a common
securities subscription agreement and a junior subordinated note subscription
agreement and to cause the Trust to perform in accordance with the Placement
Agreement and the Subscription Agreement;




     (C) assisting in the sale of the Preferred Securities in one or more
transactions exempt from registration under the Securities Act, and in compliance
with applicable state securities or blue sky laws;




     (D) assisting in the sending of notices (other than notices of default) and
other information regarding the Trust Securities and the Notes to the Holders in
accordance with this Trust Agreement;




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




     (F) execution of the Trust Securities on behalf of the Trust in accordance with
this Trust Agreement;




     (G) execution and delivery of closing certificates, if any, pursuant to the
Placement Agreement and application for a taxpayer identification number for the
Trust;



12









 






     (H) preparation and filing of all applicable tax returns and tax information
reports that are required to be filed on behalf of the Trust;




     (I) establishing a record date with respect to all actions to be taken
hereunder that require a record date to be established, except as provided in
Section 6.10(a);




     (J) unless otherwise required by the Delaware Statutory Trust Act to execute on
behalf of the Trust (either acting alone or together with the other Administrative
Trustees) any documents that such Administrative Trustee has the power to execute
pursuant to this Trust Agreement; and




     (K) the taking of any action incidental to the foregoing as such Administrative
Trustee may from time to time determine is necessary or advisable to give effect to
the terms of this Trust Agreement.




     (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 receipt and holding of legal title of the Notes;




     (B) the establishment of the Payment Account;




     (C) the collection of interest, principal and any other payments made in
respect of the Notes and the holding of such amounts in the Payment Account;




     (D) the distribution through the Paying Agent of amounts distributable to the
Holders in respect of the Trust Securities;




     (E) the exercise of all of the rights, powers and privileges of a holder of the
Notes in accordance with the terms of this Trust Agreement;




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




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




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




     (I) 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



13









 






for the benefit of the Holders (without consideration of the effect of any such
action on any particular Holder).



     (b) 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 negotiation of the terms of, and the execution and delivery of, the Placement
Agreement and the Subscription Agreement providing for the sale of the Preferred Securities
in one or more transactions exempt from registration under the Securities Act, and in
compliance with applicable state securities or blue sky laws; and




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



     (c) Notwithstanding anything herein to the contrary, the Administrative Trustees are
authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the
Trust will not be taxable as a corporation or classified as other than a grantor trust for United
States federal income tax purposes, so that the Notes will be treated as indebtedness of the
Depositor for United States federal income tax purposes and so that the Trust will not be deemed to
be an “investment company” required to be registered under the Investment Company Act. In this
connection, each Administrative Trustee is authorized to take any action, not inconsistent with
applicable law, the Certificate of Trust or this Trust Agreement, that such Administrative Trustee
determines in his or her discretion to be necessary or desirable for such purposes, as long as such
action does not adversely affect in any material respect the interests of the Holders of the
Outstanding Preferred Securities. In no event shall the Administrative Trustees be liable to the
Trust or the Holders for any failure to comply with this Section 2.5 to the extent that
such failure results solely from a change in law or regulation or in the interpretation thereof.



     (d) Any action taken by a Trustee in accordance with its powers shall constitute the act of
and serve to bind the Trust. In dealing with any Trustee acting on behalf of the Trust, no Person
shall be required to inquire into the authority of such Trustee to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority of any Trustee as set
forth in this Trust Agreement.



     SECTION 2.6. Assets of Trust.



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



     SECTION 2.7. Title to Trust Property.



     (a) Legal title to all Trust Property shall be vested at all times in the Property Trustee and
shall be held and administered by the Property Trustee in trust for the benefit of the Trust and
the Holders in accordance with this Trust Agreement.



     (b) The Holders shall not have any right or title to the Trust Property other than the
undivided beneficial interest in the assets of the Trust conferred by their Trust Securities and



14









 




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.




ARTICLE III.




Payment Account; Paying Agents



     SECTION 3.1. Payment Account.



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



     (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 with respect to, the Notes. Amounts
held in the Payment Account shall not be invested by the Property Trustee pending distribution
thereof.



     SECTION 3.2. Appointment of Paying Agents.



     The Paying Agent shall initially be the Property Trustee. The Paying Agent shall make
Distributions to Holders from the Payment Account and shall report the amounts of such
Distributions to the Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account solely for the purpose of making the
Distributions referred to above. The Administrative Trustees may revoke such power and remove the
Paying Agent in their sole discretion. Any Person acting as Paying Agent shall be permitted to
resign as Paying Agent upon thirty (30) days’ written notice to the Administrative Trustees and the
Property Trustee. If 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) to act as Paying Agent. Such successor Paying
Agent appointed by the Administrative Trustees shall execute and deliver to the Trustees an
instrument in which such successor Paying Agent shall agree with the Trustees that as Paying Agent,
such successor Paying Agent will hold all sums, if any, held by it for payment to the Holders in
trust for the benefit of the Holders entitled thereto until such sums shall be paid to such
Holders. The Paying Agent shall return all unclaimed funds to the Property Trustee and upon removal
of a Paying Agent such Paying Agent shall also return all funds in its possession to the Property
Trustee. The provisions of Article VIII shall apply to the Property Trustee also in its
role as Paying Agent, for so long as the Property Trustee shall act as Paying Agent and, to the
extent applicable, to any other Paying Agent appointed hereunder. Any reference in this Trust
Agreement to the Paying Agent shall include any co-paying agent unless the context requires
otherwise.



15









 





ARTICLE IV.




Distributions; Redemption



     SECTION 4.1. Distributions.



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




     (i) 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 August 2, 2005, and, except as provided in clause (ii)
below, shall be payable quarterly in arrears on March 31, June 30, September 30 and December
31 of each year, commencing on September 30, 2005. 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 Business Day (and no interest shall accrue
in respect of the amounts whose payment is so delayed for the period from and after each
such date until the next succeeding Business Day) with the same force and effect as if made
on such date (each date on which Distributions are payable in accordance with this Section
4.1(a)(i), a “Distribution Date”);




     (ii) in the event (and to the extent) that the Depositor exercises its right under the
Indenture to defer the payment of interest on the Notes, Distributions on the Trust
Securities shall be deferred. Under the Indenture, so long as no Note Event of Default
pursuant to paragraphs (c), (e) or (f) of Section 5.1 of the Indenture has occurred
and is continuing, the Depositor shall have the right, at any time and from time to time
during the term of the Notes, to defer the payment of interest on the Notes for a period of
up to twenty (20) consecutive quarterly interest payment periods (each such extended
interest payment period, an “Extension Period”). No interest on the Notes shall be due and
payable during an Extension Period (except any Additional Tax Sums that may be due and
payable), except at the end thereof, but each installment of interest that would otherwise
have been due and payable during such Extension Period shall bear Additional Interest (to
the extent payment of such interest would be legally enforceable) at a variable rate per
annum, reset quarterly, equal to LIBOR plus 1.45% thereafter, compounded quarterly, from the
dates on which such amounts would have otherwise been due and payable until paid or until
funds for the payment thereof have been made available for payment. If Distributions are
deferred, the deferred Distributions (including Additional Interest Amounts) shall be paid
on the date that the related Extension Period terminates, to Holders of the Trust Securities
as they appear on the books and records of the Trust on the record date immediately
preceding such termination date.




     (iii) Distributions shall accumulate and be payable in respect of the Trust Securities
at an annual rate equal to 5.15% beginning on (and including) the date of original issuance
and ending on (but excluding) September 30, 2005 and at an annual rate



16









 






for each successive period beginning on (and including) September 30, 2005, and each
successive Distribution Date, and ending on (but excluding) the next succeeding Distribution
Date at a variable rate per annum, reset quarterly, equal to LIBOR plus 1.45% of the
Liquidation Amount of the Trust Securities, such rate being the rate of interest payable on
the Notes. LIBOR shall be determined by the Calculation Agent in accordance with
Schedule A. The amount of Distributions payable for any period less than a full
Distribution period shall be computed on the basis of a 360-day year and the actual number
of days elapsed in the relevant Distribution period. The amount of Distributions payable
for any period shall include any Additional Interest Amounts in respect of such period; and




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



     (b) Distributions on the Trust Securities with respect to a Distribution Date shall be payable
to the Holders thereof as they appear on the Securities Register for the Trust Securities at the
close of business on the relevant record date, which shall be at the close of business on the
fifteenth day (whether or not a Business Day) preceding the relevant Distribution Date.
Distributions payable on any Trust Securities that are not punctually paid on any Distribution Date
as a result of the Depositor having failed to make an interest payment under the Notes will cease
to be payable to the Person in whose name such Trust Securities are registered on the relevant
record date, and such defaulted Distributions and any Additional Interest Amounts will instead be
payable to the Person in whose name such Trust Securities are registered on the special record
date, or other specified date for determining Holders entitled to such defaulted Distribution and
Additional Interest Amount, established in the same manner, and on the same date, as such is
established with respect to the Notes under the Indenture.



     SECTION 4.2. Redemption.



     (a) On each Note Redemption Date and on the stated maturity (or any date of principal
repayment upon early maturity) of the Notes and on each other date on (or in respect of) which any
principal on the Notes is repaid, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.



     (b) Notice of redemption shall be given by the Property Trustee by first-class mail, postage
prepaid, mailed not less than 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. All notices of redemption shall state:




     (i) the Redemption Date;




     (ii) the Redemption Price or, if the Redemption Price cannot be calculated prior to the
time the notice is required to be sent, the estimate of the Redemption Price provided
pursuant to the Indenture, as calculated by the Depositor, together with a statement that it
is an estimate and that the actual Redemption Price will be calculated by



17









 






the Calculation Agent on the fifth Business Day prior to the Redemption Date (and if an
estimate is provided, a further notice shall be sent of the actual Redemption Price on the
date that such Redemption Price is calculated);




     (iii) if less than all the Outstanding Trust Securities are to be redeemed, the
identification (and, in the case of partial redemption, the respective principal amounts)
and Liquidation Amounts of the particular Trust Securities to be redeemed;




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




     (v) the place or places where the Trust Securities are to be surrendered for the
payment of the Redemption Price; and




     (vi) such other provisions as the Property Trustee deems relevant.



     (c) The Trust Securities (or portion thereof) redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous redemption or payment
at maturity of Notes. Redemptions of the Trust Securities (or portion thereof) shall be made and
the Redemption Price shall be payable on each Redemption Date only to the extent that the Trust has
funds then on hand and available in the Payment Account for the payment of such Redemption Price.
Under the Indenture, the Notes may be redeemed by the Depositor on any Interest Payment Date, at
the Depositor’s option, on or after September 30, 2010, in whole or in part, from time to time at a
redemption price equal to one hundred percent (100%) of the principal amount thereof, together, in
the case of any such redemption, with accrued interest, including any Additional Interest, to but
excluding the date fixed for redemption (the “Indenture Redemption Price”); provided, that the
Depositor shall have received the prior approval of the Federal Reserve if then required. The
Notes may also be redeemed by the Depositor, at its option, in whole but not in part, upon the
occurrence of a Capital Disqualification Event, an Investment Company Event or a Tax Event at the
Special Event Redemption Price (as set forth in the Indenture).



     (d) If the Property Trustee gives a notice of redemption in respect of any Preferred
Securities, then by 10:00 A.M., New York City time, on the Redemption Date, the Depositor shall
deposit sufficient funds with the Property Trustee to pay the Redemption Price. If such deposit
has been made by such time, then by 12:00 noon, New York City time, on the Redemption Date, the
Property Trustee will, with respect to Book-Entry Preferred Securities, irrevocably deposit with
the Depositary for such Book-Entry Preferred Securities, to the extent available therefor, funds
sufficient to pay the applicable Redemption Price and will give such Depositary irrevocable
instructions and authority to pay the Redemption Price to the Holders of the Preferred Securities.
With respect to Preferred Securities that are not Book-Entry Preferred Securities, the Property
Trustee will irrevocably deposit with the Paying Agent, to the extent available therefor, funds
sufficient to pay the applicable Redemption Price and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the Holders of the Preferred Securities
upon surrender of their Preferred Securities Certificates.



18









 




Notwithstanding the foregoing, Distributions payable on or prior to the Redemption Date for
any Trust Securities (or portion thereof) called for redemption shall be payable to the Holders of
such Trust Securities as they appear on the Securities Register on the relevant record dates for
the related Distribution Dates. If notice of redemption shall have been given and funds deposited
as required, then upon the date of such deposit, all rights of Holders holding Trust Securities (or
portion thereof) so called for redemption will cease, except the right of such Holders to receive
the Redemption Price and any Distribution payable in respect of the Trust Securities on or prior to
the Redemption Date, but without interest, and, in the case of a partial redemption, the right of
such Holders to receive a new Trust Security or Securities of authorized denominations, in
aggregate Liquidation Amount equal to the unredeemed portion of such Trust Security or Securities,
and such Securities (or portion thereof) called for redemption will cease to be Outstanding. In the
event that any date on which any Redemption Price is payable is not a Business Day, then payment of
the Redemption Price payable on such date will be made on the next succeeding Business Day (and no
interest shall accrue in respect of the amounts whose payment is so delayed for the period from and
after each such date until the next succeeding Business Day) 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 (or portion thereof) called for redemption is improperly withheld or refused and not
paid either by the Trust or by the Depositor pursuant to the Guarantee Agreement, Distributions on
such Trust Securities(or portion thereof) will continue to accumulate, as set forth in Section
4.1, from the Redemption Date originally established by the Trust for such Trust Securities(or
portion thereof) to the date such Redemption Price is actually paid, in which case the actual
payment date will be the date fixed for redemption for purposes of calculating the Redemption
Price.




     (e) Subject to Section 4.3(a), if less than all the Outstanding Trust Securities are
to be redeemed on a Redemption Date, then the aggregate Liquidation Amount of Trust Securities to
be redeemed shall be allocated pro rata to the Common Securities and the Preferred Securities based
upon the relative aggregate Liquidation Amounts of the Common Securities and the Preferred
Securities. The Preferred Securities to be redeemed shall be redeemed on a pro rata basis based
upon their respective Liquidation Amounts 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; provided, however, that with respect to Holders that would be required to hold less
than one hundred (100) but more than zero (0) Trust Securities as a result of such redemption, the
Trust shall redeem Trust Securities of each such Holder so that after such redemption such Holder
shall hold either one hundred (100) Trust Securities or such Holder no longer holds any Trust
Securities, and shall use such method (including, without limitation, by lot) as the Trust shall
deem fair and appropriate; and provided, further, that so long as the Preferred Securities are
Book-Entry Preferred Securities, such selection shall be made in accordance with the Applicable
Depositary Procedures for the Preferred Securities by such Depositary. The Property Trustee shall
promptly notify the Securities Registrar in writing of the Preferred Securities (or portion
thereof) selected for redemption and, in the case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed. For all purposes of this Trust
Agreement, unless the context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Securities redeemed or to be
redeemed only in part, to the portion of the aggregate Liquidation Amount of Preferred Securities
that has been or is to be redeemed.



19









 





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



     SECTION 4.3. Subordination of Common Securities.



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



     (b) In the case of the occurrence of any Event of Default, the Holders of the Common
Securities shall have no right to act with respect to any such Event of Default under this Trust
Agreement until all such Events of Default with respect to the Preferred Securities have been
cured, waived or otherwise eliminated. Until all such Events of Default under this Trust Agreement
with respect to the Preferred Securities 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 on
behalf of the Holders of the Common Securities, and only the Holders of all the Preferred
Securities will have the right to direct the Property Trustee to act on their behalf.



     SECTION 4.4. Payment Procedures.



     Payments of Distributions (including any Additional Interest Amounts), the Redemption Price,
Liquidation Amount or any other amounts in respect of the Preferred Securities shall be made by
wire transfer at such place and to such account at a banking institution in the United States as
may be designated in writing at least ten (10) Business Days prior to the date for payment by the
Person entitled thereto unless proper written transfer instructions have not been received by the
relevant record date, in which case such payments shall be made by check mailed to the address of
such Person as such address shall appear in the Securities Register. If any Preferred Securities
are held by a Depositary, such Distributions thereon shall be made to the



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Depositary in immediately available funds. Payments in respect of the Common Securities shall
be made in such manner as shall be mutually agreed between the Property Trustee and the Holder of
all the Common Securities.




