EX-4.3






Exhibit 4.3




SOUTHWEST BANCORP, INC.




as Issuer




INDENTURE




Dated as of                     , 2008




U.S. BANK NATIONAL ASSOCIATION




as Trustee




JUNIOR SUBORDINATED DEBENTURES DUE 2038




 









 





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



	 	 	 
	TRUST INDENTURE ACT SECTION	 	INDENTURE SECTION
	§310(a)(1), (2) and (5)
	 	6.08
	(a)(3)
	 	Not Applicable
	(a)(4)
	 	Not Applicable
	(b)
	 	6.08, 6.09
	(c)
	 	Not Applicable
	§311(a)
	 	6.13
	(b)
	 	6.13
	(c)
	 	Not Applicable
	§312(a)
	 	4.01, 4.02(a)
	(b)
	 	4.02(b)
	(c)
	 	4.02(c)
	§313(a)
	 	4.032(a), 4.03(b)
	(b)
	 	4.03(b)
	(c)
	 	4.03(a), 4.03(b)
	(d)
	 	4.03(c)
	§314(a)(1), (2) and (3)
	 	4.04
	(a)(4)
	 	3.05
	(b)
	 	Not Applicable
	(c)(1)
	 	14.06
	(c)(2)
	 	14.06
	(c)(3)
	 	Not Applicable
	(d)
	 	Not Applicable
	(e)
	 	14.06
	(f)
	 	Not Applicable
	§315(a)
	 	6.01
	(b)
	 	5.08
	(c)
	 	6.01
	(d)
	 	6.01
	(e)
	 	5.09
	§316(a)
	 	 
	(a)(1)(A)
	 	5.07
	(a)(1)(B)
	 	5.07
	(a)(2)
	 	Not Applicable
	(b)
	 	5.04
	(c)
	 	2.08
	§317(a)(1)
	 	5.02
	(a)(2)
	 	5.02
	(b)
	 	12.02
	§318(a)
	 	14.13






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




i









 








TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I DEFINITIONS
	 	 	 	 
	Section 1.01 Definitions
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II DEBENTURES
	 	 	 	 
	Section 2.01 Authentication and Dating
	 	 	7	 
	Section 2.02 Form of Trustee’s Certificate of Authentication
	 	 	8	 
	Section 2.03 Form and Denomination of Debentures
	 	 	8	 
	Section 2.04 Execution of Debentures
	 	 	8	 
	Section 2.05 Exchange and Registration of Transfer of Debentures
	 	 	8	 
	Section 2.06 Mutilated, Destroyed, Lost or Stolen Debentures
	 	 	9	 
	Section 2.07 Temporary Debentures
	 	 	9	 
	Section 2.08 Payment of Interest
	 	 	10	 
	Section 2.09 Cancellation of Debentures Paid, etc
	 	 	11	 
	Section 2.10 Intentionally Left Blank
	 	 	11	 
	Section 2.11 Extension of Interest Payment Period
	 	 	11	 
	Section 2.12 CUSIP Numbers
	 	 	11	 
	Section 2.13 Global Debentures
	 	 	12	 
	 
	 	 	 	 
	ARTICLE III PARTICULAR COVENANTS OF THE COMPANY
	 	 	 	 
	Section 3.01 Payment of Principal, Premium and Interest; Agreed
Treatment of the Debentures
	 	 	13	 
	Section 3.02 Offices for Notices and Payments, etc.
	 	 	14	 
	Section 3.03 Appointments to Fill Vacancies in Trustee’s Office
	 	 	14	 
	Section 3.04 Provision as to Paying Agent
	 	 	15	 
	Section 3.05 Certificate to Trustee
	 	 	15	 
	Section 3.06 Additional Amounts
	 	 	15	 
	Section 3.07 Compliance with Consolidation Provisions
	 	 	16	 
	Section 3.08 Limitation on Dividends
	 	 	16	 
	Section 3.09 Covenants as to the Trust
	 	 	16	 
	Section 3.10 Additional Junior Indebtedness
	 	 	17	 
	Section 3.11 Subsidiary; Insured Depositary Institution
	 	 	17	 
	 
	 	 	 	 
	ARTICLE IV LISTS
	 	 	 	 
	Section 4.01 Securityholders’ Lists
	 	 	17	 
	Section 4.02 Preservation and Disclosure of Lists
	 	 	17	 
	Section 4.03 Reports by Trustee
	 	 	18	 
	Section 4.04 Reports by Company
	 	 	18	 
	 
	 	 	 	 
	ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
	 	 	 	 
	Section 5.01 Events of Default
	 	 	19	 
	Section 5.02 Payment of Debentures on Default; Suit Therefor
	 	 	20	 
	Section 5.03 Application of Moneys Collected by Trustee
	 	 	21	 
	Section 5.04 Proceedings by Securityholders
	 	 	21	 
	Section 5.05 Proceedings by Trustee
	 	 	22	 
	Section 5.06 Remedies Cumulative and Continuing
	 	 	22	 
	Section 5.07 Direction of Proceedings and Waiver of Defaults by
Majority of Securityholders
	 	 	22	 
	Section 5.08 Notice of Defaults
	 	 	23	 
	Section 5.09 Undertaking to Pay Costs
	 	 	23	 
	 
	 	 	 	 
	ARTICLE VI CONCERNING THE TRUSTEE
	 	 	 	 
	Section 6.01 Duties and Responsibilities of Trustee
	 	 	23	 
	Section 6.02 Reliance on Documents, Opinions, etc.
	 	 	24	 
	Section 6.03 No Responsibility for Recitals, etc.
	 	 	25	 






ii









 






	 	 	 	 	 
	Section 6.04 Trustee, Authenticating Agent, Paying Agents, Transfer
Agents or Registrar May Own Debentures
	 	 	25	 
	Section 6.05 Moneys to be Held in Trust
	 	 	25	 
	Section 6.06 Compensation and Expenses of Trustee
	 	 	25	 
	Section 6.07 Officers’ Certificate as Evidence
	 	 	26	 
	Section 6.08 Eligibility of Trustee
	 	 	26	 
	Section 6.09 Resignation or Removal of Trustee
	 	 	27	 
	Section 6.10 Acceptance by Successor Trustee
	 	 	27	 
	Section 6.11 Succession by Merger, etc.
	 	 	28	 
	Section 6.12 Authenticating Agents
	 	 	28	 
	Section 6.13 Preferential Collection of Claims Against Company
	 	 	29	 
	 
	 	 	 	 
	ARTICLE VII CONCERNING THE SECURITYHOLDERS
	 	 	 	 
	Section 7.01 Action by Securityholders
	 	 	29	 
	Section 7.02 Proof of Execution by Securityholders
	 	 	30	 
	Section 7.03 Who Are Deemed Absolute Owners
	 	 	30	 
	Section 7.04 Debentures Owned by Company Deemed Not Outstanding
	 	 	30	 
	Section 7.05 Revocation of Consents; Future Holders Bound
	 	 	30	 
	 
	 	 	 	 
	ARTICLE VIII SECURITYHOLDERS’ MEETINGS
	 	 	 	 
	Section 8.01 Purposes of Meetings
	 	 	31	 
	Section 8.02 Call of Meetings by Trustee
	 	 	31	 
	Section 8.03 Call of Meetings by Company or Securityholders
	 	 	31	 
	Section 8.04 Qualifications for Voting
	 	 	31	 
	Section 8.05 Regulations
	 	 	31	 
	Section 8.06 Voting
	 	 	32	 
	Section 8.07 Quorum; Actions
	 	 	32	 
	 
	 	 	 	 
	ARTICLE IX SUPPLEMENTAL INDENTURES
	 	 	 	 
	Section 9.01 Supplemental Indentures without Consent of Securityholders
	 	 	33	 
	Section 9.02 Supplemental Indentures with Consent of Securityholders
	 	 	34	 
	Section 9.03 Effect of Supplemental Indentures
	 	 	34	 
	Section 9.04 Notation on Debentures
	 	 	35	 
	Section 9.05 Evidence of Compliance of Supplemental Indenture to be
Furnished to Trustee
	 	 	35	 
	 
	 	 	 	 
	ARTICLE X REDEMPTION OF SECURITIES
	 	 	 	 
	Section 10.01 Optional Redemption
	 	 	35	 
	Section 10.02 Special Event Redemption
	 	 	35	 
	Section 10.03 Notice of Redemption; Selection of Debentures
	 	 	36	 
	Section 10.04 Payment of Debentures Called for Redemption
	 	 	36	 
	 
	 	 	 	 
	ARTICLE XI CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
	 	 	 	 
	Section 11.01 Company May Consolidate, etc., on Certain Terms
	 	 	37	 
	Section 11.02 Successor Entity to be Substituted
	 	 	37	 
	Section 11.03 Opinion of Counsel to be Given to Trustee
	 	 	38	 
	 
	 	 	 	 
	ARTICLE XII SATISFACTION AND DISCHARGE OF INDENTURE
	 	 	 	 
	Section 12.01 Discharge of Indenture
	 	 	38	 
	Section 12.02 Deposited Moneys to be Held in Trust by Trustee
	 	 	38	 
	Section 12.03 Paying Agent to Repay Moneys Held
	 	 	38	 
	Section 12.04 Return of Unclaimed Moneys
	 	 	38	 
	 
	 	 	 	 
	ARTICLE XIII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
	 	 	 	 
	Section 13.01 Indenture and Debentures Solely Corporate Obligations
	 	 	39	 






iii









 






	 	 	 	 	 
	ARTICLE XIV MISCELLANEOUS PROVISIONS
	 	 	 	 
	Section 14.01 Successors
	 	 	39	 
	Section 14.02 Official Acts by Successor Entity
	 	 	39	 
	Section 14.03 Surrender of Company Powers
	 	 	39	 
	Section 14.04 Addresses for Notices, etc.
	 	 	39	 
	Section 14.05 Governing Law
	 	 	40	 
	Section 14.06 Evidence of Compliance with Conditions Precedent
	 	 	40	 
	Section 14.07 Business Day Convention
	 	 	40	 
	Section 14.08 Table of Contents, Headings, etc.
	 	 	40	 
	Section 14.09 Execution in Counterparts
	 	 	41	 
	Section 14.10 Separability
	 	 	41	 
	Section 14.11 Assignment
	 	 	41	 
	Section 14.12 Acknowledgment of Rights
	 	 	41	 
	Section 14.13 Conflict with Trust Indenture Act
	 	 	41	 
	 
	 	 	 	 
	ARTICLE XV SUBORDINATION OF DEBENTURES
	 	 	 	 
	Section 15.01 Agreement to Subordinate
	 	 	41	 
	Section 15.02 Default on Senior Indebtedness
	 	 	42	 
	Section 15.03 Liquidation; Dissolution; Bankruptcy
	 	 	42	 
	Section 15.04 Subrogation
	 	 	43	 
	Section 15.05 Trustee to Effectuate Subordination
	 	 	44	 
	Section 15.06 Notice by the Company
	 	 	44	 
	Section 15.07 Rights of the Trustee; Holders of Senior Indebtedness
	 	 	44	 
	Section 15.08 Subordination May Not Be Impaired
	 	 	45	 
	 
	 	 	 	 
	ANNEX A            Form of Debenture
	 	 	 	 






iv









 






          THIS INDENTURE, dated as of ___, 2008, between Southwest Bancorp, Inc., an Oklahoma
corporation (the “Company”), and U.S. Bank National Association, a national banking association,
as trustee (the “Trustee”).




WITNESSETH:




          WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issuance of
its Junior Subordinated Debentures due 2038 (the “Debentures”) under this Indenture and to provide,
among other things, for the execution and authentication, delivery and administration thereof, the
Company has duly authorized the execution of this Indenture.




          NOW, THEREFORE, in consideration of the premises, and the purchase of the Debentures by the
holders thereof, the Company covenants and agrees with the Trustee for the equal and proportionate
benefit of the respective holders from time to time of the Debentures as follows:




ARTICLE I

DEFINITIONS




          Section 1.01 Definitions.




          The terms defined in this Section 1.01 (except as herein 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 1.01. All
accounting terms used herein and not expressly defined shall have the meanings assigned to such
terms in accordance with generally accepted accounting principles and the term “generally accepted
accounting principles” means such accounting principles as are generally accepted in the United
States at the time of any computation. The words “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.




          “Acceleration Event of Default” means an Event of Default under Section 5.01(a), (d), (e),
(f), (g) or (h), whatever the reason for such Acceleration Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body.




          “Additional Amounts” has the meaning set forth in Section 3.06.




          “Additional Interest” has the meaning set forth in Section 2.11.




          “Administrative Action” has the meaning specified within the definition of “Tax Event” in this
Section 1.01.




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




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




          “Authenticating Agent” means any agent or agents of the Trustee which at the time shall be
appointed and acting pursuant to Section 6.12.




          “Bankruptcy Law” means Title 11 of the United States Code, or any successor statute thereto,
in each case as amended from time to time.




1









 








          “Board of Directors” means the board of directors or the executive committee or any other duly
authorized 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 and delivered to the Trustee.




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




          “Business Day” means any day other than a Saturday, Sunday or any other day on which banking
institutions in Wilmington, Delaware, The City of New York or Stillwater, Oklahoma are permitted or
required by law or executive order to close.




          “Capital Treatment Event” means the receipt by the Company and the Trust of an Opinion of
Counsel experienced in such matters to the effect that, as a result of (a) any amendment to, or
change (including any announced prospective change) in, the laws, rules or regulations of the
United States or any political subdivision thereof or therein, or any rules, guidelines or policies
of an applicable regulatory authority for the Company or (b) any official or administrative
pronouncement or action or decision interpreting or applying such laws, rules or regulations, which
amendment or change is effective or which pronouncement, action or decision is announced on or
after the date of original issuance of the Debentures, there is more than an insubstantial risk
that the Company will not, within 90 days of the date of such opinion, be entitled to treat the
Preferred Securities as “Tier 1 Capital” (or the then equivalent) for purposes of the capital
adequacy guidelines of the Federal Reserve (or any successor regulatory authority with jurisdiction
over bank holding companies), or any capital adequacy guidelines as then in effect and applicable
to the Company; provided, however, that the inability of the Company to treat all
or any portion of the aggregate 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 preferred stock, minority interests in consolidated subsidiaries and any other class
of security or interest which the Federal Reserve (or any successor regulatory authority with
jurisdiction over bank holding companies) may now or hereafter accord “Tier 1 Capital” treatment
that, in the aggregate, exceeds the amount which may now or hereafter qualify for treatment as
“Tier 1 Capital” under applicable capital adequacy guidelines the Federal Reserve (or any successor
regulatory authority with jurisdiction over bank holding companies), applied as if the Company (or
its successor) were a bank holding company for purposes of the capital adequacy guidelines of the
Federal Reserve (or any successor regulatory authority with jurisdiction over bank holding
companies); provided, further, that the distribution of the Debentures in
connection with the liquidation of the Trust by the Company shall not in and of itself constitute a
Capital Treatment Event unless such liquidation shall have occurred in connection with a Tax Event
or an Investment Company Event. For the avoidance of doubt, the inability of the Company to treat
all or any portion of the aggregate Liquidation Amount of the Preferred Securities as “Tier 1
Capital” as a result of the changes effected by the final rule adopted by the Federal Reserve on
March 1, 2005 shall not constitute the basis for a Capital Treatment Event.




          “Certificate” means a certificate signed by any one of the principal executive officer, the
principal financial officer or the principal accounting officer of the Company.




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




          “Common Securities” means undivided beneficial interests in the assets of the Trust which are
designated as “Common Securities” and rank pari passu with Preferred Securities issued by the
Trust; provided, however, that if an Event of Default (as defined in the
Declaration) has occurred and is continuing, the rights of holders of such Common Securities to
payment in respect of distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of such Preferred Securities.




          “Company” means Southwest Bancorp, Inc., a bank holding company incorporated in the State of
Oklahoma, and, subject to the provisions of Article XI, shall include its successors and assigns.




          “Debenture” or “Debentures” has the meaning stated in the first recital of this Indenture.




          “Debenture Register” has the meaning specified in Section 2.05.




2









 








          “Declaration” means the Amended and Restated Declaration of Trust of the Trust, dated as of
the date hereof, as amended or supplemented from time to time.




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




          “Defaulted Interest” has the meaning set forth in Section 2.08.




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




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




          “DTC” means The Depository Trust Company, a New York corporation.




          “Event of Default” means any event specified in Section 5.01, 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.




          “Extension Period” has the meaning set forth in Section 2.11.




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




          “Global Debenture” means a global certificate that evidences all or part of the Debentures the
ownership and transfers of which shall be reflected and made, as applicable, through book entries
by the Depositary and the Depositary Participants.




          “Indenture” means this Indenture as originally executed or, if amended or supplemented as
herein provided, as so amended or supplemented, or both.




          “Insured Depository Institution” has the same meaning as given to that term in Section 3(c)(2)
of the Federal Deposit Insurance Act or any successor statute or rule.




          “Interest Payment Date” means the fifteenth (15th) day of March, June, September
and December of each year, commencing on September 15, 2008, subject to Section 14.07.




          “Interest Rate” means a per annum rate of interest equal to                     %.




          “Investment Company Event” means the receipt by the Company and the Trust of an Opinion of
Counsel experienced in such matters to the effect that, as a result of a change in law or
regulation (including any announced prospective change) or written change in interpretation or
application of law or regulation by any legislative body, court, governmental agency or regulatory
authority, there is more than an insubstantial risk that the Trust is or, within 90 days of the
date of such opinion will be, considered an “investment company” that is required to be registered
under the Investment Company Act of 1940, as amended, which change or prospective change becomes
effective, as the case may be, on or after the date of the original issuance of the Debentures.




