**Exhibit 10.13**

 

 

 

**LANDMARK BANCORP, INC.,**

**as Issuer**

 

 

**INDENTURE**

 

**Dated as of December 30, 2005**

 

**WILMINGTON TRUST COMPANY,**

 

**as Trustee**

 

 

**FLOATING RATE JUNIOR SUBORDINATED DEFERRABLEINTEREST DEBENTURES**

 

**DUE 2036**

 

 

 

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**TABLE OF CONTENTS**

 
|                                                                                     | **Page**                                                                         |
|------------------------------------------------------------------------------------------|----------------------------------------------------------------------------------|
|                                                                                     |                                                                             |
| ARTICLE I. DEFINITIONS                                                              | 1                                                                                |
| Section 1.1.                                                                        | Definitions.                                                                     | 1 |
|                                                                                     |                                                                             |
| ARTICLE II. DEBENTURES                                                              | 9                                                                                |
|                                                                                     |                                                                             |   |
| Section 2.1.                                                                        | Authentication and Dating.                                                       | 9 |
| Section 2.2.                                                                        | Form of Trustee’s Certificate of Authentication.                       | 9 |
| Section 2.3.                                                                        | Form and Denomination of Debentures.                                        | 9 |
| Section 2.4.                                                                        | Execution of Debentures.                                                         | 10 |
| Section 2.5.                                                                        | Exchange and Registration of Transfer of Debentures.                             | 10 |
| Section 2.6.                                                                        | Mutilated, Destroyed, Lost or Stolen Debentures.                                 | 12 |
| Section 2.7.                                                                        | Temporary Debentures.                                                            | 13 |
| Section 2.8.                                                                        | Payment of Interest and Additional Interest.                                     | 13 |
| Section 2.9.                                                                        | Cancellation of Debentures Paid, etc.                                            | 14 |
| Section 2.10.                                                                       | Computation of Interest.                                                         | 14 |
| Section 2.11.                                                                       | Extension of Interest Payment Period.                                            | 16 |
| Section 2.12.                                                                       | CUSIP Numbers.                                                                   | 17 |
|                                                                                     |                                                                             |
| ARTICLE III. PARTICULAR  COVENANTS OF THE COMPANY                                   | 17                                                                               |
|                                                                                     |                                                                             |
| Section 3.1.                                                                        | Payment of Principal, Premium and Interest; Agreed Treatment of the  Debentures. | 17 |
| Section 3.2.                                                                        | Offices for Notices and Payments, etc.                                           | 17 |
| Section 3.3.                                                                        | Appointments to Fill Vacancies in Trustee’s Office.                         | 18 |
| Section 3.4.                                                                        | Provision as to Paying Agent.                                                    | 18 |
| Section 3.5.                                                                        | Certificate to Trustee.                                                          | 19 |
| Section 3.6.                                                                        | Additional Sums.                                                                 | 19 |
| Section 3.7.                                                                        | Compliance with Consolidation Provisions.                                        | 19 |
| Section 3.8.                                                                        | Limitation on Dividends.                                                         | 19 |
| Section 3.9.                                                                        | Covenants as to the Trust.                                                       | 20 |
| Section 3.10.                                                                       | Additional Junior Indebtedness.                                                  | 20 |
|                                                                                     |                                                                             |   |
| ARTICLE IV. SECURITYHOLDERS’  LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE | 20                                                                               |
|                                                                                     |                                                                             |
| Section 4.1.                                                                        | Securityholders’ Lists.                                                     | 20 |
| Section 4.2.                                                                        | Preservation and Disclosure of Lists.                                            | 20 |
|                                                                                     |                                                                             |   |
| ARTICLE V. REMEDIES OF THE  TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT    | 21                                                                               |
|                                                                                     |                                                                             |
| Section 5.1.                                                                        | Events of Default.                                                               | 21 |
| Section 5.2.                                                                        | Payment of Debentures on Default; Suit Therefor.                                 | 23 |
| Section 5.3.                                                                        | Application of Moneys Collected by Trustee.                                      | 24 |
| Section 5.4.                                                                        | Proceedings by Securityholders.                                                  | 25 |
| Section 5.5.                                                                        | Proceedings by Trustee.                                                          | 25 |
| Section 5.6.                                                                        | Remedies Cumulative and Continuing; Delay or Omission Not a Waiver.              | 25 |

 

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| Section 5.7.                                  | Direction of Proceedings and Waiver of Defaults by Majority of Securityholders.                      | 25     |
|----------------------------------------------------|------------------------------------------------------------------------------------------------------|--------|
| Section 5.8.                                  | Notice of Defaults.                                                                                  | 26     |
| Section 5.9.                                  | Undertaking to Pay Costs.                                                                            | 26     |
|                                               |                                                                                                 |   |
| ARTICLE VI. CONCERNING THE  TRUSTEE           | 27                                                                                                   |
|                                               |                                                                                                 |
| Section 6.1.                                  | Duties and Responsibilities of Trustee.                                                              | 27     |
| Section 6.2.                                  | Reliance on Documents, Opinions, etc.                                                                | 27     |
| Section 6.3.                                  | No Responsibility for Recitals, etc.                                                                 | 28     |
| Section 6.4.                                  | Trustee, Authenticating Agent, Paying Agents, Transfer Agents or  Registrar May Own Debentures. | 29     |
| Section 6.5.                                  | Moneys to be Held in Trust.                                                                          | 29     |
| Section 6.6.                                  | Compensation and Expenses of Trustee.                                                                | 29     |
| Section 6.7.                                  | Officers’ Certificate as Evidence.                                                              | 29     |
| Section 6.8.                                  | Eligibility of Trustee.                                                                              | 30     |
| Section 6.9.                                  | Resignation or Removal of Trustee                                                                    | 30     |
| Section 6.10.                                 | Acceptance by Successor Trustee.                                                                     | 31     |
| Section 6.11.                                 | Succession by Merger, etc.                                                                           | 32     |
| Section 6.12.                                 | Authenticating Agents.                                                                               | 32     |
|                                               |                                                                                                 |   |
| ARTICLE VII. CONCERNING THE  SECURITYHOLDERS  | 33                                                                                                   |
|                                               |                                                                                                 |
| Section 7.1.                                  | Action by Securityholders.                                                                           | 33     |
| Section 7.2.                                  | Proof of Execution by Securityholders.                                                               | 33     |
| Section 7.3.                                  | Who Are Deemed Absolute Owners.                                                                      | 34     |
| Section 7.4.                                  | Debentures Owned by Company Deemed Not Outstanding.                                                  | 34     |
| Section 7.5.                                  | Revocation of Consents; Future Holders Bound.                                                        | 34     |
|                                               |                                                                                                 |   |
| ARTICLE VIII. SECURITYHOLDERS’  MEETINGS | 34                                                                                                   |
|                                               |                                                                                                 |
| Section 8.1.                                  | Purposes of Meetings.                                                                                | 34     |
| Section 8.2.                                  | Call of Meetings by Trustee.                                                                         | 35     |
| Section 8.3.                                  | Call of Meetings by Company or Securityholders.                                                      | 35     |
| Section 8.4.                                  | Qualifications for Voting.                                                                           | 35     |
| Section 8.5.                                  | Regulations.                                                                                         | 35     |
| Section 8.6.                                  | Voting.                                                                                              | 36     |
| Section 8.7.                                  | Quorum; Actions.                                                                                     | 36     |
|                                               |                                                                                                 |   |
| ARTICLE IX. SUPPLEMENTAL  INDENTURES          | 37                                                                                                   |
|                                               |                                                                                                 |
| Section 9.1.                                  | Supplemental Indentures without Consent of Securityholders.                                          | 37     |
| Section 9.2.                                  | Supplemental Indentures with Consent of Securityholders.                                             | 38     |
| Section 9.3.                                  | Effect of Supplemental Indentures.                                                                   | 38     |
| Section 9.4.                                  | Notation on Debentures.                                                                              | 39     |
| Section 9.5.                                  | Evidence of Compliance of Supplemental Indenture to be Furnished to  Trustee.                        | 39     |
|                                               |                                                                                                 |   |
| ARTICLE X. REDEMPTION OF  SECURITIES          | 39                                                                                                   |
|                                               |                                                                                                 |
| Section 10.1.                                 | Optional Redemption.                                                                                 | 39     |
| Section 10.2.                                 | Special Event Redemption.                                                                            | 39     |
| Section 10.3.                                 | Notice of Redemption; Selection of Debentures.                                                       | 40     |
| Section 10.4.                                 | Payment of Debentures Called for Redemption.                                                         | 40     |

 

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| ARTICLE XI. CONSOLIDATION,  MERGER, SALE, CONVEYANCE AND LEASE                 | 41                                                                            |
|-------------------------------------------------------------------------------------|-------------------------------------------------------------------------------|
|                                                                                |                                                                          |
| Section 11.1.                                                                  | Company May Consolidate, etc., on Certain Terms.                         | 41 |
| Section 11.2.                                                                  | Successor Entity to be Substituted.                                           | 41 |
| Section 11.3.                                                                  | Opinion of Counsel to be Given to Trustee.                                    | 41 |
|                                                                                |                                                                          |   |
| ARTICLE XII. SATISFACTION AND  DISCHARGE OF INDENTURE                          | 41                                                                            |
|                                                                                |                                                                          |
| Section 12.1.                                                                  | Discharge of Indenture.                                                       | 41 |
| Section 12.2.                                                                  | Deposited Moneys to be Held in Trust by Trustee.                              | 42 |
| Section 12.3.                                                                  | Paying Agent to Repay Moneys Held.                                            | 42 |
| Section 12.4.                                                                  | Return of Unclaimed Moneys.                                                   | 42 |
|                                                                                |                                                                          |   |
| ARTICLE XIII. IMMUNITY OF  INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS | 43                                                                            |
|                                                                                |                                                                          |
| Section 13.1.                                                                  | Indenture and Debentures Solely Corporate Obligations.                        | 43 |
|                                                                                |                                                                          |   |
| ARTICLE XIV. MISCELLANEOUS  PROVISIONS                                         | 43                                                                            |
|                                                                                |                                                                          |
| Section 14.1.                                                                  | Successors.                                                                   | 43 |
| Section 14.2.                                                                  | Official Acts by Successor Entity.                                            | 43 |
| Section 14.3.                                                                  | Surrender of Company Powers.                                                  | 43 |
| Section 14.4.                                                                  | Addresses for Notices, etc.                                                   | 43 |
| Section 14.5.                                                                  | Governing Law.                                                                | 43 |
| Section 14.6.                                                                  | Evidence of Compliance with Conditions Precedent.                             | 43 |
| Section 14.7.                                                                  | Table of Contents, Headings, etc.                                             | 44 |
| Section 14.8.                                                                  | Execution in Counterparts.                                                    | 44 |
| Section 14.9.                                                                  | Separability.                                                                 | 44 |
| Section 14.10.                                                                 | Assignment.                                                                   | 44 |
| Section 14.11.                                                                 | Acknowledgment of Rights.                                                     | 44 |
|                                                                                |                                                                          |   |
| ARTICLE XV. SUBORDINATION OF  DEBENTURES                                       | 44                                                                            |
|                                                                                |                                                                          |
| Section 15.1.                                                                  | Agreement to Subordinate.                                                     | 44 |
| Section 15.2.                                                                  | Default on Senior Indebtedness.                                               | 45 |
| Section 15.3.                                                                  | Liquidation, Dissolution, Bankruptcy.                                         | 45 |
| Section 15.4.                                                                  | Subrogation.                                                                  | 46 |
| Section 15.5.                                                                  | Trustee to Effectuate Subordination.                                          | 47 |
| Section 15.6.                                                                  | Notice by the Company.                                                        | 47 |
| Section 15.7.                                                                  | Rights of the Trustee; Holders of Senior Indebtedness.                        | 47 |
| Section 15.8.                                                                  | Subordination May Not Be Impaired.                                       | 48 |
|                                                                                |                                                                          |
| Exhibit A                                                                      | Form of Floating Rate Junior Subordinated  Deferrable Interest Debenture |   |
| Exhibit B                                                                      | Form of Certificate to Trustee                                           |   |
|                                                                                     |                                                                               |  |  |

 

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THIS INDENTURE, dated asof December 30, 2005, between Landmark Bancorp, Inc., a Delawarecorporation (the “Company”), and Wilmington Trust Company, a Delawarebanking corporation, as debenture trustee (the “Trustee”).

 

WITNESSETH:

 

WHEREAS, for its lawfulcorporate purposes, the Company has duly authorized the issuance of its FloatingRate Junior Subordinated Deferrable Interest Debentures due 2036 (the “Debentures”)under this Indenture to provide, among other things, for the execution andauthentication, delivery and administration thereof, and the Company has dulyauthorized the execution of this Indenture; and

 

WHEREAS, all acts andthings necessary to make this Indenture a valid agreement according to itsterms, have been done and performed;

 

NOW, THEREFORE, ThisIndenture Witnesseth:

 

In consideration of thepremises, and the purchase of the Debentures by the holders thereof, theCompany covenants and agrees with the Trustee for the equal and proportionatebenefit of the respective holders from time to time of the Debentures asfollows:

 

**ARTICLE I.DEFINITIONS**

 

**Section 1.1.****                                Definitions.**The terms defined in this Section 1.1 (except as herein otherwiseexpressly provided or unless the context otherwise requires) for all purposesof this Indenture and of any indenture supplemental hereto shall have therespective meanings specified in this Section 1.1. All accounting termsused herein and not expressly defined shall have the meanings assigned to suchterms in accordance with generally accepted accounting principles and the term “generallyaccepted accounting principles” means such accounting principles as aregenerally accepted in the United States at the time of any computation. Thewords “herein,” “hereof” and “hereunder” and other words of similar importrefer to this Indenture as a whole and not to any particular Article, Section orother subdivision.

 

“Acceleration Event ofDefault” 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 itshall be voluntary or involuntary or be effected by operation of law orpursuant to any judgment, decree or order of any court or any order, rule orregulation of any administrative or governmental body.

 

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

 

“Additional JuniorIndebtedness” means, without duplication and other than the Debentures, anyindebtedness, liabilities or obligations of the Company, or any Subsidiary ofthe Company, under debt securities (or guarantees in respect of debtsecurities) initially issued after the date of this Indenture to any trust, ora trustee of a trust, partnership or other entity affiliated with the Companythat is, directly or indirectly, a finance subsidiary (as such term is definedin Rule 3a-5 under the Investment Company Act of 1940) or other financingvehicle of the Company or any Subsidiary of the Company in connection with theissuance by that entity of preferred securities or other securities that areeligible to qualify for Tier 1 capital treatment (or its then equivalent)for purposes of the capital adequacy guidelines of the Federal Reserve, as thenin effect and applicable to the Company (or, if the Company is not a bankholding company, such guidelines applied to the Company as if the Company weresubject to such guidelines); provided, however, that theinability of the Company to treat all or any portion of the Additional JuniorIndebtedness as Tier 1 capital shall not disqualify it as AdditionalJunior Indebtedness if such inability results from the Company havingcumulative preferred stock, minority interests in consolidated subsidiaries, orany other class of security or interest which the Federal Reserve now or may hereafteraccord Tier 1 capital treatment

 

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(including theDebentures) in excess of the amount which may qualify for treatment asTier 1 capital under applicable capital adequacy guidelines.

 

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

 

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

 

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

 

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

 

“Board of Directors”means the board of directors or the executive committee or any other dulyauthorized designated officers of the Company.

 

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

 

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

 

“Capital Securities”means undivided beneficial interests in the assets of the Trust which rank *pari**passu* withCommon Securities issued by the Trust; provided, however, thatupon the occurrence and continuance of an Event of Default (as defined in theDeclaration), the rights of holders of such Common Securities to payment inrespect of distributions and payments upon liquidation, redemption andotherwise are subordinated to the rights of holders of such Capital Securities.

 

“Capital SecuritiesGuarantee” means the guarantee agreement that the Company enters into withWilmington Trust Company, as guarantee trustee, or other Persons that operatesdirectly or indirectly for the benefit of holders of Capital Securities of theTrust.

 

“Capital TreatmentEvent” means the receipt by the Company and the Trust of an opinion ofcounsel experienced in such matters to the effect that, as a result of theoccurrence of any amendment to, or change (including any announced prospectivechange) in, the laws, rules or regulations of the United States or anypolitical subdivision thereof or therein, or as the result of any official oradministrative pronouncement or action or decision interpreting or applyingsuch laws, rules or regulations, which amendment or change is effective orwhich pronouncement, action or decision is announced on or after the date oforiginal issuance of the Debentures, there is more than an insubstantial riskthat the Company will not, within 90 days of the date of such opinion, beentitled to treat an amount equal to the aggregate liquidation amount of theCapital Securities as “Tier 1 Capital” (or its then equivalent) forpurposes of the capital adequacy guidelines of the Federal Reserve, as then ineffect and applicable to the Company (or if the Company is not a bank holdingcompany or is otherwise not subject to the Federal Reserve’s risk-based capitaladequacy guidelines, such guidelines applied to the Company as if the Companywere subject to such guidelines); provided, however, that theinability of the Company to treat all or any portion of the liquidation amountof the Capital Securities as Tier l Capital shall not constitute the basisfor a Capital Treatment Event, if such inability results from the Companyhaving cumulative preferred stock, minority interests in consolidatedsubsidiaries, or any other class of security or interest which the FederalReserve or OTS, as applicable, may now or hereafter accord Tier 1Capital treatment in excess of the amount which may now or hereafterqualify for treatment as Tier 1 Capital under applicable capital adequacyguidelines; providedfurther, however, that thedistribution of

 

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Debentures inconnection with the liquidation of the Trust shall not in and of itselfconstitute a Capital Treatment Event unless such liquidation shall haveoccurred in connection with a Tax Event or an Investment Company Event.

 

“Certificate”means a certificate signed by any one of the principal executive officer, theprincipal 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 CommonSecurities to payment in respect of distributions and payments uponliquidation, redemption and otherwise are subordinated to the rights of holdersof such Capital Securities.

 

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

 

“Comparable TreasuryIssue” means with respect to any Special Redemption Date the United StatesTreasury security selected by the Quotation Agent as having a maturity comparableto the Fixed Rate Period Remaining Life that would be utilized, at the time ofselection and in accordance with customary financial practice, in pricing newissues of corporate debt securities of comparable maturity to the Fixed RatePeriod Remaining Life. If no United States Treasury security has a maturitywhich is within a period from three months before to three months after theInterest Payment Date in March 2011, the two most closely correspondingfixed, non-callable United States Treasury securities, as selected by theQuotation Agent, shall be used as the Comparable Treasury Issue, and theTreasury Rate shall be interpolated or extrapolated on a straight-line basis,rounding to the nearest month using such securities.

 

“Comparable Treasury Price”means (a) the average of five Reference Treasury Dealer Quotations forsuch Special Redemption Date, after excluding the highest and lowest suchReference Treasury Dealer Quotations, or (b) if the Quotation Agentobtains fewer than five such Reference Treasury Dealer Quotations, the averageof all such Quotations.

 

“Coupon Rate” hasthe 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 orsupplemented from time to time.

 

“Default” meansany event, act or condition that with notice or lapse of time, or both, wouldconstitute 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 PaymentDate, the period beginning on (and including) the date of original issuance andending on (but excluding) the Interest Payment Date in March 2006 and (ii) thereafter,with respect to interest paid on each successive Interest Payment Date, theperiod beginning on (and including) the preceding Interest Payment Date andending on (but excluding) such current Interest Payment Date.

 

“Determination Date”has the meaning set forth in Section 2.10.

 

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“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 designateddistrict bank, as applicable, and any successor federal agency that isprimarily responsible for regulating the activities of bank holding companies.

 

“Fixed Rate PeriodRemaining Life” means, with respect to any Debenture, the period from theSpecial Redemption Date for such Debenture to the Interest Payment Date in March 2011.

 

“Indenture” meansthis instrument as originally executed or, if amended or supplemented as hereinprovided, as so amended or supplemented, or both.

 

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

 

“Interest Payment Date”means March 15, June 15, September 15 and December 15 ofeach year during the term of this Indenture, or if such day is not a BusinessDay, then the next succeeding Business Day (it being understood that interestaccrues for any such non-Business Day), commencing in March 2006.

 

“Interest Rate”means for the Distribution Period beginning on (and including) the date oforiginal issuance and ending on (but excluding) the Interest Payment Date in March 2006the rate per annum of 5.98055%, and for each Distribution Period beginning onor after the Interest Payment Date in March 2006, the Coupon Rate for suchDistribution Period.

 

“Investment CompanyEvent” means the receipt by the Company and the Trust of an opinion ofcounsel experienced in such matters to the effect that, as a result of theoccurrence of a change in law or regulation or written change (including anyannounced prospective change) in interpretation or application of law orregulation by any legislative body, court, governmental agency or regulatoryauthority, 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 “investmentcompany” that is required to be registered under the Investment Company Act of1940, as amended which change or prospective change becomes effective or wouldbecome effective, as the case may be, on or after the date of the issuanceof the Debentures.

 

“Liquidation Amount”means the stated amount of $1,000.00 per Trust Security.

 

“Maturity Date”means March 15, 2036.

 

“Officers’ Certificate”means a certificate signed by the Chairman of the Board, the Chief ExecutiveOfficer, the Vice Chairman, the President, any Managing Director or any VicePresident, and by the Treasurer, an Assistant Treasurer, the Comptroller, anAssistant Comptroller, the Secretary or an Assistant Secretary of the Company,and delivered to the Trustee. Each such certificate shall include thestatements provided for in Section 14.6 if and to the extent required bythe provisions of such Section.

 

“Opinion of Counsel”means an opinion in writing signed by legal counsel, who may be anemployee of or counsel to the Company, or may be other counsel reasonablysatisfactory to the Trustee. Each such opinion shall include the statementsprovided for in Section 14.6 if and to the extent required by theprovisions of such Section.

 

“OTS” means theOffice of Thrift Supervision and any successor federal agency that is primarilyresponsible for regulating the activities of savings and loan holdingcompanies.

 

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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 theTrustee or the Authenticating Agent under this Indenture, except:

 

(a)                                  Debenturestheretofore canceled by the Trustee or the Authenticating Agent or delivered tothe Trustee for cancellation;

 

(b)                                 Debentures,or portions thereof, for the payment or redemption of which moneys in thenecessary amount shall have been deposited in trust with the Trustee or withany paying agent (other than the Company) or shall have been set aside andsegregated in trust by the Company (if the Company shall act as its own payingagent); provided, however, that, if such Debentures, or portionsthereof, are to be redeemed prior to maturity thereof, notice of suchredemption shall have been given as provided in Section 10.3 or provisionsatisfactory to the Trustee shall have been made for giving such notice; and

 

(c)                                  Debenturespaid pursuant to Section 2.6 or in lieu of or in substitution for whichother Debentures shall have been authenticated and delivered pursuant to theterms of Section 2.6 unless proof satisfactory to the Company and theTrustee is presented that any such Debentures are held by bona fide holders indue course.

