Exhibit
4.(a)


 




 





CAPITOL BANCORP LTD.


 


AND


 


WELLS FARGO BANK, N.A.,


AS TRUSTEE


 


INDENTURE


 


          % JUNIOR
SUBORDINATED DEBENTURES DUE 2038


 


DATED AS OF
                ,
2008




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  DEFINITIONS

  	
  3

  
	
   

  	
   

  	
   

  
	
  SECTION 1.1

  	
  DEFINITIONS OF TERMS

  	
  3

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  ISSUE, DESCRIPTION, TERMS,
  CONDITIONS REGISTRATION AND EXCHANGE OF THE DEBENTURES

  	
  12

  
	
   

  	
   

  	
   

  
	
  SECTION 2.1

  	
  DESIGNATION AND PRINCIPAL AMOUNT

  	
  12

  
	
  SECTION 2.2

  	
  MATURITY

  	
  12

  
	
  SECTION 2.3

  	
  FORM AND PAYMENT

  	
  13

  
	
  SECTION 2.4

  	
  INTENTIONALLY LEFT BLANK

  	
  13

  
	
  SECTION 2.5

  	
  INTEREST

  	
  13

  
	
  SECTION 2.6

  	
  EXECUTION AND AUTHENTICATIONS

  	
  14

  
	
  SECTION 2.7

  	
  REGISTRATION OF TRANSFER AND EXCHANGE

  	
  15

  
	
  SECTION 2.8

  	
  TEMPORARY DEBENTURES

  	
  16

  
	
  SECTION 2.9

  	
  MUTILATED, DESTROYED, LOST OR STOLEN DEBENTURES

  	
  17

  
	
  SECTION 2.10

  	
  CANCELLATION

  	
  17

  
	
  SECTION 2.11

  	
  BENEFIT OF INDENTURE

  	
  18

  
	
  SECTION 2.12

  	
  AUTHENTICATING AGENT

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  REDEMPTION OF DEBENTURES

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.1

  	
  REDEMPTION

  	
  19

  
	
  SECTION 3.2

  	
  SPECIAL EVENT REDEMPTION

  	
  19

  
	
  SECTION 3.3

  	
  OPTIONAL REDEMPTION BY COMPANY

  	
  19

  
	
  SECTION 3.4

  	
  NOTICE OF REDEMPTION

  	
  20

  
	
  SECTION 3.5

  	
  PAYMENT UPON REDEMPTION

  	
  21

  
	
  SECTION 3.6

  	
  NO SINKING FUND

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  EXTENSION OF INTEREST PAYMENT
  PERIOD

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.1

  	
  EXTENSION OF INTEREST PAYMENT PERIOD

  	
  22

  
	
  SECTION 4.2

  	
  NOTICE OF EXTENSION

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  PARTICULAR COVENANTS OF THE
  COMPANY

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.1

  	
  PAYMENT OF PRINCIPAL AND INTEREST

  	
  23

  
	
  SECTION 5.2

  	
  MAINTENANCE OF AGENCY

  	
  23

  
	
  SECTION 5.3

  	
  PAYING AGENTS

  	
  24

  
	
  SECTION 5.4

  	
  APPOINTMENT TO FILL VACANCY IN OFFICE OF TRUSTEE

  	
  25

  
	
  SECTION 5.5

  	
  COMPLIANCE WITH CONSOLIDATION PROVISIONS

  	
  25

  
	
  SECTION 5.6

  	
  LIMITATION ON TRANSACTIONS

  	
  25

  
	
  SECTION 5.7

  	
  COVENANTS AS TO THE TRUST

  	
  26

  
	
  SECTION 5.8

  	
  COVENANTS AS TO PURCHASES

  	
  26

  
	
  SECTION 5.9

  	
  WAIVER OF USURY, STAY OR EXTENSION LAWS

  	
  27

  
	
  SECTION 5.10

  	
  LIMITATION ON ADDITIONAL JUNIOR INDEBTEDNESS

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  DEBENTUREHOLDERS’ LISTS AND
  REPORTS BY THE COMPANY AND THE TRUSTEE

  	
  29

  



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 6.1

  	
  COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF DEBENTUREHOLDERS

  	
  29

  
	
  SECTION 6.2

  	
  PRESERVATION OF INFORMATION COMMUNICATIONS WITH
  DEBENTUREHOLDERS

  	
  29

  
	
  SECTION 6.3

  	
  REPORTS BY THE COMPANY

  	
  29

  
	
  SECTION 6.4

  	
  REPORTS BY THE TRUSTEE

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  REMEDIES OF THE TRUSTEE AND
  DEBENTUREHOLDERS ON EVENT OF DEFAULT

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.1

  	
  EVENTS OF DEFAULT

  	
  31

  
	
  SECTION 7.2

  	
  COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
  BY TRUSTEE

  	
  33

  
	
  SECTION 7.3

  	
  APPLICATION OF MONEYS COLLECTED

  	
  34

  
	
  SECTION 7.4

  	
  LIMITATION ON SUITS

  	
  34

  
	
  SECTION 7.5

  	
  RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION
  NOT WAIVER

  	
  35

  
	
  SECTION 7.6

  	
  CONTROL BY DEBENTUREHOLDERS

  	
  36

  
	
  SECTION 7.7

  	
  UNDERTAKING TO PAY COSTS

  	
  36

  
	
  SECTION 7.8

  	
  DIRECT ACTION; RIGHT OF SET-OFF

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  FORM OF DEBENTURE AND
  ORIGINAL ISSUE SECTION

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.1

  	
  FORM OF DEBENTURE

  	
  37

  
	
  SECTION 8.2

  	
  ORIGINAL ISSUE OF DEBENTURES

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  CONCERNING THE TRUSTEE

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.1

  	
  CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE

  	
  38

  
	
  SECTION 9.2

  	
  NOTICE OF DEFAULTS

  	
  39

  
	
  SECTION 9.3

  	
  CERTAIN RIGHTS OF TRUSTEE

  	
  40

  
	
  SECTION 9.4

  	
  TRUSTEE NOT RESPONSIBLE FOR RECITALS, ETC

  	
  42

  
	
  SECTION 9.5

  	
  MAY HOLD DEBENTURES

  	
  42

  
	
  SECTION 9.6

  	
  MONEYS HELD IN TRUST

  	
  43

  
	
  SECTION 9.7

  	
  COMPENSATION AND REIMBURSEMENT

  	
  43

  
	
  SECTION 9.8

  	
  RELIANCE ON OFFICERS’ CERTIFICATE

  	
  44

  
	
  SECTION 9.9

  	
  DISQUALIFICATION: CONFLICTING INTERESTS

  	
  44

  
	
  SECTION 9.10

  	
  CORPORATE TRUSTEE REQUIRED; ELIGIBILITY

  	
  44

  
	
  SECTION 9.11

  	
  RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR

  	
  45

  
	
  SECTION 9.12

  	
  ACCEPTANCE OF APPOINTMENT BY SUCCESSOR

  	
  46

  
	
  SECTION 9.13

  	
  MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
  BUSINESS

  	
  47

  
	
  SECTION 9.14

  	
  PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE
  COMPANY

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  CONCERNING THE DEBENTUREHOLDERS

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.1

  	
  EVIDENCE OF ACTION BY HOLDERS

  	
  47

  
	
  SECTION 10.2

  	
  PROOF OF EXECUTION BY DEBENTUREHOLDERS

  	
  48

  



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 10.3

  	
  WHO MAY BE DEEMED OWNERS

  	
  48

  
	
  SECTION 10.4

  	
  CERTAIN DEBENTURES OWNED BY COMPANY DISREGARDED

  	
  48

  
	
  SECTION 10.5

  	
  ACTIONS BINDING ON FUTURE DEBENTUREHOLDERS

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  SUPPLEMENTAL INDENTURES

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.1

  	
  SUPPLEMENTAL INDENTURES WITHOUT THE CONSENT OF
  DEBENTUREHOLDERS

  	
  49

  
	
  SECTION 11.2

  	
  SUPPLEMENTAL INDENTURES WITH CONSENT OF
  DEBENTUREHOLDERS

  	
  50

  
	
  SECTION 11.3

  	
  EFFECT OF SUPPLEMENTAL INDENTURES

  	
  51

  
	
  SECTION 11.4

  	
  DEBENTURES AFFECTED BY SUPPLEMENTAL INDENTURES

  	
  51

  
	
  SECTION 11.5

  	
  EXECUTION OF SUPPLEMENTAL INDENTURES

  	
  51

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  SUCCESSOR CORPORATION

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12.1

  	
  COMPANY MAY CONSOLIDATE, ETC

  	
  52

  
	
  SECTION 12.2

  	
  SUCCESSOR CORPORATION SUBSTITUTED

  	
  52

  
	
  SECTION 12.3

  	
  EVIDENCE OF CONSOLIDATION, ETC. TO TRUSTEE

  	
  53

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
  SATISFACTION AND DISCHARGE

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 13.1

  	
  SATISFACTION AND DISCHARGE OF INDENTURE

  	
  53

  
	
  SECTION 13.2

  	
  DISCHARGE OF OBLIGATIONS

  	
  54

  
	
  SECTION 13.3

  	
  DEPOSITED MONEYS TO BE HELD IN TRUST

  	
  54

  
	
  SECTION 13.4

  	
  PAYMENT OF MONIES HELD BY PAYING AGENTS

  	
  54

  
	
  SECTION 13.5

  	
  REPAYMENT TO COMPANY

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  	
  IMMUNITY OF INCORPORATORS,
  STOCKHOLDERS, OFFICERS AND DIRECTORS

  	
  55

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 14.1

  	
  NO RECOURSE

  	
  55

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV

  	
  MISCELLANEOUS PROVISIONS

  	
  55

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 15.1

  	
  EFFECT ON SUCCESSORS AND ASSIGNS

  	
  55

  
	
  SECTION 15.2

  	
  ACTIONS BY SUCCESSOR

  	
  56

  
	
  SECTION 15.3

  	
  SURRENDER OF COMPANY POWERS

  	
  56

  
	
  SECTION 15.4

  	
  NOTICES

  	
  56

  
	
  SECTION 15.5

  	
  GOVERNING LAW

  	
  56

  
	
  SECTION 15.6

  	
  TREATMENT OF DEBENTURES AS DEBT

  	
  56

  
	
  SECTION 15.7

  	
  COMPLIANCE CERTIFICATES AND OPINIONS

  	
  56

  
	
  SECTION 15.8

  	
  PAYMENTS ON BUSINESS DAYS

  	
  57

  
	
  SECTION 15.9

  	
  CONFLICT WITH TRUST INDENTURE ACT

  	
  57

  
	
  SECTION 15.10

  	
  COUNTERPARTS

  	
  57

  
	
  SECTION 15.11

  	
  SEPARABILITY

  	
  57

  
	
  SECTION 15.12

  	
  ASSIGNMENT

  	
  58

  
	
  SECTION 15.13

  	
  ACKNOWLEDGMENT OF RIGHTS; RIGHT OF SETOFF

  	
  58

  



 


iii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVI

  	
  SUBORDINATION OF DEBENTURES

  	
  58

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 16.1

  	
  AGREEMENT TO SUBORDINATE

  	
  58

  
	
  SECTION 16.2

  	
  DEFAULT ON SENIOR DEBT, SUBORDINATED DEBT OR
  ADDITIONAL SENIOR OBLIGATIONS

  	
  59

  
	
  SECTION 16.3

  	
  LIQUIDATION; DISSOLUTION; BANKRUPTCY

  	
  59

  
	
  SECTION 16.4

  	
  SUBROGATION

  	
  60

  
	
  SECTION 16.5

  	
  TRUSTEE TO EFFECTUATE SUBORDINATION

  	
  61

  
	
  SECTION 16.6

  	
  NOTICE BY THE COMPANY

  	
  62

  
	
  SECTION 16.7

  	
  RIGHTS OF THE TRUSTEE HOLDERS OF SENIOR INDEBTEDNESS

  	
  62

  
	
  SECTION 16.8

  	
  SUBORDINATION MAY NOT BE IMPAIRED

  	
  63

  



 


iv

















 


CROSS-REFERENCE TABLE


 


	
  SECTION OR

  	
   

  	
   

  	
   

  
	
  TRUST INDENTURE ACT

  	
   

  	
   

  	
  SECTION OF

  
	
  OF 1939, AS AMENDED

  	
   

  	
  INDENTURE

  
	
   

  	
   

  	
   

  	
   

  
	
  310(a)

  	
   

  	
   

  	
  9.10

  
	
  310(b)

  	
   

  	
   

  	
  9.9

  
	
   

  	
   

  	
   

  	
  9.11

  
	
  310(c)

  	
   

  	
   

  	
  Not Applicable

  
	
  311(a)

  	
   

  	
   

  	
  9.14

  
	
  311(b)

  	
   

  	
   

  	
  9.14

  
	
  311(c)

  	
   

  	
   

  	
  Not Applicable

  
	
  312(a)

  	
   

  	
   

  	
  6.1

  
	
   

  	
   

  	
   

  	
  6.2(a)

  
	
  312(b)

  	
   

  	
   

  	
  6.2(c)

  
	
  312(c)

  	
   

  	
   

  	
  6.2(c)

  
	
  313(a)

  	
   

  	
   

  	
  6.4(a)

  
	
  313(b)

  	
   

  	
   

  	
  6.4(b)

  
	
  313(c)

  	
   

  	
   

  	
  6.4(a)

  
	
   

  	
   

  	
   

  	
  6.4(b)

  
	
  313(d)

  	
   

  	
   

  	
  6.4(c)

  
	
  314(a)

  	
   

  	
   

  	
  6.3(a)

  
	
  314(b)

  	
   

  	
   

  	
  Not Applicable

  
	
  314(c)

  	
   

  	
   

  	
  15.7

  
	
  314(d)

  	
   

  	
   

  	
  Not Applicable

  
	
  314(e)

  	
   

  	
   

  	
  15.7

  
	
  314(f)

  	
   

  	
   

  	
  Not Applicable

  
	
  315(a)

  	
   

  	
   

  	
  9.1(a)

  
	
   

  	
   

  	
   

  	
  9.3

  
	
  315(b)

  	
   

  	
   

  	
  9.2

  
	
  315(c)

  	
   

  	
   

  	
  9.1(a)

  
	
  315(d)

  	
   

  	
   

  	
  9.1(b)

  
	
  315(e)

  	
   

  	
   

  	
  7.7

  
	
  316(a)

  	
   

  	
   

  	
  1.1

  
	
   

  	
   

  	
   

  	
  7.6

  
	
  316(b)

  	
   

  	
   

  	
  7.4(b)

  
	
  316(c)

  	
   

  	
   

  	
  10.1(b)

  
	
  317(a)

  	
   

  	
   

  	
  7.2

  
	
  317(b)

  	
   

  	
   

  	
  5.3

  
	
  318(a)

  	
   

  	
   

  	
  15.9

  



 


Note: This
Cross-Reference Table shall not, for any purpose, be deemed to be a part of the
Indenture.


 

















 


INDENTURE


 


INDENTURE, dated as of
               ,
2008, between Capitol Bancorp Ltd., a Michigan corporation (the “Company”) and
Wells Fargo Bank, N.A., as trustee (the “Trustee”);


 


RECITALS


 


WHEREAS, for its lawful
corporate purposes, the Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance of securities to be known as its
            %
Junior Subordinated Debentures due 2038 (hereinafter referred to as the “Debentures”),
the form and substance of such Debentures and the terms, provisions and
conditions thereof to be set forth as provided in this Indenture;


 


WHEREAS, Capitol Trust
XII, a Delaware statutory trust (the “Trust”), has offered to the public up to
$57,500,000 aggregate liquidation amount of its Preferred Securities (as
defined herein) and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust to the Company
of up to $1,778,351 aggregate liquidation amount of its Common Securities (as
defined herein), in up to $59,278,351 aggregate principal amount of the
Debentures;


 


WHEREAS, the Company has
requested that the Trustee execute and deliver this Indenture;


 


WHEREAS, all requirements
necessary to make this Indenture a valid instrument in accordance with its
terms, and to make the Debentures, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the
Company, have been performed, and the execution and delivery of this Indenture
have been duly authorized in all respects;


 


WHEREAS, to provide the
terms and conditions upon which the Debentures are to be authenticated, issued
and delivered, the Company has duly authorized the execution of this Indenture;
and


 


WHEREAS, all things
necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.


 


NOW, THEREFORE, in
consideration of the premises and the purchase of the Debentures by the holders
thereof, it is mutually covenanted and agreed as follows for the equal and
ratable benefit of the holders of the Debentures:


 


1

















 


ARTICLE I


 


DEFINITIONS


 


SECTION 1.1 
DEFINITIONS OF TERMS.


 


The terms defined in this
Section 1.1 (except as in this Indenture otherwise expressly provided or
unless the context otherwise requires) for all purposes of this Indenture and
of any indenture supplemental hereto shall have the respective meanings
specified in this Section 1.1 and shall include the plural as well as the
singular. All other terms used in this Indenture that are defined in the Trust
Indenture Act, or that are by reference in the Trust Indenture Act defined in
the Securities Act (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned to such terms in
the Trust Indenture Act and in the Securities Act as in force at the date of
the execution of this instrument. All accounting terms used herein and not
expressly defined shall have the meanings assigned to such terms in accordance
with Generally Accepted Accounting Principles.


 


“180-Day Period” shall
have the meaning set forth in Section 3.2.


 


 “Accelerated Maturity Date” means if the
Company elects to accelerate the Maturity Date in accordance with Section 2.2(b),
the date selected by the Company which is prior to the Scheduled Maturity Date,
but is after
            , 2013.


 


“Additional Interest”
shall have the meaning set forth in Section 2.5(c).


 


“Additional Junior
Indebtedness” means, without duplication, (A) any indebtedness,
liabilities or obligations of the Company, or any Affiliate of the Company,
under debt securities (or guarantees in respect of debt securities) initially
issued to any trust, or a trustee of a trust, partnership or other entity
affiliated with the Company that is, directly or indirectly, a finance
subsidiary (as such term is defined in Rule 3a-5 under the Investment
Company Act) or other financing vehicle of the Company or any Affiliate of the
Company in connection with the issuance by that entity of preferred securities
or other securities that are intended to qualify for Tier 1 capital treatment
(or the then equivalent thereof) for purposes of the capital adequacy
guidelines of the Federal Reserve, as then in effect and applicable to the
Company, other than the Debentures; provided, however, that the inability of
the Company to treat all or any portion of the Additional Junior Indebtedness
as Tier 1 capital shall not disqualify it as Additional Junior Indebtedness if
such inability results from the Company having cumulative preferred stock,
minority interests in consolidated subsidiaries, or any other class of security
or interest which the Federal Reserve now or may hereafter accord Tier 1
capital treatment (including the Debentures) in excess of the amount which may
qualify for treatment as Tier 1 capital under applicable capital adequacy
guidelines of the Federal Reserve, and (B) any indebtedness, liabilities
or obligations of the Company, or any Affiliate of the Company, that is junior
or otherwise subordinate in right of payment to Senior Indebtedness of the
Company and that has a maturity or is otherwise due and 


 


2

















 


payable by the Company on
a date twelve (12) months or more after its date of original issuance, other
than the Debentures.