     SECTION 4.5. Withholding Tax.



     The Trust and the Administrative Trustees shall comply with all withholding and backup
withholding tax requirements under United States federal, state and local law. The Administrative
Trustees on behalf of the Trust shall request, and the Holders shall provide to the Trust, such
forms or certificates as are necessary to establish an exemption from withholding and backup
withholding tax with respect to each Holder and any representations and forms as shall reasonably
be requested by the Administrative Trustees on behalf of the Trust to assist it in determining the
extent of, and in fulfilling, its withholding and backup withholding tax obligations. The
Administrative Trustees shall file required forms with applicable jurisdictions and, unless an
exemption from withholding and backup withholding tax is properly established by a Holder, shall
remit amounts withheld with respect to the Holder to applicable jurisdictions. To the extent that
the Trust is required to withhold and pay over any amounts to any jurisdiction with respect to
Distributions or allocations to any Holder, the amount withheld shall be deemed to be a
Distribution in the amount of the withholding to the Holder. In the event of any claimed
overwithholding, Holders shall be limited to an action against the applicable jurisdiction. If the
amount required to be withheld was not withheld from actual Distributions made, the Administrative
Trustees on behalf of the Trust may reduce subsequent Distributions by the amount of such required
withholding.



     SECTION 4.6. Tax Returns and Other Reports.



     (a) The Administrative Trustees shall prepare (or cause to be prepared) at the principal
office of the Trust in the United States, as defined for purposes of Treasury regulations section
301.7701-7, 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. The
Administrative Trustees shall prepare at the principal office of the Trust in the United States, as
defined for purposes of Treasury regulations section 301.7701-7, and furnish (or cause to be
prepared and furnished), by January 31 in each taxable year of the Trust to each Holder all
Internal Revenue Service forms and returns required to be provided by the Trust. The Administrative
Trustees shall provide the Depositor and the Property Trustee with a copy of all such returns and
reports promptly after such filing or furnishing.



     (b) So long as the Property Trustee is the holder of the Notes, the Administrative Trustees
will cause the Depositor’s reports on Form FR Y-9C to be delivered to the Property Trustee promptly
following their filing with the Federal Reserve.



     SECTION 4.7. Payment of Taxes, Duties, Etc. of the Trust.



     Upon receipt under the Notes of Additional Tax Sums and upon the written direction of the
Administrative Trustees, the Property Trustee shall promptly pay, solely out of monies on deposit
pursuant to this Trust Agreement, any Additional Taxes imposed on the Trust by the United States or
any other taxing authority.



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     SECTION 4.8. Payments under Indenture or Pursuant to Direct Actions.



     Any amount payable hereunder to any Holder of Preferred Securities shall be reduced by the
amount of any corresponding payment such Holder (or any Owner with respect thereto) has directly
received pursuant to Section 5.8 of the Indenture or Section 6.10(b) of this Trust
Agreement.



     SECTION 4.9. Exchanges.



     (a) If at any time the Depositor or any of its Affiliates (in either case, a “Depositor
Affiliate”) is the Owner or Holder of any Preferred Securities, such Depositor Affiliate shall have
the right to deliver to the Property Trustee all or such portion of its Preferred Securities as it
elects and receive, in exchange therefor, a Like Amount of Notes. Such election (i) shall be
exercisable effective on any Distribution Date by such Depositor Affiliate delivering to the
Property Trustee a written notice of such election specifying the Liquidation Amount of Preferred
Securities with respect to which such election is being made and the Distribution Date on which
such exchange shall occur, which Distribution Date shall be not less than ten (10) Business Days
after the date of receipt by the Property Trustee of such election notice and (ii) shall be
conditioned upon such Depositor Affiliate having delivered or caused to be delivered to the
Property Trustee or its designee the Preferred Securities that are the subject of such election by
10:00 A.M. New York time, on the Distribution Date on which such exchange is to occur. After the
exchange, such Preferred Securities will be canceled and will no longer be deemed to be Outstanding
and all rights of the Depositor Affiliate with respect to such Preferred Securities will cease.



     (b) In the case of an exchange described in Section 4.9(a), the Property Trustee on
behalf of the Trust will, on the date of such exchange, exchange Notes having a principal amount
equal to a proportional amount of the aggregate Liquidation Amount of the Outstanding Common
Securities, based on the ratio of the aggregate Liquidation Amount of the Preferred Securities
exchanged pursuant to Section 4.9(a) divided by the aggregate Liquidation Amount of the
Preferred Securities Outstanding immediately prior to such exchange, for such proportional amount
of Common Securities held by the Depositor (which contemporaneously shall be canceled and no longer
be deemed to be Outstanding); provided, that the Depositor delivers or causes to be delivered to
the Property Trustee or its designee the required amount of Common Securities to be exchanged by
10:00 A.M. New York time, on the Distribution Date on which such exchange is to occur.



     SECTION 4.10. Calculation Agent.



     (a) The Property Trustee shall initially, and for so long as it holds any of the Notes, be the
Calculation Agent for purposes of determining LIBOR for each Distribution Date. The Calculation
Agent may be removed by the Administrative Trustees at any time. If the Calculation Agent is
unable or unwilling to act as such or is removed by the Administrative Trustees, the Administrative
Trustees will promptly appoint as a replacement Calculation Agent the London office of a leading
bank which is engaged in transactions in three-month Eurodollar deposits in the international
Eurodollar market and which does not control or is not controlled by



22









 




or under common control with the Administrative Trustee or its Affiliates. The Calculation
Agent may not resign its duties without a successor having been duly appointed.




     (b) The Calculation Agent shall be required to agree that, as soon as possible after 11:00
a.m. (London time) on each LIBOR Determination Date, but in no event later than 11:00 a.m. (London
time) on the Business Day immediately following each LIBOR Determination Date, the Calculation
Agent will calculate the interest rate (rounded to the nearest cent, with half a cent being rounded
upwards) for the related Distribution Date, and will communicate such rate and amount to the
Depositor, Trustee, each Paying Agent and the Depositary. The Calculation Agent will also specify
to the Administrative Trustee the quotations upon which the foregoing rates and amounts are based
and, in any event, the Calculation Agent shall notify the Administrative Trustee before 5:00 p.m.
(London time) on each LIBOR Determination Date that either: (i) it has determined or is in the
process of determining the foregoing rates and amounts or (ii) it has not determined and is not in
the process of determining the foregoing rates and amounts, together with its reasons therefor.
The Calculation Agent’s determination of the foregoing rates and amounts for any Distribution Date
will (in the absence of manifest error) be final and binding upon all parties. For the sole
purpose of calculating the interest rate for the Trust Securities, “Business Day” shall be defined
as any day on which dealings in deposits in Dollars are transacted in the London interbank market.



     SECTION 4.11. Certain Accounting Matters.



     (a) At all times during the existence of the Trust, the Administrative Trustees shall keep, or
cause to be kept at the principal office of the Trust in the United States, as defined for purposes
of Treasury Regulations section 301.7701-7, full books of account, records and supporting
documents, which shall reflect in reasonable detail each transaction of the Trust. The books of
account shall be maintained on the accrual method of accounting, in accordance with generally
accepted accounting principles, consistently applied.



     (b) The Administrative Trustees shall either (i), if the Depositor is then subject to such
reporting requirements, cause each Form 10-K and Form 10-Q prepared by the Depositor and filed with
the Commission in accordance with the Exchange Act to be delivered to each Holder, with a copy to
the Property Trustee, within thirty (30) days after the filing thereof or (ii) cause to be prepared
at the principal office of the Trust in the United States, as defined for purposes of Treasury
Regulations section 301.7701-7, and delivered to each of the Holders, with a copy to the Property
Trustee, within ninety (90) days after the end of each Fiscal Year, annual financial statements of
the Trust, including a balance sheet of the Trust as of the end of such Fiscal Year, and the
related statements of income or loss.



     (c) The Trust shall maintain one or more bank accounts in the United States, as defined for
purposes of Treasury Regulations section 301.7701-7, in the name and for the sole benefit of the
Trust; provided, however, that all payments of funds in respect of the Notes held
by the Property Trustee shall be made directly to the Payment Account and no other funds of the
Trust shall be deposited in the Payment Account. The sole signatories for such accounts (including
the Payment Account) shall be designated by the Property Trustee.



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ARTICLE V.




Securities



     SECTION 5.1. Initial Ownership.



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



     SECTION 5.2. Authorized Trust Securities.



     The Trust shall be authorized to issue one series of Preferred Securities having an aggregate
Liquidation Amount of $40,000,000 and one series of Common Securities having an aggregate
Liquidation Amount of $1,238,000.



     SECTION 5.3. Issuance of the Common Securities; Subscription and Purchase of Notes.



     On the Closing Date, an Administrative Trustee, on behalf of the Trust, shall execute and
deliver to the Depositor Common Securities Certificates, registered in the name of the Depositor,
evidencing an aggregate of 1,238 Common Securities having an aggregate Liquidation Amount of
$1,238,000, against receipt by the Trust of the aggregate purchase price of such Common Securities
of $1,238,000. Contemporaneously therewith and with the sale by the Trust to the Holders of an
aggregate of 40,000 Preferred Securities having an aggregate Liquidation Amount of $40,000,000, an
Administrative Trustee, on behalf of the Trust, shall subscribe for and purchase from the Depositor
Notes, to be registered in the name of the Property Trustee on behalf of the Trust and having an
aggregate principal amount equal to $41,238,000, and, in satisfaction of the purchase price for
such Notes, the Property Trustee, on behalf of the Trust, shall deliver to the Depositor the sum of
$41,238,000 (being the aggregate amount paid by the Holders for the Preferred Securities and the
amount paid by the Depositor for the Common Securities).



     SECTION 5.4. The Securities Certificates.



     (a) The Preferred Securities Certificates shall be issued in minimum denominations of $100,000
Liquidation Amount and integral multiples of $1,000 in excess thereof, and the Common Securities
Certificates shall be issued in minimum denominations of $10,000 Liquidation Amount and integral
multiples of $1,000 in excess thereof. The Securities Certificates shall be executed on behalf of
the Trust by manual or facsimile signature of at least one Administrative Trustee. Securities
Certificates bearing the signatures of individuals who were, at the time when such signatures shall
have been affixed, authorized to sign such Securities Certificates 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
Securities Certificates or did not have such authority at the date of delivery of such Securities
Certificates.



24









 





     (b) On the Closing Date, upon the written order of an authorized officer of the Depositor, the
Administrative Trustees shall cause Securities Certificates to be executed on behalf of the Trust
and delivered, without further corporate action by the Depositor, in authorized denominations.



     (c) The Preferred Securities issued to QIBs shall be, except as provided in Section
5.6, Book-Entry Preferred Securities issued in the form of one or more Global Preferred
Securities registered in the name of the Depositary, or its nominee and deposited with the
Depositary or a custodian for the Depositary for credit by the Depositary to the respective
accounts of the Depositary Participants thereof (or such other accounts as they may direct). The
Preferred Securities issued to a Person other than a QIB shall be issued in the form of Definitive
Preferred Securities Certificate.



     (d) A Preferred Security shall not be valid until authenticated by the manual signature of an
Authorized Officer of the Property Trustee. Such signature shall be conclusive evidence that the
Preferred Security has been authenticated under this Trust Agreement. Upon written order of the
Trust signed by one Administrative Trustee, the Property Trustee shall authenticate the Preferred
Securities for original issue. The Property Trustee may appoint an authenticating agent that is a
U.S. Person acceptable to the Trust to authenticate the Preferred Securities. A Common Security
need not be so authenticated and shall be valid upon execution by one or more Administrative
Trustees. The form of this certificate of authentication can be found in Section 5.13.



     SECTION 5.5. Rights of Holders.



     The Trust Securities shall have no preemptive or similar rights and when issued and delivered
to Holders against payment of the purchase price therefor will be fully paid and non-assessable by
the Trust. Except as provided in Section 5.11(b), the Holders of the Trust Securities, in
their capacities as such, shall be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized under the General Corporation Law of
the State of Delaware.



     SECTION 5.6. Book-Entry Preferred Securities.



     (a) A Global Preferred Security may be exchanged, in whole or in part, for Definitive
Preferred Securities Certificates registered in the names of the Owners only if such exchange
complies with Section 5.7 and (i) the Depositary advises the Administrative Trustees and
the Property Trustee in writing that the Depositary is no longer willing or able properly to
discharge its responsibilities with respect to the Global Preferred Security, and no qualified
successor is appointed by the Administrative Trustees within ninety (90) days of receipt of such
notice, (ii) the Depositary ceases to be a clearing agency registered under the Exchange Act and
the Administrative Trustees fail to appoint a qualified successor within ninety (90) days of
obtaining knowledge of such event, (iii) the Administrative Trustees at their option advise the
Property Trustee in writing that the Trust elects to terminate the book-entry system through the
Depositary or (iv) a Note Event of Default has occurred and is continuing. Upon the occurrence of
any event specified in clause (i), (ii), (iii) or (iv) above, the Administrative Trustees shall
notify the Depositary and instruct the Depositary to notify all Owners of Book-Entry Preferred
Securities,



25









 




the Delaware Trustee and the Property Trustee of the occurrence of such event and of the
availability of the Definitive Preferred Securities Certificates to Owners of the Preferred
Securities requesting the same. Upon the issuance of Definitive Preferred Securities Certificates,
the Trustees shall recognize the Holders of the Definitive Preferred Securities Certificates as
Holders. Notwithstanding the foregoing, if an Owner of a beneficial interest in a Global Preferred
Security wishes at any time to transfer an interest in such Global Preferred Security to a Person
other than a QIB, such transfer shall be effected, subject to the Applicable Depositary Procedures,
in accordance with the provisions of this Section 5.6 and Section 5.7, and the
transferee shall receive a Definitive Preferred Securities Certificate in connection with such
transfer. A holder of a Definitive Preferred Securities Certificate that is a QIB may, upon
request, and in accordance with the provisions of this Section 5.6 and Section 5.7,
exchange such Definitive Preferred Securities Certificate for a beneficial interest in a Global
Preferred Security.




     (b) If any Global Preferred Security is to be exchanged for Definitive Preferred Securities
Certificates or canceled in part, or if any Definitive Preferred Securities Certificate is to be
exchanged in whole or in part for any 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 aggregate Liquidation Amount represented by such Global Preferred
Security shall be reduced, subject to Section 5.4, or increased by an amount equal to the
Liquidation Amount represented by that portion of the Global Preferred Security to be so exchanged
or canceled, or equal to the Liquidation Amount represented by such Definitive Preferred Securities
Certificates to be so exchanged for any Global Preferred Security, as the case may be, by means of
an appropriate adjustment made on the records of the Securities Registrar, whereupon the Property
Trustee, in accordance with the Applicable Depositary Procedures, shall instruct the Depositary or
its authorized representative to make a corresponding adjustment to its records. Upon any such
surrender to the Administrative Trustees or the Securities Registrar of any Global Preferred
Security or Securities by the Depositary, accompanied by registration instructions, the
Administrative Trustees, or any one of them, shall execute the Definitive Preferred Securities
Certificates in accordance with the instructions of the Depositary. None of the Securities
Registrar or the Trustees shall 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.



     (c) Every Securities Certificate executed and delivered upon registration or transfer of, or
in exchange for or in lieu of, a Global Preferred Security or any portion thereof shall be executed
and delivered in the form of, and shall be, a Global Preferred Security, unless such Securities
Certificate is registered in the name of a Person other than the Depositary for such Global
Preferred Security or a nominee thereof.



     (d) The Depositary or its nominee, as registered owner of a Global Preferred Security, shall
be the Holder of such Global Preferred Security for all purposes under this Trust Agreement and the
Global Preferred Security, and Owners with respect to a Global Preferred Security shall hold such
interests pursuant to the Applicable Depositary Procedures. The Securities Registrar and the
Trustees shall be entitled to deal with the Depositary for all purposes of this Trust Agreement
relating to the Global Preferred Securities (including the payment of the Liquidation Amount of and
Distributions on the Book-Entry Preferred Securities represented thereby and the giving of
instructions or directions by Owners of Book-Entry Preferred



26









 




Securities represented thereby and the giving of notices) as the sole Holder of the Book-Entry
Preferred Securities represented thereby and shall have no obligations to the Owners thereof. None
of the Trustees nor the Securities Registrar shall have any liability in respect of any transfers
effected by the Depositary.




