**Exhibit 10.1**

 

THEBANK HOLDINGS,as Company

 

INDENTUREDated as of November 3, 2005U.S. BANK NATIONAL ASSOCIATION,As TrusteeJUNIOR SUBORDINATED DEBT SECURITIES 

 

Due December 15, 2035

 

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**TABLECONTENTS**

 
| ARTICLE I     |
|--------------------|
| DEFINITIONS        |
|               |   |
| SECTION 1.01. | Definitions |   |
|               |   |   |
|               | Additional  Interest |   |
|               |   |   |
|               | Additional  Provisions |   |
|               |   |   |
|               | Authenticating  Agent |   |
|               |   |   |
|               | Bankruptcy  Law |   |
|               |   |   |
|               | Board  of Directors |   |
|               |   |   |
|               | Board  Resolution |   |
|               |   |   |
|               | Business  Day |   |
|               |   |   |
|               | Calculation  Agent |   |
|               |   |   |
|               | Capital  Securities |   |
|               |   |   |
|               | Capital  Securities Guarantee |   |
|               |   |   |
|               | Capital  Treatment Event |   |
|               |   |   |
|               | Certificate |   |
|               |   |   |
|               | Common  Securities |   |
|               |   |   |
|               | Company |   |
|               |   |   |
|               | Debt  Security |   |
|               |   |   |
|               | Debt  Security Register |   |
|               |   |   |
|               | Declaration |   |
|               |   |   |
|               | Default |   |
|               |   |   |
|               | Defaulted  Interest |   |
|               |   |   |
|               | Deferred  Interest |   |
|               |   |   |
|               | Event of  Default |   |
|                    |  |  |  |

 

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|   | Extension  Period                |   |
|--------|----------------------------------|--------|
|   |                             |   |
|   | Federal  Reserve                 |   |
|   |                             |   |
|   | Indenture                        |   |
|   |                             |   |
|   | Initial  Purchaser               |   |
|   |                             |   |
|   | Institutional  Trustee           |   |
|   |                             |   |
|   | Interest  Payment Date           |   |
|   |                             |   |
|   | Interest  Rate                   |   |
|   |                             |   |
|   | Investment  Company Event        |   |
|   |                             |   |
|   | LIBOR                            |   |
|   |                             |   |
|   | LIBOR Banking Day                |   |
|   |                             |   |
|   | LIBOR  Business Day              |   |
|   |                             |   |
|   | LIBOR  Determination Date        |   |
|   |                             |   |
|   | Liquidation  Amount              |   |
|   |                             |   |
|   | Maturity  Date                   |   |
|   |                             |   |
|   | Notice                           |   |
|   |                             |   |
|   | Officers’  Certificate      |   |
|   |                             |   |
|   | Opinion  of Counsel              |   |
|   |                             |   |
|   | OTS                              |   |
|   |                             |   |
|   | Outstanding                      |   |
|   |                             |   |
|   | Paying  Agent                    |   |
|   |                             |   |
|   | Person                           |   |
|   |                             |   |
|   | Predecessor  Security            |   |
|   |                             |   |
|   | Principal  Office of the Trustee |   |
|   |                             |   |
|   | Redemption  Date                 |   |

 

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|               | Redemption  Price                                          |   |
|--------------------|------------------------------------------------------------|--------|
|               |                                                       |   |
|               | Responsible  Officer                                       |   |
|               |                                                       |   |
|               | Securityholder                                             |   |
|               |                                                       |   |
|               | Senior  Indebtedness                                       |   |
|               |                                                       |   |
|               | Special  Event                                             |   |
|               |                                                       |   |
|               | Special  Redemption Date                                   |   |
|               |                                                       |   |
|               | Subsidiary                                                 |   |
|               |                                                       |   |
|               | Tax Event                                                  |   |
|               |                                                       |   |
|               | Trust                                                      |   |
|               |                                                       |   |
|               | Trust  Indenture Act                                       |   |
|               |                                                       |   |
|               | Trust  Securities                                          |   |
|               |                                                       |   |
|               | Trustee                                                    |   |
|               |                                                       |   |
|               | United  States                                             |   |
|               |                                                       |   |
|               | U.S. Person                                                |   |
|               |                                                       |   |
| ARTICLE II    |
| DEBT SECURITIES    |
|               |                                                       |   |
| SECTION 2.01. | Authentication  and Dating                                 |   |
|               |                                                       |   |
| SECTION 2.02. | Form of  Trustee’s Certificate of Authentication |   |
|               |                                                       |   |
| SECTION 2.03. | Form and  Denomination of Debt Securities             |   |
|               |                                                       |   |
| SECTION 2.04. | Execution  of Debt Securities                              |   |
|               |                                                       |   |
| SECTION 2.05. | Exchange  and Registration of Transfer of Debt Securities  |   |
|               |                                                       |   |
| SECTION 2.06. | Mutilated,  Destroyed, Lost or Stolen Debt Securities      |   |
|               |                                                       |   |
| SECTION 2.07. | Temporary  Debt Securities                                 |   |
|               |                                                       |   |
| SECTION 2.08. | Payment of  Interest                                       |   |
|                    |                                                            |        |  |

 

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| SECTION 2.09.                                                   | Cancellation  of Debt Securities Paid, etc                                           |   |
|----------------------------------------------------------------------|--------------------------------------------------------------------------------------|--------|
|                                                                 |                                                                                 |   |
| SECTION 2.10.                                                   | Computation  of Interest                                                             |   |
|                                                                 |                                                                                 |   |
| SECTION 2.11.                                                   | Extension  of Interest Payment Period                                                |   |
|                                                                 |                                                                                 |   |
| SECTION 2.12.                                                   | CUSIP  Numbers                                                                       |   |
|                                                                 |                                                                                 |   |
| ARTICLE III                                                     |
| PARTICULAR COVENANTS OF THE COMPANY                                  |
|                                                                 |                                                                                 |   |
| SECTION 3.01.                                                   | Payment of Principal, Premium and Interest; Agreed Treatment of the  Debt Securities |   |
|                                                                 |                                                                                 |   |
| SECTION 3.02.                                                   | Offices for Notices and Payments, etc                                                |   |
|                                                                 |                                                                                 |   |
| SECTION 3.03.                                                   | Appointments to Fill Vacancies in Trustee’s Office                              |   |
|                                                                 |                                                                                 |   |
| SECTION 3.04.                                                   | Provision as to Paying Agent                                                         |   |
|                                                                 |                                                                                 |   |
| SECTION 3.05.                                                   | Certificate to Trustee                                                               |   |
|                                                                 |                                                                                 |   |
| SECTION 3.06.                                                   | Additional Interest                                                                  |   |
|                                                                 |                                                                                 |   |
| SECTION 3.07.                                                   | Compliance with Consolidation Provisions                                             |   |
|                                                                 |                                                                                 |   |
| SECTION 3.08.                                                   | Limitation on Dividends                                                              |   |
|                                                                 |                                                                                 |   |
| SECTION 3.09.                                                   | Covenants as to the Trust                                                            |   |
|                                                                 |                                                                                 |   |
| ARTICLE IV                                                      |
| LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE                     |
|                                                                 |                                                                                 |   |
| SECTION 4.01.                                                   | Securityholders’ Lists                                                          |   |
|                                                                 |                                                                                 |   |
| SECTION 4.02.                                                   | Preservation and Disclosure of Lists                                                 |   |
|                                                                 |                                                                                 |   |
| ARTICLE V                                                       |
| REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT |
|                                                                 |                                                                                 |   |
| SECTION 5.01.                                                   | Events of Default                                                                    |   |
|                                                                 |                                                                                 |   |
| SECTION 5.02.                                                   | Payment of Debt Securities on Default; Suit Therefor                                 |   |
|                                                                 |                                                                                 |   |
| SECTION 5.03.                                                   | Application of Moneys Collected by Trustee                                           |   |

 

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| SECTION 5.04.             | Proceedings by Securityholders                                                                           |   |
|--------------------------------|----------------------------------------------------------------------------------------------------------|--------|
|                           |                                                                                                     |   |
| SECTION 5.05.             | Proceedings by Trustee                                                                                   |   |
|                           |                                                                                                     |   |
| SECTION 5.06.             | Remedies Cumulative and Continuing                                                                       |   |
|                           |                                                                                                     |   |
| SECTION 5.07.             | Direction of Proceedings and Waiver of Defaults by Majority of  Securityholders                          |   |
|                           |                                                                                                     |   |
| SECTION 5.08.             | Notice of Defaults                                                                                       |   |
|                           |                                                                                                     |   |
| SECTION 5.09.             | Undertaking to Pay Costs                                                                                 |   |
|                           |                                                                                                     |   |
| ARTICLE VI                |
| CONCERNING THE TRUSTEE         |
|                           |                                                                                                     |   |
| SECTION 6.01.             | Duties and Responsibilities of Trustee                                                                   |   |
|                           |                                                                                                     |   |
| SECTION 6.02.             | Reliance on Documents, Opinions, etc                                                                     |   |
|                           |                                                                                                     |   |
| SECTION 6.03.             | No Responsibility for Recitals, etc                                                                      |   |
|                           |                                                                                                     |   |
| SECTION 6.04.             | Trustee, Authenticating Agent, Paying Agents, Transfer Agents or  Registrar May Own Debt Securities |   |
|                           |                                                                                                     |   |
| SECTION 6.05.             | Moneys to be Held in Trust                                                                               |   |
|                           |                                                                                                     |   |
| SECTION 6.06.             | Compensation and Expenses of Trustee                                                                     |   |
|                           |                                                                                                     |   |
| SECTION 6.07.             | Officers’ Certificate as Evidence                                                                   |   |
|                           |                                                                                                     |   |
| SECTION 6.08.             | Eligibility of Trustee                                                                                   |   |
|                           |                                                                                                     |   |
| SECTION 6.09.             | Resignation or Removal of Trustee, Calculation Agent, Paying Agent or  Debt Security Registrar           |   |
|                           |                                                                                                     |   |
| SECTION 6.10.             | Acceptance by Successor                                                                                  |   |
|                           |                                                                                                     |   |
| SECTION 6.11.             | Succession by Merger, etc                                                                                |   |
|                           |                                                                                                     |   |
| SECTION 6.12.             | Authenticating Agents                                                                                    |   |
|                           |                                                                                                     |   |
| ARTICLE VII               |
| CONCERNING THE SECURITYHOLDERS |
|                           |                                                                                                     |   |
| SECTION 7.01.             | Action by Securityholders                                                                                |   |

 

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| SECTION 7.02.             | Proof of Execution by Securityholders                                        |   |
|--------------------------------|------------------------------------------------------------------------------|--------|
|                           |                                                                         |   |
| SECTION 7.03.             | Who Are Deemed Absolute Owners                                               |   |
|                           |                                                                         |   |
| SECTION 7.04.             | Debt Securities Owned by Company Deemed Not Outstanding                      |   |
|                           |                                                                         |   |
| SECTION 7.05.             | Revocation of Consents; Future Securityholders Bound                         |   |
|                           |                                                                         |   |
| ARTICLE VIII              |
| SECURITYHOLDERS’ MEETINGS |
|                           |                                                                         |   |
| SECTION 8.01.             | Purposes of Meetings                                                         |   |
|                           |                                                                         |   |
| SECTION 8.02.             | Call of Meetings by Trustee                                                  |   |
|                           |                                                                         |   |
| SECTION 8.03.             | Call of Meetings by Company or Securityholders                               |   |
|                           |                                                                         |   |
| SECTION 8.04.             | Qualifications for Voting                                                    |   |
|                           |                                                                         |   |
| SECTION 8.05.             | Regulations                                                                  |   |
|                           |                                                                         |   |
| SECTION 8.06.             | Voting                                                                       |   |
|                           |                                                                         |   |
| SECTION 8.07.             | Quorum; Actions                                                              |   |
|                           |                                                                         |   |
| SECTION 8.08.             | Written Consent Without a Meeting                                            |   |
|                           |                                                                         |   |
| ARTICLE IX                |
| SUPPLEMENTAL INDENTURES        |
|                           |                                                                         |   |
| SECTION 9.01.             | Supplemental Indentures without Consent of Securityholders                   |   |
|                           |                                                                         |   |
| SECTION 9.02.             | Supplemental Indentures with Consent of Securityholders                      |   |
|                           |                                                                         |   |
| SECTION 9.03.             | Effect of Supplemental Indentures                                            |   |
|                           |                                                                         |   |
| SECTION 9.04.             | Notation on Debt Securities                                                  |   |
|                           |                                                                         |   |
| SECTION 9.05.             | Evidence of Compliance of Supplemental Indenture to be furnished to  Trustee |   |
|                           |                                                                         |   |
| ARTICLE X                 |
| REDEMPTION OF SECURITIES       |
|                           |                                                                         |   |
| SECTION 10.01.            | Optional Redemption                                                          |   |
|                           |                                                                         |   |
| SECTION 10.02.            | Special Event Redemption                                                     |   |

 

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| SECTION 10.03.                                             | Notice of Redemption; Selection of Debt Securities         |   |
|-----------------------------------------------------------------|------------------------------------------------------------|--------|
|                                                            |                                                       |   |
| SECTION 10.04.                                             | Payment of Debt Securities Called for Redemption           |   |
|                                                            |                                                       |   |
| ARTICLE XI                                                 |
| CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE               |
|                                                            |                                                       |   |
| SECTION 11.01.                                             | Company May Consolidate, etc., on Certain Terms       |   |
|                                                            |                                                       |   |
| SECTION 11.02.                                             | Successor Entity to be Substituted                         |   |
|                                                            |                                                       |   |
| SECTION 11.03.                                             | Opinion of Counsel to be Given to Trustee                  |   |
|                                                            |                                                       |   |
| ARTICLE XII                                                |
| SATISFACTION AND DISCHARGE OF INDENTURE                         |
|                                                            |                                                       |   |
| SECTION 12.01.                                             | Discharge of Indenture                                     |   |
|                                                            |                                                       |   |
| SECTION 12.02.                                             | Deposited Moneys to be Held in Trust by Trustee            |   |
|                                                            |                                                       |   |
| SECTION 12.03.                                             | Paying Agent to Repay Moneys Held                          |   |
|                                                            |                                                       |   |
| SECTION 12.04.                                             | Return of Unclaimed Moneys                                 |   |
|                                                            |                                                       |   |
| ARTICLE XIII                                               |
| IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
|                                                            |                                                       |   |
| SECTION 13.01.                                             | Indenture and Debt Securities Solely Corporate Obligations |   |
|                                                            |                                                       |   |
| ARTICLE XIV                                                |
| MISCELLANEOUS PROVISIONS                                        |
|                                                            |                                                       |   |
| SECTION 14.01.                                             | Successors                                                 |   |
|                                                            |                                                       |   |
| SECTION 14.02.                                             | Official Acts by Successor Entity                          |   |
|                                                            |                                                       |   |
| SECTION 14.03.                                             | Surrender of Company Powers                                |   |
|                                                            |                                                       |   |
| SECTION 14.04.                                             | Addresses for Notices, etc                                 |   |
|                                                            |                                                       |   |
| SECTION 14.05.                                             | Governing Law                                              |   |
|                                                            |                                                       |   |
| SECTION 14.06.                                             | Evidence of Compliance with Conditions Precedent           |   |
|                                                            |                                                       |   |
| SECTION 14.07.                                             | Non-Business Days                                          |   |
|                                                            |                                                       |   |
| SECTION 14.08.                                             | Table of Contents, Headings, etc                           |   |

 

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| SECTION 14.09.              | Execution in Counterparts                             |   |
|----------------------------------|-------------------------------------------------------|--------|
|                             |                                                  |   |
| SECTION 14.10.              | Severability                                          |   |
|                             |                                                  |   |
| SECTION 14.11.              | Assignment                                            |   |
|                             |                                                  |   |
| SECTION 14.12.              | Acknowledgment of Rights                              |   |
|                             |                                                  |   |
| ARTICLE XV                  |
| SUBORDINATION OF DEBT SECURITIES |
|                             |                                                  |   |
| SECTION 15.01.              | Agreement to Subordinate                              |   |
|                             |                                                  |   |
| SECTION 15.02.              | Default on Senior Indebtedness                        |   |
|                             |                                                  |   |
| SECTION 15.03.              | Liquidation; Dissolution; Bankruptcy                  |   |
|                             |                                                  |   |
| SECTION 15.04.              | Subrogation                                           |   |
|                             |                                                  |   |
| SECTION 15.05.              | Trustee to Effectuate Subordination                   |   |
|                             |                                                  |   |
| SECTION 15.06.              | Notice by the Company                                 |   |
|                             |                                                  |   |
| SECTION 15.07.              | Rights of the Trustee, Holders of Senior Indebtedness |   |
|                             |                                                  |   |
| SECTION 15.08.              | Subordination May Not Be Impaired                |   |
|                             |                                                  |   |
| EXHIBITS                         |                                                  |   |
|                             |                                                  |   |
| EXHIBIT A                   | FORM OF DEBT SECURITY                            |   |

 

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THIS INDENTURE, dated as of November 3,2005, between The Bank Holdings, abank holding company incorporated in Nevada(hereinafter sometimes called the “Company”), and U.S. Bank NationalAssociation as trustee (hereinafter sometimes called the “Trustee”).

 

W I T N E S S E T H:

 

WHEREAS, for its lawful corporate purposes, the Company has dulyauthorized the issuance of its Junior Subordinated Debt Securities due December 15, 2035 (the “Debt Securities”)under this Indenture and to provide, among other things, for the execution andauthentication, delivery and administration thereof, the Company has dulyauthorized the execution of this Indenture.

 

NOW, THEREFORE, in consideration of the premises, and the purchase ofthe Debt Securities by the holders thereof, the Company covenants and agreeswith the Trustee for the equal and proportionate benefit of the respectiveholders from time to time of the Debt Securities as follows:

 

ARTICLE IDEFINITIONS

 

SECTION 1.01.  Definitions.

 

The terms defined in this Section 1.01 (except as herein otherwiseexpressly provided or unless the context otherwise requires) for all purposesof this Indenture and of any indenture supplemental hereto shall have therespective meanings specified in this Section 1.01. All accounting termsused herein and not expressly defined shall have the meanings assigned to suchterms in accordance with generally accepted accounting principles and the term “generallyaccepted accounting principles” means such accounting principles as aregenerally accepted in the United States at the time of any computation. Thewords “herein,” “hereof’ and “hereunder” and other words of similar importrefer to this Indenture as a whole and not to any particular Article, Section orother subdivision.

 

“Additional Interest“ shallhave the meaning set forth in Section 3.06.

 

“Additional Provisions“ shallhave the meaning set forth in Section 15.01.

 

“Authenticating Agent“ meansany agent or agents of the Trustee which at the time shall be appointed andacting pursuant to Section 6.12.

 

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

 

“Board of Directors“ means theboard of directors or the executive committee or any other duly authorizeddesignated officers of the Company.

 

----

 

“Board Resolution“ means a copy ofa resolution certified by the Secretary or an Assistant Secretary of theCompany to have been duly adopted by the Board of Directors and to be in fullforce and effect on the date of such certification and delivered to theTrustee.

 

“Business Day“ means any day otherthan a Saturday, Sunday or any other day on which banking institutions inBoston, Massachusetts, New York City or the city of the Principal Office of theTrustee or the Company are permitted or required by any applicable law orexecutive order to close.

 

“Calculation Agent“ means thePerson identified as “Trustee” in the first paragraph hereof with respect tothe Debt Securities and the Institutional Trustee with respect to the TrustSecurities.

 

“Capital Securities“ meansundivided beneficial interests in the assets of the Trust which are designatedas “TP Securities” and rank pari passu with Common Securities issued by theTrust; provided, however, that if an Event of Default (as defined in theDeclaration) has occurred and is continuing, the rights of holders of suchCommon Securities to payment in respect of distributions and payments uponliquidation, redemption and otherwise are subordinated to the rights of holdersof such Capital Securities.

 

“Capital Securities Guarantee“means the guarantee agreement that the Company will enter into with U.S. BankNational Association or other Persons that operates directly or indirectly forthe benefit of holders of Capital Securities of the Trust.

 

“Capital Treatment Event“ means, ifthe Company is organized and existing under the laws of the United States orany state thereof or the District of Columbia, the receipt by the Company andthe Trust of an Opinion of Counsel experienced in such matters to the effectthat, as a result of (a) any amendment to, or change in, the laws, rules orregulations of the United States or any political subdivision thereof ortherein, or any rules, guidelines or policies of any applicable regulatoryauthority for the Company or (b) any official or administrativepronouncement or action or decision interpreting or applying such laws, rules orregulations, which amendment or change is effective or which pronouncement,action or decision is announced on or after the date of original issuance ofthe Debt Securities, there is more than an insubstantial risk that, within 90days of the receipt of such opinion, the aggregate Liquidation Amount of theCapital Securities will not be eligible to be treated by the Company as “Tier 1Capital” (or the then equivalent thereof) for purposes of the capital adequacyguidelines of the Federal Reserve (or any successor regulatory authority withjurisdiction over bank or financial holding companies), as then in effect andapplicable to the Company (or if the Company is not a bank holding company,such guidelines applied to the Company as if the Company were subject to suchguidelines); provided, however, that the inability of the Company to treat allor any portion of the aggregate Liquidation Amount of the Capital Securities asTier 1 Capital shall not constitute the basis for a Capital TreatmentEvent, if such inability results from the Company having cumulative preferredstock, minority interests in consolidated subsidiaries, or any other class ofsecurity or interest which the Federal Reserve or OTS, as applicable, may nowor hereafter accord Tier 1 Capital treatment in excess of the amount whichmay now or hereafter qualify for treatment as Tier 1 Capital underapplicable capital adequacy guidelines; provided further, however, that thedistribution of the Debt Securities in connection with the liquidation of

 

2

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

 

“Certificate“ means a certificatesigned by any one of the principal executive officer, the principal financialofficer or the principal accounting officer of the Company.

 

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

 

“Company“ means The Bank Holdings, a bank holding company incorporated in Nevada, and, subject to the provisions of Article XI,shall include its successors and assigns.

 

“Debt Security“ or “Debt Securities”has the meaning stated in the first recital of this Indenture.

 

“Debt Security Register“ has themeaning specified in Section 2.05.

 

“Declaration“ means the Amended andRestated Declaration of Trust of the Trust dated as of November 3, 2005, as amended or supplemented from time totime.

 

“Default“ means any event, act or conditionthat with notice or lapse of time, or both, would constitute an Event ofDefault.

 

“Defaulted Interest“ has the meaningset forth in Section 2.08.

 

“Deferred Interest“ has the meaningset forth in Section 2.11.

 

“Event of Default“ means any eventspecified in Section 5.01, which has continued for the period of time, ifany, and after the giving of the notice, if any, therein designated.

 

“Extension Period“ has the meaning setforth in Section 2.11.

 

“Federal Reserve“ means the Board ofGovernors of the Federal Reserve System. 

 

“Indenture“ means this instrument asoriginally executed or, if amended or supplemented as herein provided, as soamended or supplemented, or both.

 

“InitialPurchaser“ means the initial purchaser of the Capital Securities.

