exv4w13



 





Exhibit 4.13




 





UNITED COMMERCIAL BANK,


as Issuer




INDENTURE


Dated as of June 21, 2007




WILMINGTON TRUST COMPANY,

as Trustee




FLOATING RATE JUNIOR SUBORDINATED DEBENTURES




DUE 2022




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I. DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	Section 1.1. Definitions
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II. DEBENTURES
	 	 	5	 
	 
	 	 	 	 
	Section 2.1. Authentication and Dating
	 	 	5	 
	Section 2.2. Form of Trustee’s Certificate of Authentication
	 	 	6	 
	Section 2.3. Form and Denomination of Debentures
	 	 	6	 
	Section 2.4. Execution of Debentures
	 	 	6	 
	Section 2.5. Exchange and Registration of Transfer of Debentures
	 	 	7	 
	Section 2.6. Mutilated, Destroyed, Lost or Stolen Debentures
	 	 	9	 
	Section 2.7. Temporary Debentures
	 	 	10	 
	Section 2.8. Payment of Interest and Additional Interest
	 	 	10	 
	Section 2.9. Cancellation of Debentures Paid, etc
	 	 	12	 
	Section 2.10. Computation of Interest Rate
	 	 	12	 
	Section 2.11. CUSIP Numbers
	 	 	13	 
	Section 2.12. Regulation S Compliance
	 	 	13	 
	Section 2.13. Global Debentures
	 	 	14	 
	 
	 	 	 	 
	ARTICLE III. PARTICULAR COVENANTS OF THE BANK
	 	 	16	 
	 
	 	 	 	 
	Section 3.1. Payment of Principal, Premium and Interest; Agreed Treatment of the Debentures
	 	 	16	 
	Section 3.2. Offices for Notices and Payments, etc
	 	 	16	 
	Section 3.3. Appointments to Fill Vacancies in Trustee’s Office
	 	 	17	 
	Section 3.4. Provision as to Paying Agent
	 	 	17	 
	Section 3.5. Certificate to Trustee
	 	 	18	 
	Section 3.6. Compliance with Consolidation Provisions
	 	 	18	 
	Section 3.7. Limitation on Dividends
	 	 	18	 
	Section 3.8. Federal Regulatory Approval Required
	 	 	18	 
	 
	 	 	 	 
	ARTICLE IV. SECURITYHOLDERS’ LISTS AND REPORTS BY THE BANK AND THE TRUSTEE
	 	 	19	 
	 
	 	 	 	 
	Section 4.1. Securityholders’ Lists
	 	 	19	 
	Section 4.2. Preservation and Disclosure of Lists
	 	 	19	 
	Section 4.3. Reports by the Bank
	 	 	20	 
	 
	 	 	 	 
	ARTICLE V. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT
	 	 	20	 
	 
	 	 	 	 
	Section 5.1. Events of Default
	 	 	20	 
	Section 5.2. Acceleration of Maturity; Rescission and Annulment
	 	 	21	 
	Section 5.3. Defaults
	 	 	21	 
	Section 5.4. Trustee May File Proof of Claims
	 	 	22	 
	Section 5.5. Application of Moneys Collected by Trustee
	 	 	23	 
	Section 5.6. Proceedings by Securityholders
	 	 	23	 
	Section 5.7. Proceedings by Trustee
	 	 	24	 






i









 






	 	 	 	 	 
	 	 	Page	 
	Section 5.8. Remedies Cumulative and Continuing; Delay or Omission Not a Waiver
	 	 	24	 
	Section 5.9. Direction of Proceedings and Waiver of Defaults by Majority of Securityholders
	 	 	24	 
	Section 5.10. Notice of Defaults
	 	 	25	 
	Section 5.11. Undertaking to Pay Costs
	 	 	25	 
	 
	 	 	 	 
	ARTICLE VI. CONCERNING THE TRUSTEE
	 	 	25	 
	 
	 	 	 	 
	Section 6.1. Duties and Responsibilities of Trustee
	 	 	25	 
	Section 6.2. Reliance on Documents, Opinions, etc
	 	 	26	 
	Section 6.3. No Responsibility for Recitals, etc
	 	 	27	 
	Section 6.4. Trustee, Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own Debentures
	 	 	27	 
	Section 6.5. Moneys to be Held in Trust
	 	 	27	 
	Section 6.6. Compensation and Expenses of Trustee
	 	 	27	 
	Section 6.7. Officers’ Certificate as Evidence
	 	 	28	 
	Section 6.8. Eligibility of Trustee
	 	 	28	 
	Section 6.9. Resignation or Removal of Trustee
	 	 	29	 
	Section 6.10. Acceptance by Successor Trustee
	 	 	30	 
	Section 6.11. Succession by Merger, etc
	 	 	30	 
	Section 6.12. Authenticating Agents
	 	 	31	 
	 
	 	 	 	 
	ARTICLE VII. CONCERNING THE SECURITYHOLDERS
	 	 	32	 
	 
	 	 	 	 
	Section 7.1. Action by Securityholders
	 	 	32	 
	Section 7.2. Proof of Execution by Securityholders
	 	 	32	 
	Section 7.3. Who Are Deemed Absolute Owners
	 	 	32	 
	Section 7.4. Debentures Owned by Bank Deemed Not Outstanding
	 	 	33	 
	Section 7.5. Revocation of Consents; Future Holders Bound
	 	 	33	 
	 
	 	 	 	 
	ARTICLE VIII. SECURITYHOLDERS’ MEETINGS
	 	 	33	 
	 
	 	 	 	 
	Section 8.1. Purposes of Meetings
	 	 	33	 
	Section 8.2. Call of Meetings by Trustee
	 	 	34	 
	Section 8.3. Call of Meetings by Bank or Securityholders
	 	 	34	 
	Section 8.4. Qualifications for Voting
	 	 	34	 
	Section 8.5. Regulations
	 	 	34	 
	Section 8.6. Voting
	 	 	34	 
	Section 8.7. Quorum; Actions
	 	 	35	 
	 
	 	 	 	 
	ARTICLE IX. SUPPLEMENTAL INDENTURES
	 	 	35	 
	 
	 	 	 	 
	Section 9.1. Supplemental Indentures without Consent of Securityholders
	 	 	35	 
	Section 9.2. Supplemental Indentures with Consent of Securityholders
	 	 	37	 
	Section 9.3. Effect of Supplemental Indentures
	 	 	37	 
	Section 9.4. Notation on Debentures
	 	 	37	 
	Section 9.5. Evidence of Compliance of Supplemental Indenture to be Furnished to Trustee
	 	 	37	 
	 
	 	 	 	 
	ARTICLE X. REDEMPTION OF SECURITIES
	 	 	38	 
	 
	 	 	 	 
	Section 10.1. Optional Redemption
	 	 	38	 
	Section 10.2. Notice of Redemption; Selection of Debentures
	 	 	38	 
	Section 10.3. Payment of Debentures Called for Redemption
	 	 	38	 






ii 









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE XI. CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
	 	 	39	 
	 
	 	 	 	 
	Section 11.1. Bank May Consolidate, etc., on Certain Terms
	 	 	39	 
	Section 11.2. Successor Entity to be Substituted
	 	 	39	 
	Section 11.3. Opinion of Counsel to be Given to Trustee
	 	 	39	 
	 
	 	 	 	 
	ARTICLE XII. SATISFACTION AND DISCHARGE OF INDENTURE
	 	 	40	 
	 
	 	 	 	 
	Section 12.1. Discharge of Indenture
	 	 	40	 
	Section 12.2. Deposited Moneys to be Held in Trust by Trustee
	 	 	40	 
	Section 12.3. Paying Agent to Repay Moneys Held
	 	 	40	 
	Section 12.4. Return of Unclaimed Moneys
	 	 	41	 
	 
	 	 	 	 
	ARTICLE XIII. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
	 	 	41	 
	 
	 	 	 	 
	Section 13.1. Indenture and Debentures Solely Corporate Obligations
	 	 	41	 
	 
	 	 	 	 
	ARTICLE XIV. MISCELLANEOUS PROVISIONS
	 	 	41	 
	 
	 	 	 	 
	Section 14.1. Successors
	 	 	41	 
	Section 14.2. Official Acts by Successor Entity
	 	 	41	 
	Section 14.3. Surrender of Bank Powers
	 	 	41	 
	Section 14.4. Addresses for Notices, etc
	 	 	41	 
	Section 14.5. Governing Law
	 	 	42	 
	Section 14.6. Evidence of Compliance with Conditions Precedent
	 	 	42	 
	Section 14.7. Table of Contents, Headings, etc
	 	 	42	 
	Section 14.8. Execution in Counterparts
	 	 	42	 
	Section 14.9. Separability
	 	 	42	 
	Section 14.10. Assignment
	 	 	42	 
	 
	 	 	 	 
	ARTICLE XV. SUBORDINATION OF DEBENTURES
	 	 	42	 
	 
	 	 	 	 
	Section 15.1. Agreement to Subordinate
	 	 	42	 
	Section 15.2. Default on Senior Indebtedness
	 	 	43	 
	Section 15.3. Liquidation, Dissolution, Bankruptcy
	 	 	43	 
	Section 15.4. Subrogation
	 	 	44	 
	Section 15.5. Trustee to Effectuate Subordination
	 	 	45	 
	Section 15.6. Notice by the Bank
	 	 	45	 
	Section 15.7. Rights of the Trustee; Holders of Senior Indebtedness
	 	 	45	 
	Section 15.8. Subordination May Not Be Impaired
	 	 	46	 
	 
	 	 	 	 
	Exhibit A            Form of Floating Rate Junior Subordinated Debenture
	 	 	 	 
	 
	 	 	 	 
	Exhibit B            Form of Regulation S Certificate
	 	 	 	 
	 
	 	 	 	 
	Exhibit C            Form of Certificate to Trustee
	 	 	 	 
	 
	 	 	 	 
	Exhibit D            Form of Quarterly Report
	 	 	 	 






iii 









 





     THIS INDENTURE, dated as of June 21, 2007, between United Commercial Bank, a state nonmember
bank organized under the laws of California (the “Bank”), and Wilmington Trust Company, a
Delaware banking corporation, as debenture trustee (the “Trustee”).



WITNESSETH:




     WHEREAS, for its lawful corporate purposes, the Bank has duly authorized the issuance of its
Floating Rate Junior Subordinated Debentures due 2022 (the “Debentures”) under this
Indenture to provide, among other things, for the execution and authentication, delivery and
administration thereof, and the Bank has duly authorized the execution of this Indenture; and



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



     NOW, THEREFORE, This Indenture Witnesseth:



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



ARTICLE I.



DEFINITIONS




     Section 1.1. Definitions. The terms defined in this Section 1.1 (except as herein
otherwise expressly provided or unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the respective meanings specified in
this Section 1.1. All accounting terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with generally accepted accounting principles and the
term “generally accepted accounting principles” means such accounting principles as are generally
accepted in the United States at the time of any computation. The words “herein,” “hereof” and
“hereunder” and other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.



     “Additional Interest” means interest, if any, that shall accrue on any interest on the
Debentures the payment of which has not been made on the applicable Interest Payment Date and which
shall accrue at the Interest Rate, compounded quarterly (to the extent permitted by law).



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



     “Applicable Depositary Procedures” means, with respect to any transfer or transaction
involving a Global Debenture or beneficial interest therein, the rules and procedures of the
Depositary for such Debenture, in each case to the extent applicable to such transaction and as in
effect from time to time.



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



     “Bank” means United Commercial Bank, a state nonmember bank organized under the laws
of California and, subject to the provisions of Article XI, shall include its successors and
assigns.



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



1









 





     “Board of Directors” means the board of directors or the executive committee or any
other duly authorized designated officers of the Bank.



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



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



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



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



     “Debenture” or “Debentures” means a Temporary Debenture or a Permanent
Debenture, as applicable.



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



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



     “Defaulted Interest” has the meaning set forth in Section 2.8.



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



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



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



     “Distribution Compliance Period” has the meaning set forth in Rule 902 of Regulation
S.



     “Distribution Period” means (i) with respect to interest paid on the first Interest
Payment Date, the period beginning on (and including) the date of original issuance and ending on
(but excluding) the Interest Payment Date in September 2007 and (ii) thereafter, with respect to
interest paid on each successive Interest Payment Date, the period beginning on (and including) the
preceding Interest Payment Date and ending on (but excluding) such current Interest Payment Date.



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



     “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.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to
time, or any successor legislation.



2









 





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



     “FDIC” means the Federal Deposit Insurance Corporation and any successor federal
agency that is primarily responsible for insuring the deposit accounts of banks or supervising
state banks that are not members of the Federal Reserve.



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



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



     “Interest Payment Date” means March 15, June 15, September 15 and December 15 of each
year during the term of this Indenture, or if such day is not a Business Day, then the next
succeeding Business Day (it being understood that interest accrues for any such non-Business Day),
commencing in September 2007.



     “Interest Rate” means for the Distribution Period beginning on (and including) the
date of original issuance and ending on (but excluding) the Interest Payment Date in September 2007
the rate per annum of [RATE]%, and for each Distribution Period beginning on or after the Interest
Payment Date in September 2007, the Coupon Rate for such Distribution Period.



     “Maturity Date” means September 15, 2022.



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



     “Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be
an employee of or counsel to the Bank, or may be other counsel reasonably satisfactory to the
Trustee. Each such opinion shall include the statements provided for in Section 14.6 if and to the
extent required by the provisions of such Section.



     The term “outstanding,” when used with reference to Debentures, means, subject to the
provisions of Section 7.4, as of any particular time, all Debentures authenticated and delivered by
the Trustee or the Authenticating Agent under this Indenture, except:



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



     (b) Debentures, or portions thereof, for the payment or redemption of which moneys in the
necessary amount shall have been deposited in trust with the Trustee or with any paying agent
(other than the Bank) or shall have been set aside and segregated in trust by the Bank (if the Bank
shall act as its own paying agent); provided, however, that, if such Debentures, or
portions thereof, are to be redeemed prior to maturity thereof, notice of such redemption shall
have been given as provided in Section 10.3 or provision satisfactory to the Trustee shall have
been made for giving such notice; and



3









 





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



     “Permanent Debenture” has the meaning set forth in Section 2.12.



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



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



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



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



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



     “Regulation S” means Regulation S under the Securities Act.



     “Regulation S Certificate” has the meaning set forth in Section 2.12.



     “Release Date” has the meaning set forth in Section 2.12.