 

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

 

“Predecessor Security”of any particular Debenture means every previous Debenture evidencing all or aportion of the same debt as that evidenced by such particular Debenture; and,for purposes of this definition, any Debenture authenticated and deliveredunder Section 2.6 in lieu of a lost, destroyed or stolen Debenture shallbe deemed to evidence the same debt as the lost, destroyed or stolen Debenture.

 

“Primary TreasuryDealer” means either a nationally recognized primary United StatesGovernment securities dealer or an entity of recognized standing in matterspertaining to the quotation of treasury securities that is reasonablyacceptable to the Company and the Trustee.

 

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

 

“Quotation Agent”means a designee of the Institutional Trustee who shall be a Primary TreasuryDealer.

 

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

 

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

 

“Reference TreasuryDealer” means (i) the Quotation Agent and (ii) any other PrimaryTreasury Dealer selected by the Trustee after consultation with the Company.

 

“Reference TreasuryDealer Quotations” means, with respect to each Reference Treasury Dealerand any Redemption Date, the average, as determined by the Quotation Agent, ofthe bid and asked prices for the Comparable Treasury Issue (expressed in eachcase as a percentage of its principal amount) quoted in writing to theQuotation Agent by such Reference Treasury Dealer at 5:00 p.m., New YorkCity time, on the third Business Day preceding such Redemption Date.

 

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“Responsible Officer”means, with respect to the Trustee, any officer within the Principal Office ofthe Trustee, including any vice-president, any assistant vice-president, anysecretary, any assistant secretary, the treasurer, any assistant treasurer, anytrust officer or other officer of the Principal Trust Office of the Trustee customarilyperforming functions similar to those performed by any of the above designatedofficers and also means, with respect to a particular corporate trust matter,any other officer to whom such matter is referred because of that officer’sknowledge of and familiarity with the particular subject.

 

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

 

“Securityholder,” “holderof Debentures,” or other similar terms, means any Person in whose name at thetime a particular Debenture is registered on the register kept by the Companyor 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 allborrowed and purchased money and (B) indebtedness evidenced by securities,debentures, notes, bonds or other similar instruments issued by the Company; (ii) allcapital lease obligations of the Company; (iii) all obligations of theCompany issued or assumed as the deferred purchase price of property, allconditional sale obligations of the Company and all obligations of the Companyunder any title retention agreement; (iv) all obligations of the Companyfor the reimbursement of any letter of credit, any banker’s acceptance, anysecurity purchase facility, any repurchase agreement or similar arrangement,any interest rate swap, any other hedging arrangement, any obligation underoptions or any similar credit or other transaction; (v) all obligations ofthe Company associated with derivative products such as interest and foreignexchange rate contracts, commodity contracts, and similar arrangements; (vi) allobligations of the type referred to in clauses (i) through (v) aboveof other Persons for the payment of which the Company is responsible or liableas obligor, guarantor or otherwise including, without limitation, similarobligations arising from off-balance sheet guarantees and direct creditsubstitutes; and (vii) all obligations of the type referred to inclauses (i) through (vi) above of other Persons secured by anylien on any property or asset of the Company (whether or not such obligation isassumed by the Company), whether incurred on or prior to the date of thisIndenture or thereafter incurred. Notwithstanding the foregoing, “SeniorIndebtedness” shall not include (1) any Additional Junior Indebtedness, (2) Debenturesissued pursuant to this Indenture and guarantees in respect of such Debentures,(3) trade accounts payable of the Company arising in the ordinary courseof business (such trade accounts payable being *pari passu*in right of payment to the Debentures), or (4) obligations with respect towhich (a) in the instrument creating or evidencing the same or pursuant towhich the same is outstanding, it is provided that such obligations are *pari passu*, junior or otherwise not superior in right ofpayment to the Debentures and (b) the Company, prior to the issuancethereof, has notified (and, if then required under the applicable guidelines ofthe regulating entity, has received approval from) the Federal Reserve (if theCompany is a bank holding company) or the OTS (if the Company is a savings andloan holding company). Senior Indebtedness shall continue to be SeniorIndebtedness and be entitled to the subordination provisions irrespective ofany 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 TaxEvent.

 

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

 

“Special RedemptionPrice” means (A) if the Special Redemption Date occurs before theInterest Payment Date in March 2011, the sum of (i) the product of (a) 62.5%times (b) the price set forth in the following table for any SpecialRedemption Date that occurs on the date indicated below (or if such day is nota Business Day, then the next succeeding Business Day), expressed as thepercentage of the principal amount of the Debentures:

 

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| **Month in which Special  Redemption Date Occurs** | ** ** | **Special Redemption Price** |
|-----------------------------------------------------------------------------|------------|----------------------------------------|
| March 2006                                                             |       | 104.625%                               |
| June 2006                                                              |       | 104.300%                               |
| September 2006                                                         |       | 104.000%                               |
| December 2006                                                          |       | 103.650%                               |
| March 2007                                                             |       | 103.350%                               |
| June 2007                                                              |       | 103.000%                               |
| September 2007                                                         |       | 102.700%                               |
| December 2007                                                          |       | 102.350%                               |
| March 2008                                                             |       | 102.050%                               |
| June 2008                                                              |       | 101.700%                               |
| September 2008                                                         |       | 101.400%                               |
| December 2008                                                          |       | 101.050%                               |
| March 2009                                                             |       | 100.750%                               |
| June 2009                                                              |       | 100.450%                               |
| September 2009                                                         |       | 100.200%                               |
| December 2009 and thereafter                                           |       | 100.000%                               |

 

plus (ii) theproduct of 37.5% times the greater of (y) 107.5% of the principal amountof the Debentures, plus accrued and unpaid interest (including AdditionalInterest) on the Debentures to the Special Redemption Date, or (z) as determinedby the Quotation Agent, the sum of the present values of the scheduled paymentsof principal and interest on the Debentures during the Fixed Rate PeriodRemaining Life of the Debentures (assuming the Debentures matured on theInterest Payment Date in March 2011) discounted to the Special RedemptionDate on a quarterly basis (based on the actual number of days) at the TreasuryRate, plus (iii) in each case, accrued and unpaid interest (includingAdditional Interest) on the Debentures to such Special Redemption Date, or (B) ifthe Special Redemption Date occurs on or after the Interest Payment Date in March 2011,100% of the principal amount of the Debentures, plus accrued and unpaidinterest (including any Additional Interest) on such Debentures to the SpecialRedemption Date.

 

“Subsidiary” meanswith respect to any Person, (i) any corporation at least a majority of theoutstanding voting stock of which is owned, directly or indirectly, by suchPerson or by one or more of its Subsidiaries, or by such Person and one or moreof its Subsidiaries, (ii) any general partnership, joint venture orsimilar entity, at least a majority of the outstanding partnership or similarinterests of which shall at the time be owned by such Person, or by one or moreof its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) anylimited partnership of which such Person or any of its Subsidiaries is ageneral

 

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partner. For thepurposes 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 ofthe directors (or the equivalent) of such Person, other than shares, interests,participations or other equivalents having such power only by reason of theoccurrence of a contingency.

 

“Tax Event” meansthe receipt by the Company and the Trust of an opinion of counsel experiencedin 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 regulationsthereunder of the United States or any political subdivision or taxingauthority thereof or therein, or as a result of any official administrativepronouncement (including any private letter ruling, technical advicememorandum, field service advice, regulatory procedure, notice or announcement,including any notice or announcement of intent to adopt such procedures orregulations) (an “Administrative Action”) or judicial decisioninterpreting or applying such laws or regulations, regardless of whether suchAdministrative Action or judicial decision is issued to or in connection with aproceeding involving the Company or the Trust and whether or not subject toreview or appeal, which amendment, clarification, change, Administrative Actionor decision is enacted, promulgated or announced, in each case on or after thedate of original issuance of the Debentures, there is more than an insubstantialrisk that:  (i) the Trust is, orwill be within 90 days of the date of such opinion, subject to UnitedStates federal income tax with respect to income received or accrued on theDebentures; (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 bythe Company, in whole or in part, for United States federal income taxpurposes; or (iii) the Trust is, or will be within 90 days of thedate of such opinion, subject to more than a de minimis amount of other taxes,duties or other governmental charges.

 

“3-Month LIBOR”has the meaning set forth in Section 2.10.

 

“Telerate Page 3750”has the meaning set forth in Section 2.10.

 

“Treasury Rate”means (i) the yield, under the heading which represents the average forthe week immediately prior to the date of calculation, appearing in the mostrecently published statistical release designated H.15 (519) or any successorpublication which is published weekly by the Federal Reserve and whichestablishes yields on actively traded United States Treasury securitiesadjusted to constant maturity under the caption “Treasury Constant Maturities,”for the maturity corresponding to the Fixed Rate Period Remaining Life (if nomaturity is within three months before or after the Fixed Rate Period RemainingLife, yields for the two published maturities most closely corresponding to theFixed Rate Period Remaining Life shall be determined and the Treasury Rateshall be interpolated or extrapolated from such yields on a straight-linebasis, rounding to the nearest month) or (ii) if such release (or anysuccessor release) is not published during the week preceding the calculationdate or does not contain such yields, the rate per annum equal to the semi-annualequivalent yield to maturity of the Comparable Treasury Issue, calculated usinga price for the Comparable Treasury Issue (expressed as a percentage of itsprincipal amount) equal to the Comparable Treasury Price for such SpecialRedemption Date. The Treasury Rate shall be calculated by the Quotation Agenton the third Business Day preceding the Special Redemption Date.

 

“Trust” shall meanLandmark Capital Trust II, a Delaware statutory trust, or any othersimilar trust created for the purpose of issuing Capital Securities inconnection with the issuance of Debentures under this Indenture, of which theCompany is the sponsor.

 

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

 

“Trustee” means WilmingtonTrust Company, and, subject to the provisions of Article VI hereof, shallalso include its successors and assigns as Trustee hereunder.

 

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**ARTICLE II.DEBENTURES**

 

**Section 2.1.****                                Authenticationand Dating.**Upon the execution and delivery of this Indenture, or fromtime to time thereafter, Debentures in an aggregate principal amount not inexcess of $8,248,000.00 may be executed and delivered by the Company tothe Trustee for authentication, and the Trustee, upon receipt of a writtenauthentication order from the Company, shall thereupon authenticate and makeavailable for delivery said Debentures to or upon the written order of theCompany, signed by its Chairman of the Board of Directors, Chief ExecutiveOfficer, Vice Chairman, the President, one of its Managing Directors or one ofits Vice Presidents without any further action by the Company hereunder. Notwithstandinganything to the contrary contained herein, the Trustee shall be fully protectedin relying upon the aforementioned authentication order and written order inauthenticating and delivering said Debentures. In authenticating suchDebentures, and accepting the additional responsibilities under this Indenturein 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)                                  acopy of any Board Resolution or Board Resolutions relating thereto and, ifapplicable, an appropriate record of any action taken pursuant to suchresolution, in each case certified by the Secretary or an Assistant Secretaryof the Company, as the case may be; and

###  

### (b)                                 anOpinion of Counsel prepared in accordance with Section 14.6 which shallalso state:

###  

#### (1)                                   thatsuch Debentures, when authenticated and delivered by the Trustee and issued bythe Company in each case in the manner and subject to any conditions specifiedin such Opinion of Counsel, will constitute valid and legally bindingobligations of the Company, subject to or limited by applicable bankruptcy,insolvency, reorganization, conservatorship, receivership, moratorium and otherstatutory or decisional laws relating to or affecting creditors’ rights or thereorganization of financial institutions (including, without limitation,preference and fraudulent conveyance or transfer laws), heretofore or hereafterenacted or in effect, affecting the rights of creditors generally; and

####  

#### (2)                                   thatall laws and requirements in respect of the execution and delivery by theCompany of the Debentures have been complied with and that authentication anddelivery of the Debentures by the Trustee will not violate the terms of thisIndenture.

####  

The Trustee shall havethe right to decline to authenticate and deliver any Debentures under this Section ifthe Trustee, being advised in writing by counsel, determines that such action may notlawfully be taken or if a Responsible Officer of the Trustee in good faithshall determine that such action would expose the Trustee to personal liabilityto existing holders.

 

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

 

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

 

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

 

WILMINGTON TRUST COMPANY,as Trustee

 
| By                 |   |   |
|--------------------|--------|--------|
| Authorized  Signer |

 

**Section 2.3.****                                Form andDenomination of Debentures.**The Debentures shall be substantially inthe form of Exhibit A attached hereto. The Debentures shall be inregistered, certificated form without

 

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coupons and inminimum denominations of $100,000.00 and any multiple of $1,000.00 in excessthereof. Any attempted transfer of the Debentures in a block having anaggregate principal amount of less than $100,000.00 shall be deemed to be voidand of no legal effect whatsoever. Any such purported transferee shall bedeemed not to be a holder of such Debentures for any purpose, including, butnot limited to the receipt of payments on such Debentures, and such purportedtransferee shall be deemed to have no interest whatsoever in such Debentures. TheDebentures shall be numbered, lettered, or otherwise distinguished in suchmanner or in accordance with such plans as the officers executing the same may determinewith the approval of the Trustee as evidenced by the execution andauthentication thereof.

 

**Section 2.4.****                                Executionof Debentures.**The Debentures shall be signed in the name and on behalfof the Company by the manual or facsimile signature of its Chairman of theBoard of Directors, Chief Executive Officer, Vice Chairman, President, one ofits Managing Directors or one of its Executive Vice Presidents, Senior VicePresidents or Vice Presidents. Only such Debentures as shall bear thereon acertificate of authentication substantially in the form herein beforerecited, executed by the Trustee or the Authenticating Agent by the manualsignature of an authorized signer, shall be entitled to the benefits of thisIndenture or be valid or obligatory for any purpose. Such certificate by theTrustee or the Authenticating Agent upon any Debenture executed by the Companyshall be conclusive evidence that the Debenture so authenticated has been dulyauthenticated and delivered hereunder and that the holder is entitled to thebenefits of this Indenture.

 

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

 

Every Debenture shall bedated the date of its authentication.

 

**Section 2.5.****                                Exchangeand Registration of Transfer of Debentures.**The Company shall cause tobe kept, at the office or agency maintained for the purpose of registration oftransfer and for exchange as provided in Section 3.2, a register (the “DebentureRegister”) for the Debentures issued hereunder in which, subject to suchreasonable regulations as it may prescribe, the Company shall provide forthe registration and transfer of all Debentures as in this Article IIprovided. The Debenture Register shall be in written form or in any other form capableof being converted into written form within a reasonable time.

 

Debentures to beexchanged may be surrendered at the Principal Office of the Trustee or atany office or agency to be maintained by the Company for such purpose asprovided in Section 3.2, and the Company shall execute, the Company or theTrustee shall register and the Trustee or the Authenticating Agent shallauthenticate and make available for delivery in exchange therefor the Debentureor Debentures which the Securityholder making the exchange shall be entitled toreceive. Upon due presentment for registration of transfer of any Debenture atthe Principal Office of the Trustee or at any office or agency of the Companymaintained for such purpose as provided in Section 3.2, the Company shallexecute, the Company or the Trustee shall register and the Trustee or theAuthenticating Agent shall authenticate and make available for delivery in thename of the transferee or transferees a new Debenture for a like aggregateprincipal amount. Registration or registration of transfer of any Debenture bythe 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 orregistration of transfer of such Debenture.

 

All Debentures presentedfor registration of transfer or for exchange or payment shall (if so requiredby the Company or the Trustee or the Authenticating Agent) be duly endorsed by,or be accompanied by a

 

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written instrumentor instruments of transfer in form satisfactory to the Company and theTrustee or the Authenticating Agent duly executed by the holder or his attorneyduly authorized in writing.

 

No service charge shallbe made for any exchange or registration of transfer of Debentures, but theCompany or the Trustee may require payment of a sum sufficient to coverany tax, fee or other governmental charge that may be imposed inconnection therewith.

 

The Company or theTrustee shall not be required to exchange or register a transfer of anyDebenture for a period of 15 days next preceding the date of selection ofDebentures for redemption.

 

Notwithstanding anythingherein to the contrary, Debentures may not be transferred except incompliance with the restricted securities legend set forth below, unlessotherwise determined by the Company, upon the advice of counsel expert insecurities law, in accordance with applicable law:

 

THIS SECURITY IS NOT ASAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY THE UNITED STATES OR ANYAGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCECORPORATION.

 

THIS SECURITY HAS NOTBEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIESACT”), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHERTHIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF INTHE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, ORNOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANYAPPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCEHEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY ONLY (A) TOTHE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEENDECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A PERSON WHOM THESELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTIONMEETING THE REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS ELIGIBLEFOR RESALE PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A, (D) TOA NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903OR RULE 904 (AS APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT,(E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OFSUBPARAGRAPH (A) OF RULE 501 UNDER THE SECURITIES ACT THAT ISACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH ANINSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEWTO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OFTHE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROMTHE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’SRIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF ANOPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO ITIN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THECOMPANY.

 

THE HOLDER OF THISSECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT ITIS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN ORARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITYACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUECODE OF 1986, AS AMENDED (THE “CODE”) (EACH A “PLAN”), OR AN ENTITY WHOSEUNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT INTHE ENTITY, AND NO PERSON INVESTING

 

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“PLAN ASSETS” OFANY PLAN MAY ACQUIRE OR HOLD THE SECURITIES OR ANY INTEREST THEREIN,UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR EXEMPTIVE RELIEF AVAILABLEUNDER 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 ANDHOLDING OF THIS SECURITY IS NOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDEROF THE SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BYITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEEBENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLANTO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSONACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON ORENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCHPURCHASE, OR (ii) SUCH PURCHASE WILL NOT RESULT IN A PROHIBITEDTRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODEFOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.

 

THIS SECURITY WILL BEISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN AGGREGATE PRINCIPALAMOUNT OF NOT LESS THAN $100,000.00 AND MULTIPLES OF $1,000.00 IN EXCESSTHEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING AN AGGREGATEPRINCIPAL AMOUNT OF LESS THAN $100,000.00 SHALL BE DEEMED TO BE VOID AND OF NOLEGAL EFFECT WHATSOEVER.

 

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

 

**Section 2.6.****                                Mutilated,Destroyed, Lost or Stolen Debentures.**In case any Debenture shallbecome mutilated or be destroyed, lost or stolen, the Company shall execute,and upon its written request the Trustee shall authenticate and deliver, a newDebenture bearing a number not contemporaneously outstanding, in exchange andsubstitution for the mutilated Debenture, or in lieu of and in substitution forthe Debenture so destroyed, lost or stolen. In every case the applicant for asubstituted Debenture shall furnish to the Company and the Trustee suchsecurity or indemnity as may be required by them to save each of themharmless, and, in every case of destruction, loss or theft, the applicant shallalso furnish to the Company and the Trustee evidence to their satisfaction ofthe destruction, loss or theft of such Debenture and of the ownership thereof.

 

The Trustee may authenticateany such substituted Debenture and deliver the same upon the written request orauthorization of any officer of the Company. Upon the issuance of anysubstituted Debenture, the Company may require the payment of a sumsufficient to cover any tax or other governmental charge that may beimposed in relation thereto and any other expenses connected therewith. In caseany Debenture which has matured or is about to mature or has been called forredemption in full shall become mutilated or be destroyed, lost or stolen, theCompany may, instead of issuing a substitute Debenture, pay or authorize thepayment of the same (without surrender thereof except in the case of amutilated Debenture) if the applicant for such payment shall furnish to theCompany and the Trustee such security or indemnity as may be required bythem 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 substitutedDebenture issued pursuant to the provisions of this Section 2.6 by virtueof the fact that any such Debenture is destroyed, lost or stolen shallconstitute an additional contractual obligation of the Company, whether or notthe destroyed, lost or stolen Debenture shall be found at any time, and shallbe entitled to all the benefits of this Indenture equally and proportionatelywith any and all other Debentures duly issued hereunder. All Debentures shallbe held and owned upon the express condition that, to the extent

 

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permitted byapplicable law, the foregoing provisions are exclusive with respect to thereplacement or payment of mutilated, destroyed, lost or stolen Debentures andshall preclude any and all other rights or remedies notwithstanding any law orstatute existing or hereafter enacted to the contrary with respect to thereplacement or payment of negotiable instruments or other securities withouttheir surrender.

 

**Section 2.7.****                                TemporaryDebentures.**Pending the preparation of definitive Debentures, theCompany may execute and the Trustee shall authenticate and make availablefor delivery temporary Debentures that are typed, printed or lithographed. TemporaryDebentures shall be issuable in any authorized denomination, and substantiallyin the form of the definitive Debentures in lieu of which they are issuedbut with such omissions, insertions and variations as may be appropriatefor temporary Debentures, all as may be determined by the Company. Everysuch temporary Debenture shall be executed by the Company and be authenticatedby the Trustee upon the same conditions and in substantially the same manner,and with the same effect, as the definitive Debentures. Without unreasonabledelay the Company will execute and deliver to the Trustee or the AuthenticatingAgent definitive Debentures and thereupon any or all temporary Debentures may besurrendered in exchange therefor, at the principal corporate trust office ofthe Trustee or at any office or agency maintained by the Company for suchpurpose as provided in Section 3.2, and the Trustee or the AuthenticatingAgent shall authenticate and make available for delivery in exchange for suchtemporary Debentures a like aggregate principal amount of such definitiveDebentures. Such exchange shall be made by the Company at its own expense andwithout any charge therefor except that in case of any such exchange involvinga registration of transfer the Company may require payment of a sumsufficient to cover any tax, fee or other governmental charge that may beimposed in relation thereto. Until so exchanged, the temporary Debentures shallin all respects be entitled to the same benefits under this Indenture asdefinitive Debentures authenticated and delivered hereunder.

 

**Section 2.8.****                                Paymentof Interest and Additional Interest.**Interest at the Interest Rate andany Additional Interest on any Debenture that is payable, and is punctuallypaid or duly provided for, on any Interest Payment Date for Debentures shall bepaid to the Person in whose name said Debenture (or one or more PredecessorSecurities) is registered at the close of business on the regular record datefor such interest installment except that interest and any Additional Interestpayable on the Maturity Date shall be paid to the Person to whom principal ispaid.

