Exhibit 10.45


 


National Consumer Cooperative
Bank

as Issuer


 


 


 


INDENTURE

Dated as of December 17, 2003


 


 


WELLS FARGO BANK, NATIONAL
ASSOCIATION


As Trustee


 


 


JUNIOR SUBORDINATED DEBT
SECURITIES


 


DUE January 7, 2034


 

















 


TABLE OF
CONTENTS


 


	
  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

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Class A Notes

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Common Securities

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Company

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Debt Security

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Debt Security Register

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Declaration

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Default

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Defaulted Interest

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Deferred Interest

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Depositary

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Depositary Participant

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DTC

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Event of Default

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Extension Period

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Federal Reserve

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Global Debenture

  	
   

  
				



 


i

















 


	
   

  	
  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

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Outstanding

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Paying Agent

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Person

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Predecessor Security

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Principal Office of the Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Redemption Date

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Redemption Price

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Responsible Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Securityholder

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Senior Indebtedness

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Special Event

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Special Redemption Date

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Special Redemption Price

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Subsidiary

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Tax Event

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Trust

  	
   

  



 


ii

















 


	
   

  	
  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

  	
   

  
	
   

  	
   

  	
   

  
	
  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

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.10.

  	
  Deferral of Interest on Class A Notes

  	
   

  
				



 


iii

















 


	
  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

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.04.

  	
  Proceedings by Securitvholders

  	
   

  
	
   

  	
   

  	
   

  
	
  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

  	
   

  



 


iv

















 


	
  ARTICLE
  VII

  
	
  CONCERNING THE SECURITYHOLDERS

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
  Action by Securityholders

  	
   

  
	
   

  	
   

  	
   

  
	
  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 Holders
  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

  	
   

  
	
   

  	
   

  	
   

  
	
  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

  	
   

  
	
   

  	
   

  	
   

  
	
  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

  	
   

  



 


v

















 


	
  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

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14.09.

  	
  Execution in Counterparts

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14.10.

  	
  Separability

  	
   

  
	
   

  	
   

  	
   

  
	
  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

  	
   

  



 


vi

















 


	
  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

  	
   

  



 


vii

















 


THIS
INDENTURE, dated as of December 17, 2003, between National Consumer Cooperative
Bank (hereinafter sometimes called the “Company”), and Wells Fargo Bank,
National Association, a national banking association with its principal place
of business in the State of Delaware, 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 duly authorized the issuance of
its Junior Subordinated Debt Securities due January 7, 2034 (the “Debt
Securities”) under this Indenture and to provide, among other things, for the
execution and authentication, delivery and administration thereof, the Company
has duly authorized the execution of this Indenture.


 


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


 


ARTICLE I


 


DEFINITIONS


 


SECTION 1.01.  Definitions.


 


The terms
defined in this Section 1.01 (except as herein otherwise expressly provided or
unless the context otherwise requires) for all purposes of this Indenture and
of any indenture supplemental hereto shall have the respective meanings
specified in this Section 1.01. All accounting terms used herein and not
expressly defined shall have the meanings assigned to such terms in accordance
with generally accepted accounting principles and the term “generally accepted
accounting principles” means such accounting principles as are generally
accepted in the United States at the time of any computation. The words
“herein,” “hereof” and “hereunder” and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.


 


“Additional Interest” shall have the meaning set
forth in Section 3.06.


 


“Additional Provisions” shall have the meaning set
forth in Section 15.01.