 


“Additional Senior
Obligations” means all indebtedness of the Company whether incurred on or prior
to the date of this Indenture or thereafter incurred, for claims in respect of
derivative products such as interest and foreign exchange rate contracts,
commodity contracts and similar arrangements; provided, however, that
Additional Senior Obligations does not include claims in respect of Senior Debt
or Subordinated Debt or obligations which, by their terms, are expressly stated
to be not superior in right of payment to the Debentures or to rank pari passu
in right of payment with the Debentures. For purposes of this definition, “claim”
shall have the meaning assigned thereto in Section 101(5) of the
United States Bankruptcy Code of 1978, as amended.


 


“Administrative Trustees”
shall have the meaning set forth in the Trust Agreement.


 


“Affiliate” means, with
respect to a specified Person: (a) any Person directly or indirectly
owning, controlling or holding with power to vote 10% or more of the
outstanding voting securities or other ownership interests of the specified
Person; (b) any Person 10% or more of whose outstanding voting securities
or other ownership interests are directly or indirectly owned, controlled or
held with power to vote by the specified Person; (c) any Person directly
or indirectly controlling, controlled by, or under common control with the
specified Person; (d) a partnership in which the specified Person is a
general partner; (e) any officer or director of the specified Person; and (f) if
the specified Person is an individual, any entity of which the specified Person
is an officer, director or general partner.


 


“Authenticating Agent”
means an authenticating agent with respect to the Debentures appointed by the
Trustee pursuant to Section 2.12.


 


“Bankruptcy Law” means
Title 11, U.S. Code, or any similar federal or state law for the relief of
debtors.


 


“Board of Directors”
means the Board of Directors of the Company or any duly authorized committee of
such board or any other duly designated officers of the Company.


 


“Board Resolution” means
a copy of a resolution certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification.


 


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


 


3

















 


“Capital Treatment Event”
means the receipt by the Company and the Trust of an Opinion of Counsel,
rendered by a law firm having a recognized national bank regulatory practice,
to the effect that, as a result of any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision thereof or therein, or as a
result of any official or administrative pronouncement or action or judicial
decision interpreting or applying such laws or regulations, which amendment or
change is effective or which pronouncement or decision is announced on or after
the date of issuance of the Preferred Securities under the Trust Agreement,
there is more than an insubstantial risk of impairment of the Company’s ability
to treat the Preferred Securities (or any substantial portion thereof) as Tier
1 capital (or the then equivalent thereof), for purposes of the capital
adequacy guidelines of the Federal Reserve, as then in effect and applicable to
the Company; provided, however, that the Trust or the Company shall have
requested and received such an Opinion of Counsel with regard to such matters
within a reasonable period of time after the Trust or the Company shall have
become aware of the possible occurrence of any such event; provided, however,
that the inability of the Company to treat all or any portion of the
Liquidation Amount of the Preferred Securities as Tier 1 Capital shall not
constitute the basis for a Capital Treatment Event if such inability results
from the Company having cumulative preferred stock, minority interests in
consolidated subsidiaries, or any other class of security or interest which the
Federal Reserve now or may hereafter accord Tier 1 Capital treatment in excess
of the amount which may qualify for treatment as Tier 1 Capital under
applicable capital adequacy guidelines of the Federal Reserve; provided,
further, however, that the distribution of Debentures in connection with the
dissolution of the Trust shall not in and of itself constitute a Capital
Treatment Event.


 


“Certificate” means a
certificate signed by the principal executive officer, the principal financial
officer, the principal accounting officer, the treasurer or any vice president
of the Company. The Certificate need not comply with the provisions of Section 15.7.


 


“Change in 1940 Act Law”
shall have the meaning set forth in the definition of “Investment Company
Event.”


 


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


 


“Commission” means the
Securities and Exchange Commission.


 


“Common Securities” means
undivided beneficial interests in the assets of the Trust which rank pari passu
with the Preferred Securities; provided, however, that upon the occurrence of
an Event of Default, the rights of holders of Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights of holders of Preferred Securities.


 


“Company” means Capitol
Bancorp Ltd., a corporation duly organized and existing under the laws of the
State of Michigan, and, subject to the provisions of Article XII, shall
also include its successors and assigns.


 


4

















 


“Compounded Interest”
shall have the meaning set forth in Section 4.1.


 


“Corporate Trust Office”
means the office of the Trustee at which, at any particular time, its corporate
trust business shall be principally administered, which office at the date
hereof is located at 919 North Market Street, Suite 1600, Wilmington,
Delaware 19801, Attention: Corporate Trust Services.


 


“Coupon Rate” shall have
the meaning set forth in Section 2.5(a).


 


“Custodian” means any
receiver, trustee, assignee, liquidator, or similar official under any
Bankruptcy Law.


 


“Debentures” shall have
the meaning set forth in the Recitals hereto.


 


“Debentureholder,” “holder
of Debentures,” “registered holder,” or other similar term, means the Person or
Persons in whose name or names a particular Debenture shall be registered on
the books of the Company or the Trustee kept for that purpose in accordance
with the terms of this Indenture.


 


“Debenture Register”
shall have the meaning set forth in Section 2.7(b).


 


“Debenture Registrar”
shall have the meaning set forth in Section 2.7(b).


 


“Debt” means with respect
to any Person, whether recourse is to all or a portion of the assets of such
Person and whether or not contingent, (i) every obligation of such Person
for money borrowed; (ii) every obligation of such Person evidenced by
bonds, debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or businesses; (iii) every
reimbursement obligation of such Person with respect to letters of credit,
bankers’ acceptances or similar facilities issued for the account of such
Person; (iv) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business); (v) every
capital lease obligation of such Person; and (vi) every obligation of the
type referred to in clauses (i) through (v) of another Person and all
dividends of another Person the payment of which, in either case, such Person
has guaranteed or is responsible or liable, directly or indirectly, as obligor
or otherwise.


 


“Default” means any
event, act or condition that with notice or lapse of time, or both, would
constitute an Event of Default.


 


“Deferred Interest” shall
have the meaning set forth in Section 4.1.


 


“Direct Action” shall
have the meaning set forth in Section 7.8.


 


“Dissolution Event” means
that as a result of the occurrence and continuation of a Special Event, the
Trust is to be dissolved in accordance with the Trust Agreement and the
Debentures held by the Property Trustee are to be distributed to the 


 


5

















 


holders of the Trust
Securities issued by the Trust pro rata in accordance with the Trust Agreement.


 


“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended.


 


“Event of Default” means,
with respect to the Debentures, any event specified in Section 7.1, which
has continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.


 


“Exchange Act,” means the
Securities Exchange Act of 1934, as amended, as in effect at the date of
execution of this Indenture.


 


“Extended Interest
Payment Period” shall have the meaning set forth in Section 4.1.


 


“Federal Reserve” means
the Board of Governors of the Federal Reserve System.


 


“Generally Accepted
Accounting Principles” means such accounting principles as are generally
accepted at the time of any computation required hereunder.


 


“Governmental Obligations”
means securities that are (i) direct obligations of the United States of
America for the payment of which its full faith and credit is pledged; or (ii) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America that, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities
Act) as custodian with respect to any such Governmental Obligation or a
specific payment of principal of or interest on any such Governmental
Obligation held by such custodian for the account of the holder of such
depositary receipt; provided, however, that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depositary receipt from any amount received by the custodian
in respect of the Governmental Obligation or the specific payment of principal
of or interest on the Governmental Obligation evidenced by such depositary
receipt.


 


“Herein,” “hereof,” and “hereunder,”
and other words of similar import, refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.


 


“Indenture” means this
instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into in accordance with the terms hereof.


 


“Interest Payment Date,”
when used with respect to any installment of interest on the Debentures, means
the date specified in the Debenture or in an indenture 


 


6

















 


supplemental hereto with
respect to the Debentures as the fixed date on which an installment of interest
with respect to the Debentures is due and payable.


 


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


 


“Investment Company Event”
means the receipt by the Trust and the Company of an Opinion of Counsel,
rendered by a law firm having a recognized national tax and securities law
practice, to the effect that, as a result of the occurrence of a change in law
or regulation or a change in interpretation or application of law or regulation
by any legislative body, court, governmental agency or regulatory authority (a “Change
in 1940 Act Law”), the Trust is or shall be considered an “investment company”
that is required to be registered under the Investment Company Act, which
Change in 1940 Act Law becomes effective on or after the date of original
issuance of the Preferred Securities under the Trust Agreement; provided,
however, that the Trust or the Company shall have requested and received such
an Opinion of Counsel with regard to such matters within a reasonable period of
time after the Trust or the Company shall have become aware of the possible
occurrence of any such event.


 


“Maturity Date” means the
date on which the Debentures mature and on which the principal shall be due and
payable together with all accrued and unpaid interest thereon including
Compounded Interest and Additional Interest, if any.


 


“Ministerial Action”
shall have the meaning set forth in Section 3.2.


 


“Officers’ Certificate”
means a certificate signed by the President or an Executive Vice President and
by the Chief Financial Officer or the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary of the Company that is delivered to the
Trustee in accordance with the terms hereof. Each such certificate shall
include the statements provided for in Section 15.7, if and to the extent
required by the provisions thereof.


 


“Opinion of Counsel”
means an opinion in writing of independent, outside legal counsel for the
Company that is delivered to the Trustee in accordance with the terms hereof.
Each such opinion shall include the statements provided for in Section 15.7,
if and to the extent required by the provisions thereof.


 


“Outstanding,” when used
in reference to the Debentures, means, subject to the provisions of Section 10.4,
as of any particular time, all Debentures theretofore authenticated and
delivered by the Trustee under this Indenture, except (a) Debentures
theretofore canceled by the Trustee or any paying agent, or delivered to the
Trustee or any paying agent for cancellation or that have previously been
canceled; (b) Debentures or portions thereof for the payment or redemption
of which moneys or Governmental Obligations in the necessary amount shall have
been deposited in trust with the Trustee or with any paying agent (other than
the Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own paying agent); provided, however,
that if such Debentures or portions of such Debentures are to be 


 


7

















 


redeemed prior to the
maturity thereof, notice of such redemption shall have been given as in Article III
provided, or provision satisfactory to the Trustee shall have been made for
giving such notice; and (c) Debentures in lieu of or in substitution for
which other Debentures shall have been authenticated and delivered pursuant to
the terms of Section 2.7; provided, however, that in determining whether
the holders of the requisite percentage of Debentures have given any request,
notice, consent or waiver hereunder, Debentures held by the Company or any
Affiliate of the Company shall not be included to the extent set forth in Section 10.4
hereof; provided, further, that the Trustee shall be protected in relying upon
any request, notice, consent or waiver unless a Responsible Officer of the
Trustee shall have actual knowledge that the holder of such Debenture is the
Company or an Affiliate thereof.


 


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


 


“Predecessor Debenture”
means every previous Debenture evidencing all or a portion of the same debt as
that evidenced by such particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 2.9 in
lieu of a lost, destroyed or stolen Debenture shall be deemed to evidence the
same debt as the lost, destroyed or stolen Debenture.


 


“Preferred Securities”
means the       % Cumulative Trust Preferred
Securities representing undivided beneficial interests in the assets of the
Trust which rank pari passu with Common Securities issued by the Trust;
provided, however, that upon the occurrence of an Event of Default, the rights
of holders of Common Securities to payment in respect of distributions and
payments upon liquidation, redemption and otherwise are subordinated to the
rights of holders of Preferred Securities.


 


“Preferred Securities
Guarantee” means any guarantee that the Company may enter into with a trustee
named therein or other Persons that operates directly or indirectly for the
benefit of holders of Preferred Securities.


 


“Property Trustee” has
the meaning set forth in the Trust Agreement.


 


“Redemption Price” shall
have the meaning set forth in Section 3.2.


 


“Responsible Officer”
when used with respect to the Trustee means any officer within the Corporate
Trust Office of the Trustee with direct responsibility for the administration
of this Indenture, including any vice president, any trust officer, any
assistant secretary or any other officer or assistant officer of the Trustee
who customarily performs functions similar to those performed by the Persons
who at the time shall be such officers, respectively, or to whom any corporate
trust matter is referred because of his or her knowledge of and familiarity
with the particular subject.


 


“Scheduled Maturity Date”
means
              ,
2038.


 


8

















 


“Securities Act,” means
the Securities Act of 1933, as amended, as in effect at the date of execution
of this instrument.


 


“Senior Debt” means the
principal of (and premium, if any) and interest, if any (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not such claim for
post-petition interest is allowed in such proceeding), on Debt, whether
incurred on or prior to the date of this Indenture or thereafter incurred,
unless, in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that such obligations are not superior
in right of payment to the Debentures or to other Debt which is pari passu
with, or subordinated to, the Debentures, provided, however, that Senior Debt
shall not be deemed to include (i) any Debt of the Company which when
incurred and without respect to any election under Section 1111(b) of
the United States Bankruptcy Code of 1978, as amended, was without recourse to
the Company; (ii) any Debt of the Company owed to any of its subsidiaries;
(iii) Debt owed to any employee of the Company; (iv) Debt which by
its terms is subordinated to trade accounts payable or accrued liabilities
arising in the ordinary course of business to the extent that payments made to
the holders of such Debt by the holders of the Debentures as a result of the
subordination provisions of this Indenture would be greater than they otherwise
would have been as a result of any obligation of such holders to pay amounts
over to the obligees on such trade accounts payable or accrued liabilities
arising in the ordinary course of business as a result of subordination
provisions to which such Debt is subject; and (v) Debt which constitutes
Subordinated Debt.


 


“Senior Indebtedness”
shall have the meaning set forth in Section 16.1.


 


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


 


“Subordinated Debt” means
the principal of (and premium, if any) and interest, if any (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not such claim for
post-petition interest is allowed in such proceeding), on Debt, whether
incurred on or prior to the date of this Indenture or thereafter incurred,
which is by its terms expressly provided to be junior and subordinate to Senior
Debt of the Company (other than the Debentures); provided, however, that
Subordinated Debt will not be deemed to include (i) any Debt of the
Company which when incurred and without respect to any election under section
1111(b) of the United States Bankruptcy Code of 1978, as amended, was
without recourse to the Company, (ii) any Debt of the Company owed to any
of its subsidiaries, (iii) any Debt owed to any employee of the Company, (iv)
any Debt which by its terms is subordinated to trade accounts payable or
accrued liabilities arising in the ordinary course of business to the extent
that payments made to the holders of such Debt by the holders of the Debentures
as a result of the subordination provisions of this Indenture would be greater
than they otherwise would have been as a result of any obligation of such
holders to pay amounts over to the obligees on such trade accounts payable or
accrued liabilities arising in the ordinary course of business as a result of
subordination provisions to which such Debt is subject, (v) Debt which
constitutes Senior 


 


9

















 


Debt and (vi) any
Debt of the Company under debt securities (and guarantees in respect of these
debt securities) initially issued to any trust, or a trustee of a trust,
partnership or other entity affiliated with the Company that is, directly or
indirectly, a financing vehicle of the Company in connection with the issuance
by that entity of preferred securities or other securities which are intended
to qualify for Tier 1 capital treatment.


 


“Subsidiary” means, with
respect to any Person, (i) any corporation at least a majority of whose
outstanding Voting Stock shall at the time be owned, directly or indirectly, by
such Person or by one or more of its Subsidiaries or by such Person and one or
more of its Subsidiaries; (ii) any general partnership, limited liability
company, joint venture, trust or similar entity, at least a majority of whose
outstanding partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person and one or
more of its Subsidiaries; and (iii) any limited partnership of which such
Person or any of its Subsidiaries is a general partner.


 


“Tax Event” means the
receipt by the Company and the Trust of an Opinion of Counsel, rendered by a
law firm having a recognized national tax and securities practice, to the
effect that, as a result of any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein, or as a result of any official administrative pronouncement or
judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or decision is
announced on or after the date of issuance of the Debentures under this
Indenture, there is more than an insubstantial risk that (i) the Trust is,
or shall be within 90 days after the date of such Opinion of Counsel, subject
to United States federal income tax with respect to income received or accrued
on the Debentures; (ii) interest payable by the Company on the Debentures
is not, or within 90 days after the date of such Opinion of Counsel, shall not
be, deductible by the Company, in whole or in part, for United States federal
income tax purposes; or (iii) the Trust is, or shall be within 90 days
after the date of such Opinion of Counsel, subject to more than a de minimis
amount of other taxes, duties, assessments or other governmental charges;
provided, however, that the Trust or the Company shall have requested and
received such an Opinion of Counsel with regard to such matters within a
reasonable period of time after the Trust or the Company shall have become
aware of the possible occurrence of any of the events described in clauses (i) through
(iii) above.


 


“Trust” means Capitol
Trust XII, a Delaware statutory trust.


 


“Trust Agreement” means
the Amended and Restated Trust Agreement, dated as of
                ,
2008, of the Trust.


 


“Trustee” means Wells
Fargo Bank, N.A. and, subject to the provisions of Article IX, shall also
include its successors and assigns, and, if at any time there is more than one
Person acting in such capacity hereunder, “Trustee” shall mean each such
Person.


 


10














 


“Trust Indenture Act,”
means the Trust Indenture Act of 1939, as amended, subject to the provisions of
Sections 11.1, 11.2, and 12.1, as in effect at the date of execution of this
instrument.


 


“Trust Securities” means
the Common Securities and Preferred Securities, collectively.


 


“Voting Stock,” as
applied to stock of any Person, means shares, interests, participations or
other equivalents in the equity interest (however designated) in such Person
having ordinary voting power for the election of a majority of the directors
(or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the
occurrence of a contingency.


 


ARTICLE II



ISSUE, DESCRIPTION, TERMS, CONDITIONS

REGISTRATION AND EXCHANGE OF THE DEBENTURES


 


SECTION 2.1 
DESIGNATION AND PRINCIPAL AMOUNT.


 


There is hereby
authorized Debentures designated the “      %
Junior Subordinated Debentures due 2038,” limited in aggregate principal amount
to $59,278,351, which amount shall be as set forth in any written order of the
Company for the authentication and delivery of Debentures pursuant to Section 2.6.


 


SECTION 2.2  MATURITY.


 


(a)                The Maturity Date shall be
either:


 


  (i)                               the
Scheduled Maturity Date; or


 


  (ii)                            if the Company elects to
accelerate the Maturity Date to be a date prior to the Scheduled Maturity Date
in accordance with Section 2.2(b), the Accelerated Maturity Date.


 


(b)                                               The
Company may at any time before the day which is 90 days before the Scheduled
Maturity Date and after
              ,
2013, elect to shorten the Maturity Date only once to the Accelerated Maturity
Date provided that the Company has received the prior approval of the Federal
Reserve if then required under applicable capital guidelines, policies or regulations
of the Federal Reserve.


 


(c)                                                If
the Company elects to accelerate the Maturity Date in accordance with Section 2.2(b),
the Company shall give notice to the Trustee and the Trust (unless the Trust is
not the holder of the Debentures, in which case the Trustee will give notice to
the holders of the Debentures) of the acceleration of the Maturity Date and the
Accelerated Maturity Date at least 35 days and no more than 180 days before the
Accelerated Maturity Date; provided, however, that nothing provided in this Section 2.2
shall limit the Company’s rights, as provided in Article III hereof, to
redeem all or a 


 


11

















 


portion of the Debentures at such time or times on or
after
                ,
2013, as the Company may so determine, or at any time upon the occurrence of a
Special Event.


 


SECTION 2.3 
FORM AND PAYMENT.


