Exhibit 4.1


 




 


 





TENNESSEE COMMERCE BANCORP, INC.,

as Issuer


 


 


INDENTURE


 


Dated as of June 20, 2008


 


 


WILMINGTON TRUST COMPANY,

as Trustee


 


 


FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURES


 


 


DUE 2038


 




 





 





















 


TABLE OF CONTENTS


 


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I.

  	
  DEFINITIONS

  	
  1

  
	
  Section 1.1.

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE II.

  	
  DEBENTURES

  	
  7

  
	
  Section 2.1.

  	
  Authentication and Dating

  	
  7

  
	
  Section 2.2.

  	
  Form of Trustee’s Certificate of
  Authentication

  	
  7

  
	
  Section 2.3.

  	
  Form and Denomination of Debentures

  	
  8

  
	
  Section 2.4.

  	
  Execution of Debentures

  	
  8

  
	
  Section 2.5.

  	
  Exchange and Registration of Transfer of
  Debentures

  	
  8

  
	
  Section 2.6.

  	
  Mutilated, Destroyed, Lost or Stolen
  Debentures

  	
  10

  
	
  Section 2.7.

  	
  Temporary Debentures

  	
  10

  
	
  Section 2.8.

  	
  Payment of Interest and Additional Interest

  	
  11

  
	
  Section 2.9.

  	
  Cancellation of Debentures Paid, etc

  	
  12

  
	
  Section 2.10.

  	
  Computation of Interest

  	
  12

  
	
  Section 2.11.

  	
  Extension of Interest Payment Period

  	
  12

  
	
  Section 2.12.

  	
  CUSIP Numbers

  	
  13

  
	
   

  	
   

  	
   

  
	
  ARTICLE III.

  	
  PARTICULAR
  COVENANTS OF THE COMPANY

  	
  14

  
	
  Section 3.1.

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

  	
  14

  
	
  Section 3.2.

  	
  Offices for Notices and Payments, etc

  	
  14

  
	
  Section 3.3.

  	
  Appointments to Fill Vacancies in Trustee’s
  Office

  	
  14

  
	
  Section 3.4.

  	
  Provision as to Paying Agent

  	
  15

  
	
  Section 3.5.

  	
  Certificate to Trustee

  	
  15

  
	
  Section 3.6.

  	
  Additional Sums

  	
  15

  
	
  Section 3.7.

  	
  Compliance with Consolidation Provisions

  	
  16

  
	
  Section 3.8.

  	
  Limitation on Dividends

  	
  16

  
	
  Section 3.9.

  	
  Covenants as to the Trust

  	
  16

  
	
  Section 3.10.

  	
  Additional Junior Indebtedness

  	
  17

  
	
  Section 3.11.

  	
  Subsidiary; Insured Depository Institution

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV.

  	
  SECURITYHOLDERS’
  LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE

  	
  17

  
	
  Section 4.1.

  	
  Securityholders’ Lists

  	
  17

  
	
  Section 4.2.

  	
  Preservation and Disclosure of Lists

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE V.

  	
  REMEDIES OF
  THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT

  	
  18

  
	
  Section 5.1.

  	
  Events of Default

  	
  18

  
	
  Section 5.2.

  	
  Payment of Debentures on Default; Suit
  Therefor

  	
  19

  
	
  Section 5.3.

  	
  Application of Moneys Collected by Trustee

  	
  21

  
	
  Section 5.4.

  	
  Proceedings by Securityholders

  	
  21

  
	
  Section 5.5.

  	
  Proceedings by Trustee

  	
  21

  
	
  Section 5.6.

  	
  Remedies Cumulative and Continuing; Delay
  or Omission Not a Waiver

  	
  21

  
	
  Section 5.7.

  	
  Direction of Proceedings and Waiver of
  Defaults by Majority of Securityholders

  	
  22

  
	
  Section 5.8.

  	
  Notice of Defaults

  	
  22

  
	
  Section 5.9.

  	
  Undertaking to Pay Costs

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI.

  	
  CONCERNING
  THE TRUSTEE

  	
  23

  
	
  Section 6.1.

  	
  Duties and Responsibilities of Trustee

  	
  23

  
	
  Section 6.2.

  	
  Reliance on Documents, Opinions, etc

  	
  23

  
	
  Section 6.3.

  	
  No Responsibility for Recitals, etc

  	
  24

  



 


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  Section 6.4.

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

  	
  24

  
	
  Section 6.5.

  	
  Moneys to be Held in Trust

  	
  24

  
	
  Section 6.6.

  	
  Compensation and Expenses of Trustee

  	
  25

  
	
  Section 6.7.

  	
  Officers’ Certificate as Evidence

  	
  25

  
	
  Section 6.8.

  	
  Eligibility of Trustee

  	
  25

  
	
  Section 6.9.

  	
  Resignation or Removal of Trustee

  	
  26

  
	
  Section 6.10.

  	
  Acceptance by Successor Trustee

  	
  27

  
	
  Section 6.11.

  	
  Succession by Merger, etc

  	
  27

  
	
  Section 6.12.

  	
  Authenticating Agents

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII.

  	
  CONCERNING
  THE SECURITYHOLDERS

  	
  28

  
	
  Section 7.1.

  	
  Action by Securityholders

  	
  28

  
	
  Section 7.2.

  	
  Proof of Execution by Securityholders

  	
  29

  
	
  Section 7.3.

  	
  Who Are Deemed Absolute Owners

  	
  29

  
	
  Section 7.4.

  	
  Debentures Owned by Company Deemed Not
  Outstanding

  	
  29

  
	
  Section 7.5.

  	
  Revocation of Consents; Future Holders
  Bound

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII.

  	
  SECURITYHOLDERS’
  MEETINGS

  	
  30

  
	
  Section 8.1.

  	
  Purposes of Meetings

  	
  30

  
	
  Section 8.2.

  	
  Call of Meetings by Trustee

  	
  30

  
	
  Section 8.3.

  	
  Call of Meetings by Company or
  Securityholders

  	
  30

  
	
  Section 8.4.

  	
  Qualifications for Voting

  	
  30

  
	
  Section 8.5.

  	
  Regulations

  	
  30

  
	
  Section 8.6.

  	
  Voting

  	
  31

  
	
  Section 8.7.

  	
  Quorum; Actions

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX.

  	
  SUPPLEMENTAL
  INDENTURES

  	
  32

  
	
  Section 9.1.

  	
  Supplemental Indentures without Consent of
  Securityholders

  	
  32

  
	
  Section 9.2.

  	
  Supplemental Indentures with Consent of
  Securityholders

  	
  33

  
	
  Section 9.3.

  	
  Effect of Supplemental Indentures

  	
  33

  
	
  Section 9.4.

  	
  Notation on Debentures

  	
  33

  
	
  Section 9.5.

  	
  Evidence of Compliance of Supplemental
  Indenture to be Furnished to Trustee

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE X.

  	
  REDEMPTION
  OF SECURITIES

  	
  34

  
	
  Section 10.1.

  	
  Optional Redemption

  	
  34

  
	
  Section 10.2.

  	
  Special Event Redemption

  	
  34

  
	
  Section 10.3.

  	
  Notice of Redemption; Selection of
  Debentures

  	
  34

  
	
  Section 10.4.

  	
  Payment of Debentures Called for Redemption

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI.

  	
  CONSOLIDATION,
  MERGER, SALE, CONVEYANCE AND LEASE

  	
  35

  
	
  Section 11.1.

  	
  Company May Consolidate, etc., on Certain
  Terms

  	
  35

  
	
  Section 11.2.

  	
  Successor Entity to be Substituted

  	
  35

  
	
  Section 11.3.

  	
  Opinion of Counsel to be Given to Trustee

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII.

  	
  SATISFACTION
  AND DISCHARGE OF INDENTURE

  	
  36

  
	
  Section 12.1.

  	
  Discharge of Indenture

  	
  36

  
	
  Section 12.2.

  	
  Deposited Moneys to be Held in Trust by
  Trustee

  	
  36

  
	
  Section 12.3.

  	
  Paying Agent to Repay Moneys Held

  	
  36

  
	
  Section 12.4.

  	
  Return of Unclaimed Moneys

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XIII.