 


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


 


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


 


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


 

















 


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


 


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


 


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


 


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


 


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


 


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


 


“Capital Treatment Event” means the receipt by
the Company and the Trust of an Opinion of Counsel experienced in such matters
to the effect that, as a result of any amendment to, or change in, the laws,
rules, regulations or policies of the United States or any political
subdivision thereof or therein, or as the result of any official or
administrative pronouncement or action or decision interpreting or applying such
laws, rules, regulations or policies, which amendment or change is effective or
which pronouncement, action or decision is announced on or after the date of
original issuance of the Debt Securities (a “Regulatory Action”), there is more
than an insubstantial risk that the Company will not, within 90 days of the
date of such opinion, be entitled to treat (disregarding any percentage of Tier
1 Capital limitations) an amount equal to the aggregate Liquidation Amount of
the Capital Securities as “Tier 1 Capital” (or the then equivalent thereof) for
purposes of the capital adequacy guidelines or policies of (A) the Federal Reserve (or any
successor regulatory authority with jurisdiction over bank holding companies),
as then in effect and applicable to the Company (or if the Company is not a
bank holding company, such guidelines or policies applied to the Company as if
the Company were subject to such guidelines or policies); or (B) any regulatory
authority having jurisdiction over the Company (provided that immediately prior
to such Regulatory Action, the Company shall have been permitted to treat
(disregarding any percentage of Tier 1 Capital limitations) an amount equal to
the aggregate Liquidation Amount of the Capital Securities as “Tier 1 Capital”
(or the then equivalent) under the capital adequacy guidelines or policies of
such regulatory authority); provided, however, that the distribution of the
Debt Securities in connection with the liquidation of the Trust by the Company
shall not in and of itself constitute a Capital Treatment Event unless


 


2

















 


such liquidation shall have occurred in
connection with a Tax Event or an Investment Company Event.


 


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


 


“Class A Notes”
means the class
A notes within the
meaning of 12 U.S.C. §3014.


 


“Common Securities” means undivided beneficial
interests in the assets of the Trust which are designated as “Common
Securities” 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 Securities
to payment in respect of distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights of holders of such
Capital Securities.


 


“Company”
means National Consumer Cooperative Bank, a corporation organized under the
laws of the United States 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 the meaning
specified in Section 2.05.


 


“Declaration”
means the Amended and Restated Declaration of Trust of the Trust dated as of December
17, 2003, as amended or supplemented from time to time.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


3

















 


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


 


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


 


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


 


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


 


“Initial
Purchaser” means the initial purchaser of the Capital
Securities.


 


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


 


“Interest
Payment Date” means January 7, April 7, July 7 and October
7 of each year, commencing on January 7, 2004, subject to Section 14.07.


 


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


 


“Interest Rate”
means, with respect to any Interest Payment Period, a per annum rate of
interest equal to LIBOR, as determined on the LIBOR Determination Date for such
Interest Payment Period, plus 2.9%; provided, however, that the Interest Rate
for any Interest Payment Period may not exceed the highest rate permitted by
New York law, as the same may be modified by United States law of general
applicability.


 


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


 


“LIBOR”
means the London Interbank Offered Rate for U.S. Dollar deposits in Europe as
determined by the Calculation Agent according to Section 2.10(b).


 


“LIBOR Banking
Day” has the meaning set forth in Section 2.10(b)(1).


 


“LIBOR Business Day” has the meaning set forth
in Section 2.10(b)(1).


 


“LIBOR Determination Date” has the meaning set
forth in Section 2.10(b).


 


4

















 


“Liquidation Amount” means the liquidation
amount of $1,000 per Trust Security.


 


“Maturity Date”
means January 7, 2034.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Predecessor Security” of any particular Debt
Security means every previous Debt Security evidencing all or a portion of the
same debt as that evidenced by such particular Debt Security; and, for the
purposes of this definition, any Debt Security authenticated and delivered


 


5

















 


under Section 2.06 in lieu of a lost,
destroyed or stolen Debt Security shall be deemed to evidence the same debt as
the lost, destroyed or stolen Debt Security.


 


“Principal Office of the Trustee” means the
office of the Trustee, at which at any particular time its corporate trust
business shall be principally administered, which at all times shall be located
within the United States and at the time of the execution of this Indenture
shall be 919 Market Street, Suite 700, Wilmington, DE 19801.