 

EachDebenture (A) shall bear interest for the period beginning on (andincluding) the date of original issuance and ending on (but excluding) theInterest Payment Date in March 2006 at a rate per annum of 5.98055%; (B) shallbear interest for each Distribution Period beginning on or after the InterestPayment Date in March 2006 but prior to the Interest Payment Date in March 2011at a rate per annum equal to the sum of (i) the product of (a) 62.5%times (b) 3-Month LIBOR, determined as described in Section 2.10,plus 1.34% plus (ii) the product of (y) 37.5% times (z) 6.17%;and (C) shall bear interest for each Distribution Period beginning on orafter the Interest Payment Date in March 2011 at a rate per annum equal to3-Month LIBOR plus 1.34% (the “Coupon Rate”), applied to the principalamount thereof, until the principal thereof becomes due and payable, and on anyoverdue principal and to the extent that payment of such interest is enforceableunder applicable law (without duplication) on any overdue installment ofinterest (including Additional Interest) at the Interest Rate in effect foreach applicable period compounded quarterly. Interest shall be payable (subjectto any relevant Extension Period) quarterly in arrears on each Interest PaymentDate with the first installment of interest to be paid on the Interest PaymentDate in March 2006.

 

Any interest on anyDebenture, including Additional Interest, that is payable, but is not punctuallypaid or duly provided for, on any Interest Payment Date (herein called “DefaultedInterest”) shall forthwith cease to be payable to the registered holder onthe relevant regular record date by virtue of having been such holder; and suchDefaulted Interest shall be paid by the Company to the Persons in whose namessuch Debentures (or their respective Predecessor Securities) are registered atthe close of business on a special record date for the payment of suchDefaulted Interest, which shall be fixed in the following manner: the Companyshall notify the Trustee in writing at least 25 days prior to the date of theproposed payment of the

 

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amount ofDefaulted Interest proposed to be paid on each such Debenture and the date ofthe proposed payment, and at the same time the Company shall deposit with theTrustee an amount of money equal to the aggregate amount proposed to be paid inrespect of such Defaulted Interest or shall make arrangements satisfactory tothe Trustee for such deposit prior to the date of the proposed payment, suchmoney when deposited to be held in trust for the benefit of the Personsentitled to such Defaulted Interest as in this clause provided. Thereupon theTrustee shall fix a special record date for the payment of such DefaultedInterest which shall not be more than 15 nor less than 10 days prior to thedate of the proposed payment and not less than 10 days after the receipt by theTrustee of the notice of the proposed payment. The Trustee shall promptlynotify the Company of such special record date and, in the name and at theexpense of the Company, shall cause notice of the proposed payment of suchDefaulted Interest and the special record date therefor to be mailed, first class postageprepaid, to each Securityholder at its address as it appears in the DebentureRegister, not less than 10 days prior to such special record date. Notice ofthe proposed payment of such Defaulted Interest and the special record datetherefor having been mailed as aforesaid, such Defaulted Interest shall be paidto the Persons in whose names such Debentures (or their respective PredecessorSecurities) are registered on such special record date and shall be no longerpayable.

 

The Company may makepayment of any Defaulted Interest on any Debentures in any other lawful mannerafter notice given by the Company to the Trustee of the proposed paymentmethod; provided, however, the Trustee in its sole discretiondeems such payment method to be practical.

 

Any interest (includingAdditional Interest) scheduled to become payable on an Interest Payment Dateoccurring during an Extension Period shall not be Defaulted Interest and shallbe payable on such other date as may be specified in the terms of suchDebentures.

 

The term “regular recorddate” as used in this Section shall mean the close of business on the 15thBusiness Day preceding the applicable Interest Payment Date.

 

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

 

**Section 2.9.****                                Cancellationof Debentures Paid, etc.**All Debentures surrendered for the purpose ofpayment, redemption, exchange or registration of transfer, shall, ifsurrendered to the Company or any paying agent, be surrendered to the Trusteeand promptly canceled by it, or, if surrendered to the Trustee or anyAuthenticating Agent, shall be promptly canceled by it, and no Debentures shallbe issued in lieu thereof except as expressly permitted by any of theprovisions of this Indenture. All Debentures canceled by any AuthenticatingAgent shall be delivered to the Trustee. The Trustee shall destroy all canceledDebentures unless the Company otherwise directs the Trustee in writing. If theCompany shall acquire any of the Debentures, however, such acquisition shallnot operate as a redemption or satisfaction of the indebtedness represented bysuch Debentures unless and until the same are surrendered to the Trustee forcancellation.

 

**Section 2.10.****                         Computationof Interest.**The amount of interest payable for each DistributionPeriod will be calculated by applying the Interest Rate to the principal amountoutstanding at the commencement of the Distribution Period on the basis of theactual number of days in the Distribution Period concerned divided by 360. Allpercentages resulting from any calculations on the Debentures will be rounded,if necessary, to the nearest one hundred-thousandth of a percentage point, withfive 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 usedin or resulting from such calculation will be rounded to the nearest cent (withone-half cent being rounded upward)).

 

### (a)                                  “3-MonthLIBOR” means the London interbank offered interest rate for three-month,U.S. dollar deposits determined by the Trustee in the following order ofpriority:

 

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(1)                                  therate (expressed as a percentage per annum) for U.S. dollar deposits having athree-month maturity that appears on Telerate Page 3750 as of 11:00 a.m.(London time) on the related Determination Date (as defined below). “Telerate Page 3750”means the display designated as “Page 3750” on the Moneyline TelerateService or such other page as may replace Page 3750 on thatservice or such other service or services as may be nominated by theBritish Bankers’ Association as the information vendor for the purpose ofdisplaying London interbank offered rates for U.S. dollar deposits;

 

(2)                                  ifsuch rate cannot be identified on the related Determination Date, the Trusteewill request the principal London offices of four leading banks in the Londoninterbank market to provide such banks’ offered quotations (expressed aspercentages per annum) to prime banks in the London interbank market for U.S.dollar deposits having a three-month maturity as of 11:00 a.m. (Londontime) on such Determination Date. If at least two quotations are provided, 3-MonthLIBOR will be the arithmetic mean of such quotations;

 

(3)                                  iffewer than two such quotations are provided as requested in clause (2) above,the Trustee will request four major New York City banks to provide such banks’offered quotations (expressed as percentages per annum) to leading Europeanbanks for loans in U.S. dollars as of 11:00 a.m. (London time) on suchDetermination Date. If at least two such quotations are provided, 3-Month LIBORwill be the arithmetic mean of such quotations; and

 

(4)                                  iffewer than two such quotations are provided as requested in clause (3) above,3-Month LIBOR will be a 3-Month LIBOR determined with respect to theDistribution Period immediately preceding such current Distribution Period.

 

If the rate for U.S.dollar deposits having a three-month maturity that initially appears onTelerate Page 3750 as of 11:00 a.m. (London time) on the related DeterminationDate is superseded on the Telerate Page 3750 by a corrected rate by12:00 noon (London time) on such Determination Date, then the correctedrate as so substituted on the applicable page will be the applicable 3-MonthLIBOR for such Determination Date.

 

(b)                                 TheInterest Rate for any Distribution Period will at no time be higher than themaximum rate then permitted by New York law as the same may be modified byUnited States law.

 

### (c)                                  “DeterminationDate” means the date that is two London Banking Days (i.e., a business dayin which dealings in deposits in U.S. dollars are transacted in the Londoninterbank market) preceding the particular Distribution Period for which aCoupon Rate is being determined.

###  

### (d)                                 TheTrustee shall notify the Company, the Institutional Trustee and any securitiesexchange or interdealer quotation system on which the Capital Securities arelisted, of the Coupon Rate and the Determination Date for each DistributionPeriod, in each case as soon as practicable after the determination thereof butin no event later than the thirtieth (30th) day of the relevant DistributionPeriod. Failure to notify the Company, the Institutional Trustee or anysecurities exchange or interdealer quotation system, or any defect in saidnotice, shall not affect the obligation of the Company to make payment on theDebentures at the applicable Coupon Rate. Any error in the calculation of theCoupon Rate by the Trustee may be corrected at any time by noticedelivered as above provided. Upon the request of a holder of a Debenture, theTrustee shall provide the Coupon Rate then in effect and, if determined, theCoupon Rate for the next Distribution Period.

###  

### (e)                                  Subjectto the corrective rights set forth above, all certificates, communications,opinions, determinations, calculations, quotations and decisions given,expressed, made or obtained for the purposes of the provisions relating to thepayment and calculation of interest on the Debentures and distributions on theCapital Securities by the Trustee or the Institutional Trustee will (in theabsence of willful default, bad faith

 

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### and manifest error) be final, conclusive and bindingon the Trust, the Company and all of the holders of the Debentures and the CapitalSecurities, and no liability shall (in the absence of willful default, badfaith or manifest error) attach to the Trustee or the Institutional Trustee inconnection with the exercise or non-exercise by either of them or theirrespective powers, duties and discretion.

###  

**Section 2.11.****                         Extensionof Interest Payment Period.**So long as no Acceleration Event of Defaulthas occurred and is continuing, the Company shall have the right, from time totime, and without causing an Event of Default, to defer payments of interest onthe Debentures by extending the interest payment period on the Debentures atany time and from time to time during the term of the Debentures, for up to20 consecutive quarterly periods (each such extended interest paymentperiod, an “Extension Period”), during which Extension Period nointerest (including Additional Interest) shall be due and payable (except anyAdditional Sums that may be due and payable). No Extension Period may endon a date other than an Interest Payment Date. During an Extension Period,interest will continue to accrue on the Debentures, and interest on suchaccrued interest will accrue at an annual rate equal to the Interest Rate ineffect for such Extension Period, compounded quarterly from the date suchinterest would have been payable were it not for the Extension Period, to theextent permitted by law (such interest referred to herein as “AdditionalInterest”). At the end of any such Extension Period the Company shall payall interest then accrued and unpaid on the Debentures (together withAdditional Interest thereon); provided, however, that noExtension Period may extend beyond the Maturity Date; providedfurther,however, that during any such Extension Period, the Company shall notand shall not permit any Affiliate to (i) declare or pay any dividends ordistributions on, or redeem, purchase, acquire, or make a liquidation paymentwith respect to, any of the Company’s or such Affiliate’s capital stock (otherthan payments of dividends or distributions to the Company) or make anyguarantee payments with respect to the foregoing or (ii) make any paymentof principal of or interest or premium, if any, on or repay, repurchase orredeem any debt securities of the Company or any Affiliate that rank *pari passu* in all respects with or junior in interest to theDebentures (other than, with respect to clauses (i) or (ii) above, (a) repurchases,redemptions or other acquisitions of shares of capital stock of the Company inconnection with any employment contract, benefit plan or other similararrangement with or for the benefit of one or more employees, officers,directors or consultants, in connection with a dividend reinvestment orstockholder stock purchase plan or in connection with the issuance of capitalstock of the Company (or securities convertible into or exercisable for suchcapital stock) as consideration in an acquisition transaction entered intoprior to the applicable Extension Period, (b) as a result of any exchangeor 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 ofthe Company’s capital stock or of any class or series of the Company’sindebtedness for any class or series of the Company’s capital stock, (c) thepurchase of fractional interests in shares of the Company’s capital stockpursuant to the conversion or exchange provisions of such capital stock or thesecurity being converted or exchanged, (d) any declaration of a dividendin connection with any stockholders’ rights plan, or the issuance of rights,stock or other property under any stockholders’ rights plan, or the redemptionor repurchase of rights pursuant thereto, (e) any dividend in the form ofstock, warrants, options or other rights where the dividend stock or the stockissuable upon exercise of such warrants, options or other rights is the samestock 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 sharesissued in connection therewith, or (f) payments under the CapitalSecurities Guarantee). Prior to the termination of any Extension Period, theCompany may further extend such period, provided that such period togetherwith all such previous and further consecutive extensions thereof shall notexceed 20 consecutive quarterly periods, or extend beyond the MaturityDate. Upon the termination of any Extension Period and upon the payment of allaccrued and unpaid interest and Additional Interest, the Company may commencea new Extension Period, subject to the foregoing requirements. No interest orAdditional Interest shall be due and payable during an Extension Period, exceptat the end thereof, but each installment of interest that would otherwise havebeen due and payable during such Extension Period shall bear AdditionalInterest to the extent permitted by applicable law. The Company must give theTrustee notice of its election to begin or extend an Extension Period by theclose of business at least 15 Business Days prior to the Interest Payment Datewith respect to which interest on the Debentures would have been

 

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payable except forthe election to begin or extend such Extension Period. The Trustee shall givenotice of the Company’s election to begin a new Extension Period to theSecurityholders.

 

**Section 2.12.****                         CUSIPNumbers.**The Company in issuing theDebentures may use “CUSIP” numbers (if then generally in use), and, if so,the Trustee shall use CUSIP numbers in notices of redemption as a convenienceto Securityholders; provided, however, that any such notice may state thatno representation is made as to the correctness of such numbers either asprinted on the Debentures or as contained in any notice of a redemption andthat reliance may be placed only on the other identification numbersprinted on the Debentures, and any such redemption shall not be affected by anydefect in or omission of such numbers. The Company will promptly notify theTrustee in writing of any change in the CUSIP numbers.

 

**ARTICLE III.PARTICULAR COVENANTS OF THE COMPANY**

 

**Section 3.1.****                                Paymentof Principal, Premium and Interest; Agreed Treatment of the Debentures.**

 

### (a)                                  TheCompany covenants and agrees that it will duly and punctually pay or cause tobe paid the principal of and premium, if any, and interest and any AdditionalInterest and other payments on the Debentures at the place, at the respectivetimes and in the manner provided in this Indenture and the Debentures. Eachinstallment of interest on the Debentures may be paid (i) by mailingchecks for such interest payable to the order of the holders of Debenturesentitled thereto as they appear on the registry books of the Company if arequest for a wire transfer has not been received by the Company or (ii) bywire transfer to any account with a banking institution located in the UnitedStates designated in writing by such Person to the paying agent no later thanthe related record date. Notwithstanding the foregoing, so long as the holderof this Debenture is the Institutional Trustee, the payment of the principal ofand interest on this Debenture will be made in immediately available funds atsuch place and to such account as may be designated by the InstitutionalTrustee.

###  

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

###  

### (c)                                  Asof the date of this Indenture, the Company has no present intention to exerciseits right under Section 2.11 to defer payments of interest on theDebentures by commencing an Extension Period.

###  

### (d)                                 Asof the date of this Indenture, the Company believes that the likelihood that itwould exercise its right under Section 2.11 to defer payments of intereston the Debentures by commencing an Extension Period at any time during whichthe Debentures are outstanding is remote because of the restrictions that wouldbe imposed on the Company’s ability to declare or pay dividends ordistributions on, or to redeem, purchase or make a liquidation payment withrespect to, any of its outstanding equity and on the Company’s ability to makeany payments of principal of or interest on, or repurchase or redeem, any ofits debt securities that rank *pari passu* inall respects with (or junior in interest to) the Debentures.

###  

**Section 3.2.****                                Officesfor Notices and Payments, etc.**So long as any of the Debentures remainoutstanding, the Company will maintain in Wilmington, Delaware, an office oragency where the Debentures may be presented for payment, an office oragency where the Debentures may be presented for registration of transferand for exchange as in this Indenture provided and an office or agency wherenotices and demands to or upon the Company in respect of the Debentures or ofthis Indenture may be served. The Company will give to the Trustee writtennotice of the location of any such office or agency and of any change of locationthereof. Until otherwise designated from time to time by the Company in anotice to the Trustee, or specified

 

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as contemplated bySection 2.5, such office or agency for all of the above purposes shall bethe office or agency of the Trustee. In case the Company shall fail to maintainany such office or agency in Wilmington, Delaware, or shall fail to give suchnotice of the location or of any change in the location thereof, presentationsand demands may be made and notices may be served at the PrincipalOffice of the Trustee.

 

In addition to any suchoffice or agency, the Company may from time to time designate one or moreoffices or agencies outside Wilmington, Delaware, where the Debentures may bepresented for registration of transfer and for exchange in the manner providedin this Indenture, and the Company may from time to time rescind suchdesignation, as the Company may deem desirable or expedient; provided,however, that no such designation or rescission shall in any mannerrelieve 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 theTrustee prompt written notice of any such designation or rescission thereof.

 

**Section 3.3.****                                Appointmentsto Fill Vacancies in Trustee’s Office.**The Company, whenever necessaryto avoid or fill a vacancy in the office of Trustee, will appoint, in themanner provided in Section 6.9, a Trustee, so that there shall at all timesbe a Trustee hereunder.

 

**Section 3.4.****                                Provisionas to Paying Agent.**

 

### (a)                                  Ifthe Company shall appoint a paying agent other than the Trustee, it will causesuch paying agent to execute and deliver to the Trustee an instrument in whichsuch agent shall agree with the Trustee, subject to the provision of this Section 3.4,

###  

#### (1)                                  thatit will hold all sums held by it as such agent for the payment of the principalof and premium, if any, or interest, if any, on the Debentures (whether suchsums have been paid to it by the Company or by any other obligor on theDebentures) in trust for the benefit of the holders of the Debentures;

####  

#### (2)                                  thatit 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 theprincipal of and premium, if any, or interest, if any, on the Debentures whenthe same shall be due and payable; and

####  

#### (3)                                  thatit will, at any time during the continuance of any Event of Default, upon thewritten request of the Trustee, forthwith pay to the Trustee all sums so heldin trust by such paying agent.

####  

### (b)                                 Ifthe Company shall act as its own paying agent, it will, on or before each duedate of the principal of and premium, if any, or interest or other payments, ifany, on the Debentures, set aside, segregate and hold in trust for the benefitof the holders of the Debentures a sum sufficient to pay such principal,premium, interest or other payments so becoming due and will notify the Trusteein 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 theprincipal of and premium, if any, or interest or other payments, if any, on theDebentures when the same shall become due and payable.

###  

Whenever the Companyshall have one or more paying agents for the Debentures, it will, on or priorto 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 intrust for the benefit of the Persons entitled thereto and (unless such payingagent is the Trustee) the Company shall promptly notify the Trustee in writingof its action or failure to act.

 

### (c)                                  Anythingin this Section 3.4 to the contrary notwithstanding, the Company may, atany time, for the purpose of obtaining a satisfaction and discharge withrespect to the Debentures, or for any other

 

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### reason, pay, or direct any paying agent to pay to theTrustee all sums held in trust by the Company or any such paying agent, suchsums to be held by the Trustee upon the trusts herein contained.

###  

### (d)                                 Anythingin this Section 3.4 to the contrary notwithstanding, the agreement to holdsums in trust as provided in this Section 3.4 is subject toSections 12.3 and 12.4.

###  

**Section 3.5.****                                Certificateto Trustee.**The Company will deliver to the Trustee on or before120 days after the end of each fiscal year, so long as Debentures areoutstanding hereunder, a Certificate stating that in the course of theperformance by the signers of their duties as officers of the Company theywould normally have knowledge of any default during such fiscal year by theCompany in the performance of any covenants contained herein, stating whetheror not they have knowledge of any such default and, if so, specifying each suchdefault of which the signers have knowledge and the nature and status thereof. Aform of this Certificate is attached hereto as Exhibit B.

 

**Section 3.6.****                                AdditionalSums.**If and for so long as the Trust is the holder of all Debenturesand the Trust is required to pay any additional taxes (including withholdingtaxes), duties, assessments or other governmental charges as a result of a TaxEvent, the Company will pay such additional amounts (“Additional Sums”)on the Debentures as shall be required so that the net amounts received andretained by the Trust after paying taxes (including withholding taxes), duties,assessments or other governmental charges will be equal to the amounts theTrust would have received if no such taxes, duties, assessments or othergovernmental charges had been imposed. Whenever in this Indenture or theDebentures there is a reference in any context to the payment of principal ofor interest on the Debentures, such mention shall be deemed to include mentionof payments of the Additional Sums provided for in this paragraph to the extentthat, in such context, Additional Sums are, were or would be payable in respectthereof pursuant to the provisions of this paragraph and express mention of thepayment of Additional Sums (if applicable) in any provisions hereof shall notbe construed as excluding Additional Sums in those provisions hereof where suchexpress mention is not made; provided, however, that the deferralof the payment of interest during an Extension Period pursuant to Section 2.11shall not defer the payment of any Additional Sums that may be due andpayable.

 

**Section 3.7.****                                Compliancewith Consolidation Provisions.**The Company will not, while any of theDebentures remain outstanding, consolidate with, or merge into, or merge intoitself, or sell or convey all or substantially all of its property to any otherPerson unless the provisions of Article XI hereof are complied with.

 

**Section 3.8.****                                Limitationon Dividends.**If Debentures are initially issued to the Trust or atrustee of such Trust in connection with the issuance of Trust Securities bythe 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) theCompany shall be in default with respect to its payment of any obligationsunder the Capital Securities Guarantee, or (iii) the Company shall havegiven notice of its election to defer payments of interest on the Debentures byextending the interest payment period as provided herein and such period, orany extension thereof, shall be continuing, then the Company shall not, and shallnot allow any Affiliate of the Company to, (x) declare or pay anydividends or distributions on, or redeem, purchase, acquire, or make aliquidation payment with respect to, any of the Company’s capital stock or itsAffiliates’ capital stock (other than payments of dividends or distributions tothe 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 orrepay, repurchase or redeem any debt securities of the Company or any Affiliatethat rank *pari passu* in all respects with orjunior 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 connectionwith any employment contract, benefit plan or other similar arrangement with orfor the benefit of one or more employees, officers, directors or consultants,in connection with a dividend reinvestment or stockholder stock purchase planor in connection with the issuance of capital stock of the Company (orsecurities convertible into or exercisable for such capital stock) asconsideration in an acquisition transaction entered

 

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into prior to theapplicable Extension Period, if any, (2) as a result of any exchange orconversion of any class or series of the Company’s capital stock (orany capital stock of a subsidiary of the Company) for any class or series ofthe Company’s capital stock or of any class or series of the Company’sindebtedness for any class or series of the Company’s capital stock, (3) thepurchase of fractional interests in shares of the Company’s capital stockpursuant to the conversion or exchange provisions of such capital stock or thesecurity being converted or exchanged, (4) any declaration of a dividendin connection with any stockholders’ rights plan, or the issuance of rights,stock or other property under any stockholders’ rights plan, or the redemptionor repurchase of rights pursuant thereto, (5) any dividend in the form ofstock, warrants, options or other rights where the dividend stock or the stockissuable upon exercise of such warrants, options or other rights is the samestock 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 sharesissued in connection therewith, or (6) payments under the CapitalSecurities Guarantee).