 

“Institutional Trustee“ has themeaning set forth in the Declaration.

 

“Interest Payment Date“ means March 15, June 15,September 15 and December 15 of each year, commencing on December 15, 2005, during the term of thisIndenture.

 

3

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“Interest Payment Period” means the periodfrom and including an Interest Payment Date, or in the case of the firstInterest Payment Period, the original date of issuance of the Debt Securities,to, but excluding, the next succeeding Interest Payment Date or, in the case ofthe last Interest Payment Period, the Redemption Date, Special Redemption Dateor Maturity Date, as the case may be.

 

“Interest Rate“ means, with respect toany Interest Period, a per annum rate of interest, equal to LIBOR, asdetermined on the LIBOR Determination Date for such Interest Payment Date, plus1.42%; provided, however, that theInterest Rate for any Interest Payment Period may not exceed the highest ratepermitted by New York law, as the same may be modified by United States law ofgeneral application.

 

“Investment Company Event“ meansthe receipt by the Company and the Trust of an Opinion of Counsel experiencedin such matters to the effect that, as a result of a change in law orregulation or written change in interpretation or application of law orregulation by any legislative body, court, governmental agency or regulatoryauthority, there is more than an insubstantial risk that the Trust is or,within 90 days of the date of such opinion will be, considered an “investmentcompany” that is required to be registered under the Investment Company Act of1940, as amended, which change or prospective change becomes effective or wouldbecome effective, as the case may be, on or after the date of the originalissuance of the Debt Securities.

 

“LIBOR“ means the London Interbank OfferedRate for U.S. Dollar deposits in Europe as determined by the Calculation Agentaccording to Section 2.10(b).

 

“LIBOR Banking Day“ has the meaning set forthin Section 2.10(b)(1).

 

“LIBOR Business Day“ has the meaningset forth in Section 2.10(b)(1).

 

“LIBOR Determination Date“ has themeaning set forth in Section 2.10(b).

 

“Liquidation Amount“ means theliquidation amount of $1,000 per Trust Security.

 

“Maturity Date“ means December 15, 2035.

 

“Notice“ has the meaning set forth in Section 2.11.

 

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

 

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

 

4

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“OTS“ means the Office of Thrift Supervisionand any successor federal agency that is primarily responsible for regulatingthe activities of savings and loan holding companies.

 

“Outstanding“ means, when used withreference to Debt Securities, subject to the provisions of Section 7.04,as of any particular time, all Debt Securities authenticated and delivered bythe Trustee or the Authenticating Agent under this Indenture, except

 

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

 

(b)           Debt Securities, orportions thereof, for the payment or redemption of which moneys in thenecessary amount shall have been deposited in trust with the Trustee or withany Paying Agent (other than the Company) or shall have been set aside andsegregated in trust by the Company (if the Company shall act as its own PayingAgent); provided, that, if such Debt Securities, or portions thereof,are to be redeemed prior to maturity thereof, notice of such redemption shallhave been given as provided in Articles X and XIV or provision satisfactory tothe Trustee shall have been made for giving such notice; and

 

(c)           Debt Securities paidpursuant to Section 2.06 or in lieu of or in substitution for which otherDebt Securities shall have been authenticated and delivered pursuant to theterms of Section 2.06 unless proof satisfactory to the Company and theTrustee is presented that any such Debt Securities are held by bona fideholders in due course.

 

“Paying Agent“ has the meaning setforth in Section 3.04(e).

 

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

 

“Predecessor Security“ of anyparticular Debt Security means every previous Debt Security evidencing all or aportion of the same debt as that evidenced by such particular Debt Security;and, for the purposes of this definition, any Debt Security authenticated anddelivered under Section 2.06 in lieu of a lost, destroyed or stolen DebtSecurity shall be deemed to evidence the same debt as the lost, destroyed orstolen Debt Security.

 

“Principal Office of the Trustee“means the office of the Trustee, at which at any particular time its corporatetrust business shall be principally administered, which at all times shall belocated within the United States and at the time of the execution of thisIndenture shall be One Federal Street, 3rd Floor, Boston,Massachusetts 02110.

 

“Redemption Date“ has the meaning setforth in Section 10.01.

 

“Redemption Price“ means 100% ofthe principal amount of the Debt Securities being redeemed plus accrued andunpaid interest on such Debt Securities to the Redemption Date.

 

“Responsible Officer“ means, withrespect to the Trustee, any officer within the Principal Office of the Trusteewith direct responsibility for the administration of the Indenture,

 

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including any vice-president, any assistantvice-president, any secretary, any assistant secretary, the treasurer, anyassistant treasurer, any trust officer or other officer of the Principal Officeof the Trustee customarily performing functions similar to those performed byany of the above designated officers and also means, with respect to a particularcorporate trust matter, any other officer to whom such matter is referredbecause of that officer’s knowledge of and familiarity with the particularsubject.

 

“Securityholder,” “holder of DebtSecurities“ or other similar terms, means any Person in whose name at the timea particular Debt Security is registered on the Debt Security Register.

 

“Senior Indebtedness“ means, withrespect to the Company, (i) the principal, premium, if any, and interestin respect of (A) indebtedness of the Company for money borrowed and (B) indebtednessevidenced by securities, debentures, notes, bonds or other similar instrumentsissued by the Company; (ii) all capital lease obligations of the Company; (iii) allobligations of the Company issued or assumed as the deferred purchase price ofproperty, all conditional sale obligations of the Company and all obligationsof the Company under any title retention agreement (but excluding tradeaccounts payable arising in the ordinary course of business); (iv) allobligations of the Company for the reimbursement of any letter of credit, anybanker’s acceptance, any security purchase facility, any repurchase agreementor similar arrangement, any interest rate swap, any other hedging arrangement,any obligation under options or any similar credit or other transaction; (v) allobligations of the type referred to in clauses (i) through (iv) aboveof other Persons for the payment of which the Company is responsible or liableas obligor, guarantor or otherwise; and (vi) all obligations of the typereferred to in clauses (i) through (v) above of other Persons securedby any lien on any property or asset of the Company (whether or not suchobligation is assumed by the Company), whether incurred on or prior to the dateof this Indenture or thereafter incurred, unless, with the prior approval ofthe Federal Reserve if not otherwise generally approved, it is provided in theinstrument creating or evidencing the same or pursuant to which the same isoutstanding, that such obligations are not superior or are pari passu in rightof payment to the Debt Securities; provided, however, that Senior Indebtednessshall not include (A) any debt securities issued to any trust other thanthe Trust (or a trustee of such trust) that is a financing vehicle of the Company(a “financing entity”), in connection with the issuance by such financingentity of equity or other securities in transactions substantially similar instructure to the transactions contemplated hereunder and in the Declaration, (B) anyguarantees of the Company in respect of the equity or other securities of anyfinancing entity referred to in clause (A) above or (C) any otherinstruments classified as subordinated or *pari passu* tothe Debt Securities by the Federal Reserve.

 

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

 

“Special Redemption Date“ has themeaning set forth in Section 10.02.

 

“SpecialRedemption Price” means, with respect to the redemption of any Debt Securityfollowing a Special Event, an amount in cash equal to 103.525% of the principalamount of Debt Securities to be redeemed prior to December 15, 2006 and thereafter equal to the

 

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percentage ofthe principal amount of the Debt Securities that is specified below for theSpecial Redemption Date plus, in each case, unpaid interest accrued thereon tothe Special Redemption Date:

 

| **Special  Redemption During the  12-Month Period Beginning December 15** | ** ** | **Percentage of Principal Amount** | ** ** |
|--------------------------------------------------------------------------------|------------|------------------------------------|------------|
|                                                                           |       |                               |       |
| 2006                                                                           |       | 103.140                            | %          |
| 2007                                                                           |       | 102.355                            | %          |
| 2008                                                                           |       | 101.570                            | %          |
| 2009                                                                           |       | 100.785                            | %          |
| 2010 and  thereafter                                                           |       | 100.000                            | %          |

 

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

 

“Tax Event“ means the receipt by theCompany and the Trust of an Opinion of Counsel experienced in such matters tothe effect that, as a result of any amendment to or change (including anyannounced prospective change) in the laws or any regulations thereunder of theUnited States or any political subdivision or taxing authority thereof ortherein, or as a result of any official administrative pronouncement (includingany private letter ruling, technical advice memorandum, regulatory procedure,notice or announcement (an “Administrative Action”)) or judicial decisioninterpreting or applying such laws or regulations, regardless of whether suchAdministrative Action or judicial decision is issued to or in connection with aproceeding involving the Company or the Trust and whether or not subject toreview or appeal, which amendment, clarification, change, Administrative Actionor decision is enacted, promulgated or announced, in each case on or after thedate of original issuance of the Debt Securities, there is more than aninsubstantial risk that: (i) the Trust is, or will be within 90 days ofthe date of such opinion, subject to United States federal income tax withrespect to income received or accrued on the Debt Securities; (ii) interestpayable by the Company on the Debt Securities is not, or within 90 days of thedate of such opinion, will not be, deductible by the Company, in whole or inpart, for United States federal income tax purposes; or (iii) the Trustis, or will be within 90 days of the date of such opinion, subject to orotherwise required to pay, or required to withhold from distributions toholders of Trust Securities, more than a de minimis amount of other taxes(including withholding taxes), duties, assessments or other governmentalcharges.

 

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“Trust“ means TheBank Holdings Statutory Trust I, the Connecticut statutory trust, or anyother similar trust created for the purpose of issuing Capital Securities inconnection with the issuance of Debt Securities under this Indenture, of whichthe Company is the sponsor.

 

“Trust Indenture Act“ means the TrustIndenture Act of 1939, as amended from time-to-time, or any successorlegislation.

 

“Trust Securities“ means CommonSecurities and Capital Securities of The BankHoldings Statutory Trust I.

 

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

 

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

 

“U.S. Person“ has the meaning given toUnited States Person as set forth in Section 7701(a)(30) of the InternalRevenue Code of 1986, as amended.

 

ARTICLE IIDEBT SECURITIES

 

SECTION 2.01.  Authentication and Dating.

 

Upon the execution and delivery of this Indenture, or from time to timethereafter, Debt Securities in an aggregate principal amount not in excess of $15,464,000 may be executed and delivered by theCompany to the Trustee for authentication, and the Trustee shall thereuponauthenticate and make available for delivery said Debt Securities to or uponthe written order of the Company, signed by its Chairman of the Board ofDirectors, Vice Chairman, President or Chief Financial Officer or one of itsVice Presidents, without any further action by the Company hereunder. Inauthenticating such Debt Securities, and accepting the additionalresponsibilities under this Indenture in relation to such Debt Securities, theTrustee shall be entitled to receive, and (subject to Section 6.01) shallbe fully protected in relying upon a copy of any Board Resolution or BoardResolutions relating thereto and, if applicable, an appropriate record of anyaction taken pursuant to such resolution, in each case certified by theSecretary or an Assistant Secretary or other officers with appropriatedelegated authority of the Company as the case may be.

 

The Trustee shall have the right to decline to authenticate and deliverany Debt Securities under this Section if the Trustee, being advised bycounsel, determines that such action may not lawfully be taken or if aResponsible Officer of the Trustee in good faith shall determine that suchaction would expose the Trustee to personal liability to existingSecurityholders.  The Trustee shall alsobe entitled to receive an opinion of counsel to the effect that (1) allconditions precedent to the execution, delivery and authentication of theSecurities have been complied with; (2) the Securities are not required tobe registered under the Securities Act; and (3) the Indenture is notrequired to be qualified under the Trust Indenture Act.

 

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The definitive Debt Securities shall be typed, printed, lithographed orengraved on steel engraved borders or may be produced in any other manner, allas determined by the officers executing such Debt Securities, as evidenced bytheir execution of such Debt Securities.

 

SECTION 2.02.  Form of Trustee’s Certificate ofAuthentication.

 

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

 

This is one of the Debt Securities referred to in the within-mentionedIndenture.

 

U.S. Bank National Association, not in its individual capacity butsolely as Trustee

 
|   | By                    |   |   |
|--------|-----------------------|--------|--------|
|   | Authorized  Signatory |   |
|        |                       |        |        |  |

 

SECTION 2.03.  Form and Denomination of DebtSecurities.

 

The Debt Securities shall be substantially in the form of Exhibit Ahereto. The Debt Securities shall be in registered, certificated form withoutcoupons and in minimum denominations of $100,000 and any multiple of $1,000 inexcess thereof. The Debt Securities shall be numbered, lettered, or otherwisedistinguished in such manner or in accordance with such plans as the officersexecuting the same may determine with the approval of the Trustee as evidencedby the execution and authentication thereof.

 

SECTION 2.04.  Execution of Debt Securities.

 

The Debt Securities shall be signed in the name and on behalf of theCompany by the manual or facsimile signature of any of its Chairman of theBoard of Directors, Vice Chairman, President or Chief Financial Officer or oneof its Executive Vice Presidents, Senior Vice Presidents or Vice Presidents,under its corporate seal (if legally required), which may be affixed thereto orprinted, engraved or otherwise reproduced thereon, by facsimile or otherwise,and which need not be attested. Only such Debt Securities as shall bear thereona certificate of authentication substantially in the form herein beforerecited, executed by the Trustee or the Authenticating Agent by the manualsignature of an authorized officer, shall be entitled to the benefits of thisIndenture or be valid or obligatory for any purpose. Such certificate by theTrustee or the Authenticating Agent upon any Debt Security executed by theCompany shall be conclusive evidence that the Debt Security so authenticatedhas been duly authenticated and delivered hereunder and that the holder isentitled to the benefits of this Indenture.

 

In case any officer of the Company who shall have signed any of theDebt Securities shall cease to be such officer before the Debt Securities sosigned shall have been authenticated and delivered by the Trustee or theAuthenticating Agent, or disposed of by the Company, such Debt Securitiesnevertheless may be authenticated and delivered or disposed of as though thePerson who signed such Debt Securities had not ceased to be such officer of theCompany; and any Debt Security may be signed on behalf of the Company by suchPersons as, at the actual date of the execution of such Debt Security, shall bethe proper officers of the

 

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Company,although at the date of the execution of this Indenture any such person was notsuch an officer.

 

Every Debt Security shall be dated the date of its authentication.

 

SECTION 2.05.  Exchange and Registration of Transfer ofDebt Securities.

 

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

 

Debt Securities to be exchanged may be surrendered at the PrincipalOffice of the Trustee or at any office or agency to be maintained by theCompany for such purpose as provided in Section 3.02, and the Companyshall execute, the Company or the Trustee shall register and the Trustee or theAuthenticating Agent shall authenticate and make available for delivery inexchange therefor the Debt Security or Debt Securities which the Securityholdermaking the exchange shall be entitled to receive. Upon due presentment forregistration of transfer of any Debt Security at the Principal Office of theTrustee or at any office or agency of the Company maintained for such purposeas provided in Section 3.02, the Company shall execute, the Company or theTrustee shall register and the Trustee or the Authenticating Agent shallauthenticate and make available for delivery in the name of the transferee ortransferees a new Debt Security for a like aggregate principal amount.Registration or registration of transfer of any Debt Security by the Trustee orby any agent of the Company appointed pursuant to Section 3.02, anddelivery of such Debt Security, shall be deemed to complete the registration orregistration of transfer of such Debt Security.

 

All Debt Securities presented for registration of transfer or forexchange or payment shall (if so required by the Company or the Trustee or theAuthenticating Agent) be duly endorsed by, or be accompanied by, a writteninstrument or instruments of transfer in form satisfactory to the Company andeither the Trustee or the Authenticating Agent duly executed by, the holder orsuch holder’s attorney duly authorized in writing.

 

Neither the Trustee nor the Debt Security Registrar shall beresponsible for ascertaining whether any transfer hereunder complies with theregistration provisions of or any exemptions from the Securities Act (under andas defined in the Declaration), applicable state securities laws or theapplicable laws of any other jurisdiction, ERISA, the United States InternalRevenue Code of 1986, as amended, or the Investment Company Act (under and asdefined in the Declaration).

 

No service charge shall be made for any exchange or registration oftransfer of Debt Securities, but the Company or the Trustee may require paymentof a sum sufficient to cover any tax, fee or other governmental charge that maybe imposed in connection therewith.

 

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The Company or the Trustee shall not be required to exchange orregister a transfer of any Debt Security for a period of 15 days immediatelypreceding the date of selection of Debt Securities for redemption.

 

Notwithstanding the foregoing, Debt Securities may not be transferredexcept in compliance with the restricted securities legend set forth below,unless otherwise determined by the Company in accordance with applicable law,which legend shall be placed on each Debt Security:

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHERAPPLICABLE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST ORPARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCHREGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THEREGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BYITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITYONLY (A) TO THE COMPANY, (B) PURSUANT TO RULE 144A UNDER THESECURITIES ACT (“RULE 144A”) TO A PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIEDINSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNTOR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVENTHAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO A “NONU.S. PERSON” IN AN “OFFSHORE TRANSACTION” PURSUANT TO REGULATION S UNDER THESECURITIES ACT, (D) PURSUANT TO AN EXEMPTION FROM THE REGISTRATIONREQUIREMENTS OF THE SECURITIES ACT TO AN “ACCREDITED INVESTOR” WITHIN THEMEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, ORFOR THE ACCOUNT OF SUCH AN “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES ANDNOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTIONIN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLEEXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TOTHE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TOCLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITHTHE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY. THEHOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLYWITH THE FOREGOING RESTRICTIONS.

 

THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTSAND WARRANTS THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THISSECURITY UNLESS SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT.

 

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

 

IN CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY WILLDELIVER TO THE COMPANY AND TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BEREQUIRED BY THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THEFOREGOING RESTRICTIONS.

 

THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKSHAVING A PRINCIPAL AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 INEXCESS THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING APRINCIPAL AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NOLEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TOBE THE HOLDER OF THIS SECURITY FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO,THE RECEIPT OF DISTRIBUTIONS ON THIS SECURITY, AND SUCH PURPORTED TRANSFEREESHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN THIS SECURITY.

 

THIS OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITEDSTATES OR ANY AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERALDEPOSIT INSURANCE CORPORATION. THIS OBLIGATION IS SUBORDINATED TO THE CLAIMS OFDEPOSITORS AND THE CLAIMS OF GENERAL AND SECURED CREDITORS OF THE COMPANY, ISINELIGIBLE AS COLLATERAL

 

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FOR A LOAN BYTHE COMPANY OR ANY OF ITS SUBSIDIARIES AND IS NOT SECURED.

 

SECTION 2.06.  Mutilated, Destroyed, Lost or Stolen DebtSecurities.

 

In case any Debt Security shall become mutilated or be destroyed, lostor stolen, the Company shall execute, and upon its written request the Trusteeshall authenticate and deliver, a new Debt Security bearing a number notcontemporaneously outstanding, in exchange and substitution for the mutilated DebtSecurity, or in lieu of and in substitution for the Debt Security so destroyed,lost or stolen. In every case the applicant for a substituted Debt Securityshall furnish to the Company and the Trustee such security or indemnity as maybe required by them to save each of them harmless, and, in every case ofdestruction, loss or theft, the applicant shall also furnish to the Company andthe Trustee evidence to their satisfaction of the destruction, loss or theft ofsuch Debt Security and of the ownership thereof.

 

The Trustee may authenticate any such substituted Debt Security anddeliver the same upon the written request or authorization of any officer ofthe Company. Upon the issuance of any substituted Debt Security, the Companymay require the payment of a sum sufficient to cover any tax or othergovernmental charge that may be imposed in relation thereto and any otherexpenses connected therewith. In case any Debt Security which has matured or isabout to mature or has been called for redemption in full shall becomemutilated or be destroyed, lost or stolen, the Company may, instead of issuinga substitute Debt Security, pay or authorize the payment of the same (withoutsurrender thereof except in the case of a mutilated Debt Security) if theapplicant for such payment shall furnish to the Company and the Trustee suchsecurity or indemnity as may be required by them to save each of them harmlessand, in case of destruction, loss or theft, evidence satisfactory to theCompany and to the Trustee of the destruction, loss or theft of such Securityand of the ownership thereof.

 

Every substituted Debt Security issued pursuant to the provisions ofthis Section 2.06 by virtue of the fact that any such Debt Security isdestroyed, lost or stolen shall constitute an additional contractual obligationof the Company, whether or not the destroyed, lost or stolen Debt Securityshall be found at any time, and shall be entitled to all the benefits of thisIndenture equally and proportionately with any and all other Debt Securitiesduly issued hereunder. All Debt Securities shall be held and owned upon theexpress condition that, to the extent permitted by applicable law, theforegoing provisions are exclusive with respect to the replacement or paymentof mutilated, destroyed, lost or stolen Debt Securities and shall preclude anyand all other rights or remedies notwithstanding any law or statute existing orhereafter enacted to the contrary with respect to the replacement or payment ofnegotiable instruments or other securities without their surrender.

 

SECTION 2.07.  Temporary Debt Securities.

 

Pending the preparation of definitive Debt Securities, the Company mayexecute and the Trustee shall authenticate and make available for deliverytemporary Debt Securities that are typed, printed or lithographed. TemporaryDebt Securities shall be issuable in any authorized denomination, andsubstantially in the form of the definitive Debt Securities but with suchomissions, insertions and variations as may be appropriate for temporary DebtSecurities, all as

 

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may bedetermined by the Company. Every such temporary Debt Security shall be executedby the Company and be authenticated by the Trustee upon the same conditions andin substantially the same manner, and with the same effect, as the definitiveDebt Securities. Without unreasonable delay, the Company will execute anddeliver to the Trustee or the Authenticating Agent definitive Debt Securitiesand thereupon any or all temporary Debt Securities may be surrendered inexchange therefor, at the Principal Office of the Trustee or at any office oragency maintained by the Company for such purpose as provided in Section 3.02,and the Trustee or the Authenticating Agent shall authenticate and makeavailable for delivery in exchange for such temporary Debt Securities a likeaggregate principal amount of such definitive Debt Securities. Such exchangeshall be made by the Company at its own expense and without any charge thereforexcept that in case of any such exchange involving a registration of transferthe Company may require payment of a sum sufficient to cover any tax, fee orother governmental charge that may be imposed in relation thereto. Until soexchanged, the temporary Debt Securities shall in all respects be entitled tothe same benefits under this Indenture as definitive Debt Securitiesauthenticated and delivered hereunder.

 

SECTION 2.08.  Payment of Interest.

 

Each Debt Security will bear interest at the then applicable InterestRate from and including each Interest Payment Date or, in the case of the firstInterest Payment Period, the original date of issuance of such Debt Securityto, but excluding, the next succeeding Interest Payment Date or, in the case ofthe last Interest Payment Period, the Redemption Date, Special Redemption Dateor Maturity Date, as applicable, on the principal thereof, on any overdueprincipal and (to the extent that payment of such interest is enforceable underapplicable law) on Deferred Interest and on any overdue installment of interest(including Defaulted Interest), payable (subject to the provisions of Article XII)on each Interest Payment Date commencing on December 15,2005. Interest and any Deferred Interest on any Debt Security that ispayable, and is punctually paid or duly provided for by the Company, on anyInterest Payment Date shall be paid to the Person in whose name said DebtSecurity (or one or more Predecessor Securities) is registered at the close ofbusiness on the regular record date for such interest installment, except thatinterest and any Deferred Interest payable on the Maturity Date shall be paidto the Person to whom principal is paid. In the event that any Debt Security orportion thereof is called for redemption and the redemption date is subsequentto a regular record date with respect to any Interest Payment Date and eitheron or prior to such Interest Payment Date, interest on such Debt Security willbe paid upon presentation and surrender of such Debt Security.