          “Junior Indebtedness” means without duplication and other than the Debentures, any
indebtedness, liabilities or obligations of the Company, or any subsidiary of the Company, under
debt securities (or guarantees in respect of debt securities) whether current or future (i)
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 of 1940) or other financing vehicle of the Company or any
predecessor or Subsidiary of the Company in connection with the issuance by that entity of
preferred securities or other securities that are eligible to qualify for Tier 1 capital treatment
(or its then equivalent) for purposes of the capital adequacy guidelines of the Federal Reserve, as
then in effect and applicable to the Company (or, if the Company is not a bank holding company,
such guidelines applied to the Company as if the Company were subject to such guidelines);
provided, however, that the inability of the Company to treat all or any portion of the Junior



3









 






Indebtedness as Tier 1 capital shall not disqualify it as 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; or
(ii) with respect to which in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that (a) such obligations are pari passu, junior or
otherwise not superior in right of payment to the Debentures and (b) such obligations are subject
to the obligor’s right to defer payments of interest for a consecutive period no less than five
years.




          “Liquidation Amount” means the liquidation amount of $25.00 per Trust Security.




          “Major Bank Subsidiary” means any Insured Depository Institution subsidiary of the Company
which, together with any subsidiaries of such Insured Depository Institution subsidiary, has total
assets that exceed 50 percent (or such lesser or greater amount set forth in the then current
interpretation by the Federal Reserve of “major bank subsidiary” as such term is used in the
Adopting Release accompanying the Final Rule on Risk-Based Capital Standards: Trust Preferred
Securities and the Definition of Capital, adopted on March 1, 2005, by the Federal Reserve) of the
total assets of the Company and its subsidiaries consolidated as of the end of the most recently
completed fiscal quarter of the Company. For purposes of this definition, an Insured Depository
Institution will be deemed to be a subsidiary of the Company if the Company has “control” over the
Insured Depository Institution as defined in 12 U.S.C. 1841(a)(2) or any successor statute or rule.




          “Maturity Date” means September 15, 2038, subject to Section 14.07.




          “Officers’ Certificate” means a certificate signed by the Chairman of the Board, the Vice
Chairman, the President or any Vice President, and by the Chief Financial Officer, the Treasurer,
an Assistant Treasurer, the Comptroller, an Assistant Comptroller, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee. Each such certificate shall include the
statements provided for in Section 14.06 if and to the extent required by the provisions of such
Section.




          “Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be counsel
to the Company or may be other counsel reasonably satisfactory to the Trustee. Each such opinion
shall include the statements provided for in Section 14.06 if and to the extent required by the
provisions of such Section.




          “Outstanding,” when used with reference to Debentures, subject to the provisions of Section
7.04, means, as of any particular time, all Debentures authenticated and delivered by the Trustee
or the Authenticating Agent under this Indenture, except:




          (a) Debentures theretofore canceled by the Trustee or the Authenticating Agent or delivered to
the Trustee for cancellation;




          (b) Debentures, or portions thereof, for the payment or redemption of which moneys 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, that, if such Debentures, or
portions thereof, are to be redeemed prior to maturity thereof, notice of such redemption shall
have been given as provided in Articles X and XIV or provision satisfactory to the Trustee shall
have been made for giving such notice; and




          (c) Debentures paid pursuant to Section 2.06 or in lieu of or in substitution for which other
Debentures shall have been authenticated and delivered pursuant to the terms of Section 2.06 unless
proof satisfactory to the Company and the Trustee is presented that any such Debentures are held by
bona fide holders in due course.




          “Optional Redemption Date” has the meaning set forth in Section 10.01.




          “Optional Redemption Price” means an amount in cash equal to 100% of the principal amount of
the Debentures being redeemed plus unpaid interest accrued on such Debentures to the related
Optional Redemption Date.




          “Paying Agent” has the meaning set forth in Section 3.04(e).




4









 








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




          “Predecessor Security” of any particular 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 2.06 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 undivided beneficial interests in the assets of the Trust which
rank pari passu with Common Securities issued by the Trust; provided, however, that
if an Event of Default (as defined in the Declaration) has occurred and is continuing, the rights
of holders of such Common Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights of holders of such Preferred
Securities.




          “Preferred Securities Guarantee” means the guarantee agreement that the Company will enter
into with U.S. Bank National Association or other Persons that operates directly or indirectly for
the benefit of holders of Preferred Securities of the Trust.




          “Principal Office of the Trustee” means the office of the Trustee at which at any particular
time its corporate trust business shall be principally administered, which at all times shall be
located within the United States and at the time of the execution of this Indenture shall be 1
Federal Street, 3rd Floor, Boston, Massachusetts, 02110, Attention: Corporate Trust.




          “Property Trustee” has the meaning set forth in the Declaration.




          “Responsible Officer” means, with respect to the Trustee, any officer of the Trustee with
direct responsibility for the administration of the Indenture, including any vice-president, any
assistant vice-president, any secretary, any assistant secretary, the treasurer, any assistant
treasurer, any trust officer or other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also means, with respect to
a particular corporate trust matter, any other officer to whom such matter is referred because of
that officer’s knowledge of and familiarity with the particular subject.




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




          “Securityholder,” “holder of Debentures” or other similar terms, means any Person in whose
name at the time a particular Debenture is registered on the Debenture Register.




          “Senior Indebtedness” means, with respect to the Company, (i) the principal, premium, if any,
and interest in respect of (A) indebtedness of the Company for all borrowed and purchased money and
(B) indebtedness evidenced by securities, debentures, notes, bonds or other similar instruments
issued by the Company; (ii) all capital lease obligations of the Company; (iii) all obligations of
the Company issued or assumed as the deferred purchase price of property, all conditional sale
obligations of the Company and all obligations of the Company under any title retention agreement;
(iv) all obligations of the Company for the reimbursement of any letter of credit, any banker’s
acceptance, any security purchase facility, any repurchase agreement or similar arrangement, any
interest rate swap, any other hedging arrangement, any obligation under options or any similar
credit or other transaction; (v) all obligations of the Company associated with derivative products
such as interest and foreign exchange rate contracts, commodity contracts, and similar
arrangements; (vi) all obligations of the type referred to in clauses (i) through (v) above of
other Persons for the payment of which the Company is responsible or liable as obligor, guarantor
or otherwise including, without limitation, similar obligations arising from off-balance sheet
guarantees and direct credit substitutes; and (vii) all obligations of the type referred to in
clauses (i) through (vi) above of other Persons secured by any lien on any property or asset of the
Company (whether or not such obligation is assumed by the Company), whether incurred on or prior to
the date of this Indenture or thereafter incurred. Notwithstanding the foregoing, “Senior
Indebtedness” shall not include (1) any Junior Indebtedness, (2) Debentures issued pursuant to this
Indenture and guarantees in respect of such Debentures, (3) trade accounts payable of the Company
arising in the ordinary course of business (such trade accounts payable being pari passu in right
of payment to the Debentures), or (4) obligations with respect to which (a) in the instrument
creating or evidencing the same or pursuant to which the same is outstanding, it is provided that
such obligations are pari passu, junior or otherwise not



5









 






superior in right of payment to the Debentures and (b) the Company, prior to the issuance
thereof, has notified (and, if then required under the applicable guidelines of the regulating
entity, has received approval from) the Federal Reserve. Senior Indebtedness shall continue to be
Senior Indebtedness and be entitled to the subordination provisions irrespective of any amendment,
modification or waiver of any term of such Senior Indebtedness. Notwithstanding anything to the
contrary contained herein, Senior Indebtedness shall not include: (i) the Company’s Floating Rate
Junior Subordinated Deferrable Interest Debentures due 2033 issued to OKSB Statutory Trust I
pursuant to an Indenture dated as of June 26, 2003 by and between the Company and U.S. Bank
National Association; (ii) the related guarantee of the Company with respect to the securities of
OKSB Statutory Trust I, issued pursuant to that certain Guarantee Agreement, dated as of June 26,
2003 by and between the Company and U.S. Bank National Association; (iii) the Company’s Floating
Rate Junior Subordinated Deferrable Interest Debentures due 2033 issued to SBI Capital Trust II
pursuant to an Indenture dated as of October 14, 2003 by and between the Company and Wells Fargo
Bank, National Association; and (iv) the related guarantee of the Company with respect to the
securities of SBI Capital Trust II, issued pursuant to that certain Guarantee Agreement, dated as
of October 14, 2003 by and between the Company and Wells Fargo Bank, National Association.




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




          “Special Redemption Date” has the meaning set forth in Section 10.02.




          “Special Redemption Price” means, with respect to the redemption of any Debenture following a
Special Event, an amount in cash equal to 100% of the principal amount of Debentures to be redeemed
plus unpaid interest accrued thereon to the Special Redemption Date.




          “Subsidiary” means, with respect to any Person, (i) any corporation, at least a majority of
the outstanding voting stock of which is owned, directly or indirectly, by such Person or one or
more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any general
partnership, joint venture or similar entity, at least a majority of the outstanding partnership or
similar interests of which shall at the time be owned by such Person or 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. For the purposes
of this definition, “voting stock” 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.




          “Tax Event” means the receipt by the Company and the Trust of an Opinion of Counsel
experienced in such matters 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 (including any private letter ruling, technical advice
memorandum, field service advise, regulatory procedure, notice or announcement (including any
notice or announcement of intent to adopt such procedures or regulations) (an “Administrative
Action”)) or judicial decision interpreting or applying such laws or regulations, regardless of
whether such Administrative Action or judicial decision is issued to or in connection with a
proceeding involving the Company or the Trust and whether or not subject to review or appeal, which
amendment, clarification, change, Administrative Action or decision is enacted, promulgated or
announced, in each case on or after the date of original issuance of the Debentures, there is more
than an insubstantial risk that: (i) the Trust is, or will be within 90 days of the date of such
opinion, 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 of
the date of such opinion, will not be, deductible by the Company, in whole or in part, for United
States federal income tax purposes; or (iii) the Trust is, or will be within 90 days of the date of
such opinion, subject to or otherwise required to pay, or required to withhold from distributions
to holders of Trust Securities, more than a de minimis amount of other taxes (including withholding
taxes), duties, assessments or other governmental charges.




          “Trust” means Southwest Capital Trust II, the Delaware statutory trust, or any other similar
trust created for the purpose of issuing Preferred Securities in connection with the issuance of
Debentures under this Indenture, of which the Company is the sponsor.




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




          “Trust Securities” means Common Securities and Preferred Securities of the Trust.




          “Trustee” means the Person identified as “Trustee” in the first paragraph hereof, and, subject
to the provisions of Article VI hereof, shall also include its successors and assigns as Trustee
hereunder.




          “United States” means the United States of America and the District of Columbia.




          “U.S. Person” has the meaning given to United States Person as set forth in Section
7701(a)(30) of the Code.




ARTICLE II

DEBENTURES




          Section 2.01 Authentication and Dating.




          Upon the execution and delivery of this Indenture, or from time to time thereafter, Debentures
in an aggregate principal amount not in excess of $51,550,000.00 be executed and delivered by the
Company to the Trustee for authentication, and the Trustee shall thereupon authenticate and make
available for delivery said Debentures to or upon the written order of the Company, signed by its
Chairman of the Board of Directors, Vice Chairman, President or Chief Financial Officer or one of
its Vice Presidents, without any further action by the Company hereunder. 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 6.01) shall be fully
protected in relying upon:





          (a) a copy of any Board Resolution or Board Resolutions relating thereto and, if
applicable, an appropriate record of any action taken pursuant to such resolution, in each
case certified by the Secretary or an Assistant Secretary or other officers with appropriate
delegated authority of the Company as the case may be




          (b) an Opinion of Counsel prepared in accordance with Section 14.6 which shall also
state:




               (1) that such Debentures, when authenticated and delivered by the Trustee and issued by
the Company in each case in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations of the Company,
subject to or limited by applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, moratorium and other statutory or decisional laws relating to or affecting
creditors’ rights or the reorganization of financial institutions (including, without
limitation, preference and fraudulent conveyance or transfer laws), heretofore or hereafter
enacted or in effect, affecting the rights of creditors generally; and




               (2) that all laws and requirements in respect of the execution and delivery by the
Company of the Debentures have been complied with and that authentication and delivery of
the Debentures by the Trustee will not violate the terms of this Indenture.



          The Trustee shall have the right to decline to authenticate and deliver any Debentures under
this Section if the Trustee, being advised by counsel, determines that such action may not lawfully
be taken or if a Responsible Officer of the Trustee in good faith shall determine that such action
would expose the Trustee to personal liability to existing Securityholders.




          The definitive Debentures shall be typed, printed, lithographed or engraved on steel engraved
borders or may be produced in any other manner, all as determined by the officers executing such
Debentures, as evidenced by their execution of such Debentures.




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          Section 2.02 Form of Trustee’s Certificate of Authentication.




          The Trustee’s certificate of authentication on all Debentures shall be in substantially the
following form:




          This certificate represents Debentures referred to in the within-mentioned Indenture.




	 	 	 	 	 	 	 	 	 
	 	 	U.S. Bank National Association,	 	 
	 	 	 	 	not in its individual capacity	 	 
	 	 	 	 	but solely as trustee	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 

	 	 	 	 	 	 

Authorized Officer
	 	 






          Section 2.03 Form and Denomination of Debentures.




               The Debentures shall be substantially in the form of Annex A hereto. The Debentures
shall be in registered form without coupons and in minimum denominations of $25 and any multiple of
$25 in excess thereof. The Debentures shall be numbered, lettered, or otherwise distinguished in
such manner or in accordance with such plans as the officers executing the same may determine with
the approval of the Trustee as evidenced by the execution and authentication thereof.



          Section 2.04 Execution of Debentures.




          The Debentures shall be signed in the name and on behalf of the Company by the manual or
facsimile signature of its Chairman of the Board of Directors, Vice Chairman, President or Chief
Financial Officer or one of its Executive Vice Presidents, Senior Vice Presidents or Vice
Presidents, under its corporate seal (if legally required) which may be affixed thereto or printed,
engraved or otherwise reproduced thereon, by facsimile or otherwise, and which need not be
attested. Only such Debentures as shall bear thereon a certificate of authentication substantially
in the form herein before recited, executed by the Trustee or the Authenticating Agent by the
manual or facsimile signature of an authorized officer, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee or the
Authenticating Agent upon any Debenture executed by the Company 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.




          In case any officer of the Company who shall have signed any of the Debentures shall cease to
be such officer before the Debentures so signed shall have been authenticated and delivered by the
Trustee or the Authenticating Agent, or disposed of by the Company, such Debentures nevertheless
may be authenticated and delivered or disposed of as though the Person who signed such Debentures
had not ceased to be such officer of the Company; and any Debenture may be signed on behalf of the
Company by such Persons as, at the actual date of the execution of such Debenture, shall be the
proper officers of the Company, although at the date of the execution of this Indenture any such
person was not such an officer.




          Every Debenture shall be dated the date of its authentication.




          Section 2.05 Exchange and Registration of Transfer of Debentures.




          The Company shall cause to be kept, at the office or agency maintained for the purpose of
registration of transfer and for exchange as provided in Section 3.02, a register (the “Debenture
Register”) for the Debentures issued hereunder in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration and transfer of all Debentures as
provided in this Article II. Such register shall be in written form or in any other form capable of
being converted into written form within a reasonable time.




          Debentures to be exchanged may be surrendered at the Principal Office of the Trustee or at any
office or agency to be maintained by the Company for such purpose as provided in Section 3.02, and
the Company shall execute, the Company or the Trustee shall register and the Trustee or the
Authenticating Agent shall authenticate and make available for delivery in exchange therefor, the
Debenture or Debentures which the Securityholder making the exchange shall be entitled to receive.
Upon due presentment for registration of transfer of any Debenture at the



8









 






Principal Office of the Trustee or at any office or agency of the Company maintained for such purpose as provided
in Section 3.02, the Company shall execute, the Company or the Trustee shall register and the
Trustee or the Authenticating Agent shall authenticate and make available for delivery in the name
of the transferee or transferees, a new Debenture for a like aggregate principal amount.
Registration or registration of transfer of any Debenture by the Trustee or by any agent of the
Company appointed pursuant to Section 3.02, and delivery of such Debenture, shall be deemed to
complete the registration or registration of transfer of such Debenture.




          All Debentures presented for registration of transfer or for exchange or payment shall (if so
required by the Company or the Trustee or the Authenticating Agent) be duly endorsed by, or be
accompanied by, a written instrument or instruments of transfer in form satisfactory to the Company
and either the Trustee or the Authenticating Agent duly executed by, the Securityholder or such
Securityholder’s attorney duly authorized in writing.




          No service charge shall be made for any exchange or registration of transfer of Debentures,
but the Company or the Trustee may require payment of a sum sufficient to cover any tax, fee or
other governmental charge that may be imposed in connection therewith other than exchanges pursuant
to Section 2.07, Section 9.04 or Section 10.04 not involving any transfer.




          The Company or the Trustee shall not be required to exchange or register a transfer of any
Debenture for a period of 15 days immediately preceding the date of selection of Debentures for
redemption.




          Section 2.06 Mutilated, Destroyed, Lost or Stolen Debentures.




          In case any Debenture shall become mutilated or be destroyed, lost or stolen, the Company
shall execute, and upon its written request the Trustee 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 or
stolen. 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 such 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 any officer 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 connected
therewith. In case any Debenture which has matured or is about to mature or has been called for
redemption in full 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 may be required by them to
save each of them harmless and, in case of destruction, loss or theft, evidence satisfactory to the
Company and to the Trustee of the destruction, loss or theft of such Debenture and of the ownership
thereof.