  	
  IMMUNITY OF
  INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS

  	
  37

  
	
  Section 13.1.

  	
  Indenture and Debentures Solely Corporate
  Obligations

  	
  37

  



 


ii

















 


	
  ARTICLE XIV.

  	
  MISCELLANEOUS
  PROVISIONS

  	
  37

  
	
  Section 14.1.

  	
  Successors

  	
  37

  
	
  Section 14.2.

  	
  Official Acts by Successor Entity

  	
  37

  
	
  Section 14.3.

  	
  Surrender of Company Powers

  	
  37

  
	
  Section 14.4.

  	
  Addresses for Notices, etc

  	
  37

  
	
  Section 14.5.

  	
  Governing Law

  	
  37

  
	
  Section 14.6.

  	
  Evidence of Compliance with Conditions
  Precedent

  	
  37

  
	
  Section 14.7.

  	
  Table of Contents, Headings, etc

  	
  38

  
	
  Section 14.8.

  	
  Execution in Counterparts

  	
  38

  
	
  Section 14.9.

  	
  Separability

  	
  38

  
	
  Section 14.10.

  	
  Assignment

  	
  38

  
	
  Section 14.11.

  	
  Acknowledgment of Rights

  	
  38

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV.

  	
  SUBORDINATION
  OF DEBENTURES

  	
  38

  
	
  Section 15.1.

  	
  Agreement to Subordinate

  	
  38

  
	
  Section 15.2.

  	
  Default on Senior Indebtedness

  	
  39

  
	
  Section 15.3.

  	
  Liquidation, Dissolution, Bankruptcy

  	
  39

  
	
  Section 15.4.

  	
  Subrogation

  	
  40

  
	
  Section 15.5.

  	
  Trustee to Effectuate Subordination

  	
  40

  
	
  Section 15.6.

  	
  Notice by the Company

  	
  40

  
	
  Section 15.7.

  	
  Rights of the Trustee; Holders of Senior
  Indebtedness

  	
  41

  
	
  Section 15.8.

  	
  Subordination May Not Be Impaired

  	
  41

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of
  Floating Rate Junior Subordinated Deferrable Interest Debenture

  	
   

  
	
  Exhibit B

  	
  Form of
  Certificate to Trustee

  	
   

  
				



 


iii
















 


THIS INDENTURE, dated as of June 20, 2008,
between Tennessee Commerce Bancorp, Inc., a Tennessee corporation (the “Company”),
and Wilmington Trust Company, a Delaware banking corporation, as debenture
trustee (the “Trustee”).


 


WITNESSETH:


 


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


 


WHEREAS, all acts and things necessary to make this
Indenture a valid agreement according to its terms, have been done and
performed;


 


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 1.1.           Definitions.  The terms defined in this Section 1.1
(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 1.1.
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 5.1(a), (d), (e) or (f), 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 Interest” has the meaning set
forth in Section 2.11.


 


“Additional 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) initially
issued after the date of this Indenture 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, as amended) 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 (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 Additional Junior Indebtedness as
Tier 1 capital shall not disqualify it as Additional Junior Indebtedness if
such inability results from the Company having cumulative preferred stock,
minority interests in consolidated subsidiaries, or any other class of security
or interest which the Federal Reserve now or may hereafter accord Tier 1
capital treatment (including the Debentures) in excess of the amount which may
qualify for treatment as Tier 1 capital under applicable capital adequacy
guidelines.


 


“Additional Sums” has the meaning set forth
in Section 3.6.


 


1

















 


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


 


“Authenticating Agent” means 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, U.S. Code,
or any similar federal or state law for the relief of debtors.


 


“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.


 


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


 


“Capital 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 upon the occurrence and
continuance of an Event of Default (as defined in the Declaration), 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 Capital Securities.


 


“Capital Securities Guarantee” means the
guarantee agreement that the Company enters into with Wilmington Trust Company,
as guarantee trustee, or other Persons that operates directly or indirectly for
the benefit of holders of Capital Securities of the Trust.


 


“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 the occurrence of 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 as the result of 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 an amount
equal to the aggregate liquidation amount of the Capital Securities as “Tier 1
Capital” (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 or otherwise is not
subject to the Federal Reserve’s risk-based capital adequacy guidelines, 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 liquidation amount of the Capital Securities
as Tier l Capital shall not constitute the basis for a Capital Treatment Event,
if such inability results from the Company having cumulative preferred stock,
minority interests in consolidated subsidiaries, or any other class of security
or interest which the Federal Reserve may now or hereafter accord Tier 1
Capital treatment in excess of the amount which may now or hereafter qualify
for treatment as Tier 1 Capital under applicable capital adequacy guidelines; provided further, however, that the
distribution of Debentures in connection with the liquidation of the Trust
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.


 


“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.


 


“Common Securities” means undivided beneficial
interests in the assets of the Trust which rank pari passu with Capital Securities issued by the Trust; provided,
however, that upon the occurrence and continuance of an Event of Default
(as defined in the Declaration), the rights of holders of such Common
Securities to payment in 


 


2

















 


respect of distributions and
payments upon liquidation, redemption and otherwise are subordinated to the
rights of holders of such Capital Securities.


 


“Company” means Tennessee Commerce Bancorp, Inc.,
a Tennessee corporation, and, subject to the provisions of Article XI,
shall include its successors and assigns.


 


“Coupon Rate” has the meaning set forth in Section 2.8.


 


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


 


“Debenture Register” has the meaning
specified in Section 2.5.


 


“Declaration” means the Amended and Restated
Declaration of Trust of the Trust, 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 2.8.


 


“Distribution Period” means (i) with
respect to interest paid on the first Interest Payment Date, the period
beginning on (and including) the date of original issuance and ending on (but
excluding) the Interest Payment Date in September 2008 and (ii) thereafter,
with respect to interest paid on each successive Interest Payment Date, the
period beginning on (and including) the preceding Interest Payment Date and
ending on (but excluding) such current Interest Payment Date.


 


“Event of Default” means any event specified
in Section 5.1, continued for the period of time, if any, and after the
giving of the notice, if any, therein designated.


 


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


 


“Federal Reserve” means the Board of
Governors of the Federal Reserve System, or its designated district bank, as
applicable, and any successor federal agency that is primarily responsible for
regulating the activities of bank holding companies.


 


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


 


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


 


“Interest Payment Date” means March 31, June 30,
September 30 and December 31 of each year during the term of this
Indenture commencing in September 2008, or if such day is not a Business
Day, then the next succeeding Business Day (it being understood that interest
accrues for any such non-Business Day), unless such Business Day is in the next succeeding
calendar year, in which case the immediately preceding Business Day.


 


“Interest Rate” means the applicable Coupon
Rate for each Distribution Period.


 


“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 the occurrence of a change in law or
regulation or written change (including any announced prospective change) in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, there is more than an
insubstantial risk that the 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 or would become effective, as the case
may be, on or after the date of the issuance of the Debentures.


 


3

















 


“Liquidation Amount” means the stated amount
of $1,000.00 per Capital Security and $100.00 per Common Security.


 


“Maturity Date” means June 30, 2038.


 


“Officers’ Certificate” means a certificate
signed by the Chairman of the Board, the Chief Executive Officer, the Vice
Chairman, the President, any Managing Director or any Vice President, and by
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 14.6 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 an employee of or 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 14.6 if
and to the extent required by the provisions of such Section.


 


The term “outstanding,” when used with
reference to Debentures, means, subject to the provisions of Section 7.4,
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, however,
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 Section 10.3 or provision satisfactory to the Trustee shall have been
made for giving such notice; and


 


(c)           Debentures paid pursuant to Section 2.6 or in
lieu of or in substitution for which other Debentures shall have been
authenticated and delivered pursuant to the terms of Section 2.6 unless
proof satisfactory to the Company and the Trustee is presented that any such
Debentures are held by bona fide holders in due course.


 


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


 


“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 purposes of
this definition, any Debenture authenticated and delivered under Section 2.6
in lieu of a lost, destroyed or stolen Debenture shall be deemed to evidence
the same debt as the lost, destroyed or stolen Debenture.