     (e) The rights of the Owners of the Book-Entry Preferred Securities shall be exercised only
through the Depositary and shall be limited to those established by law, the Applicable Depositary
Procedures and agreements between such Owners and the Depositary and/or the Depositary
Participants; provided, solely for the purpose of determining whether the Holders of the requisite
amount of Preferred Securities have voted on any matter provided for in this Trust Agreement, to
the extent that Preferred Securities are represented by a Global Preferred Security, the Trustees
may conclusively rely on, and shall be fully protected in relying on, any written instrument
(including a proxy) delivered to the Property Trustee by the Depositary setting forth the Owners’
votes or assigning the right to vote on any matter to any other Persons either in whole or in part.
To the extent that Preferred Securities are represented by a Global Preferred Security, the
initial Depositary will make book-entry transfers among the Depositary Participants and receive and
transmit payments on the Preferred Securities that are represented by a Global Preferred Security
to such Depositary Participants, and none of the Depositor or the Trustees shall have any
responsibility or obligation with respect thereto.



     (f) 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
Security, the Trustees shall give all such notices and communications to the Depositary, and shall
have no obligations to the Owners.



     SECTION 5.7. Registration of Transfer and Exchange of Preferred Securities Certificates.



     (a) The Property Trustee shall keep or cause to be kept, at the Corporate Trust Office, a
register or registers (the “Securities Register”) in which the registrar and transfer agent with
respect to the Trust Securities (the “Securities Registrar”), subject to such reasonable
regulations as it may prescribe, shall provide for the registration of Preferred Securities
Certificates and Common Securities Certificates and registration of transfers and exchanges of
Preferred Securities Certificates as herein provided. The Person acting as the Property Trustee
shall at all times also be the Securities Registrar. The provisions of Article VIII shall
apply to the Property Trustee in its role as Securities Registrar.



     (b) Upon surrender for registration of transfer of any Preferred Securities Certificate at the
office or agency maintained pursuant to Section 5.7(f), the Administrative Trustees or any
one of them shall execute by manual or facsimile signature and deliver to the Property Trustee, 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 as may be required by this Trust Agreement dated the date of
execution by such Administrative Trustee or Trustees. At the option of a Holder, Preferred
Securities Certificates may be exchanged for other Preferred Securities Certificates in authorized
denominations and of a like aggregate Liquidation Amount upon surrender of the Preferred Securities
Certificate to be exchanged at the office or agency maintained pursuant to



27









 




Section 5.7(f). Whenever any Preferred Securities Certificates are so surrendered for
exchange, the Administrative Trustees or any one of them shall execute by manual or facsimile
signature and deliver to the Property Trustee, and the Property Trustee shall authenticate and
deliver, the Preferred Securities Certificates that the Holder making the exchange is entitled to
receive.




     (c) The Securities Registrar shall not be required, (i) to issue, register the transfer of or
exchange any Preferred Security during a period beginning at the opening of business fifteen (15)
days before the day of selection for redemption of such Preferred Securities pursuant to
Article IV and ending at the close of business on the day of mailing of the notice of
redemption or (ii) to register the transfer of or exchange any Preferred Security so selected for
redemption in whole or in part, except, in the case of any such Preferred Security to be redeemed
in part, any portion thereof not to be redeemed.



     (d) Every Preferred Securities Certificate presented or surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Securities Registrar duly executed by the Holder or such Holder’s
attorney duly authorized in writing and (i) if such Preferred Securities Certificate is being
transferred otherwise than to a QIB, accompanied by a certificate of the transferee substantially
in the form set forth as Exhibit E hereto or (ii) if such Preferred Securities Certificate
is being transferred to a QIB, accompanied by a certificate of the transferor substantially in the
form set forth as Exhibit F hereto.



     (e) No service charge shall be made for any registration of transfer or exchange of Preferred
Securities Certificates, but the Property Trustee on behalf of the Trust may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Preferred Securities Certificates.



     (f) The Administrative Trustees shall designate an office or offices or agency or agencies
where Preferred Securities Certificates may be surrendered for registration of transfer or
exchange, and initially designate the Corporate Trust Office as its office and agency for such
purposes. The Administrative Trustees shall give prompt written notice to the Depositor, the
Property Trustee and to the Holders of any change in the location of any such office or agency.



     SECTION 5.8. Mutilated, Destroyed, Lost or Stolen Securities Certificates.



     (a) If any mutilated Securities Certificate shall be surrendered to the Securities Registrar
together with such security or indemnity as may be required by the Securities Registrar and the
Administrative Trustees to save each of them harmless, the Administrative Trustees, or any one of
them, on behalf of the Trust, shall execute and make available for delivery in exchange therefor a
new Securities Certificate of like class, tenor and denomination.



     (b) If the Securities Registrar shall receive evidence to its satisfaction of the destruction,
loss or theft of any Securities Certificate and there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be required by them to
save each of them harmless, then in the absence of notice that such 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



28









 




delivery, and, with respect to Preferred Securities, the Property Trustee shall authenticate,
in exchange for or in lieu of any such destroyed, lost or stolen Securities Certificate, a new
Securities Certificate of like class, tenor and denomination.




     (c) In connection with the issuance of any new Securities Certificate under this Section
5.8, 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.



     (d) Any duplicate Securities Certificate issued pursuant to this Section 5.8 shall
constitute conclusive evidence of an undivided beneficial interest in the assets of the Trust
corresponding to that evidenced by the mutilated, lost, stolen or destroyed Securities Certificate,
as if originally issued, whether or not the lost, stolen or destroyed Securities Certificate shall
be found at any time.



     (e) If any such mutilated, destroyed, lost or stolen Security has become or is about to become
due and payable, the Depositor in its discretion may, instead of issuing a new Security, pay such
Security.



     (f) The provisions of this Section 5.8 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement of mutilated, destroyed, lost
or stolen Securities Certificates.



     SECTION 5.9. Persons Deemed Holders.



     The Trustees and the Securities Registrar shall each treat the Person in whose name any
Securities Certificate shall be registered in the Securities Register as the owner of such
Securities Certificate for the purpose of receiving Distributions and for all other purposes
whatsoever, and none of the Trustees and the Securities Registrar shall be bound by any notice to
the contrary.



     SECTION 5.10. Cancellation.



     All Preferred Securities Certificates surrendered for registration of transfer or exchange or
for payment shall, if surrendered to any Person other than the Property Trustee, be delivered to
the Property Trustee, and any such Preferred Securities Certificates and Preferred Securities
Certificates surrendered directly to the Property Trustee for any such purpose shall be promptly
canceled by it. The Administrative Trustees may at any time deliver to the Property Trustee for
cancellation any Preferred Securities Certificates previously delivered hereunder that the
Administrative Trustees may have acquired in any manner whatsoever, and all Preferred Securities
Certificates so delivered shall be promptly canceled by the Property Trustee. No Preferred
Securities Certificates shall be executed and delivered in lieu of or in exchange for any Preferred
Securities Certificates canceled as provided in this Section 5.10, except as expressly
permitted by this Trust Agreement. All canceled Preferred Securities Certificates shall be
disposed of by the Property Trustee in accordance with its customary practices and the Property
Trustee shall deliver to the Administrative Trustees a certificate of such disposition.



29









 





     SECTION 5.11. Ownership of Common Securities by Depositor.



     (a) On the Closing Date, the Depositor shall acquire, and thereafter shall retain, beneficial
and record ownership of the Common Securities. Neither the Depositor nor any successor Holder of
the Common Securities may transfer less than all the Common Securities, and the Depositor or any
such successor Holder may transfer the Common Securities only (i) in connection with a
consolidation or merger of the Depositor into another Person, or any conveyance, transfer or lease
by the Depositor of its properties and assets substantially as an entirety to any Person (in which
event such Common Securities will be transferred to such surviving entity, transferee or lessee, as
the case may be), pursuant to Section 8.1 of the Indenture or (ii) to the Depositor or an
Affiliate of the Depositor, in each such case in compliance with applicable law (including the
Securities Act, and applicable state securities and blue sky laws). To the fullest extent permitted
by law, any attempted transfer of the Common Securities other than as set forth in the immediately
preceding sentence shall be void. The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating substantially “THIS CERTIFICATE IS
NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST AGREEMENT.”



     (b) Any Holder of the Common Securities shall be liable for the debts and obligations of the
Trust in the manner and to the extent set forth with respect to the Depositor and agrees that it
shall be subject to all liabilities to which the Depositor may be subject and, prior to becoming
such a Holder, shall deliver to the Administrative Trustees an instrument of assumption
satisfactory to such Trustees.



     SECTION 5.12. Restricted Legends.



     (a) Each Preferred Security Certificate shall bear a legend in substantially the following
form:




“THIS PREFERRED SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE TRUST AGREEMENT
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY
(“DTC”) OR A NOMINEE OF DTC. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT, AND NO TRANSFER OF THIS PREFERRED SECURITY
(OTHER THAN A TRANSFER OF THIS PREFERRED SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR
BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.




UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO
WINTRUST CAPITAL TRUST VIII OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY PREFERRED SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED



30









 






REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED 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.




THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND SUCH PREFERRED SECURITIES OR ANY INTEREST THEREIN, MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF ANY PREFERRED SECURITIES IS HEREBY NOTIFIED THAT THE
SELLER OF THE PREFERRED SECURITIES MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES ACT.




THE HOLDER OF THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR THE
BENEFIT OF THE TRUST AND THE DEPOSITOR THAT (A) SUCH PREFERRED SECURITIES MAY BE OFFERED,
RESOLD OR OTHERWISE TRANSFERRED ONLY (I) TO THE TRUST, (II) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) TO AN
INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT,
OR FOR THE ACCOUNT OF AN “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT, (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (V)
PURSUANT TO AN EXEMPTION FROM THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND, IN THE CASE OF (III) OR (V), SUBJECT TO THE RIGHT OF THE TRUST AND THE
DEPOSITOR TO REQUIRE AN OPINION OF COUNSEL AND OTHER INFORMATION SATISFACTORY TO EACH OF
THEM AND (B) THE HOLDER WILL NOTIFY ANY PURCHASER OF ANY PREFERRED SECURITIES FROM IT OF THE
RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.




THE PREFERRED SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN
AGGREGATE LIQUIDATION AMOUNT OF NOT LESS THAN $100,000. TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY ATTEMPTED TRANSFER OF PREFERRED SECURITIES, OR ANY INTEREST



31









 






THEREIN, IN A BLOCK HAVING AN AGGREGATE LIQUIDATION AMOUNT OF LESS THAN $100,000 AND
MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT
WHATSOEVER. TO THE FULLEST EXTENT PERMITTED BY LAW, ANY SUCH PURPORTED TRANSFEREE SHALL BE
DEEMED NOT TO BE THE HOLDER OF SUCH PREFERRED SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT
LIMITED TO, THE RECEIPT OF LIQUIDATION AMOUNT OF OR DISTRIBUTIONS ON SUCH PREFERRED
SECURITIES, OR ANY INTEREST THEREIN, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE
NO INTEREST WHATSOEVER IN SUCH PREFERRED SECURITIES.




THE HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF
ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL
RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) (EACH A “PLAN”), OR AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT IN THE ENTITY,
AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR HOLD THIS PREFERRED
SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE
EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS
EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE
AND HOLDING OF THIS SECURITY, OR ANY INTEREST THEREIN, IS NOT PROHIBITED BY SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR
HOLDER OF THE PREFERRED SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE
REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE
BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF
THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR
PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE OR HOLDING WILL NOT RESULT IN A
PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH
THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.




THIS OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR
FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE CORPORATION (THE
“FDIC”).”



     (b) The above legend shall not be removed from any of the Preferred Securities Certificates
unless there is delivered to the Property Trustee and the Depositor satisfactory



32









 




evidence, which may include an opinion of counsel, as may be reasonably required to ensure
that any future transfers thereof may be made without restriction under the provisions of the
Securities Act and other applicable law. Upon provision of such satisfactory evidence, one or more
of the Administrative Trustees on behalf of the Trust shall execute and deliver to the Property
Trustee, and the Property Trustee shall deliver, at the written direction of the Administrative
Trustees and the Depositor, Preferred Securities Certificates that do not bear the legend.




     SECTION 5.13. Form of Certificate of Authentication.




The Property Trustee’s certificate of authentication shall be in substantially the
following form:



     This is one of the Preferred Securities referred to in the within-mentioned Trust Agreement.



	 	 	 	 	 	 	 
	Dated:	 	WILMINGTON TRUST COMPANY, not in its individual capacity, but
solely as Property Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Authorized officer	 	 






ARTICLE VI.




Meetings; Voting; Acts of Holders



     SECTION 6.1. Notice of Meetings.



     Notice of all meetings of the Holders of the Preferred Securities, stating the time, place and
purpose of the meeting, shall be given by the Property Trustee pursuant to Section 11.8 to
each Holder of Preferred Securities, at such Holder’s 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 6.2. Meetings of Holders of the Preferred Securities.



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



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



     (c) If a quorum is present at a meeting, an affirmative vote by the Holders present, in person
or by proxy, holding Preferred Securities representing at least a Majority in Liquidation Amount of
the Preferred Securities held by the Holders present, either in person or by proxy, at such meeting
shall constitute the action of the Holders of the Preferred Securities, unless this Trust Agreement
requires a lesser or greater number of affirmative votes.



     SECTION 6.3. Voting Rights.



     Holders shall be entitled to one vote for each $10,000 of Liquidation Amount represented by
their Outstanding Trust Securities in respect of any matter as to which such Holders are entitled
to vote.



     SECTION 6.4. Proxies.



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



     SECTION 6.5. Holder Action by Written Consent.



     Any action that may be taken by Holders at a meeting may be taken without a meeting and
without prior notice if Holders holding at least a Majority in Liquidation Amount of all Preferred
Securities entitled to vote in respect of such action (or such lesser or greater proportion thereof
as shall be required by any other provision of this Trust Agreement) shall consent to the action in
writing; provided, that notice of such action is promptly provided to the Holders of Preferred
Securities that did not consent to such action. Any action that may be taken by the Holders of all
the Common Securities may be taken without a meeting and without prior notice if such Holders shall
consent to the action in writing.



     SECTION 6.6. Record Date for Voting and Other Purposes.



     Except as provided in Section 6.10(a), for the purposes of determining the Holders who
are entitled to notice of and to vote at any meeting or to act by written consent, or to
participate



34









 




in any distribution on the Trust Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any other action, the Administrative
Trustees may from time to time fix a date, not more than ninety (90) days prior to the date of any
meeting of Holders or the payment of a Distribution or other action, as the case may be, as a
record date for the determination of the identity of the Holders of record for such purposes.




     SECTION 6.7. Acts of Holders.



     (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 Holders may be embodied
in and evidenced by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent thereof 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 Holders signing
such instrument or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Trust Agreement and
conclusive in favor of the Trustees, if made in the manner provided in this Section 6.7.



     (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 the execution thereof. Where such execution
is by a signer acting in a capacity other than such signer’s individual capacity, such certificate
or affidavit shall also constitute sufficient proof of such signer’s 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 that any Trustee receiving the same deems sufficient.



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



     (d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Trust Security shall bind every future Holder of the same Trust Security and the
Holder of every Trust Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustees, the Administrative 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 Holder entitled hereunder to take any action hereunder
with regard to any particular Trust Security may do so with regard to all or any part of the
Liquidation Amount of such Trust Security or by one or more duly appointed agents each of which may
do so pursuant to such appointment with regard to all or any part of such Liquidation Amount.



     (f) If any dispute shall arise among the Holders or the Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization, direction, notice,



35









 




consent, waiver or other Act of such Holder or Trustee under this Article VI, then the
determination of such matter by the Property Trustee shall be conclusive with respect to such
matter.




     SECTION 6.8. Inspection of Records.



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



     SECTION 6.9. Limitations on Voting Rights.