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



     “Reuters Page LIBOR01” has the meaning set forth in Section 2.10.



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



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



     “Senior Indebtedness” means, with respect to the Bank, all claims (including post
default interest in the case of liquidation of the Bank) against the Bank, incurred, assumed or
guaranteed by the Bank, having the same priority as the Bank’s obligations to its depositors, its
obligations under bankers’



4









 







acceptances and letters of credit, and its obligations to any other creditors (including its
obligations to the Federal Reserve, FDIC, and any rights acquired by the FDIC as a result of loans
made by the FDIC to the Bank or the purchase or guarantee of any of its assets by the FDIC pursuant
to the provisions of 12 USC §1823(c), (d) or (e)), whether now outstanding or hereafter incurred,
or any higher priority, and the principal, premium, if any, and interest in respect thereof,
whether incurred on or prior to the date of this Indenture or thereafter incurred. Notwithstanding
the foregoing, “Senior Indebtedness” shall not include Debentures issued pursuant to this Indenture
or obligations with respect to which in the instrument creating or evidencing the same, or pursuant
to which the same is outstanding, it is provided that such obligations are pari passu, junior or
otherwise not superior in right of payment to the Debentures. Senior Indebtedness shall continue
to be Senior Indebtedness and be entitled to the subordination provisions irrespective of any
amendment, modification or waiver of any term of such Senior Indebtedness.



     “State Nonmember Bank Securities Laws” means the federal laws applicable to state
nonmember banks (12 U.S.C. 1811 et seq.), as amended from time to time or any successor
legislation, and the regulations promulgated thereunder, including 12 C.F.R. Part 335.



     “Subsidiary” means with respect to any Person, (i) any corporation at least a majority
of the outstanding voting stock of which is owned, directly or indirectly, by such Person or by one
or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of the outstanding
partnership or similar interests of which shall at the time be owned by such Person, or by one or
more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any
limited partnership of which such Person or any of its Subsidiaries is a general partner. For the
purposes of this definition, “voting stock” means shares, interests, participations or other
equivalents in the equity interest (however designated) in such Person having ordinary voting power
for the election of a majority of the directors (or the equivalent) of such Person, other than
shares, interests, participations or other equivalents having such power only by reason of the
occurrence of a contingency.



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



     “Temporary Debenture” has the meaning set forth in Section 2.12.



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



ARTICLE II.



DEBENTURES




     Section 2.1. Authentication and Dating. Upon the execution and delivery of this
Indenture, or from time to time thereafter, Debentures in an aggregate principal amount not in
excess of $4,000,000.00 may be executed and delivered by the Bank to the Trustee for
authentication, and the Trustee, upon receipt of a written authentication order from the Bank,
shall thereupon authenticate and make available for delivery said Debentures to or upon the written
order of the Bank, signed by its Chairman of the Board of Directors, Chief Executive Officer, Vice
Chairman, the President, one of its Managing Directors or one of its Vice Presidents without any
further action by the Bank hereunder. Notwithstanding anything to the contrary contained herein,
the Trustee shall be fully protected in relying upon the aforementioned authentication order and
written order in authenticating and delivering said Debentures. In authenticating such Debentures,
and accepting the additional responsibilities under this Indenture in relation to such Debentures,
the Trustee shall be entitled to receive, and (subject to Section 6.1) shall be fully protected in
relying upon:



5









 





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



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




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




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



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



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



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



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



     WILMINGTON TRUST COMPANY, as Trustee




By                                        

Authorized Signer



     Section 2.3. Form and Denomination of Debentures. The Debentures shall be
substantially in the form of Exhibit A attached hereto. The Debentures shall be in registered,
certificated form without coupons and in minimum denominations of $100,000.00 and any multiple of
$1,000.00 in excess thereof. Any attempted transfer of the Debentures in a block having an
aggregate principal amount of less than $100,000.00 shall be deemed to be void and of no legal
effect whatsoever. Any such purported transferee shall be deemed not to be a holder of such
Debentures for any purpose, including, but not limited to the receipt of payments on such
Debentures, and such purported transferee shall be deemed to have no interest whatsoever in such
Debentures. The Debentures shall be numbered, lettered, or otherwise distinguished in such manner
or in accordance with such plans as the officers executing the same may determine with the approval
of the Trustee as evidenced by the execution and authentication thereof.



     Section 2.4. Execution of Debentures. The Debentures shall be signed in the name and
on behalf of the Bank by the manual or facsimile signature of its Chairman of the Board of
Directors, Chief Executive Officer, Vice Chairman, President, one of its Managing Directors or one
of its Executive Vice



6









 







Presidents, Senior Vice Presidents or Vice Presidents. Only such Debentures
as shall bear thereon a certificate of authentication substantially in the form herein before
recited, executed by the Trustee or the Authenticating Agent by the manual signature of an
authorized signer, shall be entitled to the benefits of this Indenture or be valid or obligatory
for any purpose. Such certificate by the Trustee or the Authenticating Agent upon any Debenture
executed by the Bank shall be conclusive evidence that the Debenture so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the benefits of this
Indenture.



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



     Every Debenture shall be dated the date of its authentication.



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



     Debentures to be exchanged may be surrendered at the Principal Office of the Trustee or at any
office or agency to be maintained by the Bank for such purpose as provided in Section 3.2, and the
Bank shall execute, the Bank or the Trustee shall register and the Trustee or the Authenticating
Agent shall authenticate and make available for delivery in exchange therefor the Debenture or
Debentures which the Securityholder making the exchange shall be entitled to receive. Upon due
presentment for registration of transfer of any Debenture at the Principal Office of the Trustee or
at any office or agency of the Bank maintained for such purpose as provided in Section 3.2, the
Bank shall execute, the Bank or the Trustee shall register and the Trustee or the Authenticating
Agent shall authenticate and make available for delivery in the name of the transferee or
transferees a new Debenture for a like aggregate principal amount. Registration or registration of
transfer of any Debenture by the Trustee or by any agent of the Bank appointed pursuant to Section
3.2, and delivery of such Debenture, shall be deemed to complete the registration or registration
of transfer of such Debenture.



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



     No service charge shall be made for any exchange or registration of transfer of Debentures,
but the Bank or the Trustee may require payment of a sum sufficient to cover any tax, fee or other
governmental charge that may be imposed in connection therewith.



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



7









 





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



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



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



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



     THIS OBLIGATION IS SUBORDINATED TO CLAIMS OF DEPOSITORS AND ALL OTHER CREDITORS OF THE BANK,
IS UNSECURED, AND IS INELIGIBLE AS COLLATERAL FOR A LOAN BY THE BANK.



     THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW (INCLUDING 12
U.S.C. 1811 ET SEQ. AND 12 C.F.R. PART 335 PROMULGATED THEREUNDER (THE “STATE NONMEMBER BANK
SECURITIES LAWS”)) AND NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE
OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND ANY OTHER APPLICABLE SECURITIES LAW, INCLUDING THE STATE
NONMEMBER BANK SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY ONLY (A) TO THE BANK, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER, AS APPLICABLE, THE SECURITIES ACT OR
THE STATE NONMEMBER BANK SECURITIES LAWS, (C) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS
THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A IN
ACCORDANCE WITH RULE 144A, (D) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
(AS APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT,



8









 




(E) TO AN INSTITUTIONAL “ACCREDITED
INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (A) OF RULE 501 UNDER THE SECURITIES ACT THAT IS
ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH,
ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR THE STATE NONMEMBER BANK SECURITIES LAWS, OR
(F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF, AS APPLICABLE,
THE SECURITIES ACT OR THE STATE NONMEMBER BANK SECURITIES LAWS, SUBJECT TO THE BANK’S RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY
BE OBTAINED FROM THE BANK.




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



     THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN AGGREGATE
PRINCIPAL AMOUNT OF NOT LESS THAN $100,000.00 AND MULTIPLES OF $1,000.00 IN EXCESS THEREOF. ANY
ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN
$100,000.00 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.



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



     Section 2.6. Mutilated, Destroyed, Lost or Stolen Debentures.
In case any Debenture shall become mutilated or be destroyed, lost or stolen, the Bank shall
execute, and upon its written request the Trustee shall authenticate and deliver, a new Debenture
bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated
Debenture, or in lieu of and in substitution for the Debenture so destroyed, lost or stolen. In
every case the applicant for a substituted Debenture
shall



9









 







furnish to the Bank and the Trustee such
security or indemnity as may be required by them to save each of them harmless, and, in every case
of destruction, loss or theft, the applicant shall also furnish to the Bank and the Trustee
evidence to their satisfaction of the destruction, loss or theft of such Debenture and of the
ownership thereof.



     The Trustee may authenticate any such substituted Debenture and deliver the same upon the
written request or authorization of any officer of the Bank. Upon the issuance of any substituted
Debenture, the Bank may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other expenses connected
therewith. In case any Debenture which has matured or is about to mature or has been called for
redemption in full shall become mutilated or be destroyed, lost or stolen, the Bank may, instead of
issuing a substitute Debenture, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Debenture) if the applicant for such payment shall furnish to the
Bank and the Trustee such security or indemnity as may be required by them to save each of them
harmless and, in case of destruction, loss or theft, evidence satisfactory to the Bank and to the
Trustee of the destruction, loss or theft of such Debenture and of the ownership thereof.



     Every substituted Debenture issued pursuant to the provisions of this Section 2.6 by virtue of
the fact that any such Debenture is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Bank, whether or not the destroyed, lost or stolen Debenture shall be
found at any time, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debentures duly issued hereunder. All Debentures shall be
held and owned upon the express condition that, to the extent permitted by applicable law, the
foregoing provisions are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Debentures and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities without their surrender.



     Section 2.7. Temporary Debentures. Pending the preparation of definitive Debentures,
the Bank may execute and the Trustee shall authenticate and make available for delivery temporary
Debentures that are typed, printed or lithographed. Temporary Debentures shall be issuable in any
authorized denomination, and substantially in the form of the definitive Debentures in lieu of
which they are issued but with such omissions, insertions and variations as may be appropriate for
temporary Debentures, all as may be determined by the Bank. Every such temporary Debenture shall
be executed by the Bank and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the definitive Debentures. Without
unreasonable delay the Bank will execute and deliver to the Trustee or the Authenticating Agent
definitive Debentures and thereupon any or all temporary Debentures may be surrendered in exchange
therefor, at the principal corporate trust office of the Trustee or at any office or agency
maintained by the Bank for such purpose as provided in Section 3.2, and the Trustee or the
Authenticating Agent shall authenticate and make available for delivery in exchange for such
temporary Debentures a like aggregate principal amount of such definitive Debentures. Such
exchange shall be made by the Bank at its own expense and without any charge therefor except that
in case of any such exchange involving a registration of transfer the Bank may require payment of a
sum sufficient to cover any tax, fee or other governmental charge that may be imposed in relation
thereto. Until so exchanged,
the temporary Debentures shall in all respects be entitled to the same benefits under this
Indenture as definitive Debentures authenticated and delivered hereunder.



     Section 2.8. Payment of Interest and Additional Interest. Interest at the Interest
Rate and any Additional Interest on any Debenture that is payable, and is punctually paid or duly
provided for, on any Interest Payment Date for Debentures shall be paid to the Person in whose name
said Debenture (or one or more Predecessor Securities) is registered at the close of business on
the regular record date for



10









 







such interest installment except that interest and any Additional
Interest payable on the Maturity Date shall be paid to the Person to whom principal is paid.



     Each Debenture shall bear interest for the period beginning on (and including) the date of
original issuance and ending on (but excluding) the Interest Payment Date in September 2007 at a
rate per annum of [RATE]%, and shall bear interest for each successive Distribution Period
beginning on or after the Interest Payment Date in September 2007 at a rate per annum equal to the
3-Month LIBOR, determined as described in Section 2.10, plus 1.34% (the “Coupon Rate”),
applied to the principal amount thereof, until the principal thereof becomes due and payable, and
on any overdue principal and to the extent that payment of such interest is enforceable under
applicable law (without duplication) on any overdue installment of interest (including Additional
Interest) at the Interest Rate in effect for each applicable period compounded quarterly. Interest
shall be payable quarterly in arrears on each Interest Payment Date with the first installment of
interest to be paid on the Interest Payment Date in September 2007.



     Any interest on any Debenture, including Additional Interest, that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the registered holder on the relevant regular
record date by virtue of having been such holder; and such Defaulted Interest shall be paid by the
Bank to the Persons in whose names such Debentures (or their respective Predecessor Securities) are
registered at the close of business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Bank shall notify the Trustee in
writing at least 25 days prior to the date of the proposed payment of the amount of Defaulted
Interest proposed to be paid on each such Debenture and the date of the proposed payment, and at
the same time the Bank shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a special record date for the
payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days prior to
the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the Bank of such special record
date and, in the name and at the expense of the Bank, shall cause notice of the proposed payment of
such Defaulted Interest and the special record date therefor to be mailed, first class postage
prepaid, to each Securityholder at its address as it appears in the Debenture Register, not less
than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names such Debentures (or their respective
Predecessor Securities) are registered on such special record date and shall be no longer payable.



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



     The Bank shall not pay any interest on the Debentures while it remains in default in the
payment of any assessment due to the FDIC; provided, that, if such default is due to a
dispute between the Bank
and the FDIC over the amount of such assessment, this limitation shall not apply, if the Bank
deposits security satisfactory to the FDIC for payment upon final determination of the issue.



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



11









 





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



     Section 2.9. Cancellation of Debentures Paid, etc. All Debentures surrendered for the
purpose of payment, redemption, exchange or registration of transfer, shall, if surrendered to the
Bank or any paying agent, be surrendered to the Trustee and promptly canceled by it, or, if
surrendered to the Trustee or any Authenticating Agent, shall be promptly canceled by it, and no
Debentures shall be issued in lieu thereof except as expressly permitted by any of the provisions
of this Indenture. All Debentures canceled by any Authenticating Agent shall be delivered to the
Trustee. The Trustee shall destroy all canceled Debentures unless the Bank otherwise directs the
Trustee in writing. If the Bank shall acquire any of the Debentures, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness represented by such
Debentures unless and until the same are surrendered to the Trustee for cancellation.