 

**Section 3.9.****                                Covenantsas to the Trust.**For so long as the Trust Securities remainoutstanding, the Company shall maintain 100% ownership of the CommonSecurities; provided, however, that any permitted successor ofthe Company under this Indenture may succeed to the Company’s ownership ofsuch Common Securities. The Company, as owner of the Common Securities, shall,except in connection with a distribution of Debentures to the holders of TrustSecurities in liquidation of the Trust, the redemption of all of the TrustSecurities or certain mergers, consolidations or amalgamations, each aspermitted by the Declaration, cause the Trust (a) to remain a statutory trust, (b) to otherwise continue tobe 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 owningan undivided beneficial interest in the Debentures.

 

**Section 3.10.****                         AdditionalJunior Indebtedness.**The Company shall not, and it shall not cause orpermit any Subsidiary of the Company to, incur, issue or be obligated on anyAdditional Junior Indebtedness, either directly or indirectly, by way ofguarantee, 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) ofwhich the Company has notified (and, if then required under the applicableguidelines of the regulating entity, has received approval from) the FederalReserve, if the Company is a bank holding company, or the OTS, if the Companyis a savings and loan holding company.

 

**ARTICLE IV.SECURITYHOLDERS’ LISTS AND REPORTSBY THE COMPANY AND THE TRUSTEE**

 

**Section 4.1.****                                Securityholders’Lists.**The Company covenants and agrees that it will furnish or causeto be furnished to the Trustee:

 

### (a)                                  oneach regular record date for the Debentures, a list, in such form as theTrustee may reasonably require, of the names and addresses of theSecurityholders of the Debentures as of such record date; and

###  

### (b)                                 atsuch other times as the Trustee may request in writing, within30 days after the receipt by the Company of any such request, a list ofsimilar form and content as of a date not more than 15 days prior tothe time such list is furnished;

###  

except that nosuch lists need be furnished under this Section 4.1 so long as the Trusteeis in possession thereof by reason of its acting as Debenture registrar.

 

**Section 4.2.****                                Preservationand Disclosure of Lists.**

 

### (a)                                  TheTrustee 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) containedin the most recent list furnished to it

 

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### as provided in Section 4.1 or (2) receivedby it in the capacity of Debentures registrar (if so acting) hereunder. TheTrustee may destroy any list furnished to it as provided in Section 4.1upon receipt of a new list so furnished.

###  

### (b)                                 Incase three or more holders of Debentures (hereinafter referred to as “applicants”)apply in writing to the Trustee and furnish to the Trustee reasonable proofthat each such applicant has owned a Debenture for a period of at least 6months preceding the date of such application, and such application states thatthe applicants desire to communicate with other holders of Debentures withrespect to their rights under this Indenture or under such Debentures and isaccompanied by a copy of the form of proxy or other communication whichsuch applicants propose to transmit, then the Trustee shall within 5 Business Daysafter the receipt of such application, at its election, either:

###  

#### (1)                                  affordsuch applicants access to the information preserved at the time by the Trusteein accordance with the provisions of subsection (a) of this Section 4.2,or

####  

#### (2)                                  inform suchapplicants as to the approximate number of holders of Debentures whose namesand addresses appear in the information preserved at the time by the Trustee inaccordance with the provisions of subsection (a) of this Section 4.2,and as to the approximate cost of mailing to such Securityholders the form ofproxy or other communication, if any, specified in such application.

####  

If the Trustee shallelect not to afford such applicants access to such information, the Trusteeshall, upon the written request of such applicants, mail to each Securityholderwhose name and address appear in the information preserved at the time by theTrustee in accordance with the provisions of subsection (a) of this Section 4.2a copy of the form of proxy or other communication which is specified insuch request with reasonable promptness after a tender to the Trustee of thematerial to be mailed and of payment, or provision for the payment, of thereasonable expenses of mailing, unless within five days after such tender, theTrustee shall mail to such applicants and file with the Securities and ExchangeCommission, if permitted or required by applicable law, together with a copy ofthe material to be mailed, a written statement to the effect that, in theopinion of the Trustee, such mailing would be contrary to the best interests ofthe holders of all Debentures, as the case may be, or would be inviolation of applicable law. Such written statement shall specify the basis ofsuch opinion. If said Commission, as permitted or required by applicable law,after opportunity for a hearing upon the objections specified in the writtenstatement so filed, shall enter an order refusing to sustain any of suchobjections or if, after the entry of an order sustaining one or more of suchobjections, said Commission shall find, after notice and opportunity forhearing, that all the objections so sustained have been met and shall enter anorder so declaring, the Trustee shall mail copies of such material to all suchSecurityholders with reasonable promptness after the entry of such order andthe renewal of such tender; otherwise the Trustee shall be relieved of anyobligation or duty to such applicants respecting their application.

 

### (c)                                  Eachand every holder of Debentures, by receiving and holding the same, agrees with theCompany and the Trustee that neither the Company nor the Trustee nor any payingagent shall be held accountable by reason of the disclosure of any suchinformation as to the names and addresses of the holders of Debentures inaccordance with the provisions of subsection (b) of this Section 4.2,regardless of the source from which such information was derived, and that theTrustee shall not be held accountable by reason of mailing any materialpursuant to a request made under said subsection (b).

###  

**ARTICLE V.REMEDIES OF THE TRUSTEE AND SECURITYHOLDERSUPON AN EVENT OF DEFAULT**

 

**Section 5.1.****                                Eventsof Default.**”Event of Default,” wherever used herein, means any one ofthe following events (whatever the reason for such Event of Default and whetherit shall be voluntary or

 

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involuntary or beeffected by operation of law or pursuant to any judgment, decree or order ofany court or any order, rule or regulation of any administrative orgovernmental body):

 

### (a)                                  theCompany defaults in the payment of any interest upon any Debenture, includingany Additional Interest in respect thereof, following the nonpayment of anysuch interest for twenty or more consecutive Distribution Periods; or

###  

### (b)                                 theCompany defaults in the payment of all or any part of the principal of (orpremium, if any, on) any Debentures as and when the same shall become due andpayable either at maturity, upon redemption, by declaration of acceleration orotherwise; or

###  

### (c)                                  theCompany defaults in the performance of, or breaches, any of its covenants oragreements in this Indenture or in the terms of the Debentures established ascontemplated in this Indenture (other than a covenant or agreement a default inwhose performance or whose breach is elsewhere in this Section specificallydealt with), and continuance of such default or breach for a period of60 days after there has been given, by registered or certified mail, tothe Company by the Trustee or to the Company and the Trustee by the holders ofat least 25% in aggregate principal amount of the outstanding Debentures, awritten notice specifying such default or breach and requiring it to beremedied and stating that such notice is a “Notice of Default” hereunder; or

###  

### (d)                                 acourt of competent jurisdiction shall enter a decree or order for relief inrespect of the Company in an involuntary case under any applicable bankruptcy,insolvency, reorganization or other similar law now or hereafter in effect, orappointing a receiver, liquidator, assignee, custodian, trustee, sequestrator(or similar official) of the Company or for any substantial part of itsproperty, or ordering the winding-up or liquidation of its affairs and suchdecree or order shall remain unstayed and in effect for a period of90 consecutive days; or

###  

### (e)                                  theCompany 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 underany such law, or shall consent to the appointment of or taking possession by areceiver, liquidator, assignee, trustee, custodian, sequestrator (or othersimilar official) of the Company or of any substantial part of itsproperty, or shall make any general assignment for the benefit of creditors, orshall fail generally to pay its debts as they become due; or

###  

### (f)                                    theTrust shall have voluntarily or involuntarily liquidated, dissolved, wound-upits business or otherwise terminated its existence except in connection with (i) thedistribution of the Debentures to holders of such Trust Securities inliquidation of their interests in the Trust, (ii) the redemption of all ofthe outstanding Trust Securities or (iii) certain mergers, consolidationsor amalgamations, each as permitted by the Declaration.

###  

If an Acceleration Eventof Default occurs and is continuing with respect to the Debentures, then, andin each and every such case, unless the principal of the Debentures shall havealready become due and payable, either the Trustee or the holders of not lessthan 25% in aggregate principal amount of the Debentures then outstandinghereunder, by notice in writing to the Company (and to the Trustee if given bySecurityholders), may declare the entire principal of the Debentures andthe interest accrued thereon, if any, to be due and payable immediately, andupon any such declaration the same shall become immediately due and payable. Ifan Event of Default under Section 5.1(b) or (c) occurs and iscontinuing with respect to the Debentures, then, and in each and every suchcase, unless the principal of the Debentures shall have already become due andpayable, either the Trustee or the holders of not less than 25% in aggregateprincipal amount of the Debentures then outstanding hereunder, by notice inwriting to the Company (and to the Trustee if given by Securityholders), may proceedto remedy the default or breach thereunder by such appropriate judicialproceedings as the Trustee or such holders shall deem most effectual to remedythe defaulted

 

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covenant orenforce the provisions of this Indenture so breached, either by suit in equityor by action at law, for damages or otherwise.

 

The foregoing provisions,however, are subject to the condition that if, at any time after the principalof the Debentures shall have been so declared due and payable, and before anyjudgment or decree for the payment of the moneys due shall have been obtainedor entered as hereinafter provided, (i) the Company shall pay or shalldeposit with the Trustee a sum sufficient to pay all matured installments ofinterest upon all the Debentures and the principal of and premium, if any, onthe Debentures which shall have become due otherwise than by acceleration (withinterest upon such principal and premium, if any, and Additional Interest) andsuch amount as shall be sufficient to cover reasonable compensation to theTrustee 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 thenon-payment of the principal of or premium, if any, on Debentures which shallhave become due by acceleration, shall have been cured, waived or otherwiseremedied as provided herein -- then and in every such case the holders ofa majority in aggregate principal amount of the Debentures then outstanding, bywritten notice to the Company and to the Trustee, may waive all defaultsand rescind and annul such declaration and its consequences, but no such waiveror rescission and annulment shall extend to or shall affect any subsequentdefault or shall impair any right consequent thereon.

 

In case the Trustee shallhave proceeded to enforce any right under this Indenture and such proceedingsshall have been discontinued or abandoned because of such rescission orannulment or for any other reason or shall have been determined adversely tothe Trustee, then and in every such case the Company, the Trustee and theholders of the Debentures shall be restored respectively to their severalpositions and rights hereunder, and all rights, remedies and powers of theCompany, the Trustee and the holders of the Debentures shall continue as thoughno such proceeding had been taken.

 

**Section 5.2.****                                Paymentof Debentures on Default; Suit Therefor.**The Company covenants thatupon 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 thenshall 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 Interestaccrued on the Debentures (to the extent that payment of such interest isenforceable under applicable law and, if the Debentures are held by the Trustor a trustee of such Trust, without duplication of any other amounts paid bythe Trust or a trustee in respect thereof); and, in addition thereto, suchfurther amount as shall be sufficient to cover the costs and expenses ofcollection, 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 beentitled and empowered to institute any actions or proceedings at law or inequity for the collection of the sums so due and unpaid, and may prosecuteany such action or proceeding to judgment or final decree, and may enforceany such judgment or final decree against the Company or any other obligor onsuch Debentures and collect in the manner provided by law out of the propertyof the Company or any other obligor on such Debentures wherever situated themoneys adjudged or decreed to be payable.

 

In case there shall bepending proceedings for the bankruptcy or for the reorganization of the Companyor any other obligor on the Debentures under Bankruptcy Law, or in case areceiver or trustee shall have been appointed for the property of the Companyor such other obligor, or in the case of any other similar judicial proceedingsrelative to the Company or other obligor upon the Debentures, or to thecreditors or property of the Company or such other obligor, the Trustee,irrespective of whether the principal of the Debentures shall then be due andpayable as therein expressed or by declaration of acceleration or otherwise andirrespective of whether the Trustee shall have made any demand pursuant to theprovisions of this Section 5.2, shall be entitled and empowered, byintervention in such proceedings or otherwise,

 

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(i)                                     tofile and prove a claim or claims for the whole amount of principal and interestowing and unpaid in respect of the Debentures,

 

(ii)                                  incase of any judicial proceedings, to file such proofs of claim and other papersor documents as may be necessary or advisable in order to have the claimsof the Trustee (including any claim for reasonable compensation to the Trusteeand each predecessor Trustee, and their respective agents, attorneys andcounsel, 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 theCompany or any other obligor on the Debentures, or to the creditors or propertyof the Company or such other obligor, unless prohibited by applicable law andregulations, to vote on behalf of the holders of the Debentures in any electionof a trustee or a standby trustee in arrangement, reorganization, liquidationor other bankruptcy or insolvency proceedings or Person performing similarfunctions in comparable proceedings, 

 

(iii)                               tocollect and receive any moneys or other property payable or deliverable on anysuch claims, and 

 

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

 

Any receiver,assignee or trustee in bankruptcy or reorganization is hereby authorized byeach of the Securityholders to make such payments to the Trustee, and, in theevent that the Trustee shall consent to the making of such payments directly tothe Securityholders, to pay to the Trustee such amounts as shall be sufficientto cover reasonable compensation to the Trustee, each predecessor Trustee andtheir respective agents, attorneys and counsel, and all other amounts due tothe Trustee under Section 6.6.

 

Nothing herein containedshall be construed to authorize the Trustee to authorize or consent to oraccept or adopt on behalf of any Securityholder any plan of reorganization,arrangement, adjustment or composition affecting the Debentures or the rightsof any holder thereof or to authorize the Trustee to vote in respect of theclaim of any Securityholder in any such proceeding.

 

All rights of action andof asserting claims under this Indenture, or under any of the Debentures, may beenforced by the Trustee without the possession of any of the Debentures, or theproduction thereof at any trial or other proceeding relative thereto, and anysuch suit or proceeding instituted by the Trustee shall be brought in its ownname as trustee of an express trust, and any recovery of judgment shall be forthe ratable benefit of the holders of the Debentures.

 

In any proceedingsbrought by the Trustee (and also any proceedings involving the interpretationof any provision of this Indenture to which the Trustee shall be a party), theTrustee shall be held to represent all the holders of the Debentures, and itshall not be necessary to make any holders of the Debentures parties to anysuch proceedings.

 

**Section 5.3.****                                Applicationof Moneys Collected by Trustee.**Any moneys collected by the Trusteepursuant to this Article V shall be applied in the following order, at thedate or dates fixed by the Trustee for the distribution of such moneys, uponpresentation of the several Debentures in respect of which moneys have beencollected, and stamping thereon the payment, if only partially paid, and uponsurrender thereof if fully paid:

 

First:  To the payment of costs and expenses incurredby, and reasonable fees of, the Trustee, its agents, attorneys and counsel, andof all other amounts due to the Trustee under Section 6.6;

 

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

 

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Third:  To the payment of the amounts then due andunpaid upon Debentures for principal (and premium, if any), and interest on theDebentures, in respect of which or for the benefit of which money has beencollected, ratably, without preference or priority of any kind, according tothe amounts due on such Debentures (including Additional Interest); and

 

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

 

**Section 5.4.****                                Proceedingsby Securityholders.**No holder of any Debenture shall have any right toinstitute any suit, action or proceeding for any remedy hereunder, unless suchholder previously shall have given to the Trustee written notice of an Event ofDefault with respect to the Debentures and unless the holders of not less than25% in aggregate principal amount of the Debentures then outstanding shall havegiven the Trustee a written request to institute such action, suit orproceeding and shall have offered to the Trustee such reasonable indemnity asit may require against the costs, expenses and liabilities to be incurredthereby, 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 otherprovisions in this Indenture, however, the right of any holder of any Debentureto receive payment of the principal of, premium, if any, and interest, on suchDebenture when due, or to institute suit for the enforcement of any suchpayment, shall not be impaired or affected without the consent of such holderand by accepting a Debenture hereunder it is expressly understood, intended andcovenanted by the taker and holder of every Debenture with every other suchtaker and holder and the Trustee, that no one or more holders of Debenturesshall have any right in any manner whatsoever by virtue or by availing itselfof any provision of this Indenture to affect, disturb or prejudice the rightsof the holders of any other Debentures, or to obtain or seek to obtain priorityover or preference to any other such holder, or to enforce any right under thisIndenture, except in the manner herein provided and for the equal, ratable andcommon benefit of all holders of Debentures. For the protection and enforcementof the provisions of this Section, each and every Securityholder and theTrustee shall be entitled to such relief as can be given either at law or inequity.

 

**Section 5.5.****                                Proceedingsby Trustee.**In case of an Event of Default hereunder the Trustee may inits discretion proceed to protect and enforce the rights vested in it by thisIndenture by such appropriate judicial proceedings as the Trustee shall deemmost effectual to protect and enforce any of such rights, either by suit inequity or by action at law or by proceeding in bankruptcy or otherwise, whetherfor the specific enforcement of any covenant or agreement contained in thisIndenture or in aid of the exercise of any power granted in this Indenture, orto enforce any other legal or equitable right vested in the Trustee by thisIndenture or by law.

 

**Section 5.6.****                                RemediesCumulative and Continuing; Delay or Omission Not a Waiver.**Except asotherwise provided in Section 2.6, all powers and remedies given by this Article Vto the Trustee or to the Securityholders shall, to the extent permitted by law,be deemed cumulative and not exclusive of any other powers and remediesavailable to the Trustee or the holders of the Debentures, by judicialproceedings or otherwise, to enforce the performance or observance of thecovenants and agreements contained in this Indenture or otherwise establishedwith respect to the Debentures, and no delay or omission of the Trustee or ofany holder of any of the Debentures to exercise any right, remedy or poweraccruing upon any Event of Default occurring and continuing as aforesaid shallimpair any such right, remedy or power, or shall be construed to be a waiver ofany such default or an acquiescence therein; and, subject to the provisions of Section 5.4,every power and remedy given by this Article V or by law to the Trustee orto the Securityholders may be exercised from time to time, and as often asshall be deemed expedient, by the Trustee (in accordance with its duties under Section 6.1)or by the Securityholders.

 

**Section 5.7.****                                Directionof Proceedings and Waiver of Defaults by Majority of Securityholders.**Theholders of a majority in aggregate principal amount of the Debentures affected(voting

 

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as one class) atthe time outstanding shall have the right to direct the time, method, and placeof conducting any proceeding for any remedy available to the Trustee, orexercising any trust or power conferred on the Trustee with respect to suchDebentures; provided, however, that (subject to the provisions ofSection 6.1) the Trustee shall have the right to decline to follow anysuch direction if the Trustee shall determine that the action so directed wouldbe unjustly prejudicial to the holders not taking part in such directionor if the Trustee being advised by counsel determines that the action orproceeding so directed may not lawfully be taken or if a ResponsibleOfficer of the Trustee shall determine that the action or proceedings sodirected would involve the Trustee in personal liability. 

 

The holders of a majorityin aggregate principal amount of the Debentures at the time outstanding may onbehalf of the holders of all of the Debentures waive (or modify any previouslygranted 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, orinterest on any of the Debentures, (b) in respect of covenants orprovisions hereof which cannot be modified or amended without the consent ofthe holder of each Debenture affected, or (c) in respect of the covenantscontained in Section 3.9; provided, however, that if theDebentures are held by the Trust or a trustee of such trust, such waiver ormodification to such waiver shall not be effective until the holders of amajority in Liquidation Amount of Trust Securities of the Trust shall haveconsented 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 ofthe Trust shall have consented to such waiver. Upon any such waiver, thedefault covered thereby shall be deemed to be cured for all purposes of thisIndenture and the Company, the Trustee and the holders of the Debentures shallbe restored to their former positions and rights hereunder, respectively; butno such waiver shall extend to any subsequent or other default or Event ofDefault or impair any right consequent thereon. Whenever any default or Eventof Default hereunder shall have been waived as permitted by this Section, saiddefault or Event of Default shall for all purposes of the Debentures and thisIndenture be deemed to have been cured and to be not continuing.

 

**Section 5.8.****                                Noticeof Defaults.**The Trustee shall, within 90 days after the actualknowledge by a Responsible Officer of the Trustee of the occurrence of adefault with respect to the Debentures, mail to all Securityholders, as thenames and addresses of such holders appear upon the Debenture Register, noticeof all defaults with respect to the Debentures known to the Trustee, unlesssuch 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 eventsspecified 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 theprincipal of, premium, if any, or interest on any of the Debentures, theTrustee shall be protected in withholding such notice if and so long as aResponsible Officer of the Trustee in good faith determines that thewithholding of such notice is in the interests of the Securityholders.

 

**Section 5.9.****                                Undertakingto Pay Costs.**All parties to this Indenture agree, and each holder ofany Debenture by his acceptance thereof shall be deemed to have agreed, thatany court may in its discretion require, in any suit for the enforcementof any right or remedy under this Indenture, or in any suit against the Trusteefor any action taken or omitted by it as Trustee, the filing by any partylitigant in such suit of an undertaking to pay the costs of such suit, and thatsuch court may in its discretion assess reasonable costs, includingreasonable attorneys’ fees and expenses, against any party litigant in suchsuit, having due regard to the merits and good faith of the claims or defensesmade by such party litigant; provided, however, that theprovisions of this Section 5.9 shall not apply to any suit instituted bythe Trustee, to any suit instituted by any Securityholder, or group ofSecurityholders, holding in the aggregate more than 10% in principal amount ofthe Debentures outstanding, or to any suit instituted by any Securityholder forthe enforcement of the payment of the principal of (or premium, if any) orinterest on any Debenture against the Company on or after the same shall havebecome due and payable.

 

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**ARTICLE VI.CONCERNING THE TRUSTEE**

 

**Section 6.1.****                                Dutiesand Responsibilities of Trustee.**With respect to the holders ofDebentures issued hereunder, the Trustee, prior to the occurrence of an Eventof Default with respect to the Debentures and after the curing or waiving ofall Events of Default which may have occurred, with respect to theDebentures, undertakes to perform such duties and only such duties as arespecifically set forth in this Indenture, and no implied covenants shall beread into this Indenture against the Trustee. In case an Event of Default withrespect 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 thisIndenture, and use the same degree of care and skill in their exercise, as aprudent man would exercise or use under the circumstances in the conduct of hisown affairs.