 


“Principal Office of the Trustee,” or other
similar term, means the office of the Trustee, at which at any particular time
its corporate trust business shall be principally administered, which at the
time of the execution of this Indenture shall be Rodney Square North, 1100
North Market Street, Wilmington, Delaware 19890-1600, Attention: Corporate
Trust Administration.


 


“Redemption Date” has the meaning set forth
in Section 10.1.


 


“Redemption Price” means 100% of the
principal amount of the Debentures being redeemed, plus accrued and unpaid
interest (including any Additional Interest) on such Debentures to the
Redemption Date.


 


“Responsible Officer” means, with respect to
the Trustee, any officer within the Principal Office of the Trustee, 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 Principal Trust Office of the Trustee 


 


4

















 


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 from time to time or any successor legislation.


 


“Securityholder,” “holder of Debentures,”
or other similar terms, means any Person in whose name at the time a particular
Debenture is registered on the register kept by the Company or the Trustee for
that purpose in accordance with the terms hereof.


 


“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 Additional 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 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 Federal Reserve, 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.


 


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


 


“Special Redemption Date” has the meaning set
forth in Section 10.2.


 


“Special Redemption Price” means the
price set forth in the following table for any Special Redemption Date that
occurs on the date indicated below (or if such day is not a Business Day, then
the next succeeding Business Day), expressed as the percentage of the principal
amount of the Debentures being redeemed:


 


5

















 


	
  Month in which Special

  Redemption Date Occurs

  	
   

  	
  Special

  Redemption Price

  	
   

  
	
  September 2008

  	
   

  	
  104.625

  	
  %

  
	
  December 2008

  	
   

  	
  104.300

  	
  %

  
	
  March 2009

  	
   

  	
  104.000

  	
  %

  
	
  June 2009

  	
   

  	
  103.650

  	
  %

  
	
  September 2009

  	
   

  	
  103.350

  	
  %

  
	
  December 2009

  	
   

  	
  103.000

  	
  %

  
	
  March 2010

  	
   

  	
  102.700

  	
  %

  
	
  June 2010

  	
   

  	
  102.350

  	
  %

  
	
  September 2010

  	
   

  	
  102.050

  	
  %

  
	
  December 2010

  	
   

  	
  101.700

  	
  %

  
	
  March 2011

  	
   

  	
  101.400

  	
  %

  
	
  June 2011

  	
   

  	
  101.050

  	
  %

  
	
  September 2011

  	
   

  	
  100.750

  	
  %

  
	
  December 2011

  	
   

  	
  100.450

  	
  %

  
	
  March 2012

  	
   

  	
  100.200

  	
  %

  
	
  June 2012 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


plus, in each case, accrued and unpaid interest
(including any Additional Interest) on such Debentures 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 by 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 by one or more of its Subsidiaries, or by such Person
and one or more of its Subsidiaries and (iii) any limited partnership of
which such Person or any of its Subsidiaries is a general partner. 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 advice, 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 more than a de
minimis amount of other taxes, duties or other governmental charges.


 


“Trust” shall mean Tennessee Commerce Statutory
Trust II, a Delaware statutory trust, or any other similar trust created for
the purpose of issuing Capital Securities in connection with the issuance of
Debentures under this Indenture, of which the Company is the sponsor.


 


6

















 


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


 


“Trustee” means Wilmington Trust Company,
and, subject to the provisions of Article VI hereof, shall also include
its successors and assigns as Trustee hereunder.


 


ARTICLE II.

DEBENTURES


 


Section 2.1.           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 $14,949,500.00 may be executed and delivered
by the Company to the Trustee for authentication, and the Trustee, upon receipt
of a written authentication order from the Company, 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,
Chief Executive Officer, Vice Chairman, the President, one of its Managing
Directors or one of its Vice Presidents without any further action by the
Company hereunder. Notwithstanding anything to the contrary contained herein,
the Trustee shall be fully protected in relying upon the aforementioned
authentication order and written order in authenticating and delivering said
Debentures. 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 6.1) 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 of the Company, as the case may be; and


 


(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 in writing 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 holders.


 


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.


 


Section 2.2.           Form of
Trustee’s Certificate of Authentication. The Trustee’s
certificate of authentication on all Debentures shall be in substantially the
following form:


 


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


 


7

















 


WILMINGTON TRUST COMPANY, as Trustee


 


	
  By

  	
   

  	
   

  



Authorized Signer


 


Section 2.3.           Form and
Denomination of Debentures. The Debentures
shall be substantially in the form of Exhibit A attached hereto. The
Debentures shall be in registered, certificated form without coupons and in
minimum denominations of $100.00 and any multiple of $100.00 in excess thereof.
Any attempted transfer of the Debentures in a block having an aggregate
principal amount of less than $100.00 shall be deemed to be void and of no
legal effect whatsoever. Any such purported transferee shall be deemed not to
be a holder of such Debentures for any purpose, including, but not limited to
the receipt of payments on such Debentures, and such purported transferee shall
be deemed to have no interest whatsoever in such Debentures. 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 2.4.           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, Chief Executive Officer,
Vice Chairman, President, one of its Managing Directors or one of its Executive
Vice Presidents, Senior Vice Presidents or Vice Presidents. 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 signature of an authorized signer, 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 2.5.           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 3.2,
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 in this Article II provided. The Debenture 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 3.2, 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 Principal Office of the
Trustee or at any office or agency of the Company maintained for such purpose
as provided in Section 3.2, 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 3.2, 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 


 


8

















 


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.


 


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


 


Notwithstanding anything herein to the contrary,
Debentures may not be transferred except in compliance with the restricted
securities legend set forth below, unless otherwise determined by the Company,
upon the advice of counsel expert in securities law, in accordance with
applicable law:


 


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.


 


THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), ANY STATE SECURITIES
LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY ONLY (A) TO THE COMPANY, (B) PURSUANT
TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A IN
ACCORDANCE WITH RULE 144A, (D) TO A NON-U.S. PERSON IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED
INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (A) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY
OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF
WHICH MAY BE OBTAINED FROM THE COMPANY.


 


THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT,
INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”),
OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”)
(EACH A “PLAN”), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY
REASON OF ANY PLAN’S INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING “PLAN
ASSETS” OF ANY PLAN MAY ACQUIRE OR HOLD 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 


 


9

















 


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 WILL BE ISSUED AND MAY BE
TRANSFERRED ONLY IN BLOCKS HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS
THAN $100.00 AND MULTIPLES OF $100.00 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER
OF THIS SECURITY IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN
$100.00 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.


 


THE HOLDER OF THIS SECURITY AGREES THAT IT WILL
COMPLY WITH THE FOREGOING RESTRICTIONS.


 


Section 2.6.           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 2.6 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 2.7.           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 or lithographed. Temporary Debentures shall be issuable in any
authorized denomination, and substantially in the form of the definitive
Debentures in lieu of which they are issued but with such omissions, insertions
and variations as may be appropriate for temporary Debentures, all as may be
determined by the Company. Every 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 


 


10

















 


Debentures and thereupon any
or all temporary Debentures may be surrendered in exchange therefor, at the
principal corporate trust office of the Trustee or at any office or agency
maintained by the Company for such purpose as provided in Section 3.2, 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 2.8.           Payment of
Interest and Additional Interest. Interest at
the Interest Rate and any Additional Interest on any Debenture that is payable,
and is punctually paid or duly provided for, on any Interest Payment Date for
Debentures shall be paid to the Person in whose name said 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 shall be paid to the Person to
whom principal is paid.


 


Each Debenture shall bear interest for each
Distribution Period at
the floating rate per annum, reset quarterly on the first Business Day of each
Distribution Period, equal to the prime rate of interest so published in the “Money
Rates” table in the Eastern Edition of The
Wall Street Journal on the first Business Day of such Distribution
Period (or if more than one rate is so indicated in The Wall Street Journal, the prime rate shall equal the
highest rate provided),
plus 50 basis points (but in no
event shall such floating rate be greater than 8.0% or less than 5.75%) (the “Coupon
Rate”), applied to the principal amount thereof, until the principal
thereof becomes due and payable, and on any overdue principal and to the extent
that payment of such interest is enforceable under applicable law (without
duplication) on any overdue installment of interest (including Additional
Interest) at the Interest Rate in effect for each applicable period compounded
quarterly. Interest shall be payable (subject to any relevant Extension Period)
quarterly in arrears on each Interest Payment Date with the first installment
of interest to be paid on the Interest Payment Date in September 2008.