     Section 2.10. Computation of Interest Rate. The amount of interest payable for each
Distribution Period will be calculated by applying the Interest Rate to the principal amount
outstanding at the commencement of the Distribution Period on the basis of the actual number of
days in the Distribution Period concerned divided by 360. All percentages resulting from any
calculations on the Debentures will be rounded, if necessary, to the nearest one hundred-thousandth
of a percentage point, with five one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or .0987655), and all dollar amounts used in or
resulting from such calculation will be rounded to the nearest cent (with one-half cent being
rounded upward)).



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




     (1) the rate (expressed as a percentage per annum) for U.S. dollar deposits having a
three-month maturity that appears on Reuters Page LIBOR01 as of 11:00 a.m. (London time) on
the related Determination Date (as defined below). “Reuters Page LIBOR01” means the display
designated as “LIBOR01” on Reuters or such other page as may replace Reuters Page LIBOR01 on
that service or such other service or services as may be nominated by the British Bankers’
Association as the information vendor for the purpose of displaying London interbank offered
rates for U.S. dollar deposits;




     (2) if such rate cannot be identified on the related Determination Date, the Trustee
will request the principal London offices of four leading banks in the London interbank
market to provide such banks’ offered quotations (expressed as percentages 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. (London time) on such Determination Date. If at least two
quotations are provided, 3-Month LIBOR will be the arithmetic mean of such quotations;




     (3) if fewer 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 European banks for loans in U.S.
dollars as of 11:00 a.m. (London time) on such Determination Date. If at least two such
quotations are provided, 3-Month LIBOR will be the arithmetic mean of such quotations; and




     (4) if fewer 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 the Distribution Period
immediately preceding such current Distribution Period.



12









 





     If the rate for U.S. dollar deposits having a three-month maturity that initially appears on
Reuters Page LIBOR01 as of 11:00 a.m. (London time) on the related Determination Date is superseded
on the Reuters Page LIBOR01 by a corrected rate by 12:00 noon (London time) on such Determination
Date, then the corrected rate as so substituted on the applicable page will be the applicable
3-Month LIBOR for such Determination Date.



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



     (c) “Determination Date” means the date that is two London Banking Days (i.e., a business day
in which dealings in deposits in U.S. dollars are transacted in the London interbank market)
preceding the particular Distribution Period for which a Coupon Rate is being determined.



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



     (e) Subject to 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 the payment and calculation of interest on the
Debentures by the Trustee will (in the absence of willful default, bad faith or manifest error) be
final, conclusive and binding on the Bank and all of the holders of the Debentures, and no
liability shall (in the absence of willful default, bad faith or manifest error) attach to the
Trustee in connection with the exercise or non-exercise by either of them or their respective
powers, duties and discretion.



     Section 2.11. CUSIP Numbers. The Bank in issuing the Debentures may use “CUSIP”
numbers (if then generally in use), and, if so, the Trustee shall use CUSIP numbers in notices of
redemption as a convenience to Securityholders; provided, however, that any such
notice may state that no representation is made as to the correctness of such numbers either as
printed on the Debentures or as contained in any notice of a redemption and that reliance may be
placed only on the other identification numbers printed on the Debentures, and any such redemption
shall not be affected by any defect in or omission of such numbers. The Bank will promptly notify
the Trustee in writing of any change in the CUSIP numbers.



     Section 2.12. Regulation S Compliance.



     (a) Notwithstanding anything in this Article II to the contrary all Debentures issued on or
before the expiration of the Distribution Compliance Period will be in the form of a temporary
Debenture (“Temporary Debentures”) and will contain the following additional legend:




THIS DEBENTURE IS A TEMPORARY DEBENTURE FOR PURPOSES OF REGULATION S UNDER THE
SECURITIES ACT (AS DEFINED BELOW). NEITHER THIS TEMPORARY DEBENTURE NOR ANY
INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE
INDENTURE REFERRED TO BELOW. NO BENEFICIAL OWNERS OF THIS TEMPORARY DEBENTURE SHALL
BE ENTITLED TO RECEIVE PAYMENT OF



13









 







PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE INDENTURE.



     Holders of a beneficial interest in Debentures sold in reliance on Regulation S are prohibited
from receiving distributions or from exchanging beneficial interests in Temporary Debentures for a
beneficial interest in a Permanent Debenture until the later of (i) the expiration of the
Distribution Compliance Period (the “Release Date”) and (ii) the furnishing of a
certificate, substantially in the form of Exhibit B attached hereto, certifying that the beneficial
owner of the Temporary Debenture is not a “U.S. Person” as defined in Section 902 of Regulation S
(a “Regulation S Certificate”).



     (b) Any interest in a Debenture evidenced by a Temporary Debenture is exchangeable for an
interest in a Debenture, authenticated and delivered in substantially the form attached as Exhibit
A hereto, without the legend referenced in Section 2.12(a) (the “Permanent Debenture”) upon
the later of (i) the Release Date and (ii) the furnishing of a Regulation S Certificate.



     (c) On or prior to the Release Date, each holder of a Temporary Debenture shall deliver to the
Trustee a Regulation S Certificate; provided, however, that any holder of a
Temporary Debenture on the Release Date that has previously delivered a Regulation S Certificate
hereunder shall not be required to deliver any subsequent Regulation S Certificate (unless the
certificate previously delivered is no longer true as of such subsequent date, in which case such
holder shall promptly notify the Trustee thereof and shall deliver an updated Regulation S
Certificate). No Securityholder shall be entitled to receive an interest in a Permanent Debenture
or any payment of principal of or interest on or any other payment with respect to its beneficial
interest in a Temporary Debenture prior to the Trustee receiving such Regulation S Certificate.



     (d) Any payments of principal of, interest on or any other payment on a Temporary Debenture
received by the Trustee with respect to any Debenture owned by a Securityholder that has not
delivered the Regulation S Certificate required by this Section 2.12 shall be held by the Trustee.
The Trustee shall remit such payments to the applicable Securityholder only after the Trustee has
received the requisite Regulation S Certificate, at which time the Trustee shall forward such
payments to the Securityholder that is entitled thereto on its records.



     (e) Each Securityholder shall exchange its interest in a Temporary Debenture for an interest
in a Permanent Debenture on or after the Release Date upon furnishing to the Trustee the Regulation
S Certificate pursuant to the terms of this Section 2.12. On and after the Release Date, upon
receipt by the Trustee of any Regulation S Certificate described in the immediately preceding
sentence, the Bank shall execute and, upon receipt of an order to authenticate, the Authentication
Agent shall authenticate and deliver the Permanent Debenture; provided, however,
that a Permanent Debenture may have been previously executed by the Bank and an order to
authenticate specifying the date on which authentication is to take place may have been delivered
by the Bank to the Trustee prior to the Release Date.



     Section 2.13. Global Debentures.



     (a) Upon the election of the holder of outstanding Debentures or the Company upon initial
issuance, which election need not be in writing, the Debentures owned by such holder or issued by
the Company, as the case may be, shall be issued in the form of one or more Global Debentures
registered in the name of the Depositary or its nominee. Each Global Debenture issued under this
Indenture shall be registered in the name of the Depositary designated by the Company for such
Global Debenture or a nominee thereof, delivered to such Depositary or a nominee thereof or
custodian therefor and shall contain such legends as may be required by the Depositary and each
such Global Debenture shall constitute a single Debenture for all purposes of this Indenture.



14









 





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



     (c) If any Global Debenture is to be exchanged for other Debentures or canceled in part, or if
another Debenture is to be exchanged in whole or in part for a beneficial interest in any Global
Debenture, then either (i) such Global Debenture shall be so surrendered for exchange or
cancellation as provided in this Article II or (ii) the principal amount thereof shall be reduced
or increased by an amount equal to the portion thereof to be so exchanged or canceled, or equal to
the principal amount of such other Debentures to be so exchanged for a beneficial interest therein,
as the case may be, by means of an appropriate adjustment made on the records of the Debenture
registrar, whereupon the Trustee, in accordance with the Applicable Depositary Procedures, shall
instruct the Depositary or its authorized representative to make a corresponding adjustment to its
records. Upon any such surrender or adjustment of a Global Debenture by the Depositary,
accompanied by registration instructions, the Company shall execute and the Trustee shall
authenticate and deliver any Debentures issuable in exchange for such Global Debenture (or any
portion thereof) in accordance with the instructions of the Depositary. The Trustee shall not be
liable for any delay in delivery of such instructions and may conclusively rely on, and shall be
fully protected in relying on, such instructions.



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



     (e) The Depositary or its nominee, as the registered owner of a Global Debenture, shall be the
holder of such Global Debenture for all purposes under this Indenture and the Debentures, and
owners of beneficial interests in a Global Debenture shall hold such interests pursuant to the
Applicable Depositary Procedures. Accordingly, any such owner’s beneficial interest in a Global
Debenture shall be
shown only on, and the transfer of such interest shall be effected only through, records
maintained by the Depositary or its nominee or its Depositary Participants. The Debentures
registrar and the Trustee shall be entitled to deal with the Depositary for all purposes under this
Indenture relating to a Global Debenture (including the payment of principal and interest thereon
and the giving of instructions or directions by owners of beneficial interests therein and the
giving of notices) as the sole holder of the Debenture and shall have no obligations to the owners
of beneficial interests therein. Neither the Trustee nor the Debentures registrar shall have any
liability in respect of any transfers effected by the Depositary.



15









 





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



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



ARTICLE III.



PARTICULAR COVENANTS OF THE BANK




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



     (a) The Bank covenants and agrees that it will duly and punctually pay or cause to be paid the
principal of and premium, if any, and interest and any Additional Interest and other payments on
the Debentures at the place, at the respective times and in the manner provided in this Indenture
and the Debentures. Each installment of interest on the Debentures may be paid (i) by mailing
checks for such interest payable to the order of the holders of Debentures entitled thereto as they
appear on the registry books of the Bank if a request for a wire transfer has not been received by
the Bank or (ii) by wire transfer to any account with a banking institution located in the United
States designated in writing by such Person to the paying agent no later than the related record
date.



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



     Section 3.2. Offices for Notices and Payments, etc. So long as any of the Debentures
remain outstanding, the Bank will maintain in Wilmington, Delaware, an office or agency where the
Debentures may be presented for payment, an office or agency where the Debentures may be presented
for registration of transfer and for exchange as in this Indenture
provided and an office or agency where notices and demands to or upon the Bank in respect of
the Debentures or of this Indenture may be served. The Bank will give to the Trustee written
notice of the location of any such office or agency and of any change of location thereof. Until
otherwise designated from time to time by the Bank in a notice to the Trustee, or specified as
contemplated by Section 2.5, such office or agency for all of the above purposes shall be the
office or agency of the Trustee. In case the Bank shall fail to maintain any such office or agency
in Wilmington, Delaware, or shall fail to give such notice of the location or of any change in the
location thereof, presentations and demands may be made and notices may be served at the Principal
Office of the Trustee.



16









 





     In addition to any such office or agency, the Bank may from time to time designate one or more
offices or agencies outside Wilmington, Delaware, where the Debentures may be presented for
registration of transfer and for exchange in the manner provided in this Indenture, and the Bank
may from time to time rescind such designation, as the Bank may deem desirable or expedient;
provided, however, that no such designation or rescission shall in any manner
relieve the Bank of its obligation to maintain any such office or agency in Wilmington, Delaware,
for the purposes above mentioned. The Bank will give to the Trustee prompt written notice of any
such designation or rescission thereof.



     Section 3.3. Appointments to Fill Vacancies in Trustee’s Office. The Bank, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided
in Section 6.9, a Trustee, so that there shall at all times be a Trustee hereunder.



     Section 3.4. Provision as to Paying Agent.



     (a) If the Bank shall appoint a paying agent other than the Trustee, it will cause such paying
agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provision of this Section 3.4,




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




(2) that it will give the Trustee prompt written notice of any failure by the Bank
(or by any other obligor on the Debentures) to make any payment of the principal of
and premium, if any, or interest, if any, on the Debentures when the same shall be
due and payable; and




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



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



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



     (c) Anything in this Section 3.4 to the contrary notwithstanding, the Bank may, at any time,
for the purpose of obtaining a satisfaction and discharge with respect to the Debentures, or for
any other reason, pay, or direct any paying agent to pay to the Trustee all sums held in trust by
the Bank or any such paying agent, such sums to be held by the Trustee upon the trusts herein
contained.



17









 





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



     Section 3.5. Certificate to Trustee. The Bank will deliver to the Trustee on or
before 120 days after the end of each fiscal year, so long as Debentures are outstanding hereunder,
a Certificate stating that in the course of the performance by the signers of their duties as
officers of the Bank they would normally have knowledge of any default during such fiscal year by
the Bank in the performance of any covenants contained herein, stating whether or not they have
knowledge of any such default and, if so, specifying each such default of which the signers have
knowledge and the nature and status thereof. A form of this Certificate is attached hereto as
Exhibit C.



     Section 3.6. Compliance with Consolidation Provisions. The Bank will not, while any
of the Debentures remain outstanding, consolidate with, or merge into, or merge into itself, or
sell or convey all or substantially all of its property to any other Person unless the provisions
of Article XI hereof are complied with.



     Section 3.7. Limitation on Dividends. If there shall have occurred and be continuing
an Event of Default, then the Bank shall not, and shall not allow any Affiliate of the Bank to, (x)
declare or pay any dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Bank’s capital stock or its Affiliates’ capital
stock (other than payments of dividends or distributions to the Bank) or make any guarantee
payments with respect to the foregoing or (y) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the Bank or any Affiliate
that rank pari passu in all respects with or junior in interest to the Debentures (other than, with
respect to clauses (x) and (y) above, (1) repurchases, redemptions or other acquisitions of shares
of capital stock of the Bank in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of one or more employees, officers, directors or
consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in
connection with the issuance of capital stock of the Bank (or securities convertible into or
exercisable for such capital stock) as consideration in an acquisition transaction entered into
prior to the applicable Event of Default, (2) as a result of any exchange or conversion of any
class or series of the Bank’s capital stock (or any capital stock of a subsidiary of the Bank) for
any class or series of the Bank’s capital stock or of any class or series of the Bank’s
indebtedness for any class or series of the Bank’s capital stock, (3) the purchase of fractional
interests in shares of the Bank’s capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged, (4) any declaration of a
dividend in connection with any stockholders’ rights plan, or the issuance of rights, stock or
other property under any stockholders’ rights plan, or the redemption or repurchase of rights
pursuant thereto, or (5) any dividend in the form of stock, warrants, options or other rights where
the dividend stock or the stock issuable upon
exercise of such warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks pari passu with or junior to such stock and any cash payments in
lieu of fractional shares issued in connection therewith).