 


The Debentures shall be
issued in fully registered certificated form without interest coupons.
Principal and interest on the Debentures issued in certificated form shall be
payable, the transfer of such Debentures shall be registrable and such
Debentures shall be exchangeable for Debentures bearing identical terms and
provisions at the office or agency of the Trustee; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
holder at such address as shall appear in the Debenture Register or by wire
transfer to an account maintained by the holder as specified in the Debenture
Register, provided that the holder provides proper transfer instructions by the
regular record date. Notwithstanding the foregoing, so long as the holder of
any Debentures is the Property Trustee, the payment of principal of and
interest (including Compounded Interest and Additional Interest, if any) on
such Debentures held by the Property Trustee shall be made by wire transfer at
such place and to such account as may be designated by the Property Trustee.


 


SECTION 2.4 
INTENTIONALLY LEFT BLANK.


 


SECTION 2.5 
INTEREST.


 


(a)                                                Each
Debenture shall bear interest at the rate of     % per
annum (the “Coupon Rate”) from the original date of issuance until the
principal thereof becomes due and payable, and on any overdue principal and (to
the extent that payment of such interest is enforceable under applicable law)
on any overdue installment of interest at the Coupon Rate, payable (subject to
the provisions of Article IV) quarterly in arrears on March 31, June 30,
September 30 and December 31 of each year (each, an “Interest Payment
Date”), commencing on
              ,
2008 to the Person in whose name such Debenture or any Predecessor Debenture is
registered, at the close of business on the regular record date for such
interest installment, which shall be the fifteenth day of the last month of the
calendar quarter.  Any interest payment
not punctually paid or duly provided for shall forthwith cease to be payable to
the registered holder on such regular record date and may be paid to the Person
in whose name such Debenture or any such Predecessor Debenture is registered at
the close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice thereof shall be fixed by the
Trustee for the payment of such defaulted interest and given to the registered
holders of the Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange or quotation system on or in
which the Debentures may be listed or quoted, and upon such notice as may be
required by such exchange or quotation system.


 


(b)                                               The
amount of interest payable for any period ending on or prior to March 31,
2038 shall be computed on the basis of a 360-day year of twelve 30-day months.
The amount of interest payable for any period commencing on or after March 31,



 


12

















 


2038 shall be computed on the basis of a 360-day year
and the actual number of days elapsed during the relevant period. In the event
that any date on which interest is payable on the Debentures is not a Business
Day, then payment of interest payable on such date shall be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day (and without any reduction of interest or
any other payment in respect of any such acceleration), in each case with the
same force and effect as if made on the date such payment was originally
payable.


 


(c)                                                If,
at any time while the Property Trustee is the holder of any Debentures, the
Trust or the Property Trustee is required to pay any taxes, duties, assessments
or governmental charges of whatever nature (other than withholding taxes)
imposed by the United States, or any other taxing authority, then, in any case,
the Company shall pay as additional interest (“Additional Interest”) on the
Debentures held by the Property Trustee, such additional amounts as shall be
required so that the net amounts received and retained by the Trust and the
Property Trustee after paying such taxes, duties, assessments or other
governmental charges shall be equal to the amounts the Trust and the Property
Trustee would have received had no such taxes, duties, assessments or other
government charges been imposed.


 


SECTION 2.6 
EXECUTION AND AUTHENTICATIONS.


 


(a)                                                The
Debentures shall be signed on behalf of the Company by its President or one of
its Executive Vice Presidents or Chief Financial Officer or Treasurer, under
its corporate seal attested by its Secretary or one of its Assistant
Secretaries. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile signature of any Person who shall have been a
President or Executive Vice President thereof, or of any Person who shall have
been a Secretary or Assistant Secretary thereof, notwithstanding the fact that
at the time the Debentures shall be authenticated and delivered or disposed of
such Person shall have ceased to be the President or a Vice President, or the
Secretary or an Assistant Secretary, of the Company (and any such signature
shall be binding on the Company). The seal of the Company may be in the form of
a facsimile of such seal and may be impressed, affixed, imprinted or otherwise
reproduced on the Debentures. The Debentures may contain such notations,
legends or endorsements required by law, stock exchange rule or usage.
Each Debenture shall be dated the date of its authentication by the Trustee.


 


(b)                                               A
Debenture shall not be valid until authenticated manually by an authorized
signatory of the Trustee, or by an Authenticating Agent. Such signature shall
be conclusive evidence that the Debenture so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture.


 


(c)                                                At
any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Debentures executed by the Company to the
Trustee for authentication, together with a written order of the Company for
the authentication and delivery of such Debentures signed by its President or
any Executive 


 


13

















 


Vice President and its Chief Financial Officer or the
Treasurer or any Assistant Treasurer, and the Trustee in accordance with such
written order shall authenticate and deliver such Debentures.


 


(d)                                               In
authenticating such Debentures and accepting the additional responsibilities
under this Indenture in relation to such Debentures, the Trustee shall be
entitled to receive, and (subject to Section 9.1) shall be fully protected
in relying upon, an Opinion of Counsel stating that the form and terms thereof
have been established in conformity with the provisions of this Indenture.


 


(e)                                                The
Trustee shall not be required to authenticate such Debentures if the issue of
such Debentures pursuant to this Indenture shall affect the Trustee’s own
rights, duties or immunities under the Debentures and this Indenture or
otherwise in a manner that is not reasonably acceptable to the Trustee.


 


SECTION 2.7 
REGISTRATION OF TRANSFER AND EXCHANGE.


 


(a)                                                Debentures
may be exchanged upon presentation thereof at the office or agency of the
Company designated for such purpose, or at the office of the Debenture
Registrar, for other Debentures and for a like aggregate principal amount in
denominations of integral multiples of $25, upon payment of a sum sufficient to
cover any tax or other governmental charge in relation thereto, all as provided
in this Section 2.7. In respect of any Debentures so surrendered for
exchange, the Company shall execute, the Trustee shall authenticate and such office
or agency shall deliver in exchange therefor the Debenture or Debentures that
the Debentureholder making the exchange shall be entitled to receive, bearing
numbers not contemporaneously outstanding.


 


(b)                                               The
Company shall keep, or cause to be kept, at its office or agency designated for
such purpose, or at the office of the Debenture Registrar or such other
location designated by the Company a register or registers (herein referred to
as the “Debenture Register”) in which, subject to such reasonable regulations
as the Debenture Registrar (as defined below) may prescribe, the Company shall
register the Debentures and the transfers of Debentures as in this Article II
provided and which at all reasonable times shall be open for inspection by the
Trustee. The registrar for the purpose of registering Debentures and transfer
of Debentures as herein provided shall initially be the Trustee and thereafter
as may be appointed by the Company as authorized by Board Resolution (the “Debenture
Registrar”). Upon surrender for transfer of any Debenture at the office or
agency of the Company designated for such purpose, the Company shall execute,
the Trustee shall authenticate and such office or agency shall deliver in the
name of the transferee or transferees a new Debenture or Debentures for a like
aggregate principal amount. All Debentures presented or surrendered for
exchange or registration of transfer, as provided in this Section 2.7,
shall be accompanied (if so required by the Company or the Debenture Registrar)
by a written instrument or instruments of transfer, in form satisfactory to the
Company or the Debenture Registrar, duly executed by the registered holder or
by such holder’s duly authorized attorney. 
The provisions of Article IX shall apply to the Trustee in its role
as Debenture Registrar.


 


14

















 


(c)                                                No
service charge shall be made for any exchange or registration of transfer of
Debentures, or issue of new Debentures in case of partial redemption, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, other than exchanges pursuant to Section 2.8,
Section 3.5(b) and Section 11.4 not involving any transfer.


 


(d)                                               Neither
the Company nor the Trustee shall be required (i) to issue, exchange or
register the transfer of any Debentures during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of less than all the Outstanding Debentures and ending at the close
of business on the day of such mailing; nor (ii) to register the transfer
of or exchange any Debentures or portions thereof called for redemption.


 


(e)                                                Debentures
may only be transferred, in whole or in part, in accordance with the terms and
conditions set forth in this Indenture. Any transfer or purported transfer of
any Debenture not made in accordance with this Indenture shall be null and
void.


 


(f)                                                  Neither
the Trustee nor the Debenture Registrar shall be responsible for ascertaining
whether any transfer hereunder complies with the registration provisions of or
any exemptions from the Securities Act, applicable state securities laws or the
applicable laws of any other jurisdiction, ERISA, the Code or the Investment
Company Act; provided, that if a certificate is specifically required by the
express terms of this Section 2.7 to be delivered to the Trustee or the
Debenture Registrar by a holder or transferee of a Debenture, the Trustee and
the Debenture Registrar shall be under a duty to receive and examine the same
to determine whether or not the certificate substantially conforms on its face
to the requirements of this Indenture and shall promptly notify the party
delivering the same if such certificate does not comply with such terms.


 


SECTION 2.8 
TEMPORARY DEBENTURES.


 


Pending
the preparation of definitive Debentures, the Company may execute, and the
Trustee shall authenticate and deliver, temporary Debentures (printed,
lithographed, or typewritten). Such temporary Debentures shall be substantially
in the form of the definitive Debentures in lieu of which they are issued, but
with such omissions, insertions and variations as may be appropriate for
temporary Debentures, all as may be determined by the Company. Every temporary
Debenture shall be executed by the Company and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Debentures. Without unnecessary delay the Company
shall execute and shall furnish definitive Debentures and thereupon any or all
temporary Debentures may be surrendered in exchange therefor (without charge to
the holders), at the office or agency of the Company designated for the
purpose, and the Trustee upon the written order of the Company shall
authenticate and such office or agency shall deliver in exchange for such
temporary Debentures an equal aggregate principal amount of definitive
Debentures, unless the Company advises the Trustee to the effect that
definitive Debentures need not be executed and furnished until further notice
from the Company. Until so exchanged, the temporary Debentures shall be 


 


15

















 


entitled
to the same benefits under this Indenture as definitive Debentures
authenticated and delivered hereunder.


 


SECTION 2.9 
MUTILATED, DESTROYED, LOST OR STOLEN DEBENTURES.


 


(a)                                                In
case any temporary or definitive Debenture shall become mutilated or be
destroyed, lost or stolen, the Company (subject to the next succeeding
sentence) shall execute, and upon the Company’s written order the Trustee
(subject as aforesaid) shall authenticate and deliver, a new Debenture bearing
a number not contemporaneously outstanding, in exchange and substitution for
the mutilated Debenture, or in lieu of and in substitution for the Debenture so
destroyed, lost, stolen or mutilated. In every case the applicant for a
substituted Debenture shall furnish to the Company and the Trustee such
security or indemnity as may be required by them to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Company and the Trustee evidence to their satisfaction of the
destruction, loss or theft of the applicant’s Debenture and of the ownership
thereof. The Trustee may authenticate any such substituted Debenture and
deliver the same upon the written request or authorization of the President or
any Vice President and the Chief Financial Officer or the Treasurer or any
Assistant Treasurer of the Company. Upon the issuance of any substituted
Debenture, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee) connected
therewith. In case any Debenture that has matured or is about to mature shall
become mutilated or be destroyed, lost or stolen, the Company may, instead of
issuing a substitute Debenture, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Debenture) if the
applicant for such payment shall furnish to the Company and the Trustee such
security or indemnity as they may require to save them harmless, and, in case
of destruction, loss or theft, evidence to the satisfaction of the Company and
the Trustee of the destruction, loss or theft of such Debenture and of the
ownership thereof.


 


(b)                                               Every
replacement Debenture issued pursuant to the provisions of this Section 2.9
shall constitute an additional contractual obligation of the Company whether or
not the mutilated, destroyed, lost or stolen Debenture shall be found at any
time, or be enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Debentures
duly issued hereunder. All Debentures shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Debentures, and
shall preclude (to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.


 


SECTION 2.10 
CANCELLATION.


 


All Debentures
surrendered for the purpose of payment, redemption, exchange or registration of
transfer shall, if surrendered to the Company or any paying 


 


16

















 


agent, be delivered to
the Trustee for cancellation, or, if surrendered to the Trustee, shall be
canceled by it, and no Debentures shall be issued in lieu thereof except as
expressly required or permitted by any of the provisions of this Indenture. The
Trustee shall dispose of canceled Debentures in accordance with its standard
procedures and deliver a certificate of disposition to the Company. If the
Company shall otherwise acquire any of the Debentures, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Debentures unless and until the same are
delivered to the Trustee for cancellation.


 


SECTION 2.11 
BENEFIT OF INDENTURE.


 


Nothing in this Indenture
or in the Debentures, express or implied, shall give or be construed to give to
any Person, other than the parties hereto, the Preferred Securityholders
pursuant to Section 7.8 and the holders of the Debentures (and, with
respect to the provisions of Article XVI, the holders of Senior
Indebtedness) any legal or equitable right, remedy or claim under or in respect
of this Indenture, or under any covenant, condition or provision herein
contained; all such covenants, conditions and provisions being for the sole
benefit of the parties hereto, the Preferred Securityholders pursuant to Section 7.8
and of the holders of the Debentures (and, with respect to the provisions of Article XVI,
the holders of Senior Indebtedness).


 


SECTION 2.12 
AUTHENTICATING AGENT.


 


(a)                                                So
long as any of the Debentures remain Outstanding there may be an Authenticating
Agent for any or all such Debentures, which Authenticating Agent the Trustee
shall have the right to appoint. Said Authenticating Agent shall be authorized
to act on behalf of the Trustee to authenticate Debentures issued upon exchange,
transfer or partial redemption thereof, and Debentures so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. All references
in this Indenture to the authentication of Debentures by the Trustee shall be
deemed to include authentication by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall be an entity
that has a combined capital and surplus, as most recently reported or
determined by it, sufficient under the laws of any jurisdiction under which it
is organized or in which it is doing business to conduct a trust business, and
that is otherwise authorized under such laws to conduct such business and is
subject to supervision or examination by federal or state authorities. If at
any time any Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately.


 


(b)                                               Any
Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time (and
upon written request by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such Authenticating
Agent and to the Company. Upon resignation, termination or cessation of
eligibility of any Authenticating Agent, the Trustee may appoint an eligible
successor Authenticating Agent acceptable to the Company. Any successor
Authenticating Agent, upon acceptance 


 


17

















 


of its appointment hereunder, shall become vested with
all the rights, powers and duties of its predecessor hereunder as if originally
named as an Authenticating Agent pursuant hereto.


 


ARTICLE III



REDEMPTION OF DEBENTURES


 


SECTION 3.1 
REDEMPTION.


 


Subject to the Company
having received prior approval of the Federal Reserve, if then required under
the applicable capital guidelines, policies or regulations of the Federal
Reserve, the Company may redeem the Debentures issued hereunder on and after
the dates set forth in and in accordance with the terms of this Article III.


 


SECTION 3.2 
SPECIAL EVENT REDEMPTION.


 


Subject to the Company
having received the prior approval of the Federal Reserve, if then required
under the applicable capital guidelines, policies or regulations of the Federal
Reserve, if a Special Event has occurred and is continuing, then,
notwithstanding Section 3.3(a) but subject to Section 3.3(b),
the Company shall have the right upon not less than 30 days’ nor more than 60
days’ written notice to the holders of the Debentures to redeem the Debentures,
in whole or in part, for cash within 180 days following either (i) upon
the occurrence of such Special Event (the “180-Day Period”) at a redemption
price equal to 100% of the principal amount to be redeemed plus any accrued and
unpaid interest thereon to the date of such redemption (the “Redemption Price”),
provided that if at the time there is available to the Company the opportunity
to eliminate, within the 180-Day Period, a Tax Event by taking some ministerial
action (a “Ministerial Action”), such as filing a form or making an election,
or pursuing some other similar reasonable measure which has no adverse effect
on the Company, the Trust or the holders of the Trust Securities issued by the
Trust, the Company shall pursue such Ministerial Action in lieu of redemption,
and, provided further, that the Company shall have no right to redeem the
Debentures pursuant to this Section 3.2 while it is pursuing any
Ministerial Action pursuant to its obligations hereunder, and, provided
further, that, if it is determined that the taking of a Ministerial Action
would not eliminate the Tax Event within the 180-Day Period, the Company’s
right to redeem the Debentures pursuant to this Section 3.2 shall be
restored and it shall have no further obligations to pursue the Ministerial
Action. The Redemption Price shall be paid prior to 12:00 p.m. (noon), New
York time, on the date of such redemption or such earlier time as the Company
determines, provided that the Company shall deposit with the Trustee an amount
sufficient to pay the Redemption Price by 10:00 a.m., New York time, on
the date such Redemption Price is to be paid.


 


SECTION 3.3 
OPTIONAL REDEMPTION BY COMPANY.


 


(a)                                                Subject
to the provisions of Section 3.3(c), except as otherwise may be specified
in this Indenture, the Company shall have the right to redeem the 


 


18

















 


Debentures, in whole or in part, from time to time, on
or after
              ,
2013, at a Redemption Price equal to 100% of the principal amount to be
redeemed plus any accrued and unpaid interest thereon to the date of such
redemption. Any redemption pursuant to this Section 3.3(a) shall be
made upon not less than 30 days’ nor more than 60 days’ written notice to the
holder of the Debentures, at the Redemption Price. If the Debentures are only
partially redeemed pursuant to this Section 3.3(a), the Debentures shall
be redeemed pro rata or by lot or in such other manner as the Trustee shall
deem appropriate and fair in its discretion. The Redemption Price shall be paid
prior to 12:00 p.m. (noon), New York time, on the date of such redemption
or at such earlier time as the Company determines provided that the Company
shall deposit with the Trustee an amount sufficient to pay the Redemption Price
by 10:00 a.m., New York time, on the date such Redemption Price is to be
paid.


 


(b)                                               Subject
to the provisions of Section 3.3(c), the Company shall have the right to
redeem Debentures at any time and from time to time in a principal amount equal
to the Liquidation Amount (as defined in the Trust Agreement) of any Preferred
Securities purchased and beneficially owned by the Company, plus an additional
principal amount of Debentures equal to the Liquidation Amount (as defined in
the Trust Agreement) of that number of Common Securities that bears the same
proportion to the total number of Common Securities then outstanding as the
number of Preferred Securities to be redeemed bears to the total number of
Preferred Securities then outstanding. Such Debentures shall be redeemed
pursuant to this Section 3.3(b) only in exchange for and upon
surrender by the Company to the Property Trustee of the Preferred Securities
and a proportionate amount of Common Securities, whereupon the Property Trustee
shall cancel the Preferred Securities and Common Securities so surrendered and
a Like Amount (as defined in the Trust Agreement) of Debentures shall be
extinguished by the Trustee and shall no longer be deemed Outstanding.


 


(c)                                                If
a partial redemption of the Debentures would result in the delisting of the
Preferred Securities issued by the Trust from the New York Stock Exchange or
any other national securities exchange or other organization on which the
Preferred Securities are then listed or quoted, the Company shall not be
permitted to effect such partial redemption and may only redeem the Debentures
in whole.


 


SECTION 3.4 
NOTICE OF REDEMPTION.