 

Any interest on any Debt Security, other than Deferred Interest, thatis payable, but is not punctually paid or duly provided for by the Company, onany Interest Payment Date (herein called “Defaulted Interest”) shall forthwithcease to be payable to the registered holder on the relevant regular recorddate by virtue of having been such holder, and such Defaulted Interest shall bepaid by the Company to the Persons in whose names such Debt Securities (ortheir respective Predecessor Securities) are registered at the close ofbusiness on a special record date for the payment of such Defaulted Interest,which shall be fixed in the following manner: the Company shall notify theTrustee in writing of the amount of Defaulted Interest proposed to be paid oneach such Debt Security and the date of the proposed payment, and at the sametime the Company shall deposit with the Trustee an amount of money equal to theaggregate amount proposed to be paid in respect of such Defaulted Interest orshall make arrangements reasonably

 

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satisfactoryto the Trustee for such deposit prior to the date of the proposed payment, suchmoney when deposited to be held in trust for the benefit of the Personsentitled to such Defaulted Interest as in this clause provided. Thereupon theTrustee shall fix a special record date for the payment of such DefaultedInterest which shall not be more than fifteen nor less than ten days prior tothe date of the proposed payment and not less than ten days after the receiptby the Trustee of the notice of the proposed payment. The Trustee shallpromptly notify the Company of such special record date and, in the name and atthe expense of the Company, shall cause notice of the proposed payment of suchDefaulted Interest and the special record date therefor to be mailed, firstclass postage prepaid, to each Securityholder at his or her address as itappears in the Debt Security Register, not less than ten days prior to suchspecial record date. Notice of the proposed payment of such Defaulted Interestand the special record date therefor having been mailed as aforesaid, suchDefaulted Interest shall be paid to the Persons in whose names such DebtSecurities (or their respective Predecessor Securities) are registered on suchspecial record date and thereafter the Company shall have no further paymentobligation in respect of the Defaulted Interest.

 

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

 

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

 

Subject to the foregoing provisions of this Section, each Debt Securitydelivered under this Indenture upon registration of transfer of or in exchangefor or in lieu of any other Debt Security shall carry the rights to interestaccrued and unpaid, and to accrue, that were carried by such other DebtSecurity.

 

SECTION 2.09.  Cancellation of Debt Securities Paid, etc.

 

All Debt Securities surrendered for the purpose of payment, redemption,exchange or registration of transfer, shall, if surrendered to the Company orany Paying Agent, be surrendered to the Trustee and promptly canceled by it,or, if surrendered to the Trustee, shall be promptly canceled by it, and noDebt Securities shall be issued in lieu thereof except as expressly permittedby any of the provisions of this Indenture. The Trustee shall dispose of allcanceled Debt Securities in accordance with its customary practices, unless theCompany otherwise directs the Trustee in writing, in which case the Trustee shalldispose of such Debt Securities as directed by the Company. If the Companyshall acquire any of the Debt Securities, however, such acquisition shall notoperate as a redemption or satisfaction of the indebtedness represented by suchDebt Securities unless and until the same are surrendered to the Trustee forcancellation.

 

SECTION 2.10.  Computation of Interest.

 

(a)           The amount of interestpayable for any Interest Payment Period will be computed on the basis of a360-day year and the actual number of days elapsed in the relevant interestperiod; provided, however, that upon the occurrence of a SpecialEvent Redemption

 

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pursuant to Section 10.02 the amounts payablepursuant to this Indenture shall be calculated as set forth in the definitionof Special Redemption Price.

 

(b)           LIBOR, for any InterestPayment Period, shall be determined by the Calculation Agent in accordance withthe following provisions:

 

(1)           Onthe second LIBOR Business Day (provided, that on such day commercial banks areopen for business (including dealings in foreign currency deposits) in London(a “LIBOR Banking Day”), and otherwise the next preceding LIBOR Business Daythat is also a LIBOR Banking Day) prior to March 15, June 15, September 15and December 15 (or, with respect to the first Interest Payment Period, onNovember 1, 2005) (each such day, a “LIBORDetermination Date” for the following Interest Payment Period), the CalculationAgent shall obtain the rate for three-month U.S. Dollar deposits in Europe,which appears on Telerate Page 3750 (as defined in the International Swapsand Derivatives Association, Inc. 2000 Interest Rate and Currency ExchangeDefinitions) or such other page as may replace such Telerate Page 3750on the Moneyline Telerate, Inc. service (or such other service or servicesas may be nominated by the British Banker’s Association as the informationvendor for the purpose of displaying London Interbank offered rates for U.S.dollar deposits), as of 11:00 a.m. (London time) on such LIBORDetermination Date, and the rate so obtained shall be LIBOR for such InterestPayment Period.  “LIBOR Business Day”means any day that is not a Saturday, Sunday or other day on which commercialbanking institutions in The City of New York or Boston, Massachusetts areauthorized or obligated by law or executive order to be closed. If such rate issuperseded on Telerate Page 3750 by a corrected rate before 12:00 noon(London time) on the same LIBOR Determination Date, the corrected rate as sosubstituted will be LIBOR for that Interest Payment Period.

 

(2)           If,on any LIBOR Determination Date, such rate does not appear on Telerate Page 3750or such other page as may replace such Telerate Page 3750 on theMoneyline Telerate, Inc. service (or such other service or services as maybe nominated by the British Banker’s Association as the information vendor forthe purpose of displaying London Interbank offered rates for U.S. dollardeposits), the Calculation Agent shall determine the arithmetic mean of theoffered quotations of the Reference Banks (as defined below) to leading banksin the London Interbank market for three-month U.S. Dollar deposits in Europe(in an amount determined by the Calculation Agent) by reference to requests forquotations as of approximately 11:00 a.m. (London time) on the LIBORDetermination Date made by the Calculation Agent to the Reference Banks. If, onany LIBOR Determination Date, at least two of the Reference Banks provide suchquotations, LIBOR shall equal the arithmetic mean of such quotations. If, onany LIBOR Determination Date, only one or none of the Reference Banks providesuch a quotation, LIBOR shall be deemed to be the arithmetic mean of theoffered quotations that at least two leading banks in the City of New York (asselected by the Calculation Agent) are quoting on the relevant LIBORDetermination Date for three-month U.S. Dollar deposits in Europe atapproximately 11:00 a.m. (London

 

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time) (in an amountdetermined by the Calculation Agent). As used herein, “Reference Banks” meansfour major banks in the London Interbank market selected by the CalculationAgent.

 

(3)           Ifthe Calculation Agent is required but is unable to determine a rate inaccordance with at least one of the procedures provided above, LIBOR for theapplicable Interest Payment Period shall be LIBOR in effect for the immediatelypreceding Interest Payment Period.

 

(c)           All percentagesresulting from any calculations on the Debt Securities will be rounded, ifnecessary, to the nearest one hundred-thousandth of a percentage point, withfive one-millionths of a percentage point rounded upward (e.g., 9.876545% (or..09876545) being rounded to 9.87655% (or .0987655)), and all dollar amounts usedin or resulting from such calculation will be rounded to the nearest cent (withone-half cent being rounded upward).

 

(d)           As soon as practicablefollowing each LIBOR Determination Date, but in no event later than the 30thday following such LIBOR Determination Date, the Calculation Agent shallnotify, in writing, the Company, the Institutional Trustee and the Paying Agentof the applicable Interest Rate in effect for the related Interest PaymentPeriod. The Calculation Agent shall, upon the request of the holder of any DebtSecurities, provide the Interest Rate then in effect. All calculations made bythe Calculation Agent in the absence of manifest error shall be conclusive forall purposes and binding on the Company and the Holders of the Debt Securities.  Any error in a calculation of the Coupon Rateby the Calculation Agent may be corrected at any time by the delivery of noticeof such corrected Coupon Rate as provided above.  The Paying Agent shall be entitled to rely oninformation received from the Calculation Agent or the Company as to theInterest Rate. The Company shall, from time to time, provide any necessaryinformation to the Paying Agent relating to any original issue discount andinterest on the Debt Securities that is included in any payment and reportablefor taxable income calculation purposes. Failure to notify the Company, the Institutional Trustee or the PayingAgent of the applicable Coupon Rate shall not affect the obligation of theCompany to make payment on Debentures at such Coupon Rate. 

 

SECTION 2.11.  Extension of Interest Payment Period.

 

As long as it is acting in good faith, and so long as no Event ofDefault pursuant to paragraphs (c), (e) or (f) of Section 5.01of the Indenture has occurred and is continuing the Company shall have theright, from time to time and without causing an Event of Default, to deferpayments of interest on the Debt Securities by extending the interestdistribution period on the Debt Securities at any time and from time to timeduring the term of the Debt Securities, for up to twenty consecutive quarterlyperiods (each such extended interest distribution period, an “Extension Period”),during which Extension Period no interest shall be due and payable (except anyAdditional Interest that may be due and payable). No Extension Period may endon a date other than an Interest Payment Date or extend beyond the MaturityDate, any Redemption Date or any Special Redemption Date, as the case may be.During any Extension Period, interest will continue to accrue on the DebtSecurities, and interest on such accrued interest (such accrued interest andinterest thereon referred to herein as “Deferred Interest”) will accrue at anannual rate equal to the Interest Rate applicable during such Extension Period,compounded quarterly

 

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from the datesuch Deferred Interest would have been payable were it not for the ExtensionPeriod, to the extent permitted by law. No interest or Deferred Interest shallbe due and payable during an Extension Period, except at the end thereof. Atthe end of any such Extension Period the Company shall pay all DeferredInterest then accrued and unpaid on the Debt Securities; provided, however,that no Extension Period may extend beyond the Maturity Date; and providedfurther, however, that during any such Extension Period, theCompany shall be subject to the restrictions set forth in Section 3.08 ofthis Indenture. Prior to the termination of any Extension Period, the Companymay further extend such period, provided, that such period together withall such previous and further consecutive extensions thereof shall not exceedtwenty consecutive quarterly periods, or extend beyond the Maturity Date. Uponthe termination of any Extension Period and upon the payment of all DeferredInterest, the Company may commence a new Extension Period, subject to theforegoing requirements. The Company must give the Trustee notice of itselection to begin any Extension Period (“Notice”) not later than the related regularrecord date for the relevant Interest Payment Date.  The Notice shall describe why the Company haselected to begin an Extension Period. The Notice shall acknowledge and affirm the Company’s understanding thatit is prohibited from issuing dividends and other distributions during theExtension Period.  Upon receipt of theNotice, an Initial Purchaser shall have the right, at its sole discretion, todisclose the name of the Company, the fact that the Company has elected tobegin an Extension Period and other information that such Initial Purchaser, atits sole discretion, deems relevant to the Company’s election to begin anExtension Period.  The Trustee shall givenotice of the Company’s election to begin a new Extension Period to theSecurityholders.

 

SECTION 2.12.  CUSIP Numbers.

 

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

 

SECTION 2.13.  Income TaxCertification.  

 

As a condition to the payment of any principal of or interest on theDebt Securities without the imposition of withholding tax, the Trustee shallrequire the previous delivery of properly completed and signed applicable U.S.federal income tax certifications (generally, an Internal Revenue Service Form W-9(or applicable successor form) in the case of a person that is a “United Statesperson” within the meaning of Section 7701 (a)(30) of the Code (under andas defined in the Declaration) or an Internal Revenue Service Form W-8 (orapplicable successor form) in the case of a person that is not a “United Statesperson” within the meaning of Section 7701(a)(30) of the Code, and anyother certification acceptable to it to enable the Trustee or any Paying Agentto determine their respective duties and liabilities with respect to any taxesor other charges that they may be required to pay, deduct or withhold inrespect of such Debt Securities.

 

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ARTICLE IIIPARTICULAR COVENANTS OF THE COMPANY

 

SECTION 3.01.  Payment of Principal, Premium andInterest; Agreed Treatment of the Debt Securities.

 

(a)           The Company covenantsand agrees that it will duly and punctually pay or cause to be paid all paymentsdue on the Debt Securities at the place, at the respective times and in themanner provided in this Indenture and the Debt Securities. At the option of theCompany, each installment of interest on the Debt Securities may be paid (i) bymailing checks for such interest payable to the order of the holders of DebtSecurities entitled thereto as they appear on the Debt Security Register or (ii) bywire transfer to any account with a banking institution located in the UnitedStates designated by such holders to the Paying Agent no later than the relatedrecord date. Notwithstanding anything to the contrary contained in thisIndenture or any Debt Security, if the Trust or the Trustee of the Trust is theholder of any Debt Security, then all payments in respect of such Debt Securityshall be made by the Company in immediately available funds when due.  

 

(b)           The Company will treatthe Debt Securities as indebtedness, and the interest payable in respect ofsuch Debt Securities as interest, for all U.S. federal income tax purposes. Asa condition to the payment of any principal of or interest on any Debt Securitywithout the imposition of withholding tax, the Company shall require theprevious delivery of properly completed and signed applicable U.S. federalincome tax certifications (generally, an Internal Revenue Service Form W-9(or applicable successor form) in the case of a Person that is a U.S. Person oran Internal Revenue Service Form W-8 (or applicable successor form) in thecase of a Person that is not a U.S. Person and any other certificationacceptable to it to enable the Company and the Trustee to determine theirrespective duties and liabilities with respect to any taxes or other chargesthat they may be required to pay or withhold in respect of such Debt Securityor the holder of such Debt Security under any present or future law orregulation of the United States or any political subdivision thereof or taxingauthority therein or to comply with any reporting or other requirements underany such law or regulation.

 

(c)           As of the date of thisIndenture, the Company represents that it has no intention to exercise itsright under Section 2.11 to defer payments of interest on the DebtSecurities by commencing an Extension Period.

 

SECTION 3.02.  Offices for Notices and Payments, etc.

 

So long as any of the Debt Securities remain outstanding, the Companywill maintain in New York, New York an office or agency where the DebtSecurities may be presented for payment, an office or agency where the DebtSecurities may be presented for registration of transfer and for exchange asprovided in this Indenture and an office or agency where notices and demands toor upon the Company in respect of the Debt Securities or of this Indenture maybe served. The Company hereby appoints the Trustee at U.S. Bank NationalAssociation, 100 Wall Street, 19th Floor, New York, New York 10005,Attention: Corporate Trust Services – The BankHoldings Statutory Trust I****assuch office or agency.  In case the

 

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Company shallfail to maintain any such office or agency in New York, New York or shall failto 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 thePrincipal Office of the Trustee.

 

In addition to any such office or agency, the Company may from time totime designate one or more other offices or agencies where the Debt Securitiesmay be presented for registration of transfer and for exchange in the mannerprovided in this Indenture, and the Company may from time to time rescind suchdesignation, as the Company may deem desirable or expedient; provided, however,that no such designation or rescission shall in any manner relieve the Companyof its obligation to maintain any such office or agency in New York, New Yorkfor the purposes above mentioned. The Company will give to the Trustee promptwritten notice of any such designation or rescission thereof.

 

SECTION 3.03.  Appointments to Fill Vacancies in Trustee’sOffice.

 

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

 

SECTION 3.04.  Provision as to Paying Agent.

 

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

 

(1)           thatit will hold all sums held by it as such agent for the payment of all paymentsdue on the Debt Securities (whether such sums have been paid to it by theCompany or by any other obligor on the Debt Securities) in trust for thebenefit of the holders of the Debt Securities;

 

(2)           thatit will give the Trustee prompt written notice of any failure by the Company(or by any other obligor on the Debt Securities) to make any payment on theDebt Securities when the same shall be due and payable; and

 

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

 

(b)           If the Company shallact as its own Paying Agent, it will, on or before each due date of thepayments due on the Debt Securities, set aside, segregate and hold in trust forthe benefit of the holders of the Debt Securities a sum sufficient to pay suchpayments so becoming due and will notify the Trustee in writing of any failureto take such action and of any failure by the Company (or by any other obligorunder the Debt Securities) to make any payment on the Debt Securities when thesame shall become due and payable.

 

Whenever the Company shall have one or more Paying Agents for the DebtSecurities, it will, on or prior to each due date of the payments on the DebtSecurities, deposit with a Paying Agent a sum sufficient to pay all payments sobecoming due, such sum to be held

 

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in trust forthe benefit of the Persons entitled thereto and (unless such Paying Agent isthe Trustee) the Company shall promptly notify the Trustee in writing of itsaction or failure to act.

 

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

 

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

 

(e)           The Company herebyinitially appoints the Trustee to act as Paying Agent (the “Paying Agent”).

 

SECTION 3.05.  Certificate to Trustee.

 

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

 

SECTION 3.06.  Additional Interest.

 

If and for so long as the Trust is the holder of all Debt Securitiesand is subject to or otherwise required to pay, or is required to withhold fromdistributions to holders of Trust Securities, any additional taxes (includingwithholding taxes), duties, assessments or other governmental charges as aresult of a Tax Event, the Company will pay such additional amounts (the “AdditionalInterest”) on the Debt Securities as shall be required so that the net amountsreceived and retained by the Trust for distribution to holders of TrustSecurities after paying all taxes (including withholding taxes), duties,assessments or other governmental charges will be equal to the amounts theTrust would have received and retained for distribution to holders of TrustSecurities after paying all taxes (including withholding taxes on distributionsto holders of Trust Securities), duties, assessments or other governmentalcharges if no such additional taxes, duties, assessments or other governmentalcharges had been imposed. Whenever in this Indenture or the Debt Securitiesthere is a reference in any context to the payment of principal of or premium,if any, or interest on the Debt Securities, such mention shall be deemed toinclude mention of payments of the Additional Interest provided for in thisparagraph to the extent that, in such context, Additional Interest is, was orwould be payable in respect thereof pursuant to the provisions of thisparagraph and express mention of the payment of Additional Interest (ifapplicable) in any provisions hereof shall not be construed as excludingAdditional Interest in those provisions hereof where such express mention isnot made; provided, however, that, notwithstanding anything tothe contrary contained in this Indenture or any Debt Security, the

 

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deferral ofthe payment of interest during an Extension Period pursuant to Section 2.11shall not defer the payment of any Additional Interest that may be due andpayable.

 

SECTION 3.07.  Compliance with Consolidation Provisions.

 

The Company will not, while any of the Debt Securities remainoutstanding, consolidate with, or merge into any other Person, or merge intoitself, or sell, convey, transfer or otherwise dispose of all or substantiallyall of its property or capital stock to any other Person unless the provisionsof Article XI hereof are complied with.

 

SECTION 3.08.  Limitation on Dividends.

 

If Debt Securities are initially issued to the Trust or a trustee ofsuch Trust in connection with the issuance of Trust Securities by the Trust(regardless of whether Debt Securities continue to be held by such Trust) and (i) thereshall have occurred and be continuing an Event of Default, (ii) theCompany shall be in default with respect to its payment of any obligationsunder the Capital Securities Guarantee or (iii) the Company shall havegiven notice of its election to defer payments of interest on the DebtSecurities by extending the interest distribution period as provided herein andsuch period, or any extension thereof, shall have commenced and be continuing,then the Company may not (A) declare or pay any dividends or distributionson, or redeem, purchase, acquire, or make a liquidation payment with respectto, any of the Company’s capital stock or (B) make any payment ofprincipal of or interest or premium, if any, on or repay, repurchase or redeemany debt securities of the Company that rank *pari passu*in all respects with or junior in interest to the Debt Securities or (C) makeany payment under any guarantees of the Company that rank *pari passu* in all respects with or juniorin interest to the Capital Securities Guarantee (other than (a) repurchases,redemptions or other acquisitions of shares of capital stock of the Company (I)in connection with any employment contract, benefit plan or other similararrangement with or for the benefit of one or more employees, officers,directors or consultants, (II) in connection with a dividend reinvestment or stockholderstock purchase plan or (III) in connection with the issuance of capital stockof the Company (or securities convertible into or exercisable for such capitalstock), as consideration in an acquisition transaction entered into prior tothe occurrence of (i), (ii) or (iii) above,(b) as a result of any exchange, reclassification, combination orconversion of any class or series of the Company’s capital stock (or anycapital stock of a subsidiary of the Company) for any class or series of theCompany’s capital stock or of any class or series of the Company’s indebtednessfor any class or series of the Company’s capital stock, (c) the purchaseof fractional interests in shares of the Company’s capital stock pursuant tothe conversion or exchange provisions of such capital stock or the securitybeing converted or exchanged, (d) any declaration of a dividend inconnection with any stockholder’s rights plan, or the issuance of rights, stockor other property under any stockholder’s rights plan, or the redemption orrepurchase of rights pursuant thereto, or (e) any dividend in the form ofstock, warrants, options or other rights where the dividend stock or the stockissuable upon exercise of such warrants, options or other rights is the samestock as that on which the dividend is being paid or ranks *pari passu*with or junior to such stock).

 

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SECTION 3.09.  Covenants as to the Trust.

 

For so long as such Trust Securities remain outstanding, the Companyshall maintain 100% ownership of the Common Securities; provided, however,that any permitted successor of the Company under this Indenture that is a U.S.Person may succeed to the Company’s ownership of such Common Securities. TheCompany, as owner of the Common Securities, shall use commercially reasonableefforts to cause the Trust (a) to remain a statutory trust, except inconnection with a distribution of Debt Securities to the holders of TrustSecurities in liquidation of the Trust, the redemption of all of the TrustSecurities or certain mergers, consolidations or amalgamations, each aspermitted by the Declaration, (b) to otherwise continue to be classifiedas a grantor trust for United States federal income tax purposes and (c) tocause each holder of Trust Securities to be treated as owning an undividedbeneficial interest in the Debt Securities.

 

ARTICLE IVLISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE

 

SECTION 4.01.  Securityholders’ Lists.

 

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

 

(a)           on each regular recorddate for an Interest Payment Date, a list, in such form as the Trustee mayreasonably require, of the names and addresses of the Securityholders of theDebt Securities as of such record date; and

 

(b)           at such other times asthe Trustee may request in writing, within 30 days after the receipt by theCompany of any such request, a list of similar form and content as of a datenot more than 15 days prior to the time such list is furnished, except that nosuch lists need be furnished under this Section 4.01 so long as theTrustee is in possession thereof by reason of its acting as Debt Securityregistrar.

 

SECTION 4.02.  Preservation and Disclosure of Lists.

 

(a)           The Trustee shallpreserve, in as current a form as is reasonably practicable, all information asto the names and addresses of the holders of Debt Securities (1) containedin the most recent list furnished to it as provided in Section 4.01 or (2) receivedby it in the capacity of Debt Securities registrar (if so acting) hereunder.The Trustee may destroy any list furnished to it as provided in Section 4.01upon receipt of a new list so furnished.