     Section 3.8. Federal Regulatory Approval Required. The Debentures may not be repaid
in the case of an acceleration due to an Event of Default or voluntarily redeemed without the prior
written approval of or, if applicable, written notice to the FDIC. If such approval is necessary,
within 30 days after receipt of any declaration of acceleration pursuant to Section 5.1, the Bank
will apply to the FDIC for written approval of repayment prior to maturity. In the event that the
Bank obtains such prior written approval, the Bank shall notify the Securityholders, and the
Trustee will arrange for prompt payment on the Debentures.



18









 





ARTICLE IV.



SECURITYHOLDERS’ LISTS AND REPORTS



BY THE BANK AND THE TRUSTEE




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



     (a) on each regular record date for the Debentures, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Securityholders of the Debentures as of such
record date; and



     (b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Bank of any such request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished;



except that no such lists need be furnished under this Section 4.1 so long as the Trustee is in
possession thereof by reason of its acting as Debenture registrar.



Section 4.2. Preservation and Disclosure of Lists.




     (a) The Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Debentures (1) contained in the most
recent list furnished to it as provided in Section 4.1 or (2) received by it in the capacity of
Debentures registrar (if so acting) hereunder. The Trustee may destroy any list furnished to it as
provided in Section 4.1 upon receipt of a new list so furnished.



     (b) In case three or more holders of Debentures (hereinafter referred to as “applicants”)
apply in writing to the Trustee and furnish to the Trustee reasonable proof that each such
applicant has owned a Debenture for a period of at least 6 months preceding the date of such
application, and such application states that the applicants desire to communicate with other
holders of Debentures with respect to their rights under this Indenture or under such Debentures
and is accompanied by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall within 5 Business Days after the receipt of such
application, at its election, either:




(1) afford such applicants access to the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this Section 4.2, or




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



     If the Trustee shall elect not to afford such applicants access to such information, the
Trustee shall, upon the written request of such applicants, mail to each Securityholder whose name
and address appear in the information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.2 a copy of the form of proxy or other communication
which is specified in such request with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender, the Trustee shall mail to such applicants and
file with the Securities and Exchange Commission or the FDIC, if permitted or required by
applicable law, together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing would be



19









 







contrary to the best interests of
the holders of all Debentures, as the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If said Commission or the FDIC, as
permitted or required by applicable law, after opportunity for a hearing upon the objections
specified in the written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such objections, said
Commission or the FDIC shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Securityholders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.



     (c) Each and every holder of Debentures, by receiving and holding the same, agrees with the
Bank and the Trustee that neither the Bank nor the Trustee nor any paying agent shall be held
accountable by reason of the disclosure of any such information as to the names and addresses of
the holders of Debentures in accordance with the provisions of subsection (b) of this Section 4.2,
regardless of the source from which such information was derived, and that the Trustee shall not be
held accountable by reason of mailing any material pursuant to a request made under said subsection
(b).



     Section 4.3. Reports by the Bank. (a) The Bank shall furnish to the holders of the
Debentures and to prospective purchasers of the Debentures, upon their request, the information
required to be furnished pursuant to Rule 144A(d)(4) under the Securities Act.



     (b) The Bank shall furnish to (i) the Bank of New York, with a copy to FTN Financial Capital
Markets and Keefe, Bruyette & Woods, Inc., and (ii) any beneficial owner of the Debentures
reasonably identified to the Bank, a completed quarterly report in the form attached hereto as
Exhibit D, which report shall be so furnished by the Bank not later than 50 days after the
end of each of the first three fiscal quarters of each fiscal year of the Bank and not later than
100 days after the end of each fiscal year of the Bank along with a copy of the Bank’s most
recently filed call report filed with the FDIC.



ARTICLE V.



REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS



UPON AN EVENT OF DEFAULT




     Section 5.1. Events of Default.
“Event of Default,” wherever used herein, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):



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



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



20









 





     Section 5.2. Acceleration of Maturity; Rescission and Annulment. If an Event of
Default occurs and is continuing with respect to the Debentures, then, and in each and every such
case, unless the principal of the Debentures shall have already become due and payable, either the
Trustee or the holders of not less than 25% in aggregate principal amount of the Debentures then
outstanding hereunder, by notice in writing to the Bank (and to the Trustee if given by
Securityholders), may declare the entire principal of the Debentures and the interest accrued
thereon, if any, to be due and payable immediately, and upon any such declaration the same shall
become immediately due and payable, subject to the receipt by the Bank of prior approval from the
FDIC for payment of such amounts, if then required under applicable capital guidelines, regulations
or policies of the FDIC. Upon payment of such amounts, all obligations of the Bank in respect of
the payment of principal of and interest on the Debentures shall terminate.



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



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



     Section 5.3. Defaults. “Default,” wherever used herein, means any one of the
following events (whatever the reason for such Default and whether it shall be voluntary or
involuntary or be effected by operation of law pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental body):



     (a) an Event of Default has occurred;



     (b) the Bank fails to pay the principal of any Debenture at the Maturity Date and such failure
is continued for six days, whether or not such payment is prohibited by Article XV hereof; or



     (c) the Bank fails to pay any installment of interest on an Interest Payment Date and such
failure is continued for 30 days, whether or not such payment is prohibited by Article XV hereof.



     The Bank covenants that, if a Default shall occur, it will, upon demand of the Trustee and
subject to the approval of the FDIC, if then required, pay to the Trustee, for the benefit of the
Securityholders, the entire amount then due and payable on the Debentures (x) in the case of a
Default specified in clause (a) or (b) above, for the principal and interest, if any, and interest
upon the overdue principal and, to the



21









 







extent that payment of such interest shall be legally
enforceable, upon overdue installments of interest, at the Interest Rate, and (y) in the case of a
Default specified in clause (c) above, for the interest and, to the extent that payment of such
interest shall be legally enforceable, upon overdue installments of interest, at the Interest Rate;
and in each case, in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.



     If the Bank fails to pay such amount forthwith upon such demand and if the necessary FDIC
approval, if any, has been obtained, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, and
may prosecute such proceeding to judgment or final decree, and may enforce the same against the
Bank or any other obligor upon the Debentures, and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Bank or any other obligor upon the
Debentures wherever situated.



     If a Default occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Securityholders by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.



     Section 5.4. Trustee May File Proof of Claims. In case there shall be pending
proceedings for the bankruptcy or for the reorganization of the Bank or any other obligor on the
Debentures under Bankruptcy Law, or in case a receiver or trustee shall have been appointed for the
property of the Bank or such other obligor, or in the case of any other similar judicial
proceedings relative to the Bank or other obligor upon the Debentures, or to the creditors or
property of the Bank or such other obligor, the Trustee, irrespective of whether the principal of
the Debentures shall then be due and payable as therein expressed or by declaration of acceleration
or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 5.4, shall be entitled and empowered, by intervention in such
proceedings or otherwise,



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



     (ii) in case of any judicial proceedings, to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the Trustee (including
any claim for reasonable compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all other amounts due to the
Trustee under Section 6.6), and of the Securityholders allowed in such judicial proceedings
relative to the Bank or any other obligor on the Debentures, or to the creditors or property of the
Bank or such other obligor, unless prohibited by applicable law and regulations, to vote on behalf
of the holders of the Debentures in any election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency proceedings or Person performing
similar functions in comparable proceedings,



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



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



     Any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each
of the Securityholders to make such payments to the Trustee, and, in the event that the Trustee
shall consent to the making of such payments directly to the Securityholders, to pay to the Trustee
such amounts as



22









 







shall be sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and counsel, and all other amounts due
to the Trustee under Section 6.6.



     Nothing herein contained shall be construed to authorize the Trustee to authorize or consent
to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement,
adjustment or composition affecting the Debentures or the rights of any holder thereof or to
authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.



     All rights of action and of asserting claims under this Indenture, or under any of the
Debentures, may be enforced by the Trustee without the possession of any of the Debentures, or the
production thereof at any trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall be for the ratable benefit of the holders of the
Debentures.



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



     Section 5.5. Application of Moneys Collected by Trustee. Any moneys collected by the
Trustee pursuant to this Article V shall be applied in the following order, at the date or dates
fixed by the Trustee for the distribution of such moneys, upon presentation of the several
Debentures in respect of which moneys have been collected, and stamping thereon the payment, if
only partially paid, and upon surrender thereof if fully paid:



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



     Second: To the payment of all Senior Indebtedness of the Bank if and to the extent required
by Article XV;
Third: To the payment of the amounts then due and unpaid upon Debentures for principal (and
premium, if any), and interest on the Debentures, in respect of which or for the benefit of which
money has been collected, ratably, without preference or priority of any kind, according to the
amounts due on such Debentures (including Additional Interest); and



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



     Section 5.6. Proceedings by Securityholders. No holder of any Debenture shall have
any right to institute any suit, action or proceeding for any remedy hereunder, unless such holder
previously shall have given to the Trustee written notice of a Default with respect to the
Debentures and unless the holders of not less than 25% in aggregate principal amount of the
Debentures then outstanding shall have given the Trustee a written request to institute such
action, suit or proceeding and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred thereby, and the Trustee for
60 days after its receipt of such notice, request and offer of indemnity shall have failed to
institute any such action, suit or proceeding.



     Notwithstanding any other provisions in this Indenture, however, the right of any holder of
any Debenture to receive payment of the principal of, premium, if any, and interest, on such
Debenture when due, or to institute suit for the enforcement of any such payment, shall not be
impaired or affected without the consent of such holder and by accepting a Debenture hereunder it
is expressly understood, intended and covenanted by the taker and holder of every Debenture with
every other such taker and holder and the



23









 







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



     Section 5.7. Proceedings by Trustee. In case of a Default hereunder the Trustee may
in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce
any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or
otherwise, whether for the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.



     Section 5.8. Remedies Cumulative and Continuing; Delay or Omission Not a Waiver.
Except as otherwise provided in Section 2.6, all powers and remedies given by this Article V to the
Trustee or to the Securityholders shall, to the extent permitted by law, be deemed cumulative and
not exclusive of any other powers and remedies available to the Trustee or the holders of the
Debentures, by judicial proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or otherwise established with respect to the
Debentures, and no delay or omission of the Trustee or of any holder of any of the Debentures to
exercise any right, remedy or power accruing upon any Default occurring and continuing as aforesaid
shall impair any such right, remedy or power, or shall be construed to be a waiver of any such
Default or an acquiescence therein; and, subject to the provisions of Section 5.6, every power and
remedy given by this Article V or by law to
the Trustee or to the Securityholders may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee (in accordance with its duties under Section 6.1) or by
the Securityholders.



     Section 5.9. Direction of Proceedings and Waiver of Defaults by Majority of
Securityholders. The holders of a majority in aggregate principal amount of the Debentures
affected (voting as one class) at the time outstanding shall have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to such Debentures;
provided, however, that (subject to the provisions of Section 6.1) the Trustee
shall have the right to decline to follow any such direction if the Trustee shall determine that
the action so directed would be unjustly prejudicial to the holders not taking part in such
direction or if the Trustee being advised by counsel determines that the action or proceeding so
directed may not lawfully be taken or if a Responsible Officer of the Trustee shall determine that
the action or proceedings so directed would involve the Trustee in personal liability.



     The holders of a majority in aggregate principal amount of the Debentures at the time
outstanding may on behalf of the holders of all of the Debentures waive (or modify any previously
granted waiver of) any past Default, and its consequences, except a Default (a) in the payment of
principal of, premium, if any, or interest on any of the Debentures or (b) in respect of covenants
or provisions hereof which cannot be modified or amended without the consent of the holder of each
Debenture affected. Upon any such waiver, the Default covered thereby shall be deemed to be cured
for all purposes of this Indenture and the Bank, the Trustee and the holders of the Debentures
shall be restored to their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other Default or impair any right consequent thereon. Whenever
any Default hereunder shall have been waived as permitted by this Section, said Default shall for
all purposes of the Debentures and this Indenture be deemed to have been cured and to be not
continuing.



24









 





     Section 5.10. Notice of Defaults. The Trustee shall, within 90 days after the actual
knowledge by a Responsible Officer of the Trustee of the occurrence of a Default with respect to
the Debentures, mail to all Securityholders, as the names and addresses of such holders appear upon
the Debenture Register, notice of all Defaults with respect to the Debentures known to the Trustee,
unless such Defaults shall have been cured before the giving of such notice; provided,
however, that, except in the case of Default in the payment of the principal of, premium,
if any, or interest on any of the Debentures, the Trustee shall be protected in withholding such
notice if and so long as a Responsible Officer of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders.



     Section 5.11. Undertaking to Pay Costs. All parties to this Indenture agree, and each
holder of any Debenture by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; provided, however, that the
provisions of this Section 5.11 shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder, or group of Securityholders, holding in the aggregate more than
10% in principal amount of the Debentures outstanding, or to any suit instituted by any
Securityholder for the enforcement of the
payment of the principal of (or premium, if any) or interest on any Debenture against the Bank
on or after the same shall have become due and payable.



ARTICLE VI.



CONCERNING THE TRUSTEE




     Section 6.1. Duties and Responsibilities of Trustee. With respect to the holders of
Debentures issued hereunder, the Trustee, prior to the occurrence of a Default with respect to the
Debentures and after the curing or waiving of all Defaults which may have occurred, with respect to
the Debentures, undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture, and no implied covenants shall be read into this Indenture against the
Trustee. In case a Default with respect to the Debentures has occurred (which has not been cured
or waived), the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.



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



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




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




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



25









 







or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements of
this Indenture;



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



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



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



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



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



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



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



     (d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the Securityholders, pursuant to
the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby;



     (e) the Trustee shall not be liable for any action taken or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or powers conferred upon it by
this Indenture; nothing contained herein shall, however, relieve the Trustee of the obligation,
upon the occurrence of a Default with respect to the Debentures (that has not been cured or waived)
to exercise with respect to Debentures such of the rights and powers vested in it by this
Indenture, and to use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs;



     (f) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture, coupon or other paper or document, unless requested in writing to
do so by the holders



26









 







of not less than a majority in aggregate principal amount of the outstanding
Debentures affected thereby; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expense or liability as a condition to so proceeding;



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



     (h) with the exceptions of defaults under Sections 5.3(b) or 5.3(c), the Trustee shall not be
charged with knowledge of any Default with respect to the Debentures unless a written notice of
such Default shall have been given to the Trustee by the Bank or any other obligor on the
Debentures or by any holder of the Debentures.