 


Any interest on any Debenture, including Additional
Interest, that is payable, but is not punctually paid or duly provided for, on
any Interest Payment Date (herein called “Defaulted Interest”) shall
forthwith cease to be payable to the registered 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 at least 25 days prior to the date of the proposed payment
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 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 in this clause
provided. Thereupon the Trustee shall fix a special record date for the payment
of such Defaulted Interest which shall not be more than 15 nor less than 10
days prior to the date of the proposed payment and not less than 10 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 its address as it
appears in the Debenture Register, not less than 10 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 shall be no longer payable.


 


The Company may make payment of any Defaulted
Interest on any Debentures in any other lawful manner after notice given by the
Company to the Trustee of the proposed payment method; provided, however,
the Trustee in its sole discretion deems such payment method to be practical.


 


11

















 


Any interest (including Additional Interest)
scheduled to become payable on an 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 close of business on the 15th Business Day
preceding the applicable Interest Payment Date.


 


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 2.9.           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. 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.        Computation
of Interest. The amount of interest
payable for each Distribution Period will be calculated by applying the
Interest Rate to the principal amount outstanding at the commencement of the
Distribution Period on the basis of the actual number of days in the
Distribution Period concerned divided by 360. All percentages resulting from
any calculations on the Debentures will be rounded, if necessary, to the
nearest one hundred-thousandth of a percentage point, with five one-millionths
of a percentage point rounded upward (e.g., 9.876545% (or .09876545) being
rounded to 9.87655% (or .0987655), and all dollar amounts used in or resulting
from such calculation will be rounded to the nearest cent (with one-half cent
being rounded upward)).


 


(a)           The Interest Rate for any Distribution Period will
at no time be higher than the maximum rate then permitted by New York law as
the same may be modified by United States law.


 


(b)           The Trustee shall notify the Company, the
Institutional Trustee and any securities exchange or interdealer quotation
system on which the Capital Securities are listed, of the Coupon Rate and the
Interest Payment Date for each Distribution Period, in each case as soon as
practicable after the determination thereof but in no event later than the
thirtieth (30th) day of the relevant Distribution Period. Failure to notify the
Company, the Institutional Trustee or any securities exchange or interdealer
quotation system, or any defect in said notice, shall not affect the obligation
of the Company to make payment on the Debentures at the applicable Coupon Rate.
Any error in the calculation of the Coupon Rate by the Trustee may be corrected
at any time by notice delivered as above provided. Upon the request of a holder
of a Debenture, the Trustee shall provide the Coupon Rate then in effect and,
if determined, the Coupon Rate for the next Distribution Period.


 


(c)           All certificates, communications, opinions,
determinations, calculations, quotations and decisions given, expressed, made
or obtained for the purposes of the provisions relating to the payment and
calculation of interest on the Debentures and distributions on the Capital
Securities by the Trustee or the Institutional Trustee will (in the absence of
willful default, bad faith and manifest error) be final, conclusive and binding
on the Trust, the Company and all of the holders of the Debentures and the
Capital Securities, and no liability shall (in the absence of willful default,
bad faith or manifest error) attach to the Trustee or the Institutional Trustee
in connection with the exercise or non-exercise by either of them or their
respective powers, duties and discretion.


 


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 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 Sums that
may be due and payable).


 


12

















 


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 in
effect for such Extension Period, 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 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 and shall not permit any Affiliate 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 Affiliate’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 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 (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
shareholder 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, (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 shareholders’ rights plan, or the issuance of rights, stock
or other property under any shareholders’ 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) 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 (g) payments under the Capital Securities Guarantee). 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 to the extent permitted by
applicable law. 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 Trustee shall give notice of the Company’s
election to begin a new Extension Period to the Securityholders.


 


Section 2.12.        CUSIP
Numbers. The Company in issuing the
Debentures may use “CUSIP” numbers (if then generally in use), and, if so, the
Trustee shall use CUSIP numbers in notices of redemption as a convenience to
Securityholders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers 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 numbers.


 


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ARTICLE III.


PARTICULAR COVENANTS OF THE
COMPANY


 


Section 3.1.           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 the principal of and premium, if any,
and interest and any Additional Interest and other payments on the Debentures
at the place, at the respective times and in the manner provided in this
Indenture and the Debentures. Each installment of interest on the Debentures
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 registry
books of the Company if a request for a wire transfer has not been received by
the Company or (ii) by wire transfer to any account with a banking
institution located in the United States designated in writing by such Person
to the paying agent no later than the related record date. 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 Institutional Trustee.


 


(b)           The Company will treat the Debentures as
indebtedness, and the amounts payable in respect of the principal amount of
such Debentures as interest, for all United States federal income tax purposes.
All payments in respect of such Debentures will be made free and clear of
United States withholding tax to any beneficial owner thereof that has provided
an Internal Revenue Service Form W8 BEN (or any substitute or successor
form) establishing its non-United States status for United States federal
income tax purposes.


 


(c)           As of the date of this Indenture, the Company has no
present 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
believes 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 interest on, or
repurchase or redeem, any of its debt securities that rank pari passu in all respects with (or junior
in interest to) the Debentures.


 


Section 3.2.           Offices for
Notices and Payments, etc. So long as any
of the Debentures remain outstanding, the Company will maintain in Wilmington,
Delaware, 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 in this Indenture provided 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 2.5,
such office or agency for all of the above purposes shall be the office or
agency of the Trustee. In case the Company shall fail to maintain any such
office or agency in Wilmington, Delaware, 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, 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, for
the purposes above mentioned. The Company will give to the Trustee prompt
written notice of any such designation or rescission thereof.


 


Section 3.3.           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 6.9, a Trustee, so that there
shall at all times be a Trustee hereunder.


 


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Section 3.4.                                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 3.4,


 


(1)           that it will hold all sums held by it as such agent
for the payment of the principal of and premium, if any, or interest, if any,
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;


 


(2)           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 of the principal of and premium, if any, or interest, if any,
on the Debentures when the same shall be due and payable; and


 


(3)           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 principal of and premium, if any, or
interest or other payments, if any, on the Debentures, set aside, segregate and
hold in trust for the benefit of the holders of the Debentures a sum sufficient
to pay such principal, premium, interest or other 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 of the principal of and premium, if any, or interest or other
payments, if any, 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
principal of and premium, if any, or interest, if any, on the Debentures,
deposit with a paying agent a sum sufficient to pay the principal, premium,
interest or other 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 3.4 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 trusts herein contained.


 


(d)           Anything in this Section 3.4 to the contrary
notwithstanding, the agreement to hold sums in trust as provided in this Section 3.4
is subject to Sections 12.3 and 12.4.


 


Section 3.5.           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 during such fiscal year by
the Company in the performance of any covenants 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 and status
thereof. A form of this Certificate is attached hereto as Exhibit B.


 


Section 3.6.           Additional
Sums. If and for so long as the
Trust is the holder of all Debentures and the Trust is required to pay 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 (“Additional Sums”) on the Debentures as shall be
required so that the net amounts received and retained by the Trust after
paying taxes (including withholding taxes), duties, assessments or other
governmental charges will be equal to the amounts the Trust would have received
if no such taxes, duties, assessments or other governmental charges had been
imposed. Whenever in this Indenture or the Debentures there is a reference in
any context to the payment of 


 


15

















 


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


 


Section 3.7.           Compliance
with Consolidation Provisions. The Company
will not, while any of the Debentures remain outstanding, consolidate with, or
merge into, or merge into itself, or sell or convey all or substantially all of
its property to any other Person unless the provisions of Article XI
hereof are complied with.


 


Section 3.8.           Limitation
on Dividends. If Debentures are initially
issued to the Trust or a trustee of such Trust in connection with the issuance
of Trust 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 Capital 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 be continuing, then the
Company shall not, and shall 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
shareholder 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 shareholders’ rights plan, or the issuance of rights,
stock or other property under any shareholders’ 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 Capital Securities Guarantee).