          Every substituted Debenture issued pursuant to the provisions of this Section 2.06 by virtue
of the fact that any such Debenture is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost or stolen Debenture shall
be found at any time, 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, to the extent permitted by applicable law, the
foregoing provisions are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Debentures and shall preclude 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 2.07 Temporary Debentures.




          Pending the preparation of definitive Debentures, the Company may execute and the Trustee
shall authenticate and make available for delivery temporary Debentures that are typed, printed,
lithographed, typewritten, mimeographed or otherwise produced in any authorized denomination,
substantially in the form of the definitive



9









 






Debentures but with such omissions, insertions and variations as may be appropriate for temporary Debentures, all
as may be determined by the Company. Every such 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 the same effect, as the definitive Debentures. Without unreasonable delay, the
Company will execute and deliver to the Trustee or the Authenticating Agent definitive Debentures
and thereupon any or all temporary Debentures may be surrendered in exchange therefor, at the
Principal Office of the Trustee or at any office or agency maintained by the Company for such
purpose as provided in Section 3.02, and the Trustee or the Authenticating Agent shall authenticate
and make available for delivery in exchange for such temporary Debentures a like aggregate
principal amount of such definitive Debentures. Such exchange shall be made by the Company at its
own expense and without any charge therefor except that in case of any such exchange involving a
registration of transfer the Company may require payment of a sum sufficient to cover any tax, fee
or other governmental charge that may be imposed in relation thereto. Until so exchanged, the
temporary Debentures shall in all respects be entitled to the same benefits under this Indenture as
definitive Debentures authenticated and delivered hereunder.




          Section 2.08 Payment of Interest.




          Each Debenture will bear interest at the Interest Rate on the principal thereof, on any
overdue principal and (to the extent that payment of such interest is enforceable under applicable
law) on Additional Interest and on any overdue installment of interest (including Defaulted
Interest), payable (subject to the provisions of Article XV) on each Interest Payment Date and on
the Maturity Date, any Optional Redemption Date or the Special Redemption Date, as the case may be.
Interest and any Additional Interest on any Debenture that is payable, and is punctually paid or
duly provided for by the Company, on any Interest Payment Date shall be paid to the Person in whose
name such Debenture (or one or more Predecessor Securities) is registered at the close of business
on the regular record date for such interest installment, except that interest and any Additional
Interest payable on the Maturity Date, any Optional Redemption Date or the Special Redemption Date,
as the case may be, other than any Interest Payment Date shall be paid to the Person to whom
principal is paid. In case (i) the Maturity Date of any Debenture or (ii) any Debenture or portion
thereof is called for redemption and the related Optional Redemption Date or the Special Redemption
Date, as the case may be, is subsequent to the regular record date with respect to any Interest
Payment Date and prior to such Interest Payment Date, interest on such Debenture will be paid upon
presentation and surrender of such Debenture.




          Any interest on any Debenture, including Additional Interest, that is payable, but is not
punctually paid or duly provided for by the Company, on any Interest Payment Date (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the holder on the relevant regular
record date by virtue of having been such holder, and such Defaulted Interest shall be paid by the
Company to the Persons in whose names such Debentures (or their respective Predecessor Securities)
are registered at the close of business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each such Debenture and the date
of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements reasonably satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as provided in this paragraph. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted Interest, which shall not be more
than fifteen nor less than ten days prior to the date of the proposed payment and not less than ten
days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest and the special
record date therefor to be mailed, first class postage prepaid, to each Securityholder at his or
her address as it appears in the Debenture Register, not less than ten days prior to such special
record date. Notice of the proposed payment of such Defaulted Interest and the special record date
therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names such Debentures (or their respective Predecessor Securities) are registered on such
special record date and thereafter the Company shall have no further payment obligation in respect
of the Defaulted Interest.




          Payments of interest on the Debentures shall include interest accrued to but excluding the
respective Interest Payment Dates. The amount of interest payable for any interest period shall be
computed and paid on the basis of a 360-day year consisting of twelve 30-day months. Any interest
scheduled to become payable on an



10









 






Interest Payment Date occurring during an Extension Period shall
not be Defaulted Interest and shall be payable on such other date as may be specified in the terms
of such Debentures.




          The term “regular record date”, as used in this Section, shall mean the fifteenth day prior to
the applicable Interest Payment Date, whether or not such day is a Business Day.




          Subject to the foregoing provisions of this Section, each Debenture delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Debenture
shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such
other Debenture.




          Section 2.09 Cancellation of Debentures Paid, etc.




          All Debentures surrendered for the purpose of payment, redemption, exchange or registration of
transfer, shall, if surrendered to the Company or any Paying Agent, be surrendered to the Trustee
and promptly canceled by it, or, if surrendered to the Trustee or any Authenticating Agent, shall
be promptly canceled by it, and no Debentures shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. All Debentures canceled by any Authenticating
Agent shall be delivered to the Trustee. The Trustee shall destroy all canceled Debentures unless
the Company otherwise directs the Trustee in writing, in which case the Trustee shall dispose of
such Debentures as directed by the Company. If the Company shall 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 surrendered to the Trustee for
cancellation.




          Section 2.10 Intentionally Left Blank.




          Section 2.11 Extension of Interest Payment Period.




          So long as no Acceleration Event of Default has occurred and is continuing, the Company shall
have the right, from time to time and without causing an Event of Default, to defer payments of
interest on the Debentures by extending the interest payment period on the Debentures for up to 20
consecutive quarterly periods (each such extended interest payment period, together with all
previous and further consecutive extensions thereof, is referred to herein as an “Extension
Period”). No Extension Period may end on a date other than an Interest Payment Date or extend
beyond the Maturity Date, any Optional Redemption Date or the Special Redemption Date, as the case
may be. During any Extension Period, interest will continue to accrue on the Debentures, and
interest on such accrued interest (such accrued interest and interest thereon referred to herein as
“Additional Interest”) will accrue at an annual rate equal to the Interest Rate, compounded
quarterly from the date such Additional Interest would have been payable were it not for the
Extension Period, to the extent permitted by applicable law. No interest or Additional Interest
(except any Additional Amounts that may be due and payable) shall be due and payable during an
Extension Period, except at the end thereof. At the end of any Extension Period, the Company shall
pay all Additional Interest then accrued and unpaid on the Debentures; provided,
however, that during any Extension Period, the Company shall be subject to the restrictions
set forth in Section 3.08. Prior to the termination of any Extension Period, the Company may
further extend such Extension Period, provided, that no Extension Period (including all
previous and further consecutive extensions that are part of such Extension Period) shall exceed 20
consecutive quarterly periods. Upon the termination of any Extension Period and upon the payment of
all Additional Interest, the Company may commence a new Extension Period, subject to the foregoing
requirements. The Company must give the Trustee notice of its election to begin or extend an
Extension Period no later than the close of business on the fifteenth Business Day prior to the
applicable Interest Payment Date. The Trustee shall give notice of the Company’s election to begin
or extend an Extension Period to the Securityholders, promptly after receipt of notice from the
Company of its election to begin or extend an Extension Period.




          Section 2.12 CUSIP Numbers.




          The Company in issuing the Debentures may use a “CUSIP” number (if then generally in use),
and, if so, the Trustee shall use a “CUSIP” number in notices of redemption as a convenience to
Securityholders; provided, that any such notice may state that no representation is made as
to the correctness of such number either as printed on the Debentures or as contained in any notice
of a redemption and that reliance may be placed only on the other identification numbers printed on
the Debentures, and any such redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee in writing of any change in the CUSIP number.




11









 








          Section 2.13 Global Debentures.




          (a) Upon the election of an owner of beneficial interests in outstanding Debentures, the
Debentures owned by such beneficial owner shall be issued in the form of one or more Global
Debentures. Each Global Debenture issued under this Indenture shall be registered in the name of
the Depositary designated by the Company for such Global Debenture or a nominee of such Depositary
and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global
Debenture shall constitute a single Debenture for all purposes of this Indenture.




          (b) Notwithstanding any other provision in this Indenture, no Global Debenture may be
exchanged in whole or in part for Debentures registered, and no transfer of a Global Debenture in
whole or in part may be registered in the name of any Person other than the Depositary for such
Global Debenture or a nominee thereof unless (i) such Depositary advises the Trustee and the
Company in writing that such Depositary is no longer willing or able to properly discharge its
responsibilities as Depositary with respect to such Global Debenture, and no qualified successor is
appointed by the Company within ninety (90) days of receipt by the Company of such notice, (ii)
such Depositary ceases to be a clearing agency registered under the Exchange Act and no successor
is appointed by the Company within ninety (90) days after obtaining knowledge of such event or
(iii) an Event of Default shall have occurred and be continuing. Upon obtaining knowledge of the
occurrence of any event specified in clause (i), (ii) or (iii) above, the Trustee shall notify the
Depositary and instruct the Depositary to notify all owners of beneficial interests in such Global
Debenture of the occurrence of such event and of the availability of Debentures to such beneficial
owners requesting the same. Upon the issuance of such Debentures and the registration in the
Debenture Register of such Debentures in the names of the holders thereof, the Trustee shall
recognize such holders as holders of Debentures for all purposes of this Indenture and the
Debentures.




          (c) If any Global Debenture is to be exchanged for other Debentures or canceled in part, or if
another Debenture is to be exchanged in whole or in part for a beneficial interest in any Global
Debenture, then either (i) such Global Debenture shall be so surrendered for exchange or
cancellation as provided herein or (ii) the principal amount thereof shall be reduced or increased,
subject to Section 2.03, by an amount equal to the portion thereof to be so exchanged or canceled,
or equal to the principal amount of such Debenture to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment made on the records of the
Debenture registrar, whereupon the Trustee, in accordance with the Applicable Depositary
Procedures, shall instruct the Depositary or its authorized representative to make a corresponding
adjustment to its records. Upon any such surrender or adjustment of a Global Debenture by the
Depositary, accompanied by registration instructions, the Company shall execute and the Trustee
shall authenticate and deliver Debentures issuable in exchange for such Global Debenture (or any
portion thereof) in accordance with the instructions of the Depositary. The Trustee may
conclusively rely on, and shall be fully protected in relying on, such instructions.




          (d) Every Debenture authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Debenture or any portion thereof shall be authenticated and
delivered in the form of, and shall be, a Global Debenture, unless such Debenture is registered in
the name of a Person other than the Depositary for such Global Debenture or a nominee thereof.




          (e) Debentures distributed to holders of Book-Entry Preferred Securities (as defined in the
Declaration) upon the dissolution of the Trust shall be distributed in the form of one or more
Global Debentures registered in the name of the Depositary or its nominee, and deposited with the
Debentures registrar, as custodian for such Depositary, or with such Depositary, for credit by the
Depositary to the owners of beneficial interests in such Book-Entry Preferred Securities.
Debentures distributed to holders of Preferred Securities other than Book-Entry Preferred
Securities upon the dissolution of the Trust shall not be issued in the form of a Global Debenture
or any other form intended to facilitate book-entry trading in beneficial interests in such
Debentures.




          (f) The Depositary or its nominee, as the registered owner of a Global Debenture, shall be the
holder of such Global Debenture for all purposes under this Indenture and the Debentures, and
owners of beneficial interests in a Global Debenture shall hold such interests pursuant to the
Applicable Depositary Procedures. Accordingly, any such owner’s beneficial interest in a Global
Debenture shall be shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Depositary Participants. The Debentures
registrar and the Trustee shall be entitled to deal with the Depositary for all purposes of this
Indenture



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relating to a Global Debenture as the sole holder of the Debenture and shall have no
obligation to any beneficial owner of a Global Debenture. Neither the Trustee nor the Debentures
registrar shall have any liability in respect of any transfers affected by the Depositary or its
Depositary Participants.




          (g) The rights of owners of beneficial interests in a Global Debenture shall be exercised only
through the Depositary and shall be limited to those established by law and agreements between such
owners and the Depositary and/or its Depositary Participants.




          (h) No owner of any beneficial interest in any Global Debenture shall have any rights under
this Indenture with respect to such Global Debenture, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the owner and holder of such
Global Debenture for all purposes under the Indenture. None of the Company, the Trustee nor any
agent of the Company or the Trustee will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership interests in a Global
Debenture or maintaining, supervising or reviewing any records relating to such beneficial
ownership interests. Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or impair, as between the Depositary and
such beneficial owners, the operation of customary practices governing the exercise of the rights
of the Depositary or its nominee as holder of any Debenture.




          (i) Global Debentures shall bear the following legend on the face thereof:





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




UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.



ARTICLE III

PARTICULAR COVENANTS OF THE COMPANY




          Section 3.01 Payment of Principal, Premium and Interest; Agreed Treatment of the
Debentures.




          (a) The Company covenants and agrees that it will duly and punctually pay or cause to be paid
all payments due in respect of the Debentures at the place, at the respective times and in the
manner provided in this Indenture and the Debentures. Payment of the principal of and premium, if
any, and interest (including Additional Interest) on the Debentures due on the Maturity Date, any
Optional Redemption Date or the Special Redemption Date, as the case may be, will be made by the
Company in immediately available funds against presentation and surrender of such Debentures. At
the option of the Company, each installment of interest on the Debentures due on an Interest
Payment Date other than the Maturity Date, any Optional Redemption Date or the Special Redemption
Date, as the case may be, may be paid (i) by mailing checks for such interest payable to the order
of the holders of Debentures entitled thereto as they appear on the Debenture Register or (ii) by
wire transfer of immediately available funds to any account with a banking institution located in
the United States designated by such holders to the Paying Agent no later than the related record
date. Notwithstanding anything to the contrary contained in this Indenture or any



13









 






Debenture, if the Trust or the trustee of the Trust is the holder of any Debenture, then all
payments in respect of such Debenture shall be made by the Company in immediately available funds
when due at such place and to such account as may be designated by the Institutional Trustee.




          (b) The Company will treat the Debentures as indebtedness, and the amounts payable in respect
of such Debentures (including any Additional Amounts) as interest, for all U.S. federal income tax
purposes. All payments in respect of such Debentures will be made free and clear of U.S.
withholding tax, provided, that (i) any beneficial owner thereof that is a “United States person”
within the meaning of Section 7701(a)(30) of the Code (A) has provided an Internal Revenue Service
Form W-9 (or any substitute or successor form) in the manner required establishing its status as a
“United States person” for U.S. federal income tax purposes, and (B) the Internal Revenue Service
has neither notified the Issuer that the taxpayer identification number furnished by such
beneficial owner is incorrect nor notified the Issuer that there is underreporting by such
beneficial owner, and (ii) any beneficial owner thereof that is not a “United States person” within
the meaning of Section 7701(a)(30) of the Code has provided an Internal Revenue Service Form W-8
BEN, Internal Revenue Service Form W-8ECI, or Internal Revenue Service Form W-8EXP, as applicable
(or any substitute or successor form) in the manner required establishing its non-U.S. status for
U.S. federal income tax purposes.




          (c) As of the date of this Indenture, the Company represents that it has no intention to
exercise its right under Section 2.11 to defer payments of interest on the Debentures by commencing
an Extension Period.




          (d) As of the date of this Indenture, the Company represents that the likelihood that it would
exercise its right under Section 2.11 to defer payments of interest on the Debentures by commencing
an Extension Period at any time during which the Debentures are outstanding is remote because of
the restrictions that would be imposed on the Company’s ability to declare or pay dividends or
distributions on, or to redeem, purchase or make a liquidation payment with respect to, any of its
outstanding equity and on the Company’s ability to make any payments of principal of or premium, if
any, or interest on, or repurchase or redeem, any of its Debentures that rank pari passu in all
respects with or junior in interest to the Debentures.




          Section 3.02 Offices for Notices and Payments, etc.




          So long as any of the Debentures remain outstanding, the Company will maintain in Wilmington,
Delaware or in Stillwater, Oklahoma, an office or agency where the Debentures may be presented for
payment, an office or agency where the Debentures may be presented for registration of transfer and
for exchange as provided in this Indenture and an office or agency where notices and demands to or
upon the Company in respect of the Debentures or of this Indenture may be served. The Company will
give to the Trustee written notice of the location of any such office or agency and of any change
of location thereof. Until otherwise designated from time to time by the Company in a notice to the
Trustee, or specified as contemplated by Section 2.05, such office or agency for all of the above
purposes shall be the Principal Office of the Trustee. In case the Company shall fail to maintain
any such office or agency in Wilmington, Delaware or in Stillwater, Oklahoma, or shall fail to give
such notice of the location or of any change in the location thereof, presentations and demands may
be made and notices may be served at the Principal Office of the Trustee.




          In addition to any such office or agency, the Company may from time to time designate one or
more offices or agencies outside Wilmington, Delaware or Stillwater, Oklahoma where the Debentures
may be presented for registration of transfer and for exchange in the manner provided in this
Indenture, 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
Wilmington, Delaware or in Stillwater, Oklahoma for the purposes above mentioned. The Company will
give to the Trustee prompt written notice of any such designation or rescission thereof.




          Section 3.03 Appointments to Fill Vacancies in Trustee’s Office.




          The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 6.09, a Trustee, so that there shall at all times be a
Trustee hereunder.





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          Section 3.04 Provision as to Paying Agent.




          (a) If the Company shall appoint a Paying Agent other than the Trustee, it will cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree
with the Trustee, subject to the provision of this Section 3.04,





          (i) that it will hold all sums held by it as such agent for the payment of all payments
due on the Debentures (whether such sums have been paid to it by the Company or by any other
obligor on the Debentures) in trust for the benefit of the holders of the Debentures;




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




          (iii) that it will, at any time during the continuance of any Event of Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such
Paying Agent.