 


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


 


“Redemption
Price” means 100% of the principal amount of the Debt
Securities being redeemed plus accrued and unpaid interest on such Debt
Securities to, but excluding, the Redemption Date or, in the case of a
redemption due to the occurrence of a Special Event, to, but excluding, the
Special Redemption Date if such Special Redemption Date is on or after January
7, 2009.


 


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


 


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


 


“Senior Indebtedness” means, with respect to
the Company, (i) the principal, premium, if any, and interest in respect of (A)
indebtedness of the Company for money borrowed and (B) indebtedness evidenced
by securities, debentures, notes, bonds or other similar instruments issued by
the Company (including, without limitation, any Class A Notes of the Company);
(ii) all capital lease obligations of the Company; (iii) all obligations of the
Company issued or assumed as the deferred purchase price of property, all
conditional sale obligations of the Company and all obligations of the Company
under any title retention agreement (but excluding trade accounts payable
arising in the ordinary course of business); (iv) all obligations of the
Company for the reimbursement of any letter of credit, any banker’s acceptance,
any security purchase facility, any repurchase agreement or similar
arrangement, any interest rate swap, any other hedging arrangement, any
obligation under options or any similar credit or other transaction; (v) all
obligations of the type referred to in clauses (i) through (iv) above of other
Persons for the payment of which the Company is responsible or liable as
obligor, guarantor or otherwise; and (vi) all obligations of the type referred
to in clauses (i) through (v) above of other Persons secured by any lien on any
property or asset of the Company (whether or not such obligation is assumed by
the Company), whether incurred on or prior to the date of this Indenture or
thereafter incurred, unless, in the instrument creating or evidencing the same
or pursuant to


 


6

















 


which the same is outstanding, it is provided
that such obligations are not superior or are pari passu in right of payment to
the Debt Securities.


 


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


 


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


 


“Special Redemption Price” means (1) if the
Special Redemption Date is before January 7, 2009, One Hundred Five Percent
(105%) of the principal amount of the Debt Securities to be redeemed plus
any accrued and unpaid interest thereon to the date of such redemption or (2)
if the Special Redemption Date is on or after January 7, 2009, the Redemption
Price for such Special Redemption Date.


 


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


 


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


 


7

















 


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


 


“Trust Indenture Act” means the Trust
Indenture Act of 1939, as amended from time-to-time, or any successor
legislation.


 


“Trust
Securities” means Common Securities and Capital
Securities of NCB Capital Trust I.


 


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


 


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


 


“U.S. Person” has the meaning given to United States
Person as set forth in Section 7701(a)(30) of the Internal Revenue Code of
1986, as amended.


 


ARTICLE II


 


DEBT SECURITIES


 


SECTION 2.01.  Authentication and Dating.


 


Upon the
execution and delivery of this Indenture, or from time to time thereafter, Debt
Securities in an aggregate principal amount not in excess of $51,547,000 may be
executed and delivered by the Company to the Trustee for authentication, and
the Trustee shall thereupon authenticate and make available for delivery said
Debt Securities to or upon the written order of the Company, signed by its
Chairman of the Board of Directors, Vice Chairman, President or Chief Financial
Officer or one of its Vice Presidents, without any further action by the
Company hereunder. In authenticating such Debt Securities, and accepting the
additional responsibilities under this Indenture in relation to such Debt
Securities, the Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon a copy of any Board Resolution
or Board Resolutions relating thereto and, if applicable, an appropriate record
of any action taken pursuant to such resolution, in each case certified by the
Secretary or an Assistant Secretary or other officers with appropriate
delegated authority of the Company as the case may be.


 


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


 


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


 


8

















 


SECTION 2.02.  Form of Trustee’s Certificate of Authentication.


 


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


 


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


 


WELLS FARGO
BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as
trustee


 


	
   

  	
  By

  	
   

  	
   

  
	
   

  	
  Authorized Officer

  	
   

  



 


SECTION 2.03.  Form and Denomination of Debt Securities.