     Section 6.3. No Responsibility for Recitals, etc.
The recitals contained herein and in the Debentures (except in the certificate of
authentication of the Trustee or the Authenticating Agent) shall be taken as the statements of the
Bank, and the Trustee and the Authenticating Agent assume no responsibility for the correctness of
the same. The Trustee and the Authenticating Agent make no representations as to the validity or
sufficiency of this Indenture or of the Debentures. The Trustee and the Authenticating Agent shall
not be accountable for the use or application by the Bank of any Debentures or the proceeds of any
Debentures authenticated and delivered by the Trustee or the Authenticating Agent in conformity
with the provisions of this Indenture.



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



     Section 6.5. Moneys to be Held in Trust. Subject to the provisions of Section 12.4,
all moneys received by the Trustee or any paying agent shall, until used or applied as herein
provided, be held in trust for the purpose for which they were received, but need not be segregated
from other funds except to the extent required by law. The Trustee and any paying agent shall be
under no liability for interest on any money received by it hereunder except as otherwise agreed in
writing with the Bank. So long as no Event of Default shall have occurred and be continuing, all
interest allowed on any such moneys shall be paid from time to time upon the written order of the
Bank, signed by the Chairman of the Board of Directors, the Chief Executive Officer, the President,
a Managing Director, a Vice President, the Treasurer or an Assistant Treasurer of the Bank.



     Section 6.6. Compensation and Expenses of Trustee. The Bank covenants and agrees to
pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its counsel and of all
Persons not regularly in its employ) except any such expense, disbursement or advance as may arise
from its negligence or willful misconduct. For purposes of clarification, this Section 6.6 does
not contemplate the payment by the Bank of acceptance or annual administration fees owing to the
Trustee pursuant to the services to be provided by the Trustee under this Indenture or the fees and
expenses of the Trustee’s counsel in connection with the closing of the transactions contemplated
by this Indenture. The Bank also covenants to indemnify each of the Trustee or any predecessor
Trustee (and its officers, agents, directors



27









 







and employees) for, and to hold it harmless against,
any and all loss, damage, claim, liability or expense including taxes (other than taxes based on
the income of the Trustee) incurred without negligence or willful misconduct on the part of the
Trustee and arising out of or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim of liability. The
obligations of the Bank under this Section 6.6 to compensate and indemnify the Trustee and to pay
or reimburse the Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that of
the Debentures upon all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the holders of particular Debentures.



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



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



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



     Section 6.7. Officers’ Certificate as Evidence. Except as otherwise provided in
Sections 6.1 and 6.2, whenever in the administration of the provisions of this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking
or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or willful misconduct on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered
to the Trustee, and such certificate, in the absence of negligence or willful misconduct on the
part of the Trustee, shall be full warrant to the Trustee for any action taken or omitted by it
under the provisions of this Indenture upon the faith thereof.



     Section 6.8. Eligibility of Trustee. The Trustee hereunder shall at all times be a
corporation organized and doing business under the laws of the United States of America or any
state or territory thereof or of the District of Columbia or a corporation or other Person
authorized under such laws to exercise corporate trust powers, having (or whose obligations under
this Indenture are guaranteed by an affiliate having) a combined capital and surplus of at least 50
million U.S. dollars ($50,000,000.00) and subject to supervision or examination by federal, state,
territorial, or District of Columbia authority. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 6.8 the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth in its most recent
records of condition so published.



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



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



28









 





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



     Section 6.9. Resignation or Removal of Trustee




     (a) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign by
giving written notice of such resignation to the Bank and by mailing notice thereof, at the Bank’s
expense, to the holders of the Debentures at their addresses as they shall appear on the Debenture
Register. Upon receiving such notice of resignation, the Bank shall promptly appoint a successor
trustee or trustees by written instrument, in duplicate, executed by order of its Board of
Directors, one copy of
which instrument shall be delivered to the resigning Trustee and one copy to the successor
Trustee. If no successor Trustee shall have been so appointed and have accepted appointment within
30 days after the mailing of such notice of resignation to the affected Securityholders, the
resigning Trustee may petition any court of competent jurisdiction for the appointment of a
successor Trustee, or any Securityholder who has been a bona fide holder of a Debenture or
Debentures for at least six months may, subject to the provisions of Section 5.11, on behalf of
himself and all others similarly situated, petition any such court for the appointment of a
successor Trustee. Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor Trustee.



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




(1) the Trustee shall fail to comply with the provisions of Section 6.8 after
written request therefor by the Bank or by any Securityholder who has been a bona
fide holder of a Debenture or Debentures for at least 6 months, or




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




(3) the Trustee shall become incapable of acting, or shall be adjudged as bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be appointed, or
any public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,




then, in any such case, the Bank may remove the Trustee and appoint a successor Trustee by
written instrument, in duplicate, executed by order of the Board of Directors, one copy of
which instrument shall be delivered to the Trustee so removed and one copy to the successor
Trustee, or, subject to the provisions of Section 5.11, any Securityholder who has been a
bona fide holder of a Debenture or Debentures for at least 6 months may, on behalf of
himself and all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint successor Trustee.



     (c) Upon prior written notice to the Bank and the Trustee, the holders of a majority in
aggregate principal amount of the Debentures at the time outstanding may at any time remove the
Trustee and nominate a successor Trustee, which shall be deemed appointed as successor Trustee
unless within 10 Business Days after such nomination the Bank objects thereto, in which case, or in
the case of a failure by such holders to nominate a successor Trustee, the Trustee so removed or
any Securityholder, upon the terms and conditions and otherwise as in subsection (a) of this
Section 6.9 provided, may petition any court of competent jurisdiction for an appointment of a
successor.



29









 





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



     Section 6.10. Acceptance by Successor Trustee. Any successor Trustee appointed as
provided in Section 6.9 shall execute, acknowledge and deliver to the Bank and to its predecessor
Trustee an instrument accepting such appointment hereunder, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights, powers, duties and
obligations with respect to the Debentures of its predecessor hereunder, with like
effect as if originally named as Trustee herein; but, nevertheless, on the written request of
the Bank or of the successor Trustee, the Trustee ceasing to act shall, upon payment of any amounts
then due it pursuant to the provisions of Section 6.6, execute and deliver an instrument
transferring to such successor Trustee all the rights and powers of the Trustee so ceasing to act
and shall duly assign, transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee thereunder. Upon request of any such successor Trustee, the Bank shall
execute any and all instruments in writing for more fully and certainly vesting in and confirming
to such successor Trustee all such rights and powers. Any Trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or collected by such Trustee to secure
any amounts then due it pursuant to the provisions of Section 6.6.



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



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



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



     Upon acceptance of appointment by a successor Trustee as provided in this Section 6.10, the
Bank shall mail notice of the succession of such Trustee hereunder to the holders of Debentures at
their addresses as they shall appear on the Debenture Register. If the Bank fails to mail such
notice within 10 Business Days after the acceptance of appointment by the successor Trustee, the
successor Trustee shall cause such notice to be mailed at the expense of the Bank.



     Section 6.11. Succession by Merger, etc. Any corporation into which the Trustee may
be merged or converted or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder without the execution or filing of any paper or any further act
on the part of any of the parties hereto; provided such corporation shall be otherwise
eligible and qualified under this Article.



     In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture any of the Debentures shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor Trustee, and deliver
such



30









 







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



     Section 6.12. Authenticating Agents. There may be one or more Authenticating Agents
appointed by the Trustee upon the request of the Bank with power to act on its behalf and subject
to its direction in the authentication and delivery of Debentures issued upon exchange or
registration of transfer thereof as fully to all intents and purposes as though any such
Authenticating Agent had been expressly authorized to authenticate and deliver Debentures;
provided, however, that the Trustee shall have no liability to the Bank for any
acts or omissions of the Authenticating Agent with respect to the authentication and delivery of
Debentures. Any such Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States or of any state or territory thereof or of the
District of Columbia authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of at least $50,000,000.00 and being subject to supervision or examination by
federal, state, territorial or District of Columbia authority. If such corporation publishes
reports of condition at least annually pursuant to law or the requirements of such authority, then
for the purposes of this Section 6.12 the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and with the effect
herein specified in this Section.



     Any corporation into which any Authenticating Agent may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, consolidation or conversion
to which any Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of any Authenticating Agent, shall be the
successor of such Authenticating Agent hereunder, if such successor corporation is otherwise
eligible under this Section 6.12 without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent.



     Any Authenticating Agent may at any time resign by giving written notice of resignation to the
Trustee and to the Bank. The Trustee may at any time terminate the agency of any Authenticating
Agent with respect to the Debentures by giving written notice of termination to such Authenticating
Agent and to the Bank. Upon receiving such a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible under this Section 6.12,
the Trustee may, and upon the request of the Bank shall, promptly appoint a successor
Authenticating Agent eligible under this Section 6.12, shall give written notice of such
appointment to the Bank and shall mail notice of such appointment to all holders of Debentures as
the names and addresses of such holders appear on the Debenture Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all
rights, powers, duties and responsibilities with respect to the Debentures of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent herein.



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



31









 





ARTICLE VII.



CONCERNING THE SECURITYHOLDERS




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



     If the Bank shall solicit from the Securityholders any request, demand, authorization,
direction, notice, consent, waiver or other action or revocation of the same, the Bank may, at its
option, as evidenced by an Officers’ Certificate, fix in advance a record date for such Debentures
for the determination of Securityholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action or revocation of the same, but the Bank shall
have no obligation to do so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action or revocation of the same may be given before or
after the record date, but only the Securityholders of record at the close of business on the
record date shall be deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of outstanding Debentures have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent, waiver or other
action or revocation of the same, and for that purpose the outstanding Debentures shall be computed
as of the record date; provided, however, that no such authorization, agreement or
consent by such Securityholders on the record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than 6 months after the record
date.



     Section 7.2. Proof of Execution by Securityholders. Subject to the provisions of
Section 6.1, 6.2 and 8.5, proof of the execution of any instrument by a Securityholder or his agent
or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The
ownership of Debentures shall be proved by the Debenture Register or by a certificate of the
Debenture registrar. The Trustee may require such additional proof of any matter referred to in
this Section as it shall deem necessary.



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



     Section 7.3. Who Are Deemed Absolute Owners. Prior to due presentment for
registration of transfer of any Debenture, the Bank, the Trustee, any Authenticating Agent, any
paying agent, any transfer agent and any Debenture registrar may deem the Person in whose name such
Debenture shall be registered upon the Debenture Register to be, and may treat him as, the absolute
owner of such Debenture (whether or not such Debenture shall be overdue) for the purpose of
receiving payment of or on account of the principal of, premium, if any, and interest on such
Debenture and for all other purposes; and neither the Bank nor the Trustee nor any Authenticating
Agent nor any paying agent nor any transfer agent nor any Debenture registrar shall be affected by
any notice to the contrary. All such payments so made to any holder for the time being or upon his
order shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Debenture.



32









 





     Section 7.4. Debentures Owned by Bank Deemed Not Outstanding. In determining whether
the holders of the requisite aggregate principal amount of Debentures have concurred in any
direction, consent or waiver under this Indenture, Debentures which are owned by the Bank or any
other obligor on the Debentures or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Bank or any other obligor on the
Debentures shall be disregarded and deemed not to be outstanding for the purpose of any such
determination; provided, however, that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver, only Debentures
which a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.
Debentures so owned which have been pledged in good faith may be regarded as outstanding for the
purposes of this Section 7.4 if the pledgee shall establish to the satisfaction of the Trustee the
pledgee’s right to vote such Debentures and that the pledgee is not the Bank or any such other
obligor or Person directly or indirectly controlling or controlled by or under direct or indirect
common control with the Bank or any such other obligor. In the case of a dispute as to such right,
any decision by the Trustee taken upon the advice of counsel shall be full protection to the
Trustee.



     Section 7.5. Revocation of Consents; Future Holders Bound. At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 7.1, of the taking of any action
by the holders of the percentage in aggregate principal amount of the Debentures specified in this
Indenture in connection with such action, any holder (in cases where no record date has been set
pursuant to Section 7.1) or any holder as of an applicable record date (in cases where a record
date has been set pursuant to Section 7.1) of a Debenture (or any Debenture issued in whole or in
part in exchange or substitution therefor) the serial number of which is shown by the evidence to
be included in the Debentures the holders of which have consented to such action may, by filing
written notice with the Trustee at the Principal Office of the Trustee and upon proof of holding as
provided in Section 7.2, revoke such action so far as concerns such Debenture (or so far as
concerns the principal amount represented by any exchanged or substituted Debenture). Except as
aforesaid any such action taken by the holder of any Debenture shall be conclusive and binding upon
such holder and upon all future holders and owners of such Debenture, and of any Debenture issued
in exchange or substitution therefor or on registration of transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon such Debenture or any Debenture issued
in exchange or substitution therefor.



ARTICLE VIII.



SECURITYHOLDERS’ MEETINGS




     Section 8.1. Purposes of Meetings. A meeting of Securityholders may be called at any
time and from time to time pursuant to the provisions of this Article VIII for any of the following
purposes:



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



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



     (c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to
the provisions of Section 9.2; or



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



33









 





     Section 8.2. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Securityholders to take any action specified in
Section 8.1, to be held at such time and at such place as the Trustee shall determine. Notice of
every meeting of the Securityholders, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be mailed to holders of
Debentures affected at their addresses as they shall appear on the Debentures Register and, if the
Bank is not a holder of Debentures, to the Bank. Such notice shall be mailed not less than 20 nor
more than 180 days prior to the date fixed for the meeting.



     Section 8.3. Call of Meetings by Bank or Securityholders. In case at any time the
Bank pursuant to a Board Resolution, or the holders of at least 10% in aggregate principal amount
of the Debentures, as the case may be, then outstanding, shall have requested the Trustee to call a
meeting of Securityholders, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the notice of such
meeting within 20 days after receipt of such request, then the Bank or such Securityholders may
determine the time and the place for such meeting and may call such meeting to take any action
authorized in Section 8.1, by mailing notice thereof as provided in Section 8.2.



     Section 8.4. Qualifications for Voting. To be entitled to vote at any meeting of
Securityholders a Person shall (a) be a holder of one or more Debentures with respect to which the
meeting is being held or (b) a Person appointed by an instrument in writing as proxy by a holder of
one or more such Debentures. The only Persons who shall be entitled to be present or to speak at
any meeting of Securityholders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any representatives of the Bank
and its counsel.