          (b) If the Company shall act as its own Paying Agent, it will, on or before each due date of
the payments due on the Debentures, set aside, segregate and hold in trust for the benefit of the
holders of the Debentures a sum sufficient to make such payments so becoming due and will notify
the Trustee in writing of any failure to take such action and of any failure by the Company (or by
any other obligor under the Debentures) to make any payment on the Debentures when the same shall
become due and payable.




          Whenever the Company shall have one or more Paying Agents for the Debentures, it will, on or
prior to each due date of the payments on the Debentures, deposit with a Paying Agent a sum
sufficient to pay all payments so becoming due, such sum to be held in trust for the benefit of the
Persons entitled thereto and (unless such Paying Agent is the Trustee) the Company shall promptly
notify the Trustee in writing of its action or failure to act.




          (c) Anything in this Section 3.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge with respect to the Debentures, or
for any other reason, pay, or direct any Paying Agent to pay, to the Trustee all sums held in trust
by the Company or any such Paying Agent, such sums to be held by the Trustee upon the same terms
and conditions herein contained.




          (d) Anything in this Section 3.04 to the contrary notwithstanding, the agreement to hold sums
in trust as provided in this Section 3.04 is subject to Sections 12.03 and 12.04.




          (e) The Company hereby initially appoints the Trustee to act as paying agent for the
Debentures (the “Paying Agent”).




          Section 3.05 Certificate to Trustee.




          The Company will deliver to the Trustee on or before 120 days after the end of each fiscal
year, so long as Debentures are outstanding hereunder, a Certificate stating that in the course of
the performance by the signers of their duties as officers of the Company they would normally have
knowledge of any default by the Company in the performance of any covenants of the Company
contained herein, stating whether or not they have knowledge of any such default and, if so,
specifying each such default of which the signers have knowledge and the nature thereof.




          Section 3.06 Additional Amounts.




          If and for so long as the Trust is the holder of all Debentures and is subject to or otherwise
required to pay (or is required to withhold from distributions to holders of Trust Securities) any
additional taxes (including withholding taxes), duties, assessments or other governmental charges
as a result of a Tax Event, the Company will pay such additional amounts (the “Additional Amounts”)
on the Debentures as shall be required so that the net amounts received and retained by the holders
of Trust Securities, after payment of all taxes (including withholding taxes), duties, assessments
or other governmental charges, will be equal to the amounts that such holders would have received
and retained had no such taxes (including withholding taxes), duties, assessments or other
governmental charges been imposed.




15









 








          Whenever in this Indenture or the Debentures there is a reference in any context to the
payment of principal of or premium, if any, or interest on the Debentures, such mention shall be
deemed to include mention of payments of the Additional Amounts provided for in this Section to the
extent that, in such context, Additional Amounts are, were or would be payable in respect thereof
pursuant to the provisions of this Section and express mention of the payment of Additional Amounts
(if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express mention is not made, provided, however,
that, notwithstanding anything to the contrary contained in this Indenture or any Debenture, the
deferral of the payment of interest during an Extension Period pursuant to Section 2.11 shall not
defer the payment of any Additional Amounts that may be due and payable.




          Section 3.07 Compliance with Consolidation Provisions.




          The Company will not, while any of the Debentures remain outstanding, consolidate with, or
merge into, any other Person, or merge into itself, or sell, convey, transfer or otherwise dispose
of all or substantially all of its property or capital stock to any other Person unless the
provisions of Article XI hereof are complied with.




          Section 3.08 Limitation on Dividends.




          If (i) there shall have occurred and be continuing a Default or an Event of Default, (ii) the
Company shall be in default with respect to its payment of any obligations under the Preferred
Securities Guarantee or (iii) the Company shall have given notice of its election to defer payments
of interest on the Debentures by extending the interest payment period as provided herein and such
period, or any extension thereof, shall have commenced and be continuing, then the Company may not
and shall not permit any Subsidiary to (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any of the Company’s or
such Subsidiary’s capital stock (other than payments of dividends or distributions to the Company
or payments of dividends from direct or indirect Subsidiaries of the Company to their parent
corporations, which also shall be direct or indirect subsidiaries of the Company) or make any
guarantee payments with respect to the foregoing or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any Junior Indebtedness (other than,
with respect to clauses (i) or (ii) above, (a) repurchases, redemptions or other acquisitions of
shares of capital stock of the Company in connection with any employment contract, benefit plan or
other similar arrangement with or for the benefit of one or more employees, officers, directors or
consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in
connection with the issuance of capital stock of the Company (or securities convertible into or
exercisable for such capital stock) as consideration in an acquisition transaction entered into
prior to the applicable Extension Period, Default or Event of Default, (b) as a result of any
exchange or conversion of any class or series of the Company’s capital stock (or any capital stock
of a Subsidiary of the Company) for any class or series of the Company’s capital stock or of any
class or series of the Company’s indebtedness for any class or series of the Company’s capital
stock, (c) the purchase of fractional interests in shares of the Company’s capital stock pursuant
to the conversion or exchange provisions of such capital stock or the security being converted or
exchanged, (d) any declaration of a dividend in connection with any stockholders’ rights plan, or
the issuance of rights, stock or other property under any stockholders’ rights plan, or the
redemption or repurchase of rights pursuant thereto, (e) any dividend in the form of stock,
warrants, options or other rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which the dividend is being
paid or ranks pari passu with or junior to such stock and any cash payments in lieu of fractional
shares issued in connection therewith, (f) a dividend or distribution on, a redemption, purchase or
acquisition of, or a liquidation payment with respect to equity securities of an Insured Depository
Institution subsidiary, or (g) payments under the Preferred Securities Guarantee).




          Section 3.09 Covenants as to the Trust.




          For so long as such Trust Securities remain outstanding, the Company shall maintain 100%
ownership of the Common Securities; provided, however, that any permitted successor
of the Company under this Indenture may succeed to the Company’s ownership of such Common
Securities. The Company, as owner of the Common Securities, shall use commercially reasonable
efforts to cause the Trust (a) to remain a statutory trust, except in connection with a
distribution of Debentures to the holders of Trust Securities in liquidation of the Trust, the
redemption of all of the Trust Securities or mergers, consolidations or amalgamations, each as
permitted by the Declaration; (b) to otherwise continue to be classified as a grantor trust for
United States federal income tax purposes; (c) to cause each holder of Trust Securities to be
treated as owning an undivided beneficial interest in the




16









 







Debentures; and (d) 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 any national securities exchange or other organization on which the Preferred Securities are
then quoted or listed (including, if applicable, the Nasdaq Global Select Market) 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 of the Trust due
to a Special Event, the Company shall use its best efforts to list such Debentures on the Nasdaq
Global Select Market or on such other exchange as the Preferred Securities are then listed.




          For so long as the Debentures shall remain Outstanding, the Company shall fulfill all
reporting and filing obligations under the Securities Exchange Act of 1934, as amended, as
applicable to companies having a class of securities registered under Section 12(b) or 12(g)
thereunder.




          Section 3.10 Additional Junior Indebtedness. The Company shall not, and it shall not cause
or permit any Subsidiary 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 additional Junior Indebtedness (i) that, by its terms, is expressly stated to be either junior
and subordinate or pari passu in all respects to the Debentures, and (ii) of which the Company has
notified (and, if then required under the applicable guidelines of the regulating entity, has
received approval from) the Federal Reserve, if the Company is a bank or financial holding company,
or the OTS, if the Company is a savings and loan holding company.




          Section 3.11 Subsidiary; Insured Depository Institution. So long as any of the Debentures
remain outstanding, at least one operating Subsidiary of the Company shall be an Insured Depository
Institution.




ARTICLE IV

LISTS




          Section 4.01 Securityholders’ Lists.




          The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee:




          (a) on each regular record date for an Interest Payment Date, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Securityholders of the Debentures
as of such record date; 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; except that no such lists need be
furnished under this Section 4.01 so long as the Trustee is in possession thereof by reason of its
acting as Debenture registrar.




          Section 4.02 Preservation and Disclosure of Lists.




          (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 (1) contained in the most
recent list furnished to it as provided in Section 4.01 or (2) received by it in the capacity of
Debentures registrar (if so acting) hereunder. The Trustee may destroy any list furnished to it as
provided in Section 4.01 upon receipt of a new list so furnished.




          (b) In case three or more holders of Debentures (hereinafter referred to as “applicants”)
apply in writing to the Trustee and furnish to the Trustee reasonable proof that each such
applicant has owned a Debenture for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to communicate with other
holders of Debentures with respect to their rights under this Indenture or under such Debentures
and is accompanied by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall within five Business Days after the receipt of such
application, at its election, either:





          (i) afford such applicants access to the information preserved at the time by the Trustee
in accordance with the provisions of subsection (a) of this Section 4.02, or



17









 






          (ii) inform such applicants as to the approximate number of holders of Debentures whose
names and addresses appear in the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this Section 4.02, and as to the
approximate cost of mailing to such Securityholders the form of proxy or other communication,
if any, specified in such application.



          If the Trustee shall elect not to afford such applicants access to such information, the
Trustee shall, upon the written request of such applicants, mail to each Securityholder of
Debentures whose name and address appear in the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this Section 4.02 a copy of the form of proxy
or other communication which is specified in such request with reasonable promptness after a tender
to the Trustee of the material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender, the Trustee shall mail
to such applicants and file with the Securities and Exchange Commission, if permitted or required
by applicable law, together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of
the holders of all Debentures, as the case may be, or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If said Commission, as permitted or
required by applicable law, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, said Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained have been met and
shall enter an order so declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.




          (c) Each and every holder of Debentures, by receiving and holding the same, agrees with the
Company and the Trustee that none of the Company, the Trustee or any Paying Agent shall be held
accountable by reason of the disclosure of any such information as to the names and addresses of
the holders of Debentures in accordance with the provisions of subsection (b) of this Section 4.02,
regardless of the source from which such information was derived, and that the Trustee shall not be
held accountable by reason of mailing any material pursuant to a request made under said subsection
(b).




          Section 4.03 Reports by Trustee.




          (a) The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act, including, without
limitation, Section 313(b) thereof, at the times and in the manner provided pursuant thereto. The
Trustee shall comply with Section 313(c) of the Trust Indenture Act in transmitting such reports.




          (b) Reports so required to be transmitted at stated intervals of not more than 12 months shall
be transmitted no later than thirty days after September 15 in each calendar year, commencing with
the first September 15 after the first issuance of Securities under this Indenture.




          (c) A copy of each such report shall, at the time of such transmission to Holders, be filed by
the Trustee with each securities exchange upon which any Securities are listed, with the Commission
and with the Company. The Company will notify the Trustee when any Securities are listed on any
securities exchange.




          Section 4.04 Reports by Company.




          The Company shall file with the Trustee and the Commission, and transmit to Holders, copies of
such information, documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided in the Trust Indenture
Act; provided that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same are filed with the Commission.




18









 








ARTICLE V

REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS




          Section 5.01 Events of Default.




          “Event of Default,” wherever used herein, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):




          (a) the Company defaults in the payment of any interest upon any Debenture, including any
Additional Interest in respect thereof, following the nonpayment of any such interest for twenty or
more consecutive quarterly interest payment periods, and the continuation of such default for a
period of thirty days following the end of the Extension Period; or




          (b) the Company defaults in the payment of all or any part of the principal of (or premium, if
any, on) any Debentures as and when the same shall become due and payable either at maturity, upon
redemption, by declaration of acceleration or otherwise; or




          (c) the Company defaults in the performance of, or breaches, any of its covenants or
agreements in this Indenture or in the terms of the Debentures established as contemplated in this
Indenture (other than a covenant or agreement a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and continuance of such default or breach for a
period of 60 days after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the holders of at least 25% in aggregate principal
amount of the outstanding Debentures, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or




          (d) a court of competent jurisdiction shall enter a decree or order for relief in respect of
the Company in an involuntary case under any applicable bankruptcy, insolvency, reorganization or
other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part
of its property, or ordering the winding-up or liquidation of its affairs and such decree or order
shall remain unstayed and in effect for a period of 90 consecutive days; or




          (e) the Company shall commence a voluntary case under any applicable bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, shall consent to the entry of an
order for relief in an involuntary case under any such law, or shall consent to the appointment of
or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or
other similar official) of the Company or of any substantial part of its property, or shall make
any general assignment for the benefit of creditors, or shall fail generally to pay its debts as
they become due; or




          (f) a court or administrative or governmental agency or body shall enter a decree or order for
the appointment of a receiver of a Major Bank Subsidiary or all or substantially all of its
property in any liquidation, insolvency or similar proceeding with respect to such Major Bank
Subsidiary or all or substantially all of its property; or




          (g) a Major Bank Subsidiary shall consent to the appointment of a receiver for it or all or
substantially all of its property in any liquidation, insolvency or similar proceeding with respect
to it or all or substantially all of its property; or




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




          If an Acceleration Event of Default occurs and is continuing with respect to the Debentures,
then, and in each and every such case, unless the principal of 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 Securityholders), may declare the entire principal of the Debentures
and the interest accrued thereon, if any, to be due and payable immediately, and




19









 







upon any such declaration the same shall become immediately due and
payable. If an Event of Default under Section 5.1(b) or (c) occurs and is continuing with respect
to the Debentures, then, and in each and every such case, unless the principal of 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 Securityholders), may proceed to remedy the default or
breach thereunder by such appropriate judicial proceedings as the Trustee or such holders shall
deem most effectual to remedy the defaulted covenant or enforce the provisions of this Indenture so
breached, either by suit in equity or by action at law, for damages or otherwise. Notwithstanding
anything to the contrary in this Indenture, if at any time during the period in which this
Indenture remains in force and effect, the Company ceases or elects to cease to be subject to the
supervision and regulation of both of the Federal Reserve or Office of Thrift Supervision (or
successor agencies), then any event described in Sections 5.1(b) or (c) shall be deemed to be an
Acceleration Event of Default resulting in an acceleration of payment of the Debentures.




          The foregoing provisions, however, are subject to the condition that if, 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, (i) the Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Debentures and the principal of and premium, if any,
on the Debentures which shall have become due otherwise than by acceleration (with interest upon
such principal and premium, if any, and Additional Interest) and such amount as shall be sufficient
to cover reasonable compensation to the Trustee and each predecessor Trustee, their respective
agents, attorneys and counsel, and all other amounts due to the Trustee pursuant to Section 6.6, if
any, and (ii) all Events of Default under this Indenture, other than the non-payment of the
principal of or premium, if any, on Debentures which shall have become due by acceleration, shall
have been cured, waived or otherwise remedied as provided herein — then and in every such case the
holders of a majority in aggregate principal amount of the Debentures then outstanding, by written
notice to the Company and to the Trustee, may waive all defaults and rescind and annul such
declaration and its consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent thereon.




          In case the Trustee shall have proceeded to enforce any right 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, the Trustee and the holders of the Debentures shall be restored respectively to
their several positions and rights hereunder, and all rights, remedies and powers of the Company,
the Trustee and the holders of the Debentures shall continue as though no such proceeding had been
taken.




          Section 5.02 Payment of Debentures on Default; Suit Therefor.




          The Company covenants that upon the occurrence of an Event of Default pursuant to Section
5.01(a) or (b) and upon demand of the Trustee, the Company will 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 Debentures, including Additional Interest accrued on the Debentures; and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of collection, including
a reasonable compensation to the Trustee, its agents, attorneys and counsel, and any other amounts
due to the Trustee under Section 6.06. In case the Company shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be
entitled and empowered to institute any actions 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
any other obligor on such Debentures and collect in the manner provided by law out of the property
of the Company or any other obligor on such Debentures wherever situated the moneys adjudged or
decreed to be payable.




          In case there shall be pending proceedings for the bankruptcy or for the reorganization of the
Company or any other obligor on the Debentures under Bankruptcy Law, or in case a receiver or
trustee shall have been appointed for the property of the Company or such other obligor, or in the
case of any other similar judicial proceedings relative to the Company or other obligor upon the
Debentures, or to the creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Debentures shall then be due and payable as therein expressed or by acceleration or otherwise and irrespective of
whether the Trustee shall




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have made any demand pursuant to the provisions of this Section 5.02,
shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and
prove a claim or claims for the whole amount of principal and interest owing and unpaid in respect
of the Debentures and, in case of any judicial proceedings, to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and each predecessor Trustee, and
their respective agents, attorneys and counsel, and for reimbursement of all other amounts due to
the Trustee under Section 6.06) and of the Securityholders allowed in such judicial proceedings
relative to the Company or any other obligor on the Debentures, or to the creditors or property of
the Company or such other obligor, unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Debentures in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or Person
performing similar functions in comparable proceedings, and to collect and receive any moneys or
other property payable or deliverable on any such claims, and to distribute the same after the
deduction of its charges and expenses; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the Securityholders to make such payments to the
Trustee, and, in the event that the Trustee shall consent to the making of such payments directly
to the Securityholders, to pay to the Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Trustee, each predecessor Trustee and their respective agents,
attorneys and counsel, and all other amounts due to the Trustee under Section 6.06.




          Nothing herein contained shall be construed to authorize the Trustee to authorize or consent
to or accept or adopt on behalf of any Securityholder 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 Securityholder in any such proceeding.




          All rights of action and of asserting claims under this Indenture, or under any of the
Debentures, may be enforced by the Trustee without the possession of any of the 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 be for the ratable benefit of the holders of the
Debentures.




          In any proceedings brought by the Trustee (and also any proceedings involving the
interpretation of any provision of this Indenture to which the Trustee shall be a party), the
Trustee shall be held to represent all the holders of the Debentures, and it shall not be necessary
to make any holders of the Debentures parties to any such proceedings.




          Section 5.03 Application of Moneys Collected by Trustee.