 


Section 3.9.           Covenants
as to the Trust. For so long as
the 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, 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 certain mergers, consolidations or
amalgamations, each as permitted by the Declaration, cause the Trust (a) to
remain a statutory trust, (b) to otherwise continue to be classified as a
grantor trust for United States federal income tax purposes, and (c) to
cause each holder of Trust Securities to be treated as owning an undivided
beneficial interest in the Debentures.


 


16
















 


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 Federal Reserve, has received approval
from) the Federal Reserve.


 


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, as such
term is defined in Section 3(c)(2) of the Federal Deposit Insurance
Act, as amended.


 


ARTICLE IV.


SECURITYHOLDERS’ LISTS AND REPORTS


BY THE COMPANY AND THE TRUSTEE


 


Section 4.1.                                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 the Debentures, 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 4.1 so long as the Trustee is in possession thereof by
reason of its acting as Debenture registrar.


 


Section 4.2.                                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 4.1 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 4.1
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 6 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 5 Business Days
after the receipt of such application, at its election, either:


 


(1)                                  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 4.2,
or


 


(2)                                  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 4.2,
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 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 4.2


 


17

















 


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 neither the Company nor the Trustee nor 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 4.2, 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).


 


ARTICLE V.


REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS


UPON AN EVENT OF DEFAULT


 


Section 5.1.                                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
20 or more consecutive Distribution Periods; 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,


 


18

















 


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)                                    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 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.


 


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 5.2.                                Payment
of Debentures on Default; Suit Therefor. The Company covenants that
upon the occurrence of an Event of Default pursuant to Section 5.1(a) or
(b) then, 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 for principal and premium,
if any, or interest, or both, as the case may be, with Additional Interest
accrued on the Debentures (to the extent that payment of such interest is
enforceable under applicable law and, if the Debentures are held by the Trust
or a trustee of such Trust, without duplication of any other amounts paid by
the Trust or a trustee in respect thereof); 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 6.6.
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


 


19

















 


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 declaration of acceleration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 5.2, shall be entitled and empowered, by
intervention in such proceedings or otherwise,


 


(i)                                     to file and prove
a claim or claims for the whole amount of principal and interest owing and
unpaid in respect of the Debentures,


 


(ii)                                  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 6.6),
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,


 


(iii)                               to collect and receive
any moneys or other property payable or deliverable on any such claims, and


 


(iv)                              to distribute the same
after the deduction of its charges and expenses.


 


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 6.6.


 


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.


 


20

















 


Section 5.3.                                Application
of Moneys Collected by Trustee. Any moneys collected by the Trustee
pursuant to this Article V 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 6.6;


 


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 for
principal (and premium, if any), and interest on the 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 on such
Debentures (including Additional Interest); and


 


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


 


Section 5.4.                                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
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.


 


Notwithstanding any other provisions in this
Indenture, however, the right of any holder of any Debenture to receive payment
of the principal of, 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 and by accepting a
Debenture hereunder it is expressly understood, intended and covenanted by the
taker and holder of every Debenture with every other such taker and holder and
the Trustee, that no one or more holders of Debentures shall have any right in
any manner whatsoever by virtue or by availing itself of any provision of this
Indenture to affect, disturb or prejudice the rights of the holders of any
other Debentures, or to obtain or seek to obtain priority over or preference to
any other such holder, or to enforce any right under this Indenture, except in
the manner herein provided and for the equal, ratable and common benefit of all
holders of Debentures. For the protection and enforcement of the provisions of
this Section, each and every Securityholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.


 


Section 5.5.                                Proceedings
by Trustee. In case of an Event of Default hereunder 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 5.6.                                Remedies
Cumulative and Continuing; Delay or Omission Not a Waiver. Except as
otherwise provided in Section 2.6, 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, remedy or power
accruing upon any Event of Default occurring and continuing as aforesaid shall
impair any such right, remedy 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 5.4,
every power and remedy given by this Article V


 


21

















 


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 (in accordance with its duties under Section 6.1)
or by the Securityholders.


 


Section 5.7.                                Direction
of Proceedings and Waiver of Defaults by Majority of Securityholders.
The holders of a majority in aggregate principal amount of the Debentures
affected (voting as one class) at the time outstanding 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
(subject to the provisions of Section 6.1) 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.


 


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, 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 3.9;
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 Trust
Securities of the Trust shall have consented to such waiver or modification to
such waiver, provided, further, that if the consent of the holder
of each outstanding Debenture is required, such waiver shall not be effective
until each holder of the Trust Securities of the Trust shall have consented to
such waiver. Upon any such waiver, the default covered thereby shall be deemed
to be cured for all purposes of this Indenture and the Company, the Trustee and
the holders of the Debentures shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or 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 5.8.                                Notice
of Defaults. The Trustee shall, within 90 days after the actual
knowledge by a Responsible Officer of the Trustee 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 “defaults”
for the purpose of this Section 5.8 being hereby defined to be the events
specified in clauses (a), (b), (c), (d), (e) and (f) of Section 5.1,
not including periods of grace, if any, provided for therein); provided,
however, that, except in the case of default in the payment of the
principal of, 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 5.9.                                Undertaking
to Pay Costs. All parties to this Indenture agree, and each holder of
any Debenture by his 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; provided, however, that the provisions of this Section 5.9
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 Debentures outstanding, or 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.


 


22

















 


ARTICLE VI.


CONCERNING THE TRUSTEE


 


Section 6.1.                                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 with respect to the Debentures and after the curing or waiving of
all Events of Default which may have occurred, with respect to the Debentures,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. 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 man would
exercise or use under the circumstances in the conduct of his 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, except that:


 


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


 


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


 


(2)                                  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 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; and


 


(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 5.7,
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.


 


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


 


Section 6.2.                                Reliance
on Documents, Opinions, etc. Except as otherwise provided in Section 6.1:


 


(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 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


 


23

















 


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 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 (that has not been cured or waived) to exercise with
respect to 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 man would exercise or use under the circumstances in the conduct of his
own affairs;


 


(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 not less than 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;


 


(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; and


 


(h)                                 with the exceptions of
defaults under Sections 5.1(a) or (b), the Trustee shall not be charged
with knowledge of any Default or Event of Default with respect to the
Debentures unless a 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.


 


Section 6.3.                                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 6.4.                                Trustee,
Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own
Debentures. The Trustee or any Authenticating Agent or any paying agent
or 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 6.5.                                Moneys
to be Held in Trust. Subject to the provisions of Section 12.4,
all moneys received by the Trustee or any paying agent shall, until used or
applied as herein provided, be held in trust for the


 


24

















 


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 shall be paid from
time to time upon the written order of the Company, signed by the Chairman of
the Board of Directors, the Chief Executive Officer, the President, a Managing
Director, a Vice President, the Treasurer or an Assistant Treasurer of the Company.


 


Section 6.6.                                Compensation
and Expenses of Trustee. The Company covenants and agrees to pay or
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or willful misconduct. For purposes of
clarification, this Section 6.6 does not contemplate the payment by the
Company of acceptance or annual administration fees owing to the Trustee
pursuant to the services to be provided by the Trustee under this Indenture or
the fees and expenses of the Trustee’s counsel in connection with the closing
of the transactions contemplated by this Indenture. The Company also covenants
to indemnify each of the Trustee or 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) incurred without negligence or willful
misconduct on the part of the Trustee and 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 of liability. The obligations of
the Company under this Section 6.6 to compensate and indemnify the Trustee
and to pay or reimburse the Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder. Such additional
indebtedness shall be secured by a lien prior to that of the Debentures upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the holders of particular Debentures.


 


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 Section 5.1(d),
(e) or (f), 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 6.7.                                Officers’
Certificate as Evidence. Except as otherwise provided in Sections 6.1
and 6.2, 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 or willful misconduct on the part of the Trustee, be
deemed to be conclusively proved and established by an Officers’ Certificate
delivered to the Trustee, and such certificate, in the absence of negligence or
willful misconduct 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 6.8.                                Eligibility
of Trustee. The Trustee hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or
any state or territory thereof or of the District of Columbia or a corporation
or other Person authorized under such laws to exercise corporate trust powers,
having (or whose obligations under this Indenture are guaranteed by an
affiliate having) a combined capital and surplus of at least 50 million U.S.
dollars ($50,000,000.00) and subject to supervision or examination by federal,
state, territorial, or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 6.8 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 records of condition so published.