 


(a)                                                Except
in the case of a redemption pursuant to Section 3.3(b), in case the
Company shall desire to exercise such right to redeem all or, as the case may
be, a portion of the Debentures in accordance with the right reserved so to do,
the Company shall, or shall cause the Trustee to upon receipt of at least 45
days’ written notice from the Company (which notice shall, in the event of a
partial redemption, include a representation to the effect that such partial
redemption will not result in the delisting of the Preferred Securities as
described in Section 3.3(c) above), give notice of such redemption to
holders of the Debentures to be redeemed by mailing, first class postage
prepaid, a notice of such redemption not less than 30 days before the date
fixed for redemption to such holders at their last addresses as they shall
appear upon the Debenture Register unless a shorter period is specified in the
Debentures to be redeemed. Any notice 


 


19

















 


that is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the registered
holder receives the notice. In any case, failure duly to give such notice to
the holder of any Debenture designated for redemption in whole or in part, or
any defect in the notice, shall not affect the validity of the proceedings for
the redemption of any other Debentures. In the case of any redemption of
Debentures prior to the expiration of any restriction on such redemption
provided in the terms of such Debentures or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers’ Certificate evidencing
compliance with any such restriction. Each such notice of redemption shall
specify the date fixed for redemption and the Redemption Price and shall state
that payment of the Redemption Price shall be made at the office or agency of
the Company specified in such notice or at the Corporate Trust Office of the
Trustee, upon presentation and surrender of such Debentures, that interest
accrued to the date fixed for redemption shall be paid as specified in said
notice and that from and after said date interest shall cease to accrue. If
less than all the Debentures are to be redeemed, the notice to the holders of
the Debentures shall specify the particular Debentures to be redeemed. If the
Debentures are to be redeemed in part only, the notice shall state the portion
of the principal amount thereof to be redeemed and shall state that on and
after the redemption date, upon surrender of such Debenture, a new Debenture or
Debentures in principal amount equal to the unredeemed portion thereof shall be
issued.


 


(b)                                               Except
in the case of redemption pursuant to Section 3.3(b), if less than all the
Debentures are to be redeemed, the Company shall give the Trustee at least 45
days’ notice in advance of the date fixed for redemption as to the aggregate
principal amount of Debentures to be redeemed, and thereupon the Trustee shall
select, pro rata or by lot or in such other manner as it shall deem appropriate
and fair in its discretion, the portion or portions (equal to $25 or any
integral multiple thereof) of the Debentures to be redeemed and shall
thereafter promptly notify the Company in writing of the numbers of the
Debentures to be redeemed, in whole or in part. The Company may, if and
whenever it shall so elect pursuant to the terms hereof, by delivery of
instructions signed on its behalf by its Chairman, its President or any Vice
President, instruct the Trustee or any paying agent to call all or any part of the
Debentures for redemption and to give notice of redemption in the manner set
forth in this Section 3.4, such notice to be in the name of the Company or
its own name as the Trustee or such paying agent may deem advisable. In any
case in which notice of redemption is to be given by the Trustee or any such
paying agent, the Company shall deliver or cause to be delivered to, or permit
to remain with, the Trustee or such paying agent, as the case may be, such
Debenture Register, transfer books or other records, or suitable copies or
extracts therefrom, sufficient to enable the Trustee or such paying agent to
give any notice by mail that may be required under the provisions of this Section 3.4.


 


SECTION 3.5 
PAYMENT UPON REDEMPTION.


 


(a)                                                If
the giving of notice of redemption shall have been completed as-above provided,
the Debentures or portions of Debentures to be redeemed specified in such
notice shall become due and payable on the date and at the place stated in such
notice at the applicable Redemption Price, and interest on such Debentures or
portions of Debentures shall cease to accrue on and after the date fixed for
redemption, unless the 


 


20

















 


Company shall default in the payment of such
Redemption Price with respect to any such Debenture or portion thereof. On
presentation and surrender of such Debentures on or after the date fixed for
redemption at the place of payment specified in the notice, said Debentures
shall be paid and redeemed at the Redemption Price (but if the date fixed for
redemption is an Interest Payment Date, the interest installment payable on
such date shall be payable to the registered holder at the close of business on
the applicable record date pursuant to Section 2.5(a)).


 


(b)                                               Upon
presentation of any Debenture that is to be redeemed in part only, the Company
shall execute and the Trustee shall, upon the written order of the Company,
authenticate and the office or agency where the Debenture is presented shall
deliver to the holder thereof, at the expense of the Company, a new Debenture
of authorized denomination in principal amount equal to the unredeemed portion
of the Debenture so presented.


 


SECTION 3.6 
NO SINKING FUND.


 


The Debentures are not
entitled to the benefit of any sinking fund.


 


ARTICLE IV



EXTENSION OF INTEREST PAYMENT PERIOD


 


SECTION 4.1 
EXTENSION OF INTEREST PAYMENT PERIOD.


 


The Company shall have
the right, at any time and from time to time during the term of the Debentures
so long as no Event of Default has occurred and is continuing, to defer
payments of interest by extending the interest payment period of such
Debentures for a period not exceeding 20 consecutive quarters (the “Extended
Interest Payment Period”), during which Extended Interest Payment Period no
interest shall be due and payable; provided that no Extended Interest Payment
Period may extend beyond the Maturity Date or end on a date other than an
Interest Payment Date. To the extent permitted by applicable law, interest, the
payment of which has been deferred because of the extension of the interest
payment period pursuant to this Section 4.1, shall bear interest thereon
at the Coupon Rate compounded quarterly for each quarter of the Extended
Interest Payment Period (“Compounded Interest”). At the end of the Extended
Interest Payment Period, the Company shall calculate (and deliver such
calculation to the Trustee) and pay all interest accrued and unpaid on the
Debentures, including any Additional Interest and Compounded Interest
(together, “Deferred Interest”). Before the termination of any Extended
Interest Payment Period, the Company may further extend such period so long as
no Event of Default has occurred and is continuing, provided that such period
together with all such further extensions thereof shall not exceed 20
consecutive quarters, or extend beyond the Maturity Date of the Debentures or
end on a date other than an Interest Payment Date. Upon the termination of any
Extended Interest Payment Period and upon the payment of all Deferred Interest
then due, the Company may commence a new Extended Interest Payment Period,
subject to the foregoing 


 


21

















 


requirements. No interest
shall be due and payable during an Extended Interest Payment Period, except at
the end thereof.


 


SECTION 4.2 
NOTICE OF EXTENSION.


 


(a)                If the Property Trustee is the
only registered holder of the Debentures at the time the Company selects an
Extended Interest Payment Period, the Company shall give written notice to the
Administrative Trustees, the Property Trustee and the Trustee of its selection
of such Extended Interest Payment Period two Business Days before the regular
record date (as such term is used in Section 2.5(a)) immediately preceding
the Interest Payment Date with respect to which interest on the Debentures
would have been payable except for the election to begin or extend such
Extended Interest Payment Period.


 


(b)                If the Property Trustee is not
the only holder of the Debentures at the time the Company selects an Extended
Interest Payment Period, the Company shall give the holders of the Debentures
and the Trustee written notice of its selection of such Extended Interest
Payment Period at least two Business Days before the regular record date (as
such term is used in Section 2.5(a)) immediately preceding the Interest
Payment Date with respect to which interest on the Debentures would have been
payable except for the election to begin or extend such Extended Interest
Payment Period.


 


(c)                The quarter in which any notice
is given pursuant to paragraphs (a) or (b) of this Section 4.2
shall be counted as one of the 20 quarters permitted in the maximum Extended
Interest Payment Period permitted under Section 4.1.


 


ARTICLE V



PARTICULAR COVENANTS OF THE COMPANY


 


SECTION 5.1 
PAYMENT OF PRINCIPAL AND INTEREST.


 


The Company shall duly
and punctually pay or cause to be paid the principal of and interest on the
Debentures at the time and place and in the manner provided herein. Each such
payment of the principal of and interest on the Debentures shall relate only to
the Debentures, shall not be combined with any other payment of the principal
of or interest on any other obligation of the Company, and shall be clearly and
unmistakably identified as pertaining to the Debentures.


 


SECTION 5.2 
MAINTENANCE OF AGENCY.


 


So long as any of the
Debentures remain Outstanding, the Company shall maintain, or shall cause to be
maintained, an office or agency in Lansing, Michigan and at such other location
or locations as may be designated as provided in this Section 5.2, where (i) Debentures
may be presented for payment; (ii) Debentures may be presented as
hereinabove authorized for registration of transfer and exchange; and (iii) notices
and demands to or upon the Company in respect of the Debentures and this
Indenture may be given or served, such designation to continue with respect to
such office or agency until 


 


22

















 


the Company shall, by
written notice signed by its President or an Executive Vice President and
delivered to the Trustee, designate some other office or agency for such
purposes or any of them. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, notices and demands may be made or served
at the Corporate Trust Office of the Trustee, and the Company hereby appoints
the Trustee as its agent to receive all such presentations, notices and
demands. In addition to any such office or agency, the Company may from time to
time designate one or more offices or agencies outside of Lansing, Michigan
where the Debentures may be presented for registration or transfer and for
exchange in the manner provided herein, and the Company may from time to time
rescind such designation as the Company may deem desirable or expedient;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain any such office or agency in
Lansing, Michigan for the purposes above mentioned. The Company shall give the
Trustee prompt written notice of any such designation or rescission thereof.


 


SECTION 5.3 
PAYING AGENTS.


 


(a)                                                The
Trustee shall be the initial paying agent. If the Company shall appoint one or
more paying agents for the Debentures, other than the Trustee, the Company
shall cause each such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 5.3:


 


(i)                                     that
it shall hold all sums held by it as such agent for the payment of the
principal of or interest on the Debentures (whether such sums have been paid to
it by the Company or by any other obligor of such Debentures) in trust for the
benefit of the Persons entitled thereto;


 


(ii)                                  that
it shall give the Trustee notice of any failure by the Company (or by any other
obligor of such Debentures) to make any payment of the principal of or interest
on the Debentures when the same shall be due and payable;


 


(iii)                               that it shall, at any
time during the continuance of any failure referred to in the preceding
paragraph (a)(ii) above, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such paying agent;
and


 


(iv)                              that
it shall perform all other duties of paying agent as set forth in this
Indenture.


 


(b)                                               If
the Company shall act as its own paying agent with respect to the Debentures,
it shall on or before each due date of the principal of or interest on such
Debentures, set aside, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay such principal or interest so
becoming due on Debentures until such sums shall be paid to such Persons or
otherwise disposed of as herein provided 


 


23

















 


and shall promptly notify the Trustee of such action,
or any failure (by it or any other obligor on such Debentures) to take such
action. Whenever the Company shall have one or more paying agents for the
Debentures, it shall, prior to each due date of the principal of or interest on
any Debentures, deposit with the paying agent a sum sufficient to pay the
principal or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal or interest, and (unless such
paying agent is the Trustee) the Company shall promptly notify the Trustee of
this action or failure so to act.


 


(c)                                                Notwithstanding
anything in this Section 5.3 to the contrary, (i) the agreement to
hold sums in trust as provided in this Section 5.3 is subject to the
provisions of Section 13.3, 13.4, and 13.5; and (ii) the Company may
at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or direct any paying agent to
pay, to the Trustee all sums held in trust by the Company or such paying agent,
such sums to be held by the Trustee upon the same terms and conditions as those
upon which such sums were held by the Company or such paying agent; and, upon
such payment by any paying agent to the Trustee, such paying agent shall be
released from all further liability with respect to such money.


 


SECTION 5.4 
APPOINTMENT TO FILL VACANCY IN OFFICE OF TRUSTEE.


 


The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, shall appoint,
in the manner provided in Section 9.11, a Trustee, so that there shall at
all times be a Trustee hereunder.


 


SECTION 5.5 
COMPLIANCE WITH CONSOLIDATION PROVISIONS.


 


The Company shall not, while
any of the Debentures remain Outstanding, consolidate with, or merge into, or
merge into itself, or sell or convey all or substantially all of its property
to any other company unless the provisions of Article XII hereof are
complied with.


 


SECTION 5.6 
LIMITATION ON TRANSACTIONS.


 


If Debentures are issued
to the Trust or a trustee of the Trust in connection with the issuance of Trust
Securities by the Trust and (i) there shall have occurred any event that
would constitute an Event of Default; (ii) the Company shall be in default
with respect to any of its obligations under the Preferred Securities Guarantee
relating to the Trust; or (iii) the Company shall have given notice of its
election to defer payments of interest on such Debentures by extending the
interest payment period as provided in this Indenture and such period, or any
extension thereof, shall be continuing, then (a) the Company shall not
declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock (other than (A) dividends or distributions in common
stock of the Company, or any declaration of a non-cash dividend in connection
with the implementation of a shareholder rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto, (B) purchases of common stock of the Company
related to the rights under any of the Company’s benefit plans for 


 


24

















 


its directors, officers
or employees, or (C) as a result of a reclassification of its capital
stock); and (b) the Company shall not make any payment of interest,
principal or premium, if any, or repay, repurchase or redeem any debt
securities issued by the Company which rank pari passu with or junior to the
Debentures or make any guarantee payments with respect to any guarantee by the
Company of the debt securities of any Subsidiary of the Company if such
guarantee ranks pari passu with or junior in interest to the Debentures;
provided, however, that the Company may make payments pursuant to its
obligations under the Preferred Securities Guarantee; and (c) the Company
shall not redeem, purchase or acquire less than all of the outstanding
Debentures or any of the Preferred Securities.


 


SECTION 5.7 
COVENANTS AS TO THE TRUST.


 


For so long as such Trust
Securities of the Trust remain outstanding, the Company shall (i) maintain
100% direct or indirect ownership of the Common Securities of the Trust;
provided, however, that any permitted successor of the Company under this
Indenture may succeed to the Company’s ownership of the Common Securities; (ii) not
voluntarily terminate, wind up or liquidate the Trust, except upon prior approval
of the Federal Reserve if then so required under applicable capital guidelines,
policies or regulations of the Federal Reserve and use its reasonable efforts
to cause the Trust (a) to remain a statutory trust (and to avoid
involuntary termination, winding up or liquidation), except in connection with
a distribution of Debentures, the redemption of all of the Trust Securities of
the Trust or certain mergers, consolidations or amalgamations, each as
permitted by the Trust Agreement and (b) to otherwise continue not to be
treated as an association taxable as a corporation or partnership for United
States federal income tax purposes; (iii) use its reasonable efforts to
cause each holder of Trust Securities to be treated as owning an individual
beneficial interest in the Debentures; and (iv) the Company, and any
successor to the Company, shall use commercially reasonable efforts to maintain
the eligibility of the Preferred Securities for quotation or listing on the New
York Stock Exchange, or any other national securities exchange, organization or
automated quotation system on which the Preferred Securities are then quoted or
listed, and shall use commercially reasonable efforts to keep the Preferred
Securities so quoted or listed for so long as the Preferred Securities remain
outstanding. In connection with the distribution of the Debentures to the
holders of the Preferred Securities issued by the Trust upon a Dissolution
Event, the Company shall use its commercially reasonable efforts to list such
Debentures on the New York Stock Exchange or on such other exchange, or quote
on an automated quotation system, as the Preferred Securities are then listed.
For so long as any Debentures remain outstanding, the Company shall fulfill all
reporting and filing obligations under the Exchange Act, as applicable to
companies having a class of securities registered under Section 12(b) or
12(g) thereunder.


 


SECTION 5.8 
COVENANTS AS TO PURCHASES.


 


Except upon the exercise
by the Company of its right to redeem the Debentures pursuant to Section 3.2
upon the occurrence and continuation of a Special Event or pursuant to Section 3.3(a) or
Section 3.3(b), prior to the Scheduled Maturity 


 


25

















 


Date, the Company shall
not purchase any Debentures, in whole or in part, from the Trust.


 


SECTION 5.9 
WAIVER OF USURY, STAY OR EXTENSION LAWS.


 


The Company shall not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any usury, stay or extension law wherever enacted, now or at any time hereafter
in force, which may affect the covenants or the performances of this Indenture,
and the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.


 


SECTION 5.10 
LIMITATION ON ADDITIONAL JUNIOR INDEBTEDNESS.


 


The Company shall not,
and it shall not cause or permit any Affiliate of the Company to incur, issue
or be obligated on any Additional Junior Indebtedness, either directly or
indirectly, by way of guarantee, suretyship or otherwise, other than:


 


(a)                                                Additional
Junior Indebtedness that, by its terms, is expressly stated to be junior and
subordinate in all respects to the Debentures; or


 


(b)                                               Additional
Junior Indebtedness that, by its terms, is expressly stated to be pari passu
and rank equally in all respects with the Debentures; provided, however, that
neither the Company nor any of its Affiliates shall incur, issue or otherwise
become obligated on any Additional Junior Indebtedness pursuant to this Section 5.10(b) unless
the quotient of “X” divided by “Y” is less than 0.60, where “X” and “Y” are
calculated as described in Section 5.10(c) and 5.10(d), respectively.


 


(c)                                                As
used in Section 5.10(b), “X” means the sum of the following:


 


(i)                                     the
aggregate principal amount of the Debentures Outstanding at the time of the
proposed issuance of such Additional Junior Indebtedness pursuant to Section 5.10(b),
plus


 


(ii)                                  the
aggregate liquidation amount or principal amount, as the case may be, of any
Additional Junior Indebtedness previously issued and outstanding at the time of
the proposed issuance of such Additional Junior Indebtedness pursuant to Section 5.10(b),
excluding any such Additional Junior Indebtedness that, by its terms, is
expressly stated to be junior and subordinate in all respects to the
Debentures, plus


 


(iii)                               the aggregate
liquidation amount or principal amount, as the case may be, of the Additional
Junior Indebtedness proposed to be issued or otherwise incurred pursuant to Section 5.10(b),
plus


 


26

















 


(iv)                              the
principal amount of any Senior Indebtedness of the Company outstanding at the
time of the proposed issuance of such Additional Junior Indebtedness pursuant
to Section 5.10(b) and that has a maturity or is otherwise due and payable
by the Company on a date twelve (12) months or more after the time of the
proposed issuance of such Additional Junior Indebtedness pursuant to Section 5.10(b).


 


(d)                                               As
used in Section 5.10(b), “Y” means the sum of the following:


 


(i)                                     the
sum of (x) the “common stockholders’ equity” of the Company, plus (y) the
“perpetual preferred stock” of the Company, plus (z) any “minority
interest” in the common and preferred stockholders’ equity accounts of a
subsidiary of the Company, each calculated on a consolidated basis and in
accordance with Appendix A to Part 225 (Capital adequacy guidelines for
bank-holding companies; risk-based measure) of Federal Reserve Regulation Y (12
CFR Part 225, as amended, as in effect at the date of execution of this
Indenture), without regard to limitations therein with respect to the inclusion
of perpetual preferred stock or minority interest (in each case, whether
cumulative or noncumulative) in Tier 1 capital, determined as of the last day
of the month immediately preceding the month during which the proposed issuance
of the Additional Junior Indebtedness pursuant to Section 5.10(b) is
scheduled to occur (provided, however, that in no event shall any portion of
the Debentures, the Additional Junior Indebtedness or the Senior Indebtedness
described in Section 5.10(c) also be included in “Y” under this Section 5.10(d)),
plus


 


(ii)                                  any
other preferred stock of the Company that does not otherwise qualify as “perpetual
preferred stock” and is not included in clause (d)(i) above, plus


 


(iii)                               the aggregate
liquidation amount or principal amount, as the case may be, of any Additional
Junior Indebtedness, which by its terms is expressly stated to be junior and
subordinate in all respects to the Debentures and which was previously issued
and outstanding at the time of the proposed issuance of such Additional Junior
Indebtedness pursuant to Section 5.10(b).