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



     (b) So long as any Notes are held by the Property Trustee on behalf of the Trust, the Property
Trustee shall not (i) direct the time, method and place of conducting any proceeding for any remedy
available to the Note Trustee, or exercise any trust or power conferred on the Property Trustee
with respect to the Notes, (ii) waive any past default that may be waived under Section
5.13 of the Indenture, (iii) exercise any right to rescind or annul a declaration that the
principal of all the Notes shall be due and payable or (iv) consent to any amendment, modification
or termination of the Indenture or the Notes, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of at least a Majority in Liquidation Amount
of the Preferred Securities; provided, that where a consent under the Indenture would require the
consent of each holder of Notes (or each Holder of Preferred Securities) affected thereby, no such
consent shall be given by the Property Trustee without the prior written consent of each Holder of
Preferred Securities. The Property Trustee shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred Securities, except by a subsequent vote of the
Holders of the Preferred Securities. In addition to obtaining the foregoing approvals of the
Holders of the Preferred Securities, prior to taking any of the foregoing actions, the Property
Trustee shall, at the expense of the Depositor, obtain an Opinion of Counsel experienced in such
matters to the effect that such action shall not cause the Trust to be taxable as a corporation or
classified as other than a grantor trust for United States federal income tax purposes.



     (c) If any proposed amendment to the Trust Agreement provides for, or the Trustees otherwise
propose to effect, (i) any action that would adversely affect in any material respect the powers,
preferences or special rights of the Preferred Securities, whether by way of amendment to the Trust
Agreement or otherwise or (ii) the dissolution, winding-up or termination of the Trust, other than
pursuant to the terms of this Trust Agreement, then the Holders of Outstanding Preferred Securities
as a class will be entitled to vote on such amendment or proposal and such amendment or proposal
shall not be effective except with the approval of the Holders of at least a Majority in
Liquidation Amount of the Preferred Securities. Notwithstanding any other provision



36









 




of this Trust Agreement, no amendment to this Trust Agreement may be made if, as a result of
such amendment, it would cause the Trust to be taxable as a corporation or classified as other than
a grantor trust for United States federal income tax purposes.




     SECTION 6.10. Acceleration of Maturity; Rescission of Annulment; Waivers of Past Defaults.



     (a) For so long as any Preferred Securities remain Outstanding, if, upon a Note Event of
Default pursuant to paragraphs (c), (e) or (f) of Section 5.1 of the Indenture, the Note
Trustee fails or the holders of not less than twenty five percent (25%) in principal amount of the
outstanding Notes fail to declare the principal of all of the Notes 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 the right to make such declaration by a notice in writing to
the Property Trustee, the Depositor and the Note Trustee. At any time after a declaration of
acceleration with respect to the Notes has been made and before a judgment or decree for payment of
the money due has been obtained by the Note Trustee as provided in the Indenture, the Holders of at
least a Majority in Liquidation Amount of the Preferred Securities, by written notice to the
Property Trustee, the Depositor and the Note Trustee, may rescind and annul such declaration and
its consequences if:




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




     (A) all overdue installments of interest on all of the Notes;




     (B) any accrued Additional Interest on all of the Notes;




     (C) the principal of and any premium on any Notes that have become due
otherwise than by such declaration of acceleration and interest and Additional
Interest thereon at the rate borne by the Notes; and




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




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



     Upon receipt by the Property Trustee of written notice requesting such an acceleration, or
rescission and annulment thereof, by Holders of any part of the Preferred Securities, a record date
shall be established for determining Holders of Outstanding Preferred Securities entitled to join
in such notice, which record date shall be at the close of business on the day the Property Trustee
receives such notice. The Holders on such record date, or their duly designated proxies, and only
such Persons, shall be entitled to join in such notice, whether or not such Holders remain Holders
after such record date; provided, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the requisite percentage
having joined in such notice prior to the day that is ninety (90) days after



37









 




such record date, such notice of declaration of acceleration, or rescission and annulment, as
the case may be, shall automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from
giving, after expiration of such ninety (90)-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is identical to a
written notice that has been canceled pursuant to the proviso to the preceding sentence, in which
event a new record date shall be established pursuant to the provisions of this Section
6.10(a).




     (b) For so long as any Preferred Securities remain Outstanding, to the fullest extent
permitted by law and subject to the terms of this Trust Agreement and the Indenture, upon a Note
Event of Default specified in paragraph (a), (b) or (c) of Section 5.1 of the Indenture,
any Holder of Preferred Securities shall have the right to institute a proceeding directly against
the Depositor, pursuant to Section 5.8 of the Indenture, for enforcement of payment to such
Holder of any amounts payable in respect of Notes having an aggregate principal amount equal to the
aggregate Liquidation Amount of the Preferred Securities of such Holder. Except as set forth in
Section 6.10(a) and this Section 6.10(b), the Holders of Preferred Securities shall
have no right to exercise directly any right or remedy available to the holders of, or in respect
of, the Notes.



     (c) Notwithstanding paragraphs (a) and (b) of this Section 6.10, the Holders of at
least a Majority in Liquidation Amount of the Preferred Securities may, on behalf of the Holders of
all the Preferred Securities, waive any Note Event of Default, except any Note Event of Default
arising from the failure to pay any principal of or any premium or interest on (including any
Additional Interest) the Notes (unless such Note Event of Default has been cured and a sum
sufficient to pay all matured installments of interest and all principal and premium on all Notes
due otherwise than by acceleration has been deposited with the Note Trustee) or a Note Event of
Default in respect of a covenant or provision that under the Indenture cannot be modified or
amended without the consent of the holder of each outstanding Note. Upon any such waiver, such
Note Event of Default shall cease to exist and any Note Event of Default arising therefrom shall be
deemed to have been cured for every purpose of the Indenture; but no such waiver shall affect any
subsequent Note Event of Default or impair any right consequent thereon.



     (d) Notwithstanding paragraphs (a) and (b) of this Section 6.10, the Holders of at
least a Majority in Liquidation Amount of the Preferred Securities may, on behalf of the Holders of
all the Preferred Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Trust Agreement, but no such waiver
shall extend to any subsequent or other Event of Default or impair any right consequent thereon.



     (e) The Holders of a Majority in Liquidation Amount of the Preferred Securities shall have the
right to direct the time, method and place of conducting any proceeding for any remedy available to
the Property Trustee in respect of this Trust Agreement or the Notes or exercising any trust or
power conferred upon the Property Trustee under this Trust Agreement; provided, that, subject to
Sections 8.5 and 8.7, the Property Trustee shall have the right to decline to
follow any such direction if the Property Trustee being advised by counsel determines that the
action so directed may not lawfully be taken, or if the Property Trustee in good faith shall, by an
officer or officers of the Property Trustee, determine that the proceedings so directed would be
illegal or



38









 




involve it in personal liability or be unduly prejudicial to the rights of Holders not party
to such direction, and provided, further, that nothing in this Trust Agreement shall impair the
right of the Property Trustee to take any action deemed proper by the Property Trustee and which is
not inconsistent with such direction.




ARTICLE VII.




Representations and Warranties



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



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



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



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



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



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



     (e) this Trust Agreement has been duly authorized, executed and delivered by the Property
Trustee and the Delaware Trustee and constitutes the legal, valid and binding agreement of each of
the Property Trustee and the Delaware Trustee enforceable against each of them in accordance with
its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’
rights generally and to general principles of equity;



     (f) the execution, delivery and performance of this Trust Agreement have been duly authorized
by all necessary corporate or other action on the part of the Property Trustee and the Delaware
Trustee and do not require any approval of stockholders of the Property Trustee and the Delaware
Trustee and such execution, delivery and performance will not (i) violate the Certificate of
Incorporation or By-laws of the Property Trustee or the Delaware Trustee or (ii) violate any
applicable law, governmental rule or regulation of the United States or the State of Delaware, as
the case may be, governing the banking, trust or general powers of the Property Trustee or the
Delaware Trustee or any order, judgment or decree applicable to the Property Trustee or the
Delaware Trustee;



     (g) neither the authorization, execution or delivery by the Property Trustee or the Delaware
Trustee of this Trust Agreement nor the consummation of any of the transactions by



39









 




the Property Trustee or the Delaware 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 any existing law of the United States or the
State of Delaware governing the banking, trust or general powers of the Property Trustee or the
Delaware Trustee, as the case may be; and




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



     SECTION 7.2. Representations and Warranties of Depositor.



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



     (a) the Depositor is a corporation duly organized, validly existing and in good standing under
the laws of its state of incorporation;



     (b) the Depositor 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 Depositor and
constitutes the legal, valid and binding agreement of the Depositor enforceable against the
Depositor in accordance with its terms, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors’ rights generally and to general principles of equity;



     (d) the Securities Certificates issued at the Closing Date on behalf of the Trust have been
duly authorized and when issued and delivered by the applicable Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust Agreement will have been duly
and validly executed, and the Holders will be, as of such date, entitled to the benefits of this
Trust Agreement;



     (e) the execution, delivery and performance of this Trust Agreement have been duly authorized
by all necessary corporate or other action on the part of the Depositor and do not require any
approval of stockholders of the Depositor and such execution, delivery and performance will not (i)
violate the articles or certificate of incorporation or by-laws (or other organizational documents)
of the Depositor or (ii) violate any applicable law, governmental rule or regulation governing the
Depositor or any material portion of its property or any order, judgment or decree applicable to
the Depositor or any material portion of its property;



     (f) neither the authorization, execution or delivery by the Depositor of this Trust Agreement
nor the consummation of any of the transactions by the Depositor contemplated herein requires the
consent or approval of, the giving of notice to, the registration with or the



40









 




taking of any other action with respect to any governmental authority or agency under any
existing law governing the Depositor or any material portion of its property; and




     (g) there are no proceedings pending or, to the best of the Depositor’s knowledge, threatened
against or affecting the Depositor or any material portion of its property in any court or before
any governmental authority, agency or arbitration board or tribunal having jurisdiction over the
Company or the Trust that, individually or in the aggregate, would materially and adversely affect
the Trust or would question the right, power and authority of the Depositor, as the case may be, to
enter into or perform its obligations under this Trust Agreement.



ARTICLE VIII.




The Trustees



     SECTION 8.1. Number of Trustees.



     The number of Trustees shall be five (5), provided, that the Property Trustee and the Delaware
Trustee may be the same Person, in which case the number of Trustees shall be four (4). The number
of Trustees may be increased or decreased by Act of the Holder of the Common Securities subject to
Sections 8.2, 8.3, and 8.4. The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties of an Trustee shall not operate to
annul, dissolve or terminate the Trust.



     SECTION 8.2. Property Trustee Required.



     There shall at all times be a Property Trustee hereunder with respect to the Trust Securities.
The Property Trustee shall be a corporation organized and doing business under the laws of the
United States or of any state thereof, authorized to exercise corporate trust powers, having a
combined capital and surplus of at least fifty million dollars ($50,000,000), subject to
supervision or examination by federal or state authority and having an office within the United
States. 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 8.2, 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 shall cease to be eligible in accordance with the provisions of
this Section 8.2, it shall resign immediately in the manner and with the effect hereinafter
specified in this Article VIII.



     SECTION 8.3. Delaware Trustee Required.



     (a) If required by the Delaware Statutory Trust Act, 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 that has its principal place of business in the State of Delaware, otherwise meets the
requirements of applicable Delaware law and shall act through one or more persons authorized to
bind such entity. If at any time the Delaware Trustee shall cease to be eligible in accordance
with the provisions of this Section 8.3, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article VIII.



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     (b) 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 and for taking such actions as are required to be taken by a Delaware trustee under the
Delaware Statutory Trust Act. The duties (including fiduciary duties), liabilities and obligations
of the Delaware Trustee shall be limited to (a) accepting legal process served on the Trust in the
State of Delaware and (b) the execution of any certificates required to be filed with the Secretary
of State of the State of Delaware that the Delaware Trustee is required to execute under Section
3811 of the Delaware Statutory Trust Act and there shall be no other duties (including fiduciary
duties) or obligations, express or implied, at law or in equity, of the Delaware Trustee.



     SECTION 8.4. Appointment of Administrative Trustees.



     (a) 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. Each of the individuals identified as an “Administrative Trustee” in the preamble of
this Trust Agreement hereby accepts his or her appointment as such.



     (b) Except where a requirement for action by a specific number of Administrative Trustees is
expressly set forth in this Trust Agreement, any act required or permitted to be taken by, and any
power of the Administrative Trustees may be exercised by, or with the consent of, any one such
Administrative Trustee. Whenever a vacancy in the number of Administrative Trustees shall occur,
until such vacancy is filled by the appointment of an Administrative Trustee in accordance with
Section 8.11, the Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Trust Agreement), shall have all the powers granted to
the Administrative Trustees and shall discharge all the duties imposed upon the Administrative
Trustees by this Trust Agreement.



     SECTION 8.5. Duties and Responsibilities of the Trustees.



     (a) The rights, immunities, duties and responsibilities of the Trustees shall be as provided
by this Trust Agreement and there shall be no other duties (including fiduciary duties) or
obligations, express or implied, at law or in equity, of the Trustees; provided, however, that if
an Event of Default known to the Property Trustee has occurred and is continuing, the Property
Trustee shall, prior to the receipt of directions, if any, from the Holders of at least a Majority
in Liquidation Amount of the Preferred Securities, exercise such of the rights and powers vested in
it by the Indenture, and use the same degree of care and skill in its exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person’s own affairs.
Notwithstanding the foregoing, no provision of this Trust Agreement shall require any of the
Trustees to expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its or their rights or
powers, if it or they shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not
herein expressly so provided, every provision of this Trust Agreement relating to the conduct or



42









 




affecting the liability of or affording protection to the Trustees shall be subject to the
provisions of this Section 8.5. To the extent that, at law or in equity, a Trustee has
duties and liabilities relating to the Trust or to the Holders, such Trustee shall not be liable to
the Trust or to any Holder for such Trustee’s good faith reliance on the provisions of this Trust
Agreement. The provisions of this Trust Agreement, to the extent that they restrict the duties and
liabilities of the Trustees otherwise existing at law or in equity, are agreed by the Depositor and
the Holders to replace such other duties and liabilities of the Trustees.




     (b) All payments made by the Property Trustee or a Paying Agent in respect of the Trust
Securities shall be made only from the revenue and proceeds from the Trust Property and only to the
extent that there shall be sufficient revenue or proceeds from the Trust Property to enable the
Property Trustee or a Paying Agent to make payments in accordance with the terms hereof. Each
Holder, by its acceptance of a Trust Security, agrees that it will look solely to the revenue and
proceeds from the Trust Property to the extent legally available for distribution to it as herein
provided and that the Trustees are not personally liable to it for any amount distributable in
respect of any Trust Security or for any other liability in respect of any Trust Security. This
Section 8.5(b) does not limit the liability of the Trustees expressly set forth elsewhere
in this Trust Agreement.



     (c) No provisions of this Trust Agreement shall be construed to relieve the Property Trustee
from liability with respect to matters that are within the authority of the Property Trustee under
this Trust Agreement for its own negligent action, negligent failure to act or willful misconduct,
except that:




     (i) the Property Trustee shall not be liable for any error or 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
at least a Majority in Liquidation Amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available to the Property
Trustee hereunder or under the Indenture, 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 Notes 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;




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



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



     SECTION 8.6. Notices of Defaults and Extensions.



     (a) Within ninety (90) days after the occurrence of a default actually known to the Property
Trustee, the Property Trustee shall transmit notice of such default to the Holders, the
Administrative Trustees and the Depositor, unless such default shall have been cured or waived;
provided, that, except in the case of a default in the payment of the principal of or any premium
or interest (including any Additional Interest) on any Trust Security, the Property Trustee shall
be fully protected in withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible Officers of the Property
Trustee in good faith determines that the withholding of such notice is in the interests of the
Holders of the Trust Securities. For the purpose of this Section 8.6, the term “default”
means any event that is, or after notice or lapse of time or both would become, an Event of
Default.



     (b) Within three (3) Business Days after the receipt of notice of the Depositor’s exercise of
its right to defer the payment of interest on the Notes pursuant to the Indenture, the Property
Trustee shall transmit, in the manner and to the extent provided in Section 11.8, notice of
such exercise to the Holders and the Administrative Trustees, unless such exercise shall have been
revoked.



     (c) The Property Trustee shall not be deemed to have knowledge of any Event of Default unless
the Property Trustee shall have received written notice thereof from the Depositor, any
Administrative Trustee or any Holder or unless an officer of the Property Trustee charged with the
administration of this Trust Agreement shall have obtained actual knowledge of such Event of
Default.