 

(b)           In case three or moreholders of Debt Securities (hereinafter referred to as “applicants”) apply inwriting to the Trustee and furnish to the Trustee reasonable proof that eachsuch applicant has owned a Debt Security for a period of at least six monthspreceding the date of such application, and such application states that theapplicants desire to communicate with other holders of Debt Securities withrespect to their rights under this Indenture or under such Debt Securities andis accompanied by a copy of the form of proxy or other communication

 

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which such applicants propose to transmit, then theTrustee shall within five Business Days after the receipt of such application,at the election of the Company, either:

 

(1)           affordsuch applicants access to the information preserved at the time by the Trusteein accordance with the provisions of subsection (a) of this Section 4.02,or

 

(2)           informsuch applicants as to the approximate number of holders of Debt Securitieswhose names and addresses appear in the information preserved at the time bythe Trustee in accordance with the provisions of subsection (a) ofthis Section 4.02, and as to the approximatecost of mailing to such Securityholders the form of proxy or othercommunication, if any, specified in such application.

 

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

 

(c)           Each and every holderof Debt Securities, by receiving and holding the same, agrees with the Companyand the Trustee that neither the Company nor the Trustee nor any Paying Agentshall be held accountable by reason of the disclosure of any such informationas to the names and addresses of the holders of Debt Securities in accordancewith the provisions of subsection (b) of this Section 4.02,regardless of the source from which such information was derived, and that theTrustee shall not be held accountable by reason of mailing any materialpursuant to a request made under said subsection (b).

 

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ARTICLE VREMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT

 

SECTION 5.01.  Events of Default.

 

Thefollowing events shall be “Events of Default” with respect to Debt Securities:

 

(a)           the Company defaults inthe payment of any interest upon any Debt Security when it becomes due andpayable (unless the Company has elected and may defer interest paymentspursuant to Section 2.11), and continuance of such default for a period of30 days; for the avoidance of doubt, an extension of any interest distributionperiod by the Company in accordance with Section 2.11 of this Indentureshall not constitute a default under this clause 5.01(a); or

 

(b)           the Company defaults inthe payment of all or any part of the principal of (or premium, if any, on) anyDebt Securities as and when the same shall become due and payable either atmaturity, upon redemption, by declaration of acceleration pursuant to Section 5.01of this Indenture or otherwise; or

 

(c)           the Company defaults inthe payment of any interest upon any Debt Security when it becomes due andpayable following the nonpayment of any such interest as a result of ExtensionPeriod for 20 or more consecutive quarterly periods; or

 

(d)           the Company defaults inthe performance of, or breaches, any of its covenants or agreements in Sections3.06, 3.07, 3.08 or 3.09 of this Indenture (other than a covenant or agreementa default in whose performance or whose breach is elsewhere in this Section specificallydealt with), and continuance of such default or breach for a period of 90 daysafter there has been given, by registered or certified mail, to the Company bythe Trustee or to the Company and the Trustee by the holders of not less than25% in aggregate principal amount of the outstanding Debt Securities, a writtennotice specifying such default or breach and requiring it to be remedied andstating that such notice is a “Notice of Default” hereunder; or

 

(e)           a court havingjurisdiction in the premises shall enter a decree or order for relief inrespect of the Company in an involuntary case under any applicable bankruptcy,insolvency or other similar law now or hereafter in effect, or appoints areceiver, liquidator, assignee, custodian, trustee, sequestrator (or similarofficial) of the Company or for any substantial part of its property, or ordersthe winding-up or liquidation of its affairs and such decree or order shallremain unstayed and in effect for a period of 90 consecutive days; or

 

(f)            the Company shallcommence a voluntary case under any applicable bankruptcy, insolvency or othersimilar law now or hereafter in effect, shall consent to the entry of an orderfor relief in an involuntary case under any such law, or shall consent to theappointment of or taking possession by a receiver, liquidator, assignee,trustee, custodian, sequestrator (or other similar official) of the Company orof any substantial part of its property, or shall make any general assignmentfor the benefit of creditors, or shall fail generally to pay its debts as theybecome due; or

 

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(g)           the Trust shall havevoluntarily or involuntarily liquidated, dissolved, wound-up its business orotherwise terminated its existence except in connection with (1) thedistribution of the Debt Securities to holders of the Trust Securities inliquidation of their interests in the Trust, (2) the redemption of all ofthe outstanding Trust Securities or (3) certain mergers, consolidations oramalgamations, each as permitted by the Declaration.

 

If an Event of Default specified under clause (c) of this Section 5.01occurs and is continuing with respect to the Debt Securities, then, and in eachand every such case, unless the principal of the Debt Securities shall havealready become due and payable, either the Trustee or the holders of not lessthan 25% in aggregate principal amount of the Debt Securities then outstandinghereunder, by notice in writing to the Company (and to the Trustee if given bySecurityholders), may declare the entire principal of the Debt Securities andany premium and interest accrued, but unpaid, thereon, if any, to be due andpayable immediately, and upon any such declaration the same shall becomeimmediately due and payable.  If an Eventof Default specified under clause (e) or (f) of this Section 5.01occurs, then, in each and every such case, the entire principal amount of theDebt Securities and any premium and interest accrued, but unpaid, thereon shall*ipso facto*become immediately dueand payable without further action. Notwithstanding anything to the contrary in this Section 5.01, ifat any time during the period in which this Indenture remains in force andeffect, the Company ceases or elects to cease to be subject to the supervisionand regulations of the Federal Reserve, OTS, OCC or similar regulatoryauthority overseeing bank, thrift, savings and loan or financial holdingcompanies or similar institutions requiring specifications for the treatment ofcapital similar in nature to the capital adequacy guidelines under the FederalReserve rules and regulations, then the first sentence of this paragraphshall be deemed to include clauses (a), (b) and (d) under this Section 5.01as an Event of Default resulting in an acceleration of payment of the DebtSecurities to the same extent as provided herein for clause (c).

 

With respect to clause (d) of this Section 5.01, the Companyagrees that in the event of a breach by the Company of its covenants oragreements mentioned therein, any remedy at law or in damages may proveinadequate and therefore the Company agrees that the Trustee shall be entitled toinjunctive relief against the Company in the event of any breach or threatenedbreach by the Company, in addition to any other relief (including damages)available to the Trustee under this Indenture or under law.

 

The foregoing provisions, however, are subject to the condition thatif, at any time after the principal of the Debt Securities shall have been sodeclared due and payable, and before any judgment or decree for the payment ofthe moneys due shall have been obtained or entered as hereinafter provided, (i) theCompany shall pay or shall deposit with the Trustee a sum sufficient to pay allmatured installments of interest upon all the Debt Securities and all paymentson the Debt Securities which shall have become due otherwise than byacceleration (with interest upon all such payments and Deferred Interest, tothe extent permitted by law) and such amount as shall be sufficient to coverreasonable compensation to the Trustee and each predecessor Trustee, theirrespective agents, attorneys and counsel, and all other amounts due to theTrustee pursuant to Section 6.06, if any, and (ii) all Events ofDefault under this Indenture, other than the non-payment of the payments onDebt Securities which shall have become due by acceleration, shall have been cured,waived or otherwise remedied as provided herein, and in each and every suchcase the holders of a majority in aggregate principal amount of the Debt

 

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Securitiesthen outstanding, by written notice to the Company and to the Trustee, maywaive all defaults and rescind and annul such declaration and its consequences,but no such waiver or rescission and annulment shall extend to or shall affectany subsequent default or shall impair any right consequent thereon; provided,however, that if the Debt Securities are held by the Trust or a trustee of theTrust, such waiver or rescission and annulment shall not be effective until theholders of a majority in aggregate liquidation amount of the outstanding CapitalSecurities of the Trust shall have consented to such waiver or rescission andannulment.

 

In case the Trustee shall have proceeded to enforce any right underthis Indenture and such proceedings shall have been discontinued or abandonedbecause of such rescission or annulment or for any other reason or shall havebeen determined adversely to the Trustee, then and in every such case theCompany, the Trustee and the holders of the Debt Securities shall be restoredrespectively to their several positions and rights hereunder, and all rights,remedies and powers of the Company, the Trustee and the holders of the DebtSecurities shall continue as though no such proceeding had been taken.

 

SECTION 5.02.  Payment of Debt Securities on Default;Suit Therefor.

 

The Company covenants that upon the occurrence of an Event of Defaultpursuant to clause 5.01(a), 5.01(b) or 5.01(c), and upon demand of theTrustee, the Company will pay to the Trustee, for the benefit of the holders ofthe Debt Securities, the whole amount that then shall have become due andpayable on all Debt Securities including Deferred Interest accrued on the DebtSecurities; and, in addition thereto, such further amount as shall besufficient to cover the costs and expenses of collection, including a reasonablecompensation to the Trustee, its agents, attorneys and counsel, and any otheramounts due to the Trustee under Section 6.06. In case the Company shallfail forthwith to pay such amounts upon such demand, the Trustee, in its ownname and as trustee of an express trust, shall be entitled and empowered toinstitute any actions or proceedings at law or in equity for the collection ofthe sums so due and unpaid, and may prosecute any such action or proceeding tojudgment or final decree, and may enforce any such judgment or final decreeagainst the Company or any other obligor on such Debt Securities and collect inthe manner provided by law out of the property of the Company or any otherobligor on such Debt Securities wherever situated the moneys adjudged ordecreed to be payable.

 

In case there shall be pending proceedings for the bankruptcy or forthe reorganization of the Company or any other obligor on the Debt Securitiesunder Bankruptcy Law, or in case a receiver or trustee shall have been appointedfor the property of the Company or such other obligor, or in the case of anyother similar judicial proceedings relative to the Company or other obligorupon the Debt Securities, or to the creditors or property of the Company orsuch other obligor, the Trustee, irrespective of whether the principal of theDebt Securities shall then be due and payable as therein expressed or bydeclaration of acceleration or otherwise and irrespective of whether theTrustee shall have made any demand pursuant to the provisions of this Section 5.02,shall be entitled and empowered, by intervention in such proceedings orotherwise, to file and prove a claim or claims for the whole amount ofprincipal and interest owing and unpaid in respect of the Debt Securities and,in case of any judicial proceedings, to file such proofs of claim and otherpapers or documents as may be necessary or advisable in order to have theclaims of the Trustee (including any claim for reasonable compensation to theTrustee and each predecessor Trustee, and their respective agents, attorneys

 

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and counsel,and for reimbursement of all other amounts due to the Trustee under Section 6.06)and of the Securityholders allowed in such judicial proceedings relative to theCompany or any other obligor on the Debt Securities, or to the creditors orproperty of the Company or such other obligor, unless prohibited by applicablelaw and regulations, to vote on behalf of the holders of the Debt Securities inany election of a trustee or a standby trustee in arrangement, reorganization,liquidation or other bankruptcy or insolvency proceedings or Person performingsimilar functions in comparable proceedings, and to collect and receive anymoneys or other property payable or deliverable on any such claims, and todistribute the same after the deduction of its charges and expenses; and anyreceiver, assignee or trustee in bankruptcy or reorganization is herebyauthorized 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 paymentsdirectly to the Securityholders, to pay to the Trustee such amounts as shall besufficient to cover reasonable compensation to the Trustee, each predecessorTrustee and their respective agents, attorneys and counsel, and all otheramounts due to the Trustee under Section 6.06.

 

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

 

All rights of action and of asserting claims under this Indenture, orunder any of the Debt Securities, may be enforced by the Trustee without thepossession of any of the Debt Securities, or the production thereof at anytrial or other proceeding relative thereto, and any such suit or proceedinginstituted by the Trustee shall be brought in its own name as trustee of anexpress trust, and any recovery of judgment shall be for the ratable benefit ofthe holders of the Debt Securities.

 

In any proceedings brought by the Trustee (and also any proceedingsinvolving the interpretation of any provision of this Indenture to which theTrustee shall be a party) the Trustee shall be held to represent all theholders of the Debt Securities, and it shall not be necessary to make anyholders of the Debt Securities parties to any such proceedings.

 

SECTION 5.03.  Application of Moneys Collected by Trustee.

 

Any moneys collected by the Trustee shall be applied in the followingorder, at the date or dates fixed by the Trustee for the distribution of suchmoneys, upon presentation of the several Debt Securities in respect of whichmoneys have been collected, and stamping thereon the payment, if only partiallypaid, and upon surrender thereof if fully paid:

 

First: To thepayment 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 Trusteeunder Section 6.06;

 

Second: To thepayment of all Senior Indebtedness of the Company if and to the extent requiredby Article XV;

 

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Third: To thepayment of the amounts then due and unpaid upon Debt Securities, in respect ofwhich or for the benefit of which money has been collected, ratably, withoutpreference or priority of any kind, according to the amounts due on such DebtSecurities; and

 

Fourth: Thebalance, if any, to the Company.

 

SECTION 5.04.  Proceedings by Securityholders.

 

No holder of any Debt Security shall have any right to institute any suit,action or proceeding for any remedy hereunder, unless such holder previouslyshall have given to the Trustee written notice of an Event of Default withrespect to the Debt Securities and unless the holders of not less than 25% inaggregate principal amount of the Debt Securities then outstanding shall havegiven the Trustee a written request to institute such action, suit orproceeding and shall have offered to the Trustee such reasonable indemnity asit may require against the costs, expenses and liabilities to be incurredthereby, and the Trustee for 60 days after its receipt of such notice, requestand offer of indemnity shall have failed to institute any such action, suit orproceeding; provided, that no holder of Debt Securities shall have anyright to prejudice the rights of any other holder of Debt Securities, obtainpriority or preference over any other such holder or enforce any right underthis Indenture except in the manner herein provided and for the equal, ratableand common benefit of all holders of Debt Securities.

 

Notwithstanding any other provisions in this Indenture, however, theright of any holder of any Debt Security to receive payment of the principalof, premium, if any, and interest on such Debt Security when due, or toinstitute suit for the enforcement of any such payment, shall not be impairedor affected without the consent of such holder. For the protection andenforcement of the provisions of this Section, each and every Securityholderand the Trustee shall be entitled to such relief as can be given either at lawor in equity.

 

SECTION 5.05.  Proceedings by Trustee.

 

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

 

SECTION 5.06.  Remedies Cumulative and Continuing.

 

Except as otherwise provided in Section 2.06, all powers andremedies given by this Article V to the Trustee or to the Securityholdersshall, to the extent permitted by law, be deemed cumulative and not exclusiveof any other powers and remedies available to the Trustee or the holders of theDebt Securities, by judicial proceedings or otherwise, to enforce theperformance or observance of the covenants and agreements contained in thisIndenture or otherwise established with respect to the Debt Securities, and nodelay or omission of the Trustee or of any holder of any of the Debt Securitiesto exercise any right or power accruing upon any Event of Default occurring andcontinuing as aforesaid shall impair any such right or power, or

 

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shall beconstrued to be a waiver of any such default or an acquiescence therein; and,subject to the provisions of Section 5.04, every power and remedy given bythis Article V or by law to the Trustee or to the Securityholders may beexercised from time to time, and as often as shall be deemed expedient, by theTrustee or by the Securityholders.

 

SECTION 5.07.  Direction of Proceedings and Waiver ofDefaults by Majority of Securityholders.

 

The holders of a majority in aggregate principal amount of the DebtSecurities affected (voting as one class) at the time outstanding and, if theDebt Securities are held by the Trust or a trustee of the Trust, the holders ofa majority in aggregate liquidation amount of the outstanding CapitalSecurities of the Trust shall have the right to direct the time, method andplace of conducting any proceeding for any remedy available to the Trustee, orexercising any trust or power conferred on the Trustee with respect to suchDebt Securities; provided, however, that if the Debt Securitiesare held by the Trust or a trustee of the Trust, such time, method and place orsuch exercise, as the case may be, may not be so directed until the holders ofa majority in aggregate liquidation amount of the outstanding CapitalSecurities of the Trust shall have directed such time, method and place or suchexercise, as the case may be; provided, further, that (subject to theprovisions of Section 6.01) the Trustee shall have the right to decline tofollow any such direction if the Trustee being advised by counsel shalldetermine that the action so directed would be unjustly prejudicial to theholders not taking part in such direction or if the Trustee being advised bycounsel determines that the action or proceeding so directed may not lawfullybe taken or if a Responsible Officer of the Trustee shall determine that theaction or proceedings so directed would involve the Trustee in personalliability. Prior to any declaration of acceleration, or ipso facto acceleration,of the maturity of the Debt Securities, the holders of a majority in aggregateprincipal amount of the Debt Securities at the time outstanding may on behalfof the holders of all of the Debt Securities waive (or modify any previouslygranted waiver of) any past default or Event of Default and its consequences,except a default (a) in the payment of principal of, premium, if any, orinterest on any of the Debt Securities, (b) in respect of covenants orprovisions hereof which cannot be modified or amended without the consent ofthe holder of each Debt Security affected, or (c) in respect of thecovenants contained in Section 3.09; provided, however, thatif the Debt Securities are held by the Trust or a trustee of the Trust, suchwaiver or modification to such waiver shall not be effective until the holdersof a majority in Liquidation Amount of the Trust Securities of the Trust shallhave consented to such waiver or modification to such waiver; provided, further,that if the consent of the holder of each outstanding Debt Security isrequired, such waiver or modification to such waiver shall not be effectiveuntil each holder of the outstanding Capital Securities of the Trust shall haveconsented to such waiver or modification to such waiver. Upon any such waiveror modification to such waiver, the Default or Event of Default covered therebyshall be deemed to be cured for all purposes of this Indenture and the Company,the Trustee and the holders of the Debt Securities shall be restored to theirformer positions and rights hereunder, respectively; but no such waiver ormodification to such waiver shall extend to any subsequent or other Default orEvent of Default or impair any right consequent thereon. Whenever any Defaultor Event of Default hereunder shall have been waived as permitted by this Section 5.07,said Default or Event of Default shall for all purposes of the Debt Securitiesand this Indenture be deemed to have been cured and to be not continuing.

 

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SECTION 5.08.  Notice of Defaults.

 

The Trustee shall, within 90 days after a Responsible Officer of theTrustee shall have actual knowledge or received written notice of theoccurrence of a Default with respect to the Debt Securities, mail to all Securityholders,as the names and addresses of such holders appear upon the Debt SecurityRegister, notice of all Defaults with respect to the Debt Securities known tothe Trustee, unless such defaults shall have been cured before the giving ofsuch notice (the term “defaults” for the purpose of this Section 5.08being hereby defined to be the events specified in subsections (a), (b), (c),(d), (e) and (f) of Section 5.01, not including periods ofgrace, if any, provided for therein); provided, that, except in the caseof default in the payment of the principal of, premium, if any, or interest onany of the Debt Securities, the Trustee shall be protected in withholding suchnotice if and so long as a Responsible Officer of the Trustee in good faithdetermines that the withholding of such notice is in the interests of theSecurityholders.

 

SECTION 5.09.  Undertaking to Pay Costs.

 

All parties to this Indenture agree, and each holder of any DebtSecurity by such holder’s acceptance thereof shall be deemed to have agreed,that any court may in its discretion require, in any suit for the enforcementof any right or remedy under this Indenture, or in any suit against the Trusteefor any action taken or omitted by it as Trustee, the filing by any partylitigant in such suit of an undertaking to pay the costs of such suit, and thatsuch court may in its discretion assess reasonable costs, including reasonableattorneys’ fees and expenses, against any party litigant in such suit, havingdue regard to the merits and good faith of the claims or defenses made by suchparty litigant; but the provisions of this Section 5.09 shall not apply toany suit instituted by the Trustee, to any suit instituted by anySecurityholder, or group of Securityholders, holding in the aggregate more than10% in principal amount of the Debt Securities (or, if such Debt Securities areheld by the Trust or a trustee of the Trust, more than 10% in liquidationamount of the outstanding Capital Securities), to any suit instituted by anySecurityholder for the enforcement of the payment of the principal of (orpremium, if any) or interest on any Debt Security against the Company on orafter the same shall have become due and payable, or to any suit instituted inaccordance with Section 14.12.

 

ARTICLE VICONCERNING THE TRUSTEE

 

SECTION 6.01.  Duties and Responsibilities of Trustee.

 

With respect to the holders of Debt Securities issued hereunder, theTrustee, prior to the occurrence of an Event of Default with respect to theDebt Securities and after the curing or waiving of all Events of Default whichmay have occurred, with respect to the Debt Securities, undertakes to performsuch duties and only such duties as are specifically set forth in thisIndenture. In case an Event of Default with respect to the Debt Securities hasoccurred (which has not been cured or waived), the Trustee shall exercise suchof the rights and powers vested in it by this Indenture, and use the samedegree of care and skill in their exercise, as a prudent

 

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person wouldexercise or use under the circumstances in the conduct of such person’s ownaffairs.

 

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

 

(a)           prior to the occurrenceof an Event of Default with respect to the Debt Securities and after the curingor waiving of all Events of Default which may have occurred

 

(1)           theduties and obligations of the Trustee with respect to the Debt Securities shallbe determined solely by the express provisions of this Indenture, and theTrustee shall not be liable except for the performance of such duties andobligations with respect to the Debt Securities as are specifically set forthin this Indenture, and no implied covenants or obligations shall be read intothis Indenture against the Trustee; and

 

(2)           inthe absence of bad faith on the part of the Trustee, the Trustee mayconclusively rely, as to the truth of the statements and the correctness of theopinions expressed therein, upon any certificates or opinions furnished to theTrustee and conforming to the requirements of this Indenture; but, in the caseof any such certificates or opinions which by any provision hereof arespecifically required to be furnished to the Trustee, the Trustee shall beunder a duty to examine the same to determine whether or not they conform ontheir face to the requirements of this Indenture;

 

(b)           the Trustee shall notbe liable for any error of judgment made in good faith by a Responsible Officeror Officers of the Trustee, unless it shall be proved that the Trustee wasnegligent in ascertaining the pertinent facts;

 

(c)           the Trustee shall notbe liable with respect to any action taken or omitted to be taken by it in goodfaith, in accordance with the direction of the Securityholders pursuant to Section 5.07,relating to the time, method and place of conducting any proceeding for anyremedy available to the Trustee, or exercising any trust or power conferredupon the Trustee, under this Indenture;

 

(d)           the Trustee shall notbe charged with knowledge of any Default or Event of Default with respect tothe Debt Securities unless either (1) a Responsible Officer shall have actualknowledge of such Default or Event of Default or (2) written notice ofsuch Default or Event of Default shall have been given to the Trustee by theCompany or any other obligor on the Debt Securities or by any holder of theDebt Securities, except with respect to an Event of Default pursuant toSections 5.01(a), 5.01(b) or 5.01(c) hereof (other than an Event ofDefault resulting from the default in the payment of Additional Interest orpremium, if any, if the Trustee does not have actual knowledge or writtennotice that such payment is due and payable), of which the Trustee shall bedeemed to have knowledge; and

 

(e)           inthe absence of bad faith on the part of the Trustee, the Trustee may seek andrely on reasonable instructions from the Company.

 

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None of the provisions contained in this Indenture shall require theTrustee to expend or risk its own funds or otherwise incur personal financialliability in the performance of any of its duties or in the exercise of any ofits rights or powers.