 


(e)                                                Notwithstanding
the foregoing, the limitations of this Section 5.10 shall not in any way
preclude the Company from merging with or into, or from acquiring or being
acquired by, another Person (including by way of merger, stock purchase or
acquisition of assets) that is not an Affiliate of the Company in an arm’s
length transaction entered into in good faith, even though the pro forma
consolidated balance sheet of the surviving Person immediately following the
consummation of such merger, or of the acquiror immediately following the
completion of such acquisition transaction, may include Additional Junior
Indebtedness in amounts in excess of amounts that would otherwise be permitted
by this Section 5.10; provided, however, that thereafter the 


 


27

















 


limitations on future incurrences of Additional Junior
Indebtedness in this Section 5.10 shall continue to apply to the Company
(in the event that it is the surviving corporation in such merger transaction
or the acquiror in such acquisition transaction) and shall apply to the other
Person (in the event that it is the surviving corporation in such merger
transaction or the acquiror in such acquisition transaction) whether or not
such other Person is expressly made a party hereto.


 


ARTICLE VI



DEBENTUREHOLDERS’ LISTS AND REPORTS 

BY THE COMPANY AND THE TRUSTEE


 


SECTION 6.1 
COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF DEBENTUREHOLDERS.


 


The Company shall furnish
or cause to be furnished to the Trustee (a) on a quarterly basis on each
regular record date (as described in Section 2.5(a)) a list, in such form
as the Trustee may reasonably require, of the names and addresses of the
holders of the Debentures as of such regular record date, provided that the
Company shall not be obligated to furnish or cause to furnish such list at any
time that the list shall not differ in any respect from the most recent list
furnished to the Trustee by the Company (in the event the Company fails to
provide such list on a quarterly basis, the Trustee shall be entitled to rely
on the most recent list provided by the Company); and (b) at such other
times as the Trustee may request in writing within 30 days after the receipt by
the Company of any such request, a list of similar form and content as of a
date not more than 15 days prior to the time such list is furnished; provided,
however, that, in either case, no such list need be furnished if the Trustee
shall be the Debenture Registrar.


 


SECTION 6.2 
PRESERVATION OF INFORMATION COMMUNICATIONS WITH DEBENTUREHOLDERS.


 


(a)                                                The
Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Debentures
contained in the most recent list furnished to it as provided in Section 6.1
and as to the names and addresses of holders of Debentures received by the
Trustee in its capacity as Debenture Registrar (if acting in such capacity).


 


(b)                                               The
Trustee may destroy any list furnished to it as provided in Section 6.1
upon receipt of a new list so furnished.


 


(c)                                                Debentureholders
may communicate as provided in Section 312(b) of the Trust Indenture
Act with other Debentureholders with respect to their rights under this
Indenture or under the Debentures.


 


SECTION 6.3 
REPORTS BY THE COMPANY.


 


(a)                                                The
Company covenants and agrees to file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of 


 


28

















 


the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) that
the Company may be required to file with the Commission pursuant to Section 13
or Section 15(d) of the Exchange Act; or, if the Company is not
required to file information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the Commission, in accordance with
the rules and regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents and reports that
may be required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations.


 


(b)                The Company covenants and agrees
to file with the Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants provided for in this Indenture as may be
required from time to time by such rules and regulations.


 


(c)                The Company covenants and agrees
to transmit by mail, first class postage prepaid, or reputable overnight
delivery service that provides for evidence of receipt, to the Debentureholders,
as their names and addresses appear upon the Debenture Register, within 30 days
after the filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section 6.3 as may be required
by rules and regulations prescribed from time to time by the Commission.


 


SECTION 6.4 
REPORTS BY THE TRUSTEE.


 


(a)                On or before July 15 of
each year in which any of the Debentures are Outstanding, the Trustee shall
transmit by mail, first class postage prepaid, to the Debentureholders, as
their names and addresses appear upon the Debenture Register, a brief report
dated as of the preceding May 15, if and to the extent required under Section 313(a) of
the Trust Indenture Act.


 


(b)                The Trustee shall comply with Section 313(b) and
313(c) of the Trust Indenture Act.


 


(c)                A copy of each such report
shall, at the time of such transmission to Debentureholders, be filed by the
Trustee with the Company, with each stock exchange upon which any Debentures
are listed (if so listed) and also with the Commission. The Company agrees to
notify the Trustee when any Debentures become listed on any stock exchange.


 


29














 


ARTICLE VII




REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS ON EVENT OF DEFAULT


 


SECTION 7.1 
EVENTS OF DEFAULT.


 


(a)                Whenever
used herein with respect to the Debentures, “Event of Default” means any one or
more of the following events that has occurred and is continuing:


 


  (i)          the
Company defaults in the payment of any installment of interest upon any of the
Debentures, as and when the same shall become due and payable, and continuance
of such default for a period of 30 days; provided, however, that a valid
extension of an interest payment period by the Company in accordance with the
terms of this Indenture shall not constitute a default in the payment of
interest for this purpose;


 


  (ii)         the
Company defaults in the payment of the principal on the Debentures as and when
the same shall become due and payable whether at maturity, upon redemption, by
declaration or otherwise;


 


  (iii)        the
Company fails to observe or perform any other of its covenants or agreements
with respect to the Debentures for a period of 90 days after the date on which
written notice of such failure, requiring the same to be remedied and stating
that such notice is a “Notice of Default” hereunder, shall have been given to
the Company by the Trustee, by registered or certified mail or other
commercially reasonable method, or to the Company and the Trustee by the
holders of at least 25% in principal amount of the Debentures at the time
Outstanding;


 


  (iv)        the
Company pursuant to or within the meaning of any Bankruptcy Law (i) commences
a voluntary case; (ii) consents to the entry of an order for relief
against it in an involuntary case; (iii) consents to the appointment of a
Custodian of it or for all or substantially all of its property; or (iv) makes
a general assignment for the benefit of its creditors;


 


  (v)         a
court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is
for relief against the Company in an involuntary case; (ii) appoints a
Custodian of the Company for all or substantially all of its property; or (ill)
orders the liquidation of the Company, and the order or decree remains unstayed
and in effect for 90 days; or


 


  (vi)        the
Trust shall have voluntarily or involuntarily dissolved, wound-up its business
or otherwise terminated its existence except in connection with (i) the
distribution of Debentures to holders of Trust Securities in liquidation of
their interests in the Trust; (ii) the redemption of all of the
outstanding Trust Securities of the Trust; or (iii) certain mergers,
consolidations or amalgamations, each as permitted by the Trust Agreement.


 


30

















 


(b)                If
an Event of Default (other than an Event of Default specified in paragraph (i),
(ii), (iii) or (vi) of Section 7.1(a) above with respect to
the Company) shall occur and be continuing, unless the principal amount of all
the Debentures shall have already become due and payable, either the Trustee or
the holders of not less than 25% in aggregate principal amount of the
Debentures then Outstanding hereunder, by notice in writing to the Company (and
to the Trustee if given by such Debentureholders) may declare the principal of
all the Debentures to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable,
notwithstanding anything contained in this Indenture or in the Debentures.


 


(c)                If
an Event of Default specified in paragraph (iv) or (v) of Section 7.1(a)
above with respect to the Company occurs and is continuing, then the principal
of all the Debentures shall ipso  facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any holder, notwithstanding anything contained in this Indenture or in the
Debentures.


 


(d)                At
any time after the principal of the Debentures shall have been so declared due
and payable, and before any judgment or decree for the payment of the moneys
due shall have been obtained or entered as hereinafter provided, the holders of
a majority in aggregate principal amount of the Debentures then Outstanding
hereunder, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if: (i) the Company has paid
or deposited with the Trustee a sum sufficient to pay all matured installments
of interest upon all the Debentures and the principal of any and all Debentures
that shall have become due otherwise than by acceleration (with interest upon
such principal, and, to the extent that such payment is enforceable under applicable
law, upon overdue installments of interest, at the rate per annum expressed in
the Debentures to the date of such payment or deposit) and the amount payable
to the Trustee under Section 9.7; and (ii) any and all Events of
Default under this Indenture, other than the nonpayment of principal on
Debentures that shall not have become due by their terms, shall have been
remedied or waived as provided in Section 7.6. No such rescission and
annulment shall extend to or shall affect any subsequent default or impair any
right consequent thereon.


 


(e)                In
case the Trustee shall have proceeded to enforce any right with respect to
Debentures under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the Trustee, then and
in every such case the Company and the Trustee shall be restored respectively
to their former positions and rights hereunder, and all rights, remedies and
powers of the Company and the Trustee shall continue as though no such
proceedings had been taken.


 


SECTION 7.2 
COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.


 


(a)                The
Company covenants that (1) in case it shall default in the payment of any
installment of interest on any of the Debentures, and such default shall have
continued for a period of 30 days; or (2) in case it shall default in the
payment of the 


 


31

















 


principal of any of the Debentures when the same shall
have become due and payable, whether upon maturity of the Debentures or upon
redemption or upon declaration or otherwise, then, upon demand of the Trustee,
the Company shall pay to the Trustee, for the benefit of the holders of the
Debentures, the whole amount that then shall have become due and payable on all
such Debentures for principal or interest, or both, as the case may be, with
interest upon the overdue principal and (to the extent that payment of such
interest is enforceable under applicable law and, if the Debentures are held by
the Trust or a trustee of the Trust, without duplication of any other amounts
paid to the Trust or trustee in respect thereof) upon overdue installments of
interest at the rate per annum expressed in the Debentures; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, and the amount payable to the Trustee under Section 9.7.


 


(b)                If
the Company shall fail to pay such amounts set forth in Section 7.2(a) forthwith
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings
at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or other obligor
upon the Debentures and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or other obligor
upon the Debentures, wherever situated.


 


(c)                In
case of any receivership, insolvency, liquidation, bankruptcy, reorganization,
readjustment, arrangement, composition or judicial proceedings affecting the
Company, the Trust, or the creditors or property of either, the Trustee shall
have power to intervene in such proceedings and take any action therein that
may be permitted by the court and shall (except as may be otherwise provided by
law) be entitled to file such proofs of claim and other papers and documents as
may be necessary or advisable in order to have the claims of the Trustee and of
the holders of the Debentures allowed for the entire amount due and payable by
the Company under this Indenture at the date of institution of such proceedings
and for any additional amount that may become due and payable by the Company
after such date, and to collect and receive any moneys or other property
payable or deliverable on any such claim, and to distribute the same after the
deduction of the amount payable to the Trustee under Section 9.7; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of the Debentures to make such payments to
the Trustee, and, in the event that the Trustee shall consent to the making of
such payments directly to such Debentureholders, to first pay to the Trustee
any amount due it under Section 9.7.


 


(d)                All
rights of action and claims under this Indenture, or under any of the terms
established with respect to the Debentures, may be enforced by the Trustee
without the possession of any of such Debentures, or the production thereof at
any trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for payment
to the Trustee of any amounts due under Section 9.7, be for the ratable
benefit of the holders of the Debentures. In case of an Event of Default
hereunder, the Trustee may in its discretion proceed to protect and 


 


32

















 


enforce the rights vested in it by this Indenture by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law. Nothing contained herein
shall be deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Debentureholder any plan of reorganization,
arrangement, adjustment or composition affecting the Debentures or the rights
of any holder thereof or to authorize the Trustee to vote in respect of the
claim of any Debentureholder in any such proceeding.


 


SECTION 7.3 
APPLICATION OF MONEYS COLLECTED.


 


Any moneys or other
assets collected or to be applied by the Trustee pursuant to this Article VII
with respect to the Debentures shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
moneys or other assets on account of principal or interest, upon presentation
of the Debentures, and notation thereon of the payment, if only partially paid,
and upon surrender thereof if fully paid:


 


FIRST: To the
payment of costs and expenses of collection and of all other amounts payable to
the Trustee under Section 9.7;


 


SECOND: To the
payment of all Senior Indebtedness of the Company actually known to the Trustee
if and to the extent required by Article XVI; and


 


THIRD: To the
payment of the amounts then due and unpaid upon the Debentures for principal
and interest, in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Debentures for principal and interest,
respectively.


 


SECTION 7.4 
LIMITATION ON SUITS.


 


(a)                Except
as set forth in this Indenture, no holder of any Debenture shall have any right
by virtue or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or with respect to
this Indenture or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless (i) such holder previously shall have given
to the Trustee written notice of an Event of Default and of the continuance
thereof with respect to the Debentures specifying such Event of Default, as
hereinbefore provided; (ii) the holders of not less than 25% in aggregate
principal amount of the Debentures then Outstanding shall have made written
request upon the Trustee to institute such action, suit or proceeding in its
own name as trustee hereunder; (iii) such holder or holders shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby; (iv) the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have failed to institute any such action, 


 


33

















 


suit or proceeding; and (v) during such 60 day
period, the holders of a majority in principal amount of the Debentures do not
give the Trustee a direction inconsistent with the request.


 


(b)                Notwithstanding
anything contained herein to the contrary or any other provisions of this
Indenture, the right of any holder of the Debentures to receive payment of the
principal of and interest on the Debentures, as therein provided, on or after
the respective due dates expressed in such Debenture (or in the case of
redemption, on the redemption date), or to institute suit for the enforcement
of any such payment on or after such respective dates or redemption date, shall
not be impaired or affected without the consent of such holder and by accepting
a Debenture hereunder it is expressly understood, intended and covenanted by
the taker and holder of every Debenture with every other such taker and holder
and the Trustee, that no one or more holders of Debentures shall have any right
in any manner whatsoever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of the holders of any
other of such Debentures, or to obtain or seek to obtain priority over or
preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Debentures. For the protection and enforcement
of the provisions of this Section 7.4, each and every Debentureholder and
the Trustee shall be entitled to such relief as can be given either at law or
in equity.


 


SECTION 7.5 
RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER.


 


(a)                Except
as otherwise provided in Section 2.9(b), all powers and remedies given by
this Article VII to the Trustee or to the Debentureholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive of any other
powers and remedies available to the Trustee or the holders of the Debentures,
by judicial proceedings or otherwise, to enforce the performance or observance
of the covenants and agreements contained in this Indenture or otherwise
established with respect to such Debentures.


 


(b)                No
delay or omission of the Trustee or of any holder of any of the Debentures to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such default or on acquiescence therein; and,
subject to the provisions of Section 7.4, every power and remedy given by
this Article VII or by law to the Trustee or the Debentureholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Debentureholders.


 


SECTION 7.6 
CONTROL BY DEBENTUREHOLDERS.


 


The holders of a majority
in aggregate principal amount of the Debentures at the time Outstanding,
determined in accordance with Section 10.4, shall have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee; 


 


34

















 


provided, however, that such direction shall not be in
conflict with any rule of law or with this Indenture. Subject to the
provisions of Section 9.1, the Trustee shall have the right to decline to
follow any such direction if the Trustee in good faith shall, by a Responsible
Officer or Officers of the Trustee, determine that the proceeding so directed
would involve the Trustee in personal liability. The holders of a majority in
aggregate principal amount of the Debentures at the time Outstanding affected
thereby, determined in accordance with Section 10.4, may on behalf of the
holders of all of the Debentures waive any past default in the performance of
any of the covenants contained herein and its consequences, except (i) a
default in the payment of the principal of, or interest on, any of the
Debentures as and when the same shall become due by the terms of such
Debentures otherwise than by acceleration (unless such default has been cured
and a sum sufficient to pay all matured installments of interest and principal
has been deposited with the Trustee (in accordance with Section 7.1(c)); (ii) a
default in the covenants contained in Section 5.7; or (iii) in
respect of a covenant or provision hereof which cannot be modified or amended
without the consent of the holder of each Outstanding Debenture affected;
provided, however, that if the Debentures are held by the Trust or a trustee of
the Trust, such waiver or modification to such waiver shall not be effective
until the holders of a majority in liquidation preference of Trust Securities
of the Trust shall have consented to such waiver or modification to such waiver;
provided further, that if the consent of the holder of each Outstanding
Debenture is required, such waiver shall not be effective until each holder of
the Trust Securities of the Trust shall have consented to such waiver. Upon any
such waiver, the default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and the holders of the
Debentures shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.


 


SECTION 7.7 
UNDERTAKING TO PAY COSTS.


 


All parties to this
Indenture agree, and each holder of any Debentures by such holder’s acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or omitted
by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 7.7 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Debentureholder, or
group of Debentureholders holding more than 10% in aggregate principal amount
of the Outstanding Debentures, or to any suit instituted by any Debentureholder
for the enforcement of the payment of the principal of or interest on the
Debentures, on or after the respective due dates expressed in such Debenture or
established pursuant to this Indenture.


 


35

















 


SECTION 7.8 
DIRECT ACTION; RIGHT OF SET-OFF.


 


In the event that an
Event of Default has occurred and is continuing and such event is attributable
to the failure of the Company to pay interest on or principal of the Debentures
on an Interest Payment Date or Maturity Date, as applicable, then a holder of
Preferred Securities may institute a legal proceeding directly against the
Company for enforcement of payment to such holder of the principal of or
interest on such Debentures having a principal amount equal to the aggregate
Liquidation Amount of the Preferred Securities of such holders (a “Direct
Action”). In connection with such Direct Action, the Company will have a right
of set-off under this Indenture to the extent of any payment actually made by
the Company to such holder of the Preferred Securities with respect to such
Direct Action.


 


ARTICLE VIII


 


FORM OF DEBENTURE AND ORIGINAL ISSUE SECTION


 


SECTION 8.1 
FORM OF DEBENTURE.


 


The Debenture and the
Trustee’s Certificate of Authentication to be endorsed thereon are to be
substantially in the forms contained in Exhibit A to this Indenture,
attached hereto and incorporated herein by reference.


 


SECTION 8.2 
ORIGINAL ISSUE OF DEBENTURES.


 


Debentures in the
aggregate principal amount of $51,546,392 may, upon execution of this
Indenture, be executed by the Company and delivered to the Trustee for
authentication. If the Underwriters exercise their Option and there is an
Option Closing Date (as such terms are defined in the Underwriting Agreement,
dated
                  ,
2008, by and among the Company, the Trust, and Stifel, Nicolaus &
Company, Incorporated, as Representative of the several Underwriters named
therein) then, on such Option Closing Date, Debentures in the additional
aggregate principal amount of up to $7,731,959 may be executed by the Company
and delivered to the Trustee for authentication. The Trustee shall thereupon
authenticate and deliver said Debentures to or upon the written order of the
Company, signed by its President or any Vice President and its Chief Financial
Officer or the Treasurer or an Assistant Treasurer, without any further action
by the Company.


 


ARTICLE IX



CONCERNING THE TRUSTEE


 


SECTION 9.1 
CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.


 


(a)                The
Trustee, prior to the occurrence of an Event of Default and after the curing of
all Events of Default that may have occurred, shall undertake to perform with
respect to the Debentures such duties and only such duties as are specifically
set forth in this Indenture, and no implied duties, obligations or covenants
shall be read into this Indenture against the Trustee. In case an Event of
Default has occurred that has not been cured or waived, the Trustee shall
exercise such of the rights 


 


36

















 


and powers vested in it by this 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 his or her own
affairs.