     (d) The Property Trustee shall notify all Holders of the Preferred Securities of any notice of
default received with respect to the Notes.



     SECTION 8.7. Certain Rights of Property Trustee.



     Subject to the provisions of Section 8.5:



     (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining
from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of
Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or
any other resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, 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, (ii) in construing any of the provisions
of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with



44









 




any other provisions contained herein or (iii) the Property Trustee is unsure of the
application of any provision of this Trust Agreement, then, except as to any matter as to which the
Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement,
the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written
instruction 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, 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, the Property
Trustee may, but shall be under no duty to, take such action, or refrain from taking such action,
as the Property Trustee shall deem advisable and in the best interests of the Holders, in which
event the Property Trustee shall have no liability except for its own negligence, bad faith or
willful misconduct;




     (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein;



     (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement
shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and
setting forth such direction or act;



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



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



     (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to
this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses (including reasonable attorneys’ fees and
expenses) and liabilities that might be incurred by it in compliance with such request or
direction, including reasonable advances as may be requested by the Property Trustee;



     (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, direction, consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to do so by one or more
Holders, but the Property Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or
investigation, it shall be entitled to examine the books, records and premises of the Depositor,
personally or by agent or attorney;



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     (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, attorneys, custodians or nominees and
the Property Trustee shall not be responsible for any negligence or misconduct on the part of any
such agent, attorney, custodian or nominee appointed with due care 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 hereunder, the
Property Trustee (i) may request instructions from the Holders (which instructions may only be
given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would
be entitled to direct the Property Trustee under this Trust Agreement 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;



     (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;



     (l) without prejudice to any other rights available to the Property Trustee under applicable
law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy
Event, such expenses (including legal fees and expenses of its agents and counsel) and the
compensation for such services are intended to constitute expenses of administration under any
bankruptcy law or law relating to creditors rights generally; and



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



     No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any
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 such Person 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.



     SECTION 8.8. Delegation of Power.



     Any Trustee may, by power of attorney consistent with applicable law, delegate to any other
natural person over the age of 21 its, his or her power for the purpose of executing any documents
contemplated in Section 2.5. The 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 Trustees or otherwise as the
Trustees may deem expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of this Trust Agreement.



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     SECTION 8.9. May Hold Securities.



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



     SECTION 8.10. Compensation; Reimbursement; Indemnity.



     The Depositor agrees:



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



     (b) 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 their agents and
counsel), except any such expense, disbursement or advance as may be attributable to their
negligence, bad faith or willful misconduct; and



     (c) to the fullest extent permitted by applicable law, to indemnify and hold harmless (i) each
Trustee, (ii) any Affiliate of any Trustee, (iii) any officer, director, shareholder, employee,
representative or agent of any Trustee or any Affiliate of any Trustee and (iv) any employee or
agent of the Trust (referred to herein as an “Indemnified Person”) from and against any loss,
damage, liability, tax (other than income, franchise or other taxes imposed on amounts paid
pursuant to Section 8.10(a) or (b) hereof), penalty, expense, suit or claim of any
kind or nature whatsoever incurred without negligence, bad faith or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of the Trust hereunder,
including the advancement of funds to cover the reasonable 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.



     The Trust shall have no payment, reimbursement or indemnity obligations to the Trustees under
this Section 8.10. The provisions of this Section 8.10 shall survive the
termination of this Trust Agreement and the earlier removal or resignation of any Trustee.



     No Trustee may claim any Lien on any Trust Property whether before or after termination of the
Trust as a result of any amount due pursuant to this Section 8.10.



     To the fullest extent permitted by law, in no event shall the Property Trustee and the
Delaware Trustee be liable for any indirect, special, punitive or consequential loss or damage of
any kind whatsoever, including, but not limited to, lost profits, even if the Trustee has been
advised of the likelihood of such loss or damage and regardless of the form of action.



     In no event shall the Property Trustee and the Delaware Trustee be liable for any failure or
delay in the performance of its obligations hereunder because of circumstances beyond its



47









 




control, including, but not limited to, acts of God, flood, war (whether declared or
undeclared), terrorism, fire, riot, embargo, government action, including any laws, ordinances,
regulations, governmental action or the like which delay, restrict or prohibit the providing of the
services contemplated by this Trust Agreement.




     SECTION 8.11. Resignation and Removal; Appointment of Successor.



     (a) No resignation or removal of any 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 8.12.



     (b) A Trustee may resign at any time by giving written notice thereof to the Depositor and, in
the case of the Property Trustee and the Delaware Trustee, to the Holders.



     (c) Unless an Event of Default shall have occurred and be continuing, the Property Trustee or
the Delaware Trustee, or both of them, may be removed (with or without cause) at any time by Act of
the Holder of Common Securities. If an Event of Default shall have occurred and be continuing, the
Property Trustee or the Delaware Trustee, or both of them, may be removed (with or without cause)
at such time by Act of the Holders of at least a Majority in Liquidation Amount of the Preferred
Securities, delivered to the removed Trustee (in its individual capacity and on behalf of the
Trust). An Administrative Trustee may be removed (with or without cause) only by Act of the Holder
of the Common Securities at any time.



     (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 reason, at a time when no Event of Default
shall have occurred and be continuing, the Holder of the Common Securities, by Act of the Holder of
the Common Securities, shall promptly appoint a successor Trustee or Trustees, and such successor
Trustee and the retiring Trustee shall comply with the applicable requirements of Section
8.12. 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 an Event of Default shall have occurred and be continuing, the Holders of the
Preferred Securities, by Act of the Holders of a Majority in Liquidation Amount of the Preferred
Securities, shall promptly appoint a successor Property Trustee or Delaware Trustee, and such
successor Property Trustee or Delaware Trustee and the retiring Property Trustee or Delaware
Trustee shall comply with the applicable requirements of Section 8.12. If an
Administrative Trustee shall resign, be removed or become incapable of acting as Administrative
Trustee, at a time when an Event of Default shall have occurred and be continuing, the Holder of
the Common Securities by Act of the Holder of Common Securities shall promptly appoint a successor
Administrative Trustee and such successor Administrative Trustee and the retiring Administrative
Trustee shall comply with the applicable requirements of Section 8.12. If no successor
Trustee shall have been so appointed by the Holder of the Common Securities or Holders of the
Preferred Securities, as the case may be, and accepted appointment in the manner required by
Section 8.12 within thirty (30) days after the giving of a notice of resignation by a
Trustee, the removal of a Trustee, or a Trustee becoming incapable of acting as such Trustee, any
Holder who has been a Holder of Preferred Securities for at least six (6) months may, on behalf of
himself and all others similarly situated, and any resigning Trustee



48









 




may, in each case, at the expense of the Depositor, petition any court of competent
jurisdiction for the appointment of a successor Trustee.




     (e) The Depositor shall give notice of each resignation and each removal of the Property
Trustee or the Delaware Trustee and each appointment of a successor Property Trustee or Delaware
Trustee to all Holders in the manner provided in Section 11.8. Each notice shall include
the name of the successor Property Trustee or Delaware 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 Holder of Common Securities, incompetent or incapacitated, the vacancy created by
such death, incompetence or incapacity may be filled by (i) the unanimous act of the remaining
Administrative Trustees if there are at least two of them or (ii) otherwise by the Holder of the
Common Securities (with the successor in each case being a Person who satisfies the eligibility
requirement for Administrative Trustees or Delaware Trustee, as the case may be, set forth in
Sections 8.3 and 8.4).



     (g) Upon the appointment of a successor Delaware Trustee, such successor Delaware Trustee
shall file a Certificate of Amendment to the Certificate of Trust in accordance with Section 3810
of the Delaware Statutory Trust Act.



     SECTION 8.12. Acceptance of Appointment by Successor.



     (a) In case of the appointment hereunder of a successor Trustee, each successor Trustee shall
execute and deliver to the Depositor and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee shall become
effective 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 Trustee; but, on
request of the Trust or any successor Trustee such retiring Trustee shall, upon payment of its
charges, duly assign, transfer and deliver to such successor Trustee all Trust Property, all
proceeds thereof and money held by such retiring Trustee hereunder with respect to the Trust
Securities and the Trust.



     (b) Upon request of any such successor Trustee, the Trust (or the retiring Trustee if
requested by the Depositor) 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 preceding paragraph.



     (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 8.13. Merger, Conversion, Consolidation or Succession to Business.



     Any Person into which the Property Trustee or the Delaware Trustee may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Trustee shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of such Trustee, shall be the successor of such



49









 




Trustee hereunder, without the execution or filing of any paper or any further act on the part
of any of the parties hereto, provided, that such Person shall be otherwise qualified and eligible
under this Article VIII.




     SECTION 8.14. Not Responsible for Recitals or Issuance of Securities.



     The recitals contained herein and in the Securities Certificates shall be taken as the
statements of the Trust and the Depositor, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to the title to, or value or condition
of, the property of the Trust or any part thereof, nor as to the validity or sufficiency of this
Trust Agreement, the Notes or the Trust Securities. The Trustees shall not be accountable for the
use or application by the Depositor of the proceeds of the Notes.



     SECTION 8.15. Property Trustee May File Proofs of Claim.



     (a) In case of any Bankruptcy Event (or event that with the passage of time would become a
Bankruptcy Event) relative to the Trust or any other obligor upon the Trust Securities or the
property of the Trust or of such other obligor or their creditors, the Property Trustee
(irrespective of whether any Distributions on the Trust Securities shall then be due and payable
and irrespective of whether the Property Trustee shall have made any demand on the Trust for the
payment of any past due Distributions) shall be entitled and empowered, to the fullest extent
permitted by law, by intervention in such proceeding or otherwise:




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




     (ii) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such proceeding is hereby authorized by each Holder to make such payments to the Property
Trustee and, in the event the Property Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Property Trustee first any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its agents and counsel,
and any other amounts due the Property Trustee.




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



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     SECTION 8.16. Reports to and from the Property Trustee.



     (a) The Depositor and the Administrative Trustees shall deliver to the Property Trustee, not
later than forty five (45) days after the end of each of the first three fiscal quarters of the
Depositor and not later than ninety (90) days after the end of each fiscal year of the Depositor
ending after the date of this Trust Agreement, an Officers’ Certificate covering the preceding
fiscal period, stating whether or not to the knowledge of the signers thereof the Depositor and the
Trust are in default in the performance or observance of any of the terms, provisions and
conditions of this Trust Agreement (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Depositor or the Trust shall be in default, specifying all such
defaults and the nature and status thereof of which they have knowledge.



     (b) The Depositor shall furnish to (i) the Property Trustee, (ii) the Purchaser, (iii) any
Owner of the Preferred Securities reasonably identified to the Depositor or the Trust (which
identification may be made either by such Owner or by the Placement Agent or Purchaser), and (iv)
any designee of (i), (ii) or (iii) above, a duly completed and executed certificate in the form
attached hereto as Exhibit G, including the financial statements referenced in such Exhibit, which
certificate and financial statements shall be so furnished by the Depositor not later than forty
five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the
Depositor and not later than ninety (90) days after the end of each fiscal year of the Depositor.



     (c) The Property Trustee shall obtain all reports, certificates and information, which it is
entitled to receive under each of the Operative Documents, and deliver to (i) the Purchaser, (ii)
the Placement Agent and (iii) a designee of (i) or (ii) above, all such reports, certificates or
information promptly upon receipt thereof.



ARTICLE IX.




Termination, Liquidation and Merger



     SECTION 9.1. Dissolution Upon Expiration Date.



     Unless earlier dissolved, the Trust shall automatically dissolve on September 30, 2036 (the
“Expiration Date”), and the Trust Property shall be liquidated in accordance with Section
9.4.



     SECTION 9.2. Early Termination.



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



     (a) the occurrence of a Bankruptcy Event in respect of, or the dissolution or liquidation of,
the Depositor, in its capacity as the Holder of the Common Securities, unless the Depositor shall
have transferred the Common Securities as provided by Section 5.11, in which case this
provision shall refer instead to any such successor Holder of the Common Securities;



     (b) the written direction to the Property Trustee from the Holder of the Common Securities at
any time to dissolve the Trust and, after satisfaction of any liabilities of the Trust as



51









 




required by applicable law, to distribute the Notes to Holders in exchange for the Preferred
Securities (which direction is optional and wholly within the discretion of the Holder of the
Common Securities), provided, that the Holder of the Common Securities shall have received the
prior approval of the Federal Reserve if then required;




     (c) the redemption of all of the Preferred Securities in connection with the payment at
maturity or redemption of all the Notes; and



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



     SECTION 9.3. Termination.



     The respective obligations and responsibilities of the Trustees and the Trust shall terminate
upon the latest to occur of the following: (a) the distribution by the Property Trustee to Holders
of all amounts required to be distributed hereunder upon the liquidation of the Trust pursuant to
Section 9.4, or upon the redemption of all of the Trust Securities pursuant to Section
4.2; (b) the satisfaction of any expenses owed by the Trust; and (c) the discharge of all
administrative duties of the Administrative Trustees, including the performance of any tax
reporting obligations with respect to the Trust or the Holders.



     SECTION 9.4. Liquidation.



     (a) If an Early Termination Event specified in Section 9.2(a), (b) or
(d) occurs or upon the Expiration Date, the Trust shall be liquidated by the Property
Trustee as expeditiously as the Property Trustee shall determine to be possible by distributing,
after satisfaction of liabilities to creditors of the Trust as provided by applicable law, to each
Holder a Like Amount of Notes, subject to Section 9.4(d). Notice of liquidation shall be
given by the Property Trustee not less 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 such notices of liquidation shall:




     (i) state the Liquidation Date;




     (ii) state that from and after the Liquidation Date, the Trust Securities will no
longer be deemed to be Outstanding and (subject to Section 9.4(d)) any Securities
Certificates not surrendered for exchange will be deemed to represent a Like Amount of
Notes; and




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



     (b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Trust and distribution of the Notes to Holders, the Property Trustee, either
itself acting as exchange agent or through the appointment of a separate exchange agent, shall
establish a record date for such distribution (which shall not be more than forty-five (45) days
prior to the Liquidation Date nor prior to the date on which notice of such liquidation is given to
the



52









 




Holders) and establish such procedures as it shall deem appropriate to effect the distribution
of Notes in exchange for the Outstanding Securities Certificates.




     (c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation Date,
(i) the Trust Securities will no longer be deemed to be Outstanding, (ii) certificates representing
a Like Amount of Notes will be issued to Holders of Securities Certificates, upon surrender of such
Securities Certificates to the exchange agent for exchange, (iii) the Depositor shall use its best
efforts to have the Notes listed on the New York Stock Exchange or on such other exchange,
interdealer quotation system or self-regulatory organization on which the Preferred Securities are
then listed, if any, (iv) Securities Certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Notes bearing accrued and unpaid interest in an amount equal to the
accumulated and unpaid Distributions on such Securities Certificates until such certificates are so
surrendered (and until such certificates are so surrendered, no payments of interest or principal
will be made to Holders of Securities Certificates with respect to such Notes) and (v) all rights
of Holders holding Trust Securities will cease, except the right of such Holders to receive Notes
upon surrender of Securities Certificates.



     (d) Notwithstanding the other provisions of this Section 9.4, if distribution of the
Notes in the manner provided herein is determined by the Property Trustee not to be permitted or
practical, the Trust Property shall be liquidated, and the Trust shall be wound up by the Property
Trustee in such manner as the Property Trustee determines. In such event, Holders will be entitled
to receive out of the assets of the Trust available for distribution to Holders, after satisfaction
of liabilities to creditors of the Trust as provided by applicable law, an amount equal to the
Liquidation Amount per Trust Security plus accumulated and unpaid Distributions thereon to the date
of payment (such amount being the “Liquidation Distribution”). If, upon any such winding up the
Liquidation Distribution can be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the Trust Securities shall be paid on a
pro rata basis (based upon Liquidation Amounts). The Holder of the Common Securities will be
entitled to receive Liquidation Distributions upon any such winding up pro rata (based upon
Liquidation Amounts) with Holders of all Trust Securities, except that, if an Event of Default has
occurred and is continuing, the Preferred Securities shall have a priority over the Common
Securities as provided in Section 4.3.