 

SECTION 6.02.  Reliance on Documents, Opinions, etc.

 

Except as otherwise provided in Section 6.01:

 

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

 

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

 

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

 

(d)           the Trustee shall beunder no obligation to exercise any of the rights or powers vested in it bythis Indenture at the request, order or direction of any of theSecurityholders, pursuant to the provisions of this Indenture, unless suchSecurityholders shall have offered to the Trustee reasonable security orindemnity against the costs, expenses and liabilities which may be incurredtherein or thereby;

 

(e)           the Trustee shall notbe liable for any action taken or omitted by it in good faith and reasonablybelieved by it to be authorized or within the discretion or rights or powersconferred upon it by this Indenture; nothing contained herein shall, however,relieve the Trustee of the obligation, upon the occurrence of an Event ofDefault with respect to the Debt Securities (that has not been cured or waived)to exercise with respect to the Debt Securities such of the rights and powersvested in it by this Indenture, and to use the same degree of care and skill intheir exercise, as a prudent person would exercise or use under thecircumstances in the conduct of such person’s own affairs;

 

(f)            the Trustee shall notbe bound to make any investigation into the facts or matters stated in anyresolution, certificate, statement, instrument, opinion, report, notice,request, consent, order, approval, bond, debenture, coupon or other paper ordocument, unless requested in writing to do so by the holders of not less thana majority in aggregate principal amount of the outstanding Debt Securitiesaffected thereby; provided, however, that if the payment within areasonable time to the Trustee of the costs, expenses or liabilities likely tobe incurred by it in the making of such investigation is, in the opinion of theTrustee, not reasonably assured to the Trustee by the security afforded to itby the terms of this Indenture, the Trustee may require reasonable indemnityagainst such expense or liability as a condition to so proceeding; and

 

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(g)           the Trustee may executeany of the trusts or powers hereunder or perform any duties hereunder eitherdirectly or by or through agents (including any Authenticating Agent) orattorneys, and the Trustee shall not be responsible for any misconduct ornegligence on the part of any such agent or attorney appointed by it with duecare.

 

SECTION 6.03.  No Responsibility for Recitals, etc.

 

The recitals contained herein and in the Debt Securities (except in thecertificate of authentication of the Trustee or the Authenticating Agent) shallbe taken as the statements of the Company and the Trustee and theAuthenticating Agent assume no responsibility for the correctness of the same.The Trustee and the Authenticating Agent make no representations as to thevalidity or sufficiency of this Indenture or of the Debt Securities. TheTrustee and the Authenticating Agent shall not be accountable for the use or applicationby the Company of any Debt Securities or the proceeds of any Debt Securitiesauthenticated and delivered by the Trustee or the Authenticating Agent inconformity with the provisions of this Indenture.

 

SECTION 6.04.  Trustee, Authenticating Agent, PayingAgents, Transfer Agents or Registrar May Own Debt Securities.

 

The Trustee or any Authenticating Agent or any Paying Agent or anytransfer agent or any Debt Security registrar, in its individual or any othercapacity, may become the owner or pledgee of Debt Securities with the samerights it would have if it were not Trustee, Authenticating Agent, PayingAgent, transfer agent or Debt Security registrar.

 

SECTION 6.05.  Moneys to be Held in Trust.

 

Subject to the provisions of Section 12.04, all moneys received bythe Trustee or any Paying Agent shall, until used or applied as hereinprovided, be held in trust for the purpose for which they were received, butneed 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 onany money received by it hereunder except as otherwise agreed in writing withthe Company. So long as no Event of Default shall have occurred and becontinuing, all interest allowed on any such moneys, if any, shall be paid fromtime to time to the Company upon the written order of the Company, signed bythe Chairman of the Board of Directors, the President, the Chief OperatingOfficer, a Vice President, the Treasurer or an Assistant Treasurer of theCompany.

 

SECTION 6.06.  Compensation and Expenses of Trustee.

 

Other than as provided in the Fee Agreement of even date herewithbetween Cohen Bros. & Company, the Trustee, and the Company (asdefined in the Declaration), the Company covenants and agrees to pay to theTrustee from time to time, and the Trustee shall be entitled to, suchcompensation as shall be agreed to in writing between the Company and theTrustee (which shall not be limited by any provision of law in regard to thecompensation of a trustee of an express trust), and the Company will pay orreimburse the Trustee upon its written request for all documented reasonableexpenses, disbursements and advances incurred or made by the Trustee inaccordance with any of the provisions of this Indenture (including thereasonable compensation and the reasonable expenses and disbursements of itscounsel and of all Persons not regularly in its employ) except any suchexpense, disbursement or advance that

 

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arises fromits negligence, willful misconduct or bad faith. The Company also covenants toindemnify each of the Trustee (including in its individual capacity) and anypredecessor Trustee (and its officers, agents, directors and employees) for,and to hold it harmless against, any and all loss, damage, claim, liability orexpense including taxes (other than taxes based on the income of the Trustee),except to the extent such loss, damage, claim, liability or expense resultsfrom the negligence, willful misconduct or bad faith of such indemnitee,arising out of or in connection with the acceptance or administration of thisTrust, including the costs and expenses of defending itself against any claimor liability in the premises. The obligations of the Company under this Section 6.06to compensate and indemnify the Trustee and to pay or reimburse the Trustee fordocumented expenses, disbursements and advances shall constitute additionalindebtedness hereunder. Such additional indebtedness shall be secured by (andthe Company hereby grants and pledges to the Trustee) a lien prior to that ofthe Debt Securities upon all property and funds held or collected by theTrustee as such, except funds held in trust for the benefit of the holders ofparticular Debt Securities.

 

Without prejudice to any other rights available to the Trustee underapplicable law, when the Trustee incurs expenses or renders services inconnection with an Event of Default specified in subsections (e), (f) or (g) ofSection 5.01, the expenses (including the reasonable charges and expensesof its counsel) and the compensation for the services are intended toconstitute expenses of administration under any applicable federal or statebankruptcy, insolvency or other similar law.

 

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

 

Notwithstanding anything in this Indenture or any Debt Security to thecontrary, the Trustee shall have no obligation whatsoever to advance funds topay any principal of or interest on or other amounts with respect to the DebtSecurities or otherwise advance funds to or on behalf of the Company.  

 

SECTION 6.07.  Officers’ Certificate as Evidence.

 

Except as otherwise provided in Sections 6.01 and 6.02, whenever in theadministration of the provisions of this Indenture the Trustee shall deem itnecessary or desirable that a matter be proved or established prior to takingor omitting any action hereunder, such matter (unless other evidence in respectthereof be herein specifically prescribed) may, in the absence of negligence,willful misconduct or bad faith on the part of the Trustee, be deemed to beconclusively proved and established by an Officers’ Certificate delivered to theTrustee, and such certificate, in the absence of negligence, willful misconductor bad faith on the part of the Trustee, shall be full warrant to the Trusteefor any action taken or omitted by it under the provisions of this Indentureupon the faith thereof.

 

SECTION 6.08.  Eligibility of Trustee.

 

The Trustee hereunder shall at all times be a U.S. Person that is abanking corporation or national association organized and doing business underthe laws of the United States of America or any state thereof or of theDistrict of Columbia and authorized under such

 

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laws toexercise corporate trust powers, having a combined capital and surplus of atleast fifty million U.S. dollars ($50,000,000) and subject to supervision orexamination by federal, state, or District of Columbia authority. If suchcorporation or national association publishes reports of condition at leastannually, pursuant to law or to the requirements of the aforesaid supervisingor examining authority, then for the purposes of this Section 6.08 thecombined capital and surplus of such corporation or national association shallbe deemed to be its combined capital and surplus as set forth in its mostrecent records of condition so published.

 

The Company may not, nor may any Person directly or indirectlycontrolling, controlled by, or under common control with the Company, serve asTrustee, notwithstanding that such corporation or national association shall beotherwise eligible and qualified under this Article.

 

In case at any time the Trustee shall cease to be eligible inaccordance with the provisions of this Section 6.08, the Trustee shallresign immediately in the manner and with the effect specified in Section 6.09.

 

If the Trustee has or shall acquire any “conflicting interest” withinthe meaning of § 310(b) of the Trust Indenture Act, the Trustee shalleither eliminate such interest or resign, to the extent and in the mannerprovided by, and subject to this Indenture.

 

SECTION 6.09.  Resignation or Removal of Trustee,Calculation Agent, Paying Agent or Debt Security Registrar.

 

(a)           The Trustee, or anytrustee or trustees hereafter appointed, the Calculation Agent, the PayingAgent and any Debt Security Registrar may at any time resign by giving writtennotice of such resignation to the Company and by mailing notice thereof, at theCompany’s expense, to the holders of the Debt Securities at their addresses asthey shall appear on the Debt Security Register. Upon receiving such notice ofresignation, the Company shall promptly appoint a successor or successors bywritten instrument, in duplicate, executed by order of its Board of Directors,one copy of which instrument shall be delivered to the resigning party and onecopy to the successor. If no successor shall have been so appointed and haveaccepted appointment within 30 days after the mailing of such notice ofresignation to the affected Securityholders, the resigning party may petitionany court of competent jurisdiction for the appointment of a successor, or anySecurityholder who has been a bona fide holder of a Debt Security or DebtSecurities for at least six months may, subject to the provisions of Section 5.09,on behalf of himself or herself and all others similarly situated, petition anysuch court for the appointment of a successor. Such court may thereupon, aftersuch notice, if any, as it may deem proper and prescribe, appoint a successor.

 

(b)           In case at any time anyof the following shall occur:

 

(1)           theTrustee shall fail to comply with the provisions of the last paragraph of Section 6.08after written request therefor by the Company or by any Securityholder who hasbeen a bona fide holder of a Debt Security or Debt Securities for at least sixmonths,

 

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(2)           theTrustee shall cease to be eligible in accordance with the provisions of Section 6.08and shall fail to resign after written request therefor by the Company or byany such Securityholder, or

 

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

 

then, in any such case, the Company may remove the Trustee and appointa successor Trustee by written instrument, in duplicate, executed by order ofthe Board of Directors, one copy of which instrument shall be delivered to theTrustee so removed and one copy to the successor Trustee, or, subject to theprovisions of Section 5.09, if no successor Trustee shall have been soappointed and have accepted appointment within 30 days of the occurrence of anyof (1), (2) or (3) above, any Securityholder who has been a bona fideholder of a Debt Security or Debt Securities for at least six months may, onbehalf of himself or herself and all others similarly situated, petition anycourt of competent jurisdiction for the removal of the Trustee and theappointment of a successor Trustee. Such court may thereupon, after suchnotice, if any, as it may deem proper and prescribe, remove the Trustee andappoint a successor Trustee.

 

(c)           Upon prior writtennotice to the Company and the Trustee, the holders of a majority in aggregateprincipal amount of the Debt Securities at the time outstanding may at any timeremove the Trustee and nominate a successor Trustee, which shall be deemedappointed as successor Trustee unless within ten Business Days after suchnomination the Company objects thereto, in which case or in the case of afailure by such holders to nominate a successor Trustee, the Trustee so removedor any Securityholder, upon the terms and conditions and otherwise as in subsection (a) ofthis Section 6.09 provided, may petition any court of competentjurisdiction for an appointment of a successor.

 

(d)           Any resignation orremoval of the Trustee, the Calculation Agent, the Paying Agent and any DebtSecurity Registrar and appointment of a successor pursuant to any of theprovisions of this Section 6.09 shall become effective upon acceptance ofappointment by the successor as provided in Section 6.10.

 

SECTION 6.10.  Acceptance by Successor.

 

Any successor Trustee, Calculation Agent, Paying Agent or Debt SecurityRegistrar appointed as provided in Section 6.09 shall execute, acknowledgeand deliver to the Company and to its predecessor an instrument accepting suchappointment hereunder, and thereupon the resignation or removal of the retiringparty shall become effective and such successor, without any further act, deedor conveyance, shall become vested with all the rights, powers, duties andobligations with respect to the Debt Securities of its predecessor hereunder,with like effect as if originally named herein; but, nevertheless, on thewritten request of the Company or of the successor, the party ceasing to actshall, upon payment of the amounts then due it pursuant to the provisions of Section 6.06,execute and deliver an instrument transferring to such successor all the rightsand powers of the party so ceasing to act and shall duly assign, transfer anddeliver to such successor all property and money held by such retiring party

 

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hereunder.Upon reasonable request of any such successor, the Company shall execute anyand all instruments in writing for more fully and certainly vesting in andconfirming to such successor all such rights and powers. Any party ceasing toact shall, nevertheless, retain a lien upon all property or funds held orcollected to secure any amounts then due it pursuant to the provisions of Section 6.06.

 

If a successor Trustee is appointed, the Company, the retiring Trusteeand the successor Trustee shall execute and deliver an indenture supplementalhereto which shall contain such provisions as shall be deemed necessary ordesirable to confirm that all the rights, powers, trusts and duties of theretiring Trustee with respect to the Debt Securities as to which thepredecessor Trustee is not retiring shall continue to be vested in thepredecessor Trustee, and shall add to or change any of the provisions of thisIndenture as shall be necessary to provide for or facilitate the administrationof the Trust hereunder by more than one Trustee, it being understood thatnothing herein or in such supplemental indenture shall constitute such Trusteesco-trustees of the same trust and that each such Trustee shall be Trustee of atrust or trusts hereunder separate and apart from any trust or trusts hereunderadministered by any other such Trustee.

 

No successor Trustee shall accept appointment as provided in this Section 6.10unless at the time of such acceptance such successor Trustee shall be eligibleand qualified under the provisions of Section 6.08.

 

In no event shall a retiring Trustee, Calculation Agent, Paying Agentor Debt Security Registrar be liable for the acts or omissions of any successorhereunder.

 

Upon acceptance of appointment by a successor Trustee, Calculation Agent,Paying Agent or Debt Security Registrar as provided in this Section 6.10,the Company shall mail notice of the succession to the holders of DebtSecurities at their addresses as they shall appear on the Debt SecurityRegister. If the Company fails to mail such notice within ten Business Daysafter the acceptance of appointment by the successor, the successor shall causesuch notice to be mailed at the expense of the Company.

 

SECTION 6.11.  Succession by Merger, etc.

 

Any Person into which the Trustee may be merged or converted or withwhich it may be consolidated, or any Person resulting from any merger,conversion or consolidation to which the Trustee shall be a party, or anyPerson succeeding to all or substantially all of the corporate trust businessof the Trustee, shall be the successor of the Trustee hereunder without theexecution or filing of any paper or any further act on the part of any of theparties hereto; provided, that such Person shall be otherwise eligibleand qualified under this Article.

 

In case at the time such successor to the Trustee shall succeed to thetrusts created by this Indenture any of the Debt Securities shall have beenauthenticated but not delivered, any such successor to the Trustee may adoptthe certificate of authentication of any predecessor Trustee, and deliver suchDebt Securities so authenticated; and in case at that time any of the DebtSecurities shall not have been authenticated, any successor to the Trustee mayauthenticate such Debt Securities either in the name of any predecessorhereunder or in the name of the

 

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successorTrustee; and in all such cases such certificates shall have the full forcewhich it is anywhere in the Debt Securities or in this Indenture provided thatthe certificate of the Trustee shall have; provided, however,that the right to adopt the certificate of authentication of any predecessorTrustee or authenticate Debt Securities in the name of any predecessor Trusteeshall apply only to its successor or successors by merger, conversion orconsolidation.

 

SECTION 6.12.  Authenticating Agents.

 

There may be one or more Authenticating Agents appointed by the Trusteeupon the request of the Company with power to act on its behalf and subject toits direction in the authentication and delivery of Debt Securities issued uponexchange or registration of transfer thereof as fully to all intents andpurposes as though any such Authenticating Agent had been expressly authorizedto authenticate and deliver Debt Securities; provided, that the Trustee shallhave no liability to the Company for any acts or omissions of theAuthenticating Agent with respect to the authentication and delivery of DebtSecurities. Any such Authenticating Agent shall at all times be a Personorganized and doing business under the laws of the United States or of anystate or territory thereof or of the District of Columbia authorized under suchlaws to act as Authenticating Agent, having a combined capital and surplus ofat least $50,000,000 and being subject to supervision or examination byfederal, state, territorial or District of Columbia authority. If such Personpublishes reports of condition at least annually pursuant to law or therequirements of such authority, then for the purposes of this Section 6.12the combined capital and surplus of such Person shall be deemed to be itscombined capital and surplus as set forth in its most recent report ofcondition so published. If at any time an Authenticating Agent shall cease tobe eligible in accordance with the provisions of this Section, it shall resignimmediately in the manner and with the effect herein specified in this Section.

 

Any Person into which any Authenticating Agent may be merged orconverted or with which it may be consolidated, or any Person resulting fromany merger, consolidation or conversion to which any Authenticating Agent shallbe a party, or any Person succeeding to all or substantially all of thecorporate trust business of any Authenticating Agent, shall be the successor ofsuch Authenticating Agent hereunder, if such successor Person is otherwiseeligible under this Section 6.12 without the execution or filing of anypaper or any further act on the part of the parties hereto or suchAuthenticating Agent.

 

Any Authenticating Agent may at any time resign by giving writtennotice of resignation to the Trustee and to the Company. The Trustee may at anytime terminate the agency of any Authenticating Agent with respect to the DebtSecurities by giving written notice of termination to such Authenticating Agentand to the Company. Upon receiving such a notice of resignation or upon such atermination, or in case at any time any Authenticating Agent shall cease to beeligible under this Section 6.12, the Trustee may, and upon the request ofthe Company shall, promptly appoint a successor Authenticating Agent eligibleunder this Section 6.12, shall give written notice of such appointment tothe Company and shall mail notice of such appointment to all holders of DebtSecurities as the names and addresses of such holders appear on the DebtSecurity Register. Any successor Authenticating Agent upon acceptance of itsappointment hereunder shall become vested with all rights, powers, duties andresponsibilities with respect to the Debt Securities of its predecessorhereunder, with like effect as if originally named as Authenticating Agentherein.

 

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Other than as provided in the Fee Agreement of even date herewithbetween Cohen Bros. & Company, the Company, and the Trustee (asdefined in the Declaration), the Company agrees to pay to any AuthenticatingAgent from time to time reasonable compensation for its services. AnyAuthenticating Agent shall have no responsibility or liability for any actiontaken by it as such in accordance with the directions of the Trustee and shallreceive such reasonable indemnity as it may require against the costs, expensesand liabilities incurred in furtherance of its duties under this Section 6.12.

 

ARTICLE VIICONCERNING THE SECURITYHOLDERS

 

SECTION 7.01.  Action by Securityholders.

 

Whenever in this Indenture it is provided that the holders of aspecified percentage in aggregate principal amount of the Debt Securities oraggregate Liquidation Amount of the Capital Securities may take any action(including the making of any demand or request, the giving of any notice,consent or waiver or the taking of any other action), the fact that at the timeof taking any such action the holders of such specified percentage have joinedtherein may be evidenced (a) by any instrument or any number ofinstruments of similar tenor executed by such Securityholders or holders ofCapital Securities, as the case may be, in person or by agent or proxyappointed in writing, or (b) by the record of such holders of DebtSecurities voting in favor thereof at any meeting of such Securityholders dulycalled and held in accordance with the provisions of Article VIII or ofsuch holders of Capital Securities duly called and held in accordance with theprovisions of the Declaration, or (c) by a combination of such instrumentor instruments and any such record of such a meeting of such Securityholders orholders of Capital Securities, as the case may be, or (d) by any other methodthe Trustee deems satisfactory.

 

If the Company shall solicit from the Securityholders any request,demand, authorization, direction, notice, consent, waiver or other action orrevocation of the same, the Company may, at its option, as evidenced by anOfficers’ Certificate, fix in advance a record date for such Debt Securitiesfor the determination of Securityholders entitled to give such request, demand,authorization, direction, notice, consent, waiver or other action or revocationof the same, but the Company shall have no obligation to do so. If such arecord date is fixed, such request, demand, authorization, direction, notice,consent, waiver or other action or revocation of the same may be given beforeor after the record date, but only the Securityholders of record at the closeof business on the record date shall be deemed to be Securityholders for thepurposes of determining whether Securityholders of the requisite proportion ofoutstanding Debt Securities have authorized or agreed or consented to suchrequest, demand, authorization, direction, notice, consent, waiver or otheraction or revocation of the same, and for that purpose the outstanding DebtSecurities shall be computed as of the record date; provided, however,that no such authorization, agreement or consent by such Securityholders on therecord date shall be deemed effective unless it shall become effective pursuantto the provisions of this Indenture not later than six months after the recorddate.

 

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SECTION 7.02.  Proof of Execution by Securityholders.

 

Subject to the provisions of Sections 6.01, 6.02 and 8.05, proof of theexecution of any instrument by a Securityholder or such Securityholder’s agentor proxy shall be sufficient if made in accordance with such reasonable rules andregulations as may be prescribed by the Trustee or in such manner as shall besatisfactory to the Trustee. The ownership of Debt Securities shall be provedby the Debt Security Register or by a certificate of the Debt SecurityRegistrar. The Trustee may require such additional proof of any matter referredto in this Section as it shall deem necessary.

 

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

 

SECTION 7.03.  Who Are Deemed Absolute Owners.

 

Prior to due presentment for registration of transfer of any DebtSecurity, the Company, the Trustee, any Authenticating Agent, any Paying Agent,any transfer agent and any Debt Security registrar may deem the Person in whosename such Debt Security shall be registered upon the Debt Security Register tobe, and may treat such Person as, the absolute owner of such Debt Security(whether or not such Debt Security shall be overdue) for the purpose ofreceiving payment of or on account of the principal of, premium, if any, andinterest on such Debt Security and for all other purposes; and neither theCompany nor the Trustee nor any Authenticating Agent nor any Paying Agent norany transfer agent nor any Debt Security registrar shall be affected by anynotice to the contrary. All such payments so made to any holder for the timebeing or upon such holder’s order shall be valid, and, to the extent of the sumor sums so paid, effectual to satisfy and discharge the liability for moneyspayable upon any such Debt Security.

 

SECTION 7.04.  Debt Securities Owned by Company DeemedNot Outstanding.

 

In determining whether the holders of the requisite aggregate principalamount of Debt Securities have concurred in any direction, consent or waiverunder this Indenture, Debt Securities which are owned by the Company or anyother obligor on the Debt Securities or by any Person directly or indirectlycontrolling or controlled by or under direct or indirect common control withthe Company (other than the Trust) or any other obligor on the Debt Securitiesshall be disregarded and deemed not to be outstanding for the purpose of anysuch determination; provided, that for the purposes of determiningwhether the Trustee shall be protected in relying on any such direction,consent or waiver, only Debt Securities which a Responsible Officer of theTrustee actually knows are so owned shall be so disregarded. Debt Securities soowned which have been pledged in good faith may be regarded as outstanding forthe purposes of this Section 7.04 if the pledgee shall establish to thesatisfaction of the Trustee the pledgee’s right to vote such Debt Securitiesand that the pledgee is not the Company or any such other obligor or Persondirectly or indirectly controlling or controlled by or under direct or indirectcommon control with the Company or any such other obligor. In the case of adispute as to such right, any decision by the Trustee taken upon the advice ofcounsel shall be full protection to the Trustee.