 


(b)                No
provision of this Indenture shall be construed to relieve the Trustee from
liability with respect to matters that are within the authority of the Trustee
for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:


 


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


 


(1)              the
duties and obligations of the Trustee shall with respect to the Debentures be
determined solely by the express provisions of this Indenture, and the Trustee
shall not be liable with respect to the Debentures except for the performance
of such duties and obligations as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this Indenture
against the Trustee; and


 


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


 


(ii)           the
Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts;


 


(iii)          the
Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the holders of
not less than a majority in principal amount of the Debentures at the time
Outstanding relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture with respect to the Debentures;
and


 


(iv)          none
of the provisions contained in this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers, if there is reasonable ground for believing that the repayment of such
funds or liability is not reasonably assured to it under the terms of this
Indenture or adequate indemnity 


 


37

















 


against such risk
is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section 9.1.  To the extent that, at law or in equity, the
Trustee has duties and liabilities relating to the Debentureholders, the
Trustee shall not be liable to any Debentureholder or any holder of the Preferred Securities for the Trustee’s
good faith reliance on the provisions of this Indenture.  The provisions of this Indenture, to the
extent that they restrict the duties and liabilities of the Trustee otherwise
existing at law or in equity, are agreed by the Company, the Debentureholders
and the holders of the Preferred Securities, to replace such other duties and
liabilities of the Trustee.


 


(c)                The
Trustee shall not, and shall not be deemed to, owe any fiduciary duty to the
holders of any of the Trust Securities issued by the Trust and shall not be
liable to any such holder (other than for the willful misconduct or negligence
of the Trustee) if the Trustee in good faith (i) pays over or distributes
to a registered holder of the Debentures or to the Company or to any other
Person, cash, property or securities to which such holders of such Trust
Securities shall be entitled or (ii) takes any action or omits to take any
action at the request of the holder of such Debenture. Nothing in this
paragraph shall affect the obligation of any other such Person to hold such
payment for the benefit of, and to pay such amount over to, such holders of
Preferred Securities or Common Securities or their representatives.


 


SECTION 9.2 
NOTICE OF DEFAULTS.


 


Within 90 days after
actual knowledge by a Responsible Officer of the Trustee of the occurrence of
any default hereunder with respect to the Debentures, the Trustee shall transmit
by mail to all holders of the Debentures, as their names and addresses appear
in the Debenture Register, notice of such default, unless such default shall
have been cured or waived; provided, however, that, except in the case of a
default in the payment of the principal or interest (including any Additional
Interest) on any Debenture, the 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 the directors and/or Responsible Officers of the
Trustee determines in good faith that the withholding of such notice is in the
interests of the holders of such Debentures; and provided, further, that in the
case of any default of the character specified in Section 7.1(a)(3), no
such notice to holders of Debentures need be sent until at least 30 days after
the occurrence thereof. For the purposes of this Section 9.2, the term “default”
means any event which is, or after notice or lapse of time or both, would
become, an Event of Default with respect to the Debentures.


 


SECTION 9.3 
CERTAIN RIGHTS OF TRUSTEE.


 


Except as otherwise
provided in Section 9.1:


 


38

















 


(a)                The
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting in good faith and in accordance with the terms hereof
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, security 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)                Any
request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by a Board Resolution or an instrument signed in the name
of the Company by its President or any Vice President and by the Secretary or
an Assistant Secretary or the Treasurer or an Assistant Treasurer thereof
(unless other evidence in respect thereof is specifically prescribed herein);


 


(c)                The
Trustee shall not be deemed to have knowledge of a default or an Event of
Default, other than an Event of Default specified in Section 7.1(a)(i); or
(ii), unless and until it receives written notification of such Event of
Default from the Company or by holders of at least 25% of the aggregate
principal amount of the Debentures at the time Outstanding;


 


(d)                The
Trustee may consult with counsel and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted hereunder in good faith and
in reliance thereon;


 


(e)                The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of the
Debentureholders or holders of the Preferred Securities, pursuant to the
provisions of this Indenture, unless such Debentureholders (or holders of the
Preferred Securities) shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses (including attorneys fees and expenses)
and liabilities that may be incurred therein or thereby, including reasonable
advances as may be requested by the Trustee; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an Event
of Default (that has not been cured or waived) to exercise with respect to the
Debentures such of the rights and powers vested in it by this Indenture, and to
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 his or her own
affairs;


 


(f)                                                  The Trustee shall not be liable for any
action taken or omitted to be taken by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Indenture;


 


(g)                The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, security, or other papers or
documents, unless requested in writing so to do by the holders of not less than
a majority in principal amount of the Outstanding Debentures (determined as
provided in Section 10.4); provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such 


 


39

















 


investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to so proceeding. The reasonable expense
of every such examination shall be paid by the Company or, if paid by the
Trustee, shall be repaid by the Company upon demand; and


 


(h)                The
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, custodians, nominees or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent, custodian, nominee or attorney appointed
with due care by it hereunder.


 


(i)                 If
(i) in performing its duties under this Indenture the Trustee is required
to decide between alternative courses of action, (ii) in construing any of
the provisions of this Indenture the Trustee finds ambiguous or inconsistent
with any other provisions contained herein or (iii) the Trustee is unsure
of the application of any provision of this Indenture, then, except as to any
matter as to which the Debentureholders are entitled to decide under the terms
of this Indenture, the Trustee shall deliver a notice to the Company requesting
the Company’s written instruction as to the course of action to be taken and
the Trustee shall take such action, or refrain from taking such action, as the
Trustee shall be instructed in writing to take, or to refrain from taking, by
the Company; provided, that if the Trustee does not receive such instructions
from the Company within ten (10) Business Days after it has delivered such
notice or such reasonably shorter period of time set forth in such notice the
Trustee may, but shall be under no duty to, take such action, or refrain from
taking such action, as the Trustee shall deem advisable and in the best
interests of the Debentureholders, in which event the Trustee shall have no
liability except for its own negligence, bad faith or willful misconduct.


 


(j)                 Whenever
in the administration of this Indenture the Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or taking
any other action with respect to enforcing any remedy or right hereunder, the
Trustees (i) may request instructions from the Debentureholders (which
instructions may only be given by the Debentureholders of the same aggregate
principal amount of Outstanding Debentures as would be entitled to direct the
Trustee under this Indenture in respect of such remedy, right or action), (ii) may
refrain from enforcing such remedy or right or taking such 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 Indenture, the Trustee shall not be
under any obligation to take any action that is discretionary under the
provisions of this Indenture.


 


(l)                 Without
prejudice to any other rights available to the Trustee under applicable law,
when the Trustee incurs expenses or renders services in connection with any
bankruptcy, insolvency or other proceeding referred to in the definition of
Event of Default, such expenses (including legal fees and expenses of its
agents and counsel) and 


 


40

















 


the compensation for such services are intended to
constitute expenses of administration under any bankruptcy laws or law relating
to creditors rights generally.


 


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


 


(n)                In the event that the Trustee is also acting as
paying agent, authenticating agent or Debenture Registrar hereunder, the rights
and protections afforded to the Trustee pursuant to this Article IX shall
also be afforded such paying agent, authenticating agent, or Debenture
Registrar.


 


SECTION 9.4 
TRUSTEE NOT RESPONSIBLE FOR RECITALS, ETC.


 


(a)                The
Recitals contained herein and in the Debentures shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same.


 


(b)                The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Debentures.


 


(c)                The
Trustee shall not be accountable for the use or application by the Company of
any of the Debentures or of the proceeds of such Debentures, or for the use or
application of any moneys paid over by the Trustee in accordance with any
provision of this Indenture, or for the use or application of any moneys
received by any paying agent other than the Trustee.


 


SECTION 9.5 
MAY HOLD DEBENTURES.


 


The Trustee or any paying
agent, authenticating agent or Debenture Registrar for the Debentures, in its individual
or any other capacity, may become the owner or pledgee of Debentures and may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, paying agent, authenticating agent or Debenture Registrar.


 


SECTION 9.6 
MONEYS HELD IN TRUST.


 


Subject to the provisions
of Section 13.5, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
moneys received by it hereunder except such as it may agree with the Company to
pay thereon.


 


41














 


SECTION 9.7  COMPENSATION AND REIMBURSEMENT.


 


(a)                The Company covenants and agrees
to pay to the Trustee, and the Trustee shall be entitled to, such reasonable
compensation (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust), as the Company and the
Trustee may from time to time agree in writing, for all services rendered by it
in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trustee, and,
except as otherwise expressly provided herein, the Company shall pay or
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and agents and of all Persons
not regularly in its employ) except any such expense, disbursement or advance
as may arise from its negligence or bad faith. The Company also covenants to
indemnify the Trustee (and its officers, agents, shareholders, managers,
directors and employees) for, and to hold it harmless against, any loss,
damage, claim, liability or expense incurred without negligence or bad faith on
the part of the Trustee and arising out of or in connection with the acceptance
or administration of this trust or the performance of the Trustee’s duties
hereunder, including the costs and expenses of defending itself against any
claim of liability in the premises.


 


(b)                The obligations of the Company
under this Section 9.7 to compensate and indemnify the Trustee and to pay
or reimburse the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder. Such additional indebtedness
shall be secured by a lien prior to that of the Debentures upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the holders of particular Debentures. Such lien shall
survive the satisfaction and discharge of this Indenture or the resignation and
removal of the Trustee.


 


(c)                The obligations of the Company
under this Section 9.7 shall survive the satisfaction and discharge of
this Indenture and the earlier resignation or removal of the Trustee.


 


(d)                In no event shall the 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.


 


(e)                In no event shall the Trustee be
liable for any failure or delay in the performance of its obligations hereunder
because of circumstances beyond its 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 Indenture.


 


SECTION 9.8  RELIANCE ON OFFICERS’ CERTIFICATE.


 


Except as otherwise
provided in Section 9.1, whenever in the administration of the provisions
of this Indenture the Trustee shall deem it necessary or 


 


42

















 


desirable that a matter be proved or established prior
to taking or suffering or omitting to take any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of negligence or bad faith on the part of the Trustee, be
deemed to be conclusively proved and established by an Officers’ Certificate
delivered to the Trustee and such certificate, in the absence of negligence or
bad faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted to be taken by it under the provisions of
this Indenture upon the faith thereof.


 


SECTION 9.9  DISQUALIFICATION: CONFLICTING INTERESTS.


 


If the Trustee has or
shall acquire any “conflicting interest” within the meaning of Section 310(b) of
the Trust Indenture Act, the Trustee and the Company shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture
Act.


 


SECTION 9.10  CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.


 


There shall at all times
be a Trustee with respect to the Debentures issued hereunder which shall at all
times be a corporation or national banking association organized and doing
business under the laws of the United States of America or any state or
territory thereof or of the District of Columbia, or a corporation or other
Person permitted to act as trustee by the Commission, authorized under such
laws to exercise trust powers, having (or having a parent that has) a combined
capital and surplus of at least $50,000,000, and subject to supervision or
examination by federal, state, territorial, or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 9.10, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published.
The Company may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as Trustee. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 9.10, the Trustee shall resign immediately in
the manner and with the effect specified in Section 9.11.


 


SECTION 9.11  RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.


 


(a)                The
Trustee or any successor hereafter appointed, may at any time resign with
respect to the Debentures by giving written notice thereof to the Company, and by
transmitting notice of resignation by mail, first class postage prepaid, to the
Debentureholders, as their names and addresses appear upon the Debenture
Register. Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee with respect to Debentures by written instrument,
in duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may, at the Company’s expense, petition any
court of competent jurisdiction for the appointment of a successor 


 


43

















 


trustee with
respect to Debentures, or any Debentureholder who has been a bona fide holder
of a Debenture or Debentures for at least six months may, subject to the
provisions of Sections 9.9 and 9.10, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.


 


(b)                In
case at any time any one of the following shall occur


 


 (i)           the
Trustee shall fail to comply with the provisions of Section 9.9 after
written request therefor by the Company or by any Debentureholder who has been
a bona fide holder of a Debenture or Debentures for at least six months; or


 


 (ii)          the
Trustee shall cease to be eligible in accordance with the provisions of Section 9.10
and shall fail to resign after written request therefor by the Company or by
any such Debentureholder; or


 


 (iii)         the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the
Trustee or of its property shall be appointed or consented to, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then,
in any such case, the Company may remove the Trustee with respect to all
Debentures and appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Sections 9.9 and 9.10, unless the Trustee’s duty
to resign is stayed as provided herein, the Trustee or any Debentureholder who
has been a bona fide holder of a Debenture or Debentures for at least six
months may, on behalf of that holder and all others similarly situated,
petition, at the expense of the Company, any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.


 


(c)                The
holders of a majority in aggregate principal amount of the Debentures at the
time Outstanding may at any time remove the Trustee by so notifying the Trustee
and the Company and may appoint a successor Trustee with the consent of the
Company.


 


(d)                Any
resignation or removal of the Trustee and appointment of a successor trustee
with respect to the Debentures pursuant to any of the provisions of this Section 9.11
shall become effective upon acceptance of appointment by the successor trustee
as provided in Section 9.12.


 


44

















 


(e)                Any
successor trustee appointed pursuant to this Section 9.11 may be appointed
with respect to the Debentures, and at any time there shall be only one Trustee
with respect to the Debentures.


 


SECTION 9.12  ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.


 


(a)                In
case of the appointment hereunder of a successor trustee with respect to the
Debentures, every successor trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and 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 the request of the Company or the
successor trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor trustee all
the rights, powers, and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor trustee all property and money held by
such retiring Trustee hereunder.


 


(b)                Upon
request of any successor trustee, the Company 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 paragraph (a) of
this Section 9.12.


 


(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 IX.


 


(d)                Upon
acceptance of appointment by a successor trustee as provided in this Section 9.12,
the Company shall transmit notice of the succession of such trustee hereunder
by mail, first class postage prepaid, to the Debentureholders, as their names
and addresses appear upon the Debenture Register. If the Company fails to
transmit such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.


 


SECTION 9.13  MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS.


 


Any Person into which the 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 the Trustee shall be a party,
or any Person succeeding to the trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such Person shall be
qualified under the provisions of Section 9.9 and eligible under the
provisions of Section 9.10, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding. In case any Debentures shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such 


 


45

















 


authenticating Trustee may adopt such authentication
and deliver the Debentures so authenticated with the same effect as if such
successor Trustee had itself authenticated such Debentures.


 


SECTION 9.14  PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE
COMPANY.


 


The Trustee shall comply with Section 311(a) of
the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of
the Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the
extent included therein.


 


ARTICLE X



CONCERNING THE DEBENTUREHOLDERS


 


SECTION 10.1  EVIDENCE OF ACTION BY HOLDERS.


 


(a)                Whenever
in this Indenture it is provided that the holders of a majority or specified
percentage in aggregate principal amount of the Debentures may take any action
(including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that at the time
of taking any such action the holders of such majority or specified percentage
have joined therein may be evidenced by any instrument or any number of
instruments of similar tenor executed by such holders of Debentures in Person
or by agent or proxy appointed in writing.


 


(b)                If
the Company shall solicit from the Debentureholders any request, demand,
authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, as evidenced by an Officers’ Certificate, fix in advance a
record date for the determination of Debentureholders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
action, but the Company shall have no obligation to do so. If such a record
date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other action may be given before or after the record date, but only
the Debentureholders of record at the close of business on the record date
shall be deemed to be Debentureholders for the purposes of determining whether
Debentureholders of the requisite proportion of Outstanding Debentures have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the
Outstanding Debentures shall be computed as of the record date; provided,
however, that no such authorization, agreement or consent by such
Debentureholders on the record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than
six months after the record date.


 


SECTION 10.2  PROOF OF EXECUTION BY DEBENTUREHOLDERS.


 


Subject to the provisions of Section 10.1, proof
of the execution of any instrument by a Debentureholder (such proof shall not
require notarization) or such 


 


46

















 


Debentureholder’s agent or proxy and proof of the
holding by any Person of any of the Debentures shall be sufficient if made in
the following manner:


 


(a)                The
fact and date of the execution by any such Person of any instrument may be
proved in any reasonable manner acceptable to the Trustee.


 


(b)                The
ownership of Debentures shall be proved by the Debenture Register of such
Debentures or by a certificate of the Debenture Registrar thereof.


 


(c)                The
Trustee may require such additional proof of any matter referred to in this Section 10.2
as it shall deem necessary.


 


SECTION 10.3  WHO MAY BE DEEMED OWNERS.


 


Prior to the due presentment for registration of
transfer of any Debenture, the Company, the Trustee, any paying agent, and any
Debenture Registrar may deem and treat the Person in whose name such Debenture
shall be registered upon the books of the Company as the absolute owner of such
Debenture (whether or not such Debenture shall be overdue and notwithstanding
any notice of ownership or writing thereon made by anyone other than the
Debenture Registrar) for the purpose of receiving payment of or on account of
the principal of and interest on such Debenture (subject to Section 2.3)
and for all other purposes; and neither the Company nor the Trustee nor any
paying agent nor any Debenture Registrar shall be affected by any notice to the
contrary.


 


SECTION 10.4  CERTAIN DEBENTURES OWNED BY COMPANY DISREGARDED.


 


In determining whether the holders of the requisite
aggregate principal amount of Debentures have concurred in any direction,
consent or waiver under this Indenture, the Debentures that are owned by the
Company or any other obligor on the Debentures or by an Affiliate of the
Company or any other obligor on the Debentures shall be disregarded and deemed
not to be Outstanding for the purpose of any such determination, except (i) that
for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only Debentures that the
Trustee actually knows are so owned shall be so disregarded; and (ii) for
purposes of this Section 10.4, the Trust shall be deemed not to be
controlled by the Company. The Debentures so owned that have been pledged in
good faith may be regarded as Outstanding for the purposes of this Section 10.4,
if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s
right so to act with respect to such Debentures and that the pledgee is not a
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In case of
a dispute as to such right, any decision by the Trustee taken upon the advice
of counsel shall be full protection to the Trustee.


 


SECTION 10.5  ACTIONS BINDING ON FUTURE DEBENTUREHOLDERS.


 


At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 10.1, of the taking of any action by
the holders of the majority or 


 


47

















 


percentage in aggregate principal amount of the
Debentures specified in this Indenture in connection with such action, any
holder of a Debenture that is shown by the evidence to be included in the
Debentures the holders of which have consented to such action may, by filing
written notice with the Trustee, and upon proof of holding as provided in Section 10.2,
revoke such action so far as concerns such Debenture. Except as aforesaid any
such action taken by the holder of any Debenture shall be conclusive and
binding upon such holder and upon all future holders and owners of such
Debenture, and of any Debenture issued in exchange therefor, on registration of
transfer thereof or in place thereof, irrespective of whether or not any
notation in regard thereto is made upon such Debenture. Any action taken by the
holders of the majority or percentage in aggregate principal amount of the
Debentures specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the holders of all the
Debentures.


 


ARTICLE XI



SUPPLEMENTAL INDENTURES


 


SECTION 11.1  SUPPLEMENTAL INDENTURES WITHOUT THE CONSENT
OF DEBENTUREHOLDERS.