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



     The Trust may not merge with or into, consolidate, amalgamate, or be replaced by, or convey,
transfer or lease its properties and assets substantially as an entirety to, any Person except
pursuant to this Article IX. At the request of the Holders of the Common Securities,
without the consent of the Holders of the Preferred Securities, the Trust may merge with or into,
consolidate, amalgamate, or be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such under the laws of any State; provided,
that:



     (a) such successor entity either (i) expressly assumes all of the obligations of the Trust
under this Trust Agreement with respect to the Preferred Securities or (ii) substitutes for the
Preferred Securities other securities having substantially the same terms as the Preferred



53









 




Securities (such other Securities, the “Successor Securities”) so long as the Successor
Securities have the same priority as the Preferred Securities with respect to distributions and
payments upon liquidation, redemption and otherwise;




     (b) a trustee of such successor entity possessing substantially the same powers and duties as
the Property Trustee is appointed to hold the Notes;



     (c) if the Preferred Securities or the Notes are rated, such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the Preferred Securities or
the Notes (including any Successor Securities) to be downgraded by any nationally recognized
statistical rating organization that then assigns a rating to the Preferred Securities or the
Notes;



     (d) the Preferred Securities are listed, or any Successor Securities will be listed upon
notice of issuance, on any national securities exchange or interdealer quotation system on which
the Preferred Securities are then listed, if any;



     (e) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does
not adversely affect the rights, preferences and privileges of the Holders of the Preferred
Securities (including any Successor Securities) in any material respect;



     (f) such successor entity has a purpose substantially identical to that of the Trust;



     (g) prior to such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, the Depositor has received an Opinion of Counsel to the effect that (i) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the Holders of the Preferred Securities (including any
Successor Securities) in any material respect; (ii) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity will be required to register as an “investment company” under the Investment Company Act and
(iii) following such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, the Trust (or the successor entity) will continue to be classified as a grantor trust for
U.S. federal income tax purposes; and



     (h) the Depositor or its permitted transferee 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 Agreement.


Notwithstanding the foregoing, the Trust shall not, except with the consent of Holders of all 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 entity to consolidate, amalgamate, merge with or into, or replace, the Trust if
such consolidation, amalgamation, merger, replacement, conveyance, transfer or lease would cause
the Trust or the successor entity to be taxable as a corporation or classified as other than a
grantor trust for United States federal income tax purposes or cause the Notes to be treated as
other than indebtedness of the Depositor for United States federal income tax purposes.





54










 






ARTICLE X.




Information to Purchaser




     SECTION 10.1. Depositor Obligations to Purchaser.



     Notwithstanding any other provision herein, the Depositor shall furnish to (a) the Purchaser,
(b) any Owner of the Preferred Securities reasonably identified to the Depositor or the Trust
(which identification may be made either by such Owner or by the Placement Agent or Purchaser) and
(c) any designee of (a) or (b) above, copies of all correspondence, notices, forms, filings,
reports and other documents required to be provided by the Depositor, whether acting through an
Administrative Trustee or otherwise, to the Property Trustee or Delaware, Trustee under this Trust
Agreement.



     SECTION 10.2. Trustee’s Obligations to Purchaser.



     Notwithstanding any other provision herein, the Property Trustee shall furnish to (a) the
Purchaser, (b) the Placement Agent and (c) a designee of (a) or (b) above, copies of all (i)
correspondence, notices, forms, filings, reports and other documents required to be provided to the
Property Trustee or Delaware Trustee by the Depositor, whether acting through an Administrative
Trustee or otherwise, under this Trust Agreement, and (ii) correspondence, notices, forms, filings,
reports and other documents required to be provided to the Depositor or a Holder by the Property
Trustee or Delaware Trustee under this Trust Agreement.



ARTICLE XI.




Miscellaneous Provisions




     SECTION 11.1. Limitation of Rights of Holders.



     Except as set forth in Section 9.2, the death, bankruptcy, termination, dissolution or
incapacity of any Person having an interest, beneficial or otherwise, in Trust Securities shall not
operate to terminate this Trust Agreement, nor annul, dissolve or terminate the Trust nor entitle
the legal representatives or heirs of such Person or any Holder for such Person, to claim an
accounting, take any action or bring any proceeding in any court for a partition or winding up of
the arrangements contemplated hereby, nor otherwise affect the rights, obligations and liabilities
of the parties hereto or any of them.



     SECTION 11.2. Agreed Tax Treatment of Trust and Trust Securities.



     The parties hereto and, by its acceptance or acquisition of a Trust Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial interest in, such Trust
Security intend and agree to treat the Trust as a grantor trust for United States federal, state
and local tax purposes, and to treat the Trust Securities (including all payments and proceeds with
respect to such Trust Securities) as undivided beneficial ownership interests in the Trust Property
(and payments and proceeds therefrom, respectively) for United States federal, state and local tax
purposes. The provisions of this Trust Agreement shall be interpreted to further this intention
and agreement of the parties.



55









 





     SECTION 11.3. Amendment.



     (a) This Trust Agreement may be amended from time to time by the Property Trustee, the
Administrative Trustees and the Holder of all the Common Securities, without the consent of any
Holder of the Preferred Securities, (i) to cure any ambiguity, correct or supplement any provision
herein that may be defective or inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Trust Agreement, which shall not
be inconsistent with the other provisions of this Trust Agreement, (ii) to modify, eliminate or add
to any provisions of this Trust Agreement to such extent as shall be necessary to ensure that the
Trust will neither be taxable as a corporation nor be classified as other than a grantor trust for
United States federal income tax purposes at all times that any Trust Securities are Outstanding or
to ensure that the Notes are treated as indebtedness of the Depositor for United States federal
income tax purposes, or to ensure that the Trust will not be required to register as an “investment
company” under the Investment Company Act or (iii) to add to the covenants, restrictions or
obligations of the Depositor; provided, that in the case of clauses (i), (ii) or (iii), such action
shall not adversely affect in any material respect the interests of any Holder.



     (b) Except as provided in Section 11.3(c), any provision of this Trust Agreement may
be amended by the Property Trustee, the Administrative Trustees and the Holder of all of the Common
Securities and with (i) the consent of Holders of at least a Majority in Liquidation Amount of the
Preferred Securities and (ii) receipt by the Trustees of an Opinion of Counsel to the effect that
such amendment or the exercise of any power granted to the Trustees in accordance with such
amendment will not cause the Trust to be taxable as a corporation or classified as other than a
grantor trust for United States federal income tax purposes or affect the treatment of the Notes as
indebtedness of the Depositor for United States federal income tax purposes or affect the Trust’s
exemption from status (or from any requirement to register) as an “investment company” under the
Investment Company Act.



     (c) Notwithstanding any other provision of this Trust Agreement, without the consent of each
Holder, this Trust Agreement may not be amended to (i) change the accrual rate, amount, currency or
timing of any Distribution on or the redemption price of the Trust Securities or otherwise
adversely affect the amount of any Distribution or other payment required to be made in respect of
the Trust Securities as of a specified date, (ii) restrict or impair the right of a Holder to
institute suit for the enforcement of any such payment on or after such date, (iii) reduce the
percentage of aggregate Liquidation Amount of Outstanding Preferred Securities, the consent of
whose Holders is required for any such amendment, or the consent of whose Holders is required for
any waiver of compliance with any provision of this Trust Agreement or of defaults hereunder and
their consequences provided for in this Trust Agreement; (iv) impair or adversely affect the rights
and interests of the Holders in the Trust Property, or permit the creation of any Lien on any
portion of the Trust Property; or (v) modify the definition of “Outstanding,” this Section
11.3(c), Sections 4.1, 4.2, 4.3, 6.10(e) or Article IX.



     (d) Notwithstanding any other provision of this Trust Agreement, no Trustee shall enter into
or consent to any amendment to this Trust Agreement that would cause the Trust to be taxable as a
corporation or to be classified as other than a grantor trust for United States federal income tax
purposes or that would cause the Notes to fail or cease to be treated as indebtedness



56









 




of the Depositor for United States federal income tax purposes or that would cause the Trust
to fail or cease to qualify for the exemption from status (or from any requirement to register) as
an “investment company” under the Investment Company Act.




     (e) If any amendment to this Trust Agreement is made, the Administrative Trustees or the
Property Trustee shall promptly provide to the Depositor a copy of such amendment.



     (f) No Trustee shall be required to enter into any amendment to this Trust Agreement that
affects its own rights, duties or immunities under this Trust Agreement. The Trustees shall be
entitled to receive an Opinion of Counsel and an Officers’ Certificate stating that any amendment
to this Trust Agreement is in compliance with this Trust Agreement and all conditions precedent
herein provided for relating to such action have been met.



     (g) No amendment or modification to this Trust Agreement that adversely affects in any
material respect the rights, duties, liabilities, indemnities or immunities of the Delaware Trustee
hereunder shall be permitted without the prior written consent of the Delaware Trustee.



     SECTION 11.4. Separability.



     If any provision in this Trust Agreement or in the 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, and there shall be deemed substituted for the
provision at issue a valid, legal and enforceable provision as similar as possible to the provision
at issue.



     SECTION 11.5. Governing Law.



     THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS, THE TRUST, THE
DEPOSITOR AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT
REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS.



     SECTION 11.6. Successors.



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



     SECTION 11.7. Headings.



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



57









 





     SECTION 11.8. Reports, Notices and Demands.



     (a) Any report, notice, demand or other communication that by any provision of this Trust
Agreement is required or permitted to be given or served to or upon any Holder or the Depositor may
be given or served in writing delivered in person, or by reputable, overnight courier, by telecopy
or by deposit thereof, first-class postage prepaid, in the United States mail, addressed, (a) in
the case of a Holder of Preferred Securities, to such Holder as such Holder’s name and address may
appear on the Securities Register; and (b) in the case of the Holder of all the Common Securities
or the Depositor, to Wintrust Financial Corporation 727 North Bank Lane, Lake Forest, Illinois,
60045, Attention: Chief Financial Officer, or to such other address as may be specified in a
written notice by the Holder of all the Common Securities or the Depositor, as the case may be, to
the Property Trustee. Such report, notice, demand or other communication to or upon a Holder or the
Depositor shall be deemed to have been given when received in person, within one (1) Business Day
following delivery by overnight courier, when telecopied with receipt confirmed, or within three
(3) Business Days following delivery by mail, except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice was given, such
notice or other document shall be deemed to have been delivered on the date of such refusal or
inability to deliver.



     (b) Any notice, demand or other communication that by any provision of this Trust Agreement is
required or permitted to be given or served to or upon the Property Trustee, the Delaware Trustee,
the Administrative Trustees, the Trust, the Placement Agent, or the Purchaser shall be given in
writing by deposit thereof, first-class postage prepaid, in the U.S. mail, personal delivery or
facsimile transmission, addressed to such Person as follows: (a) with respect to the Property
Trustee to Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890-1600, Attention: Corporate Trust Administration, facsimile no. (302) 636-4140; (b)
with respect to the Delaware Trustee, to Wilmington Trust Company, Rodney Square North, 1100 North
Market Street, Wilmington, Delaware 19890-1600, Attention: Corporate Trust Administration,
facsimile no. (302) 636-4140; (c) with respect to the Administrative Trustees, to them at the
address above for notices to the Depositor, marked “Attention: Administrative Trustees of Wintrust
Capital Trust VIII,” (d) with respect to the Trust, to its principal executive office specified in
Section 2.2, with a copy to the Property Trustee, (e) with respect to the Placement Agent,
to SunTrust Capital Markets, Inc., 303 Peachtree Street, N.E., 24th Floor, Mail Code
3950, Atlanta, Georgia 30308, facsimile no. (404) 813-5000, and (f) with respect to the Purchaser,
to STI Investment Management, Inc., 2202 Polly Drummond Office Park, Newark, Delaware 19711,
facsimile no. (302) 737-3425. Such notice, demand or other communication to or upon the Trust, the
Property Trustee or the Administrative Trustees shall be deemed to have been sufficiently given or
made only upon actual receipt of the writing by the Trust, the Property Trustee or the
Administrative Trustees.



     SECTION 11.9. Agreement Not to Petition.



     Each of the Trustees and the Depositor agree for the benefit of the Holders that, until at
least one year and one day after the Trust has been terminated in accordance with Article
IX, they shall not file, or join in the filing of, a petition against the Trust under any
Bankruptcy Law or otherwise join in the commencement of any proceeding against the Trust under any
Bankruptcy Law. If the Depositor takes action in violation of this Section 11.9, the
Property



58









 




Trustee agrees, for the benefit of Holders, that at the expense of the Depositor, it shall
file an answer with the applicable bankruptcy court or otherwise properly contest the filing of
such petition by the Depositor against the Trust or the commencement of such action and raise the
defense that the Depositor has agreed in writing not to take such action and should be estopped and
precluded therefrom and such other defenses, if any, as counsel for the Property Trustee or the
Trust may assert.




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



[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]




59









 





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



	 	 	 	 	 	 	 
	 	 	 	 	Wintrust Financial Corporation,
	 	 	 	 	as Depositor
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ David A. Dykstra
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: David A. Dykstra
	 

	 	 	 	 	 	Title: Senior Executive Vice President and
	 

	 	 	 	 	 	Chief Operating Officer
	 
	 	 	 	 	 	 
	Wilmington Trust Company,	 	Wilmington Trust Company, as Delaware Trustee
	as Property Trustee	 	 	 	 
	 
	By:

	 	/s/ W. T. Morris II	 	By:	 	/s/ W. T. Morris II
	 

	 	 
	 	 	 	 
	 

	 	Name: W. T. Morris II
	 	 	 	Name: W. T. Morris II
	 

	 	Title: Senior Financial Services
Officer
	 	 	 	Title:
	 
	 	 	 	 	 	 
	/s/
Edward J. Wehmer	 	/s/
David A. Dykstra	 	 
	 	 	 
	Name: Edward J. Wehmer	 	Name: David A. Dykstra
	Administrative Trustee	 	Administrative Trustee
	 
	 	 	 	 	 	 
	/s/
David L. Stoehr	 	 	 	 
	 	 	 	 	 
	Name: David L. Stoehr	 	 	 	 
	Administrative Trustee	 	 	 	 








 









 








Exhibit A




CERTIFICATE OF TRUST




OF




WINTRUST CAPITAL TRUST VIII




               This Certificate of Trust of Wintrust Capital Trust VIII (the “Trust”) is being duly executed
and filed on behalf of the Trust by the undersigned, as trustee, to form a statutory trust under
the Delaware Statutory Trust Act (12 Del. C. §3801 et seq.) (the “Act”).



               1. Name. The name of the statutory trust formed by this Certificate of Trust is:
Wintrust Capital Trust VIII.



               2. Trustee. The name and business address of the trustee of the Trust with its
principal place of business 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 upon its filing with
the Secretary of State of the State of Delaware.



               IN WITNESS WHEREOF, the undersigned has duly executed this Certificate of Trust in accordance
with Section 3811(a)(1) of the Act.



	 	 	 	 	 
	 	 	Wilmington Trust Company, not in its individual
	 	 	capacity, but solely as trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:







A-1









 








Exhibit B




[FORM OF COMMON SECURITIES CERTIFICATE]




THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY

STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED

OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION. THIS CERTIFICATE IS

NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST AGREEMENT




	 	 	 
	Certificate Number

	 	1,238 Common Securities
	 
	 	 
	           C-

	 	 






Certificate Evidencing Common Securities




of




Wintrust Capital Trust VIII




Floating Rate Common Securities




(liquidation amount $1,000 per Common Security)




     Wintrust Capital Trust VIII, a statutory trust created under the laws of the State of Delaware
(the “Trust”), hereby certifies that Wintrust Financial Corporation (the “Holder”) is the
registered owner of 1,238 common securities of the Trust representing undivided common beneficial
interests in the assets of the Trust and designated the Wintrust Capital Trust VIII Floating Rate
Common Securities (liquidation amount $1,000 per Common Security) (the “Common Securities”). Except
in accordance with Section 5.11 of the Trust Agreement (as defined below), the Common
Securities are not transferable and, to the fullest extent permitted by law, any attempted transfer
hereof other than in accordance therewith 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 August 2, 2005, as the same may be amended from time to time (the “Trust
Agreement”), among Wintrust Financial Corporation, as Depositor, Wilmington Trust Company, as
Property Trustee, Wilmington Trust Company, as Delaware Trustee, the Administrative Trustees named
therein and the Holders, from time to time, of Trust Securities. The Trust will furnish a copy of
the Trust Agreement to the Holder without charge upon written request to the Trust at its principal
place of business or registered office.