          Any moneys collected by the Trustee shall be applied in the following order, at the date or
dates fixed by the Trustee for the distribution of such moneys, upon presentation of the several
Debentures in respect of which moneys have been collected, and stamping thereon the payment, if
only partially paid, and upon surrender thereof if fully paid:




          First: To the payment of costs and expenses incurred by, and reasonable fees of, the Trustee,
its agents, attorneys and counsel, and of all other amounts due to the Trustee under Section 6.06;




          Second: To the payment of all Senior Indebtedness of the Company if and to the extent required
by Article XV;




          Third: To the payment of the amounts then due and unpaid upon Debentures, in respect of which
or for the benefit of which money has been collected, ratably, without preference or priority of
any kind, according to the amounts due upon such Debentures; and




          Fourth: The balance, if any, to the Company.




          Section 5.04 Proceedings by Securityholders.




          No holder of any Debenture shall have any right to institute any suit, action or proceeding
for any remedy hereunder, unless such holder previously shall have given to the Trustee written
notice of an Event of Default with respect to the Debentures and unless the holders of not less
than 25% in aggregate principal amount of the Debentures then outstanding shall have given the Trustee a written request to institute such
action, suit or




21









 







proceeding and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred thereby, and the Trustee for
60 days after its receipt of such notice, request and offer of indemnity shall have failed to
institute any such action, suit or proceeding; provided, that no holder of Debentures shall
have any right to prejudice the rights of any other holder of Debentures, obtain priority or
preference over any other such holder or 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.




          Notwithstanding any other provisions in this Indenture, the right of any holder of any
Debenture to receive payment of the principal of and premium, if any, and interest on such
Debenture when due, or to institute suit for the enforcement of any such payment, shall not be
impaired or affected without the consent of such holder. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.




          Section 5.05 Proceedings by Trustee.




          In case of an Event of Default, the Trustee may in its discretion proceed to protect and
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 by suit in
equity or by action at law or by proceeding 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.




          Section 5.06 Remedies Cumulative and Continuing.




          Except as otherwise provided in Section 2.06, all powers and remedies given by this Article V
to the Trustee or to the Securityholders 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 the Debentures, and 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 an acquiescence therein; and, subject to the provisions of Section 5.04,
every power and remedy given by this Article V or by law to the Trustee or to the Securityholders
may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by
the Securityholders.




          Section 5.07 Direction of Proceedings and Waiver of Defaults by Majority of
Securityholders.




          The holders of a majority in aggregate principal amount of the Debentures affected at the time
outstanding and, if the Debentures are held by the Trust or a trustee of the Trust, the holders of
a majority in aggregate liquidation amount of the outstanding Preferred Securities of the Trust
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 with
respect to such Debentures; provided, however, that if the Debentures are held by
the Trust or a trustee of the Trust, such time, method and place or such exercise, as the case may
be, may not be so directed until the holders of a majority in aggregate liquidation amount of the
outstanding Preferred Securities of the Trust shall have directed such time, method and place or
such exercise, as the case may be; provided, further, that (subject to the
provisions of Section 6.01) the Trustee shall have the right to decline to follow any such
direction if the Trustee shall determine that the action so directed would be unjustly prejudicial
to the holders not taking part in such direction or if the Trustee being advised by counsel
determines that the action or proceeding so directed may not lawfully be taken or if a Responsible
Officer of the Trustee shall determine that the action or proceedings so directed would involve the
Trustee in personal liability. Prior to any declaration of acceleration of the maturity of the
Debentures, the holders of a majority in aggregate principal amount of the Debentures at the time
outstanding may on behalf of the holders of all of the Debentures waive (or modify any previously
granted waiver of) any past Default or Event of Default and its consequences, except a default (a)
in the payment of principal of or premium, if any, or interest on any of the Debentures, (b) in
respect of covenants or provisions hereof which cannot be modified or amended without the consent
of the holder of each Debenture affected, or (c) in respect of the covenants contained in Section
3.09; 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 aggregate




22









 







liquidation amount of the outstanding Preferred 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 or
modification to such waiver shall not be effective until each holder of the outstanding Preferred
Securities of the Trust shall have consented to such waiver or modification to such waiver. Upon
any such waiver or modification to such waiver, the Default or Event of 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 or modification to such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon. Whenever any Default or
Event of Default hereunder shall have been waived as permitted by this Section, said Default or
Event of Default shall for all purposes of the Debentures and this Indenture be deemed to have been
cured and to be not continuing.




          Section 5.08 Notice of Defaults.




          The Trustee shall, within 90 days after a Responsible Officer of the Trustee shall have actual
knowledge or received written notice of the occurrence of a default with respect to the Debentures,
mail to all Securityholders, as the names and addresses of such holders appear upon the Debenture
Register, notice of all defaults with respect to the Debentures known to the Trustee, unless such
defaults shall have been cured before the giving of such notice (the term “default” for the purpose
of this Section is hereby defined to be any event specified in subparagraphs (a) through (f) of
Section 5.01, not including periods of grace, if any, provided for therein); provided,
that, except in the case of default in the payment of the principal of or premium, if any,
or interest on any of the Debentures, the Trustee shall be protected in withholding such notice if
and so long as a Responsible Officer of the Trustee in good faith determines that the withholding
of such notice is in the interests of the Securityholders.




          Section 5.09 Undertaking to Pay Costs.




          All parties to this Indenture agree, and each holder of any Debenture 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 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding in the aggregate more than 10% in principal amount of the outstanding
Debentures (or, if such Debentures are held by the Trust or a trustee of the Trust, more than 10%
in liquidation amount of the outstanding Preferred Securities),to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of or premium, if any, or
interest on any Debenture against the Company on or after the same shall have become due and
payable or to any suit instituted in accordance with Section 14.12.




ARTICLE VI

CONCERNING THE TRUSTEE




          Section 6.01 Duties and Responsibilities of Trustee.




          With respect to the holders of Debentures issued hereunder, the Trustee, prior to the
occurrence of an Event of Default and after the curing or waiving of all Events of Default which
may have occurred, undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default with respect to the Debentures has occurred
(which has not been cured or waived), the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of such person’s own
affairs.




          No provision of this Indenture shall be construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure to act or its own willful misconduct or bad
faith, except that:




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





          (i) the duties and obligations of the Trustee with respect to the Debentures shall be
determined solely by the express provisions of this Indenture, and the Trustee shall not be
liable except for the performance of



23









 







such duties and obligations with respect to the
Debentures as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and




          (ii) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but, in the case of any such certificates or opinions which 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;



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




          (c) 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 Securityholders pursuant to Section 5.07,
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; and




          (d) the Trustee shall not be charged with knowledge of any Default or Event of Default with
respect to the Debentures unless either (1) a Responsible Officer shall have actual knowledge of
such Default or Event of Default or (2) written notice of such Default or Event of Default shall
have been given to the Trustee by the Company or any other obligor on the Debentures or by any
holder of the Debentures, except that the Trustee shall be deemed to have knowledge of any Event of
Default pursuant to Sections 5.01(a) or 5.01(b) hereof (other than an Event of Default resulting
from the default in the payment of Additional Amounts if the Trustee does not have actual knowledge
or written notice that such payment is due and payable).




          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.




          Section 6.02 Reliance on Documents, Opinions, etc.




          Except as otherwise provided in Section 6.01:




          (a) the Trustee may conclusively rely and shall be fully protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, note, debenture or other paper or document believed by it in good
faith to be genuine and to have been signed or presented by the proper party or parties;




          (b) any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be
herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of the Company;




          (c) the Trustee may consult with counsel of its selection and any advice or Opinion of Counsel
shall be full and complete authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;




          (d) 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 Securityholders, pursuant to
the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby;




          (e) the Trustee shall not be liable for any action taken or omitted by it in good faith and
reasonably believed by it to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture; nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default with respect to the Debentures (which 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 their exercise, as a prudent person would exercise or use under the circumstances in
the conduct of such person’s own affairs;




24









 








          (f) 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, debenture, coupon or other paper or document, unless requested in writing to
do so by the holders of a majority in aggregate principal amount of the outstanding Debentures
affected thereby; 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 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 expense or liability as a condition to so proceeding; and




          (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents (including any Authenticating Agent) or
attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of
any such agent or attorney appointed by it with due care.




          Section 6.03 No Responsibility for Recitals, etc.




          The recitals contained herein and in the Debentures (except in the certificate of
authentication of the Trustee or the Authenticating Agent) shall be taken as the statements of the
Company, and the Trustee and the Authenticating Agent assume no responsibility for the correctness
of the same. The Trustee and the Authenticating Agent make no representations as to the validity or
sufficiency of this Indenture or of the Debentures. The Trustee and the Authenticating Agent shall
not be accountable for the use or application by the Company of any Debentures or the proceeds of
any Debentures authenticated and delivered by the Trustee or the Authenticating Agent in conformity
with the provisions of this Indenture.




          Section 6.04 Trustee, Authenticating Agent, Paying Agents, Transfer Agents or Registrar
May Own Debentures.




          The Trustee, any Authenticating Agent, any Paying Agent, any transfer agent or any Debenture
registrar, in its individual or any other capacity, may become the owner or pledgee of Debentures
with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
transfer agent or Debenture registrar.




          Section 6.05 Moneys to be Held in Trust.




          Subject to the provisions of Section 12.04, all moneys received by the Trustee or any Paying
Agent shall, until used or applied as herein provided, be held in trust for the purpose for which
they were received, but need not be segregated from other funds except to the extent required by
law. The Trustee and any Paying Agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company. So long as no
Event of Default shall have occurred and be continuing, all interest allowed on any such moneys, if
any, shall be paid from time to time to the Company upon the written order of the Company, signed
by the Chairman of the Board of Directors, the President, the Chief Operating Officer, a Vice
President, the Treasurer or an Assistant Treasurer of the Company.




          Section 6.06 Compensation and Expenses of Trustee.




          The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as shall be agreed to in writing between the Company and
the Trustee (which shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), and the Company will pay or reimburse the Trustee upon its written
request for all documented 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 reasonable expenses and disbursements of its counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advance that arises from its
negligence, willful misconduct or bad faith. The Company also covenants to indemnify each of the
Trustee (including in its individual capacity) and any predecessor Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any and all loss, damage,
claim, liability or expense including taxes (other than taxes based on the income of the Trustee),
except to the extent such loss, damage, claim, liability or expense results from the negligence,
willful misconduct or bad faith of such indemnitee, arising out of or in connection with the
acceptance or administration of this trust, including the costs and expenses of defending
itself against any claim or liability in the premises. The obligations of the Company under this
Section to compensate and indemnify the




25









 







Trustee and to pay or reimburse the Trustee for documented
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.




          Without prejudice to any other rights available to the Trustee under applicable law, when the
Trustee incurs expenses or renders services in connection with an Event of Default specified in
clause (d) (e) or (f) of Section 5.01, the expenses (including the reasonable charges and expenses
of its counsel) and the compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or other similar law.




          The provisions of this Section shall survive the resignation or removal of the Trustee and the
defeasance or other termination of this Indenture.




          Notwithstanding anything in this Indenture or any Debenture to the contrary, the Trustee shall
have no obligation whatsoever to advance funds to pay any principal of or interest on or other
amounts with respect to the Debentures or otherwise advance funds to or on behalf of the Company.




          Section 6.07 Officers’ Certificate as Evidence.




          Except as otherwise provided in Sections 6.01 and 6.02, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence,
willful misconduct 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, willful misconduct or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken or omitted by it under the provisions of this Indenture
upon the faith thereof.




          Section 6.08 Eligibility of Trustee.




          The Trustee hereunder shall at all times be a U.S. Person that is a banking corporation or
national association organized and doing business under the laws of the United States of America or
any state thereof or of the District of Columbia and authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least fifty million U.S.
dollars ($50,000,000) and subject to supervision or examination by federal, state, or District of
Columbia authority , and otherwise eligible under to the Trust Indenture Act to act as trustee
hereunder. If such banking corporation or national association 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 the combined capital and surplus of such
corporation or national association shall be deemed to be its combined capital and surplus as set
forth in its most recent records 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, notwithstanding that such corporation or
national association shall be otherwise eligible and qualified under this Article.




          In case at any time the Trustee shall cease to be eligible in accordance with the provisions
of this Section, the Trustee shall resign immediately in the manner and with the effect specified
in Section 6.09.




          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 Company shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.




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




26









 








          Section 6.09 Resignation or Removal of Trustee.




          (a) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign by
giving written notice of such resignation to the Company and by mailing notice thereof, at the
Company’s expense, to the holders of the Debentures at their addresses as they shall appear on the
Debenture Register. Upon receiving such notice of resignation, the Company shall promptly appoint a
successor trustee or trustees by written instrument, in duplicate, executed by order of its 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 to the affected
Securityholders, the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee, or any Securityholder who has been a bona fide holder of a
Debenture or Debentures for at least six months may, subject to the provisions of Section 5.09, on
behalf of himself or herself 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 of the following shall occur:





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




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




          (iii) the Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed, 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 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 Section 5.09, if no successor Trustee shall have been so appointed and
have accepted appointment within 30 days of the occurrence of any of (i), (ii) or (iii) above, any
Securityholder who has been a bona fide holder of a Debenture or Debentures for at least six months
may, on behalf of himself or herself and all others similarly situated, petition 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) Upon prior written notice to the Company and the Trustee, the holders of a majority in
aggregate principal amount of the Debentures at the time outstanding may at any time remove the
Trustee and nominate a successor Trustee, which shall be deemed appointed as successor Trustee
unless within ten Business Days after such nomination the Company objects thereto, in which case or
in the case of a failure by such holders to nominate a successor Trustee, the Trustee so removed or
any Securityholder, upon the terms and conditions and otherwise as in subsection (a) of this
Section, may petition any court of competent jurisdiction for an appointment of a successor.




          (d) Any resignation or removal of the Trustee and appointment of a successor Trustee pursuant
to any of the provisions of this Section shall become effective upon acceptance of appointment by
the successor Trustee as provided in Section 6.10.




          Section 6.10 Acceptance by Successor Trustee.




          Any successor Trustee appointed as provided in Section 6.09 shall execute, acknowledge and
deliver to the Company and to its predecessor Trustee an indenture supplemental hereto which shall
contain such provisions as shall be deemed necessary or desirable to confirm that all of the
rights, powers, trusts and duties of the retiring Trustee shall be vested in the successor Trustee,
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, duties and obligations with respect to the Debentures of its predecessor hereunder,
with like effect as if originally named as Trustee herein; but, nevertheless, on the written
request of the Company or of




27









 







the successor Trustee, the Trustee ceasing to act shall, upon payment of the amounts then due
it pursuant to the provisions of Section 6.06, execute and deliver an instrument transferring to
such successor Trustee all the rights and powers of the Trustee so ceasing to act and shall duly
assign, transfer and deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Company shall execute any and
all instruments in writing for more fully and certainly vesting in and confirming to such successor
Trustee all such rights and powers. Any Trustee ceasing to act shall, nevertheless, retain a lien
upon all property or funds held or collected by such Trustee to secure any amounts then due it
pursuant to the provisions of Section 6.06.




          No successor Trustee shall accept appointment as provided in this Section unless at the time
of such acceptance such successor Trustee shall be eligible and qualified under the provisions of
Section 6.08.




          In no event shall a retiring Trustee be liable for the acts or omissions of any successor
Trustee hereunder.




          Upon acceptance of appointment by a successor Trustee as provided in this Section, the Company
shall mail notice of the succession of such Trustee hereunder to the holders of Debentures at their
addresses as they shall appear on the Debenture Register. If the Company fails to mail such notice
within ten Business Days after the acceptance of appointment by the successor Trustee, the
successor Trustee shall cause such notice to be mailed at the expense of the Company.




          Section 6.11 Succession by Merger, etc.




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




          In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture any of the Debentures shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor Trustee, and deliver
such Debentures so authenticated; and in case at that time any of the Debentures shall not have
been authenticated, any successor to the Trustee may authenticate such Debentures either in the
name of any predecessor hereunder or in the name of the successor Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Debentures or in this
Indenture provided that the certificate of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any predecessor
Trustee or authenticate Debentures in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.




          Section 6.12 Authenticating Agents.




          There may be one or more Authenticating Agents appointed by the Trustee upon the request of
the Company with power to act on its behalf and subject to its direction in the authentication and
delivery of Debentures issued upon exchange or registration of transfer thereof as fully to all
intents and purposes as though any such Authenticating Agent had been expressly authorized to
authenticate and deliver Debentures; provided, however, that the Trustee shall have
no liability to the Company for any acts or omissions of the Authenticating Agent with respect to
the authentication and delivery of Debentures. Any such Authenticating Agent shall at all times be
a corporation organized and doing business under the laws of the United States or of any state
thereof or of the District of Columbia authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of at least $50,000,000 and being subject to supervision or
examination by federal, state or District of Columbia authority. If such corporation publishes
reports of condition at least annually pursuant to law or the requirements of such authority, then
for the purposes of this Section 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. If at any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and with the effect
herein specified in this Section.




          Any corporation into which any Authenticating Agent may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, consolidation or conversion
to which any Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust




28









 







business of any Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this Section without the
execution or filing of any paper or any further act on the part of the parties hereto or such
Authenticating Agent.




          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 terminate the agency of any Authenticating
Agent with respect to the Debentures by giving written notice of termination to such Authenticating
Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible under this Section, the
Trustee may, and upon the request of the Company shall, promptly appoint a successor Authenticating
Agent eligible under this Section, shall give written notice of such appointment to the Company and
shall mail notice of such appointment to all holders of Debentures as the names and addresses of
such holders appear on the Debenture Register. Any successor Authenticating Agent, upon acceptance
of its appointment hereunder, shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally named as
Authenticating Agent herein.