 


25

















 


The Company may not, nor may any Person
directly or indirectly controlling, controlled by, or under common control with
the Company, serve as Trustee.


 


In case at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section 6.8, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 6.9.


 


If the Trustee has or shall acquire any “conflicting
interest” within the meaning of § 310(b) of the Trust Indenture Act of
1939, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner described by this Indenture.


 


Section 6.9.                                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 5.9, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
Trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor Trustee.


 


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


 


(1)                                  the Trustee shall
fail to comply with the provisions of Section 6.8 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 6 months, or


 


(2)                                  the Trustee shall
cease to be eligible in accordance with the provisions of Section 6.8 and
shall fail to resign after written request therefor by the Company or by any
such Securityholder, or


 


(3)                                  the Trustee shall
become incapable of acting, or shall be adjudged as 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 5.9, any
Securityholder who has been a bona fide holder of a Debenture or Debentures for
at least 6 months may, on behalf of himself 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 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 10 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 6.9 provided, may petition any court
of competent jurisdiction for an appointment of a successor.


 


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(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 6.9
shall execute, acknowledge and deliver to the Company and to its predecessor
Trustee an instrument accepting such appointment hereunder, 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 the successor Trustee, the Trustee ceasing to act shall, upon
payment of any amounts then due it pursuant to the provisions of Section 6.6,
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 thereunder. 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 6.6.


 


If a successor Trustee is appointed, the
Company, the retiring Trustee and the successor Trustee shall execute and
deliver an indenture supplemental hereto which shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Debentures as to
which the predecessor Trustee is not retiring shall continue to be vested in
the predecessor Trustee, and shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the Trust hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be Trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee.


 


No successor Trustee shall accept appointment
as provided in this Section unless at the time of such acceptance such
successor Trustee shall be eligible under the provisions of Section 6.8.


 


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 6.10, 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 10 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 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.


 


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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 or territory 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 $50,000,000.00 and being subject to supervision or
examination by federal, state, territorial or District of Columbia authority.
If such corporation publishes reports of condition at least annually pursuant
to law or the requirements of such authority, then for the purposes of this Section 6.12
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 business of any Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, if such
successor corporation is otherwise eligible under this Section 6.12
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 6.12,
the Trustee may, and upon the request of the Company shall, promptly appoint a
successor Authenticating Agent eligible under this Section 6.12, 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 with respect to the Debentures 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.


 


ARTICLE VII.


CONCERNING THE SECURITYHOLDERS


 


Section 7.1.                                Action
by Securityholders. Whenever in this Indenture it is provided that the
holders of a specified percentage in aggregate principal amount of the
Debentures may take any action (including the making of any demand or request,
the giving of any notice, consent or waiver or the taking of any other action)
the fact that at the time of taking any such action the holders of such
specified percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by such
Securityholders 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 (c) by a combination of such instrument or
instruments and any such record of such a meeting of such Securityholders 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


 


28

















 


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 6 months after the record date.


 


Section 7.2.                                Proof
of Execution by Securityholders. Subject to the provisions of Section 6.1,
6.2 and 8.5, proof of the execution of any instrument by a Securityholder or
his 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 8.6.


 


Section 7.3.                                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 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.


 


Section 7.4.                                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 or any other obligor on the Debentures
shall be disregarded and deemed not to be outstanding for the purpose of any
such determination; provided, however, 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 7.4 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 7.5.                                Revocation
of Consents; Future Holders Bound. At any time prior to (but not after)
the evidencing to the Trustee, as provided in Section 7.1, 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 7.1)
or any holder as of an applicable record date (in cases where a record date has
been set pursuant to Section 7.1) 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 7.2, 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


 


29

















 


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.


 


ARTICLE VIII.


SECURITYHOLDERS’ MEETINGS


 


Section 8.1.                                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 9.2; 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 8.2.                                Call
of Meetings by Trustee. The Trustee may at any time call a meeting of
Securityholders to take any action specified in Section 8.1, to be held at
such time and at such place 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 and, if the Company is not a holder of
Debentures, to the Company. Such notice shall be mailed not less than 20 nor
more than 180 days prior to the date fixed for the meeting.


 


Section 8.3.                                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
for such meeting and may call such meeting to take any action authorized in Section 8.1,
by mailing notice thereof as provided in Section 8.2.


 


Section 8.4.                                Qualifications
for Voting. To be entitled to vote at any meeting of Securityholders a
Person shall (a) be a holder of one or more Debentures with respect to
which the meeting is being held or (b) a Person appointed by an instrument
in writing as proxy by a holder of one or more such 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 8.5.                                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 think fit.


 


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 8.3,
in which case the Company or the Securityholders calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by majority
vote of the meeting.


 


30

















 


Subject to the provisions of Section 7.4,
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 $100.00
principal amount of Debentures held or represented by him; 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 him or instruments in
writing as aforesaid duly designating him as the Person to vote on behalf of
other Securityholders. Any meeting of Securityholders duly called pursuant to
the provisions of Section 8.2 or 8.3 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 8.6.                                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 8.2. 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 8.7.                                Quorum;
Actions. The Persons entitled to vote a majority in 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 principal amount of the
Debentures then outstanding, the Persons holding or representing such specified
percentage in 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 8.2, except that such notice need be given only once
not less than 5 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 principal amount of the
Debentures then outstanding which shall constitute a quorum.


 


Except as limited by the provisos in the
first paragraph of Section 9.2, 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 principal
amount of the Debentures then outstanding; provided, however,
that, except as limited by the provisos in the first paragraph of Section 9.2,
any resolution with respect to any consent, waiver, request, demand, notice,
authorization, direction or other action which this Indenture expressly
provides may be given by the holders of not less than a specified percentage in
principal amount of the Debentures then outstanding may be adopted at a meeting
or an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid only by the affirmative vote of the holders of a not less than such
specified percentage in 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.


 


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ARTICLE IX.


SUPPLEMENTAL
INDENTURES


 


Section 9.1.           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;


 


(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 materially adversely affect the interests of the holders
of the Debentures;


 


(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 Capital Securities as required by Section 2.5 (for
purposes of assuring that no registration of Debentures is required under the
Securities Act); provided, however, 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 that were applicable
to Capital Securities shall not be deemed to materially 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;


 


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


 


(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.


 


32

















 


Any supplemental indenture authorized by the
provisions of this Section 9.1 may be executed by the Company and the
Trustee without the consent of the holders of any of the Debentures at the time
outstanding, notwithstanding any of the provisions of Section 9.2.


 


Section 9.2.           Supplemental
Indentures with Consent of Securityholders. With the consent (evidenced
as provided in Section 7.1) of the holders of not less than a majority in
aggregate principal amount of the Debentures at the time outstanding affected
by such supplemental indenture (voting as a class), 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 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; provided
further, however, that if the
Debentures are held by a trust or a trustee of such trust, such supplemental
indenture shall not be effective until the holders of a majority in Liquidation
Amount of Trust Securities shall have consented to such supplemental indenture;
provided  further,
however, 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 Trust 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 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 9.2 to approve the particular form
of any proposed supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.


 


Section 9.3.           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, 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 9.4.           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.


 


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Section 9.5.           Evidence of Compliance
of Supplemental Indenture to be Furnished to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, shall, in addition to the
documents required by Section 14.6, receive an Officers’ Certificate and
an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant hereto complies with the requirements of this Article IX.
The Trustee shall 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 10.1.        Optional Redemption.
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 or in part, but in all cases in a principal amount with
integral multiples of $100.00, on any Interest Payment Date on or after the
Interest Payment Date in June 2013 (the “Redemption Date”), at the
Redemption Price.


 


Section 10.2.        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 Interest Payment Date, within 120 days following
the occurrence of such Special Event (the “Special Redemption Date”) at
the Special Redemption Price.


 


Section 10.3.        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 cause to be mailed a notice of such redemption at least 30 and not more
than 60 days prior to the Redemption Date or the Special Redemption Date 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 Redemption Date
or the Special Redemption Date, as applicable, the Redemption Price or the
Special Redemption Price, as applicable, 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 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 Redemption Date or the Special Redemption
Date, as applicable, all the Debentures so called for redemption at the
appropriate 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 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 $100.00) to be redeemed.