 

No provision of thisIndenture shall be construed to relieve the Trustee from liability for its ownnegligent action, its own negligent failure to act or its own willfulmisconduct, except that:

 

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

###  

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

####  

#### (2)                                  inthe absence of bad faith on the part of the Trustee, the Trustee may conclusivelyrely, as to the truth of the statements and the correctness of the opinionsexpressed therein, upon any certificates or opinions furnished to the Trusteeand conforming to the requirements of this Indenture; but, in the case of anysuch certificates or opinions which by any provision hereof are specificallyrequired to be furnished to the Trustee, the Trustee shall be under a duty toexamine the same to determine whether or not they conform to therequirements of this Indenture;

####  

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

###  

### (c)                                  theTrustee shall not be liable with respect to any action taken or omitted to betaken by it in good faith, in accordance with the direction of theSecurityholders pursuant to Section 5.7, relating to the time, method andplace of conducting any proceeding for any remedy available to the Trustee, orexercising any trust or power conferred upon the Trustee, under this Indenture.

###  

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

 

**Section 6.2.****                                Relianceon Documents, Opinions, etc.**Except as otherwise provided in Section 6.1:

 

### (a)                                  theTrustee may conclusively rely and shall be fully protected in acting orrefraining from acting upon any resolution, certificate, statement, instrument,opinion, report, notice, request, consent, order,

 

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### bond, note, debenture or other paper or documentbelieved by it to be genuine and to have been signed or presented by the properparty or parties;

###  

### (b)                                 anyrequest, direction, order or demand of the Company mentioned herein shall besufficiently evidenced by an Officers’ Certificate (unless other evidence inrespect thereof be herein specifically prescribed); and any Board Resolution may beevidenced to the Trustee by a copy thereof certified by the Secretary or anAssistant Secretary of the Company;

###  

### (c)                                  theTrustee may consult with counsel of its selection and any advice orOpinion of Counsel shall be full and complete authorization and protection inrespect of any action taken, suffered or omitted by it hereunder in good faithand in accordance with such advice or Opinion of Counsel;

###  

### (d)                                 theTrustee shall be under no obligation to exercise any of the rights or powersvested in it by this Indenture at the request, order or direction of any of theSecurityholders, pursuant to the provisions of this Indenture, unless suchSecurityholders shall have offered to the Trustee reasonable security orindemnity against the costs, expenses and liabilities which may beincurred therein or thereby;

###  

### (e)                                  theTrustee shall not be liable for any action taken or omitted by it in good faithand believed by it to be authorized or within the discretion or rights orpowers conferred upon it by this Indenture; nothing contained herein shall,however, relieve the Trustee of the obligation, upon the occurrence of an Eventof 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 init by this Indenture, and to use the same degree of care and skill in theirexercise, as a prudent man would exercise or use under the circumstances in theconduct of his own affairs;

###  

### (f)                                    theTrustee shall not be bound to make any investigation into the facts or mattersstated in any resolution, certificate, statement, instrument, opinion, report,notice, request, consent, order, approval, bond, debenture, coupon or otherpaper or document, unless requested in writing to do so by the holders of notless than a majority in aggregate principal amount of the outstandingDebentures affected thereby; provided, however, that if thepayment within a reasonable time to the Trustee of the costs, expenses orliabilities 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 thesecurity afforded to it by the terms of this Indenture, the Trustee may requirereasonable indemnity against such expense or liability as a condition to soproceeding;

###  

### (g)                                 theTrustee may execute any of the trusts or powers hereunder or perform anyduties hereunder either directly or by or through agents (including anyAuthenticating Agent) or attorneys, and the Trustee shall not be responsible forany misconduct or negligence on the part of any such agent or attorneyappointed by it with due care; and

###  

### (h)                                 withthe exceptions of defaults under Sections 5.1(a) or (b), the Trustee shallnot be charged with knowledge of any Default or Event of Default with respectto the Debentures unless a written notice of such Default or Event of Defaultshall have been given to the Trustee by the Company or any other obligor on theDebentures or by any holder of the Debentures.

###  

**Section 6.3.****                                NoResponsibility for Recitals, etc.**The recitals contained herein and inthe Debentures (except in the certificate of authentication of the Trustee orthe Authenticating Agent) shall be taken as the statements of the Company, andthe Trustee and the Authenticating Agent assume no responsibility for thecorrectness of the same. The Trustee and the Authenticating Agent make norepresentations as to the validity or sufficiency of this Indenture or of theDebentures. The Trustee and the Authenticating Agent shall not be accountablefor the use or application by the Company of any Debentures or the proceeds ofany Debentures authenticated and delivered by the Trustee or the AuthenticatingAgent in conformity with the provisions of this Indenture.

 

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**Section 6.4.****                                Trustee,Authenticating Agent, Paying Agents, Transfer Agents or Registrar May OwnDebentures.**The Trustee or any Authenticating Agent or any paying agentor any transfer agent or any Debenture registrar, in its individual or anyother capacity, may become the owner or pledgee of Debentures with thesame rights it would have if it were not Trustee, Authenticating Agent, payingagent, transfer agent or Debenture registrar.

 

**Section 6.5.****                                Moneysto 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 orapplied as herein provided, be held in trust for the purpose for which theywere received, but need not be segregated from other funds except to the extentrequired by law. The Trustee and any paying agent shall be under no liabilityfor interest on any money received by it hereunder except as otherwise agreedin writing with the Company. So long as no Event of Default shall have occurredand be continuing, all interest allowed on any such moneys shall be paid fromtime to time upon the written order of the Company, signed by the Chairman ofthe Board of Directors, the Chief Executive Officer, the President, a ManagingDirector, a Vice President, the Treasurer or an Assistant Treasurer of theCompany.

 

**Section 6.6.****                                Compensationand Expenses of Trustee.**The Company covenants and agrees to pay orreimburse the Trustee upon its request for all reasonable expenses,disbursements and advances incurred or made by the Trustee in accordance withany of the provisions of this Indenture (including the reasonable compensationand the expenses and disbursements of its counsel and of all Persons notregularly in its employ) except any such expense, disbursement or advance as may arisefrom its negligence or willful misconduct. For purposes of clarification, this Section 6.6does not contemplate the payment by the Company of acceptance or annualadministration fees owing to the Trustee pursuant to the services to be providedby the Trustee under this Indenture or the fees and expenses of the Trustee’scounsel in connection with the closing of the transactions contemplated by thisIndenture. The Company also covenants to indemnify each of the Trustee or anypredecessor Trustee (and its officers, agents, directors and employees) for,and to hold it harmless against, any and all loss, damage, claim, liability orexpense including taxes (other than taxes based on the income of the Trustee)incurred without negligence or willful misconduct on the part of theTrustee and arising out of or in connection with the acceptance oradministration of this trust, including the costs and expenses of defendingitself against any claim of liability. The obligations of the Company underthis Section 6.6 to compensate and indemnify the Trustee and to pay orreimburse the Trustee for expenses, disbursements and advances shall constituteadditional indebtedness hereunder. Such additional indebtedness shall besecured by a lien prior to that of the Debentures upon all property and fundsheld or collected by the Trustee as such, except funds held in trust for thebenefit of the holders of particular Debentures.

 

Without prejudice to anyother rights available to the Trustee under applicable law, when the Trusteeincurs expenses or renders services in connection with an Event of Defaultspecified in Section 5.1(d), (e) or (f), the expenses (including thereasonable charges and expenses of its counsel) and the compensation for theservices are intended to constitute expenses of administration under anyapplicable federal or state bankruptcy, insolvency or other similar law.

 

The provisions of this Section shallsurvive the resignation or removal of the Trustee and the defeasance or othertermination of this Indenture.

 

Notwithstanding anythingin this Indenture or any Debenture to the contrary, the Trustee shall have noobligation whatsoever to advance funds to pay any principal of or interest onor other amounts with respect to the Debentures or otherwise advance funds toor on behalf of the Company.

 

**Section 6.7.****                                Officers’Certificate as Evidence.**Except as otherwise provided inSections 6.1 and 6.2, whenever in the administration of the provisions ofthis Indenture the Trustee shall deem it necessary or desirable that a matterbe proved or established prior to taking or omitting any action hereunder,

 

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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 theTrustee, be deemed to be conclusively proved and established by an Officers’Certificate delivered to the Trustee, and such certificate, in the absence ofnegligence or willful misconduct on the part of the Trustee, shall be fullwarrant to the Trustee for any action taken or omitted by it under theprovisions of this Indenture upon the faith thereof.

 

**Section 6.8.****                                Eligibilityof Trustee.**The Trustee hereunder shall at all times be a corporationorganized and doing business under the laws of the United States of America orany state or territory thereof or of the District of Columbia or a corporationor other Person authorized under such laws to exercise corporate trust powers,having (or whose obligations under this Indenture are guaranteed by anaffiliate having) a combined capital and surplus of at least 50 millionU.S. dollars ($50,000,000.00) and subject to supervision or examination byfederal, state, territorial, or District of Columbia authority. If suchcorporation publishes reports of condition at least annually, pursuant to lawor to the requirements of the aforesaid supervising or examining authority,then for the purposes of this Section 6.8 the combined capital and surplusof such corporation shall be deemed to be its combined capital and surplus asset forth in its most recent records of condition so published.

 

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

 

In case at any time theTrustee 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 effectspecified in Section 6.9.

 

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

 

**Section 6.9.****                                Resignationor Removal of Trustee**

 

### (a)                                  TheTrustee, or any trustee or trustees hereafter appointed, may at any timeresign by giving written notice of such resignation to the Company and bymailing notice thereof, at the Company’s expense, to the holders of the Debenturesat their addresses as they shall appear on the Debenture Register. Uponreceiving such notice of resignation, the Company shall promptly appoint asuccessor trustee or trustees by written instrument, in duplicate, executed byorder of its Board of Directors, one copy of which instrument shall bedelivered to the resigning Trustee and one copy to the successor Trustee. If nosuccessor Trustee shall have been so appointed and have accepted appointmentwithin 30 days after the mailing of such notice of resignation to the affectedSecurityholders, the resigning Trustee may petition any court of competentjurisdiction for the appointment of a successor Trustee, or any Securityholderwho has been a bona fide holder of a Debenture or Debentures for at least sixmonths may, subject to the provisions of Section 5.9, on behalf of himselfand all others similarly situated, petition any such court for the appointmentof a successor Trustee. Such court may thereupon, after such notice, ifany, as it may deem proper and prescribe, appoint a successor Trustee.

###  

### (b)                                 Incase at any time any of the following shall occur --

###  

#### (1)                                  theTrustee shall fail to comply with the provisions of Section 6.8 afterwritten request therefor by the Company or by any Securityholder who has been abona fide holder of a Debenture or Debentures for at least 6 months, or

####  

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

 

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#### (3)                                  theTrustee shall become incapable of acting, or shall be adjudged as bankrupt orinsolvent, 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 itsproperty or affairs for the purpose of rehabilitation, conservation orliquidation, 

####  

#### then, in any such case, the Company may remove the Trustee andappoint a successor Trustee by written instrument, in duplicate, executed byorder of the Board of Directors, one copy of which instrument shall bedelivered 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 beena 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 ofcompetent jurisdiction for the removal of the Trustee and the appointment of asuccessor Trustee. Such court may thereupon, after such notice, if any, asit may deem proper and prescribe, remove the Trustee and appoint successorTrustee.

####  

### (c)                                  Uponprior written notice to the Company and the Trustee, the holders of a majorityin aggregate principal amount of the Debentures at the time outstanding may atany time remove the Trustee and nominate a successor Trustee, which shall bedeemed appointed as successor Trustee unless within 10 Business Days after suchnomination the Company objects thereto, in which case, or in the case of afailure by such holders to nominate a successor Trustee, the Trustee so removedor any Securityholder, upon the terms and conditions and otherwise as in subsection (a) ofthis Section 6.9 provided, may petition any court of competent jurisdictionfor an appointment of a successor.

###  

### (d)                                 Anyresignation or removal of the Trustee and appointment of a successor Trusteepursuant to any of the provisions of this Section shall become effectiveupon acceptance of appointment by the successor Trustee as provided in Section 6.10.

###  

**Section 6.10.****                         Acceptanceby Successor Trustee.**Any successor Trustee appointed as provided in Section 6.9shall execute, acknowledge and deliver to the Company and to its predecessorTrustee an instrument accepting such appointment hereunder, and thereupon theresignation or removal of the retiring Trustee shall become effective and suchsuccessor Trustee, without any further act, deed or conveyance, shall becomevested with all the rights, powers, duties and obligations with respect to theDebentures of its predecessor hereunder, with like effect as if originallynamed as Trustee herein; but, nevertheless, on the written request of theCompany or of the successor Trustee, the Trustee ceasing to act shall, uponpayment of any amounts then due it pursuant to the provisions of Section 6.6,execute and deliver an instrument transferring to such successor Trustee allthe 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 bysuch retiring Trustee thereunder. Upon request of any such successor Trustee,the Company shall execute any and all instruments in writing for more fully andcertainly vesting in and confirming to such successor Trustee all such rightsand powers. Any Trustee ceasing to act shall, nevertheless, retain a lien uponall property or funds held or collected by such Trustee to secure any amountsthen due it pursuant to the provisions of Section 6.6.

 

If a successor Trustee isappointed, the Company, the retiring Trustee and the successor Trustee shallexecute and deliver an indenture supplemental hereto which shall contain suchprovisions as shall be deemed necessary or desirable to confirm that all therights, powers, trusts and duties of the retiring Trustee with respect to theDebentures as to which the predecessor Trustee is not retiring shall continueto be vested in the predecessor Trustee, and shall add to or change any of theprovisions of this Indenture as shall be necessary to provide for or facilitatethe administration of the Trust hereunder by more than one Trustee, it beingunderstood that nothing herein or in such supplemental indenture shallconstitute such Trustees co-trustees of the same trust and that each suchTrustee shall be Trustee of a trust or trusts hereunder separate and apart fromany trust or trusts hereunder administered by any other such Trustee.

 

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

 

In no event shall aretiring Trustee be liable for the acts or omissions of any successor Trusteehereunder.

 

Upon acceptance ofappointment by a successor Trustee as provided in this Section 6.10, theCompany shall mail notice of the succession of such Trustee hereunder to theholders of Debentures at their addresses as they shall appear on the DebentureRegister. If the Company fails to mail such notice within 10 Business Daysafter the acceptance of appointment by the successor Trustee, the successorTrustee shall cause such notice to be mailed at the expense of the Company.

 

**Section 6.11.****                         Successionby Merger, etc.**Any corporation into which the Trustee may bemerged or converted or with which it may be consolidated, or anycorporation resulting from any merger, conversion or consolidation to which theTrustee shall be a party, or any corporation succeeding to all or substantiallyall of the corporate trust business of the Trustee, shall be the successor ofthe Trustee hereunder without the execution or filing of any paper or anyfurther act on the part of any of the parties hereto; provided suchcorporation shall be otherwise eligible and qualified under this Article.

 

In case at the time suchsuccessor to the Trustee shall succeed to the trusts created by this Indentureany of the Debentures shall have been authenticated but not delivered, any suchsuccessor to the Trustee may adopt the certificate of authentication ofany predecessor Trustee, and deliver such Debentures so authenticated; and incase at that time any of the Debentures shall not have been authenticated, anysuccessor to the Trustee may authenticate such Debentures either in thename of any predecessor hereunder or in the name of the successor Trustee; andin all such cases such certificates shall have the full force which it isanywhere in the Debentures or in this Indenture provided that the certificateof the Trustee shall have; provided, however, that the right toadopt the certificate of authentication of any predecessor Trustee orauthenticate Debentures in the name of any predecessor Trustee shall apply onlyto its successor or successors by merger, conversion or consolidation.

 

**Section 6.12.****                         AuthenticatingAgents.**There may be one or more Authenticating Agents appointedby the Trustee upon the request of the Company with power to act on its behalfand subject to its direction in the authentication and delivery of Debenturesissued upon exchange or registration of transfer thereof as fully to allintents and purposes as though any such Authenticating Agent had been expresslyauthorized to authenticate and deliver Debentures; provided, however,that the Trustee shall have no liability to the Company for any acts oromissions of the Authenticating Agent with respect to the authentication anddelivery of Debentures. Any such Authenticating Agent shall at all times be acorporation organized and doing business under the laws of the United States orof any state or territory thereof or of the District of Columbia authorizedunder such laws to act as Authenticating Agent, having a combined capital andsurplus of at least $50,000,000.00 and being subject to supervision orexamination by federal, state, territorial or District of Columbia authority. Ifsuch corporation publishes reports of condition at least annually pursuant tolaw or the requirements of such authority, then for the purposes of this Section 6.12the combined capital and surplus of such corporation shall be deemed to be itscombined capital and surplus as set forth in its most recent report ofcondition so published. If at any time an Authenticating Agent shall cease tobe eligible in accordance with the provisions of this Section, it shall resignimmediately in the manner and with the effect herein specified in this Section.

 

Any corporation intowhich any Authenticating Agent may be merged or converted or with which itmay 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 corporatetrust business of any Authenticating Agent, shall be the successor of suchAuthenticating Agent

 

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hereunder, if suchsuccessor corporation is otherwise eligible under this Section 6.12without the execution or filing of any paper or any further act on the part ofthe parties hereto or such Authenticating Agent.

 

Any Authenticating Agent may atany time resign by giving written notice of resignation to the Trustee and tothe Company. The Trustee may at any time terminate the agency of anyAuthenticating Agent with respect to the Debentures by giving written notice oftermination to such Authenticating Agent and to the Company. Upon receivingsuch a notice of resignation or upon such a termination, or in case at any timeany 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 asuccessor Authenticating Agent eligible under this Section 6.12, shallgive written notice of such appointment to the Company and shall mail notice ofsuch appointment to all holders of Debentures as the names and addresses ofsuch holders appear on the Debenture Register. Any successor AuthenticatingAgent upon acceptance of its appointment hereunder shall become vested with allrights, powers, duties and responsibilities with respect to the Debentures ofits predecessor hereunder, with like effect as if originally named asAuthenticating Agent herein.

 

The Company agrees to payto any Authenticating Agent from time to time reasonable compensation for itsservices. Any Authenticating Agent shall have no responsibility or liabilityfor any action taken by it as such in accordance with the directions of theTrustee.

 

**ARTICLE VII.CONCERNING THE SECURITYHOLDERS**

 

**Section 7.1.****                                Actionby Securityholders.**Whenever in this Indenture it is provided that theholders of a specified percentage in aggregate principal amount of theDebentures may take any action (including the making of any demand orrequest, the giving of any notice, consent or waiver or the taking of any otheraction) the fact that at the time of taking any such action the holders of suchspecified percentage have joined therein may be evidenced (a) by anyinstrument or any number of instruments of similar tenor executed by suchSecurityholders in person or by agent or proxy appointed in writing, or (b) bythe record of such holders of Debentures voting in favor thereof at any meetingof such Securityholders duly called and held in accordance with the provisionsof Article VIII, or (c) by a combination of such instrument orinstruments and any such record of such a meeting of such Securityholders or (d) byany other method the Trustee deems satisfactory.

 

If the Company shallsolicit from the Securityholders any request, demand, authorization, direction,notice, consent, waiver or other action or revocation of the same, the Companymay, at its option, as evidenced by an Officers’ Certificate, fix in advance arecord date for such Debentures for the determination of Securityholdersentitled to give such request, demand, authorization, direction, notice,consent, waiver or other action or revocation of the same, but the Companyshall have no obligation to do so. If such a record date is fixed, suchrequest, demand, authorization, direction, notice, consent, waiver or otheraction or revocation of the same may be given before or after the recorddate, but only the Securityholders of record at the close of business on therecord date shall be deemed to be Securityholders for the purposes ofdetermining whether Securityholders of the requisite proportion of outstandingDebentures have authorized or agreed or consented to such request, demand,authorization, direction, notice, consent, waiver or other action or revocationof the same, and for that purpose the outstanding Debentures shall be computedas of the record date; provided, however, that no suchauthorization, agreement or consent by such Securityholders on the record dateshall be deemed effective unless it shall become effective pursuant to the provisionsof this Indenture not later than 6 months after the record date.

 

**Section 7.2.****                                Proofof 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 orhis agent or proxy shall be sufficient if made in accordance with suchreasonable rules and regulations as may be prescribed by the Trusteeor in such manner as shall be satisfactory to the Trustee. The ownership ofDebentures shall be

 

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proved by theDebenture Register or by a certificate of the Debenture registrar. The Trustee may requiresuch additional proof of any matter referred to in this Section as itshall deem necessary.

 

The record of anySecurityholders’ meeting shall be proved in the manner provided in Section 8.6.

 

**Section 7.3.****                                WhoAre Deemed Absolute Owners.**Prior to due presentment for registrationof transfer of any Debenture, the Company, the Trustee, any AuthenticatingAgent, any paying agent, any transfer agent and any Debenture registrar may deemthe Person in whose name such Debenture shall be registered upon the DebentureRegister 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 receivingpayment of or on account of the principal of, premium, if any, and interest onsuch Debenture and for all other purposes; and neither the Company nor theTrustee nor any Authenticating Agent nor any paying agent nor any transferagent nor any Debenture registrar shall be affected by any notice to thecontrary. All such payments so made to any holder for the time being or uponhis 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 anysuch Debenture.

 

**Section 7.4.****                                DebenturesOwned by Company Deemed Not Outstanding.**In determining whether theholders of the requisite aggregate principal amount of Debentures haveconcurred in any direction, consent or waiver under this Indenture, Debentureswhich are owned by the Company or any other obligor on the Debentures or by anyPerson directly or indirectly controlling or controlled by or under direct orindirect common control with the Company or any other obligor on the Debenturesshall be disregarded and deemed not to be outstanding for the purpose of anysuch determination; provided, however, that for the purposes ofdetermining whether the Trustee shall be protected in relying on any suchdirection, consent or waiver, only Debentures which a Responsible Officer ofthe Trustee actually knows are so owned shall be so disregarded. Debentures soowned which have been pledged in good faith may be regarded as outstandingfor the purposes of this Section 7.4 if the pledgee shall establish to thesatisfaction of the Trustee the pledgee’s right to vote such Debentures andthat the pledgee is not the Company or any such other obligor or Persondirectly or indirectly controlling or controlled by or under direct or indirectcommon control with the Company or any such other obligor. In the case of adispute as to such right, any decision by the Trustee taken upon the advice ofcounsel shall be full protection to the Trustee.

 

**Section 7.5.****                                Revocationof 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 takingof any action by the holders of the percentage in aggregate principal amount ofthe Debentures specified in this Indenture in connection with such action, anyholder (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 hasbeen set pursuant to Section 7.1) of a Debenture (or any Debenture issuedin whole or in part in exchange or substitution therefor) the serialnumber of which is shown by the evidence to be included in the Debentures theholders of which have consented to such action may, by filing written noticewith the Trustee at the Principal Office of the Trustee and upon proof ofholding as provided in Section 7.2, revoke such action so far as concernssuch Debenture (or so far as concerns the principal amount represented by anyexchanged or substituted Debenture). Except as aforesaid any such action takenby the holder of any Debenture shall be conclusive and binding upon such holderand upon all future holders and owners of such Debenture, and of any Debentureissued in exchange or substitution therefor or on registration of transferthereof, irrespective of whether or not any notation in regard thereto is madeupon such Debenture or any Debenture issued in exchange or substitutiontherefor.