 


In addition to any supplemental indenture otherwise
authorized by this Indenture, the Company and the Trustee may from time to time
and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act as then in
effect), without the consent of the Debentureholders, for one or more of the
following purposes:


 


(a)                to
cure any ambiguity, defect, or inconsistency herein, or in the Debentures;


 


(b)                to
comply with Article X;


 


(c)                to
provide for uncertificated Debentures in addition to or in place of
certificated Debentures;


 


(d)                to
add to the covenants of the Company for the benefit of the holders of all or
any of the Debentures or to surrender any right or power herein conferred upon
the Company;


 


(e)                to add to, delete from, or
revise the conditions, limitations, and restrictions on the authorized amount,
terms, or purposes of issue, authentication, and delivery of Debentures, only
as herein set forth;


 


(f)                 to make any change that does
not adversely affect the rights of any Debentureholder in any material respect;


 


48

















 


(g)                to provide for the issuance of
and establish the form and terms and conditions of the Debentures, to establish
the form of any certifications required to be furnished pursuant to the terms
of this Indenture or of the Debentures, or to add to the rights of the holders
of the Debentures;


 


(h)                to qualify or maintain the
qualification of this Indenture under the Trust Indenture Act; or


 


(i)                 to evidence a consolidation or
merger involving the Company as permitted under Section 12.1.


 


The Trustee is hereby
authorized to join with the Company in the execution of any such supplemental
indenture, and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into
any such supplemental indenture that affects the Trustee’s own rights, duties
or immunities under this Indenture or otherwise. Any supplemental indenture
authorized by the provisions of this Section 11.1 may be executed by the
Company and the Trustee without the consent of the holders of any of the
Debentures at the time Outstanding, notwithstanding any of the provisions of Section 11.2.


 


SECTION 11.2  SUPPLEMENTAL INDENTURES WITH CONSENT OF
DEBENTUREHOLDERS.


 


With the consent
(evidenced as provided in Section 10.1) of the holders of not less than a
majority in aggregate principal amount of the Debentures at the time
Outstanding, the Company, when authorized by Board Resolutions, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as then in effect) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of any supplemental indenture or of modifying in any manner not covered by Section 11.1
the rights of the holders of the Debentures under this Indenture; provided,
however, that no such supplemental indenture shall without the consent of the
holders of each Debenture then Outstanding and affected thereby, (i) extend
the fixed maturity of any Debentures, reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon; or (ii) reduce
the aforesaid percentage of Debentures, the holders of which are required to
consent to any such supplemental indenture; provided further, that if the
Debentures are held by the Trust or a trustee of the Trust, such supplemental
indenture shall not be effective until the holders of a majority in liquidation
preference of Trust Securities of the Trust shall have consented to such
supplemental indenture; provided further, that if the consent of the holder of
each Outstanding Debenture is required, such supplemental indenture shall not
be effective until each holder of the Trust Securities of the Trust shall have
consented to such supplemental indenture. It shall not be necessary for the
consent of the Debentureholders affected thereby under this Section 11.2
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance thereof.


 


49

















 


SECTION 11.3  EFFECT OF SUPPLEMENTAL INDENTURES.


 


Upon the execution of any
supplemental indenture pursuant to the provisions of this Article XI, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the holders
of Debentures shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.


 


SECTION 11.4 
DEBENTURES AFFECTED BY SUPPLEMENTAL INDENTURES.


 


Debentures affected by a
supplemental indenture, authenticated and delivered after the execution of such
supplemental indenture pursuant to the provisions of this Article XI, may
bear a notation in form approved by the Company, provided such form meets the
requirements of any exchange or automated quotation system upon which the
Debentures may be listed or quoted, as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Debentures so
modified as to conform, in the opinion of the Board of Directors of the
Company, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Debentures then Outstanding.


 


SECTION 11.5  EXECUTION OF SUPPLEMENTAL INDENTURES.


 


(a)                Upon the request of the Company,
accompanied by its Board Resolutions authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of the
consent of Debentureholders required to consent thereto as aforesaid, the
Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion but shall not be obligated to enter into such
supplemental indenture. The Trustee, subject to the provisions of Sections 9.1,
may receive an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article XI is authorized or permitted
by, and conforms to, the terms of this Article XI and that it is proper
for the Trustee under the provisions of this Article XI to join in the
execution thereof.


 


(b)                Promptly after the execution by
the Company and the Trustee of any supplemental indenture pursuant to the
provisions of this Section 11.5, the Trustee shall transmit by mail, first
class postage prepaid, a notice, setting forth in general terms the substance
of such supplemental indenture, to the Debentureholders as their names and
addresses appear upon the Debenture Register. Any failure of the Trustee to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture.


 


50

















 


ARTICLE XII



SUCCESSOR CORPORATION


 


SECTION 12.1  COMPANY MAY CONSOLIDATE, ETC.


 


Nothing contained
in this Indenture or in any of the Debentures shall prevent any consolidation
or merger of the Company with or into any other corporation or corporations
(whether or not affiliated with the Company, as the case may be), or successive
consolidations or mergers in which the Company, as the case may be, or its
successor or successors shall be a party or parties, or shall prevent any sale,
conveyance, transfer or other disposition of the property of the Company, as
the case may be, or its successor or successors as an entirety, or
substantially as an entirety, to any other corporation (whether or not
affiliated with the Company, as the case may be, or its successor or
successors) authorized to acquire and operate the same; provided, however, the
Company hereby covenants and agrees that, (i) upon any such consolidation,
merger, sale, conveyance, transfer or other disposition, the due and punctual
payment, in the case of the Company, of the principal of and interest on all of
the Debentures, according to their tenor and the due and punctual performance
and observance of all the covenants and conditions of this Indenture to be kept
or performed by the Company as the case may be, shall be expressly assumed, by
supplemental indenture (which shall conform to the provisions of the Trust
Indenture Act, as then in effect) satisfactory in form to the Trustee executed
and delivered to the Trustee by the entity formed by such consolidation, or
into which the Company, as the case may be, shall have been merged, or by the
entity which shall have acquired such property, and, if applicable, the
ultimate parent entity of such successor entity expressly assumes the
obligations of the Company under the related Preferred Securities Guarantee, to
the extent the Preferred Securities are then Outstanding; (ii) in case the
Company consolidates with or merges into another Person or conveys or transfers
its properties and assets substantially as an entirety to any Person, the
successor Person is organized under the laws of the United States or any state
or the District of Columbia; and (iii) immediately after giving effect
thereto, no Event of Default, and no event which, after notice or lapse of time
or both, would become an Event of Default, shall have occurred and be
continuing.


 


SECTION 12.2  SUCCESSOR CORPORATION SUBSTITUTED.


 


(a)                In case of any such
consolidation, merger, sale, conveyance, transfer or other disposition and upon
the assumption by the successor entity, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of, in the
case of the Company, the due and punctual payment of the principal of and
interest on all of the Debentures Outstanding and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Company, as the case may be, such successor entity shall succeed
to and be substituted for the Company, with the same effect as if it had been
named as the Company herein, and thereupon the predecessor entity shall be
relieved of all obligations and covenants under this Indenture and the
Debentures.


 


51

















 


(b)                In case of any such
consolidation, merger, sale, conveyance, transfer or other disposition such
changes in phraseology and form (but not in substance) may be made in the
Debentures thereafter to be issued as may be appropriate.


 


(c)                Nothing contained in this
Indenture or in any of the Debentures shall prevent the Company from merging
into itself or acquiring by purchase or otherwise all or any part of the
property of any other Person (whether or not affiliated with the Company).


 


SECTION 12.3  EVIDENCE OF CONSOLIDATION, ETC. TO TRUSTEE.


 


The Trustee,
subject to the provisions of Section 9.1, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale,
conveyance, transfer or other disposition, and any such assumption, comply with
the provisions of this Article XII.


 


ARTICLE XIII



SATISFACTION AND DISCHARGE


 


SECTION 13.1  SATISFACTION AND DISCHARGE OF INDENTURE.


 


If at any time: (a) the
Company shall have delivered to the Trustee for cancellation all Debentures
theretofore authenticated (other than any Debentures that shall have been
destroyed, lost or stolen and that shall have been replaced or paid as provided
in Section 2.9) and all Debentures for whose payment money or Governmental
Obligations have theretofore been deposited in trust or segregated and held in
trust by the Company (and thereupon repaid to the Company or discharged from
such trust, as provided in Section 13.5); or (b) all such Debentures
not theretofore delivered to the Trustee for cancellation shall have become due
and payable, or are by their terms to become due and payable within one year or
are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and the Company shall
deposit or cause to be deposited with the Trustee as trust funds the entire
amount in moneys or Governmental Obligations sufficient or a combination
thereof, sufficient in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, to pay at maturity or upon redemption all Debentures not
theretofore delivered to the Trustee for cancellation, including principal and
interest due or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if the Company shall also pay or cause to
be paid all other sums payable hereunder by the Company; then this Indenture
shall thereupon cease to be of further effect except for the provisions of
Sections 2.3, 2.7, 2.9, 5.1, 5.2, 5.3, 9.7 and 9.10, that shall survive until
the date of maturity or redemption date, as the case may be, and Sections 9.7
and 13.5, that shall survive to such date and thereafter, and the Trustee, on
demand of the Company and at the cost and expense of the Company, shall execute
proper instruments acknowledging satisfaction of and discharging this
Indenture.


 


52

















 


SECTION 13.2  DISCHARGE OF OBLIGATIONS.


 


If at any time all
Debentures not heretofore delivered to the Trustee for cancellation or that
have not become due and payable as described in Section 13.1 shall have
been paid by the Company by depositing irrevocably with the Trustee as trust
funds moneys or an amount of Governmental Obligations sufficient in the opinion
of a nationally recognized certified public accounting firm to pay at maturity
or upon redemption all Debentures not theretofore delivered to the Trustee for
cancellation, including principal and interest due or to become due to such
date of maturity or date fixed for redemption, as the case may be, and if the
Company shall also pay or cause to be paid all other sums payable hereunder by
the Company, then after the date such moneys or Governmental Obligations, as
the case may be, are deposited with the Trustee, the obligations of the Company
under this Indenture shall cease to be of further effect except for the
provisions of Sections 2.3, 2.7, 2.9, 5.1, 5.2, 5.3, 9.6, 9.7 and 13.5 hereof that
shall survive until such Debentures shall mature and be paid. Thereafter,
Sections 9.7 and 13.5 shall survive.


 


SECTION 13.3  DEPOSITED MONEYS TO BE HELD IN TRUST.


 


All monies or
Governmental Obligations deposited with the Trustee pursuant to Sections 13.1
or 13.2 shall be held in trust and shall be available for payment as due,
either directly or through any paying agent (including the Company acting as
its own paying agent), to the holders of the Debentures for the payment or
redemption of which such moneys or Governmental Obligations have been deposited
with the Trustee.


 


SECTION 13.4  PAYMENT OF MONIES HELD BY PAYING AGENTS.


 


In connection with
the satisfaction and discharge of this Indenture, all moneys or Governmental
Obligations then held by any paying agent under the provisions of this
Indenture shall, upon demand of the Company, be paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys or Governmental Obligations.


 


SECTION 13.5
 REPAYMENT TO COMPANY.


 


Any monies or
Governmental Obligations deposited with any paying agent or the Trustee, or
then held by the Company in trust, for payment of principal of or interest on
the Debentures that are not applied but remain unclaimed by the holders of such
Debentures for at least two years after the date upon which the principal of or
interest on such Debentures shall have respectively become due and payable,
shall be repaid to the Company, as the case may be, on September 30 of
each year or (if then held by the Company) shall be discharged from such trust;
and thereupon the paying agent and the Trustee shall be released from all
further liability with respect to such moneys or Governmental Obligations, and
the holder of any of the Debentures entitled to receive such payment shall
thereafter, as an unsecured general creditor, look only to the Company for the
payment thereof.


 


53

















 


ARTICLE XIV



IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS


 


SECTION 14.1  NO RECOURSE.


 


No recourse under
or upon any obligation, covenant or agreement of this Indenture, or of the
Debentures, or for any claim based thereon or otherwise in respect thereof,
shall be had against any incorporator, stockholder, officer or director, past,
present or future as such, of the Company or of any predecessor or successor
corporation, either directly or through the Company or any such predecessor or
successor corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of the creation
of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Debentures or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in any
of the Debentures or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Debentures.


 


ARTICLE XV



MISCELLANEOUS PROVISIONS


 


SECTION 15.1  EFFECT ON SUCCESSORS AND ASSIGNS.


 


All the covenants,
stipulations, promises and agreements in this Indenture contained by or on
behalf of the Company shall bind its respective successors and assigns, whether
so expressed or not.


 


SECTION 15.2  ACTIONS BY SUCCESSOR.


 


Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the corresponding board,
committee or officer of any corporation that shall at the time be the lawful
sole successor of the Company.


 


54














 


SECTION 15.3  SURRENDER OF COMPANY POWERS.


 


The Company by instrument
in writing executed by appropriate authority of its Board of Directors and
delivered to the Trustee may surrender any of the powers reserved to the
Company, and thereupon such power so surrendered shall terminate both as to the
Company, as the case may be, and as to any successor corporation.


 


SECTION 15.4  NOTICES.


 


Except as otherwise
expressly provided herein any notice or demand that by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the holders of Debentures to or on the Company may be given or served by being
deposited first class postage prepaid in a post-office letterbox addressed
(until another address is filed in writing by the Company with the Trustee), as
follows: Capitol Bancorp Center, 200 Washington Square North, Lansing, Michigan
48933, Attention: Cristin K. Reid, Esq. Any notice, election, request or
demand by the Company or any Debentureholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made in writing at the Corporate Trust Office of the Trustee.


 


SECTION 15.5  GOVERNING LAW.


 


This Indenture and each
Debenture shall be deemed to be a contract made under the internal laws of the
State of New York and for all purposes shall be construed in accordance with
the laws of said State.


 


SECTION 15.6  TREATMENT OF DEBENTURES AS DEBT.


 


It is intended that the
Debentures shall be treated as indebtedness and not as equity for federal
income tax purposes. The provisions of this Indenture shall be interpreted to
further this intention.


 


SECTION 15.7  COMPLIANCE CERTIFICATES AND OPINIONS.


 


(a)           Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers’ Certificate
stating that all conditions precedent provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent have
been complied with, except that in the case of any such application or demand
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.


 


(b)           Each certificate or opinion of the
Company provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant in this Indenture shall
include (1) a statement that the Person making such certificate or opinion
has read such covenant or condition; (2) a brief statement as to the 


 


55

















 


nature and scope
of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that,
in the opinion of such Person, he has made such examination or investigation
as, in the opinion of such Person, is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been complied with; provided,
however, that each such certificate shall comply with the provisions of Section 314
of the Trust Indenture Act.


 


SECTION 15.8  PAYMENTS ON BUSINESS DAYS.


 


In any case where
the date of maturity of interest or principal of any Debenture or the date of
redemption of any Debenture shall not be a Business Day, then payment of
interest or principal may be made on the next succeeding Business Day with the
same force and effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal date, except
that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day (and without
any reduction of interest or any other payment in respect of any such
acceleration), in each case with the same force and effect as if made on the
date such payment was originally payable.


 


SECTION 15.9  CONFLICT WITH TRUST INDENTURE ACT.


 


If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control.


 


SECTION 15.10  COUNTERPARTS.


 


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


 


SECTION 15.11  SEPARABILITY.


 


In case any one or more
of the provisions contained in this Indenture or in the Debentures shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provisions of this Indenture or of the Debentures, but this Indenture and the
Debentures shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.


 


SECTION 15.12  ASSIGNMENT.


 


The Company shall have
the right at all times to assign any of its respective rights or obligations
under this Indenture to a direct or indirect wholly owned Subsidiary of the
Company, provided that, in the event of any such assignment, the Company shall
remain liable for all such obligations. Subject to the foregoing, this 


 


56

















 


Indenture is binding upon and inures to the benefit of
the parties thereto and their respective successors and assigns. This Indenture
may not otherwise be assigned by the parties thereto.


 


SECTION 15.13  ACKNOWLEDGMENT OF RIGHTS; RIGHT OF SETOFF.


 


(a)           The Company acknowledges that, with
respect to any Debentures held by the Trust or a trustee of the Trust, if the
Property Trustee fails to enforce its rights under this Indenture as the holder
of the Debentures held as the assets of the Trust, any holder of Preferred
Securities may institute legal proceedings directly against the Company to
enforce such Property Trustee’s rights under this Indenture without first
instituting any legal proceedings against such Property Trustee or any other
person or entity. Notwithstanding the foregoing, if an Event of Default has
occurred and is continuing and such event is attributable to the failure of the
Company to pay interest or principal on the Debentures on the date such
interest or principal is otherwise payable (or in the case of redemption, on
the redemption date), the Company acknowledges that a holder of Preferred
Securities may directly institute a proceeding for enforcement of payment to
such holder of the principal of or interest on the Debentures having a
principal amount equal to the aggregate liquidation amount of the Preferred
Securities of such holder on or after the respective due date specified in the
Debentures.


 


(b)           Notwithstanding anything to the
contrary contained in this Indenture, the Company shall have the right to
setoff any payment it is otherwise required to make hereunder in respect of any
Trust Securities to the extent that the Company has previously made, or is
concurrently making, a payment to the holder of such Trust Securities under the
Guarantee or in connection with a proceeding for enforcement of payment of the
principal of or interest on the Debentures directly brought by holders of any
Trust Securities.


 


ARTICLE XVI



SUBORDINATION OF DEBENTURES


 


SECTION 16.1  AGREEMENT TO SUBORDINATE.


 


The Company covenants and
agrees, and each holder of Debentures issued hereunder by such holder’s
acceptance thereof likewise covenants and agrees, that all Debentures shall be
issued subject to the provisions of this Article XVI; and each holder of a
Debenture, whether upon original issue or upon transfer or assignment thereof,
accepts and agrees to be bound by such provisions. The payment by the Company
of the principal of and interest on all Debentures issued hereunder shall, to
the extent and in the manner hereinafter set forth, be subordinated and junior
in right of payment to the prior payment in full of all Senior Debt,
Subordinated Debt and Additional Senior Obligations (collectively, “Senior
Indebtedness”) to the extent provided herein, whether outstanding at the date
of this Indenture or thereafter incurred. No provision of this Article XVI
shall prevent the occurrence of any default or Event of Default hereunder.


 


57

















 


SECTION 16.2  DEFAULT ON SENIOR DEBT, SUBORDINATED DEBT OR
ADDITIONAL SENIOR OBLIGATIONS.


 


In the event and during
the continuation of any default by the Company in the payment of principal,
premium, interest or any other payment due on any Senior Indebtedness of the
Company, or in the event that the maturity of any Senior Indebtedness of the
Company has been accelerated because of a default, then, in either case, no
payment shall be made by the Company with respect to the principal (including
redemption payments) of or interest on the Debentures. In the event that,
notwithstanding the foregoing, any payment shall be received by the Trustee
when such payment is prohibited by the preceding sentence of this Section 16.2,
such payment shall be held in trust for the benefit of, and shall be paid over
or delivered to, the holders of Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as their respective
interests may appear, but only to the extent that the holders of the Senior
Indebtedness (or their representative or representatives or a trustee) notify
the Trustee in writing within 90 days of such payment of the amounts then due
and owing on the Senior Indebtedness and only the amounts specified in such
notice to the Trustee shall be paid to the holders of Senior Indebtedness.


 


SECTION 16.3  LIQUIDATION; DISSOLUTION; BANKRUPTCY.