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



B-1









 





     This Common Securities Certificate shall be governed by and construed in accordance with the
laws of the State of Delaware.



     Terms used but not defined herein have the meanings set forth in the Trust Agreement.



     In Witness Whereof, one of the Administrative Trustees of the Trust has executed on
behalf of the Trust this certificate this 2nd day of August, 2005.



	 	 	 	 	 
	 	 	Wintrust Capital Trust VIII
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name: David A. Dykstra
	 

	 	 	 	Administrative Trustee






B-2









 






Exhibit C




[FORM OF PREFERRED SECURITIES CERTIFICATE]




     “THIS PREFERRED SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE TRUST AGREEMENT
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”) OR A
NOMINEE OF DTC. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
TRUST AGREEMENT, AND NO TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS
PREFERRED SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER
NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.



     UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO WINTRUST
CAPITAL TRUST VIII OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
PREFERRED SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED 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.



     THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND SUCH PREFERRED SECURITIES OR ANY INTEREST THEREIN MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF ANY PREFERRED SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OF THE PREFERRED
SECURITIES MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A UNDER THE SECURITIES ACT.



     THE HOLDER OF THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR THE BENEFIT
OF THE TRUST AND THE DEPOSITOR THAT (A) SUCH PREFERRED SECURITIES MAY BE OFFERED, RESOLD OR
OTHERWISE TRANSFERRED ONLY (I) TO THE TRUST, (II) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) TO AN INSTITUTIONAL “ACCREDITED INVESTOR”
WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF AN “ACCREDITED



C-1









 




INVESTOR,” FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (IV) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (V) PURSUANT TO AN EXEMPTION FROM THE SECURITIES
ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND, IN THE CASE OF (III) OR (V), SUBJECT TO THE RIGHT
OF THE TRUST AND THE DEPOSITOR TO REQUIRE AN OPINION OF COUNSEL AND OTHER INFORMATION SATISFACTORY
TO EACH OF THEM AND (B) THE HOLDER WILL NOTIFY ANY PURCHASER OF ANY PREFERRED SECURITIES FROM IT OF
THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.




     THE PREFERRED SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN
AGGREGATE LIQUIDATION AMOUNT OF NOT LESS THAN $100,000. TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY ATTEMPTED TRANSFER OF PREFERRED SECURITIES OR ANY INTEREST THEREIN IN A BLOCK HAVING AN
AGGREGATE LIQUIDATION AMOUNT OF LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL
BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH PREFERRED SECURITIES FOR
ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF LIQUIDATION AMOUNT OF OR DISTRIBUTIONS
ON SUCH PREFERRED SECURITIES OR ANY INTEREST THEREIN, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED
TO HAVE NO INTEREST WHATSOEVER IN SUCH PREFERRED SECURITIES.



     THE HOLDER OF THIS SECURITY OR ANY INTEREST THEREIN BY ITS ACCEPTANCE HEREOF OR THEREOF ALSO
AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT
OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
“CODE”) (EACH A “PLAN”), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF
ANY PLAN’S INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE
OR HOLD THIS PREFERRED SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION
CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE
AND HOLDING OF THIS SECURITY OR ANY INTEREST THEREIN IS NOT PROHIBITED BY SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THE
PREFERRED SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND
HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION
3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON
ACTING ON



C-2









 




BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF
ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE OR HOLDING WILL
NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR
WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.




     THIS OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND
OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE CORPORATION (THE “FDIC”).



C-3









 





	 	 	 
	Certificate Number

	 	40,000 Preferred Securities
	 

	 	$40,000,000 Aggregate Liquidation Amount






CUSIP NO.




97651A AA 3




Certificate Evidencing Preferred Securities




of




Wintrust Capital Trust VIII




Floating Rate Preferred Securities




(liquidation amount $1,000 per Preferred Security)




     Wintrust Capital Trust VIII, 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 40,000
Preferred Securities, or such other number of Preferred Securities represented hereby as may be set
forth in the records of the Securities Registrar hereinafter referred to in accordance with the
Trust Agreement (as defined below), of the Trust representing an undivided preferred beneficial
interest in the assets of the Trust and designated the Wintrust Capital Trust VIII Floating Rate
Preferred Securities (liquidation amount $1,000 per Preferred Security) (the “Preferred
Securities”). 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 5.7 of the Trust Agreement (as defined
below). 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 August 2, 2005,
as the same may be amended from time to time (the “Trust Agreement”), among Wintrust Financial
Corporation, an Illinois corporation, as Depositor, Wilmington Trust Company, as Property Trustee,
Wilmington Trust Company, as Delaware Trustee, the Administrative Trustees named therein and the
Holders, from time to time, of Trust Securities. The Holder is entitled to the benefits of the
Guarantee Agreement entered into by Wintrust Financial Corporation and Wilmington Trust Company, as
Guarantee Trustee, dated as of August 2, 2005, as the same may be amended from time to time (the
“Guarantee Agreement”), to the extent provided therein. The Trust will furnish a copy of each of
the Trust Agreement and the Guarantee Agreement to the Holder without charge upon written request
to the Property Trustee 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.



C-4









 





     This Preferred Securities Certificate shall be governed by and construed in accordance with
the laws of the State of Delaware.



     All capitalized terms used but not defined in this Preferred Securities Certificate are used
with the meanings specified in the Trust Agreement, including the Schedules and Exhibits thereto.



     In Witness Whereof, one of the Administrative Trustees of the Trust has executed on
behalf of the Trust this certificate this 2nd day of August, 2005.



	 	 	 	 	 
	 	 	Wintrust Capital Trust VIII
	 
	 	 	 	 
	 

	 	By:
	 	/s/ David A. Dykstra
	 

	 	 	 	 
	 

	 	 	 	Name: David A. Dykstra
	 

	 	 	 	Administrative Trustee






     This is one of the Preferred Securities referred to in the within-mentioned Trust Agreement.


Dated: August 2, 2005




	 	 	 	 	 
	 	 	Wilmington Trust
Company, not in its individual capacity, but solely as Property Trustee
	 
	 	 	 	 
	 

	 	By:	 	/s/ W.T. Morris II
	 

	 	 	 	 
	 

	 	 	 	Authorized officer






C-5









 






[FORM OF REVERSE OF SECURITY]




     The Trust promises to pay Distributions from August 2, 2005, or from the most recent
Distribution Date to which Distributions have been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on March 31, June 30, September 30 and December 31 of each
year, commencing on September 30, 2005, at an annual rate equal to 5.15% beginning on (and
including) the date of original issuance and ending on (but excluding) September 30, 2005 and for
each successive period beginning on (and including) September 30, 2005, and each successive
Distribution Date, at a variable rate per annum, reset quarterly, and ending on (but excluding) the
next succeeding Distribution Date equal to LIBOR plus 1.45% of the Liquidation Amount of the
Preferred Securities represented by this Preferred Securities Certificate, together with any
Additional Interest Amounts, in respect to such period.



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



     In the event (and to the extent) that the Depositor exercises its right under the Indenture to
defer the payment of interest on the Notes, Distributions on the Preferred Securities shall be
deferred.



     Under the Indenture, so long as no Note Event of Default pursuant to paragraphs (c), (e) or
(f) of Section 5.1 of the Indenture has occurred and is continuing, the Depositor shall
have the right, at any time and from time to time during the term of the Notes, to defer the
payment of interest on the Notes for a period of up to twenty (20) consecutive quarterly interest
payment periods (each such extended interest payment period, an “Extension Period”), during which
Extension Period no interest shall be due and payable (except any Additional Tax Sums that may be
due and payable). No interest on the Notes shall be due and payable during an Extension Period,
except at the end thereof, but each installment of interest that would otherwise have been due and
payable during such Extension Period shall bear Additional Interest (to the extent payment of such
interest would be legally enforceable) at a variable rate per annum, reset quarterly, equal to
LIBOR plus 1.45%, compounded quarterly, from the dates on which amounts would have otherwise been
due and payable until paid or until funds for the payment thereof have been made available for
payment. If Distributions are deferred, the deferred Distributions (including Additional Interest
Amounts) shall be paid on the date that the related Extension Period terminates to Holders (as
defined in the Trust Agreement) of the Trust Securities as they appear on the books and records of
the Trust on the record date immediately preceding such termination date.



     Distributions on the Securities must be paid on the dates payable (after giving effect to any
Extension Period) to the extent that the Trust has funds available for the payment of such
Distributions in the Payment Account of the Trust. The Trust’s funds available for Distribution to
the Holders of the Preferred Securities will be limited to payments received from the Depositor.
The payment of Distributions out of moneys held by the Trust is guaranteed by the Depositor
pursuant to the Guarantee Agreement.



C-6









 





     During any such Extension Period, the Depositor shall not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any
of the Depositor’s capital stock or (ii) make any payment of principal of or any interest or
premium on or repay, repurchase or redeem any debt securities of the Depositor that rank pari passu
in all respects with or junior in interest to the Notes (other than (a) repurchases, redemptions or
other acquisitions of shares of capital stock of the Depositor in connection with (1) any
employment contract, benefit plan or other similar arrangement with or for the benefit of any one
or more employees, officers, directors or consultants, (2) a dividend reinvestment or stockholder
stock purchase plan or (3) the issuance of capital stock of the Depositor (or securities
convertible into or exercisable for such capital stock) as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as a result of an exchange
or conversion of any class or series of the Depositor’s capital stock (or any capital stock of a
Subsidiary (as defined in the Indenture) of the Depositor) for any class or series of the
Depositor’s capital stock or of any class or series of the Depositor’s indebtedness for any class
or series of the Depositor’s capital stock, (c) the purchase of fractional interests in shares of
the Depositor’s capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (d) any declaration of a dividend in connection
with any Rights Plan (as defined in the Indenture), the issuance of rights, stock or other property
under any Rights Plan, or the redemption or repurchase of rights pursuant thereto or (e) any
dividend in the form of stock, warrants, options or other rights where the dividend stock or the
stock issuable upon exercise of such warrants, options or other rights is the same stock as that on
which the dividend is being paid or ranks pari passu with or junior to such stock).



     On each Note Redemption Date, on the stated maturity (or any date of principal repayment upon
early maturity) of the Notes and on each other date on (or in respect of) which any principal on
the Notes is repaid, the Trust will be required to redeem a Like Amount of Trust Securities at the
Redemption Price. Under the Indenture, the Notes may be redeemed by the Depositor on any Interest
Payment Date, at the Depositor’s option, on or after September 30, 2010 in whole or in part from
time to time at a redemption price equal to one hundred percent (100%) of the principal amount
thereof or the redeemed portion thereof, as applicable, together, in the case of any such
redemption, with accrued interest, including any Additional Interest, to but excluding the date
fixed for redemption; provided, that the Depositor shall have received the prior approval of the
Federal Reserve if then required. The Notes may also be redeemed by the Depositor, at its option,
at any time, in whole but not in part, upon the occurrence of a Capital Disqualification Event, an
Investment Company Event or a Tax Event at the Special Event Redemption Price.



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



     Payments of Distributions (including any Additional Interest Amounts), the Redemption Price,
Liquidation Amount or any other amounts in respect of the Preferred Securities shall be made by
wire transfer at such place and to such account at a banking institution in the United



C-7









 




States as may be designated in writing at least ten (10) Business Days prior to the date for
payment by the Person entitled thereto unless proper written transfer instructions have not been
received by the relevant record date, in which case such payments shall be made by check mailed to
the address of such Person as such address shall appear in the Security Register. If any Preferred
Securities are held by a Depositary, such Distributions shall be made to the Depositary in
immediately available funds.




     The indebtedness evidenced by the Notes is, to the extent provided in the Indenture,
subordinate and junior in right of payment to the prior payment in full of all Senior Debt (as
defined in the Indenture), and this Security is issued subject to the provisions of the Indenture
with respect thereto.



C-8









 





ASSIGNMENT




     For Value Received, the undersigned assigns and transfers this Preferred Securities
Certificate to:



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




(Insert address and zip code of assignee)




and irrevocably appoints



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




	 	 	 	 	 
	Date:

	 	 	 	 
	 

	 	 
	Signature:
	 	 	 	 
	 

	 	 
	 

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





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





C-9









 








Exhibit D




Junior Subordinated Indenture





D-1









 








Exhibit E




FORM OF TRANSFEREE CERTIFICATE

TO BE EXECUTED BY TRANSFEREES OTHER THAN QIBS




__________,
[   ]




Wintrust Financial Corporation

Wintrust Capital Trust VIII

727 North Bank Lane

Lake Forest, Illinois 60045



	 	 	 	 	 
	 

	 	Re:
	 	Purchase of $1,000 stated liquidation amount of Floating Rate Preferred
	 

	 	 	 	Securities (the “Preferred Securities”) of Wintrust Capital Trust VIII





Ladies and Gentlemen:




          In connection with our purchase of the Preferred Securities we confirm that:



          1. We understand that the Floating Rate Preferred Securities (the “Preferred Securities”) of
Wintrust Capital Trust VIII (the “Trust”) (including the guarantee (the “Guarantee”) of Wintrust
Financial Corporation (the “Company”) executed in connection therewith) and the Floating Rate
Junior Subordinated Notes due 2035 of the Company (the “Subordinated Notes”) (the Preferred
Securities, the Guarantee and the Subordinated Notes together being referred to herein as the
“Offered Securities”), have not been registered under the Securities Act of 1933, as amended (the
“Securities Act”), and may not be offered or sold except as permitted in the following sentence. We
agree on our own behalf and on behalf of any investor account for which we are purchasing the
Offered Securities that, if we decide to offer, sell or otherwise transfer any such Offered
Securities, (i) such offer, sale or transfer will be made only (a) to the Trust, (b) to a person we
reasonably believe is a “qualified institutional buyer” (a “QIB”) (as defined in Rule 144 under the
Securities Act) in a transaction meeting the requirements of Rule 144A, (c) to an institutional
“accredited investor” within the meaning of subparagraph (a) (1), (2), (3) or (7) of Rule 501 under
the Securities Act that is acquiring Offered Securities for its own account, or for the account of
such an “accredited investor,” for investment purposes and not with a view to, or for offer or sale
in connection with, any distribution thereof in violation of the Securities Act, (d) pursuant to an
effective registration statement under the Securities Act, or (e) pursuant to an exemption from the
Securities Act, in each case in accordance with any applicable securities laws of any state of the
United States or any other applicable jurisdiction and, in the case of (c) or (e), subject to the
right of the Trust and the depositor to require an opinion of counsel and other information
satisfactory to each of them. The foregoing restrictions on resale will not apply subsequent to the
date on which, in the written opinion of counsel, the Preferred Securities are not “restricted
securities” within the meaning of Rule 144 under the Securities Act. If any resale or other
transfer of the Offered Securities is proposed to be made pursuant to clause (c) or (e) above, the
transferor shall deliver a letter from the transferee substantially in the form of this letter to
the Property Trustee as Transfer Agent, which shall provide as applicable, among other things, that
the transferee is an “accredited investor” within the meaning of subparagraph (a) (1), (2), (3) or
(7) of Rule 501 under the Securities Act that is acquiring such Securities for investment purposes
and not for distribution in



E-1









 




violation of the Securities Act. We acknowledge on our behalf and on behalf of any investor
account for which we are purchasing Securities that the Trust and the Company reserve the right
prior to any offer, sale or other transfer pursuant to clause (c) or (e) to require the delivery of
any opinion of counsel, certifications and/or other information satisfactory to the Trust and the
Company. We understand that the certificates for any Offered Security that we receive will bear a
legend substantially to the effect of the foregoing.




          2. We are an “accredited investor” within the meaning of subparagraph (a) (1), (2), (3) or (7)
of Rule 501 under the Securities Act purchasing for our own account or for the account of such an
“accredited investor,” and we are acquiring the Offered Securities for investment purposes and not
with view to, or for offer or sale in connection with, any distribution in violation of the
Securities Act, and we have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the Offered Securities, and we
and any account for which we are acting are each able to bear the economic risks of our or its
investment.