     Section 8.5. Regulations. Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of Debentures and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such other matters concerning
the conduct of the meeting as it shall think fit.



     The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the Bank or by Securityholders as provided in Section
8.3, in which case the Bank or the Securityholders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by majority vote of the meeting.



     Subject to the provisions of Section 7.4, at any meeting each holder of Debentures with
respect to which such meeting is being held or proxy therefor shall be entitled to one vote for
each $1,000.00 principal amount of Debentures held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any Debenture
challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The
chairman of the meeting shall have no right to vote other than by virtue of Debentures held by him
or instruments in writing as aforesaid duly designating him as the Person to vote on behalf of
other Securityholders. Any meeting of Securityholders duly called pursuant to the provisions of
Section 8.2 or 8.3 may be adjourned from time to time by a majority of those present, whether or
not constituting a quorum, and the meeting may be held as so adjourned without further notice.



     Section 8.6. Voting. The vote upon any resolution submitted to any meeting of holders
of Debentures with respect to which such meeting is being held shall be by written ballots on which
shall be subscribed the signatures of such holders or of their representatives by proxy and the
serial number or numbers of the Debentures held or represented by them. The permanent chairman of
the meeting shall



34









 







appoint two inspectors of votes who shall count all votes cast at the meeting for
or against any resolution and who shall make and file with the secretary of the meeting their
verified written reports in triplicate of all votes cast at the meeting. A record in duplicate of
the proceedings of each meeting of Securityholders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as
provided in Section 8.2. The record shall show the serial numbers of the Debentures voting in
favor of or against any resolution. The record shall be signed and verified by the affidavits of
the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to
the Bank and the other to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting.



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



     Section 8.7. Quorum; Actions. The Persons entitled to vote a majority in principal
amount of the Debentures then outstanding shall constitute a quorum for a meeting of
Securityholders; provided, however, that if any action is to be taken at such
meeting with respect to a consent, waiver, request, demand, notice, authorization, direction or
other action which may be given by the holders of not less than a specified percentage in principal
amount of the Debentures then outstanding, the Persons holding or representing such specified
percentage in principal amount of the Debentures then outstanding will constitute a quorum. In the
absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of Securityholders, be dissolved. In any other case the meeting
may be adjourned for a period of not less than 10 days as determined by the permanent chairman of
the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10
days as determined by the permanent chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided
in Section 8.2, except that such notice need be given only once not less than 5 days prior to the
date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the principal amount of the
Debentures then outstanding which shall constitute a quorum.



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



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



ARTICLE IX.



SUPPLEMENTAL INDENTURES




     Section 9.1. Supplemental Indentures without Consent of Securityholders. The Bank,
when authorized by a Board Resolution, and the Trustee may from time to time and at any time enter
into



35









 







an indenture or indentures supplemental hereto, without the consent of the Securityholders,
for one or more of the following purposes:



     (a) to evidence the succession of another Person to the Bank, or successive successions, and
the assumption by the successor Person of the covenants, agreements and obligations of the Bank,
pursuant to Article XI hereof;



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



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



     (d) to add to, delete from, or revise the terms of Debentures, including, without limitation,
any terms relating to the issuance, exchange, registration or transfer of Debentures (for purposes
of assuring that no registration of Debentures is required under the Securities Act or the Member
Bank Securities Laws); provided, however, that any such action shall not adversely
affect the interests of the holders of the Debentures then outstanding;



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



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



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



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



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



36









 





     Section 9.2. Supplemental Indentures with Consent of Securityholders. With the
consent (evidenced as provided in Section 7.1) of the holders of not less than a majority in
aggregate principal amount of the Debentures at the time outstanding affected by such supplemental
indenture (voting as a class), the Bank, when authorized by a Board Resolution, and the Trustee may
from time to time and at any time enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the
holders of the Debentures; provided, however, that no such supplemental indenture
shall without the consent of the holders of each Debenture then outstanding and affected thereby
(i) change the fixed maturity of any Debenture, or reduce the principal amount thereof or any
premium thereon, or reduce the rate or extend the time of payment of interest thereon, or reduce
any amount payable on redemption thereof or make the principal thereof or any interest or premium
thereon payable in any coin or currency other than that provided in the Debentures, or impair or
affect the right of any Securityholder to institute suit for payment thereof or impair the right of
repayment, if any, at the option of the holder, or (ii) reduce the aforesaid percentage of
Debentures the holders of which are required to consent to any such supplemental indenture.



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



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



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



     Section 9.3. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article IX, this Indenture shall be and
be deemed to be modified and amended in accordance therewith and the respective rights, limitations
of rights, obligations, duties and immunities under this Indenture of the Trustee, the Bank and the
holders of Debentures shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.



     Section 9.4. Notation on Debentures. Debentures authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this Article IX may bear a
notation as to any matter provided for in such supplemental indenture. If the Bank or the Trustee
shall so determine, new Debentures so modified as to conform, in the opinion of the Board of
Directors of the Bank, to any modification of this Indenture contained in any such supplemental
indenture may be prepared and executed by the Bank, authenticated by the Trustee or the
Authenticating Agent and delivered in exchange for the Debentures then outstanding.



     Section 9.5. Evidence of Compliance of Supplemental Indenture to be Furnished to
Trustee. The Trustee, subject to the provisions of Sections 6.1 and 6.2, shall, in addition to
the



37









 







documents required by Section 14.6, receive an Officers’ Certificate and an Opinion of Counsel
as conclusive evidence that any supplemental indenture executed pursuant hereto complies with the
requirements of this Article IX. The Trustee shall receive an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to this Article IX is authorized or
permitted by, and conforms to, the terms of this Article IX and that it is proper for the Trustee
under the provisions of this Article IX to join in the execution thereof.



ARTICLE X.



REDEMPTION OF SECURITIES




     Section 10.1. Optional Redemption. The Bank shall have the right (subject to the
receipt by the Bank of prior written approval by the FDIC, if then required under applicable
regulations of the FDIC) to redeem the Debentures, in whole or in part, but in all cases in a
principal amount with integral multiples of $1,000.00, on any Interest Payment Date on or after the
Interest Payment Date in June 2012 (the “Redemption Date”) at the Redemption Price.



     Section 10.2. Notice of Redemption; Selection of Debentures. In case the Bank shall
desire to exercise the right to redeem all, or, as the case may be, any part of the Debentures, it
shall cause to be mailed a notice of such redemption at least 30 and not more than 60 days prior to
the Redemption Date to the holders of Debentures so to be redeemed as a whole or in part at their
last addresses as the same appear on the Debenture Register. Such mailing shall be by first class
mail. The notice if mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the holder receives such notice. In any case, failure to give such
notice by mail or any defect in the notice to the holder of any Debenture designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the redemption of any
other Debenture.



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



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



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



     Section 10.3. Payment of Debentures Called for Redemption. If notice of redemption
has been given as provided in Section 10.2, the Debentures or portions of Debentures with respect
to which such notice has been given shall become due and payable on the Redemption Date and at the
place or places stated in such notice at the applicable Redemption Price and (unless the Bank shall
default in the payment of such Debentures at the Redemption Price) interest on the Debentures or
portions of



38









 







Debentures so called for redemption shall cease to accrue. On presentation and
surrender of such Debentures at a place of payment specified in said notice, such Debentures or the
specified portions thereof shall be paid and redeemed by the Bank at the applicable Redemption
Price.



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



ARTICLE XI.



CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE




     Section 11.1. Bank May Consolidate, etc., on Certain Terms. Nothing contained in this
Indenture or in the Debentures shall prevent any consolidation or merger of the Bank with or into
any other Person (whether or not affiliated with the Bank) or successive consolidations or mergers
in which the Bank or its successor or successors shall be a party or parties, or shall prevent any
sale, conveyance, transfer or other disposition of the property of the Bank or its successor or
successors as an entirety, or substantially as an entirety, to any other Person (whether or not
affiliated with the Bank, or its successor or successors) authorized to acquire and operate the
same; provided, however, that the Bank hereby covenants and agrees that, upon any
such consolidation, merger (where the Bank is not the surviving corporation), sale, conveyance,
transfer or other disposition, the due and punctual payment of the principal of (and premium, if
any) and interest on all of the Debentures in accordance with their terms, according to their
tenor, and the due and punctual performance and observance of all the covenants and conditions of
this Indenture to be kept or performed by the Bank, shall be expressly assumed by supplemental
indenture satisfactory in form to the Trustee executed and delivered to the Trustee by the entity
formed by such consolidation, or into which the Bank shall have been merged, or by the entity which
shall have acquired such property.



     Section 11.2. Successor Entity to be Substituted.
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition and
upon the assumption by the successor entity, by supplemental indenture, executed and delivered to
the Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the
principal of and premium, if any, and interest on all of the Debentures and the due and punctual
performance and observance of all of the covenants and conditions of this Indenture to be performed
or observed by the Bank, such successor entity shall succeed to and be substituted for the Bank,
with the same effect as if it had been named herein as the Bank, and thereupon the predecessor
entity shall be relieved of any further liability or obligation hereunder or upon the Debentures.
Such successor entity thereupon may cause to be signed, and may issue in its own name, any or all
of the Debentures issuable hereunder which theretofore shall not have been signed by the Bank and
delivered to the Trustee or the Authenticating Agent; and, upon the order of such successor entity
instead of the Bank and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee or the Authenticating Agent shall authenticate and deliver any Debentures
which previously shall have been signed and delivered by the officers of the Bank, to the Trustee
or the Authenticating Agent for authentication, and any Debentures which such successor entity
thereafter shall cause to be signed and delivered to the Trustee or the Authenticating Agent for
that purpose. All the Debentures so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Debentures theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Debentures had been issued at the date of the
execution hereof.



     Section 11.3. Opinion of Counsel to be Given to Trustee. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, shall receive, in addition to the Opinion of Counsel required
by Section 9.5, an Opinion of Counsel as conclusive evidence that any consolidation, merger, sale,



39









 







conveyance, transfer or other disposition, and any assumption, permitted or required by the terms
of this Article XI complies with the provisions of this Article XI.



ARTICLE XII.



SATISFACTION AND DISCHARGE OF INDENTURE




     Section 12.1. Discharge of Indenture. When




	 	(a)	 	the Bank shall deliver to the Trustee for cancellation all Debentures
theretofore authenticated (other than any Debentures which shall have been destroyed,
lost or stolen and which shall have been replaced or paid as provided in Section 2.6)
and not theretofore canceled, or
	 
	 	(b)	 	all the Debentures not theretofore canceled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become due and
payable within 1 year or are to be called for redemption within 1 year under
arrangements satisfactory to the Trustee for the giving of notice of redemption, and
the Bank shall deposit with the Trustee, in trust, funds, which shall be immediately
due and payable, sufficient to pay at maturity or upon redemption all of the Debentures
(other than any Debentures which shall have been destroyed, lost or stolen and which
shall have been replaced or paid as provided in Section 2.6) not theretofore canceled
or delivered to the Trustee for cancellation, including principal and premium, if any,
and interest due or to become due to such date of maturity or redemption date, as the
case may be, but excluding, however, the amount of any moneys for the payment of
principal of, and premium, if any, or interest on the Debentures (1) theretofore repaid
to the Bank in
accordance with the provisions of Section 12.4, or (2) paid to any state or to the
District of Columbia pursuant to its unclaimed property or similar laws,




and if in the case of either clause (a) or clause (b) the Bank shall also pay or cause to be paid
all other sums payable hereunder by the Bank, then this Indenture shall cease to be of further
effect except for the provisions of Sections 2.5, 2.6, 2.8, 3.1, 3.2, 3.4, 6.6, 6.8, 6.9 and 12.4
hereof which shall survive until such Debentures shall mature and be paid. Thereafter, Sections
6.6 and 12.4 shall survive, and the Trustee, on demand of the Bank accompanied by an Officers’
Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been complied with, and at
the cost and expense of the Bank, shall execute proper instruments acknowledging satisfaction of
and discharging this Indenture. The Bank agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred by the Trustee in connection with this Indenture or the
Debentures.




     Section 12.2. Deposited Moneys to be Held in Trust by Trustee. Subject to the
provisions of Section 12.4, all moneys deposited with the Trustee pursuant to Section 12.1 shall be
held in trust in a non-interest bearing account and applied by it to the payment, either directly
or through any paying agent (including the Bank if acting as its own paying agent), to the holders
of the particular Debentures for the payment of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal, and premium, if any, and
interest.



     Section 12.3. Paying Agent to Repay Moneys Held. Upon the satisfaction and discharge
of this Indenture all moneys then held by any paying agent of the Debentures (other than the
Trustee) shall, upon demand of the Bank, be repaid to it or paid to the Trustee, and thereupon such
paying agent shall be released from all further liability with respect to such moneys.



40









 





     Section 12.4. Return of Unclaimed Moneys. Any moneys deposited with or paid to the
Trustee or any paying agent for payment of the principal of, and premium, if any, or interest on
Debentures and not applied but remaining unclaimed by the holders of Debentures for 2 years after
the date upon which the principal of, and premium, if any, or interest on such Debentures, as the
case may be, shall have become due and payable, shall, subject to applicable escheatment laws, be
repaid to the Bank by the Trustee or such paying agent on written demand; and the holder of any of
the Debentures shall thereafter look only to the Bank for any payment which such holder may be
entitled to collect, and all liability of the Trustee or such paying agent with respect to such
moneys shall thereupon cease.



ARTICLE XIII.



IMMUNITY OF INCORPORATORS, STOCKHOLDERS,



OFFICERS AND DIRECTORS




     Section 13.1. Indenture and Debentures Solely Corporate Obligations. No recourse for
the payment of the principal of or premium, if any, or interest on any Debenture, or for any claim
based thereon or otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Bank in this Indenture or in any supplemental indenture, or in any
such Debenture, or because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, employee, officer or director, as such, past, present or
future, of the Bank or of any successor Person of the Bank, either directly or through the Bank or
any successor Person
of the Bank, whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as a consideration for,
the execution of this Indenture and the issue of the Debentures.



ARTICLE XIV.



MISCELLANEOUS PROVISIONS




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



     Section 14.2. Official Acts by Successor Entity. Any act or proceeding by any
provision of this Indenture authorized or required to be done or performed by any board, committee
or officer of the Bank shall and may be done and performed with like force and effect by the like
board, committee, officer or other authorized Person of any entity that shall at the time be the
lawful successor of the Bank.