 

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SECTION 7.05.  Revocation of Consents; FutureSecurityholders Bound.

 

At any time prior to (but not after) the evidencing to the Trustee, asprovided in Section 7.01, of the taking of any action by the holders ofthe percentage in aggregate principal amount of the Debt Securities specifiedin this Indenture in connection with such action, any holder (in cases where norecord date has been set pursuant to Section 7.01) or any holder as of anapplicable record date (in cases where a record date has been set pursuant to Section 7.01)of a Debt Security (or any Debt Security issued in whole or in part in exchangeor substitution therefor) the serial number of which is shown by the evidenceto be included in the Debt Securities the holders of which have consented tosuch action may, by filing written notice with the Trustee at the PrincipalOffice of the Trustee and upon proof of holding as provided in Section 7.02,revoke such action so far as concerns such Debt Security (or so far as concernsthe principal amount represented by any exchanged or substituted DebtSecurity). Except as aforesaid any such action taken by the holder of any DebtSecurity shall be conclusive and binding upon such holder and upon all futureholders and owners of such Debt Security, and of any Debt Security issued inexchange or substitution therefor or on registration of transfer thereof,irrespective of whether or not any notation in regard thereto is made upon suchDebt Security or any Debt Security issued in exchange or substitution therefor.

 

ARTICLE VIIISECURITYHOLDERS’ MEETINGS

 

SECTION 8.01.  Purposes of Meetings.

 

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

 

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

 

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

 

(c)           to consent to theexecution of an indenture or indentures supplemental hereto pursuant to theprovisions of Section 9.02; or

 

(d)           to take any otheraction authorized to be taken by or on behalf of the holders of any specifiedaggregate principal amount of such Debt Securities under any other provision ofthis Indenture or under applicable law.

 

SECTION 8.02.  Call of Meetings by Trustee.

 

The Trustee may at any time call a meeting of Securityholders to takeany action specified in Section 8.01, to be held at such time and at suchplace in The City of New York, the Borough of Manhattan, or Boston,Massachusetts, as the Trustee shall determine. Notice of every

 

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meeting of theSecurityholders, setting forth the time and the place of such meeting and ingeneral terms the action proposed to be taken at such meeting, shall be mailedto holders of Debt Securities affected at their addresses as they shall appearon the Debt Securities Register. Such notice shall be mailed not less than 20nor more than 180 days prior to the date fixed for the meeting.

 

SECTION 8.03.  Call of Meetings by Company orSecurityholders.

 

In case at any time the Company pursuant to a Board Resolution, or theholders of at least 10% in aggregate principal amount of the Debt Securities,as the case may be, then outstanding, shall have requested the Trustee to calla meeting of Securityholders, by written request setting forth in reasonabledetail the action proposed to be taken at the meeting, and the Trustee shallnot have mailed the notice of such meeting within 20 days after receipt of suchrequest, then the Company or such Securityholders may determine the time andthe place in for such meeting and may call such meeting to take any actionauthorized in Section 8.01, by mailing notice thereof as provided in Section 8.02.

 

SECTION 8.04.  Qualifications for Voting.

 

To be entitled to vote at any meeting of Securityholders a Person shallbe (a) a holder of one or more Debt Securities with respect to which themeeting is being held or (b) a Person appointed by an instrument inwriting as proxy by a holder of one or more such Debt Securities. The onlyPersons who shall be entitled to be present or to speak at any meeting ofSecurityholders shall be the Persons entitled to vote at such meeting and theircounsel and any representatives of the Trustee and its counsel and anyrepresentatives of the Company and its counsel.

 

SECTION 8.05.  Regulations.

 

Notwithstanding any other provisions of this Indenture, the Trustee maymake such reasonable regulations as it may deem advisable for any meeting ofSecurityholders, in regard to proof of the holding of Debt Securities and ofthe appointment of proxies, and in regard to the appointment and duties ofinspectors of votes, the submission and examination of proxies, certificatesand other evidence of the right to vote, and such other matters concerning theconduct of the meeting as it shall deem appropriate.

 

The Trustee shall, by an instrument in writing, appoint a temporarychairman of the meeting, unless the meeting shall have been called by theCompany or by Securityholders as provided in Section 8.03, in which casethe Company or the Securityholders calling the meeting, as the case may be,shall in like manner appoint a temporary chairman. A permanent chairman and apermanent secretary of the meeting shall be elected by majority vote at themeeting.

 

Subject to the provisions of Section 7.04, at any meeting eachholder of Debt Securities with respect to which such meeting is being held orproxy therefor shall be entitled to one vote for each $1,000 principal amountof Debt Securities held or represented by such holder; provided, however,that no vote shall be cast or counted at any meeting in respect of any DebtSecurity challenged as not outstanding and ruled by the chairman of the meetingto be not outstanding. The chairman of the meeting shall have no right to voteother than by virtue of Debt

 

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Securitiesheld by such chairman or instruments in writing as aforesaid duly designatingsuch chairman as the Person to vote on behalf of other Securityholders. Anymeeting of Securityholders duly called pursuant to the provisions of Section 8.02or 8.03 may be adjourned from time to time by a majority of those present,whether or not constituting a quorum, and the meeting may be held as soadjourned without further notice.

 

SECTION 8.06.  Voting.

 

The vote upon any resolution submitted to any meeting of holders ofDebt Securities with respect to which such meeting is being held shall be bywritten ballots on which shall be subscribed the signatures of such holders orof their representatives by proxy and the serial number or numbers of the DebtSecurities held or represented by them. The permanent chairman of the meetingshall appoint two inspectors of votes who shall count all votes cast at themeeting for or against any resolution and who shall make and file with thesecretary of the meeting their verified written reports in triplicate of allvotes cast at the meeting. A record in duplicate of the proceedings of eachmeeting of Securityholders shall be prepared by the secretary of the meetingand there shall be attached to said record the original reports of theinspectors of votes on any vote by ballot taken thereat and affidavits by oneor more Persons having knowledge of the facts setting forth a copy of thenotice of the meeting and showing that said notice was mailed as provided in Section 8.02.The record shall show the serial numbers of the Debt Securities voting in favorof or against any resolution. The record shall be signed and verified by theaffidavits of the permanent chairman and secretary of the meeting and one ofthe duplicates shall be delivered to the Company and the other to the Trusteeto be preserved by the Trustee, the latter to have attached thereto the ballotsvoted at the meeting.  Any record sosigned and verified shall be conclusive evidence of the matters thereinstated.  

 

SECTION 8.07.  Quorum; Actions.

 

The Persons entitled to vote a majority in outstanding principal amountof the Debt Securities shall constitute a quorum for a meeting ofSecurityholders; provided, however, that if any action is to betaken at such meeting with respect to a consent, waiver, request, demand,notice, authorization, direction or other action which may be given by theholders of not less than a specified percentage in outstanding principal amountof the Debt Securities, the Persons holding or representing such specifiedpercentage in outstanding principal amount of the Debt Securities willconstitute a quorum. In the absence of a quorum within 30 minutes of the timeappointed for any such meeting, the meeting shall, if convened at the requestof Securityholders, be dissolved. In any other case the meeting may beadjourned for a period of not less than 10 days as determined by the permanentchairman of the meeting prior to the adjournment of such meeting. In theabsence of a quorum at any such adjourned meeting, such adjourned meeting maybe further adjourned for a period of not less than 10 days as determined by thepermanent chairman of the meeting prior to the adjournment of such adjournedmeeting. Notice of the reconvening of any adjourned meeting shall be given asprovided in Section 8.02, except that such notice need be given only oncenot less than five days prior to the date on which the meeting is scheduled tobe reconvened. Notice of the reconvening of an adjourned meeting shall stateexpressly the percentage, as provided above, of the outstanding principalamount of the Debt Securities which shall constitute a quorum.

 

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Except as limited by the proviso in the first paragraph of Section 9.02,any resolution presented to a meeting or adjourned meeting duly reconvened atwhich a quorum is present as aforesaid may be adopted by the affirmative voteof the holders of not less than a majority in outstanding principal amount ofthe Debt Securities; provided, however, that, except as limitedby the proviso in the first paragraph of Section 9.02, any resolution withrespect to any consent, waiver, request, demand, notice, authorization,direction or other action that this Indenture expressly provides may be givenby the holders of not less than a specified percentage in outstanding principalamount of the Debt Securities may be adopted at a meeting or an adjournedmeeting duly reconvened and at which a quorum is present as aforesaid only bythe affirmative vote of the holders of not less than such specified percentagein outstanding principal amount of the Debt Securities.

 

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

 

SECTION 8.08.  Written Consent Without a Meeting.

 

Whenever under this Indenture, Securityholders are required orpermitted to take any action by vote, such action may be taken without ameeting on written consent, setting forth the action so taken, signed by theSecurityholders of all outstanding Debt Securities entitled to vote thereon.  No consent shall be effective to take theaction referred to therein unless, within sixty days of the earliest datedconsent delivered in the manner required by this paragraph to the Trustee,written consents signed by a sufficient number of Securityholders to takeaction are delivered to the Trustee at its Principal Office.  Delivery made to the Trustee at its PrincipalOffice, shall be by hand or by certificated or registered mail, return receiptrequested.  Written consent thus given bythe Securityholders of such number of Debt Securities as is required hereunder,shall have the same effect as a valid vote of Securityholders of such number ofDebt Securities.

 

ARTICLE IXSUPPLEMENTAL INDENTURES

 

SECTION 9.01.  Supplemental Indentures without Consent ofSecurityholders.

 

The Company, when authorized by a Board Resolution, and the Trustee mayfrom time to time and at any time enter into an indenture or indenturessupplemental hereto, without the consent of the Securityholders, for one ormore of the following purposes:

 

(a)           to evidence thesuccession of another Person to the Company, or successive successions, and theassumption by the successor Person of the covenants, agreements and obligationsof the Company, pursuant to Article XI hereof;

 

(b)           to add to the covenantsof the Company such further covenants, restrictions or conditions for theprotection of the holders of Debt Securities as the Board of Directors shallconsider to be for the protection of the holders of such Debt Securities, andto make the occurrence, or the occurrence and continuance, of a Default in anyof such additional

 

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covenants, restrictions or conditions a Default or anEvent of Default permitting the enforcement of all or any of the severalremedies provided in this Indenture as herein set forth; provided, however,that in respect of any such additional covenant, restriction or condition suchsupplemental indenture may provide for a particular period of grace afterdefault (which period may be shorter or longer than that allowed in the case ofother defaults) or may provide for an immediate enforcement upon such defaultor may limit the remedies available to the Trustee upon such default;

 

(c)           to cure any ambiguityor to correct or supplement any provision contained herein or in anysupplemental indenture which may be defective or inconsistent with any otherprovision contained herein or in any supplemental indenture, or to make oramend such other provisions in regard to matters or questions arising underthis Indenture; provided, that any such action shall not adverselyaffect the interests of the holders of the Debt Securities;

 

(d)           to add to, delete from,or revise the terms of Debt Securities, including, without limitation, any termsrelating to the issuance, exchange, registration or transfer of DebtSecurities, including to provide for transfer procedures and restrictionssubstantially similar to those applicable to the Capital Securities, asrequired by Section 2.05 (for purposes of assuring that no registration ofDebt Securities is required under the Securities Act of 1933, as amended);provided, that any such action shall not adversely affect the interests of theholders of the Debt Securities then outstanding (it being understood, forpurposes of this proviso, that transfer restrictions on Debt Securitiessubstantially similar to those applicable to Capital Securities shall not bedeemed to adversely affect the holders of the Debt Securities);

 

(e)           to evidence and providefor the acceptance of appointment hereunder by a successor Trustee with respectto the Debt Securities and to add to or change any of the provisions of thisIndenture as shall be necessary to provide for or facilitate the administrationof the trusts hereunder by more than one Trustee, pursuant to the requirementsof Section 6.10;

 

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

 

(g)           to provide for theissuance of and establish the form and terms and conditions of the DebtSecurities, to establish the form of any certifications required to befurnished pursuant to the terms of this Indenture or the Debt Securities, or toadd to the rights of the holders of Debt Securities.

 

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

 

Any supplemental indenture authorized by the provisions of this Section 9.01may be executed by the Company and the Trustee without the consent of theholders of any of the Debt Securities at the time outstanding, notwithstandingany of the provisions of Section 9.02.

 

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SECTION 9.02.  Supplemental Indentures with Consent ofSecurityholders.

 

With the consent (evidenced as provided in Section 7.01) of theholders of not less than a majority in aggregate principal amount of the DebtSecurities at the time outstanding affected by such supplemental indenture, theCompany, when authorized by a Board Resolution, and the Trustee may from timeto time and at any time enter into an indenture or indentures supplementalhereto (which shall conform to the provisions of the Trust Indenture Act, thenin effect, applicable to indentures qualified thereunder) for the purpose ofadding any provisions to or changing in any manner or eliminating any of theprovisions of this Indenture or of any supplemental indenture or of modifyingin any manner the rights of the holders of the Debt Securities; provided,however, that no such supplemental indenture shall without such consentof the holders of each Debt Security then outstanding and affected thereby (i) changethe Maturity Date of any Debt Security, or reduce the principal amount thereofor any premium thereon, or reduce the rate (or manner of calculation of therate) or extend the time of payment of interest thereon, or reduce (other thanas a result of the maturity or earlier redemption of any such Debt Security inaccordance with the terms of this Indenture and such Debt Security) or increasethe aggregate principal amount of Debt Securities then outstanding, or changeany of the redemption provisions, or make the principal thereof or any interestor premium thereon payable in any coin or currency other than United StatesDollars, or impair or affect the right of any Securityholder to institute suitfor payment thereof or impair the right of repayment, if any, at the option ofthe holder, or (ii) reduce the aforesaid percentage of Debt Securities theholders of which are required to consent to any such supplemental indenture;and provided, further, that if the Debt Securities are held bythe Trust or a trustee of such trust, such supplemental indenture shall not beeffective until the holders of a majority in Liquidation Amount of theoutstanding Capital Securities shall have consented to such supplementalindenture; provided, further, that if the consent of theSecurityholder of each outstanding Debt Security is required, such supplementalindenture shall not be effective until each holder of the outstanding CapitalSecurities shall have consented to such supplemental indenture.

 

Upon the request of the Company accompanied by a Board Resolutionauthorizing the execution of any such supplemental indenture, and upon thefiling with the Trustee of evidence of the consent of Securityholders (andholders of Capital Securities, if required) as aforesaid, the Trustee shalljoin with the Company in the execution of such supplemental indenture unlesssuch supplemental indenture affects the Trustee’s own rights, duties orimmunities under this Indenture or otherwise, in which case the Trustee may inits discretion, but shall not be obligated to, enter into such supplementalindenture.

 

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

 

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It shall not be necessary for the consent of the Securityholders underthis Section 9.02 to approve the particular form of any proposedsupplemental indenture, but it shall be sufficient if such consent shallapprove the substance thereof.

 

SECTION 9.03.  Effect of Supplemental Indentures.

 

Upon the execution of any supplemental indenture pursuant to theprovisions of this Article IX, this Indenture shall be and be deemed to bemodified and amended in accordance therewith and the respective rights,limitations of rights, obligations, duties and immunities under this Indentureof the Trustee, the Company and the holders of Debt Securities shall thereafterbe determined, exercised and enforced hereunder subject in all respects to suchmodifications and amendments and all the terms and conditions of any suchsupplemental indenture shall be and be deemed to be part of the terms andconditions of this Indenture for any and all purposes.

 

SECTION 9.04.  Notation on Debt Securities.

 

Debt Securities authenticated and delivered after the execution of anysupplemental indenture pursuant to the provisions of this Article IX maybear a notation as to any matter provided for in such supplemental indenture.If the Company or the Trustee shall so determine, new Debt Securities somodified as to conform, in the opinion of the Board of Directors of theCompany, to any modification of this Indenture contained in any suchsupplemental indenture may be prepared and executed by the Company,authenticated by the Trustee or the Authenticating Agent and delivered inexchange for the Debt Securities then outstanding.

 

SECTION 9.05.  Evidence of Compliance of SupplementalIndenture to be furnished to Trustee.

 

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

 

ARTICLE XREDEMPTION OF SECURITIES

 

SECTION 10.01.  Optional Redemption.

 

At any time the Company shall have the right, subject to the receipt bythe Company of prior approval from any regulatory authority with jurisdictionover the Company if such approval is then required under applicable capitalguidelines or policies of such regulatory authority, to redeem the DebtSecurities, in whole or (provided that all accrued and unpaid interest has beenpaid on all Debt Securities for all Interest Periods terminating on or prior to

 

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such date)from time to time in part, on any March 15,June 15, September 15 or December 15on or after December 15, 2010 (the “RedemptionDate”), at the Redemption Price.

 

SECTION 10.02.  Special Event Redemption.

 

If a Special Event shall occur and be continuing, the Company shallhave the right, subject to the receipt by the Company of prior approval fromany regulatory authority with jurisdiction over the Company if such approval isthen required under applicable capital guidelines or policies of suchregulatory authority, to redeem the Debt Securities, in whole or in part, atany time within 90 days following the occurrence of such Special Event (the “SpecialRedemption Date”), at the Special Redemption Price.

 

SECTION 10.03.  Notice of Redemption; Selection of DebtSecurities.

 

In case the Company shall desire to exercise the right to redeem all,or, as the case may be, any part of the Debt Securities, it shall fix a datefor redemption and shall mail, or cause the Trustee to mail (at the expense ofthe Company) a notice of such redemption at least 30 and not more than 60 daysprior to the date fixed for redemption to the holders of Debt Securities so to beredeemed as a whole or in part at their last addresses as the same appear onthe Debt Security Register. Such mailing shall be by first class mail. Thenotice if mailed in the manner herein provided shall be conclusively presumedto have been duly given, whether or not the holder receives such notice. In anycase, failure to give such notice by mail or any defect in the notice to theholder of any Debt Security designated for redemption as a whole or in partshall not affect the validity of the proceedings for the redemption of anyother Debt Security.

 

Each such notice of redemption shall specify the CUSIP number, if any,of the Debt Securities to be redeemed, the date fixed for redemption, theredemption price (or manner of calculation of the price) at which DebtSecurities are to be redeemed, the place or places of payment, that paymentwill be made upon presentation and surrender of such Debt Securities, thatinterest accrued to the date fixed for redemption will be paid as specified insaid notice, and that on and after said date interest thereon or on theportions thereof to be redeemed will cease to accrue. If less than all the DebtSecurities are to be redeemed the notice of redemption shall specify thenumbers of the Debt Securities to be redeemed. In case the Debt Securities areto be redeemed in part only, the notice of redemption shall state the portionof the principal amount thereof to be redeemed and shall state that on andafter the date fixed for redemption, upon surrender of such Debt Security, anew Debt Security or Debt Securities in principal amount equal to theunredeemed portion thereof will be issued.

 

Prior to 10:00 a.m. New York City time on the Redemption Date orthe Special Redemption Date specified in the notice of redemption given asprovided in this Section, the Company will deposit with the Trustee or with oneor more Paying Agents an amount of money sufficient to redeem on the redemptiondate all the Debt Securities so called for redemption at the appropriateredemption price, together with unpaid interest accrued to such date.

 

The Company will give the Trustee notice not less than 45 nor more than60 days prior to the Redemption Date as to the Redemption Price at which theDebt Securities are to be redeemed and the aggregate principal amount of DebtSecurities to be redeemed and the Trustee

 

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shall select,in such manner as in its sole discretion it shall deem appropriate and fair,the Debt Securities or portions thereof (in integral multiples of $1,000) to beredeemed.

 

SECTION 10.04.  Payment of Debt Securities Called forRedemption.

 

If notice of redemption has been given as provided in Section 10.03,the Debt Securities or portions of Debt Securities with respect to which suchnotice has been given shall become due and payable on the Redemption Date orthe Special Redemption Date (as the case may be) and at the place or placesstated in such notice at the applicable redemption price, together withinterest accrued to the date fixed for redemption, and on and after saidRedemption Date or the Special Redemption Date (unless the Company shalldefault in the payment of such Debt Securities at the redemption price,together with unpaid interest accrued thereon to said date) interest on theDebt Securities or portions of Debt Securities so called for redemption shallcease to accrue. On presentation and surrender of such Debt Securities at aplace of payment specified in said notice, such Debt Securities or thespecified portions thereof shall be paid and redeemed by the Company at theapplicable redemption price, together with unpaid interest accrued thereon tothe Redemption Date or the Special Redemption Date (as the case may be).

 

Upon presentation of any Debt Security redeemed in part only, theCompany shall execute and the Trustee shall authenticate and make available fordelivery to the holder thereof, at the expense of the Company, a new DebtSecurity or Debt Securities of authorized denominations in principal amountequal to the unredeemed portion of the Debt Security so presented.

 

ARTICLE XICONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE

 

SECTION 11.01.  Company May Consolidate, etc., onCertain Terms.

 

Nothing contained in this Indenture or in the Debt Securities shall preventany consolidation or merger of the Company with or into any other corporationor corporations (whether or not affiliated with the Company) or successiveconsolidations or mergers in which the Company or its successor or successorsshall be a party or parties, or shall prevent any sale, conveyance, transfer orother disposition of all or substantially all of the property or capital stockof the Company or its successor or successors to any other corporation (whetheror not affiliated with the Company, or its successor or successors) authorizedto acquire and operate the same; provided, however, that theCompany hereby covenants and agrees that, (i) upon any such consolidation,merger (where the Company is not the surviving corporation), sale, conveyance,transfer or other disposition, the successor entity shall be a corporationorganized and existing under the laws of the United States or any state thereofor the District of Columbia (unless such corporation has (1) agreed tomake all payments due in respect of the Debt Securities or, if outstanding, theCapital Securities and Capital Securities Guarantee without withholding ordeduction for, or on account of, any taxes, duties, assessments or othergovernmental charges under the laws or regulations of the jurisdiction oforganization or residence (for tax purposes) of such corporation or anypolitical subdivision or taxing authority thereof or therein unless required byapplicable law, in which case such corporation shall have agreed to pay such

 

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additionalamounts as shall be required so that the net amounts received and retained bythe holders of such Debt Securities or Capital Securities, as the case may be,after payment of all taxes (including withholding taxes), duties, assessmentsor other governmental charges, will be equal to the amounts that such holderswould have received and retained had no such taxes (including withholdingtaxes), duties, assessments or other governmental charges been imposed, (2) irrevocablyand unconditionally consented and submitted to the jurisdiction of any UnitedStates federal court or New York state court, in each case located in The Cityof New York, Borough of Manhattan, in respect of any action, suit or proceedingagainst it arising out of or in connection with this Indenture, the DebtSecurities, the Capital Securities Guarantee or the Declaration and irrevocablyand unconditionally waived, to the fullest extent permitted by law, anyobjection to the laying of venue in any such court or that any such action,suit or proceeding has been brought in an inconvenient forum and (3) irrevocablyappointed an agent in The City of New York for service of process in anyaction, suit or proceeding referred to in clause (2) above) and suchcorporation expressly assumes all of the obligations of the Company under theDebt Securities, this Indenture, the Capital Securities Guarantee and theDeclaration and (ii) after giving effect to any such consolidation,merger, sale, conveyance, transfer or other disposition, no Default or Event ofDefault shall have occurred and be continuing. 