 

**ARTICLE VIII.SECURITYHOLDERS’ MEETINGS**

 

**Section 8.1.****                                Purposesof Meetings.**A meeting of Securityholders may be called at anytime and from time to time pursuant to the provisions of this Article VIIIfor any of the following purposes:

 

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### (a)                                  togive any notice to the Company or to the Trustee, or to give any directions tothe Trustee, or to consent to the waiving of any default hereunder and itsconsequences, or to take any other action authorized to be taken bySecurityholders pursuant to any of the provisions of Article V;

###  

### (b)                                 toremove the Trustee and nominate a successor trustee pursuant to the provisionsof Article VI;

###  

### (c)                                  toconsent to the execution of an indenture or indentures supplemental heretopursuant to the provisions of Section 9.2; or

###  

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

###  

**Section 8.2.****                                Callof Meetings by Trustee.**The Trustee may at any time call a meetingof Securityholders to take any action specified in Section 8.1, to be heldat such time and at such place as the Trustee shall determine. Notice of everymeeting of the Securityholders, setting forth the time and the place of suchmeeting 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 theyshall appear on the Debentures Register and, if the Company is not a holder ofDebentures, to the Company. Such notice shall be mailed not less than 20 normore than 180 days prior to the date fixed for the meeting.

 

**Section 8.3.****                                Callof Meetings by Company or Securityholders.**In case at any time theCompany pursuant to a Board Resolution, or the holders of at least 10% inaggregate principal amount of the Debentures, as the case may be, thenoutstanding, shall have requested the Trustee to call a meeting ofSecurityholders, by written request setting forth in reasonable detail theaction proposed to be taken at the meeting, and the Trustee shall not havemailed the notice of such meeting within 20 days after receipt of suchrequest, then the Company or such Securityholders may determine the timeand the place for such meeting and may call such meeting to take anyaction authorized in Section 8.1, by mailing notice thereof as provided inSection 8.2.

 

**Section 8.4.****                                Qualificationsfor Voting.**To be entitled to vote at any meeting of Securityholders aPerson shall (a) be a holder of one or more Debentures with respect towhich the meeting is being held or (b) a Person appointed by an instrumentin writing as proxy by a holder of one or more such Debentures. The onlyPersons who shall be entitled to be present or to speak at any meeting ofSecurityholders shall be the Persons entitled to vote at such meeting and theircounsel and any representatives of the Trustee and its counsel and anyrepresentatives of the Company and its counsel.

 

**Section 8.5.****                                Regulations.**Notwithstanding any other provisions of this Indenture, the Trustee may makesuch reasonable regulations as it may deem advisable for any meeting ofSecurityholders, in regard to proof of the holding of Debentures and of theappointment of proxies, and in regard to the appointment and duties ofinspectors of votes, the submission and examination of proxies, certificatesand other evidence of the right to vote, and such other matters concerning theconduct of the meeting as it shall think fit.

 

The Trustee shall, by aninstrument in writing, appoint a temporary chairman of the meeting, unless themeeting shall have been called by the Company or by Securityholders as providedin Section 8.3, in which case the Company or the Securityholders callingthe meeting, as the case may be, shall in like manner appoint a temporarychairman. A permanent chairman and a permanent secretary of the meeting shallbe elected by majority vote of the meeting.

 

Subject to the provisionsof Section 7.4, at any meeting each holder of Debentures with respect towhich such meeting is being held or proxy therefor shall be entitled to onevote for each $1,000.00 principal

 

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amount ofDebentures held or represented by him; provided, however, that novote shall be cast or counted at any meeting in respect of any Debenturechallenged as not outstanding and ruled by the chairman of the meeting to benot outstanding. The chairman of the meeting shall have no right to vote otherthan by virtue of Debentures held by him or instruments in writing as aforesaidduly designating him as the Person to vote on behalf of other Securityholders. Anymeeting of Securityholders duly called pursuant to the provisions of Section 8.2or 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 soadjourned without further notice.

 

**Section 8.6.****                                Voting.**The vote upon any resolution submitted to any meeting of holders ofDebentures with respect to which such meeting is being held shall be by writtenballots on which shall be subscribed the signatures of such holders or of theirrepresentatives by proxy and the serial number or numbers of the Debenturesheld or represented by them. The permanent chairman of the meeting shallappoint two inspectors of votes who shall count all votes cast at the meetingfor or against any resolution and who shall make and file with the secretary ofthe meeting their verified written reports in triplicate of all votes cast atthe meeting. A record in duplicate of the proceedings of each meeting ofSecurityholders shall be prepared by the secretary of the meeting and thereshall be attached to said record the original reports of the inspectors ofvotes on any vote by ballot taken thereat and affidavits by one or more Personshaving knowledge of the facts setting forth a copy of the notice of the meetingand showing that said notice was mailed as provided in Section 8.2. Therecord shall show the serial numbers of the Debentures voting in favor of oragainst any resolution. The record shall be signed and verified by theaffidavits of the permanent chairman and secretary of the meeting and one ofthe duplicates shall be delivered to the Company and the other to the Trusteeto be preserved by the Trustee, the latter to have attached thereto the ballotsvoted at the meeting.

 

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

 

**Section 8.7.****                                Quorum;Actions.**The Persons entitled to vote a majority in principal amount ofthe Debentures then outstanding shall constitute a quorum for a meeting ofSecurityholders; provided, however, that if any action is to betaken at such meeting with respect to a consent, waiver, request, demand,notice, authorization, direction or other action which may be given by theholders of not less than a specified percentage in principal amount of theDebentures then outstanding, the Persons holding or representing such specifiedpercentage in principal amount of the Debentures then outstanding willconstitute a quorum. In the absence of a quorum within 30 minutes of thetime appointed for any such meeting, the meeting shall, if convened at therequest of Securityholders, be dissolved. In any other case the meeting may beadjourned for a period of not less than 10 days as determined by thepermanent chairman of the meeting prior to the adjournment of such meeting. Inthe absence of a quorum at any such adjourned meeting, such adjourned meeting may befurther adjourned for a period of not less than 10 days as determined bythe permanent chairman of the meeting prior to the adjournment of suchadjourned meeting. Notice of the reconvening of any adjourned meeting shall begiven as provided in Section 8.2, except that such notice need be givenonly once not less than 5 days prior to the date on which the meeting isscheduled to be reconvened. Notice of the reconvening of an adjourned meetingshall state expressly the percentage, as provided above, of the principalamount of the Debentures then outstanding which shall constitute a quorum.

 

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

 

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Any resolution passed ordecision taken at any meeting of holders of Debentures duly held in accordancewith this Section shall be binding on all the Securityholders, whether ornot present or represented at the meeting.

 

**ARTICLE IX.SUPPLEMENTAL INDENTURES**

 

**Section 9.1.****                                SupplementalIndentures without Consent of Securityholders.**The Company, whenauthorized by a Board Resolution, and the Trustee may from time to timeand at any time enter into an indenture or indentures supplemental hereto,without the consent of the Securityholders, for one or more of the followingpurposes:

 

### (a)                                  toevidence the succession of another Person to the Company, or successivesuccessions, and the assumption by the successor Person of the covenants,agreements and obligations of the Company, pursuant to Article XI hereof;

###  

### (b)                                 toadd to the covenants of the Company such further covenants, restrictions orconditions for the protection of the holders of Debentures as the Board ofDirectors shall consider to be for the protection of the holders of suchDebentures, and to make the occurrence, or the occurrence and continuance, of adefault in any of such additional covenants, restrictions or conditions adefault or an Event of Default permitting the enforcement of all or any of theseveral remedies provided in this Indenture as herein set forth; provided,however, that in respect of any such additional covenant restriction orcondition such supplemental indenture may provide for a particular periodof grace after default (which period may be shorter or longer than thatallowed in the case of other defaults) or may provide for an immediateenforcement upon such default or may limit the remedies available to theTrustee upon such default;

###  

### (c)                                  tocure any ambiguity or to correct or supplement any provision contained hereinor in any supplemental indenture which may be defective or inconsistentwith any other provision contained herein or in any supplemental indenture, orto make such other provisions in regard to matters or questions arising underthis Indenture; provided that any such action shall not materiallyadversely affect the interests of the holders of the Debentures;

###  

### (d)                                 toadd to, delete from, or revise the terms of Debentures, including, withoutlimitation, any terms relating to the issuance, exchange, registration ortransfer of Debentures, including to provide for transfer procedures andrestrictions substantially similar to those applicable to the CapitalSecurities as required by Section 2.5 (for purposes of assuring that noregistration of Debentures is required under the Securities Act); provided,however, that any such action shall not adversely affect the interestsof the holders of the Debentures then outstanding (it being understood, forpurposes of this proviso, that transfer restrictions on Debenturessubstantially similar to those that were applicable to Capital Securities shallnot be deemed to materially adversely affect the holders of the Debentures);

###  

### (e)                                  toevidence and provide for the acceptance of appointment hereunder by a successorTrustee with respect to the Debentures and to add to or change any of theprovisions of this Indenture as shall be necessary to provide for or facilitatethe administration of the trusts hereunder by more than one Trustee;

###  

### (f)                                    tomake any change (other than as elsewhere provided in this paragraph) that doesnot adversely affect the rights of any Securityholder in any material respect;or

###  

### (g)                                 toprovide for the issuance of and establish the form and terms andconditions of the Debentures, to establish the form of any certificationsrequired to be furnished pursuant to the terms of this Indenture or theDebentures, or to add to the rights of the holders of Debentures.

 

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

 

Any supplementalindenture authorized by the provisions of this Section 9.1 may beexecuted by the Company and the Trustee without the consent of the holders ofany of the Debentures at the time outstanding, notwithstanding any of theprovisions of Section 9.2.

 

**Section 9.2.****                                SupplementalIndentures with Consent of Securityholders.**With the consent (evidencedas provided in Section 7.1) of the holders of not less than a majority inaggregate principal amount of the Debentures at the time outstanding affectedby such supplemental indenture (voting as a class), the Company, whenauthorized by a Board Resolution, and the Trustee may from time to timeand at any time enter into an indenture or indentures supplemental hereto forthe purpose of adding any provisions to or changing in any manner oreliminating any of the provisions of this Indenture or of any supplementalindenture or of modifying in any manner the rights of the holders of theDebentures; provided, however, that no such supplementalindenture shall without the consent of the holders of each Debenture thenoutstanding and affected thereby (i) change the fixed maturity of anyDebenture, or reduce the principal amount thereof or any premium thereon, orreduce the rate or extend the time of payment of interest thereon, or reduceany amount payable on redemption thereof or make the principal thereof or anyinterest or premium thereon payable in any coin or currency other than thatprovided in the Debentures, or impair or affect the right of any Securityholderto 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 ofDebentures the holders of which are required to consent to any suchsupplemental indenture; providedfurther, however, that ifthe Debentures are held by a trust or a trustee of such trust, suchsupplemental indenture shall not be effective until the holders of a majorityin Liquidation Amount of Trust Securities shall have consented to suchsupplemental indenture; providedfurther, however, that ifthe consent of the Securityholder of each outstanding Debenture is required,such supplemental indenture shall not be effective until each holder of theTrust Securities shall have consented to such supplemental indenture.

 

Upon the request of theCompany accompanied by a Board Resolution authorizing the execution of any suchsupplemental indenture, and upon the filing with the Trustee of evidence of theconsent of Securityholders as aforesaid, the Trustee shall join with theCompany in the execution of such supplemental indenture unless suchsupplemental indenture affects the Trustee’s own rights, duties or immunitiesunder this Indenture or otherwise, in which case the Trustee may in itsdiscretion, but shall not be obligated to, enter into such supplemental indenture.

 

Promptly after theexecution by the Company and the Trustee of any supplemental indenture pursuantto the provisions of this Section, the Trustee shall transmit by mail, first class postageprepaid, a notice, prepared by the Company, setting forth in general terms thesubstance of such supplemental indenture, to the Securityholders as their namesand addresses appear upon the Debenture Register. Any failure of the Trustee tomail such notice, or any defect therein, shall not, however, in any way impairor affect the validity of any such supplemental indenture.

 

It shall not be necessaryfor the consent of the Securityholders under this Section 9.2 to approvethe particular form of any proposed supplemental indenture, but it shallbe sufficient if such consent shall approve the substance thereof.

 

**Section 9.3.****                                Effectof Supplemental Indentures.**Upon the execution of any supplementalindenture pursuant to the provisions of this Article IX, this Indentureshall be and be deemed to be modified and amended in accordance therewith andthe respective rights, limitations of rights, obligations, duties and

 

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immunities underthis Indenture of the Trustee, the Company and the holders of Debentures shallthereafter be determined, exercised and enforced hereunder subject in allrespects to such modifications and amendments and all the terms and conditionsof any such supplemental indenture shall be and be deemed to be part ofthe terms and conditions of this Indenture for any and all purposes.

 

**Section 9.4.****                                Notationon Debentures.**Debentures authenticated and delivered after theexecution of any supplemental indenture pursuant to the provisions of this Article IXmay bear a notation as to any matter provided for in such supplementalindenture. If the Company or the Trustee shall so determine, new Debentures somodified as to conform, in the opinion of the Board of Directors of theCompany, to any modification of this Indenture contained in any suchsupplemental indenture may be prepared and executed by the Company,authenticated by the Trustee or the Authenticating Agent and delivered inexchange for the Debentures then outstanding.

 

**Section 9.5.****                                Evidenceof Compliance of Supplemental Indenture to be Furnished to Trustee.**TheTrustee, subject to the provisions of Sections 6.1 and 6.2, shall, inaddition to the documents required by Section 14.6, receive an Officers’Certificate and an Opinion of Counsel as conclusive evidence that anysupplemental indenture executed pursuant hereto complies with the requirementsof this Article IX. The Trustee shall receive an Opinion of Counsel asconclusive evidence that any supplemental indenture executed pursuant to this Article IXis authorized or permitted by, and conforms to, the terms of this Article IXand that it is proper for the Trustee under the provisions of this Article IXto join in the execution thereof.

 

**ARTICLE X.REDEMPTION OF SECURITIES**

 

**Section 10.1.****                         OptionalRedemption.**The Company shall have the right (subject to the receipt bythe Company of prior approval (i) if the Company is a bank holdingcompany, from the Federal Reserve, if then required under applicable capitalguidelines or policies of the Federal Reserve or (ii) if the Company is asavings and loan holding company, from the OTS, if then required underapplicable capital guidelines or policies of the OTS) to redeem the Debentures,in whole or in part, but in all cases in a principal amount with integralmultiples of $1,000.00, on any Interest Payment Date on or after the InterestPayment Date in March 2011 (the “Redemption Date”), at theRedemption Price.

 

**Section 10.2.****                         SpecialEvent Redemption.**If a Special Event shall occur and be continuing, theCompany shall have the right (subject to the receipt by the Company of priorapproval (i) if the Company is a bank holding company, from the FederalReserve, if then required under applicable capital guidelines or policies ofthe Federal Reserve or (ii) if the Company is a savings and loan holdingcompany, from the OTS, if then required under applicable capital guidelines orpolicies of the OTS) to redeem the Debentures in whole, but not in part, at anyInterest Payment Date, within 120 days following the occurrence of suchSpecial Event (the “Special Redemption Date”) at the Special RedemptionPrice. If the Special Event redemption occurs prior to the Interest PaymentDate in March 2011, the Company shall appoint a Quotation Agent, whichshall be a designee of the Institutional Trustee, for the purpose of performingthe services contemplated in, or by reference in, the definition of SpecialRedemption Price. Any error in the calculation of the Special Redemption Priceby the Quotation Agent or the Trustee may be corrected at any time bynotice delivered to the Company and the holders of the Debentures. Subject tothe corrective rights set forth above, all certificates, communications,opinions, determinations, calculations, quotations and decisions given,expressed, made or obtained for the purposes of the provisions relating to thepayment and calculation of the Special Redemption Price on the Debentures bythe Trustee or the Quotation Agent, as the case may be, shall (in theabsence of willful default, bad faith or manifest error) be final, conclusiveand binding on the holders of the Debentures and the Company, and no liabilityshall attach (except as provided above) to the Trustee or the Quotation Agentin connection with the exercise or non-exercise by any of them of theirrespective powers, duties and discretion.

 

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**Section 10.3.****                         Noticeof Redemption; Selection of Debentures.**In case the Company shalldesire to exercise the right to redeem all, or, as the case may be, any part ofthe Debentures, it shall cause to be mailed a notice of such redemption atleast 30 and not more than 60 days prior to the Redemption Date or theSpecial Redemption Date to the holders of Debentures so to be redeemed as awhole or in part at their last addresses as the same appear on the DebentureRegister. Such mailing shall be by first class mail. The notice if mailedin the manner herein provided shall be conclusively presumed to have been dulygiven, whether or not the holder receives such notice. In any case, failure togive such notice by mail or any defect in the notice to the holder of anyDebenture designated for redemption as a whole or in part shall not affectthe validity of the proceedings for the redemption of any other Debenture.

 

Each such notice ofredemption shall specify the CUSIP number, if any, of the Debentures to beredeemed, the Redemption Date or the Special Redemption Date, as applicable,the Redemption Price or the Special Redemption Price, as applicable, at whichDebentures are to be redeemed, the place or places of payment, that paymentwill be made upon presentation and surrender of such Debentures, that interestaccrued to the date fixed for redemption will be paid as specified in saidnotice, and that on and after said date interest thereon or on the portions thereofto be redeemed will cease to accrue. If less than all the Debentures are to beredeemed the notice of redemption shall specify the numbers of the Debenturesto be redeemed. In case the Debentures are to be redeemed in part only,the notice of redemption shall state the portion of the principal amountthereof to be redeemed and shall state that on and after the date fixed forredemption, upon surrender of such Debenture, a new Debenture or Debentures inprincipal 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, asapplicable, the Company will deposit with the Trustee or with one or morepaying agents an amount of money sufficient to redeem on the Redemption Date orthe Special Redemption Date, as applicable, all the Debentures so called forredemption 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 notless than 45 nor more than 60 days, respectively, prior to the RedemptionDate or Special Redemption Date, as applicable, as to the aggregate principalamount of Debentures to be redeemed and the Trustee shall select, in such manneras in its sole discretion it shall deem appropriate and fair, the Debentures orportions thereof (in integral multiples of $1,000.00) to be redeemed.

 

**Section 10.4.****                         Paymentof Debentures Called for Redemption.**If notice of redemption has beengiven as provided in Section 10.3, the Debentures or portions ofDebentures with respect to which such notice has been given shall become dueand payable on the Redemption Date or Special Redemption Date, as applicable,and at the place or places stated in such notice at the applicable RedemptionPrice or Special Redemption Price and on and after said date (unless theCompany shall default in the payment of such Debentures at the Redemption Priceor Special Redemption Price, as applicable) interest on the Debentures or portionsof Debentures so called for redemption shall cease to accrue. On presentationand surrender of such Debentures at a place of payment specified in saidnotice, such Debentures or the specified portions thereof shall be paid andredeemed by the Company at the applicable Redemption Price or SpecialRedemption Price.

 

Upon presentation of anyDebenture redeemed in part only, the Company shall execute and the Trusteeshall authenticate and make available for delivery to the holder thereof, atthe expense of the Company, a new Debenture or Debentures of authorizeddenominations, in principal amount equal to the unredeemed portion of theDebenture so presented.

 

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**ARTICLE XI.CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE**

 

**Section 11.1.****                         CompanyMay Consolidate, etc., on Certain Terms.**Nothing contained in thisIndenture or in the Debentures shall prevent any consolidation or merger of theCompany with or into any other Person (whether or not affiliated with theCompany) or successive consolidations or mergers in which the Company or itssuccessor 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 itssuccessor or successors as an entirety, or substantially as an entirety, to anyother Person (whether or not affiliated with the Company, or its successor orsuccessors) 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 withtheir terms, according to their tenor, and the due and punctual performance andobservance of all the covenants and conditions of this Indenture to be kept orperformed by the Company, shall be expressly assumed by supplemental indenturesatisfactory in form to the Trustee executed and delivered to the Trusteeby the entity formed by such consolidation, or into which the Company shallhave been merged, or by the entity which shall have acquired such property.

 

**Section 11.2.****                         SuccessorEntity to be Substituted.**In case of any such consolidation, merger,sale, conveyance, transfer or other disposition and upon the assumption by thesuccessor entity, by supplemental indenture, executed and delivered to theTrustee and satisfactory in form to the Trustee, of the due and punctualpayment of the principal of and premium, if any, and interest on all of theDebentures and the due and punctual performance and observance of all of thecovenants and conditions of this Indenture to be performed or observed by theCompany, such successor entity shall succeed to and be substituted for theCompany, 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 liabilityor obligation hereunder or upon the Debentures. Such successor entity thereuponmay cause to be signed, and may issue in its own name, any or all ofthe Debentures issuable hereunder which theretofore shall not have been signedby 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 toall the terms, conditions and limitations in this Indenture prescribed, theTrustee or the Authenticating Agent shall authenticate and deliver anyDebentures which previously shall have been signed and delivered by theofficers of the Company, to the Trustee or the Authenticating Agent forauthentication, and any Debentures which such successor entity thereafter shallcause to be signed and delivered to the Trustee or the Authenticating Agent forthat purpose. All the Debentures so issued shall in all respects have the samelegal rank and benefit under this Indenture as the Debentures theretofore orthereafter issued in accordance with the terms of this Indenture as though allof such Debentures had been issued at the date of the execution hereof.

 

**Section 11.3.****                         Opinionof Counsel to be Given to Trustee.**The Trustee, subject to theprovisions of Sections 6.1 and 6.2, shall receive, in addition to theOpinion of Counsel required by Section 9.5, an Opinion of Counsel asconclusive evidence that any consolidation, merger, sale, conveyance, transferor other disposition, and any assumption, permitted or required by the terms ofthis Article XI complies with the provisions of this Article XI.