 


The Debt
Securities shall be substantially in the form of Exhibit A hereto. The Debt
Securities shall be in registered, certificated form without coupons and in
minimum denominations of $100,000 and any multiple of $1,000 in excess thereof.
The Debt Securities shall be numbered, lettered, or otherwise distinguished in
such manner or in accordance with such plans as the officers executing the same
may determine with the approval of the Trustee as evidenced by the execution
and authentication thereof.


 


SECTION 2.04.  Execution of Debt Securities.


 


The Debt
Securities shall be signed in the name and on behalf of the Company by the
manual or facsimile signature of its Chairman of the Board of Directors, Vice
Chairman, President or Chief Financial Officer or one of its Executive Vice
Presidents, Senior Vice Presidents or Vice Presidents, which may be affixed
thereto or printed, engraved or otherwise reproduced thereon, by facsimile or
otherwise, and which need not be attested. Only such Debt Securities as shall
bear thereon a certificate of authentication substantially in the form herein
before recited, executed by the Trustee or the Authenticating Agent by the
manual signature of an authorized officer, shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose. Such certificate by
the Trustee or the Authenticating Agent upon any Debt Security executed by the
Company shall be conclusive evidence that the Debt Security so authenticated
has been duly authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.


 


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


 


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


 


9

















 


SECTION 2.05.  Exchange and Registration of Transfer of Debt Securities.


 


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


 


Debt
Securities to be exchanged may be surrendered at the Principal Office of the
Trustee or at any office or agency to be maintained by the Company for such
purpose as provided in Section 3.02, and the Company shall execute, the Company
or the Trustee shall register and the Trustee or the Authenticating Agent shall
authenticate and make available for delivery in exchange therefor the Debt
Security or Debt Securities which the Securityholder making the exchange shall
be entitled to receive. Upon due presentment for registration of transfer of
any Debt Security at the Principal Office of the Trustee or at any office or
agency of the Company maintained for such purpose as provided in Section 3.02,
the Company shall execute, the Company or the Trustee shall register and the
Trustee or the Authenticating Agent shall authenticate and make available for
delivery in the name of the transferee or transferees a new Debt Security for a
like aggregate principal amount. Registration or registration of transfer of
any Debt Security by the Trustee or by any agent of the Company appointed
pursuant to Section 3.02, and delivery of such Debt Security, shall be deemed
to complete the registration or registration of transfer of such Debt Security.


 


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


 


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


 


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


 


Notwithstanding
the foregoing, Debt Securities may not be transferred except 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 OTHER APPLICABLE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD,


 


10

















 


ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER
OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY ONLY (A) TO THE COMPANY, (B) PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT (“RULE 144A”), TO A PERSON THE HOLDER REASONABLY BELIEVES IS
A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C)
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF AN “ACCREDITED INVESTOR,”
FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT
IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE
COMPANY. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES THAT IT
WILL COMPLY WITH THE FOREGOING RESTRICTIONS.


 


THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS AND WARRANTS THAT IT
WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THIS SECURITY 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, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN
OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE “CODE”), (EACH A “PLAN”), OR AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT IN
THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR
HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23,95-60,91-38,90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS
NOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT
TO SUCH PURCHASE OR HOLDING. ANY PURCHASER


 


11

















 


OR HOLDER OF THIS SECURITY OR ANY INTEREST THEREIN WILL BE DEEMED TO
HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT
AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN
TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON
ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR
ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH
PURCHASE, OR (ii) SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION
UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO
APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.


 


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


 


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


 


THIS SECURITY IS NOT
GUARANTEED BY THE UNITED STATES AND DOES NOT CONSTITUTE A DEBT OBLIGATION OF
THE UNITED STATES OR ANY AGENCY OR INSTRUMENTALITY THEREOF.


 


SECTION 2.06. 
Mutilated, Destroyed, Lost or Stolen Debt Securities.


 


In case any
Debt Security shall become mutilated or be destroyed, lost or stolen, the
Company shall execute, and upon its written request the Trustee shall
authenticate and deliver, a new Debt Security bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Debt Security, 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 Security
shall furnish to the Company and the Trustee such security or indemnity as may
be required by them to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company and
the Trustee evidence to their satisfaction of the destruction, loss or theft of
such Debt Security and of the ownership thereof.