 

SECTION 11.02.  Successor Entity to be Substituted.

 

In case of any such consolidation, merger, sale, conveyance, transferor other disposition contemplated in Section 11.01 and upon the assumptionby the successor entity, by supplemental indenture, executed and delivered tothe Trustee and reasonably satisfactory in form to the Trustee, of the due andpunctual payment of the principal of and premium, if any, and interest on allof the Debt Securities and the due and punctual performance and observance ofall of the covenants and conditions of this Indenture to be performed orobserved by the Company, such successor entity shall succeed to and be substitutedfor the Company, with the same effect as if it had been named herein as theCompany, and thereupon the predecessor entity shall be relieved of any furtherliability or obligation hereunder or upon the Debt Securities. Such successorentity thereupon may cause to be signed, and may issue either in its own nameor in the name of the Company, any or all of the Debt Securities issuablehereunder which theretofore shall not have been signed by the Company anddelivered to the Trustee or the Authenticating Agent; and, upon the order ofsuch successor entity instead of the Company and subject to all the terms,conditions and limitations in this Indenture prescribed, the Trustee or theAuthenticating Agent shall authenticate and deliver any Debt Securities whichpreviously shall have been signed and delivered by the officers of the Company,to the Trustee or the Authenticating Agent for authentication, and any DebtSecurities which such successor entity thereafter shall cause to be signed anddelivered to the Trustee or the Authenticating Agent for that purpose. All theDebt Securities so issued shall in all respects have the same legal rank andbenefit under this Indenture as the Debt Securities theretofore or thereafterissued in accordance with the terms of this Indenture as though all of suchDebt Securities had been issued at the date of the execution hereof.

 

SECTION 11.03.  Opinion of Counsel to be Given to Trustee.

 

The Trustee, subject to the provisions of Sections 6.01 and 6.02, shallreceive, in addition to the Opinion of Counsel required by Section 9.05,an Opinion of Counsel as

 

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conclusiveevidence that any consolidation, merger, sale, conveyance, transfer or otherdisposition, and any assumption, permitted or required by the terms of this Article XIcomplies with the provisions of this Article XI.

 

ARTICLE XIISATISFACTION AND DISCHARGE OF INDENTURE

 

SECTION 12.01.  Discharge of Indenture.

 

When (a) the Company shall deliver to the Trustee for cancellationall Debt Securities theretofore authenticated (other than any Debt Securitieswhich shall have been destroyed, lost or stolen and which shall have beenreplaced or paid as provided in Section 2.06) and not theretoforecanceled, or (b) all the Debt Securities not theretofore canceled ordelivered to the Trustee for cancellation shall have become due and payable, orare by their terms to become due and payable within one year or are to becalled for redemption within one year under arrangements satisfactory to theTrustee for the giving of notice of redemption, and the Company shall depositwith the Trustee, in trust, funds, which shall be immediately due and payable,sufficient to pay at maturity or upon redemption all of the Debt Securities(other than any Debt Securities which shall have been destroyed, lost or stolenand which shall have been replaced or paid as provided in Section 2.06)not theretofore canceled or delivered to the Trustee for cancellation,including principal and premium, if any, and interest due or to become due tosuch 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 Debt Securities (1) theretofore repaid to theCompany in accordance with the provisions of Section 12.04, or (2) paidto any state or to the District of Columbia pursuant to its unclaimed propertyor similar laws, and if in the case of either clause (a) or clause (b) theCompany shall also pay or cause to be paid all other sums payable hereunder bythe Company, then this Indenture shall cease to be of further effect except forthe provisions of Sections 2.05, 2.06, 3.01, 3.02, 3.04, 6.06, 6.09 and 12.04hereof, which shall survive until such Debt Securities shall mature or areredeemed, as the case may be, and are paid in full. Thereafter, Sections 6.06,6.09 and 12.04 shall survive, and the Trustee, on demand of the Companyaccompanied by an Officers’ Certificate and an Opinion of Counsel, each statingthat all conditions precedent herein provided for relating to the satisfactionand discharge of this Indenture have been complied with, and at the cost andexpense of the Company, shall execute proper instruments acknowledgingsatisfaction of and discharging this Indenture, the Company, however, herebyagreeing to reimburse the Trustee for any costs or expenses thereafterreasonably and properly incurred by the Trustee in connection with thisIndenture or the Debt Securities.

 

SECTION 12.02.  Deposited Moneys to be Held in Trust byTrustee.

 

Subject to the provisions of Section 12.04, all moneys depositedwith the Trustee pursuant to Section 12.01 shall be held in trust andapplied by it to the payment, either directly or through any Paying Agent (includingthe Company if acting as its own Paying Agent), to the holders of theparticular Debt Securities for the payment of which such moneys have beendeposited with the Trustee, of all sums due and to become due thereon forprincipal, and premium, if any, and interest.

 

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SECTION 12.03.  Paying Agent to Repay Moneys Held.

 

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

 

SECTION 12.04.  Return of Unclaimed Moneys.

 

Any moneys deposited with or paid to the Trustee or any Paying Agentfor payment of the principal of, and premium, if any, or interest on DebtSecurities and not applied but remaining unclaimed by the holders of DebtSecurities for two years after the date upon which the principal of, andpremium, if any, or interest on such Debt Securities, as the case may be, shallhave become due and payable, shall be repaid to the Company by the Trustee orsuch Paying Agent on written demand; and the holder of any of the Debt Securitiesshall thereafter look only to the Company for any payment which such holder maybe entitled to collect and all liability of the Trustee or such Paying Agentwith respect to such moneys shall thereupon cease.

 

ARTICLE XIIIIMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

 

SECTION 13.01.  Indenture and Debt Securities SolelyCorporate Obligations.

 

No recourse for the payment of the principal of or premium, if any, orinterest on any Debt Security, or for any claim based thereon or otherwise inrespect thereof, and no recourse under or upon any obligation, covenant oragreement of the Company in this Indenture or in any supplemental indenture, orin any such Debt Security, or because of the creation of any indebtednessrepresented thereby, shall be had against any incorporator, stockholder,officer, director, employee or agent, as such, past, present or future, of theCompany or of any predecessor or successor corporation of the Company, eitherdirectly or through the Company or any successor corporation of the Company,whether by virtue of any constitution, statute or rule of law, or by theenforcement of any assessment or penalty or otherwise; it being expresslyunderstood that all such liability is hereby expressly waived and released as acondition of, and as a consideration for, the execution of this Indenture andthe issue of the Debt Securities.

 

ARTICLE XIVMISCELLANEOUS PROVISIONS

 

SECTION 14.01.  Successors.

 

All the covenants, stipulations, promises and agreements of the Companycontained in this Indenture shall bind its successors and assigns whether soexpressed or not.

 

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SECTION 14.02.  Official Acts by Successor Entity.

 

Any act or proceeding by any provision of this Indenture authorized orrequired to be done or performed by any board, committee or officer of theCompany shall and may be done and performed with like force and effect by thelike board, committee, officer or other authorized Person of any entity thatshall at the time be the lawful successor of the Company.

 

SECTION 14.03.  Surrender of Company Powers.

 

The Company by instrument in writing executed by authority of 2/3(two-thirds) of its Board of Directors and delivered to the Trustee maysurrender any of the powers reserved to the Company and thereupon such power sosurrendered shall terminate both as to the Company and as to any permittedsuccessor.

 

SECTION 14.04.  Addresses for Notices, etc.

 

Any notice or demand which by any provision of this Indenture is requiredor permitted to be given or served by the Trustee or by the Securityholders onthe Company may be given or served in writing, duly signed by the party givingsuch notice, and shall be delivered, telecopied (which telecopy shall befollowed by notice delivered or mailed by first class mail) or mailed by firstclass mail to the Company at:

 

The Bank Holdings

9990 Double R Boulevard

Reno, Nevada 89521

Attention:  Jack Buchold

 

Any notice, direction, request or demand by any Securityholder or theCompany to or upon the Trustee shall be deemed to have been sufficiently givenor made, for all purposes, if given or made in writing at the office of U.S.Bank National Association at:

 

One Federal Street, 3rdFloorBoston, Massachusetts 02110Attn: Corporate Trust Services – The BankHoldings Statutory Trust I

 

SECTION 14.05.  Governing Law.

 

This Indenture and the Debt Securities shall each be governed by, andconstrued in accordance with, the laws of the State of New York, without regardto conflict of laws principles of said State other than Section 5-1401 ofthe New York General Obligations Law.

 

SECTION 14.06.  Evidence of Compliance with ConditionsPrecedent.

 

Upon any application or demand by the Company to the Trustee to takeany action under any of the provisions of this Indenture, the Company shallfurnish to the Trustee an Officers’ Certificate stating that in the opinion ofthe signers all conditions precedent, if any, provided for in this Indenturerelating to the proposed action have been complied with and an Opinion ofCounsel stating that, in the opinion of such counsel, all such conditionsprecedent

 

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have beencomplied with (except that no such Opinion of Counsel is required to befurnished to the Trustee in connection with the authentication and issuance ofDebt Securities issued on the date of this Indenture).

 

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

 

SECTION 14.07.  Non-Business Days.

 

Notwithstanding anything to the contrary contained herein, if anyInterest Payment Date, other than on the Maturity Date, any Redemption Date orthe Special Redemption Date, falls on a day that is not a Business Day, thenany interest payable will be paid on, and such Interest Payment Date will bemoved to, the next succeeding Business Day, and additional interest will accruefor each day that such payment is delayed as a result thereof.  If the Maturity Date, any Redemption Date orthe Special Redemption Date falls on a day that is not a Business Day, then theprincipal, premium, if any, and/or interest payable on such date will be paidon the next succeeding Business Day, and no additional interest will accrue inrespect of such payment made on such next succeeding Business Day.

 

SECTION 14.08.  Table of Contents, Headings, etc.

 

The table of contents and the titles and headings of the articles andsections of this Indenture have been inserted for convenience of referenceonly, are not to be considered a part hereof, and shall in no way modify orrestrict any of the terms or provisions hereof.

 

SECTION 14.09.  Execution in Counterparts.

 

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

 

SECTION 14.10.  Severability.

 

In case any one or more of the provisions contained in this Indentureor in the Debt Securities shall for any reason be held to be invalid, illegalor unenforceable in any respect, such invalidity, illegality orunenforceability shall not affect any other provisions of this Indenture or ofsuch Debt Securities, but this Indenture and such Debt Securities shall beconstrued as if such invalid or illegal or unenforceable provision had neverbeen contained herein or therein.

 

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SECTION 14.11.  Assignment.

 

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

 

SECTION 14.12.  Acknowledgment of Rights.

 

The Company acknowledges that, with respect to any Debt Securities heldby the Trust or the Institutional Trustee of the Trust, if the InstitutionalTrustee of the Trust fails to enforce its rights under this Indenture as theholder of Debt Securities held as the assets of the Trust after the holders ofa majority in Liquidation Amount of the Capital Securities of the Trust have sodirected in writing such Institutional Trustee, a holder of record of suchCapital Securities may to the fullest extent permitted by law institute legalproceedings directly against the Company to enforce such Institutional Trustee’srights under this Indenture without first instituting any legal proceedingsagainst such Institutional Trustee or any other Person. Notwithstanding theforegoing, if an Event of Default has occurred and is continuing and such eventis attributable to the failure of the Company to pay interest (or premium, ifany) or principal on the Debt Securities on the date such interest (or premium,if any) or principal is otherwise due and payable (or in the case ofredemption, on the redemption date), the Company acknowledges that a holder ofrecord of Capital Securities of the Trust may directly institute a proceedingagainst the Company for enforcement of payment to such holder directly of theprincipal of (or premium, if any) or interest on the Debt Securities having anaggregate principal amount equal to the aggregate Liquidation Amount of theCapital Securities of such holder on or after the respective due date specifiedin the Debt Securities.

 

ARTICLE XVSUBORDINATION OF DEBT SECURITIES

 

SECTION 15.01.  Agreement to Subordinate.

 

The Company covenants and agrees, and each holder of Debt Securitiesissued hereunder and under any supplemental indenture (the “AdditionalProvisions”) by such Securityholder’s acceptance thereof likewise covenants andagrees, that all Debt Securities shall be issued subject to the provisions ofthis Article XV; and each holder of a Debt Security, whether upon originalissue or upon transfer or assignment thereof, accepts and agrees to be bound bysuch provisions.

 

The payment by the Company of the payments due on all Debt Securitiesissued hereunder and under any Additional Provisions shall, to the extent andin the manner hereinafter set forth, be subordinated and junior in right ofpayment to the prior payment in full of all Senior Indebtedness of the Company,whether outstanding at the date of this Indenture or thereafter incurred.

 

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

 

SECTION 15.02.  Default on Senior Indebtedness.

 

In the event and during the continuation of any default by the Companyin the payment of principal, premium, interest or any other payment due on anySenior Indebtedness of the Company following any applicable grace period, or inthe event that the maturity of any Senior Indebtedness of the Company has beenaccelerated because of a default, and such acceleration has not been rescindedor canceled and such Senior Indebtedness has not been paid in full, then, ineither case, no payment shall be made by the Company with respect to thepayments due on the Debt Securities.

 

In the event that, notwithstanding the foregoing, any payment shall bereceived by the Trustee when such payment is prohibited by the precedingparagraph of this Section 15.02, such payment shall, subject to Section 15.06,be held in trust for the benefit of, and shall be paid over or delivered to,the holders of Senior Indebtedness or their respective representatives, or tothe trustee or trustees under any indenture pursuant to which any of suchSenior Indebtedness may have been issued, as their respective interests mayappear, but only to the extent that the holders of the Senior Indebtedness (ortheir representative or representatives or a trustee) notify the Trustee inwriting within 90 days of such payment of the amounts then due and owing on theSenior Indebtedness and only the amounts specified in such notice to theTrustee shall be paid to the holders of Senior Indebtedness.

 

SECTION 15.03.  Liquidation; Dissolution; Bankruptcy.

 

Upon any payment by the Company or distribution of assets of the Companyof any kind or character, whether in cash, property or securities, to creditorsupon any dissolution or winding-up or liquidation or reorganization of theCompany, whether voluntary or involuntary or in bankruptcy, insolvency,receivership or other proceedings, all amounts due upon all Senior Indebtednessof the Company shall first be paid in full, or payment thereof provided for inmoney in accordance with its terms, before any payment is made by the Companyon the Debt Securities; and upon any such dissolution or winding-up orliquidation or reorganization, any payment by the Company, or distribution ofassets of the Company of any kind or character, whether in cash, property orsecurities, to which the Securityholders or the Trustee would be entitled toreceive from the Company, except for the provisions of this Article XV,shall be paid by the Company, or by any receiver, trustee in bankruptcy,liquidating trustee, agent or other Person making such payment or distribution,or by the Securityholders or by the Trustee under this Indenture if received bythem or it, directly to the holders of Senior Indebtedness of the Company (prorata to such holders on the basis of the respective amounts of SeniorIndebtedness held by such holders, as calculated by the Company) or theirrepresentative or representatives, or to the trustee or trustees under anyindenture pursuant to which any instruments evidencing such Senior Indebtednessmay have been issued, as their respective interests may appear, to the extent necessaryto pay such Senior Indebtedness in full, in money or money’s worth, aftergiving effect to any concurrent payment or distribution to or for the holdersof such Senior Indebtedness, before any payment or distribution is made to theSecurityholders.

 

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In the event that, notwithstanding the foregoing, any payment ordistribution of assets of the Company of any kind or character, whether incash, property or securities, prohibited by the foregoing, shall be received bythe Trustee before all Senior Indebtedness of the Company is paid in full, orprovision is made for such payment in money in accordance with its terms, suchpayment or distribution shall be held in trust for the benefit of and shall be paidover or delivered to the holders of such Senior Indebtedness or theirrepresentative or representatives, or to the trustee or trustees under anyindenture pursuant to which any instruments evidencing such Senior Indebtednessmay have been issued, as their respective interests may appear, as calculatedby the Company, for application to the payment of all Senior Indebtedness ofthe Company remaining unpaid to the extent necessary to pay such SeniorIndebtedness in full in money in accordance with its terms, after giving effectto any concurrent payment or distribution to or for the benefit of the holdersof such Senior Indebtedness.

 

For purposes of this Article XV, the words “cash, property orsecurities” shall not be deemed to include shares of stock of the Company asreorganized or readjusted, or securities of the Company or any othercorporation provided for by a plan of reorganization or readjustment, thepayment of which is subordinated at least to the extent provided in this Article XVwith respect to the Debt Securities to the payment of all Senior Indebtednessof the Company, that may at the time be outstanding, provided, that (a) suchSenior Indebtedness is assumed by the new corporation, if any, resulting fromany such reorganization or readjustment, and (b) the rights of the holdersof such Senior Indebtedness are not, without the consent of such holders,altered by such reorganization or readjustment. The consolidation of theCompany with, or the merger of the Company into, another corporation or theliquidation or dissolution of the Company following the conveyance, transfer orother disposition of its property as an entirety, or substantially as anentirety, to another corporation upon the terms and conditions provided for in Article XIof this Indenture shall not be deemed a dissolution, winding-up, liquidation orreorganization for the purposes of this Section 15.03 if such othercorporation shall, as a part of such consolidation, merger, conveyance ortransfer, comply with the conditions stated in Article XI of thisIndenture. Nothing in Section 15.02 or in this Section 15.03 shallapply to claims of, or payments to, the Trustee under or pursuant to Section 6.06of this Indenture.

 

SECTION 15.04.  Subrogation.

 

Subject to the payment in full of all Senior Indebtedness of theCompany, the Securityholders shall be subrogated to the rights of the holdersof such Senior Indebtedness to receive payments or distributions of cash,property or securities of the Company applicable to such Senior Indebtednessuntil all payments due on the Debt Securities shall be paid in full; and, forthe purposes of such subrogation, no payments or distributions to the holdersof such Senior Indebtedness of any cash, property or securities to which theSecurityholders or the Trustee would be entitled except for the provisions ofthis Article XV, and no payment over pursuant to the provisions of this Article XVto or for the benefit of the holders of such Senior Indebtedness bySecurityholders or the Trustee, shall, as between the Company, its creditorsother than holders of Senior Indebtedness of the Company, and the holders ofthe Debt Securities be deemed to be a payment or distribution by the Company toor on account of such Senior Indebtedness. It is understood that the provisionsof this Article XV are and are intended solely for the purposes ofdefining the relative rights of the holders of the Debt Securities, on the onehand, and the holders of such Senior Indebtedness, on the other hand.

 

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Nothing contained in this Article XV or elsewhere in thisIndenture, any Additional Provisions or in the Debt Securities is intended toor shall impair, as between the Company, its creditors other than the holdersof Senior Indebtedness of the Company, and the holders of the Debt Securities,the obligation of the Company, which is absolute and unconditional, to pay tothe holders of the Debt Securities all payments on the Debt Securities as andwhen the same shall become due and payable in accordance with their terms, oris intended to or shall affect the relative rights of the holders of the DebtSecurities and creditors of the Company, other than the holders of SeniorIndebtedness of the Company, nor shall anything herein or therein prevent theTrustee or the holder of any Debt Security from exercising all remediesotherwise permitted by applicable law upon default under this Indenture,subject to the rights, if any, under this Article XV of the holders ofsuch Senior Indebtedness in respect of cash, property or securities of theCompany received upon the exercise of any such remedy.

 

Upon any payment or distribution of assets of the Company referred toin this Article XV, the Trustee, subject to the provisions of Article VIof this Indenture, and the Securityholders shall be entitled to conclusivelyrely upon any order or decree made by any court of competent jurisdiction inwhich such dissolution, winding-up, liquidation or reorganization proceedingsare 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 ofascertaining the Persons entitled to participate in such distribution, theholders of Senior Indebtedness and other indebtedness of the Company, theamount thereof or payable thereon, the amount or amounts paid or distributedthereon and all other facts pertinent thereto or to this Article XV.

 

SECTION 15.05.  Trustee to Effectuate Subordination.

 

Each Securityholder by such Securityholder’s acceptance thereofauthorizes and directs the Trustee on such Securityholder’s behalf to take suchaction as may be necessary or appropriate to effectuate the subordinationprovided in this Article XV and appoints the Trustee such Securityholder’sattorney-in-fact for any and all such purposes.

 

SECTION 15.06.  Notice by the Company.

 

The Company shall give prompt written notice to a Responsible Officerof the Trustee at the Principal Office of the Trustee of any fact known to theCompany that would prohibit the making of any payment of moneys to or by theTrustee in respect of the Debt Securities pursuant to the provisions of this Article XV.Notwithstanding the provisions of this Article XVor any other provision of this Indenture or any Additional Provisions, theTrustee shall not be charged with knowledge of the existence of any facts thatwould prohibit the making of any payment of moneys to or by the Trustee inrespect of the Debt Securities pursuant to the provisions of this Article XV,unless and until a Responsible Officer of the Trustee at the Principal Officeof the Trustee shall have received written notice thereof from the Company or aholder or holders of Senior Indebtedness or from any trustee therefor; andbefore the receipt of any such written notice, the Trustee, subject to theprovisions of Article VI of this Indenture, shall be entitled in allrespects to assume that no such facts exist; provided, however,that if the Trustee shall not have received the notice provided for in this Section 15.06at least two Business Days prior to the date upon which by the terms hereof anymoney may become payable for any

 

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purpose (including,without limitation, the payment of the principal of (or premium, if any) orinterest on any Debt Security), then, anything herein contained to the contrarynotwithstanding, the Trustee shall have full power and authority to receivesuch 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 byit within two Business Days prior to such date.

 

The Trustee, subject to the provisions of Article VI of this Indenture,shall be entitled to conclusively rely on the delivery to it of a writtennotice by a Person representing himself or herself to be a holder of SeniorIndebtedness of the Company (or a trustee or representative on behalf of suchholder) to establish that such notice has been given by a holder of such SeniorIndebtedness or a trustee or representative on behalf of any such holder orholders. In the event that the Trustee determines in good faith that furtherevidence is required with respect to the right of any Person as a holder ofsuch Senior Indebtedness to participate in any payment or distribution pursuantto this Article XV, the Trustee may request such Person to furnishevidence to the reasonable satisfaction of the Trustee as to the amount of suchSenior Indebtedness held by such Person, the extent to which such Person isentitled to participate in such payment or distribution and any other factspertinent to the rights of such Person under this Article XV, and, if suchevidence is not furnished, the Trustee may defer any payment to such Personpending judicial determination as to the right of such Person to receive suchpayment.

 

SECTION 15.07.  Rights of the Trustee, Holders of SeniorIndebtedness.