          The Company agrees to pay to any Authenticating Agent from time to time reasonable
compensation for its services. Any Authenticating Agent shall have no responsibility or liability
for any action taken by it as such in accordance with the directions of the Trustee.




          Section 6.13 Preferential Collection of Claims Against 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 VII

CONCERNING THE SECURITYHOLDERS




          Section 7.01 Action by Securityholders.




          Whenever in this Indenture it is provided that the holders of a specified percentage in
aggregate principal amount of the Debentures or aggregate liquidation amount of the Preferred
Securities 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 specified percentage have joined therein may be evidenced (a)
by any instrument or any number of instruments of similar tenor executed by such Securityholders or
holders of Preferred Securities, as the case may be, in person or by agent or proxy appointed in
writing, or (b) by the record of such holders of Debentures voting in favor thereof at any meeting
of such Securityholders duly called and held in accordance with the provisions of Article VIII or
of such holders of Preferred Securities duly called and held in accordance with the provisions of
the Declaration, or (c) by a combination of such instrument or instruments and any such record of
such a meeting of such Securityholders or holders of Preferred Securities, as the case may be, or
(d) by any other method the Trustee deems satisfactory.




          If the Company shall solicit from the Securityholders any request, demand, authorization,
direction, notice, consent, waiver or other action or revocation of the same, the Company may, at
its option, as evidenced by an Officers’ Certificate, fix in advance a record date for such
Debentures for the determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action or revocation of the same, 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 or revocation of the same
may be given before or after the record date, but only the Securityholders of record at the close
of business on the record date shall be deemed to be Securityholders for the purposes of
determining whether Securityholders 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 or revocation of the same, 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 Securityholders 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.




29









 








          Section 7.02 Proof of Execution by Securityholders.




          Subject to the provisions of Sections 6.01, 6.02 and 8.05, proof of the execution of any
instrument by a Securityholder or such Securityholder’s agent or proxy shall be sufficient if made
in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in
such manner as shall be satisfactory to the Trustee. The ownership of Debentures shall be proved by
the Debenture Register or by a certificate of the Debenture registrar. The Trustee may require such
additional proof of any matter referred to in this Section as it shall deem necessary.




          The record of any Securityholders’ meeting shall be proved in the manner provided in Section
8.06.




          Section 7.03 Who Are Deemed Absolute Owners.




          Prior to due presentment for registration of transfer of any Debenture, the Company, the
Trustee, any Authenticating Agent, any Paying Agent, any transfer agent and any Debenture registrar
may deem the Person in whose name such Debenture shall be registered upon the Debenture Register to
be, and may treat such Person as, the absolute owner of such Debenture (whether or not such
Debenture shall be overdue) for the purpose of receiving payment of or on account of the principal
of and premium, if any, and interest on such Debenture and for all other purposes; and none of the
Company, the Trustee, any Authenticating Agent, any Paying Agent, any transfer agent or any
Debenture registrar shall be affected by any notice to the contrary. All such payments so made to
any holder for the time being or upon such holder’s order shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any
such Debenture.




          Section 7.04 Debentures Owned by Company Deemed Not Outstanding.




          In determining whether the holders of the requisite aggregate principal amount of Debentures
have concurred in any direction, consent or waiver under this Indenture, Debentures which are owned
by the Company or any other obligor on the Debentures or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the Company (other
than the Trust) or any other obligor on the Debentures shall be disregarded and deemed not to be
outstanding for the purpose of any such determination, provided, that for the purposes of
determining whether the Trustee shall be protected in relying on any such direction, consent or
waiver, only Debentures which a Responsible Officer of the Trustee actually knows are so owned
shall be so disregarded. Debentures so owned which have been pledged in good faith may be regarded
as outstanding for the purposes of this Section if the pledgee shall establish to the satisfaction
of the Trustee the pledgee’s right to vote such Debentures and that the pledgee is not the Company
or any such other obligor or Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any such other obligor. In the 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 7.05 Revocation of Consents; Future Holders Bound.




          At any time prior to (but not after) the evidencing to the Trustee, as provided in Section
7.01, of the taking of any action by the holders of the percentage in aggregate principal amount of
the Debentures specified in this Indenture in connection with such action, any holder (in cases
where no record date has been set pursuant to Section 7.01) or any holder as of an applicable
record date (in cases where a record date has been set pursuant to Section 7.01) of a Debenture (or
any Debenture issued in whole or in part in exchange or substitution therefor) the serial number of
which 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 at the Principal Office of the
Trustee and upon proof of holding as provided in Section 7.02, revoke such action so far as
concerns such Debenture (or so far as concerns the principal amount represented by any exchanged or
substituted 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 or substitution therefor or on registration of
transfer thereof, irrespective of whether or not any notation in regard thereto is made upon such
Debenture or any Debenture issued in exchange or substitution therefor.




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ARTICLE VIII

SECURITYHOLDERS’ MEETINGS




          Section 8.01 Purposes of Meetings.




          A meeting of Securityholders may be called at any time and from time to time pursuant to the
provisions of this Article VIII for any of the following purposes:




          (a) to give any notice to the Company or to the Trustee, or to give any directions to the
Trustee, or to consent to the waiving of any default hereunder and its consequences, or to take any
other action authorized to be taken by Securityholders pursuant to any of the provisions of Article
V;




          (b) to remove the Trustee and nominate a successor trustee pursuant to the provisions of
Article VI;




          (c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to
the provisions of Section 9.02; or




          (d) to take any other action authorized to be taken by or on behalf of the holders of any
specified aggregate principal amount of such Debentures under any other provision of this Indenture
or under applicable law.




          Section 8.02 Call of Meetings by Trustee.




          The Trustee may at any time call a meeting of Securityholders to take any action specified in
Section 8.01, to be held at such time and at such place in The City of New York, the Borough of
Manhattan, or Wilmington, Delaware, as the Trustee shall determine. Notice of every meeting of the
Securityholders, setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be mailed to holders of Debentures affected at
their addresses as they shall appear on the Debentures Register. Such notice shall be mailed not
less than 20 nor more than 180 days prior to the date fixed for the meeting.




          Section 8.03 Call of Meetings by Company or Securityholders.




               In case at any time the Company pursuant to a Board Resolution, or the holders of at least 10%
in aggregate principal amount of the Debentures, as the case may be, then outstanding, shall have
requested the Trustee to call a meeting of Securityholders, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of such request, then the Company or
such Securityholders may determine the time and the place in Wilmington, Delaware or Stillwater,
Oklahoma for such meeting and may call such meeting to take any action authorized in Section 8.01,
by mailing notice thereof as provided in Section 8.02.



          Section 8.04 Qualifications for Voting.




          To be entitled to vote at any meeting of Securityholders, a Person shall be (a) a holder of
one or more Debentures or (b) a Person appointed by an instrument in writing as proxy by a holder
of one or more Debentures. The only Persons who shall be entitled to be present or to speak at any
meeting of Securityholders shall be the Persons entitled to vote at such meeting and their counsel
and any representatives of the Trustee and its counsel and any representatives of the Company and
its counsel.




          Section 8.05 Regulations.




          Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Securityholders, in regard to proof of the
holding of Debentures and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the conduct of the meeting as it
shall deem appropriate.




          The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the Company or by Securityholders as provided in
Section 8.03, in which case the Company or the Securityholders calling the meeting, as the case may
be, shall in like manner appoint a temporary




31









 







chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by
majority vote at the meeting.




          Subject to the provisions of Section 7.04, at any meeting each holder of Debentures with
respect to which such meeting is being held or proxy therefor shall be entitled to one vote for
each $1,000.00 principal amount of Debentures held or represented by such holder; provided,
however, that no vote shall be cast or counted at any meeting in respect of any Debenture
challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The
chairman of the meeting shall have no right to vote other than by virtue of Debentures held by such
chairman or instruments in writing as aforesaid duly designating such chairman as the Person to
vote on behalf of other Securityholders. Any meeting of Securityholders duly called pursuant to the
provisions of Section 8.02 or 8.03 may be adjourned from time to time by a majority of those
present, whether or not constituting a quorum, and the meeting may be held as so adjourned without
further notice.




          Section 8.06 Voting.




          The vote upon any resolution submitted to any meeting of holders of Debentures with respect to
which such meeting is being held shall be by written ballots on which shall be subscribed the
signatures of such holders or of their representatives by proxy and the serial number or numbers of
the Debentures held or represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified written reports in
triplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Securityholders shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of
the notice of the meeting and showing that said notice was mailed as provided in Section 8.02. The
record shall show the serial numbers of the Debentures voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one of the duplicates shall be delivered to the Company and the other
to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting.




          Any record so signed and verified shall be conclusive evidence of the matters therein stated.




          Section 8.07 Quorum; Actions.




          The Persons entitled to vote a majority in aggregate principal amount of the Debentures then
outstanding shall constitute a quorum for a meeting of Securityholders; provided,
however, that if any action is to be taken at such meeting with respect to a consent,
waiver, request, demand, notice, authorization, direction or other action which may be given by the
holders of not less than a specified percentage in aggregate principal amount of the Debentures
then outstanding, the Persons holding or representing such specified percentage in aggregate
principal amount of the Debentures then outstanding will constitute a quorum. In the absence of a
quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened
at the request of Securityholders, be dissolved. In any other case, the meeting may be adjourned
for a period of not less than 10 days as determined by the permanent chairman of the meeting prior
to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days as determined by
the permanent chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of
the reconvening of any adjourned meeting shall be given as provided in Section 8.02, except that
such notice need be given only once not less than five days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the aggregate principal amount of the Debentures
then outstanding which shall constitute a quorum.




          Except as limited by the proviso in the first paragraph of Section 9.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted by the affirmative vote of the holders of a majority in aggregate
principal amount of the Debentures then outstanding; provided, however, that,
except as limited by the proviso in the first paragraph of Section 9.02, any resolution with
respect to any consent, waiver, request, demand, notice, authorization, direction or other action
that this Indenture expressly provides may be given by the holders of not less than a specified
percentage in outstanding principal amount of the Debentures may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a




32









 







quorum is present as aforesaid only by the affirmative vote of the holders of not less than
such specified percentage in aggregate principal amount of the Debentures then outstanding.




          Any resolution passed or decision taken at any meeting of holders of Debentures duly held in
accordance with this Section shall be binding on all the Securityholders, whether or not present or
represented at the meeting.




ARTICLE IX

SUPPLEMENTAL INDENTURES




          Section 9.01 Supplemental Indentures without Consent of Securityholders.




          The Company, when authorized by a Board Resolution, and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto, without the consent of the
Securityholders, for one or more of the following purposes:




          (a) to evidence the succession of another Person to the Company, or successive successions,
and the assumption by the successor Person of the covenants, agreements and obligations of the
Company, pursuant to Article XI hereof, including to expressly state herein that any debt
securities (or guarantees in respect thereof) issued by such successor entity on, prior to or
following the date of such succession, to any trust, or a trustee of a trust, partnership or other
entity affiliated with the successor corporation that is, directly or indirectly, a finance
subsidiary (as that term is defined in Section 3a-5 of the Investment Company Act of 1940) or other
financing vehicle of the successor entity or any subsidiary thereof, in connection with the
issuance by that entity of preferred securities or other securities that are eligible to qualify as
Tier 1 capital (or its then equivalent) for the successor entity under the capital adequacy
guidelines of the Federal Reserve, or that would so qualify but for limitations on the amount of
such securities includable in Tier 1 capital under such guidelines, shall rank pari passu with the
Debentures;




          (b) to add to the covenants of the Company such further covenants, restrictions or conditions
for the protection of the holders of Debentures as the Board of Directors shall consider to be for
the protection of the holders of such Debentures, and to make the occurrence, or the occurrence and
continuance, of a Default in any of such additional covenants, restrictions or conditions a Default
or an Event of Default permitting the enforcement of all or any of the several remedies provided in
this Indenture as herein set forth; provided, however, that in respect of any such
additional covenant, restriction or condition such supplemental indenture may provide for a
particular period of grace after Default (which period may be shorter or longer than that allowed
in the case of other Defaults) or may provide for an immediate enforcement upon such Default or may
limit the remedies available to the Trustee upon such default;




          (c) to cure any ambiguity or to correct or supplement any provision contained herein or in any
supplemental indenture which may be defective or inconsistent with any other provision contained
herein or in any supplemental indenture, or to make such other provisions in regard to matters or
questions arising under this Indenture, provided, that any such action shall not adversely
affect the interests of the holders of the Debentures then outstanding;




          (d) to add to, delete from, or revise the terms of Debentures, including, without limitation,
any terms relating to the issuance, exchange, registration or transfer of Debentures, including to
provide for transfer procedures and restrictions substantially similar to those applicable to the
Preferred Securities, as required by Section 2.05, provided, that any such action shall not
adversely affect the interests of the holders of the Debentures then outstanding (it being
understood, for purposes of this proviso, that transfer restrictions on Debentures substantially
similar to those applicable to Preferred Securities shall not be deemed to adversely affect the
holders of the Debentures);




          (e) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee
with respect to the Debentures and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 6.10;




          (f) to make any change (other than as elsewhere provided in this Section) that does not
adversely affect the rights of any Securityholder in any material respect; or




33









 








          (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 the Debentures, or to add to the rights of the holders of Debentures.




          The Trustee is hereby authorized to join with the Company in the execution of any such
supplemental indenture, to make any further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer and assignment of any property thereunder,
but the Trustee shall not be obligated to, but may in its discretion, enter into any such
supplemental indenture which affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.




          Any supplemental indenture authorized by the provisions of this Section 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 9.02.




          Section 9.02 Supplemental Indentures with Consent of Securityholders.




          With the consent (evidenced as provided in Section 7.01) of the holders of a majority in
aggregate principal amount of the Debentures at the time outstanding affected by such supplemental
indenture, the Company, when authorized by a Board Resolution, 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, then in effect, applicable to indentures qualified
thereunder) 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 the rights of the holders of the Debentures; provided, however, that no such
supplemental indenture shall, without the consent of the holders of each Debenture then outstanding
and affected thereby, (i) change the Maturity Date of any Debenture, or reduce the principal amount
thereof or any premium thereon, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption thereof, or increase the aggregate principal
amount of Debentures then outstanding, or change any of the redemption provisions, or make the
principal thereof or any interest or premium thereon payable in any coin or currency other than
that provided in the Debentures, or impair or affect the right of any Securityholder to institute
suit for payment thereof, or (ii) reduce the aforesaid percentage of Debentures the holders of
which are required to consent to any such supplemental indenture; and provided,
further, that if the Debentures are held by the Trust or the trustee of the Trust, such
supplemental indenture shall not be effective until the holders of a majority in aggregate
liquidation amount of the outstanding Preferred Securities shall have consented to such
supplemental indenture; provided, further, that if the consent of the
Securityholder of each outstanding Debenture is required, such supplemental indenture shall not be
effective until each holder of the outstanding Preferred Securities shall have consented to such
supplemental indenture.




          Upon the request of the Company accompanied by a Board Resolution authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of
Securityholders (and holders of Preferred Securities, if required) 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.




          Promptly after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of this Section, the Trustee shall transmit by mail, first class postage
prepaid, a notice, prepared by the Company, setting forth in general terms the substance of such
supplemental indenture, to the Securityholders 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.




          It shall not be necessary for the consent of the Securityholders under this Section to approve
the particular form of any proposed supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.




          Section 9.03 Effect of Supplemental Indentures.




          Upon the execution of any supplemental indenture pursuant to the provisions of this Article
IX, this Indenture shall be and be deemed to be modified and amended in accordance therewith and
the respective rights,




34









 







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 9.04 Notation on Debentures.




          Debentures authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article IX may bear a notation as to any matter provided for in
such supplemental indenture. If the Company or the Trustee 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 and
executed by the Company, authenticated by the Trustee or the Authenticating Agent and delivered in
exchange for the Debentures then outstanding.




          Section 9.05 Evidence of Compliance of Supplemental Indenture to be Furnished to
Trustee.




          The Trustee, subject to the provisions of Sections 6.01 and 6.02, shall, in addition to the
documents required by Section 14.06, receive an Officers’ Certificate as conclusive evidence that
any supplemental indenture executed pursuant hereto complies with the requirements of this Article
IX. The Trustee shall also receive an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article IX is authorized or permitted by, and
conforms to, the terms of this Article IX and that it is proper for the Trustee under the
provisions of this Article IX to join in the execution thereof.




ARTICLE X

REDEMPTION OF SECURITIES




          Section 10.01 Optional Redemption.




          (a) The Company shall have the right, subject to the receipt by the Company of the prior
approval from the Federal Reserve, if then required under applicable capital guidelines or policies
of the Federal Reserve, to redeem the Debentures, in whole or (provided that all accrued and unpaid
interest has been paid on all Debentures) from time to time in part, on any Interest Payment Date
on or after September 15, 2013 (each, an “Optional Redemption Date”), at the Optional Redemption
Price.




          (b) Subject to the provisions of Section 10.3, 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
of any Preferred Securities purchased and beneficially owned by the Company, plus an additional
principal amount of Debentures equal to the Liquidation Amount 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 10.01(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 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 Nasdaq Global Select Market or any 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 any may only redeem the Debentures
in whole or in part to such extent as would not cause a delisting.




          Section 10.02 Special Event Redemption.




          If a Special Event shall occur and be continuing, the Company shall have the right, subject to
the receipt by the Company of prior approval from the Federal Reserve, if then required under
applicable capital guidelines or policies of the Federal Reserve, to redeem the Debentures, in
whole but not in part, at any time within 90 days following the occurrence of such Special Event
(the “Special Redemption Date”), at the Special Redemption Price.