 


The Trustee
may authenticate any such substituted Debt Security and deliver the same upon
the written request or authorization of any officer of the Company. Upon the
issuance of any substituted Debt Security, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any


 


12

















 


other expenses connected therewith. In case any Debt Security which has
matured or is about to mature or has been called for redemption in full shall
become mutilated or be destroyed, lost or stolen, the Company may, instead of
issuing a substitute Debt Security, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Debt Security) if
the applicant for such payment shall furnish to the Company and the Trustee
such security or indemnity as may be required by them to save each of them
harmless and, in case of destruction, loss or theft, evidence satisfactory to
the Company and to the Trustee of the destruction, loss or theft of such
Security and of the ownership thereof.


 


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


 


SECTION 2.07. 
Temporary Debt Securities.


 


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


 


13

















 


SECTION 2.08. 
Payment of Interest.


 


Each Debt
Security will bear interest at the then applicable Interest Rate from and
including each Interest Payment Date or, in the case of the first Interest
Payment Period, the original date of issuance of such Debt Security to, but
excluding, the next succeeding Interest Payment Date or, in the case of the
last Interest Payment Period, the Redemption Date, Special Redemption Date or
Maturity Date, as applicable, on the principal thereof, on any overdue
principal and (to the extent that payment of such interest is enforceable under
applicable law) (without
duplication) on Deferred Interest and on any overdue
installment of interest (including Defaulted Interest), payable (subject to the
provisions of Article XV)
on each Interest Payment Date commencing on January 7, 2004. Interest and any
Deferred Interest on any Debt Security that is payable, and is punctually paid
or duly provided for by the Company, on any Interest Payment Date shall be paid
to the Person in whose name said Debt Security (or one or more Predecessor
Securities) is registered at the close of business on the regular record date for
such interest installment, except that interest and any Deferred Interest
payable on the Maturity Date shall be paid to the Person to whom principal is
paid. In the event that any Debt Security or portion thereof is called for
redemption and the redemption date is subsequent to a regular record date with
respect to any Interest Payment Date and prior to such Interest Payment Date,
interest on such Debt Security will be paid upon presentation and surrender of
such Debt Security.


 


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


 


14

















 


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


 


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


 


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


 


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 or any Paying
Agent, be surrendered to the Trustee and promptly canceled by it, or, if
surrendered to the Trustee or any Authenticating Agent, shall be promptly
canceled by it, and no Debt Securities shall be issued in lieu thereof except
as expressly permitted by any of the provisions of this Indenture. All Debt
Securities canceled by any Authenticating Agent shall be delivered to the
Trustee. The Trustee shall destroy all canceled Debt Securities unless the
Company otherwise directs the Trustee in writing, in which case the Trustee
shall dispose of such Debt Securities as directed by the Company. If the
Company shall acquire any of the Debt Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Debt Securities unless and until the same are surrendered
to the Trustee for cancellation.


 


SECTION 2.10. 
Computation of Interest.


 


(a)                                  The
amount of interest payable for any Interest Payment Period will be computed on
the basis of a 360-day year and the actual number of days elapsed in the
relevant Interest Payment Period.


 


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


 


(1)                                  On
the second LIBOR Business Day (provided, that on such day commercial banks are
open for business (including dealings in foreign currency deposits) in London
(a “LIBOR Banking Day”), and otherwise the next preceding LIBOR Business Day
that is also a LIBOR Banking Day) prior to the January 15, April 15, July 15
and October 15 immediately succeeding the commencement of such Interest Payment
Period (or, with respect to the first Interest Payment Period, on December 15,
2003) (each such day, a “LIBOR Determination Date” for such Interest Payment
Period), the Calculation Agent shall obtain the rate for three-month U.S.
Dollar deposits in Europe which appears on Telerate Page 3750 (as defined in
the International Swaps and Derivatives Association, Inc. 2000 Interest Rate
and Currency Exchange Definitions) or such other page as may replace such
Telerate Page 3750 on the
Moneyline Telerate, Inc. service (or such other service or services as may be
nominated by the British Banker’s Association as the