          3. We are acquiring the Offered Securities purchased by us for our own account (or for one or
more accounts as to each of which we exercise sole investment discretion and have authority to
make, and do make, the statements contained in this letter) and not with a view to any distribution
of the Offered Securities, subject, nevertheless, to the understanding that the disposition of our
property will at all times be and remain within our control.



          4. In the event that we purchase any Preferred Securities or any Subordinated Notes, we will
acquire such Preferred Securities having an aggregate stated liquidation amount of not less than
$100,000 or such Subordinated Notes having an aggregate principal amount not less than $100,000,
for our own account and for each separate account for which we are acting.



          5. We acknowledge that we either (A) are not a fiduciary of a employee benefit, individual
retirement account or other plan or arrangement subject to Title I of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), or Section 4975 of the Internal Revenue Code of
1986, as amended (the “Code”) (each a “Plan”), or an entity whose underlying assets include “plan
assets” by reason of any Plan’s investment in the entity, and are not purchasing the Offered
Securities on behalf of or with “plan assets” by reason of any Plan’s investment in the entity, (B)
are eligible for the exemptive relief available under one or more of the following prohibited
transaction class exemptions (“PTCEs”) issued by the U.S. Department of Labor: PTCE 96-23, 95-60,
91-38, 90-1 or 84-14 or another applicable exemption, or (C) our purchase and holding of this
security, or any interest therein, is not prohibited by Section 406 of ERISA or Section 4975 of the
Code with respect to such purchase or holding.



          6. We acknowledge that the Trust and the Company and others will rely upon the truth and
accuracy of the foregoing acknowledgments, representations, warranties and agreements and agree
that if any of the acknowledgments, representations, warranties and agreements deemed to have been
made by our purchase of the Offered Securities are no longer accurate, we shall promptly notify the
Company. If we are acquiring any Offered Securities as a fiduciary or agent for one or more
investor accounts, we represent that we have sole discretion with respect to each such investor
account and that we have full power to make the foregoing acknowledgments, representations and
agreement on behalf of each such investor account.



E-2









 





	 	 	 	 	 
	 	 	(Name of Purchaser)
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Date:	 	 
	 

	 	 	 	 





          Upon transfer, the Offered Securities would be registered in the name of the new beneficial
owner as follows.



	 	 	 	 	 
	Name:

	 	 	 	 
	 

	 	 	 	 
	Address:
	 	 	 	 
	 

	 	 	 	 
	Taxpayer ID Number:	 	 	 
	 

	 	 	 	 






E-3









 








Exhibit F




FORM OF TRANSFEROR CERTIFICATE

TO BE EXECUTED FOR QIBs



__________,
[   ]




Wintrust Financial Corporation

Wintrust Capital Trust VIII

727 North Bank Lane

Lake Forest, Illinois 60045



	 	 	 	 	 
	 

	 	Re:
	 	Purchase of $1,000 stated liquidation amount of Floating Rate
	 

	 	 	 	Preferred Securities (the
“Preferred Securities”) of Wintrust Capital Trust VIII






     Reference is hereby made to the Amended and Restated Trust Agreement of Wintrust Capital Trust
VIII, dated as of August 2, 2005 (the “Trust Agreement”), among Edward J. Wehmer, David A. Dykstra
and David L. Stoehr, as Administrative Trustees, Wilmington Trust Company, as Delaware Trustee,
Wilmington Trust Company, as Property Trustee, Wintrust Financial Corporation, as Depositor, and
the holders from time to time of undivided beneficial interests in the assets of Wintrust Capital
Trust VIII. Capitalized terms used but not defined herein shall have the meanings given them in
the Trust Agreement.



     This letter relates to $___aggregate liquidation amount of Preferred
Securities which are held in the name of ___(the “Transferor”).



     In accordance with Article V of the Trust Agreement, the Transferor hereby certifies that such
Preferred Securities are being transferred in accordance with (i) the transfer restrictions set
forth in the Preferred Securities and (ii) Rule 144A under the Securities Act (“Rule 144A”), to a
transferee that the Transferor reasonably believes is purchasing the Preferred Securities for its
own account or an account with respect to which the transferee exercises sole investment discretion
and the transferee and any such account is a “qualified institutional buyer” within the meaning of
Rule 144A, in a transaction meeting the requirements of Rule 144A and in accordance with applicable
securities laws of any state of the United States or any other jurisdiction.



     You are entitled to rely upon this letter and are irrevocably authorized to produce this
letter or a copy hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.



	 	 	 	 	 
	 	 	(Name of Transferor)
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






	 	 	 	 	 
	Date:

	 	 	 	 
	 

	 	 	 	 





F-1









 






Exhibit G




Officer’s Certificate




     The undersigned, the [Chief Financial Officer] [Treasurer] [Executive Vice President] hereby
certifies, pursuant to Section 8.16(b) of the Amended and Restated Trust Agreement, dated as of
August 2, 2005, among Wintrust Financial Corporation (the “Company”), Wilmington Trust Company, as
property trustee, Wilmington Trust Company, as Delaware trustee and the administrative trustees
named therein, that, as of [date], [20___], the Company had the following ratios and balances:



FINANCIAL HOLDING COMPANY

As of [Quarterly Financial Dates]



	 	 	 	 	 
	Tier 1 Risk Weighted Assets
	 	 	—	%
	Ratio of Double Leverage
	 	 	—	%
	Non-Performing Assets to Loans and OREO
	 	 	—	%
	Tangible Common Equity as a Percentage of Tangible Assets
	 	 	—	%
	Ratio of Reserves to Non-Performing Loans
	 	 	—	%
	Ratio of Net Charge-Offs to Loans
	 	 	—	%
	Return on Average Assets (annualized)
	 	 	—	%
	Net Interest Margin (annualized)
	 	 	—	%
	Efficiency Ratio
	 	 	—	%
	Ratio of Loans to Assets
	 	 	—	%
	Ratio of Loans to Deposits
	 	 	—	%
	Total Assets
	 	$	—	 
	Year to Date Income
	 	$	—	 







 

* A table describing the quarterly report calculation procedures is provided on page ___



[FOR FISCAL YEAR END: Attached hereto are the audited consolidated financial statements
(including the balance sheet, income statement and statement of cash flows, and notes thereto,
together with the report of the independent accountants thereon) of the Company and its
consolidated subsidiaries for the three years ended ___, 20___.]



[FOR FISCAL QUARTER END: Attached hereto are the unaudited consolidated and consolidating financial
statements (including the balance sheet and income statement) of the Company and its consolidated
subsidiaries for the fiscal quarter] ended [date], 20___.




G-1









 







The financial statements fairly present in all material respects, in accordance with U.S. generally
accepted accounting principles (“GAAP”), the financial position of the Company and its consolidated
subsidiaries, and the results of operations and changes in financial condition as of the date, and
for the [___quarter interim] [annual] period ended [date], 20___, and such financial statements
have been prepared in accordance with GAAP consistently applied throughout the period involved
(expect as otherwise noted therein).




     IN WITNESS WHEREOF, the undersigned has executed this Officer’s Certificate as of this ___
day of ___, 20___



	 	 	 
	 

	 	 
	 

	 	Name:
	 

	 	Title:
	 
	 	 
	 

	 	Wintrust Financial Corporation
	 

	 	727 North Bank Lane
	 

	 	Lake Forest, Illinois 60045
	 

	 	(847) 615-4034






G-2









 





Financial Definitions




	 	 	 	 	 
	 	 	Corresponding FRY-9C or LP Line Items with	 	Description of
	Report Item	 	Line Item corresponding Schedules	 	Calculation
	 

	 	 	 	Tier 1 Risk Ratio: Core
	Tier 1 Risk

	 	BHCK7206
	 	Capital (Tier 1)/ Risk-
	Weighted Assets

	 	Schedule HC-R
	 	Adjusted Assets
	 
	Ratio of Double
Leverage

	 	(BHCP0365)/(BCHCP3210)
Schedule PC in the LP
	 	Total equity investments
in subsidiaries divided
by the total equity
capital. This field is
calculated at the parent
company level.
“Subsidiaries” include
bank, bank holding
company, and non-bank
subsidiaries.
	 
	Non-Performing
Assets to Loans
and OREO

	 	(BHCK5525-BHCK3506+BHCK5526-

BHCK3507+BHCK2744)/(BHCK2122+BHCK
2

744) Schedules HC-C, HC-M & HC-N
	 	Total Nonperforming

Assets

(NPLs+Foreclosed Real

Estate+Other

Nonaccrual &

Repossessed

Assets)/Total

Loans+Foreclosed Real

Estate
	 
	Tangible Common
Equity as a
Percentage of
Tangible Assets

	 	(BHDM3210-BHCK3163)/(BHCK2170-
BHCK3163)
Schedule HC
	 	(Equity Capital –

Goodwill)/(Total Assets

– Goodwill)
	 
	Ratio of Reserves
to Non-Performing
Loans

	 	(BHCK3123+BHCK3128)/(BHCK5525-

BHCK3506+BHCK5526-BHCK3507)

Schedules HC & HC-N & HC-R
	 	Total Loan Loss and
Allocated Transfer Risk
Reserves/ Total
Nonperforming Loans
(Nonaccrual +
Restructured)
	 
	Ratio of Net
Charge-Offs to
Loans

	 	(BHCK4635-BHCK4605)/(BHCK3516)

Schedules HC-B & HC-K
	 	Net charge offs for the
period as a percentage of
average loans.
	Return on Average

Assets

(annualized)

	 	(BHCK4340/BHCK3368)

Schedules HI & HC-K
	 	Net Income as a
percentage of Assets.
	 
	Net Interest

Margin

	 	(BHCK4519)/(BHCK3515+BHCK3365+BHCK3

516+BHCK3401+BHCKB985)
	 	(Net Interest Income

Fully Taxable






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	 	 	Corresponding FRY-9C or LP Line Items with	 	Description of
	Report Item	 	Line Item corresponding Schedules	 	Calculation
	(annualized)

	 	Schedules HI Memorandum and HC-K
	 	Equivalent, if available/Average

if Earning Assets)
	 
	Efficiency Ratio

	 	(BHCK4093)/(BHCK4519+BHCK4079)
Schedule HI
	 	(Non-interest

Expense)/(Net Interest

Income Fully Taxable

Equivalent, if available,

plus Non-interest

Income)
	 
	Ratio of Loans to
Assets

	 	(BHCKB528+BHCK5369)/(BHCK2170)
Schedule HC
	 	Total Loans & Leases
(Net of Unearned
Income & Gross of
Reserve)/Total Assets
	 
	Ratio of Loans to
Deposits

	 	(BHCKB528+BHCK5369)/(BHDM6631+BHD
M6636+BHFN6631+BHFN6636)
Schedule HC
	 	Total Loans & Leases
(Net of Unearned
Income & Gross of
Reserve)/Total Deposits
(Includes Domestic and
Foreign Deposits)
	 
	Total Assets

	 	(BHCK2170)
Schedule HC
	 	The sum of total assets.
Includes cash and
balances due from
depository institutions;
securities; federal funds
sold and securities
purchased under
agreements to resell;
loans and lease
financing receivables;
trading assets; premises
and fixed assets; other
real estate owned;
investments in
unconsolidated
subsidiaries and
associated companies;
customer’s liability on
acceptances outstanding;
intangible assets; and
other assets.
	 
	Net Income

	 	(BHCK4300)
Schedule HI
	 	The sum of income
(loss)before
extraordinary items and






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	 	 	Corresponding FRY-9C or LP Line Items with	 	Description of
	Report Item	 	Line Item corresponding Schedules	 	Calculation
	 

	 	 	 	other adjustments and
extraordinary items; and other
adjustments, net of income taxes.






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Financial Definitions




THRIFT HOLDING COMPANY




	 	 	 	 	 
	 	 	 	 	Description of
	Report Item	 	Corresponding TFR	 	Calculation
	Tier I Risk Weighted

Assets

	 	Schedule CCR – Consolidated Capital
Requirement
CCR 830
	 	Tier 1 Risk Ratio: Core
Capital (Tier 1)/Risk-
adjusted assets
	 
	Ratio of Double
Leverage

	 	Not applicable
	 	Not applicable
	 
	Non-performing
assets
to loans and OREO

	 	Schedule PD – Consolidated Past Due
and
Nonaccrual
Schedule SC – Consolidated
Statement of
Condition
PD30/(SC23+SC30+SC34+SC40)
	 	Total Non-performing

assets (NPLs +

Foreclosed Real

Estate+Other Non-

accrual & Repossessed

assets+Foreclosed Real

Estate)
	 
	Tangible Common
Equity as a
Percentage
of Total Assets

	 	Schedule CCR
CCR 840
	 	(Equity Capital-

Goodwill) / (Total assets

– Goodwill)
	 
	Ratio of Reserves to
Non-performing loans

	 	SC283/PD30
	 	Total loan loss reserves /Total

Non-performing

loans
	 
	Ratio of Net Charge-
offs to Loans

	 	Schedule VA – Consolidated Valuation
Allowances and Related Data
(VA155-VA135)/(SC23+SC30+SC34)
	 	Net charge offs for the
period as a percentage of
average loans
	 
	Return on Assets

(annualized)

	 	Schedule SO – Consolidated
Statements of
Operations
SO91/SC60
	 	Net income as a
percentage of assets
	 
	Net interest margin

(annualized)

	 	SO311/((SC10-

SC110)+SC20+SC23+SC30+SC34)
	 	Net interest income /Average

earning assets
	 
	Efficiency Ratio

	 	(SO51/(SO311+SO40))
	 	(Non-interest expense) /

(Net interest income +

Non-interest income)
	 
	Ratio of Loans to
Assets

	 	(SC23+SC30+SC34)/(SC60)
	 	Total Loan & Leases /Total

assets
	Ratio of Loans to
Deposits

	 	(SC23+SC30+SC34)/(SC710)
	 	Total Loans & Leases /Total

Deposits
	 
	Total Assets

	 	Schedule SC
SC60
	 	The sum of total assets.
	Net Income

	 	Schedule SO
SO91
	 	The sum of income
(loss).






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Schedule A




DETERMINATION OF LIBOR




     With respect to the Trust Securities, the London interbank offered rate (“LIBOR”) shall be
determined by the Calculation Agent in accordance with the following provisions (in each case
rounded to the nearest .000001%):


(1) On the second LIBOR Business Day (as defined below) prior to a Distribution Date (except, with
respect to the first distribution payment period, on July 29, 2005) (each such day, a “LIBOR
Determination Date”), LIBOR for any given security shall, for the following distribution period,
equal the rate, as obtained by the Calculation Agent from Bloomberg Financial Markets Commodities
News, for three-month U.S. Dollar deposits in Europe, which appears on Dow Jones Telerate Page 3750
(as defined in the International Swaps and Derivatives Association, Inc. 1991 Interest Rate and
Currency Exchange Definitions), or such other page as may replace such Page 3750, as of 11:00 a.m.
(London time) on such LIBOR Determination Date.



(2) If, on any LIBOR Determination Date, such rate does not appear on Dow Jones Telerate Page 3750
or such other page as may replace such Page 3750, the Calculation Agent shall determine the
arithmetic mean of the offered quotations of the Reference Banks (as defined below) to leading
banks in the London interbank market for three-month U.S. Dollar deposits in Europe in an amount
determined by the Calculation Agent by reference to requests for quotations as of approximately
11:00 a.m. (London time) on the LIBOR Determination Date made by the Calculation Agent to the
Reference Banks. If, on any LIBOR Determination Date, at least two of the Reference Banks provide
such quotations, LIBOR shall equal such arithmetic mean of such quotations. If, on any LIBOR
Determination Date, only one or none of the Reference Banks provide such quotations, LIBOR shall be
deemed to be the arithmetic mean of the offered quotations that leading banks in the City of New
York selected by the Calculation Agent are quoting on the relevant LIBOR Determination Date for
three-month U.S. Dollar deposits in Europe in an amount determined by the Calculation Agent by
reference to the principal London offices of leading banks in the London interbank market;
provided, that if the Calculation Agent is required but is unable to determine a rate in accordance
with at least one of the procedures provided above, LIBOR shall be LIBOR as determined on the
previous LIBOR Determination Date.



(3) As used herein: “Reference Banks” means four major banks in the London interbank market
selected by the Calculation Agent; and “LIBOR Business Day” means a day on which commercial banks
are open for business (including dealings in foreign exchange and foreign currency deposits) in
London.




Schedule A-1