     Section 14.3. Surrender of Bank Powers. The Bank by instrument in writing executed by
authority of at least 2/3 (two-thirds) of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Bank and thereupon such power so surrendered shall
terminate both as to the Bank, and as to any permitted successor.



     Section 14.4. Addresses for Notices, etc. Any notice, consent, direction, request,
authorization, waiver or demand which by any provision of this Indenture is required or permitted
to be given, made, furnished or served by the Trustee or by the Securityholders on or to the Bank
may be given or served in writing by being deposited postage prepaid by registered or certified
mail in a post office letter box addressed (until another address is filed by the Bank, with the
Trustee for the purpose) to the Bank, 555 Montgomery Street, 14th Floor, San Francisco, California
94111, Attention: Jonas Miller. Any notice, consent, direction, request, authorization, waiver or
demand by any Securityholder or the Bank to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at the office of the
Trustee, addressed to the Trustee, Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890-1600, Attention: Corporate Trust Administration. Any notice, consent, direction,
request, authorization, waiver or demand on or to any



41









 







Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at the address set forth
in the Debenture Register.



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



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



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



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



     Section 14.8. Execution in Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.



     Section 14.9. Separability. In case any one or more of the provisions contained in
this Indenture or in the Debentures shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any
other provisions of this Indenture or of such Debentures, but this Indenture and such Debentures
shall be construed as if such invalid or illegal or unenforceable provision had never been
contained herein or therein.



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



ARTICLE XV.



SUBORDINATION OF DEBENTURES




     Section 15.1. Agreement to Subordinate. The Bank covenants and agrees, and each
holder of Debentures by such Securityholder’s acceptance thereof likewise covenants and agrees,
that all Debentures shall be issued subject to the
provisions of this Article XV; and each holder of a Debenture,



42









 







whether upon original issue or
upon transfer or assignment thereof, accepts and agrees to be bound by such provisions.



     The payment by the Bank of the principal of, and premium, if any, and interest on all
Debentures shall, to the extent and in the manner hereinafter set forth, be subordinated and junior
in right of payment to the prior payment in full of all Senior Indebtedness of the Bank, whether
outstanding at the date of this Indenture or thereafter incurred.



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



     Section 15.2. Default on Senior Indebtedness. In the event and during the
continuation of any default by the Bank in the payment of principal, premium, interest or any other
payment due on any Senior Indebtedness of the Bank following any grace period, or in the event that
the maturity of any Senior Indebtedness of the Bank has been accelerated because of a default and
such acceleration has not been rescinded or canceled and such Senior Indebtedness has not been paid
in full, then, in either case, no payment shall be made by the Bank with respect to the principal
(including redemption) of, or premium, if any, or interest on the Debentures.



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



     Section 15.3. Liquidation, Dissolution, Bankruptcy. Upon any payment by the Bank or
distribution of assets of the Bank of any kind or character, whether in cash, property or
securities, to creditors upon any insolvency, receivership, conservatorship, reorganization,
readjustment of debt, marshaling of assets and liabilities or similar proceedings or any
liquidation or winding up of or relating to the Bank, whether voluntary or involuntary, all amounts
due upon all Senior Indebtedness of the Bank shall first be paid in full, or payment thereof
provided for in money in accordance with its terms, before any payment is made by the Bank, on
account of the principal (and premium, if any) or interest on the Debentures. In the event of any
such proceedings, any payment by the Bank, or distribution of assets of the Bank of any kind or
character, whether in cash, property or securities, to which the Securityholders or the Trustee
would be entitled to receive from the Bank, except for the provisions of this Article XV, shall be
paid by the Bank, or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, or by the Securityholders or by the Trustee under this
Indenture if received by them or it, directly to the holders of Senior Indebtedness (pro rata to
such holders on the basis of the respective amounts of Senior Indebtedness held by such holders, as
calculated by the Bank) or their representative or representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing such Senior Indebtedness may have
been issued, as their respective interests may appear, to the extent necessary to pay such Senior
Indebtedness in full, in money or money’s worth, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness, before any payment or distribution
is made to the Securityholders or to the Trustee.



     In the event that, notwithstanding the foregoing, any payment or distribution of assets of the
Bank of any kind or character, whether in cash, property or securities, prohibited by the
foregoing, shall be received by the Trustee before all Senior Indebtedness is paid in full, or
provision is made for such



43









 







payment in money in accordance with its terms, such payment or
distribution shall be held in trust for the benefit of and shall be paid over or delivered to the
holders of such Senior Indebtedness or their representative or representatives, or to the trustee
or trustees under any indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, as their respective interests may appear, as calculated by the
Bank, for application to the payment of all Senior Indebtedness, remaining unpaid to the extent
necessary to pay such Senior Indebtedness in full in money in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the benefit of the holders of
such Senior Indebtedness.



     For purposes of this Article XV, the words “cash, property or securities” shall not be deemed
to include shares of stock of the Bank as reorganized or readjusted, or securities of the Bank or
any other corporation provided for by a plan of reorganization or readjustment, the payment of
which is subordinated at least to the extent provided in this Article XV with respect to the
Debentures to the payment of all Senior Indebtedness, that may at the time be outstanding, provided
that (i) such Senior Indebtedness is assumed by the new corporation, if any, resulting from any
such reorganization or readjustment, and (ii) the rights of the holders of such Senior Indebtedness
are not, without the consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Bank with, or the merger of the Bank into, another corporation or the
liquidation or dissolution of the Bank following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation upon the terms and conditions
provided for in Article XI of this Indenture shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section if such other corporation shall, as
a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in
Article XI of this Indenture. Nothing in Section 15.2 or in this Section shall apply to claims of,
or payments to, the Trustee under or pursuant to Section 6.6 of this Indenture.



     Section 15.4. Subrogation. Subject to the payment in full of all Senior Indebtedness,
the Securityholders shall be subrogated to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of cash, property or securities of the Bank, applicable to such
Senior Indebtedness until the principal of (and premium, if any) and interest on the Debentures
shall be paid in full. For the purposes of such subrogation, no payments or distributions to the
holders of such Senior Indebtedness of any cash, property or securities to which the
Securityholders or the Trustee would be entitled except for the provisions of this Article XV, and
no payment over pursuant to the provisions of this Article XV to or for the benefit of the holders
of such Senior Indebtedness by Securityholders or the Trustee, shall, as between the Bank, its
creditors other than holders of Senior Indebtedness of the Bank, and the holders of the Debentures
be deemed to be a payment or distribution by the Bank to or on account of such Senior Indebtedness.
It is understood that the provisions of this Article XV are and are intended solely for the
purposes of defining the relative rights of the holders of the Securities, on the one hand, and the
holders of such Senior Indebtedness, on the other hand.



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



44









 





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



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



     Section 15.6. Notice by the Bank. The Bank shall give prompt written notice to a
Responsible Officer of the Trustee at the Principal Office of the Trustee of any fact known to the
Bank that would prohibit the making of any payment of monies to or by the Trustee in respect of the
Debentures pursuant to the provisions of this Article XV. Notwithstanding the provisions of this
Article XV or any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any payment of monies to
or by the Trustee in respect of the Debentures pursuant to the provisions of this Article XV,
unless and until a Responsible Officer of the Trustee at the Principal Office of the Trustee shall
have received written notice thereof from the Bank or a holder or holders of Senior Indebtedness or
from any trustee therefor; and before the receipt of any such written notice, the Trustee, subject
to the provisions of Article VI of this Indenture, shall be entitled in all respects to assume that
no such facts exist; provided, however, that if the Trustee shall not have received
the notice provided for in this Section at least 2 Business Days prior to the date upon which by
the terms hereof any money may become payable for any purpose (including, without limitation, the
payment of the principal of (or premium, if any) or interest on any Debenture), then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full power and authority
to receive such money and to apply the same to the purposes for which they were received, and shall
not be affected by any notice to the contrary that may be received by it within 2 Business Days
prior to such date.



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



     Section 15.7. Rights of the Trustee; Holders of Senior Indebtedness. The Trustee in
its individual capacity shall be entitled to all the rights set forth in this Article XV in respect
of any Senior Indebtedness at any time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder.



45









 





     With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set forth in this Article
XV, and no implied covenants or obligations with respect to the holders of such Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of such Senior Indebtedness and, subject to the provisions of Article
VI of this Indenture, the Trustee shall not be liable to any holder of such Senior Indebtedness if
it shall pay over or deliver to Securityholders, the Bank or any other Person money or assets to
which any holder of such Senior Indebtedness shall be entitled by virtue of this Article XV or
otherwise.



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



     Section 15.8. Subordination May Not Be Impaired. No right of any present or future
holder of any Senior Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of the Bank, or by any
act or failure to act, in good faith, by any such holder, or by any noncompliance by the Bank, with
the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof that any
such holder may have or otherwise be charged with.



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



Signatures appear on the following page




46









 








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



	 	 	 	 	 
	 	UNITED COMMERCIAL BANK

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	WILMINGTON TRUST COMPANY, as Trustee

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




47









 








EXHIBIT A




FORM OF FLOATING RATE JUNIOR SUBORDINATED DEBENTURE




[FORM OF FACE OF SECURITY]





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



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



     [TO BE INCLUDED IN THE TEMPORARY DEBENTURE ONLY — THIS DEBENTURE IS A TEMPORARY DEBENTURE FOR
PURPOSES OF REGULATION S UNDER THE SECURITIES ACT (AS DEFINED BELOW). NEITHER THIS TEMPORARY
DEBENTURE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE
INDENTURE REFERRED TO BELOW. NO BENEFICIAL OWNERS OF THIS TEMPORARY DEBENTURE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN
DELIVERED PURSUANT TO THE TERMS OF THE INDENTURE.]



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



     THIS OBLIGATION IS SUBORDINATED TO CLAIMS OF DEPOSITORS AND ALL OTHER CREDITORS OF THE BANK,
IS UNSECURED, AND IS INELIGIBLE AS COLLATERAL FOR A LOAN BY THE BANK.



     THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW (INCLUDING 12
U.S.C. 1811 ET SEQ. AND 12 C.F.R. PART 335 PROMULGATED THEREUNDER (THE “STATE NONMEMBER BANK
SECURITIES LAWS”)) AND NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE
OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND ANY OTHER APPLICABLE SECURITIES LAW, INCLUDING THE



A-1









 







STATE NONMEMBER BANK SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY ONLY (A) TO THE BANK, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER, AS APPLICABLE, THE SECURITIES ACT OR
THE STATE NONMEMBER BANK SECURITIES LAWS, (C) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS
THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A, (D) TO A
NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE)
OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE
MEANING OF SUBPARAGRAPH (A) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR THE STATE NONMEMBER BANK SECURITIES LAWS, OR (F)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF, AS APPLICABLE, THE
SECURITIES ACT OR THE STATE NONMEMBER BANK SECURITIES LAWS, SUBJECT TO THE BANK’S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY
BE OBTAINED FROM THE BANK.



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



     THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN AGGREGATE
PRINCIPAL AMOUNT OF NOT LESS THAN $100,000.00 AND MULTIPLES OF $1,000.00 IN EXCESS THEREOF. ANY
ATTEMPTED TRANSFER OF THIS



A-2









 







SECURITY IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000.00 SHALL BE
DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.



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



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



     [CUSIP NO. [___] **To be inserted at the request of the Holder]



Floating Rate Junior Subordinated Debenture




of




United Commercial Bank




June 21, 2007




     United Commercial Bank, a state nonmember bank organized under the laws of California (the
“Bank” which term includes any successor Person under the Indenture hereinafter referred to), for
value received promises to pay to [                                        ] or
registered assigns, the principal sum of [                    ] dollars
($[                    ].00) on September 15, 2022, and to pay interest on said principal sum from June
21, 2007, or from the most recent Interest Payment Date (as defined below) to which interest has
been paid or duly provided for, quarterly in arrears on March 15, June 15, September 15 and
December 15 of each year or if such day is not a Business Day, then the next succeeding Business
Day (each such date, an “Interest Payment Date”) (it being understood that interest accrues for any
such non-Business Day), commencing on the Interest Payment Date in September 2007, at an annual
rate equal to [RATE]% beginning on (and including) the date of original issuance and ending on (but
excluding) the Interest Payment Date in September 2007 and at an annual rate for each successive
period beginning on (and including) the Interest Payment Date in September 2007, and each
succeeding Interest Payment Date, and ending on (but excluding) the next succeeding Interest
Payment Date (each a “Distribution Period”), equal to 3-Month LIBOR, determined as described below,
plus 1.34% (the “Coupon Rate”), applied to the principal amount hereof, until the principal hereof
is paid or duly provided for or made available for payment, and on any overdue principal and
(without duplication and to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest (including Additional Interest) at the
Interest Rate in effect for each applicable period, compounded quarterly, from the dates such
amounts are due until they are paid or made available for payment. The amount of interest payable
for any period will be computed on the basis of the actual number of days in the Distribution
Period concerned divided by 360. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Debenture (or one or more Predecessor Securities) is registered at the
close of business on the regular record date for such interest installment, which shall be fifteen
Business Days prior to the day on which the relevant Interest Payment Date occurs. Any such
interest installment not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such regular record date and may be paid to the Person in whose name this
Debenture (or one or more Predecessor Securities) is registered at the close of business on a
special record date.



A-3









 





     “3-Month LIBOR” as used herein, means the London interbank offered interest rate for
three-month U.S. dollar deposits determined by the Trustee in the following order of priority: (i)
the rate (expressed as a percentage per annum) for U.S. dollar deposits having a three-month
maturity that appears on Reuters Page LIBOR01 as of 11:00 a.m. (London time) on the related
Determination Date (“Reuters Page LIBOR01” means the display designated as “LIBOR01” on Reuters or
such other page as may replace Reuters Page LIBOR01 on that service or such other service or
services as may be nominated by the British Bankers’ Association as the information vendor for the
purpose of displaying London interbank offered rates for U.S. dollar deposits); (ii) if such rate
cannot be identified on the related Determination Date, the Trustee will request the principal
London offices of four leading banks in the London interbank market to provide such banks’ offered
quotations (expressed as percentages 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. (London time) on such
Determination Date. If at least two quotations are provided, 3-Month LIBOR will be the arithmetic
mean of such quotations; (iii) if fewer than two such quotations are provided as requested in
clause (ii) above, the Trustee will request four major New York City banks to provide such banks’
offered quotations (expressed as percentages per annum) to leading European banks for loans in U.S.
dollars as of 11:00 a.m. (London time) on such Determination Date. If at least two such quotations
are provided, 3-Month LIBOR will be the arithmetic mean of such quotations; and (iv) if fewer than
two such quotations are provided as requested in clause (iii) above, 3-Month LIBOR will be a
3-Month LIBOR determined with respect to the Distribution Period immediately preceding such current
Distribution Period. If the rate for U.S. dollar deposits having a three-month maturity that
initially appears on Reuters Page LIBOR01 as of 11:00 a.m. (London time) on the related
Determination Date is superseded on the Reuters Page LIBOR01 by a corrected rate by 12:00 noon
(London time) on such Determination Date, then the corrected rate as so substituted on the
applicable page will be the applicable 3-Month LIBOR for such Determination Date. As used herein,
“Determination Date” means the date that is two London Banking Days (i.e., a business day in which
dealings in deposits in U.S. dollars are transacted in the London interbank market) preceding the
commencement of the relevant Distribution Period.