 


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Section 10.4.        Payment of Debentures
Called for Redemption. If notice of redemption has been given as
provided in Section 10.3, the Debentures or portions of Debentures with
respect to which such notice has been given shall become due and payable on the
Redemption Date or Special Redemption Date, as applicable, and at the place or
places stated in such notice at the applicable Redemption Price or Special
Redemption Price and on and after said date (unless the Company shall default
in the payment of such Debentures at the 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 applicable Redemption Price or Special Redemption Price.


 


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.


 


ARTICLE XI.


CONSOLIDATION,
MERGER, SALE, CONVEYANCE AND LEASE


 


Section 11.1.        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.


 


Section 11.2.        Successor Entity to be
Substituted. In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition and upon the assumption by the
successor entity, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of 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 in its own name, 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 entity 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.


 


Section 11.3.        Opinion of Counsel to
be Given to Trustee. The Trustee, subject to the provisions of Sections
6.1 and 6.2, shall receive, in addition to the Opinion of Counsel required by Section 9.5,
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.


 


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ARTICLE XII.


SATISFACTION
AND DISCHARGE OF INDENTURE


 


Section 12.1.        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 2.6) 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 1 year or are to be
called for redemption within 1 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 2.6) not
theretofore canceled or delivered to the Trustee for cancellation, including
principal and premium, if any, and interest due or to become due to such date
of maturity or 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 12.4, 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
clause (b) 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 2.5, 2.6, 2.8, 3.1, 3.2,
3.4, 6.6, 6.8, 6.9 and 12.4 hereof shall survive until such Debentures shall
mature and be paid. Thereafter, Sections 6.6 and 12.4 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 agrees 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 12.2.        Deposited Moneys to be
Held in Trust by Trustee. Subject to the provisions of Section 12.4,
all moneys deposited with the Trustee pursuant to Section 12.1 shall be
held in trust in a non-interest bearing account 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, and premium, if any, and
interest.


 


Section 12.3.        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 it or paid to the Trustee, and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.


 


Section 12.4.        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
for 2 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, subject to applicable escheatment laws, 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.


 


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ARTICLE XIII.


IMMUNITY OF
INCORPORATORS, SHAREHOLDERS,


OFFICERS AND
DIRECTORS


 


Section 13.1.        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, shareholder, 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 this Indenture and
the issue of the Debentures.


 


ARTICLE XIV.


MISCELLANEOUS
PROVISIONS


 


Section 14.1.        Successors. All
the covenants, stipulations, promises and agreements of the Company in this
Indenture shall bind its successors and assigns whether so expressed or not.


 


Section 14.2.        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 14.3.        Surrender of Company
Powers. The Company by instrument in writing executed by authority of
at least 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 14.4.        Addresses for Notices,
etc. Any notice, consent, direction, request, authorization, waiver or
demand which by any provision of this Indenture is required or permitted to be
given, made, furnished or served by the Trustee or by the Securityholders on or
to 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 the
purpose) to the Company, 381 Mallory Station Road, Suite 207, Franklin,
Tennessee 37067-8264, Attention: Michael Sapp. Any notice, consent, direction,
request, authorization, waiver 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 the Trustee,
addressed to the Trustee, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-1600, Attention: Corporate Trust Administration. Any
notice, consent, direction, request, authorization, waiver or demand on or to
any Securityholder shall be deemed to have been sufficiently given or made, for
all purposes, if given or made in writing at the address set forth in the
Debenture Register.


 


Section 14.5.        Governing Law.
This Indenture and each Debenture shall be deemed to be a contract made under
the law of the State of New York, and for all purposes shall be governed by and
construed in accordance with the law of said State, without regard to conflict
of laws principles thereof.


 


Section 14.6.        Evidence of Compliance
with Conditions Precedent. Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers’ Certificate
stating that in the opinion of the signers all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.


 


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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 shall include (1) a
statement that the person making such certificate or opinion has read such
covenant or condition; (2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that,
in the opinion of such person, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and (4) a statement as
to whether or not in the opinion of such person, such condition or covenant has
been complied with.


 


Section 14.7.        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.


 


Section 14.8.        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 14.9.        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 or illegal
or unenforceable provision had never been contained herein or therein.


 


Section 14.10.      Assignment. The
Company will have the right at all times to assign any of its rights or
obligations under this Indenture to a direct or indirect wholly owned
Subsidiary of the Company, provided that, in the event of any such assignment,
the Company will remain liable for all such obligations. Except as otherwise
set forth in Sections 11.2 or 11.2, this Indenture may not be assigned by the
parties hereto. Subject to the foregoing, this Indenture is binding upon and
inures to the benefit of the parties hereto and their respective successors and
assigns.


 


Section 14.11.      Acknowledgment of Rights.
The Company agrees that, with respect to any Debentures held by the Trust or
the Institutional Trustee of the Trust, if the Institutional Trustee of the
Trust fails to enforce its rights under this Indenture as the holder of
Debentures held as the assets of such Trust after the holders of a majority in
Liquidation Amount of the Capital Securities of such Trust have so directed
such Institutional Trustee, a holder of record of such Capital Securities may,
to the fullest extent permitted by law, institute legal proceedings directly
against the Company to enforce such Institutional 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) or principal on the Debentures on
the date such interest (or premium, if any) or principal is otherwise payable
(or in the case of redemption, on the redemption date), the Company agrees that
a holder of record of Capital 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 Capital Securities of such holder on or after the respective due date
specified in the Debentures.


 


ARTICLE XV.


SUBORDINATION
OF DEBENTURES


 


Section 15.1.        Agreement to
Subordinate. The Company covenants and agrees, and each holder of
Debentures by such Securityholder’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 thereafter incurred;
provided, however, that the Debentures shall rank pari passu in all material respects with
any


 


38

















 


current indebtedness, liabilities or
obligations of the Company, or any Subsidiary of the Company, under debt
securities (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, as amended)
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.


 


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


 


Section 15.2.        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 payment
due on any Senior Indebtedness of the Company following any 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 the
principal (including redemption) of, or premium, if any, or interest on the
Debentures.


 


In the event that, notwithstanding the
foregoing, any payment shall be received by the Trustee when such payment is
prohibited by the preceding paragraph of this Section 15.2, such payment
shall, subject to Section 15.7, be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Indebtedness or their
respective representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Indebtedness may have been issued, as
their respective interests may appear, but only to the extent that the holders
of the Senior Indebtedness (or their representative or representatives or a
trustee) notify the Trustee in writing within 90 days of such payment of the
amounts then due and owing on the Senior Indebtedness and only the amounts
specified in such notice to the Trustee shall be paid to the holders of Senior
Indebtedness.


 


Section 15.3.        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 or winding-up
or liquidation or reorganization of the Company, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other proceedings,
all amounts due upon all Senior Indebtedness of the Company shall first be paid
in full, or payment thereof provided for in money in accordance with its terms,
before any payment is made by the Company, on account of the principal (and
premium, if any) or interest on the Debentures. Upon any such dissolution or
winding-up or liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to which the 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 (pro rata to such holders on the basis of
the respective amounts of Senior Indebtedness held by such holders, as
calculated by the Company) or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such Senior Indebtedness
in full, in money or money’s worth, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior Indebtedness,
before any payment or distribution is made to the 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 before all Senior Indebtedness 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, 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.


 


39

















 


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, that may at the time be outstanding, provided that (i) such
Senior Indebtedness is assumed by the new corporation, if any, resulting from
any such reorganization or readjustment, and (ii) the rights of the
holders of such Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment. The consolidation of
the Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided for in Article 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 15.2
or in this Section shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 6.6 of this Indenture.


 


Section 15.4.        Subrogation.
Subject to the payment in full of all Senior Indebtedness, 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 the principal of (and
premium, if any) and interest on the Debentures shall be paid in full. 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 Securities, 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 or in the Debentures is intended to or shall
impair, as between the Company, its creditors other than the holders of Senior
Indebtedness, and the holders of the Debentures, the obligation of the Company,
which is absolute and unconditional, to pay to the holders of the Debentures
the principal of (and premium, if any) and interest on the Debentures as and
when the same shall become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the holders of the
Debentures and creditors of the Company, other than the holders of Senior
Indebtedness, 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.