 

**ARTICLE XII.SATISFACTION AND DISCHARGE OF INDENTURE**

 

**Section 12.1.****                         Dischargeof Indenture.**When

 

(a)                                  theCompany shall deliver to the Trustee for cancellation all Debenturestheretofore authenticated (other than any Debentures which shall have beendestroyed, lost or stolen and which shall have been replaced or paid asprovided in Section 2.6) and not theretofore canceled, or 

 

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(b)                                 allthe Debentures not theretofore canceled or delivered to the Trustee forcancellation shall have become due and payable, or are by their terms to becomedue and payable within 1 year or are to be called for redemption within 1 yearunder arrangements satisfactory to the Trustee for the giving of notice ofredemption, and the Company shall deposit with the Trustee, in trust, funds,which shall be immediately due and payable, sufficient to pay at maturity orupon redemption all of the Debentures (other than any Debentures which shallhave been destroyed, lost or stolen and which shall have been replaced or paidas provided in Section 2.6) not theretofore canceled or delivered to theTrustee for cancellation, including principal and premium, if any, and interestdue 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 principalof, and premium, if any, or interest on the Debentures (1) theretoforerepaid 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 itsunclaimed property or similar laws,

 

and if in the caseof either clause (a) or clause (b) the Company shall alsopay or cause to be paid all other sums payable hereunder by the Company, thenthis Indenture shall cease to be of further effect except for the provisions ofSections 2.5, 2.6, 2.8, 3.1, 3.2, 3.4, 6.6, 6.8, 6.9 and 12.4 hereof shallsurvive until such Debentures shall mature and be paid. Thereafter,Sections 6.6 and 12.4 shall survive, and the Trustee, on demand of theCompany accompanied by an Officers’ Certificate and an Opinion of Counsel, eachstating that all conditions precedent herein provided for relating to thesatisfaction and discharge of this Indenture have been complied with, and atthe cost and expense of the Company, shall execute proper instrumentsacknowledging satisfaction of and discharging this Indenture. The Companyagrees to reimburse the Trustee for any costs or expenses thereafter reasonablyand properly incurred by the Trustee in connection with this Indenture or theDebentures.

 

**Section 12.2.****                         DepositedMoneys 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 beheld in trust in a non-interest bearing account and applied by it to thepayment, either directly or through any paying agent (including the Company ifacting as its own paying agent), to the holders of the particular Debenturesfor the payment of which such moneys have been deposited with the Trustee, ofall sums due and to become due thereon for principal, and premium, if any, andinterest.

 

**Section 12.3.****                         PayingAgent to Repay Moneys Held.**Upon the satisfaction and discharge of thisIndenture all moneys then held by any paying agent of the Debentures (otherthan the Trustee) shall, upon demand of the Company, be repaid to it or paid tothe Trustee, and thereupon such paying agent shall be released from all furtherliability with respect to such moneys.

 

**Section 12.4.****                         Returnof Unclaimed Moneys.**Any moneys deposited with or paid to the Trusteeor any paying agent for payment of the principal of, and premium, if any, orinterest on Debentures and not applied but remaining unclaimed by the holdersof Debentures for 2 years after the date upon which the principal of, andpremium, if any, or interest on such Debentures, as the case may be, shallhave become due and payable, shall, subject to applicable escheatment laws, berepaid 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 theCompany for any payment which such holder may be entitled to collect, andall liability of the Trustee or such paying agent with respect to such moneysshall thereupon cease.

 

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**ARTICLE XIII.IMMUNITY OF INCORPORATORS, STOCKHOLDERS,OFFICERS AND DIRECTORS**

 

**Section 13.1.****                         Indentureand Debentures Solely Corporate Obligations.**No recourse for thepayment 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 recourseunder or upon any obligation, covenant or agreement of the Company in thisIndenture or in any supplemental indenture, or in any such Debenture, orbecause of the creation of any indebtedness represented thereby, shall be hadagainst any incorporator, stockholder, employee, officer or director, as such,past, present or future, of the Company or of any successor Person of theCompany, either directly or through the Company or any successor Person of theCompany, whether by virtue of any constitution, statute or rule of law, orby the enforcement of any assessment or penalty or otherwise, it beingexpressly understood that all such liability is hereby expressly waived andreleased as a condition of, and as a consideration for, the execution of thisIndenture and the issue of the Debentures.

 

**ARTICLE XIV.MISCELLANEOUS PROVISIONS**

 

**Section 14.1.****                         Successors.**All the covenants, stipulations, promises and agreements of the Company inthis Indenture shall bind its successors and assigns whether so expressed ornot.

 

**Section 14.2.****                         OfficialActs by Successor Entity.**Any act or proceeding by any provision ofthis Indenture authorized or required to be done or performed by any board,committee or officer of the Company shall and may be done and performedwith like force and effect by the like board, committee, officer or otherauthorized Person of any entity that shall at the time be the lawful successorof the Company.

 

**Section 14.3.****                         Surrenderof Company Powers.**The Company by instrument in writing executed byauthority of at least 2/3 (two-thirds) of its Board of Directors and deliveredto the Trustee may surrender any of the powers reserved to the Company andthereupon such power so surrendered shall terminate both as to the Company, andas to any permitted successor.

 

**Section 14.4.****                         Addressesfor Notices, etc.**Any notice, consent, direction, request,authorization, waiver or demand which by any provision of this Indenture isrequired or permitted to be given, made, furnished or served by the Trustee orby the Securityholders on or to the Company may be given or served inwriting by being deposited postage prepaid by registered or certified mail in apost office letter box addressed (until another address is filed by theCompany, with the Trustee for the purpose) to the Company, 230 Poyntz Avenue, Manhattan,Kansas  66502, Attention:  Mark A. Herpich. Any notice, consent,direction, request, authorization, waiver or demand by any Securityholder orthe Company to or upon the Trustee shall be deemed to have been sufficientlygiven or made, for all purposes, if given or made in writing at the office ofthe Trustee, addressed to the Trustee, Rodney Square North, 1100 North MarketStreet, Wilmington, Delaware  19890-1600,Attention:  Corporate TrustAdministration. Any notice, consent, direction, request, authorization, waiveror demand on or to any Securityholder shall be deemed to have been sufficientlygiven or made, for all purposes, if given or made in writing at the address setforth in the Debenture Register.

 

**Section 14.5.****                         GoverningLaw.**This Indenture and each Debenture shall be deemed to be a contractmade under the law of the State of New York, and for all purposes shall begoverned by and construed in accordance with the law of said State, withoutregard to conflict of laws principles thereof.

 

**Section 14.6.****                         Evidenceof Compliance with Conditions Precedent.**Upon any application or demandby the Company to the Trustee to take any action under any of the provisions ofthis Indenture, the Company shall furnish to the Trustee an Officers’Certificate stating that in the opinion of the signers all conditionsprecedent, if any, provided for in this Indenture relating to the proposedaction have been

 

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complied with andan Opinion of Counsel stating that, in the opinion of such counsel, all such conditionsprecedent have been complied with.

 

Each certificate oropinion provided for in this Indenture and delivered to the Trustee withrespect to compliance with a condition or covenant provided for in thisIndenture shall include (1) a statement that the person making suchcertificate or opinion has read such covenant or condition; (2) a briefstatement as to the nature and scope of the examination or investigation uponwhich the statements or opinions contained in such certificate or opinion arebased; (3) a statement that, in the opinion of such person, he has madesuch examination or investigation as is necessary to enable him to express aninformed opinion as to whether or not such covenant or condition has beencomplied with; and (4) a statement as to whether or not in the opinion ofsuch person, such condition or covenant has been complied with.

 

**Section 14.7.****                         Tableof Contents, Headings, etc.**The table of contents and the titles andheadings of the articles and sections of this Indenture have been inserted forconvenience of reference only, are not to be considered a part hereof, andshall in no way modify or restrict any of the terms or provisions hereof.

 

**Section 14.8.****                         Executionin Counterparts.**This Indenture may be executed in any number ofcounterparts, each of which shall be an original, but such counterparts shalltogether 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 inthe Debentures shall for any reason be held to be invalid, illegal orunenforceable in any respect, such invalidity, illegality or unenforceabilityshall 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 orillegal 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 orobligations under this Indenture to a direct or indirect wholly ownedSubsidiary of the Company, provided that, in the event of any such assignment,the Company will remain liable for all such obligations. Subject to theforegoing, this Indenture is binding upon and inures to the benefit of theparties hereto and their respective successors and assigns. This Indenture may nototherwise be assigned by the parties hereto.

 

**Section 14.11.****                  Acknowledgmentof Rights.**The Company agrees that, with respect to any Debentures heldby the Trust or the Institutional Trustee of the Trust, if the InstitutionalTrustee of the Trust fails to enforce its rights under this Indenture as theholder of Debentures held as the assets of such Trust after the holders of amajority in Liquidation Amount of the Capital Securities of such Trust have sodirected such Institutional Trustee, a holder of record of such CapitalSecurities may, to the fullest extent permitted by law, institute legalproceedings directly against the Company to enforce such Institutional Trustee’srights under this Indenture without first instituting any legal proceedingsagainst such trustee or any other Person. Notwithstanding the foregoing, if anEvent of Default has occurred and is continuing and such event is attributableto the failure of the Company to pay interest (or premium, if any) or principalon the Debentures on the date such interest (or premium, if any) or principalis 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 directlyinstitute a proceeding against the Company for enforcement of payment to suchholder directly of the principal of (or premium, if any) or interest on theDebentures having an aggregate principal amount equal to the aggregateLiquidation Amount of the Capital Securities of such holder on or after therespective due date specified in the Debentures.

 

**ARTICLE XV.SUBORDINATION OF DEBENTURES**

 

**Section 15.1.****                         Agreementto Subordinate.**The Company covenants and agrees, and each holder ofDebentures by such Securityholder’s acceptance thereof likewise covenants andagrees, that all

 

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Debentures shallbe issued subject to the provisions of this Article XV; and each holder ofa Debenture, whether upon original issue or upon transfer or assignmentthereof, accepts and agrees to be bound by such provisions.

 

The payment by theCompany of the principal of, and premium, if any, and interest on allDebentures shall, to the extent and in the manner hereinafter set forth, besubordinated and junior in right of payment to the prior payment in full of allSenior Indebtedness of the Company, whether outstanding at the date of thisIndenture or thereafter incurred.

 

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

 

**Section 15.2.****                         Defaulton Senior Indebtedness.**In the event and during the continuation of anydefault by the Company in the payment of principal, premium, interest or anyother payment due on any Senior Indebtedness of the Company following any graceperiod, or in the event that the maturity of any Senior Indebtedness of theCompany has been accelerated because of a default and such acceleration has notbeen rescinded or canceled and such Senior Indebtedness has not been paid infull, then, in either case, no payment shall be made by the Company withrespect to the principal (including redemption) of, or premium, if any, orinterest on the Debentures.

 

In the event that, notwithstandingthe foregoing, any payment shall be received by the Trustee when such paymentis prohibited by the preceding paragraph of this Section 15.2, suchpayment shall, subject to Section 15.7, be held in trust for the benefitof, and shall be paid over or delivered to, the holders of Senior Indebtednessor their respective representatives, or to the trustee or trustees under anyindenture pursuant to which any of such Senior Indebtedness may have beenissued, as their respective interests may appear, but only to the extentthat the holders of the Senior Indebtedness (or their representative orrepresentatives or a trustee) notify the Trustee in writing within 90 daysof such payment of the amounts then due and owing on the Senior Indebtednessand only the amounts specified in such notice to the Trustee shall be paid tothe holders of Senior Indebtedness.

 

**Section 15.3.****                         Liquidation,Dissolution, Bankruptcy.**Upon any payment by the Company ordistribution of assets of the Company of any kind or character, whether incash, property or securities, to creditors upon any dissolution or winding-upor liquidation or reorganization of the Company, whether voluntary orinvoluntary or in bankruptcy, insolvency, receivership or other proceedings,all amounts due upon all Senior Indebtedness of the Company shall first be paidin 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 (andpremium, if any) or interest on the Debentures. Upon any such dissolution orwinding-up or liquidation or reorganization, any payment by the Company, ordistribution of assets of the Company of any kind or character, whether incash, property or securities, to which the Securityholders or the Trustee wouldbe 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 bythem or it, directly to the holders of Senior Indebtedness (*pro rata* to such holders on the basis of the respectiveamounts of Senior Indebtedness held by such holders, as calculated by theCompany) or their representative or representatives, or to the trustee ortrustees under any indenture pursuant to which any instruments evidencing suchSenior Indebtedness may have been issued, as their respective interests may appear,to the extent necessary to pay such Senior Indebtedness in full, in money ormoney’s worth, after giving effect to any concurrent payment or distribution toor for the holders of such Senior Indebtedness, before any payment ordistribution is made to the Securityholders or to the Trustee.

 

In the event that,notwithstanding the foregoing, any payment or distribution of assets of theCompany of any kind or character, whether in cash, property or securities,prohibited by the foregoing, shall

 

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be received by theTrustee before all Senior Indebtedness is paid in full, or provision is madefor such payment in money in accordance with its terms, such payment ordistribution shall be held in trust for the benefit of and shall be paid overor delivered to the holders of such Senior Indebtedness or their representativeor representatives, or to the trustee or trustees under any indenture pursuantto which any instruments evidencing such Senior Indebtedness may have beenissued, as their respective interests may appear, as calculated by theCompany, for application to the payment of all Senior Indebtedness, remainingunpaid to the extent necessary to pay such Senior Indebtedness in full in moneyin accordance with its terms, after giving effect to any concurrent payment ordistribution to or for the benefit of the holders of such Senior Indebtedness.

 

For purposes of this Article XV,the words “cash, property or securities” shall not be deemed to include sharesof stock of the Company as reorganized or readjusted, or securities of theCompany or any other corporation provided for by a plan of reorganization orreadjustment, the payment of which is subordinated at least to the extentprovided in this Article XV with respect to the Debentures to the paymentof all Senior Indebtedness, that may at the time be outstanding, providedthat (i) such Senior Indebtedness is assumed by the new corporation, ifany, resulting from any such reorganization or readjustment, and (ii) therights of the holders of such Senior Indebtedness are not, without the consentof such holders, altered by such reorganization or readjustment. Theconsolidation of the Company with, or the merger of the Company into, anothercorporation or the liquidation or dissolution of the Company following theconveyance or transfer of its property as an entirety, or substantially as anentirety, to another corporation upon the terms and conditions provided for in Article XIof this Indenture shall not be deemed a dissolution, winding-up, liquidation orreorganization for the purposes of this Section if such other corporationshall, as a part of such consolidation, merger, conveyance or transfer,comply with the conditions stated in Article XI of this Indenture. Nothingin Section 15.2 or in this Section shall apply to claims of, orpayments to, the Trustee under or pursuant to Section 6.6 of thisIndenture.

 

**Section 15.4.****                         Subrogation.**Subject to the payment in full of all Senior Indebtedness, theSecurityholders shall be subrogated to the rights of the holders of such SeniorIndebtedness to receive payments or distributions of cash, property orsecurities of the Company, applicable to such Senior Indebtedness until theprincipal of (and premium, if any) and interest on the Debentures shall be paidin full. For the purposes of such subrogation, no payments or distributions tothe holders of such Senior Indebtedness of any cash, property or securities towhich the Securityholders or the Trustee would be entitled except for the provisionsof this Article XV, and no payment over pursuant to the provisions of thisArticle XV to or for the benefit of the holders of such SeniorIndebtedness by Securityholders or the Trustee, shall, as between the Company,its creditors other than holders of Senior Indebtedness of the Company, and theholders of the Debentures be deemed to be a payment or distribution by theCompany to or on account of such Senior Indebtedness. It is understood that theprovisions of this Article XV are and are intended solely for the purposesof defining the relative rights of the holders of the Securities, on the onehand, and the holders of such Senior Indebtedness, on the other hand.

 

Nothing contained in thisArticle XV or elsewhere in this Indenture or in the Debentures is intendedto or shall impair, as between the Company, its creditors other than theholders of Senior Indebtedness, and the holders of the Debentures, theobligation of the Company, which is absolute and unconditional, to pay to theholders of the Debentures the principal of (and premium, if any) and intereston the Debentures as and when the same shall become due and payable inaccordance with their terms, or is intended to or shall affect the relativerights of the holders of the Debentures and creditors of the Company, otherthan the holders of Senior Indebtedness, nor shall anything herein or thereinprevent the Trustee or the holder of any Debenture from exercising all remediesotherwise permitted by applicable law upon default under this Indenture, subjectto the rights, if any, under this Article XV of the holders of such SeniorIndebtedness in respect of cash, property or securities of the Company,received upon the exercise of any such remedy.

 

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Upon any payment ordistribution of assets of the Company referred to in this Article XV, theTrustee, subject to the provisions of Article VI of this Indenture, andthe Securityholders shall be entitled to conclusively rely upon any order ordecree made by any court of competent jurisdiction in which such dissolution,winding-up, liquidation or reorganization proceedings are pending, or acertificate of the receiver, trustee in bankruptcy, liquidation trustee, agentor other Person making such payment or distribution, delivered to the Trusteeor to the Securityholders, for the purposes of ascertaining the Personsentitled to participate in such distribution, the holders of SeniorIndebtedness and other indebtedness of the Company, the amount thereof or payablethereon, the amount or amounts paid or distributed thereon and all other factspertinent thereto or to this Article XV.

 

**Section 15.5.****                         Trusteeto Effectuate Subordination.**Each Securityholder by such Securityholder’sacceptance thereof authorizes and directs the Trustee on such Securityholder’sbehalf to take such action as may be necessary or appropriate toeffectuate the subordination provided in this Article XV and appoints theTrustee such Securityholder’s attorney-in-fact for any and all such purposes.

 

**Section 15.6.****                         Noticeby the Company.**The Company shall give prompt written notice to aResponsible Officer of the Trustee at the Principal Office of the Trustee ofany fact known to the Company that would prohibit the making of any payment ofmonies to or by the Trustee in respect of the Debentures pursuant to theprovisions of this Article XV. Notwithstanding the provisions of this Article XVor any other provision of this Indenture, the Trustee shall not be charged withknowledge of the existence of any facts that would prohibit the making of anypayment of monies to or by the Trustee in respect of the Debentures pursuant tothe provisions of this Article XV, unless and until a Responsible Officerof the Trustee at the Principal Office of the Trustee shall have receivedwritten notice thereof from the Company or a holder or holders of SeniorIndebtedness or from any trustee therefor; and before the receipt of any suchwritten notice, the Trustee, subject to the provisions of Article VI ofthis Indenture, shall be entitled in all respects to assume that no such factsexist; provided, however, that if the Trustee shall not havereceived the notice provided for in this Section at least 2 Business Daysprior to the date upon which by the terms hereof any money may becomepayable for any purpose (including, without limitation, the payment of theprincipal of (or premium, if any) or interest on any Debenture), then, anythingherein contained to the contrary notwithstanding, the Trustee shall have fullpower and authority to receive such money and to apply the same to the purposesfor which they were received, and shall not be affected by any notice to thecontrary that may be received by it within 2 Business Days prior to suchdate.

 

The Trustee, subject tothe provisions of Article VI of this Indenture, shall be entitled toconclusively rely on the delivery to it of a written notice by a Personrepresenting himself to be a holder of Senior Indebtedness (or a trustee orrepresentative on behalf of such holder), to establish that such notice hasbeen given by a holder of such Senior Indebtedness or a trustee orrepresentative on behalf of any such holder or holders. In the event that theTrustee determines in good faith that further evidence is required with respectto the right of any Person as a holder of such Senior Indebtedness toparticipate in any payment or distribution pursuant to this Article XV,the Trustee may request such Person to furnish evidence to the reasonablesatisfaction of the Trustee as to the amount of such Senior Indebtedness heldby such Person, the extent to which such Person is entitled to participate insuch payment or distribution and any other facts pertinent to the rights ofsuch Person under this Article XV, and, if such evidence is not furnished,the Trustee may defer any payment to such Person pending judicialdetermination as to the right of such Person to receive such payment.

 

**Section 15.7.****                         Rightsof the Trustee; Holders of Senior Indebtedness.**The Trustee in itsindividual capacity shall be entitled to all the rights set forth in this Article XVin respect of any Senior Indebtedness at any time held by it, to the sameextent as any other holder of Senior Indebtedness, and nothing in thisIndenture shall deprive the Trustee of any of its rights as such holder.

 

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With respect to theholders of Senior Indebtedness, the Trustee undertakes to perform or toobserve only such of its covenants and obligations as are specifically setforth in this Article XV, and no implied covenants or obligations withrespect to the holders of such Senior Indebtedness shall be read into thisIndenture against the Trustee. The Trustee shall not be deemed to owe anyfiduciary duty to the holders of such Senior Indebtedness and, subject to theprovisions of Article VI of this Indenture, the Trustee shall not beliable to any holder of such Senior Indebtedness if it shall pay over ordeliver to Securityholders, the Company or any other Person money or assets towhich any holder of such Senior Indebtedness shall be entitled by virtue ofthis Article XV or otherwise.

 

Nothing in this Article XVshall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.6.

 

**Section 15.8.****                         SubordinationMay Not Be Impaired.**No right of any present or future holder ofany Senior Indebtedness to enforce subordination as herein provided shall atany time in any way be prejudiced or impaired by any act or failure to act onthe 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 thereofthat any such holder may have or otherwise be charged with.

 

Without in any waylimiting the generality of the foregoing paragraph, the holders of SeniorIndebtedness may, at any time and from time to time, without the consent of ornotice to the Trustee or the Securityholders, without incurring responsibilityto the Securityholders and without impairing or releasing the subordinationprovided in this Article XV or the obligations hereunder of the holders ofthe Debentures to the holders of such Senior Indebtedness, do any one or moreof the following:  (i) change themanner, place or terms of payment or extend the time of payment of, or renew oralter, such Senior Indebtedness, or otherwise amend or supplement in any mannersuch Senior Indebtedness or any instrument evidencing the same or any agreementunder which such Senior Indebtedness is outstanding; (ii) sell, exchange,release or otherwise deal with any property pledged, mortgaged or otherwisesecuring such Senior Indebtedness; (iii) release any Person liable in anymanner for the collection of such Senior Indebtedness; and (iv) exerciseor refrain from exercising any rights against the Company, and any otherPerson.

 

*Signaturesappear on the following page*

 

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IN WITNESS WHEREOF, theparties hereto have caused this Indenture to be duly executed by theirrespective officers thereunto duly authorized, as of the day and year firstabove written.

 
|   | LANDMARK BANCORP, INC.          |
|--------|--------------------------------------|
|   |                                 |
|   |                                 |
|   | By                                   |     /s/  Patrick L. Alexander |   |
|   | Name:                                |
|   | Title:                               |
|   |                                 |
|   |                                 |
|   | WILMINGTON TRUST COMPANY, as Trustee |
|   |                                 |
|   |                                 |
|   | By                                   |     /s/ Christopher J. Monigle |   |
|   | Name:                                |
|   | Title:                               |

 

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**EXHIBIT A**

 

**FORM OFFLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE**

 

[FORM OF FACEOF SECURITY]

 

THIS SECURITY IS NOT ASAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY THE UNITED STATES OR ANYAGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCECORPORATION.