 


(a)           Upon any payment by the Company or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to creditors upon any dissolution or winding-up
or liquidation or reorganization of the Company, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other proceedings,
all amounts due upon all Senior Indebtedness of the Company shall first be paid
in full, or payment thereof provided for in money in accordance with its terms,
before any payment is made by the Company on account of the principal or
interest on the Debentures; and upon any such dissolution or winding-up or
liquidation or reorganization, any payment by the Company, or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, to which the holders of the Debentures or the Trustee would be
entitled to receive from the Company, except for the provisions of this Article XVI,
shall be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
or by the holders of the Debentures or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Indebtedness of the
Company (pro rata to such holders on the basis of the respective amounts of
Senior Indebtedness held by such holders, as calculated by the Company) or
their representative or representatives, or to the trustee or trustees under
any indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, as their respective interests may appear, to
the extent necessary to pay such Senior Indebtedness in full, in money or money’s
worth, after giving effect to any concurrent payment or distribution to or for
the holders of such Senior Indebtedness, before any payment or distribution is
made to the holders of Debentures or to the Trustee.


 


58

















 


(b)           In the event that, notwithstanding
the foregoing, any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, prohibited by the
foregoing, shall be received by the Trustee before all Senior Indebtedness of
the Company is paid in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the holders of such
Senior Indebtedness or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, and their respective
interests may appear, as calculated by the Company, for application to the
payment of all Senior Indebtedness of the Company, as the case may be,
remaining unpaid to the extent necessary to pay such Senior Indebtedness in
full in money in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the benefit of the holders of such
Senior Indebtedness.


 


(c)           For purposes of this Article XVI,
the words “cash, property or securities” shall not be deemed to include shares
of stock of the Company as reorganized or readjusted, or securities of the
Company or any other corporation provided for by a plan of reorganization or
readjustment, the payment of which is subordinated at least to the extent
provided in this Article XVI with respect to the Debentures to the payment
of all Senior Indebtedness of the Company, as the case may be, that may at the
time be outstanding, provided that (i) such Senior Indebtedness is assumed
by the new corporation, if any, resulting from any such reorganization or
readjustment; and (ii) the rights of the holders of such Senior
Indebtedness are not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the Company with, or the
merger of the Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of its property
as an entirety, or substantially as an entirety, to another corporation upon
the terms and conditions provided for in Article XII shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section 16.3 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article XII. Nothing in Section 16.2 or in this Section 16.3
shall apply to claims of, or payments to, the Trustee under or pursuant to Section 9.7.


 


SECTION 16.4  SUBROGATION.


 


(a)           Subject to the payment in full of all
Senior Indebtedness of the Company, the rights of the holders of the Debentures
shall be subrogated to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of cash, property or securities of the
Company, as the case may be, applicable to such Senior Indebtedness until the
principal of and interest on the Debentures shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to the holders of
such Senior Indebtedness of any cash, property or securities to which the
holders of the Debentures or the Trustee would be entitled except for the
provisions of this Article XVI, and no payment over pursuant to the
provisions of this Article XVI to or for the benefit of the holders of
such Senior Indebtedness by holders of the Debentures or the Trustee, shall, as
between the Company, its creditors other than holders of Senior Indebtedness of



 


59

















 


the Company, and
the holders of the Debentures, be deemed to be a payment by the Company to or
on account of such Senior Indebtedness. It is understood that the provisions of
this Article XVI are and are intended solely for the purposes of defining
the relative rights of the holders of the Debentures, on the one hand, and the
holders of such Senior Indebtedness on the other hand.


 


(b)           Nothing contained in this Article XVI
or elsewhere in this Indenture or in the Debentures is intended to or shall
impair, as between the Company, its creditors (other than the holders of Senior
Indebtedness of the Company), and the holders of the Debentures, the obligation
of the Company, which is absolute and unconditional, to pay to the holders of
the Debentures the principal of and interest on the Debentures as and when the
same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the holders of the
Debentures and creditors of the Company, as the case may be, other than the
holders of Senior Indebtedness of the Company, as the case may be, nor shall
anything herein or therein prevent the Trustee or the holder of any Debenture
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article XVI
of the holders of such Senior Indebtedness in respect of cash, property or
securities of the Company, as the case may be, received upon the exercise of
any such remedy.


 


(c)           Upon any payment or distribution of
assets of the Company referred to in this Article XVI, the Trustee,
subject to the provisions of Section 9.1, and the holders of the
Debentures shall be entitled to conclusively rely upon any order or decree made
by any court of competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a certificate of the
receiver, trustee in bankruptcy, liquidation trustee, agent or other Person
making such payment or distribution, delivered to the Trustee or to the holders
of the Debentures, for the purposes of ascertaining the Persons entitled to
participate in such distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, as the case may be, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article XVI.


 


SECTION 16.5  TRUSTEE TO EFFECTUATE SUBORDINATION.


 


Each holder of Debentures
by such holder’s acceptance thereof authorizes and directs the Trustee on such
holder’s behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article XVI and appoints the
Trustee such holder’s attorney-in-fact for any and all such purposes.


 


SECTION 16.6  NOTICE BY THE COMPANY.


 


(a)           The Company shall give prompt written
notice to a Responsible Officer of the Trustee of any fact known to the Company
that would prohibit the making of any payment of monies to or by the Trustee in
respect of the Debentures pursuant to the provisions of this Article XVI.
Notwithstanding the provisions of this Article XVI or any other provision
of this Indenture, the Trustee shall not be charged with knowledge of 


 


60

















 


the existence of
any facts that would prohibit the making of any payment of monies to or by the
Trustee in respect of the Debentures pursuant to the provisions of this Article XVI,
unless and until a Responsible Officer of the Trustee shall have received
written notice thereof from the Company or a holder or holders of Senior
Indebtedness or from any trustee therefor; and before the receipt of any such
written notice, the Trustee, subject to the provisions of Section 9.1,
shall be entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice provided for in
this Section 16.6 at least two Business Days prior to the date upon which
by the terms hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of or interest on any
Debenture), then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such money and to
apply the same to the purposes for which they were received, and shall not be
affected by any notice to the contrary that may be received by it within two
Business Days prior to such date.


 


(b)           The Trustee, subject to the
provisions of Section 9.1, shall be entitled to conclusively rely on the
delivery to it of a written notice by a Person representing himself to be a
holder of Senior Indebtedness of the Company (or a trustee on behalf of such
holder) to establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee on behalf of any such holder or holders. In the event
that the Trustee determines in good faith that further evidence is required
with respect to the right of any Person as a holder of such Senior Indebtedness
to participate in any payment or distribution pursuant to this Article XVI,
the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness held
by such Person, the extent to which such Person is entitled to participate in
such payment or distribution and any other facts pertinent to the rights of
such Person under this Article XVI, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.


 


SECTION 16.7  RIGHTS OF THE TRUSTEE HOLDERS OF SENIOR
INDEBTEDNESS.


 


(a)           The Trustee in its individual
capacity shall be entitled to all the rights set forth in this Article XVI
in respect of any Senior Indebtedness at any time held by it, to the same
extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder. The
Trustee’s right to compensation and reimbursement of expenses as set forth in Section 9.7
shall not be subject to the subordination provisions of the Article XVI.


 


(b)           With respect to the holders of Senior
Indebtedness of the Company, the Trustee undertakes to perform or to observe
only such of its covenants and obligations as are specifically set forth in
this Article XVI, and no implied covenants or obligations with respect to
the holders of such Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of such Senior Indebtedness and, subject to the provisions of Section 9.1,
the Trustee shall not be liable to any holder of such Senior Indebtedness if it
shall pay 


 


61

















 


over or deliver to
holders of Debentures, the Company or any other Person money or assets to which
any holder of such Senior Indebtedness shall be entitled by virtue of this Article XVI
or otherwise.


 


SECTION 16.8  SUBORDINATION MAY NOT BE IMPAIRED.


 


(a)           No right of any present or future
holder of any Senior Indebtedness of the Company to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof that any such holder may have or otherwise be charged with.


 


(b)           Without in any way limiting the
generality of the foregoing paragraph, the holders of Senior Indebtedness of
the Company may, at any time and from time to time, without the consent of or
notice to the Trustee or the holders of the Debentures, without incurring
responsibility to the holders of the Debentures and without impairing or
releasing the subordination provided in this Article XVI or the
obligations hereunder of the holders of the Debentures to the holders of such
Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, such Senior Indebtedness, or otherwise amend or supplement in any manner
such Senior Indebtedness or any instrument evidencing the same or any agreement
under which such Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing such Senior Indebtedness; (iii) release any Person liable in any
manner for the collection of such Senior Indebtedness; and (iv) exercise
or refrain from exercising any rights against the Company and any other Person.


 


[SIGNATURE PAGE TO FOLLOW]


 


62

















 


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


 


 


	
   

  	
  CAPITOL BANCORP LTD.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


 


	
   

  	
  WELLS FARGO BANK, N.A.,
  AS TRUSTEE

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
  STATE OF

  	
  )

  
	
   

  	
  ) ss:

  
	
  COUNTY OF

  	
  )

  
					



 


On the
           day of
                  ,
2008, before me personally came
                            
to me known, who, being by me duly sworn, did depose and say that he is the
                          
of Capitol Bancorp Ltd., one of the corporations described in and which
executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporation
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.


 


	
   

  	
   

  
	
   

  	
  Notary Public,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  My Commission expires:

  



[seal]


 


63

















 


EXHIBIT A


 


(FORM OF FACE OF DEBENTURE)


 


CAPITOL BANCORP LTD.


 


        % JUNIOR SUBORDINATED
DEBENTURE


 


DUE
                    ,
2038


 


	
  No.

  	
   

  	
  $

  



 


CUSIP NO.             


 


Capitol Bancorp Ltd., a
Michigan corporation (the “Company,” which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to Wells Fargo Bank, N.A., as Property Trustee, or
registered assigns, the principal sum of
                                      
Dollars
($                  )
on                 ,
2038 (the “Stated Maturity”), and to pay interest on said principal sum from
                  ,
2008, or from the most recent interest payment date (each such date, an “Interest
Payment Date”) to which interest has been paid or duly provided for, quarterly
(subject to deferral as set forth herein) in arrears on the last day of March,
June, September and December of each year commencing
                    ,
2008, at the rate of
          % per annum until
the principal hereof shall have become due and payable, and on any overdue
principal and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum compounded quarterly. The amount of
interest payable for any interest period ending on or prior to March 31, 2038
shall be computed on the basis of a 360-day year of twelve 30-day months. The
amount of interest payable for any interest period commencing on or after March 31,
2038 shall be computed on the basis of a 360-day year and the actual number of
days elapsed during the relevant period. In the event that any date on which
interest is payable on this Debenture is not a Business Day, then payment of
interest payable on such date shall be made on the next succeeding day that is
a Business Day (and without any interest or other payment in respect of any
such delay) except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day (and without any reduction of interest or any other payment in respect of
any such acceleration), in each case, with the same force and effect as if made
on the date such payment was originally payable. The interest installment so
payable, and punctually paid or duly provided for, on any Interest Payment Date
shall, as provided in the Indenture, be paid to the person in whose name this
Debenture (or one or more Predecessor Debentures, as defined in said Indenture)
is registered at the close of business on the regular record date for such
interest installment, which shall be the close of business on the business day
next preceding such Interest Payment Date unless otherwise provided in the
Indenture.  Any such interest installment
not punctually paid or duly provided for shall forthwith cease to be payable to
the registered holders on such regular record date and may be paid to the
Person in whose 


 


1

















 


name this Debenture (or
one or more Predecessor Debentures) is registered at the close of business on a
special record date to be fixed by the Trustee for the payment of such
defaulted interest, notice thereof shall be fixed by the Trustee for the
payment of such defaulted interest and given to the registered holders of the
Debentures not less than 10 days prior to such special record date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange or quotation system on or in which the
Debentures may be listed or quoted, and upon such notice as may be required by
such exchange or quotation system.  The
principal of and the interest on this Debenture shall be payable at the office
or agency of the Trustee maintained for that purpose in any coin or currency of
the United States of America that at the time of payment is legal tender for
payment of public and private debts; provided, however, that payment of
interest may be made at the option of the Company by check mailed to the
registered holder at such address as shall appear in the Debenture Register.
Notwithstanding the foregoing, so long as the holder of this Debenture is the
Property Trustee, the payment of the principal of and interest on this
Debenture shall be made at such place and to such account as may be designated
by the Trustee.


 


The Stated Maturity may
be shortened at any time by the Company to any date not earlier than
                  ,
2013, subject to the Company having received prior approval of the Federal
Reserve if then required under applicable capital guidelines, policies or
regulations of the Federal Reserve.


 


The indebtedness
evidenced by this Debenture 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, Subordinated Debt and Additional Senior Obligations, and shall be
pari passu in all respects with all Additional Junior Indebtedness, and this
Debenture is issued subject to the provisions of the Indenture with respect
thereto. Each holder of this Debenture, by accepting the same, (a) agrees
to and shall be bound by such provisions; (b) authorizes and directs the
Trustee on his or her behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so provided; and (c) appoints
the Trustee his or her attorney-in-fact for any and all such purposes. Each
holder hereof, by his or her acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.


 


This Debenture shall not
be entitled to any benefit under the Indenture hereinafter referred to, be
valid or become obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by or on behalf of the Trustee.


 


The provisions of this
Debenture are continued on the reverse side hereof and such continued
provisions shall for all purposes have the same effect as though fully set forth
at this place.


 


2

















 


IN WITNESS WHEREOF, the
Company has caused this instrument to be executed.


 


Dated:
                
2008.


 


	
   

  	
  CAPITOL BANCORP LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Attest:


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


3

















 


[FORM OF CERTIFICATE OF AUTHENTICATION]


 


CERTIFICATE OF AUTHENTICATION


 


This is one of the
Debentures described in the within-mentioned Indenture.


 


Dated:
                ,
2008.


 


WELLS FARGO BANK, N.A.,


AS TRUSTEE


 


 


	
  By

  	
   

  	
   

  
	
                       Authorized
  Signatory

  	
   

  



 


4

















 


[FORM OF REVERSE OF DEBENTURE]


 


            %
JUNIOR SUBORDINATED DEBENTURE DUE 2038


(CONTINUED)


 


This Debenture is one of
the subordinated debentures of the Company (herein sometimes referred to as the
“Debentures”), all issued or to be issued under and pursuant to an Indenture
dated as of
              ,
2008 (the “Indenture”) duly executed and delivered between the Company and Wells
Fargo Bank, N.A., as Trustee (the “Trustee”), to which Indenture reference is
hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the holders of the Debentures. The Debentures are limited in aggregate
principal amount as specified in the Indenture.


 


Because of the occurrence
and continuation of a Special Event (as defined in the Indenture), in certain
circumstances, this Debenture may become due and payable at the principal
amount together with any interest accrued thereon (the “Redemption Price”). The
Redemption Price shall be paid prior to 10:00 A.M., New York time on the
date of such redemption or at such earlier time as the Company determines. The
Company shall have the right as set forth in the Indenture to redeem this
Debenture at the option of the Company, without premium or penalty, in whole or
in part at any time on or after
                  ,
2013 (an “Optional Redemption”), or at any time in certain circumstances upon
the occurrence of a Special Event, at a Redemption Price equal to 100% of the
principal amount hereof plus any accrued but unpaid interest hereon, to the
date of such redemption. Any redemption pursuant to this paragraph shall be
made upon not less than 30 days’ nor more than 60 days’ written notice, at the
Redemption Price. The Redemption Price shall be paid at the time and in the
manner provided therefor in the Indenture. If the Debentures are only partially
redeemed by the Company pursuant to an Optional Redemption, the Debentures
shall be redeemed pro rata or by lot or by any other method utilized by the
Trustee as described in the Indenture.


 


In the event of
redemption of this Debenture in part only, a new Debenture or Debentures for the
unredeemed portion hereof shall be issued in the name of the holder hereof upon
the cancellation hereof.


 


In case an Event of
Default (as defined in the Indenture) shall have occurred and be continuing,
the principal of all of the Debentures may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.


 


The Indenture contains
provisions permitting the Company and the Trustee, with the consent of the
holders of not less than a majority in aggregate principal amount of the
Debentures at the time Outstanding (as defined in the Indenture) to execute
supplemental indentures for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Debentures; provided, however, that no such supplemental indenture shall
(i) extend the fixed 


 


5

















 


maturity of the Debentures except as provided in the
Indenture, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, without the consent of the holder of
each Debenture so affected; or (ii) reduce the aforesaid percentage of
Debentures, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of each Debenture
then Outstanding and affected thereby. The Indenture also contains provisions
permitting the holders of a majority in aggregate principal amount of the
Debentures at the time Outstanding, on behalf of all of the holders of the
Debentures, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the Indenture,
and its consequences, except a default in the payment of the principal of or
interest on any of the Debentures. Any such consent or waiver by the registered
holder of this Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and owners
of this Debenture and of any Debenture issued in exchange herefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this
Debenture.


 


No reference herein to
the Indenture and no provision of this Debenture or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal and interest on this Debenture at the time
and place and at the rate and in the money herein prescribed.


 


Provided certain
conditions are met, the Company shall have the right at any time during the
term of the Debentures and from time to time to extend the interest payment
period of such Debentures for up to 20 consecutive quarters (each, an “Extended
Interest Payment Period”), at the end of which period the Company shall pay all
interest then accrued and unpaid (together with interest thereon at the rate
specified for the Debentures to the extent that payment of such interest is
enforceable under applicable law). Before the termination of any such Extended
Interest Payment Period, so long as no Event of Default shall have occurred and
be continuing, the Company may further extend such Extended Interest Payment
Period, provided that such Extended Interest Payment Period together with all
such further extensions thereof shall not exceed 20 consecutive quarters, extend
beyond the Stated Maturity or end on a date other than an Interest Payment
Date. At the termination of any such Extended Interest Payment Period and upon
the payment of all accrued and unpaid interest and any additional amounts then
due and subject to the foregoing conditions, the Company may commence a new
Extended Interest Payment Period.


 


As provided in the
Indenture and subject to certain limitations therein set forth, this Debenture
is transferable by the registered holder hereof on the Debenture Register of
the Company, upon surrender of this Debenture for registration of transfer at
the office or agency of the Trustee accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee duly
executed by the registered holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Debentures of authorized denominations
and for the same aggregate principal amount shall be issued to the designated
transferee or transferees. No service charge shall 


 


6

















 


be made for any such transfer, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in relation thereto.


 


Prior to due presentment
for registration of transfer of this Debenture, the Company, the Trustee, any
paying agent and the Debenture Registrar may deem and treat the registered
holder hereof as the absolute owner hereof (whether or not this Debenture shall
be overdue and notwithstanding any notice of ownership or writing hereon made
by anyone other than the Debenture Registrar) for the purpose of receiving
payment of or on account of the principal hereof and interest due hereon and
for all other purposes, and neither the Company nor the Trustee nor any paying
agent nor any Debenture Registrar shall be affected by any notice to the
contrary.


 


No recourse shall be had
for the payment of the principal of or the interest on this Debenture, or for
any claim based hereon, or otherwise in respect hereof, or based on or in
respect of the Indenture, against any incorporator, stockholder, officer or
director, past, present or future, as such, of the Company or of any
predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty
or otherwise, all such liability being, by the acceptance hereof and as part of
the consideration for the issuance hereof, expressly waived and released.


 


The Debentures are issuable
only in registered form without coupons in denominations of $25 and any
integral multiple thereof.


 


All terms used in this
Debenture that are defined in the Indenture shall have the meanings assigned to
them in the Indenture.


 


7