 


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 15.5.        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 15.6.        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 monies to or by the Trustee in
respect of the Debentures pursuant to


 


40

















 


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 monies
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 2 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 2 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 to be a holder of Senior Indebtedness
(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 15.7.        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 shall
deprive the Trustee of any of its rights as such holder.


 


With respect to the holders of Senior
Indebtedness, 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 against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of such
Senior Indebtedness and, subject to the provisions of 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 6.6.


 


Section 15.8.        Subordination May Not
Be Impaired. No right of any present or future holder of any Senior
Indebtedness 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 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: (i) change
the manner, place or terms of payment or extend the time of payment of, or
renew or alter, such Senior Indebtedness, or otherwise amend or supplement in
any manner such Senior Indebtedness or any instrument evidencing the same or
any agreement under which such Senior Indebtedness is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or


 


41

















 


otherwise securing such Senior
Indebtedness; (iii) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company, and any other Person.


 


Signatures appear on the following page


 


42

















 


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.


 


 


	
   

  	
  TENNESSEE COMMERCE BANCORP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Michael R. Sapp

  
	
   

  	
   

  	
  Name:

  	
  Michael R. Sapp

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WILMINGTON TRUST COMPANY,
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Christopher J. Slaybaugh

  
	
   

  	
   

  	
  Name:

  	
  Christopher J. Slaybaugh

  
	
   

  	
   

  	
  Title:

  	
  Assistant Vice President

  



 


43
















 


EXHIBIT A


 


FORM OF
FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE


 


[FORM OF FACE OF SECURITY]


 


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.


 


THIS SECURITY HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY ONLY (A) TO THE COMPANY, (B) PURSUANT
TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A IN
ACCORDANCE WITH RULE 144A, (D) TO A NON-U.S. PERSON IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED
INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (A) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION
IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE
OBTAINED FROM THE COMPANY.


 


THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT,
INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”),
OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”)
(EACH A “PLAN”), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY
REASON OF ANY PLAN’S INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING “PLAN
ASSETS” OF ANY PLAN MAY ACQUIRE OR HOLD 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 


 


A-1

















 


ERISA OR SECTION 4975 OF
THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.


 


THIS SECURITY WILL BE ISSUED AND MAY BE
TRANSFERRED ONLY IN BLOCKS HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS
THAN $100.00 AND MULTIPLES OF $100.00 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER
OF THIS SECURITY IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN
$100.00 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.


 


THE HOLDER OF THIS SECURITY AGREES THAT IT
WILL COMPLY WITH THE FOREGOING RESTRICTIONS.


 


IN CONNECTION WITH ANY TRANSFER, THE HOLDER
WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS MAY BE REQUIRED BY THE INDENTURE TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.


 


Floating Rate Junior Subordinated Deferrable
Interest Debenture


of


Tennessee Commerce Bancorp, Inc.


 


June       ,
2008


 


Tennessee Commerce Bancorp, Inc., a
Tennessee corporation (the “Company” which term includes any successor
Person under the Indenture hereinafter referred to), for value received
promises to pay to Wilmington Trust Company, not in its individual capacity but
solely as Institutional Trustee for Tennessee Commerce Statutory Trust II (the “Holder”)
or registered assigns, the principal sum of fourteen million nine hundred forty-nine  thousand five hundred dollars
($14,949,500.00) on June 30, 2038, and to pay interest on said
principal sum from June       , 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 March 31, June 30, September 30 and December 31
of each year, or if such day is not a Business Day, then the next succeeding
Business Day (it being understood that interest accrues for any such
non-Business Day), unless such Business Day is in the next succeeding
calendar year, in which case the immediately preceding Business Day (each
such date, an “Interest Payment Date”), at the floating rate per annum, reset quarterly on the first Business
Day of each Distribution Period (as hereinafter defined), for the period beginning
on (and including) the date of original issuance and ending on (but excluding)
the Interest Payment Date in September 2008 and for each successive period
beginning on (and including) the preceding Interest Payment Date and ending on
(but excluding) the next succeeding Interest Payment Date (each a “Distribution
Period”), equal to the prime rate
of interest so published in the “Money Rates” table in the Eastern Edition of The Wall Street Journal on the first
Business Day of such Distribution Period (or if more than one rate is so
indicated in The Wall Street Journal,
the prime rate shall equal the highest rate provided), plus 50 basis points
(but in no event shall such floating rate be greater than 8.0% or less than
5.75%) (the “Coupon Rate”), applied to the principal amount
hereof, 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 in effect for each applicable period, compounded quarterly,
from the dates such amounts are due until they are paid or made available for
payment. The amount of interest payable for any period will be computed on the
basis of the actual number of days in the Distribution Period concerned divided
by 360. 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 15 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.


 


A-2

















 


The Interest Rate for any Distribution Period
will at no time be higher than the maximum rate then permitted by New York law
as the same may be modified by United States law.


 


All percentages resulting from any
calculations on the Debentures will be rounded, if necessary, to the nearest
one hundred-thousandth of a percentage point, with five one-millionths of a
percentage point rounded upward (e.g., 9.876545% (or .09876545) being rounded
to 9.87655% (or .0987655), and all dollar amounts used in or resulting from
such calculation will be rounded to the nearest cent (with one-half cent being
rounded upward)).


 


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 Sums 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 in effect for such Extension Period, 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 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
and shall not permit any Affiliate to engage in any of the activities or
transactions described on the reverse side hereof and in 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.


 


A-3

















 


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-4

















 


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


 


 


	
   

  	
  TENNESSEE COMMERCE BANCORP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


 


CERTIFICATE OF AUTHENTICATION


 


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


 


 


	
   

  	
  WILMINGTON TRUST COMPANY,
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  



 


A-5

















 


[FORM OF REVERSE OF DEBENTURE]


 


This Debenture is one of the floating rate
junior subordinated deferrable interest debentures of the Company, all issued
or to be issued under and pursuant to the Indenture dated as of June       ,
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 June 2013, the Company
shall have the right to redeem the Debentures in whole, but not in part, at any
Interest Payment Date, within 120 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 $100.00, on any Interest Payment Date on or
after the Interest Payment Date in June 2013, at the Redemption Price.


 


Prior to 10:00 a.m. New York City time
on the 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 Redemption Date or the Special Redemption
Date, as applicable, all the Debentures so called for redemption at the
appropriate 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 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 $100.00) 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, 


 


A-6

















 


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 Trust Securities of the Trust shall have
consented to such waiver or modification to such waiver, provided, further,
that if the consent of the holder of each outstanding Debenture is required,
such waiver shall not be effective until each holder of the Trust Securities of
the Trust shall have consented to such waiver. Upon any such waiver, the
default covered thereby shall be deemed to be cured for all purposes of 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 Trust 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 Capital 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 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 shareholder 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 shareholders’ rights plan, or
the issuance of rights, stock or other property under any shareholders’ 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 Capital Securities Guarantee).


 


The Debentures are issuable only in
registered, certificated form without coupons and in minimum denominations of
$100.00 and any multiple of $100.00 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 


 


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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,
shareholder, 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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EXHIBIT B


 


FORM OF CERTIFICATE TO TRUSTEE


 


Pursuant to Section 3.5 of the
Indenture between Tennessee Commerce Bancorp, Inc., as the Company (the “Company”),
and Wilmington Trust Company, as Trustee, dated as of June       ,
2008 (the “Indenture”), the undersigned hereby certifies as follows:


 


1.                                       In
my capacity as an officer of the Company, I would normally have knowledge of
any default by the Company during the last fiscal year in the performance of
any covenants of the Company contained in the Indenture.


 


2.                                       [To
my knowledge, the Company is not in default in the performance of any covenants
contained in the Indenture.


 


or,
alternatively:


 


I
am aware of the default(s) in the performance of covenants in the
Indentures, as specified below.]


 


Capitalized terms used herein, and not
otherwise defined herein, have the respective meanings ascribed thereto in the
Indenture.


 


IN WITNESS WHEREOF, the undersigned has
executed this Certificate.


 


Date:


 


	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


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