 

THIS SECURITY HAS NOTBEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIESACT”), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHERTHIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF INTHE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, ORNOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANYAPPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCEHEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY ONLY (A) TOTHE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEENDECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A PERSON WHOM THESELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTIONMEETING THE REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS ELIGIBLEFOR RESALE PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A, (D) TOA NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903OR RULE 904 (AS APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT,(E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OFSUBPARAGRAPH (A) OF RULE 501 UNDER THE SECURITIES ACT THAT ISACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH ANINSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEWTO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OFTHE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROMTHE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’SRIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF ANOPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO ITIN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THECOMPANY.

 

THE HOLDER OF THISSECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT ITIS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN ORARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACTOF 1974, AS AMENDED (“ERISA”),  OR SECTION 4975OF 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 ANYPLAN’S INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANYPLAN MAY ACQUIRE OR HOLD THE SECURITIES OR ANY INTEREST THEREIN, UNLESSSUCH 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 ANDHOLDING OF THIS SECURITY IS NOT PROHIBITED BY

 

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SECTION 406OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE ORHOLDING. ANY PURCHASER OR HOLDER OF THE SECURITIES OR ANY INTEREST THEREIN WILLBE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) ITIS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OFERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, ATRUSTEE 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 ORPLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT RESULT IN APROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OFTHE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVEEXEMPTION.

 

THIS SECURITY WILL BEISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN AGGREGATE PRINCIPALAMOUNT OF NOT LESS THAN $100,000.00 AND MULTIPLES OF $1,000.00 IN EXCESSTHEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING AN AGGREGATEPRINCIPAL AMOUNT OF LESS THAN $100,000.00 SHALL BE DEEMED TO BE VOID AND OF NOLEGAL EFFECT WHATSOEVER.

 

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

 

IN CONNECTION WITH ANYTRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCHCERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY THE INDENTURE TOCONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

Floating RateJunior Subordinated Deferrable Interest Debenture

 

of

 

Landmark Bancorp, Inc.

 

December 30,2005

 

Landmark Bancorp, Inc.,a Delaware corporation (the “Company” which term includes any successor Personunder the Indenture hereinafter referred to), for value received promises topay to Wilmington Trust Company, not in its individual capacity but solely asInstitutional Trustee for Landmark Capital Trust II (the “Holder”) orregistered assigns, the principal sum of eight million two hundred forty-eightthousand dollars ($8,248,000.00) on March 15, 2036, and to pay interest onsaid principal sum from December 30, 2005, or from the most recentInterest Payment Date (as defined below) to which interest has been paid orduly provided for, quarterly (subject to deferral as set forth herein) inarrears on March 15, June 15, September 15 and December 15of each year or if such day is not a Business Day, then the next succeedingBusiness Day (each such date, an “Interest Payment Date”) (it being understoodthat interest accrues for any such non-Business Day), commencing on theInterest Payment Date in March 2006, at: (A) for the period beginning on (andincluding) the date of original issuance and ending on (but excluding) theInterest Payment Date in March 2006, a rate per annum of 5.98055%; (B) foreach successive period beginning on (and including) the Interest Payment Datein March 2006, and each succeeding Interest Payment Date, and ending on(but excluding) the next succeeding Interest Payment Date (each a “DistributionPeriod”) prior to the Interest PaymentDate in March 2011, a rate per annum equal to the sum of (i) theproduct of (a) 62.5% times (b) 3-Month LIBOR, determined as describedbelow, plus 1.34%, plus (ii) the product of (y) 37.5% times (z) 6.17%;and (C) for each Distribution Period beginning on or after the InterestPayment Date in March 2011, a rate per

 

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annum equal to 3-Month LIBOR plus 1.34% (the “Coupon Rate”),applied to the principal amount hereof, until the principal hereof is paid orduly provided for or made available for payment, and on any overdue principaland (without duplication and to the extent that payment of such interest isenforceable under applicable law) on any overdue installment of interest(including Additional Interest) at the Interest Rate in effect for eachapplicable period, compounded quarterly, from the dates such amounts are dueuntil they are paid or made available for payment. The amount of interestpayable will be computed on the basis of the actual number of days in theDistribution Period concerned divided by 360. The interest installment sopayable, and punctually paid or duly provided for, on any Interest Payment Datewill, as provided in the Indenture, be paid to the Person in whose name thisDebenture (or one or more Predecessor Securities) is registered at the close ofbusiness on the regular record date for such interest installment, which shallbe fifteen Business Days prior to the day on which the relevant InterestPayment Date occurs. Any such interest installment not so punctually paid orduly provided for shall forthwith cease to be payable to the Holder on suchregular record date and may be paid to the Person in whose name thisDebenture (or one or more Predecessor Securities) is registered at the close ofbusiness on a special record date.

 

“3-Month LIBOR” as usedherein, means the London interbank offered interest rate for three-month U.S.dollar deposits determined by the Trustee in the following order ofpriority:  (i) the rate (expressedas a percentage per annum) for U.S. dollar deposits having a three-monthmaturity that appears on Telerate Page 3750 as of 11:00 a.m. (Londontime) on the related Determination Date (“Telerate Page 3750” means thedisplay designated as “Page 3750” on the Moneyline Telerate Service orsuch other page as may replace Page 3750 on that service or suchother service or services as may be nominated by the British Bankers’Association as the information vendor for the purpose of displaying Londoninterbank offered rates for U.S. dollar deposits); (ii) if such ratecannot be identified on the related Determination Date, the Trustee willrequest the principal London offices of four leading banks in the Londoninterbank market to provide such banks’ offered quotations (expressed aspercentages per annum) to prime banks in the London interbank market for U.S.dollar deposits having a three-month maturity as of 11:00 a.m. (Londontime) on such Determination Date. If at least two quotations are provided, 3-MonthLIBOR will be the arithmetic mean of such quotations; (iii) if fewer thantwo such quotations are provided as requested in clause (ii) above, theTrustee will request four major New York City banks to provide such banks’offered quotations (expressed as percentages per annum) to leading Europeanbanks for loans in U.S. dollars as of 11:00 a.m. (London time) on suchDetermination Date. If at least two such quotations are provided, 3-Month LIBORwill be the arithmetic mean of such quotations; and (iv) if fewer than twosuch quotations are provided as requested in clause (iii) above, 3-MonthLIBOR will be a 3-Month LIBOR determined with respect to the DistributionPeriod immediately preceding such current Distribution Period. If the rate forU.S. dollar deposits having a three-month maturity that initially appears onTelerate Page 3750 as of 11:00 a.m. (London time) on the relatedDetermination Date is superseded on the Telerate Page 3750 by a correctedrate by 12:00 noon (London time) on such Determination Date, then the correctedrate as so substituted on the applicable page will be the applicable 3-MonthLIBOR for such Determination Date. As used herein, “Determination Date” meansthe date that is two London Banking Days (i.e., a business day in whichdealings in deposits in U.S. dollars are transacted in the London interbankmarket) preceding the commencement of the relevant Distribution Period.

 

The Interest Rate for anyDistribution Period will at no time be higher than the maximum rate thenpermitted by New York law as the same may be modified by United Stateslaw.

 

All percentages resultingfrom any calculations on the Debentures will be rounded, if necessary, to thenearest one hundred-thousandth of a percentage point, with five one-millionthsof a percentage point rounded upward (e.g., 9.876545% (or .09876545) beingrounded to 9.87655% (or .0987655), and all

 

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dollar amountsused in or resulting from such calculation will be rounded to the nearest cent(with one-half cent being rounded upward)).

 

The principal of andinterest on this Debenture shall be payable at the office or agency of theTrustee (or other paying agent appointed by the Company) maintained for thatpurpose in any coin or currency of the United States of America that at thetime of payment is legal tender for payment of public and private debts; provided,however, that payment of interest may be made by check mailed tothe registered holder at such address as shall appear in the Debenture Registerif a request for a wire transfer by such holder has not been received by theCompany or by wire transfer to an account appropriately designated by theholder hereof. Notwithstanding the foregoing, so long as the holder of thisDebenture is the Institutional Trustee, the payment of the principal of andinterest on this Debenture will be made in immediately available funds at suchplace and to such account as may be designated by the Trustee.

 

So long as no AccelerationEvent of Default has occurred and is continuing, the Company shall have theright, from time to time, and without causing an Event of Default, to defer paymentsof interest on the Debentures by extending the interest payment period on theDebentures at any time and from time to time during the term of the Debentures,for up to 20 consecutive quarterly periods (each such extended interestpayment period, an “Extension Period”), during which Extension Period nointerest (including Additional Interest) shall be due and payable (except anyAdditional Sums that may be due and payable). No Extension Period may endon a date other than an Interest Payment Date. During an Extension Period,interest will continue to accrue on the Debentures, and interest on suchaccrued interest will accrue at an annual rate equal to the Interest Rate ineffect for such Extension Period, compounded quarterly from the date such interestwould have been payable were it not for the Extension Period, to the extentpermitted by law (such interest referred to herein as “Additional Interest”). Atthe end of any such Extension Period the Company shall pay all interest thenaccrued and unpaid on the Debentures (together with Additional Interestthereon); provided, however, that no Extension Period may extendbeyond the Maturity Date; providedfurther, however, thatduring any such Extension Period, the Company shall not and shall not permit anyAffiliate to engage in any of the activities or transactions described on thereverse side hereof and in the Indenture. Prior to the termination of anyExtension Period, the Company may further extend such period, providedthat such period together with all such previous and further consecutiveextensions thereof shall not exceed 20 consecutive quarterly periods, orextend beyond the Maturity Date. Upon the termination of any Extension Periodand upon the payment of all accrued and unpaid interest and AdditionalInterest, the Company may commence a new Extension Period, subject to theforegoing requirements. No interest or Additional Interest shall be due andpayable during an Extension Period, except at the end thereof, but eachinstallment of interest that would otherwise have been due and payable duringsuch Extension Period shall bear Additional Interest. The Company must give theTrustee notice of its election to begin or extend an Extension Period by theclose of business at least 15 Business Days prior to the Interest Payment Datewith respect to which interest on the Debentures would have been payable exceptfor the election to begin or extend such Extension Period.

 

The indebtednessevidenced 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 allSenior Indebtedness, and this Debenture is issued subject to the provisions ofthe Indenture with respect thereto. Each holder of this Debenture, by acceptingthe same, (a) agrees to and shall be bound by such provisions, (b) authorizesand directs the Trustee on his or her behalf to take such action as may benecessary or appropriate to acknowledge or effectuate the subordination soprovided and (c) appoints the Trustee his or her attorney-in-fact for anyand all such purposes. Each holder hereof, by his or her acceptance hereof,hereby waives all notice of the acceptance of the subordination provisionscontained herein and in the Indenture by each holder of Senior Indebtedness,whether now outstanding or hereafter incurred, and waives reliance by each suchholder upon said provisions.

 

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This Debenture shall notbe entitled to any benefit under the Indenture hereinafter referred to, bevalid or become obligatory for any purpose until the certificate ofauthentication hereon shall have been signed by or on behalf of the Trustee.

 

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

 

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IN WITNESS WHEREOF, theCompany has duly executed this certificate.

 
|   | LANDMARK BANCORP, INC. |
|--------|-----------------------------|
|   |                        |
|   |                        |
|   | By                          |   |   |
|   | Name:                       |
|   | Title:                      |

 

 

CERTIFICATE OFAUTHENTICATION

 

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

 
|   | WILMINGTON TRUST COMPANY, as Trustee |
|--------|--------------------------------------|
|   |                                 |
|   |                                 |
|   | By:                                  |   |   |
|   | Authorized Officer                   |

 

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[FORM OF REVERSE OF DEBENTURE]

 

This Debenture is one of the floating rate juniorsubordinated deferrable interest debentures of the Company, all issued or to beissued under and pursuant to the Indenture dated as of December 30, 2005(the “Indenture”), duly executed and delivered between the Company and theTrustee, to which Indenture reference is hereby made for a description of therights, limitations of rights, obligations, duties and immunities thereunder ofthe Trustee, the Company and the holders of the Debentures. The Debentures arelimited in aggregate principal amount as specified in the Indenture.

 

Upon the occurrence and continuation of a SpecialEvent prior to the Interest Payment Date in March 2011, the Company shallhave the right to redeem the Debentures in whole, but not in part, at anyInterest Payment Date, within 120 days following the occurrence of such SpecialEvent, at the Special Redemption Price.

 

In addition, the Company shall have the right toredeem the Debentures, in whole or in part, but in all cases in a principalamount with integral multiples of $1,000.00, on any Interest Payment Date on orafter the Interest Payment Date in March 2011, at the Redemption Price.

 

Prior to 10:00 a.m. New York City time on theRedemption Date or Special Redemption Date, as applicable, the Company willdeposit with the Trustee or with one or more paying agents an amount of moneysufficient to redeem on the Redemption Date or the Special Redemption Date, asapplicable, all the Debentures so called for redemption at the appropriateRedemption Price or Special Redemption Price.

 

If all, or less than all, the Debentures are to beredeemed, the Company will give the Trustee notice not less than 45 nor morethan 60 days, respectively, prior to the Redemption Date or SpecialRedemption Date, as applicable, as to the aggregate principal amount ofDebentures to be redeemed and the Trustee shall select, in such manner as inits sole discretion it shall deem appropriate and fair, the Debentures orportions thereof (in integral multiples of $1,000.00) to be redeemed.

 

Notwithstanding the foregoing, any redemption ofDebentures by the Company shall be subject to the receipt of any and allrequired regulatory approvals.

 

In case an Acceleration Event of Default shall haveoccurred and be continuing, upon demand of the Trustee, the principal of all ofthe Debentures shall become due and payable in the manner, with the effect andsubject to the conditions provided in the Indenture.

 

The Indenture contains provisions permitting the Companyand the Trustee, with the consent of the holders of not less than a majority inaggregate principal amount of the Debentures at the time outstanding, toexecute supplemental indentures for the purpose of adding any provisions to orchanging in any manner or eliminating any of the provisions of this Indentureor of any supplemental indenture or of modifying in any manner the rights ofthe holders of the Debentures; provided, however, that no suchsupplemental indenture shall without the consent of the holders of eachDebenture then outstanding and affected thereby (i) change the fixedmaturity of any Debenture, or reduce the principal amount thereof or anypremium thereon, or reduce the rate or extend the time of payment of interestthereon, or reduce any amount payable on redemption thereof or make theprincipal thereof or any interest or premium thereon payable in any coin orcurrency other than that provided in the Debentures, or impair or affect theright of any Securityholder to institute suit for payment thereof or impair theright of repayment, if any, at the option of the holder, or (ii) reducethe aforesaid percentage of Debentures the holders of which are required toconsent to any such supplemental indenture.

 

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The Indenture also contains provisions permitting theholders of a majority in aggregate principal amount of the Debentures at thetime outstanding on behalf of the holders of all of the Debentures to waive (ormodify 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 ofcovenants or provisions hereof or of the Indenture which cannot be modified oramended without the consent of the holder of each Debenture affected, or (c) inrespect of the covenants contained in Section 3.9 of the Indenture; provided,however, that if the Debentures are held by the Trust or a trustee of suchtrust, such waiver or modification to such waiver shall not be effective untilthe holders of a majority in Liquidation Amount of Trust Securities of theTrust shall have consented to such waiver or modification to such waiver, provided,further, that if the consent of the holder of each outstanding Debentureis required, such waiver shall not be effective until each holder of the TrustSecurities of the Trust shall have consented to such waiver. Upon any suchwaiver, the default covered thereby shall be deemed to be cured for allpurposes of the Indenture and the Company, the Trustee and the holders of theDebentures shall be restored to their former positions and rights hereunder,respectively; but no such waiver shall extend to any subsequent or other defaultor Event of Default or impair any right consequent thereon. Whenever anydefault or Event of Default hereunder shall have been waived as permitted bythe Indenture, said default or Event of Default shall for all purposes of theDebentures and the Indenture be deemed to have been cured and to be notcontinuing.

 

No reference herein to the Indenture and no provisionof this Debenture or of the Indenture shall alter or impair the obligation ofthe Company, which is absolute and unconditional, to pay the principal of andpremium, if any, and interest, including Additional Interest, on this Debentureat the time and place and at the rate and in the money herein prescribed.

 

The Company has agreed that if Debentures areinitially issued to the Trust or a trustee of such Trust in connection with theissuance of Trust Securities by the Trust (regardless of whether Debenturescontinue to be held by such Trust) and (i) there shall have occurred andbe continuing an Event of Default, (ii) the Company shall be in defaultwith respect to its payment of any obligations under the Capital SecuritiesGuarantee, or (iii) the Company shall have given notice of its election todefer payments of interest on the Debentures by extending the interest paymentperiod as provided herein and such Extension Period, or any extension thereof,shall be continuing, then the Company shall not, and shall not allow anyAffiliate of the Company to, (x) declare or pay any dividends ordistributions on, or redeem, purchase, acquire, or make a liquidation paymentwith respect to, any of the Company’s capital stock or its Affiliates’ capitalstock (other than payments of dividends or distributions to the Company) ormake any guarantee payments with respect to the foregoing or (y) make anypayment of principal of or interest or premium, if any, on or repay, repurchaseor redeem any debt securities of the Company or any Affiliate that rank *pari passu* in all respects with or junior in interest to theDebentures (other than, with respect to clauses (x) and (y) above,  (1) repurchases, redemptions or otheracquisitions of shares of capital stock of the Company in connection with anyemployment contract, benefit plan or other similar arrangement with or for thebenefit of one or more employees, officers, directors or consultants, inconnection with a dividend reinvestment or stockholder stock purchase plan orin connection with the issuance of capital stock of the Company (or securitiesconvertible into or exercisable for such capital stock) as consideration in anacquisition transaction entered into prior to the applicable Extension Period,if any, (2) as a result of any exchange or conversion of any class orseries of the Company’s capital stock (or any capital stock of asubsidiary of the Company) for any class or series of the Company’scapital stock or of any class or series of the Company’s indebtednessfor any class or series of the Company’s capital stock, (3) thepurchase of fractional interests in shares of the Company’s capital stockpursuant to the conversion or exchange provisions of such capital stock or thesecurity being converted or exchanged, (4) any declaration of a dividendin connection with any stockholders’ rights plan, or the issuance of rights,stock or other property under any stockholders’ rights plan, or the redemptionor repurchase of rights pursuant thereto, (5) any dividend in the form ofstock, warrants, options or other rights where the

 

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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 isbeing paid or ranks *pari passu* withor junior to such stock and any cash payments in lieu of fractional sharesissued in connection therewith, or (6) payments under the CapitalSecurities Guarantee).

 

The Debentures are issuable only in registered,certificated form without coupons and in minimum denominations of$100,000.00 and any multiple of $1,000.00 in excess thereof. As provided in theIndenture and subject to the transfer restrictions and limitations as may becontained herein and therein from time to time, this Debenture is transferableby the holder hereof on the Debenture Register of the Company. Upon duepresentment for registration of transfer of any Debenture at the PrincipalOffice of the Trustee or at any office or agency of the Company maintained forsuch purpose as provided in Section 3.2 of the Indenture, the Companyshall execute, the Company or the Trustee shall register and the Trustee or theAuthenticating Agent shall authenticate and make available for delivery in thename of the transferee or transferees a new Debenture for a like aggregateprincipal amount. All Debentures presented for registration of transfer or forexchange or payment shall (if so required by the Company or the Trustee or theAuthenticating Agent) be duly endorsed by, or be accompanied by a writteninstrument or instruments of transfer in form satisfactory to, the Companyand the Trustee or the Authenticating Agent duly executed by the holder or hisattorney duly authorized in writing. No service charge shall be made for anyexchange or registration of transfer of Debentures, but the Company or theTrustee may require payment of a sum sufficient to cover any tax, fee orother governmental charge that may be imposed in connection therewith.

 

Prior to due presentment for registration of transferof any Debenture, the Company, the Trustee, any Authenticating Agent, anypaying agent, any transfer agent and any Debenture registrar may deem thePerson in whose name such Debenture shall be registered upon the DebentureRegister 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 paymentof or on account of the principal of, premium, if any, and interest on suchDebenture and for all other purposes; and neither the Company nor the Trusteenor any Authenticating Agent nor any paying agent nor any transfer agent norany Debenture registrar shall be affected by any notice to the contrary. Allsuch payments so made to any holder for the time being or upon his order shallbe valid, and, to the extent of the sum or sums so paid, effectual to satisfyand discharge the liability for moneys payable upon any such Debenture.

 

No recourse for the payment of the principal of orpremium, if any, or interest on any Debenture, or for any claim based thereonor otherwise in respect thereof, and no recourse under or upon any obligation,covenant or agreement of the Company in the Indenture or in any supplementalindenture, or in any such Debenture, or because of the creation of anyindebtedness represented thereby, shall be had against any incorporator,stockholder, employee, officer or director, as such, past, present or future,of the Company or of any successor Person of the Company, either directly orthrough the Company or any successor Person of the Company, whether by virtueof any constitution, statute or rule of law, or by the enforcement of anyassessment or penalty or otherwise, it being expressly understood that all suchliability is hereby expressly waived and released as a condition of, and as aconsideration for, the execution of the Indenture and the issue of theDebentures.

 

Capitalized terms usedand not defined in this Debenture shall have the meanings assigned in theIndenture dated as of the date of original issuance of this Debenture betweenthe Trustee and the Company.

 

THE INDENTURE AND THE DEBENTURES SHALL BE GOVERNED BYAND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUTREGARD TO CONFLICT OF LAW PRINCIPLES THEREOF.

 

A-9

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**EXHIBIT B**

 

**FORM OF CERTIFICATE TO TRUSTEE**

 

Pursuant to Section 3.5 of the Indenture between LandmarkBancorp, Inc., as the Company (the “Company”), and Wilmington TrustCompany, as Trustee, dated as of December 30, 2005 (the “Indenture”), theundersigned hereby certifies as follows:

 

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

 

2.                                       [Tomy knowledge, the Company is not in default in the performance of any covenantscontained in the Indenture.

 

***or, alternatively:***

 

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

 

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

 

IN WITNESS WHEREOF, the undersigned has executed thisCertificate.

 

Date:

 

 
|   |   |   |
|--------|--------|--------|
|   | Name:  |
|   | Title: |

 

B-1

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