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          Section 10.03 Notice of Redemption; Selection of Debentures.




          In case the Company shall desire to exercise the right to redeem all, or, as the case may be,
any part of the Debentures, it shall fix a date for redemption and shall mail, or cause the Trustee
to mail (at the expense of the Company), a notice of such redemption at least 30 and not more than
60 days prior to the date fixed for redemption to the holders of Debentures so to be redeemed as a
whole or in part at their last addresses as the same appear on the Debenture Register. Such mailing
shall be by first class mail. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the holder receives such notice. In
any case, failure to give such notice by mail or any defect in the notice to the holder of any
Debenture designated for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debenture.




          Each such notice of redemption shall specify the CUSIP number, if any, of the Debentures to be
redeemed, the date fixed for redemption, the price (or manner of calculation of the price) at which
Debentures are to be redeemed, the place or places of payment, that payment will be made upon
presentation and surrender of such Debentures, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. If less than all the
Debentures are to be redeemed, the notice of redemption shall specify the numbers of the Debentures
to be redeemed. In case the Debentures are to be redeemed in part only, the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall state that on and
after the date fixed for redemption, upon surrender of such Debenture, a new Debenture or
Debentures in principal amount equal to the unredeemed portion thereof will be issued.




          Prior to 10:00 a.m., New York City time, on the Optional Redemption Date or the Special
Redemption Date specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more Paying Agents an amount of money
sufficient to redeem on such date all the Debentures so called for redemption at the applicable
price therefor, together with unpaid interest accrued to such date.




          The Company will give the Trustee notice not less than 45 nor more than 75 days prior to the
Optional Redemption Date or Special Redemption Date, as applicable, and as to the aggregate
principal amount of Debentures to be redeemed, and the Trustee shall select, in such manner as in
its sole discretion it shall deem appropriate and fair, the Debentures or portions thereof (in
integral multiples of $1,000) to be redeemed.




          Section 10.04 Payment of Debentures Called for Redemption.




          If notice of redemption has been given as provided in Section 10.03, the Debentures or
portions of Debentures with respect to which such notice has been given shall become due and
payable on the Optional Redemption Date or Special Redemption Date (as the case may be) and at the
place or places stated in such notice at the Optional Redemption Price or Special Redemption Price,
as applicable, together with unpaid interest accrued thereon to said Optional Redemption Date or
the Special Redemption Date (as the case may be), and on and after said Optional Redemption Date or
the Special Redemption Date (as the case may be) (unless the Company shall default in the payment
of such Debentures at the at the Optional Redemption Price or Special Redemption Price, as
applicable,) interest on the Debentures or portions of Debentures so called for redemption shall
cease to accrue. On presentation and surrender of such Debentures at a place of payment specified
in said notice, such Debentures or the specified portions thereof shall be paid and redeemed by the
Company at the at the Optional Redemption Price or Special Redemption Price, as applicable;
provided, however, that interest payable on any Interest Payment Date on or prior
to said Optional Redemption Date or the Special Redemption Date will be paid to the holders on the
relevant regular record date.




          Upon presentation of any Debenture redeemed in part only, the Company shall execute and the
Trustee shall authenticate and make available for delivery to the holder thereof, at the expense of
the Company, a new Debenture or Debentures of authorized denominations in principal amount equal to
the unredeemed portion of the Debenture so presented.





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ARTICLE XI

CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE




     Section 11.01 Company May Consolidate, etc., on Certain Terms.



     Nothing contained in this Indenture or in the Debentures shall prevent any consolidation or
merger of the Company with or into any other Person (whether or not affiliated with the Company) or
successive consolidations or mergers in which the Company 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 or its successor or successors as an entirety, or substantially as an
entirety, to any other Person (whether or not affiliated with the Company, or its successor or
successors) authorized to acquire and operate the same; provided, however, that the
Company hereby covenants and agrees that, upon any such consolidation, merger (where the Company is
not the surviving corporation), sale, conveyance, transfer or other disposition, the due and
punctual payment of the principal of (and premium, if any) and interest on all of the Debentures in
accordance with their terms, 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, shall be expressly assumed by supplemental indenture satisfactory in form to the Trustee
executed and delivered to the Trustee by the entity formed by such consolidation, or into which the
Company shall have been merged, or by the entity which shall have acquired such property, and
further provided that immediately upon such transaction and succession, there shall
not occur or be continuing any Event of Default, or any event which with giving of notice or lapse
of time or both would be an Event of Default.



     Section 11.02 Successor Entity to be Substituted.



     (a) In case of any such consolidation, merger, sale, conveyance, transfer or other disposition
contemplated in Section 11.01 and upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and reasonably satisfactory in form to the
Trustee, of the due and punctual payment of the principal of and premium, if any, and interest on
all of the Debentures and the due and punctual performance and observance of all of the covenants
and conditions of this Indenture to be performed or observed by the Company, such successor entity
shall succeed to and be substituted for the Company, with the same effect as if it had been named
herein as the Company, and thereupon the predecessor entity shall be relieved of any further
liability or obligation hereunder or upon the Debentures. Such successor entity thereupon may cause
to be signed, and may issue either in its own name or in the name of the Company, any or all of the
Debentures issuable hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee or the Authenticating Agent; and, upon the order of such successor entity
instead of the Company and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee or the Authenticating Agent shall authenticate and deliver any Debentures
which previously shall have been signed and delivered by the officers of the Company to the Trustee
or the Authenticating Agent for authentication, and any Debentures which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee or the Authenticating Agent for
that purpose. All the Debentures so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Debentures theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Debentures had been issued at the date of the
execution hereof.



     Notwithstanding anything to the contrary contained herein, upon the effectiveness of any such
consolidation, merger, sale, conveyance, transfer or other disposition and of the assumption by the
successor entity, by supplemental indenture, in accordance with Section 11.1, of the due and
punctual payment of the principal of and premium, if any, and interest on all of the Debentures and
the due and punctual performance and observance of all of the covenants and conditions of this
Indenture to be performed or observed by the Company, then this Indenture and the obligations of
the Company (and any successor) hereunder, shall rank pari passu in all respects with any debt
securities (or guarantees in respect thereof) issued by such successor corporation on, prior to or
following the date of such succession, to any trust, or a trustee of a trust, partnership or other
entity affiliated with the successor corporation that is, directly or indirectly, a finance
subsidiary (as that term is defined in Section 3a-5 of the Investment Company Act of 1940) or other
financing vehicle of the successor entity or any subsidiary thereof, in connection with the
issuance by that entity of preferred securities or other securities that are eligible to qualify as
Tier 1 capital (or its then equivalent) for the successor entity under the capital adequacy
guidelines of the Federal



37









 







Reserve, or that would so qualify but for limitations on the amount of such securities
includable in Tier 1 capital under such guidelines.



     Section 11.03 Opinion of Counsel to be Given to Trustee.



     The Trustee, subject to the provisions of Sections 6.01 and 6.02, shall receive, in addition
to the Opinion of Counsel required by Section 9.05, an Opinion of Counsel as conclusive evidence
that any consolidation, merger, sale, conveyance, transfer or other disposition, and any
assumption, permitted or required by the terms of this Article XI complies with the provisions of
this Article XI.



ARTICLE XII

SATISFACTION AND DISCHARGE OF INDENTURE




     Section 12.01 Discharge of Indenture.



     When (a) the Company shall deliver to the Trustee for cancellation all Debentures theretofore
authenticated (other than any Debentures which shall have been destroyed, lost or stolen and which
shall have been replaced or paid as provided in Section 2.06) and not theretofore canceled, or (b)
all the Debentures not theretofore canceled or 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 with the Trustee, in trust, funds,
which shall be immediately due and payable, sufficient to pay at maturity or upon redemption all of
the Debentures (other than any Debentures which shall have been destroyed, lost or stolen and which
shall have been replaced or paid as provided in Section 2.06) not theretofore canceled or delivered
to the Trustee for cancellation, including principal and premium, if any, and interest due or to
become due to the Maturity Date, any Optional Redemption Date or the Special Redemption Date, as
the case may be, but excluding, however, the amount of any moneys for the payment of principal of
and premium, if any, or interest on the Debentures (1) theretofore repaid to the Company in
accordance with the provisions of Section 12.04, or (2) paid to any state or to the District of
Columbia pursuant to its unclaimed property or similar laws, and if in the case of either clause
(a) or (b) above the Company shall also pay or cause to be paid all other sums payable hereunder by
the Company, then this Indenture shall cease to be of further effect except for the provisions of
Sections 2.05, 2.06, 2.08, 3.01, 3.02, 3.04, 6.06, 6.09 and 12.04 hereof, which shall survive until
such Debentures shall mature or are redeemed, as the case may be, and are paid in full. Thereafter,
Sections 6.06 and 12.04 shall survive, and the Trustee, on demand of the Company accompanied by an
Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have been complied with,
and at the cost and expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture, the Company, however, hereby agreeing to reimburse
the Trustee for any costs or expenses thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Debentures.



     Section 12.02 Deposited Moneys to be Held in Trust by Trustee.



     Subject to the provisions of Section 12.04, all moneys deposited with the Trustee pursuant to
Section 12.01 shall be held in trust and applied by it to the payment, either directly or through
any Paying Agent (including the Company if acting as its own Paying Agent), to the holders of the
particular Debentures for the payment of which such moneys have been deposited with the Trustee, of
all sums due and to become due thereon for principal, premium, if any, and interest.



     Section 12.03 Paying Agent to Repay Moneys Held.



     Upon the satisfaction and discharge of this Indenture, all moneys then held by any Paying
Agent of the Debentures (other than the Trustee) shall, upon demand of the Company, be repaid to
the Company or paid to the Trustee, and thereupon such Paying Agent shall be released from all
further liability with respect to such moneys.



     Section 12.04 Return of Unclaimed Moneys.



     Any moneys deposited with or paid to the Trustee or any Paying Agent for payment of the
principal of and premium, if any, or interest on Debentures and not applied but remaining unclaimed
by the holders of Debentures



38









 







for two years after the date upon which the principal of and premium, if any, or interest on
such Debentures, as the case may be, shall have become due and payable, shall be repaid to the
Company by the Trustee or such Paying Agent on written demand; and the holder of any of the
Debentures shall thereafter look only to the Company for any payment which such holder may be
entitled to collect and all liability of the Trustee or such Paying Agent with respect to such
moneys shall thereupon cease.



ARTICLE XIII

IMMUNITY OF INCORPORATORS, STOCKHOLDERS,

OFFICERS AND DIRECTORS




     Section 13.01 Indenture and Debentures Solely Corporate Obligations.



     No recourse for the payment of the principal of or premium, if any, or interest on any
Debenture, or for any claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in this Indenture or in any supplemental
indenture, or in any such Debenture, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer, director, employee or agent,
as such, past, present or future, of the Company or of any predecessor or successor entity of the
Company, either directly or through the Company or any successor entity of the Company, 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 all such liability is hereby expressly
waived and released as a condition of, and as a consideration for, the execution of this Indenture
and the issue of the Debentures.



ARTICLE XIV

MISCELLANEOUS PROVISIONS




     Section 14.01 Successors.



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



     Section 14.02 Official Acts by Successor Entity.



     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 like board, committee, officer or other authorized Person of any
entity that shall at the time be the lawful successor of the Company.



     Section 14.03 Surrender of Company Powers.



     The Company, by instrument in writing executed by authority of 2/3 (two thirds) 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 and as to any
permitted successor.



     Section 14.04 Addresses for Notices, etc.



     Any notice or demand which by any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the Securityholders on the Company may be given or served in
writing by being deposited postage prepaid by registered or certified mail in a post office letter
box addressed (until another address is filed by the Company with the Trustee for such purpose)


to the Company at:



608 South Main Street

Stillwater, Oklahoma 74074

Attention Rick J. Green




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with a copy to:



James I Lundy, III, Esquire

Suite 400

1700 Pennsylvania Avenue, NW

Washington, DC 20006

Telecopy: 202-318-4623

Telephone: 202-349-7130




     Any notice, direction, request or demand by any Securityholder or the Company 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 office of U.S. Bank National Association at:


One Federal Street, 3rd Floor

Boston, Massachusetts 02110

Attention: Corporate Trust Services




     Section 14.05 Governing Law.



     This Indenture and the Debentures shall each be governed by, and construed in accordance with,
the laws of the State of New York, without regard to conflict of laws principles of said.



     Section 14.06 Evidence of Compliance with Conditions Precedent.



     Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall
be given in the form of an Officers’ Certificate, if to be given by an officer of the Company, or
an Opinion of Counsel, if to be given by Counsel, and shall comply with the requirements of the
Trust Indenture Act and any other requirements set forth in this Indenture.



     Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture (except
certificates delivered pursuant to Section 3.05) shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition and the definitions relating
thereto; (b) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are based; (c) a
statement that, in the opinion of such person, he or she has made such examination or investigation
as is necessary to enable him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (d) a statement as to whether or not, in the
opinion of such person, such condition or covenant has been complied with.



     Section 14.07 Business Day Convention.



     Notwithstanding anything to the contrary contained herein, if any Interest Payment Date, other
than the Maturity Date, any Optional Redemption Date or any Special Redemption Date, falls on a day
that is not a Business Day, then any interest payable will be paid on, and such Interest Payment
Date will be moved to, the next succeeding Business Day, and additional interest will accrue for
each day that such payment is delayed as a result thereof. If any Interest Payment Date on the
Maturity Date, any Optional Redemption Date or any Special Redemption Date falls on a day that is
not a Business Day, then the principal, premium, if any, and/or interest payable on such date will
be paid on the next succeeding Business Day, and no additional interest will accrue in respect of
such payment made on such next succeeding Business Day.



     Section 14.08 Table of Contents, Headings, etc.



     The table of contents and the titles and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions hereof.



40









 





     Section 14.09 Execution in 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 14.10 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 such Debentures, but this Indenture and such Debentures shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein or therein.



     Section 14.11 Assignment.



     Subject to Article XI, the Company will have the right at all times to assign any of its
rights or obligations under this Indenture and the Debentures to a direct or indirect wholly owned
Subsidiary of the Company; provided, however, that, in the event of any such
assignment, the Company will remain liable for all such obligations. Subject to the foregoing, this
Indenture is binding upon and inures to the benefit of the parties hereto and their respective
successors and assigns. This Indenture may not otherwise be assigned by the parties thereto.



     Section 14.12 Acknowledgment of Rights.



     The Company acknowledges that, with respect to any Debentures held by the Trust or a trustee
of the Trust, if such trustee of the Trust fails to enforce its rights under this Indenture as the
holder of Debentures held as the assets of the Trust after the holders of a majority in aggregate
liquidation amount of the outstanding Preferred Securities of the Trust have so directed in writing
such trustee, a holder of record of such Preferred Securities may, to the fullest extent permitted
by law, institute legal proceedings directly against the Company to enforce such trustee’s rights
under this Indenture without first instituting any legal proceedings against such trustee or any
other Person. 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 premium, if any, on
or principal of the Debentures on the date such interest, premium, if any, or principal is
otherwise due and payable (or, in the case of redemption, on the related Optional Redemption Date
or the Special Redemption Date (as the case may be)), the Company acknowledges that a holder of
outstanding Preferred Securities of the Trust may directly institute a proceeding against the
Company for enforcement of payment to such holder directly of the principal of or premium, if any,
or interest on the Debentures having an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Securities of such holder on or after the respective due date
(or Optional Redemption Date or Special Redemption Date (as the case may be)) specified in the
Debentures.



     Section 14.13 Conflict with Trust Indenture Act.



     If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act that is required under such Act to be a part of and govern this Indenture, the latter provision
shall control. If any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.



ARTICLE XV

SUBORDINATION OF DEBENTURES




     Section 15.01 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 XV; 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 premium, if any, and interest on all
Debentures 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 Indebtedness of the Company, whether
outstanding at the date of this Indenture or



41









 







thereafter incurred; provided, however, that the Debentures shall rank pari passu
in all material respects, including in right of payment, with any indebtedness, liabilities or
obligations of the Company, or any Subsidiary of the Company, under debt securities under any
Indenture outstanding as of the date hereof (or guarantees in respect of debt securities) 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 of 1940) or other financing vehicle of the Company or any Subsidiary of the
Company in connection with the issuance by that entity of preferred securities or other securities
that are eligible to qualify for Tier 1 capital treatment (or its then equivalent) for purposes of
the capital adequacy guidelines of the Federal Reserve, as then in effect and applicable to the
Company, without reference to any limitation on the ability to treat such securities as Tier 1
capital as a result of 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, including but not limited to the
debt securities and related guaranties identified in the last sentence of the definition of Senior
Indebtedness.



     The payment by the Company of the payments due 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 Indebtedness of the Company, whether outstanding at the
date of this Indenture or thereafter incurred.



     No provision of this Article XV shall prevent the occurrence of any default or Event of
Default hereunder.



     Section 15.02 Default on Senior Indebtedness.



     In the event and during the continuation of any default by the Company in the payment of
principal, premium, interest or any other amount due on any Senior Indebtedness of the Company
following any applicable grace period, or in the event that the maturity of any Senior Indebtedness
of the Company has been accelerated because of a default, and such acceleration has not been
rescinded or canceled and such Senior Indebtedness has not been paid in full, then, in either case,
no payment shall be made by the Company with respect to any payments due on the Debentures.



     In the event that, notwithstanding the foregoing, any payment shall be received by the Trustee
or any Securityholder when such payment is prohibited by the preceding paragraph of this Section,
such payment shall, subject to Section 15.06, 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 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 15.03 Liquidation; Dissolution; Bankruptcy.