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



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



     The principal of and interest on this Debenture shall be payable at the office or agency of
the Trustee (or other paying agent appointed by the Bank) maintained for that purpose in any coin
or currency of the United States of America that at the time of payment is legal tender for payment
of public and private debts; provided, however, that payment of interest may be
made by check mailed to the registered holder at such address as shall appear in the Debenture
Register if a request for a wire transfer by such holder has not been received by the Bank or by
wire transfer to an account appropriately designated by the holder hereof.



     The indebtedness of the Bank evidenced by this Debenture shall be subordinate and junior in
right of payment to all claims (including post default interest in the case of liquidation of the
Bank) against the Bank, incurred, assumed or guaranteed by the Bank, having the same priority as
the Bank’s obligations to its depositors, its obligations under bankers’ acceptances and letters of
credit, and its obligations to any other creditors (including its obligations to the Federal
Reserve, FDIC, and any rights acquired by the FDIC as a result of loans made by the FDIC to the
Bank or the purchase or guarantee of



A-4









 







any of its assets by the FDIC pursuant to the provisions of 12 USC §1823(c), (d) or (e)),
whether now outstanding or hereafter incurred, or any higher priority, and the principal, premium,
if any, and interest in respect thereof, whether incurred on or prior to the date of this Indenture
or thereafter incurred. Notwithstanding the foregoing, the indebtedness of the Bank evidenced by
this Debenture shall not be subordinate and junior in right of payment to obligations with respect
to which in the instrument creating or evidencing the same, or pursuant to which the same is
outstanding, it is provided that such obligations are pari passu, junior or otherwise not superior
in right of payment to the Debentures. The obligations that are senior in right of payment to this
Debenture shall continue to be senior and be entitled to the subordination provisions irrespective
of any amendment, modification or waiver of any term of such senior obligations.



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



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



Signatures appear on the following page




A-5









 








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



	 	 	 	 	 
	 	UNITED COMMERCIAL BANK

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



CERTIFICATE OF AUTHENTICATION





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



	 	 	 	 	 
	 	WILMINGTON TRUST COMPANY, as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Officer 	 
	 	 	 	 
	 




A-6









 





[FORM OF REVERSE OF DEBENTURE]




     This Debenture is one of the floating rate junior subordinated debentures of the Bank, all
issued or to be issued under and pursuant to the Indenture dated as of June 21, 2007 (the
“Indenture”), duly executed and delivered between the Bank and the Trustee, to which Indenture
reference is hereby made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Bank and the holders of the Debentures. The
Debentures are limited in aggregate principal amount as specified in the Indenture.



     The Bank shall have the right to redeem the Debentures, in whole or in part, but in all cases
in a principal amount with integral multiples of $1,000.00, on any Interest Payment Date on or
after the Interest Payment Date in June 2012, at the Redemption Price.



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



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



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



     In case an Event of Default shall have occurred and be continuing, upon demand of the Trustee,
the principal of all of the Debentures shall become due and payable in the manner, with the effect
and subject to the conditions provided in the Indenture, including the receipt of any and all
required regulatory approvals.



     The Indenture contains provisions permitting the Bank and the Trustee, with the consent of the
holders of not less than a majority in aggregate principal amount of the Debentures at the time
outstanding, to execute supplemental indentures for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders of the Debentures;
provided, however, that no such supplemental indenture shall without the consent of
the holders of each Debenture then outstanding and affected thereby (i) change the fixed maturity
of any Debenture, or reduce the principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of interest thereon, or reduce any amount payable on redemption
thereof or make the principal thereof or any interest or premium thereon payable in any coin or
currency other than that provided in the Debentures, or impair or affect the right of any
Securityholder to institute suit for payment thereof or impair the right of repayment, if any, at
the option of the holder, or (ii) reduce the aforesaid percentage of Debentures the holders of
which are required to consent to any such supplemental indenture.



     The Indenture also contains provisions permitting the holders of a majority in aggregate
principal amount of the Debentures at the time outstanding on behalf of the holders of all of the
Debentures to waive (or modify any previously granted waiver of) any past Default, and its
consequences, except a default (a) in the payment of principal of, premium, if any, or interest on
any of the Debentures or (b) in respect of covenants or provisions hereof which cannot be modified
or amended without the consent of the holder of each Debenture affected. Upon any such waiver, the
default covered thereby shall be deemed to be cured for all purposes of the Indenture and the Bank,
the Trustee and the holders of the



A-7









 







Debentures shall be restored to their former positions and rights hereunder, respectively; but
no such waiver shall extend to any subsequent or other default or Default or impair any right
consequent thereon. Whenever any default or Default hereunder shall have been waived as permitted
by the Indenture, said default or Default shall for all purposes of the Debentures and the
Indenture be deemed to have been cured and to be not continuing.



     In the event of any insolvency, receivership, conservatorship, reorganization, readjustment of
debt, marshaling of assets and liabilities or similar proceedings or any liquidation or winding up
of or relating to the Bank, whether voluntary or involuntary, all such obligations shall be
entitled to be paid in full before any payment shall be made on account of the principal of, or
premium, if any, or interest (including Additional Interest), on this Debenture. In the event of
any such proceedings, after payment in full of all sums owing on such prior obligations, the holder
of this Debenture, together with any obligations of the Bank ranking on a parity with the
Debentures, shall be entitled to be paid from the remaining assets of the Bank the unpaid principal
thereof and any unpaid premium, if any, and interest (including Additional Interest) before any
payment or other distribution, whether in cash, property, or otherwise, shall be made on account of
any capital stock or any obligations of the Bank ranking junior to the Debentures. Nothing herein
shall impair the obligation of the Bank, which is absolute and unconditional, to pay the principal
of and any premium and interest (including Additional Interest) on this Debenture according to its
terms.



     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 the Indenture and subject to the transfer restrictions and limitations as may be contained
herein and therein from time to time, this Debenture is transferable by the holder hereof on the
Debenture Register of the Bank. Upon due presentment for registration of transfer of any Debenture
at the Principal Office of the Trustee or at any office or agency of the Bank maintained for such
purpose as provided in Section 3.2 of the Indenture, the Bank shall execute, the Bank or the
Trustee shall register and the Trustee or the Authenticating Agent shall authenticate and make
available for delivery in the name of the transferee or transferees a new Debenture for a like
aggregate principal amount. All Debentures presented for registration of transfer or for exchange
or payment shall (if so required by the Bank or the Trustee or the Authenticating Agent) be duly
endorsed by, or be accompanied by a written instrument or instruments of transfer in form
satisfactory to the Bank and the Trustee or the Authenticating Agent duly executed by the holder or
his attorney duly authorized in writing. No service charge shall be made for any exchange or
registration of transfer of Debentures, but the Bank or the Trustee may require payment of a sum
sufficient to cover any tax, fee or other governmental charge that may be imposed in connection
therewith.



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



     No recourse for the payment of the principal of or premium, if any, or interest on any
Debenture, or for any claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Bank in the Indenture or in any supplemental
indenture, or in



A-8









 







any such Debenture, or because of the creation of any indebtedness represented thereby, shall
be had against any incorporator, stockholder, employee, officer or director, as such, past, present
or future, of the Bank or of any successor Person of the Bank, either directly or through the Bank
or any successor Person of the Bank, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise, it being expressly understood that
all such liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of the Indenture and the issue of the Debentures.



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



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




A-9









 








EXHIBIT B




FORM OF




REGULATION S CERTIFICATE




August 1, 2007




     I, [                    ], a [                    ] of Preferred Term Securities
XXVI, Ltd., an exempted company with limited liability duly incorporated under the laws of the
Cayman Islands (the “Company”), hereby request that Wilmington Trust Company (“WTC”), trustee under
that certain Indenture dated as of June 21, 2007 between United Commercial Bank and WTC (the
“Indenture”) deliver a Permanent Debenture (as that term is defined in the Indenture) to The Bank
of New York, trustee under that certain Indenture dated as of June 21, 2007 among the Company,
Preferred Term Securities XXVI, Inc. and The Bank of New York in the form set forth as Exhibit A to
the Indenture, without the restrictive legend relating to the Temporary Debenture (as that term is
defined in the Indenture). In connection with the delivery of such Permanent Debenture, the
Company hereby certifies as follows:




     (i) the Company is not a “U.S. Person” as such term is defined in Rule 902 under the
United States Securities Act of 1933, as amended; and




     (ii) the Company has not acquired the Temporary Debenture and will not be acquiring the
Permanent Debenture for the account or benefit of any such U.S. Person.



     IN WITNESS WHEREOF, I have hereunto signed my name as of the date first written above.



	 	 	 	 	 	 	 
	 	 	PREFERRED TERM SECURITIES XXVI, LTD.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 









B-1









 








EXHIBIT C




FORM OF CERTIFICATE TO TRUSTEE




     Pursuant to Section 3.5 of the Indenture between United Commercial Bank, as the Bank (the
“Bank”), and Wilmington Trust Company, as Trustee, dated as of June 21, 2007 (the “Indenture”), the
undersigned hereby certifies as follows:




	 	1.	 	In my capacity as an officer of the Bank, I would normally have knowledge of
any default by the Bank during the last fiscal year in the performance of any covenants
of the Bank contained in the Indenture.
	 
	 	2.	 	[To my knowledge, the Bank is not in default in the performance of any
covenants contained in the Indenture.
	 
	 	 	 	or, alternatively:
	 
	 	 	 	I am aware of the default(s) in the performance of covenants in the Indentures, as
specified below.]





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



     IN WITNESS WHEREOF, the undersigned has executed this Certificate.



Date:



	 	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 







C-1









 








EXHIBIT D




FORM OF QUARTERLY REPORT




The Bank of New York

101 Barclay Street, 7E

New York, New York 10286

Attention: CDO Transaction Management Group




BANK

As of [March 31, June 30, September 30 or December 31], 20___




	 	 	 	 	 
	Tier 1 to Risk Weighted Assets
	 	 	                    	%
	 
	 	 	 	 
	Non-Performing Assets to Loans and OREO
	 	 	                    	%
	 
	 	 	 	 
	Ratio of Reserves to Non-Performing Loans
	 	 	                    	%
	 
	 	 	 	 
	Ratio of Net Charge-Offs to Loans
	 	 	                    	%
	 
	 	 	 	 
	Return on Average Assets (annualized)**
	 	 	                    	%
	 
	 	 	 	 
	Net Interest Margin (annualized)**
	 	 	                    	%
	 
	 	 	 	 
	Efficiency Ratio
	 	 	                    	%
	 
	 	 	 	 
	Ratio of Loans to Assets
	 	 	                    	%
	 
	 	 	 	 
	Ratio of Loans to Deposits
	 	 	                    	%
	 
	 	 	 	 
	Total Assets
	 	$	                    	 
	 
	 	 	 	 
	Year to Date Income
	 	$	                    	 








 




			
	*A	 	table describing the quarterly report calculation procedures is provided on page C-2
	 
	**	 	To annualize Return on Average Assets and Net Interest Margin do the following:
	 
	1st	 	Quarter-multiply income statement item by 4, then divide by balance sheet item(s)
	 
	2nd	 	Quarter-multiply income statement item by 2,then divide by balance sheet item(s)
	 
	3rd	 	Quarter-divide income statement item by 3, then multiply by 4, then divide by
balance sheet item(s)
	 
	4th	 	Quarter-should already be an annual number
	 
	NO ADJUSTMENT SHOULD BE MADE TO BALANCE SHEET ITEMS





	 	 	 	 	 
	cc:

	 	FTN Financial Capital Markets
	 	Keefe, Bruyette & Woods, Inc.
	 

	 	845 Crossover Lane, Suite 150
	 	787 7th Avenue, 4th Floor
	 

	 	Memphis, Tennessee 38117
	 	New York, New York 10019\
	 

	 	Attention: Structured Finance Group
	 	Attention: Mitchell Kleinman, General Counsel






D-1









 








Financial Definitions




	 	 	 
	Report Item	 	Description of Calculation
	“Tier 1 Capital” to Risk
Weighted Assets

	 	Tier 1 Risk Ratio: Core Capital (Tier 1)/Risk-Adjusted
Assets
	 
	 	 
	Non-Performing Assets to
Loans and OREO

	 	Total Nonperforming Assets (NPLs+Foreclosed
Real Estate+Other Nonaccrual & Repossessed
Assets)/ Total Loans + Foreclosed Real
Estate
	 
	 	 
	Ratio of Reserves to
Non-Performing Loans

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

	 	Net charge offs for the period as a
percentage of average loans.
	 
	 	 
	Return on Assets

	 	Net Income as a percentage of Assets.
	 
	 	 
	Net Interest Margin

	 	(Net Interest Income Fully Taxable
Equivalent, if available / Average Earning
Assets)
	 
	 	 
	Efficiency Ratio

	 	(Noninterest Expense)/ (Net Interest Income
Fully Taxable Equivalent, if available, plus
Noninterest Income)
	 
	 	 
	Ratio of Loans to Assets

	 	Total Loans & Leases (Net of Unearned Income
& Gross of Reserve)/ Total Assets
	 
	 	 
	Ratio of Loans to Deposits

	 	Total Loans & Leases (Net of Unearned Income
& Gross of Reserve)/ Total Deposits
(Includes Domestic and Foreign Deposits)
	 
	 	 
	Total Assets

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

	 	The sum of income (loss) before
extraordinary items and other adjustments
and extraordinary items; and other
adjustments, net of income taxes.







D-2