 

The Trustee in its individual capacity shall be entitled to all therights set forth in this Article XV in respect of any Senior Indebtednessat any time held by it, to the same extent as any other holder of SeniorIndebtedness, and nothing in this Indenture or any Additional Provisions shalldeprive the Trustee of any of its rights as such holder.

 

With respect to the holders of Senior Indebtedness of the Company, theTrustee undertakes to perform or to observe only such of its covenants andobligations as are specifically set forth in this Article XV, and noimplied covenants or obligations with respect to the holders of such SeniorIndebtedness shall be read into this Indenture or any Additional Provisionsagainst the Trustee. The Trustee shall not owe or be deemed to owe anyfiduciary duty to the holders of such Senior Indebtedness and, subject to theprovisions of Article VI of this Indenture, the Trustee shall not beliable to any holder of such Senior Indebtedness if it shall pay over ordeliver to Securityholders, the Company or any other Person money or assets towhich any holder of such Senior Indebtedness shall be entitled by virtue ofthis Article XV or otherwise.

 

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

 

SECTION 15.08.  Subordination May Not Be Impaired.

 

No right of any present or future holder of any Senior Indebtedness ofthe Company to enforce subordination as herein provided shall at any time inany way be prejudiced or impaired by any act or failure to act on the part ofthe Company, or by any act or failure to act, in good faith, by any suchholder, or by any noncompliance by the Company, with the terms,

 

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provisions andcovenants of this Indenture, regardless of any knowledge thereof that any suchholder may have or otherwise be charged with.

 

Without in any way limiting the generality of the foregoing paragraph,the holders of Senior Indebtedness of the Company may, at any time and fromtime to time, without the consent of or notice to the Trustee or theSecurityholders, without incurring responsibility to the Securityholders andwithout impairing or releasing the subordination provided in this Article XVor the obligations hereunder of the holders of the Debt Securities to theholders of such Senior Indebtedness, do any one or more of the following: (a) changethe manner, place or terms of payment or extend the time of payment of, orrenew or alter, such Senior Indebtedness, or otherwise amend or supplement in anymanner such Senior Indebtedness or any instrument evidencing the same or anyagreement under which such Senior Indebtedness is outstanding; (b) sell,exchange, release or otherwise deal with any property pledged, mortgaged orotherwise securing such Senior Indebtedness; (c) release any Person liablein any manner for the collection of such Senior Indebtedness; and (d) exerciseor refrain from exercising any rights against the Company, and any otherPerson.

 

U.S. Bank National Association, in its capacity as Trustee, herebyaccepts the trusts in this Indenture declared and provided, upon the terms andconditions herein above set forth.

 

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

 
|   | **The Bank Holdings**                           |
|--------|-------------------------------------------------|
|   |                                            |
|   |                                            |
|   | By:                                             | /s/ Hal Giomi |
|   | Name:                                           |   | Hal  Giomi |
|   | Title:                                          |   | CEO |
|   |                                            |
|   |                                            |
|   | **U.S.  Bank National Association, as Trustee** |
|   |                                            |
|   |                                            |
|   | By:                                             | /s/ Paul D. Allen |
|   | Name:                                           | Paul D. Allen |
|   | Title:                                          | Vice President |
|        |                                                 |  |  |  |  |  |  |

 

62

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EXHIBIT A

 

**FORM OFJUNIOR SUBORDINATED DEBT SECURITYDUE 2035**

 

[FORM OFFACE OF SECURITY]

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHERAPPLICABLE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST ORPARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCHREGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THEREGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BYITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITYONLY (A) TO THE COMPANY, (B) PURSUANT TO RULE 144A UNDER THESECURITIES ACT (“RULE 144A”), TO A PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIEDINSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNTOR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVENTHAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO A “NONU.S. PERSON” IN AN “OFFSHORE TRANSACTION” PURSUANT TO REGULATION S UNDER THESECURITIES ACT, (D) PURSUANT TO AN EXEMPTION FROM THE REGISTRATIONREQUIREMENTS OF THE SECURITIES ACT TO AN “ACCREDITED INVESTOR” WITHIN THEMEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, ORFOR THE ACCOUNT OF SUCH AN “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES ANDNOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTIONIN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLEEXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TOTHE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TOCLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITHTHE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY. THEHOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLYWITH THE FOREGOING RESTRICTIONS.

 

THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTSAND WARRANTS THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THISSECURITY UNLESS SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT.

 

THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES,REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT,

 

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

 

IN CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY WILLDELIVER TO THE COMPANY AND TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BEREQUIRED BY THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THEFOREGOING RESTRICTIONS.

 

THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKSHAVING A PRINCIPAL AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 INEXCESS THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING APRINCIPAL AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NOLEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TOBE THE HOLDER OF THIS SECURITY FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO,THE RECEIPT OF DISTRIBUTIONS ON THIS SECURITY, AND SUCH PURPORTED TRANSFEREESHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN THIS SECURITY.

 

THIS OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITEDSTATES OR ANY AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERALDEPOSIT INSURANCE CORPORATION. THIS OBLIGATION IS SUBORDINATED TO THE CLAIMS OFDEPOSITORS AND THE CLAIMS OF GENERAL AND SECURED CREDITORS OF THE COMPANY, ISINELIGIBLE AS COLLATERAL FOR A LOAN BY THE COMPANY OR ANY OF ITS SUBSIDIARIESAND IS NOT SECURED.

 

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 Form of Junior Subordinated Debt Securitydue 2035

 

of

 

TheBank Holdings

 

The Bank Holdings, a bankholding company incorporated in Nevada(the “Company”), for value received promises to pay to U.S. Bank NationalAssociation, not in its individual capacity but solely as Institutional Trusteefor The Bank Holdings Statutory Trust I,a Connecticut statutory trust (the “Holder”), or registered assigns, the principalsum of Fifteen Million Four Hundred Sixty FourThousand Dollars on December 15,2035 and to pay interest on said principal sum from November 3, 2005, or from the most recentinterest payment date (each such date, an “Interest Payment Date”) to which interesthas been paid or duly provided for, quarterly (subject to deferral as set forthherein) in arrears on March 15, June 15, September 15and December 15 of each yearcommencing December 15, 2005, at avariable per annum rate equal to LIBOR (as defined in the Indenture) plus 1.42% (the “Interest Rate”) (provided, however,that the Interest Rate for any Interest Payment Period may not exceed thehighest rate permitted by New York law, as the same may be modified by UnitedStates law of general applicability) until the principal hereof shall havebecome due and payable, and on any overdue principal and (without duplicationand to the extent that payment of such interest is enforceable under applicablelaw) on any overdue installment of interest at an annual rate equal to theInterest Rate in effect for each such Extension Period compounded quarterly.The amount of interest payable on any Interest Payment Date shall be computedon the basis of a 360-day year and the actual number of days elapsed in the relevantinterest period.  Notwithstandinganything to the contrary contained herein, if any Interest Payment Date, otherthan on the Maturity Date, any Redemption Date or the Special Redemption Date,falls on a day that is not a Business Day, then any interest payable will bepaid on, and such Interest Payment Date will be moved to, the next succeedingBusiness Day, and additional interest will accrue for each day that suchpayment is delayed as a result thereof. If the Maturity Date, any Redemption Date or the Special Redemption Datefalls on a day that is not a Business Day, then the principal, premium, if any,and/or interest payable on such date will be paid on the next succeedingBusiness Day, and no additional interest will accrue in respect of such paymentmade on such next succeeding Business Day. The interest installment so payable, and punctually paid or dulyprovided for, on any Interest Payment Date will, as provided in the Indenture,be paid to the Person in whose name this Debt Security (or one or morePredecessor Securities, as defined in said Indenture) is registered at theclose of business on the regular record date for such interest installment,except that interest and any Deferred Interest payable on the Maturity Dateshall be paid to the Person to whom principal is paid. Any such interestinstallment not punctually paid or duly provided for shall forthwith cease tobe payable to the registered holders on such regular record date and may bepaid to the Person in whose name this Debt Security (or one or more PredecessorDebt Securities) is registered at the close of business on a special recorddate to be fixed by the Trustee for the payment of such defaulted interest,notice whereof shall be given to the registered holders of the Debt Securitiesnot less than 10 days prior to such special record date, all as more fullyprovided in the Indenture. The principal of and interest on this Debt Securityshall be payable at the office or agency of the Trustee (or other Paying Agentappointed by the Company) maintained for that purpose in any coin or currencyof the United States of America that at the time of payment is legal tender forpayment of public and private debts; provided, however, that

 

A-3

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payment ofinterest may be made at the option of the Company by check mailed to theregistered holder at such address as shall appear in the Debt Security Registeror by wire transfer or immediately available funds to an account appropriatelydesignated by the holder hereof. Notwithstanding the foregoing, so long as theholder of this Debt Security is the Institutional Trustee, payment of theprincipal of and premium, if any, and interest on this Debt Security shall bemade in immediately available funds when due at such place and to such accountas may be designated by the Institutional Trustee. All payments in respect ofthis Debt Security shall be payable in any coin or currency of the UnitedStates of America that at the time of payment is legal tender for payment ofpublic and private debts.

 

Upon submission of Notice (as defined in the Indenture) and so long asit is acting in good faith, and so long as no Event of Default pursuant toparagraphs (c), (e) or (f) of Section 5.01 of the Indenture hasoccurred and is continuing the Company shall have the right, from time to timeand without causing an Event of Default, to defer payments of interest on theDebt Securities by extending the interest distribution period on the DebtSecurities at any time and from time to time during the term of the DebtSecurities, for up to 20 consecutive quarterly periods (each such extendedinterest distribution period, an “Extension Period”), during which ExtensionPeriod no interest shall be due and payable (except any Additional Interestthat may be due and payable). During any Extension Period, interest willcontinue to accrue on the Debt Securities, and interest on such accruedinterest (such accrued interest and interest thereon referred to herein as “DeferredInterest”) will accrue at an annual rate equal to the Interest Rate applicableduring such Extension Period, compounded quarterly from the date such DeferredInterest would have been payable were it not for the Extension Period, to theextent permitted by law. No Extension Period may end on a date other than anInterest Payment Date. At the end of any such Extension Period the Companyshall pay all Deferred Interest then accrued and unpaid on the Debt Securities;provided, however, that no Extension Period may extend beyond theMaturity Date; and provided, further, however, during any suchExtension Period, the Company may not (i) declare or pay any dividends ordistributions on, or redeem, purchase, acquire, or make a liquidation paymentwith respect to, any of the Company’s capital stock or (ii) make anypayment of principal of or premium, if any, or interest on or repay, repurchaseor redeem any debt securities of the Company that rank pari passu in allrespects with or junior in interest to the Debt Securities or (iii) makeany payment under any guarantees of the Company that rank in all respects *pari passu* with or junior in respect tothe Capital Securities Guarantee (other than (a) repurchases, redemptionsor other acquisitions of shares of capital stock of the Company (A) inconnection with any employment contract, benefit plan or other similararrangement with or for the benefit of one or more employees, officers,directors or consultants, (B) in connection with a dividend reinvestmentor stockholder stock purchase plan or (C) in connection with the issuanceof capital stock of the Company (or securities convertible into or exercisablefor such capital stock), as consideration in an acquisition transaction enteredinto prior to the applicable Extension Period, (b) as a result of anyexchange, reclassification, combination or conversion of any class or series ofthe Company’s capital stock (or any capital stock of a subsidiary of theCompany) for any class or series of the Company’s capital stock or of any classor series of the Company’s indebtedness for any class or series of the Company’scapital stock, (c) the purchase of fractional interests in shares of theCompany’s capital stock pursuant to the conversion or exchange provisions ofsuch capital stock or the security being converted or exchanged, (d) anydeclaration of a dividend in connection with any stockholder’s rights plan, orthe issuance of rights, stock or other property under any stockholder’s rightsplan, or the redemption or

 

A-4

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repurchase ofrights pursuant thereto, or (e) any dividend in the form of stock,warrants, options or other rights where the dividend stock or the stockissuable upon exercise of such warrants, options or other rights is the same stockas that on which the dividend is being paid or ranks *pari passu*with or junior to such stock). Prior to the termination of any ExtensionPeriod, the Company may further extend such Extension Period; provided,that no Extension Period (including all previous and further consecutiveextensions that are part of such Extension Period) shall exceed 20 consecutivequarterly periods, or extend beyond the Maturity Date. Upon the termination ofany Extension Period and upon the payment of all Deferred Interest, the Companymay commence a new Extension Period, subject to the foregoing requirements. TheCompany must give the Trustee notice of its election to begin any ExtensionPeriod (“Notice”) not later than the related regular record date for therelevant Interest Payment Date.  TheNotice shall describe why the Company has elected to begin an ExtensionPeriod.  The Notice shall acknowledge andaffirm the Company’s understanding that it is prohibited from issuing dividendsand other distributions during the Extension Period.  Upon receipt of the Notice, an InitialPurchaser shall have the right, at its sole discretion, to disclose the name ofthe Company, the fact that the Company has elected to begin an Extension Periodand other information that such Initial Purchaser, at its sole discretion,deems relevant to the Company’s election to begin an Extension Period.  The Trustee shall give notice of the Company’selection to begin a new Extension Period to the Securityholders.

 

The indebtedness evidenced by this Debt Security is, to the extentprovided in the Indenture, subordinate and junior in right of payment to theprior payment in full of all Senior Indebtedness, and this Debt Security isissued subject to the provisions of the Indenture with respect thereto. Eachholder of this Debt Security, by accepting the same, (a) agrees to andshall be bound by such provisions, (b) authorizes and directs the Trusteeon such holder’s behalf to take such action as may be necessary or appropriateto acknowledge or effectuate the subordination so provided and (c) appointsthe Trustee such holder’s attorney-in-fact for any and all such purposes. Eachholder hereof, by such holder’s acceptance hereof, hereby waives all notice ofthe acceptance of the subordination provisions contained herein and in theIndenture by each holder of Senior Indebtedness, whether now outstanding orhereafter incurred, and waives reliance by each such holder upon saidprovisions.

 

The Company waives diligence, presentment, demand for payment, noticeof nonpayment, notice of protest, and all other demands and notices.

 

This Debt Security shall not be entitled to any benefit under theIndenture hereinafter referred to and shall not be valid or become obligatoryfor any purpose until the certificate of authentication hereon shall have beensigned by or on behalf of the Trustee.

 

The provisions of this Debt Security are continued on the reverse sidehereof and such continued provisions shall for all purposes have the sameeffect as though fully set forth at this place.

 

A-5

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

 
| ** ** | **The Bank Holdings** |
|------------|-----------------------|
| ** ** | ** **            |
| ** ** | ** **            |
|       | By:                   |   |
|       | Name:                 |   |
|       | Title:                |   |
|       |                  |
| Dated:     |                  | , 2005 |   |
|            |                       |  |  |  |  |  |

 

CERTIFICATE OFAUTHENTICATION

 

This is one of the Debt Securities referred to in the within-mentionedIndenture.

 
|   | U.S. Bank National  Association, not in its  individual capacity but solely as Trustee |
|--------|----------------------------------------------------------------------------------------|
|   |                                                                                   |
|   |                                                                                   |
|   | By:                                                                                    |   |
|   | Authorized  Signatory                                                                  |
|   |                                                                                   |
| Dated: |                                                                                   | , 2005 |   |
|        |                                                                                        |  |  |  |

 

A-6

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[FORM OFREVERSE OF SECURITY]

 

This Debt Security is one of a duly authorized series of DebtSecurities of the Company, all issued or to be issued pursuant to an Indenture(the “Indenture”), dated as of November 3,2005, duly executed and delivered between the Company and U.S. BankNational Association, as Trustee (the “Trustee”), to which Indenture and allindentures supplemental thereto reference is hereby made for a description ofthe rights, limitations of rights, obligations, duties and immunitiesthereunder of the Trustee, the Company and the holders of the Debt Securities(referred to herein as the “Debt Securities”) of which this Debt Security is apart. The summary of the terms of this Debt Security contained herein does notpurport to be complete and is qualified by reference to the Indenture.

 

Upon the occurrence and continuation of a Tax Event, an InvestmentCompany Event or a Capital Treatment Event (each a “Special Event”), this DebtSecurity may become due and payable, in whole or in part, at any time, within90 days following the occurrence of such Tax Event, Investment Company Event orCapital Treatment Event (the “Special Redemption Date”), as the case may be, atthe Special Redemption Price.

 

The Company shall also have the right to redeem this Debt Security atthe option of the Company, in whole or in part, on any March 15, June 15, September 15 or December 15 on or after December 15,2010 (a “Redemption Date”), at the Redemption Price.

 

Any redemption pursuant to the preceding paragraph will be made,subject to the receipt by the Company of prior approval from any regulatoryauthority with jurisdiction over the Company if such approval is then requiredunder applicable capital guidelines or policies of such regulatory authority,upon not less than 30 days’ nor more than 60 days’ notice. If the DebtSecurities are only partially redeemed by the Company, the Debt Securities willbe redeemed pro rata or by lot or by any other method utilized by theTrustee.

 

“Redemption Price” means 100% of the principal amount of the DebtSecurities being redeemed plus accrued and unpaid interest on such DebtSecurities to the Redemption Date.

 

“Special Redemption Price” means, with respect to the redemption of anyDebt Security following a Special Event, an amount in cash equal to 103.525% ofthe principal amount of Debt Securities to be redeemed prior to December 15, 2006 and thereafter equal tothe percentage of the principal amount of the Debt Securities that is specifiedbelow for the Special Redemption Date plus, in each case, unpaid interestaccrued thereon to the Special Redemption Date:

 

| **Special  Redemption During the  12-Month Period Beginning December 15** | ** ** | **Percentage of Principal Amount** | ** ** |
|--------------------------------------------------------------------------------|------------|------------------------------------|------------|
|                                                                           |       |                               |       |
| 2006                                                                           |       | 103.140                            | %          |
| 2007                                                                           |       | 102.355                            | %          |
| 2008                                                                           |       | 101.570                            | %          |
| 2009                                                                           |       | 100.785                            | %          |
| 2010 and  thereafter                                                           |       | 100.000                            | %          |

 

A-7

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In the event of redemption of this Debt Security in part only, a newDebt Security or Debt Securities for the unredeemed portion hereof will beissued in the name of the holder hereof upon the cancellation hereof.

 

In certain cases where an Event of Default, as defined in theIndenture, shall have occurred and be continuing, the principal of all of theDebt Securities may be declared, and, in certain cases, shall ipso factobecome, due and payable, and upon such declaration of acceleration shall becomedue and payable, in each case, in the manner, with the effect and subject tothe conditions provided in the Indenture.

 

The Indenture contains provisions permitting the Company and theTrustee, with the consent of the holders of not less than a majority inaggregate principal amount of the Debt Securities at the time outstandingaffected thereby, as specified in the Indenture, to execute supplementalindentures for the purpose of adding any provisions to or changing in anymanner or eliminating any of the provisions of the Indenture or of anysupplemental indenture or of modifying in any manner the rights of the holdersof the Debt Securities; provided, however, that no suchsupplemental indenture shall, among other things, without the consent of theholders of each Debt Security then outstanding and affected thereby (i) changethe Maturity Date of any Debt Security, or reduce the principal amount thereofor any premium thereon, or reduce the rate (or manner of calculation of therate) or extend the time of payment of interest thereon, or reduce (other thanas a result of the maturity or earlier redemption of any such Debt Security inaccordance with the terms of the Indenture and such Debt Security) or increasethe aggregate principal amount of Debt Securities then outstanding, or changeany of the redemption provisions, or make the principal thereof or any interestor premium thereon payable in any coin or currency other than United StatesDollars, or impair or affect the right of any holder of Debt Securities toinstitute suit for the payment thereof, or (ii) reduce the aforesaidpercentage of Debt Securities, the holders of which are required to consent toany such supplemental indenture. The Indenture also contains provisionspermitting the holders of a majority in aggregate principal amount of the DebtSecurities at the time outstanding, on behalf of all of the holders of the DebtSecurities, to waive any past default in the performance of any of thecovenants contained in the Indenture, or established pursuant to the Indenture,and its consequences, except (a) a default in payments due in respect ofany of the Debt Securities, (b) in respect of covenants or provisions ofthe Indenture which cannot be modified or amended without the consent of theholder of each Debt Security affected, or (c) in respect of the covenantsof the Company relating to its ownership of Common Securities of the Trust. Anysuch consent or waiver by the registered holder of this Debt Security (unlessrevoked as provided in the Indenture) shall be conclusive and binding upon suchholder and upon all future holders and owners of this Debt Security and of anyDebt Security issued in exchange herefor or in place hereof (whether byregistration of transfer or otherwise), irrespective of whether or not anynotation of such consent or waiver is made upon this Debt Security.

 

No reference herein to the Indenture and no provision of this DebtSecurity or of the Indenture shall alter or impair the obligation of theCompany, which is absolute and unconditional, to pay all payments due on thisDebt Security at the time and place and at the rate and in the money hereinprescribed.

 

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As provided in the Indenture and subject to certain limitations hereinand therein set forth, this Debt Security is transferable by the registeredholder hereof on the Debt Security Register of the Company, upon surrender ofthis Debt Security for registration of transfer at the office or agency of theTrustee in Boston, Massachusetts accompanied by a written instrument orinstruments of transfer in form satisfactory to the Company or the Trustee dulyexecuted by the registered holder hereof or such holder’s attorney dulyauthorized in writing, and thereupon one or more new Debt Securities ofauthorized denominations and for the same aggregate principal amount will beissued to the designated transferee or transferees. No service charge will bemade for any such registration of transfer, but the Company may require paymentof a sum sufficient to cover any tax or other governmental charge payable inrelation thereto.

 

Prior to due presentment for registration of transfer of this Debt Security,the Company, the Trustee, any Authenticating Agent, any Paying Agent, anytransfer agent and the Debt Security registrar may deem and treat theregistered holder hereof as the absolute owner hereof (whether or not this DebtSecurity shall be overdue and notwithstanding any notice of ownership orwriting hereon) for the purpose of receiving payment of the principal of andpremium, if any, and interest on this Debt Security and for all other purposes,and neither the Company nor the Trustee nor any Authenticating Agent nor anyPaying Agent nor any transfer agent nor any Debt Security registrar shall beaffected by any notice to the contrary.

 

No recourse shall be had for the payment of the principal of or theinterest on this Debt Security, or for any claim based hereon, or otherwise inrespect hereof, or based on or in respect of the Indenture, against anyincorporator, stockholder, officer or director, past, present or future, assuch, of the Company or of any predecessor or successor corporation, whether byvirtue of any constitution, statute or rule of law, or by the enforcementof any assessment or penalty or otherwise, all such liability being, by theacceptance hereof and as part of the consideration for the issuance hereof,expressly waived and released.

 

The Debt Securities are issuable only in registered certificated formwithout coupons. As provided in the Indenture and subject to certainlimitations herein and therein set forth, Debt Securities are exchangeable fora like aggregate principal amount of Debt Securities of a different authorizeddenomination, as requested by the holder surrendering the same.

 

All terms used in this Debt Security that are defined in the Indentureshall have the meanings assigned to them in the Indenture.

 

THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THEDEBT SECURITIES, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF (OTHERTHAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).

 

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