     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, winding-up,
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 the Debentures; and upon any such
dissolution, winding-up, 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 Securityholders or the Trustee would be entitled to receive from the Company, except for
the provisions of this Article XV, 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 Securityholders 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



42









 







concurrent payment or distribution to or for the holders of such Senior Indebtedness, before
any payment or distribution is made to the Securityholders or to the Trustee.



     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 or any Securityholder 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, as their respective interests
may appear, as calculated by the Company, for application to the payment of all Senior Indebtedness
of the Company 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.



     For purposes of this Article XV, 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 XV with respect to
the Debentures to the payment of all Senior Indebtedness of the Company, that may at the time be
outstanding, provided, that (a) such Senior Indebtedness is assumed by the new corporation,
if any, resulting from any such reorganization or readjustment, and (b) 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, transfer or other disposition of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions provided for in Article XI of this
Indenture shall not be deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section if such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article XI of this Indenture. Nothing
in Section 15.02 or in this Section shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 6.06 of this Indenture.



     Section 15.04 Subrogation.



     Subject to the payment in full of all Senior Indebtedness of the Company, the Securityholders
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 applicable to such Senior Indebtedness
until all payments due 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 Securityholders or the Trustee would be entitled except for the
provisions of this Article XV, and no payment over pursuant to the provisions of this Article XV to
or for the benefit of the holders of such Senior Indebtedness by Securityholders or the Trustee,
shall, as between the Company, its creditors other than holders of Senior Indebtedness of the
Company, and the holders of the Debentures be deemed to be a payment or distribution by the Company
to or on account of such Senior Indebtedness. It is understood that the provisions of this Article
XV 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.



     Nothing contained in this Article XV or elsewhere in this Indenture, any Additional Provisions
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 all payments 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 other than the holders of Senior Indebtedness of the
Company, 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 XV of the holders of such Senior
Indebtedness in respect of cash, property or securities of the Company received upon the exercise
of any such remedy.



43









 





     Upon any payment or distribution of assets of the Company referred to in this Article XV, the
Trustee, subject to the provisions of Article VI of this Indenture, and the Securityholders 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
Securityholders, for the purposes of ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article XV.



     Section 15.05 Trustee to Effectuate Subordination.



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



     Section 15.06 Notice by the Company.



     The Company shall give prompt written notice to a Responsible Officer of the Trustee at the
Principal Office of the Trustee of any fact known to the Company that would prohibit the making of
any payment of moneys to or by the Trustee in respect of the Debt Securities pursuant to the
provisions of this Article XV. Notwithstanding the provisions of this Article XV or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts that would prohibit the making of any payment of moneys to or by the Trustee in respect
of the Debentures pursuant to the provisions of this Article XV unless and until a Responsible
Officer of the Trustee at the Principal Office 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 Article VI of this Indenture, 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 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 premium, if any, 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.



     The Trustee, subject to the provisions of Article VI of this Indenture, shall be entitled to
conclusively rely on the delivery to it of a written notice by a Person representing himself or
herself to be a holder of Senior Indebtedness of the Company (or a trustee or representative on
behalf of such holder) to establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee or representative 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 XV, 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 XV, 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 15.07 Rights of the Trustee; Holders of Senior Indebtedness.



     The Trustee, in its individual capacity, shall be entitled to all the rights set forth in this
Article XV 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 or any Additional Provisions
shall deprive the Trustee of any of its rights as such holder.



     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 XV, and no implied covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture or



44









 







any Additional Provisions against the Trustee. The Trustee shall not owe or be deemed to owe
any fiduciary duty to the holders of such Senior Indebtedness and, subject to the provisions of
Article VI of this Indenture, the Trustee shall not be liable to any holder of such Senior
Indebtedness if it shall pay over or deliver to Securityholders, 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 XV or otherwise.



     Nothing in this Article XV shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 6.06.



     Section 15.08 Subordination May Not Be Impaired.



     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.



     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 Securityholders, without incurring responsibility to the
Securityholders and without impairing or releasing the subordination provided in this Article XV 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: (a) 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; (b) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such Senior Indebtedness;
(c) release any Person liable in any manner for the collection of such Senior Indebtedness; and (d)
exercise or refrain from exercising any rights against the Company or any other Person.



[Signatures appear on the following page]




45









 








     IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed by their
respective officers thereunto duly authorized, as of the day and year first above written.



	 	 	 	 	 	 	 
	 	 	SOUTHWEST BANCORP, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION
AS TRUSTEE	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






46









 






Annex A




			
	 	 	 
	NO:
	 	$          
	 	 	 
	CUSIP NO:	 	 






FIXED RATE JUNIOR SUBORDINATED DEBENTURE

SOUTHWEST BANCORP, INC.




     THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY THE UNITED STATES
OR ANY AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE CORPORATION.



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



     [THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED
IN WHOLE OR IN PART FOR SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.



     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OR TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER, CEDE & CO., HAS AN INTEREST HEREIN.]



 









 






Fixed Rate Junior Subordinated Debenture




of




SOUTHWEST BANCORP, INC.




     Southwest Bancorp, Inc., an Oklahoma corporation (the “Company” which term includes any
successor Person under the Indenture hereinafter referred to), for value received promises to pay
to              
                 
           or registered assigns, the principal sum of                       
                   dollars
($                    ) on                     , 2038, and to pay interest on said principal sum from                     ,
2008, or from the most recent Interest Payment Date (as defined below) to which interest has been
paid or duly provided for, quarterly (subject to deferral as set forth herein) in arrears on the
fifteenth (15th) day of march, June, September and December of each year or if such day
is not a Business Day, then the next succeeding Business Day (each such date, an “Interest Payment
Date”), commencing on the Interest Payment Date in September 2008, at an annual rate equal to
                     beginning on (and including) the date of original issuance and until the principal hereof
is paid or duly provided for or made available for payment, 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 (including Additional Interest) at the
Interest Rate, compounded quarterly, from the dates such amounts are due until they are paid or
made available for payment. The amount of interest payable will be computed on the basis of a
360-day year of twelve 30-day months. The interest installment so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Debenture (or one or more Predecessor Securities) is registered at the
close of business on the regular record date for such interest installment, which shall be fifteen
Business Days prior to the day on which the relevant Interest Payment Date occurs. Any such
interest installment not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such regular record date and may be paid to the Person in whose name this
Debenture (or one or more Predecessor Securities) is registered at the close of business on a
special record date.



     The principal of and interest on this Debenture shall be payable at the office or agency of
the Trustee (or other paying agent appointed by the Company) 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 by check mailed to the registered holder at such address as shall appear in the
Debenture Register if a request for a wire transfer by such holder has not been received by the
Company or by wire transfer to an account appropriately designated by the Holder hereof.
Notwithstanding the foregoing, so long as the holder of this Debenture is the Institutional
Trustee, the payment of the principal of and interest on this Debenture will be made in immediately
available funds at such place and to such account as may be designated by the Trustee.



     So long as no Acceleration Event of Default has occurred and is continuing, the Company shall
have the right, from time to time, and without causing an Event of Default, to defer payments of
interest on the Debentures by extending the interest payment period on the Debentures at any time
and from time to time during the term of the Debentures, for up to 20 consecutive quarterly periods
(each such extended interest payment period, an “Extension Period”), during which Extension Period
no interest (including Additional Interest) shall be due and payable (except any Additional Amounts
that may be due and payable). No Extension Period may end on a date other than an Interest Payment
Date. During an Extension Period, interest will continue to accrue on the Debentures, and interest
on such accrued interest will accrue at an annual rate equal to the Interest Rate, compounded
quarterly from the date such interest would have been payable were it not for the Extension Period,
to the extent permitted by law (such interest referred to herein as “Additional Interest”). At the
end of any such Extension Period the



A- 2 









 







Company shall pay all interest then accrued and unpaid on the Debentures (together with
Additional Interest thereon); provided, however, that no Extension Period may
extend beyond the Maturity Date; provided further, however, that during any
such Extension Period, the Company shall not engage in any of the activities or transactions
described on the reverse side hereof and Section 3.8 of the Indenture. Prior to the termination of
any Extension Period, the Company may further extend such period, provided that such period
together with all such previous and further consecutive extensions thereof shall not exceed 20
consecutive quarterly periods, or extend beyond the Maturity Date. Upon the termination of any
Extension Period and upon the payment of all accrued and unpaid interest and Additional Interest,
the Company may commence a new Extension Period, subject to the foregoing requirements. No
interest or Additional Interest shall be due and payable during an Extension Period, except at the
end thereof, but each installment of interest that would otherwise have been due and payable during
such Extension Period shall bear Additional Interest. The Company must give the Trustee notice of
its election to begin or extend an Extension Period by the close of business at least 15 Business
Days prior to 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 Extension Period.



     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 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 provisions
shall for all purposes have the same effect as though fully set forth at this place.



A- 3 









 





     IN WITNESS WHEREOF, the Company has duly executed this certificate.



	 	 	 	 	 	 	 
	 	 	SOUTHWEST BANCORP, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






A- 4 









 






CERTIFICATE OF AUTHENTICATION




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



	 	 	 	 	 	 	 
	 	 	US BANK NATIONAL ASSOCIATION, as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Authorized Officer
	 	 






A- 5 









 






REVERSE OF DEBENTURE




     This Debenture is one of the fixed rate junior subordinated deferrable interest debentures of
the Company, all issued or to be issued under and pursuant to the Indenture dated as of                      ,
2008 (the “Indenture”), duly executed and delivered between the Company and 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.



     Upon the occurrence and continuation of a Special Event prior to the Interest Payment Date in
September 2013, the Company shall have the right to redeem the Debentures in whole, but not in
part, at any time, within 90 days following the occurrence of such Special Event, at the Special
Redemption Price.



     In addition, the Company shall have the right to redeem the Debentures, in whole or in part,
but in all cases in a principal amount with integral multiples of $25.00, on any Interest Payment
Date on or after the Interest Payment Date in September, 2013, at the Optional Redemption Price.



     Prior to 10:00 a.m. New York City time on the Optional Redemption Date or Special Redemption
Date, as applicable, the Company will deposit with the Trustee or with one or more paying agents an
amount of money sufficient to redeem on the Optional Redemption Date or the Special Redemption
Date, as applicable, all the Debentures so called for redemption at the appropriate Optional
Redemption Price or Special Redemption Price.



     If all, or less than all, the Debentures are to be redeemed, the Company will give the Trustee
notice not less than 45 nor more than 60 days, respectively, prior to the Optional Redemption Date
or Special Redemption Date, as applicable, as to the aggregate principal amount of Debentures to be
redeemed and the Trustee shall select, in such manner as in its sole discretion it shall deem
appropriate and fair, the Debentures or portions thereof (in integral multiples of $25.00) to be
redeemed.



     Notwithstanding the foregoing, any redemption of Debentures by the Company shall be subject to
the receipt of any and all required regulatory approvals.



     In case an Acceleration Event of Default shall have occurred and be continuing, upon demand of
the Trustee, the principal of all of the Debentures 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, to execute supplemental indentures 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 the rights of the holders of the Debentures;
provided, however, that no such supplemental indenture shall without the consent of
the holders of each Debenture then outstanding and affected thereby (i) change the fixed maturity
of any Debenture, or reduce the principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of interest thereon, or reduce any amount payable on redemption
thereof or make the principal thereof or any interest or premium thereon payable in any coin or
currency other than that provided in the Debentures, or impair or affect the right of any
Securityholder to institute suit for payment thereof or impair the right of repayment, if any, at
the option of the holder, or (ii) reduce the aforesaid percentage of Debentures the holders of
which are required to consent to any such supplemental indenture.



     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 the holders of all of the
Debentures to waive (or modify any previously granted waiver of) any past default or Event of
Default, and its consequences, except a default (a) in the payment of principal of, premium, if
any, or interest on any of the Debentures, (b) in respect of covenants or provisions hereof or of
the Indenture which cannot be modified or amended without the consent of the holder of each
Debenture affected, or (c) in respect of the covenants contained in Section 3.9 of the Indenture;
provided, however, that if the Debentures are held by the Trust or a trustee of
such trust, such waiver or modification to such waiver shall not be effective until the holders of
a majority in liquidation amount of Preferred 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 Preferred 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 the 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 Event of Default or impair any right consequent thereon. Whenever any default or
Event of Default hereunder shall have been waived as permitted by the Indenture, said default or
Event of Default shall for all purposes of the Debentures and the Indenture be deemed to have been
cured and to be not continuing.



     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 of and premium, if any, and interest, including Additional Interest, on this
Debenture at the time and place and at the rate and in the money herein prescribed.



     The Company has agreed that if Debentures are initially issued to the Trust or a trustee of
such Trust in connection with the issuance of Preferred Securities by the Trust (regardless of
whether Debentures continue to be held by such Trust) and (i) there shall have occurred and be
continuing an Event of Default, (ii) the Company shall be in default with respect to its payment of
any obligations under the Preferred Securities Guarantee, or (iii) the Company shall have given
notice of its election to defer payments of interest on the Debentures by extending the interest
payment period as provided herein and such Extension Period, or any extension thereof, shall be
continuing, then the Company shall not and shall



A- 6 









 







not allow any Affiliate of the Company to, (x) declare or pay any dividends or distributions
on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any of the
Company’s capital stock or its Affiliates’ capital stock (other than payments of dividends or
distributions to the Company or payments of dividends from direct or indirect subsidiaries of the
Company to their parent corporations, which also shall be direct or indirect subsidiaries of the
Company) or make any guarantee payments with respect to the foregoing or (y) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or redeem any debt securities
of the Company or any Affiliate that rank pari passu in all respects with or junior in interest to
the Debentures (other than, with respect to clauses (x) and (y) above, (1) repurchases,
redemptions or other acquisitions of shares of capital stock of the Company in connection with any
employment contract, benefit plan or other similar arrangement with or for the benefit of one or
more employees, officers, directors or consultants, in connection with a dividend reinvestment or
stockholder stock purchase plan or in connection with the issuance of capital stock of the Company
(or securities convertible into or exercisable for such capital stock) as consideration in an
acquisition transaction entered into prior to the applicable Extension Period, if any, (2) as a
result of any exchange or conversion of any class or series of the Company’s capital stock (or any
capital stock of a subsidiary of the Company) for any class or series of the Company’s capital
stock or of any class or series of the Company’s indebtedness for any class or series of the
Company’s capital stock, (3) the purchase of fractional interests in shares of the Company’s
capital stock pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (4) any declaration of a dividend in connection with any
stockholders’ rights plan, or the issuance of rights, stock or other property under any
stockholders’ rights plan, or the redemption or repurchase of rights pursuant thereto, (5) any
dividend in the form of stock, warrants, options or other rights where the dividend stock or the
stock issuable upon exercise of such warrants, options or other rights is the same stock as that on
which the dividend is being paid or ranks pari passu with or junior to such stock and any cash
payments in lieu of fractional shares issued in connection therewith, (6) payments of principal or
interest on debt securities or payments of cash dividends or distributions on any capital stock
issued by an Affiliate that is not, in whole or in part, a subsidiary of the Company (or any
redemptions, repurchases or liquidation payments on such stock or securities), or (7) payments
under the Preferred Securities Guarantee)



     The Debentures are issuable only in registered, certificated form without coupons and in
minimum denominations of $1,000.00 and any multiple of $25.00 in excess thereof. As provided in
the Indenture and subject to the transfer restrictions and limitations as may be contained herein
and therein from time to time, this Debenture is transferable by the holder hereof on the Debenture
Register of the Company. Upon due presentment for registration of transfer of any Debenture at the
Principal Office of the Trustee or at any office or agency of the Company maintained for such
purpose as provided in Section 3.2 of the Indenture, the Company shall execute, the Company or the
Trustee shall register and the Trustee or the Authenticating Agent shall authenticate and make
available for delivery in the name of the transferee or transferees a new Debenture for a like
aggregate principal amount. All Debentures presented for registration of transfer or for exchange
or payment shall (if so required by the Company or the Trustee or the Authenticating Agent) be duly
endorsed by, or be accompanied by a written instrument or instruments of transfer in form
satisfactory to, the Company and the Trustee or the Authenticating Agent duly executed by the
holder or his attorney duly authorized in writing. No service charge shall be made for any
exchange or registration of transfer of Debentures, but the Company or the Trustee may require
payment of a sum sufficient to cover any tax, fee or other governmental charge that may be imposed
in connection therewith.



     Prior to due presentment for registration of transfer of any Debenture, the Company, the
Trustee, any Authenticating Agent, any paying agent, any transfer agent and any Debenture registrar
may deem the Person in whose name such Debenture shall be registered upon the Debenture Register to
be, and may treat him as, the absolute owner of such Debenture (whether or not such Debenture shall
be overdue) for the purpose of receiving payment of or on account of the principal of, premium, if
any, and interest on such Debenture and for all other purposes; and neither the Company nor the
Trustee nor any Authenticating Agent nor any paying agent nor any transfer agent nor any Debenture
registrar shall be affected by any notice to the contrary. All such payments so made to any holder
for the time being or upon his order shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any such Debenture.



     No recourse for the payment of the principal of or premium, if any, or interest on any
Debenture, or for any claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in the Indenture or in any supplemental
indenture, or in any such Debenture, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, employee, officer or director, as
such, past, present or future, of the Company or of any successor Person of the Company, either
directly or through the Company or any successor Person of the Company, 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 all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of the Indenture and the
issue of the Debentures.



     Capitalized terms used and not defined in this Debenture shall have the meanings assigned in
the Indenture dated as of the date of original issuance of this Debenture between the Trustee and
the Company.



     THE INDENTURE AND THE DEBENTURES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THEREOF.




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