 


15

















 


information
vendor for the purpose of displaying London interbank offered rates for U.S.
dollar deposits), as of 11:00 a.m. (London time) on
such LIBOR Determination Date, and the rate so obtained shall be LIBOR for such
Interest Payment Period.  “LIBOR
Business Day” means any day that is not a Saturday, Sunday or other day on
which commercial banking institutions in The City of New York or Wilmington,
Delaware are authorized or obligated by law or executive order to be closed. If
such rate is superseded on Telerate Page 3750 by a corrected rate before 12:00
noon (London time) on the same LIBOR Determination Date, the corrected rate as
so substituted will be LIBOR for that Interest Payment Period.


 


(2)                                  If,
on any LIBOR Determination Date, such rate does not appear on Telerate Page
3750 or such other page as may replace such Telerate Page 3750 on the Moneyline Telerate, Inc.
service (or such other service or services as may be nominated by the British
Banker’s Association as the information vendor for the purpose of displaying
London interbank offered rates for U.S. dollar deposits),
the Calculation Agent shall determine the arithmetic mean of the offered
quotations of the Reference Banks (as defined below) to leading banks in 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 for
quotations as of approximately 11:00 a.m. (London time) on the LIBOR
Determination Date made by the Calculation Agent to the Reference Banks. If, on
any LIBOR Determination Date, at least two of the Reference Banks provide such
quotations, LIBOR shall equal the arithmetic mean of such quotations. If, on
any LIBOR Determination Date, only one or none of the Reference Banks provide
such a quotation, LIBOR shall be deemed to be the arithmetic mean of the
offered quotations that at least two leading banks in The City of New York (as
selected by the Calculation Agent) are quoting on the relevant LIBOR
Determination Date for three-month U.S. Dollar deposits in Europe at
approximately 11:00 a.m. (London time) (in an amount determined by the
Calculation Agent). As used herein, “Reference Banks” means four major banks in
the London Interbank market selected by the Calculation Agent.


 


(3)                                  If
the Calculation Agent is required but is unable to determine a rate in
accordance with at least one of the procedures provided above, LIBOR for the
applicable Interest Payment Period shall be LIBOR in effect for the immediately
preceding Interest Payment Period.


 


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


 


(d)                                 On
each LIBOR Determination Date, the Calculation Agent shall notify, in writing,
the Company and the Paying Agent of the applicable Interest Rate in effect for
the related Interest Payment Period.
The Calculation Agent shall, upon the request of the holder of


 


16

















 


any Debt Securities, provide the Interest
Rate then in effect. All calculations made by the Calculation Agent in the
absence of manifest error shall be conclusive for all purposes and binding on
the Company and the Holders of the Debt Securities. The Paying Agent shall be
entitled to rely on information received from the Calculation Agent or the
Company as to the Interest Rate. The Company shall, from time to time, provide
any necessary information to the Paying Agent relating to any original issue
discount and interest on the Debt Securities that is included in any payment
and reportable for taxable income calculation purposes.


 


SECTION 2.11. 
Extension of Interest Payment Period.


 


So long as no
Event of Default has occurred and is continuing, the Company shall have the
right, from time to time and without causing an Event of Default, to defer
payments of interest on the Debt Securities by extending the interest
distribution period on the Debt Securities at any time and from time to time during
the term of the Debt Securities, for up to twenty consecutive quarterly periods
(each such extended interest distribution period, an “Extension Period”),
during which Extension Period no interest shall be due and payable (except any
Additional Interest that may be due and payable). No Extension Period may end
on a date other than an Interest Payment Date or extend beyond the Maturity
Date, any Redemption Date or any Special Redemption Date, as the case may be.
During any Extension Period, interest will continue to accrue on the Debt
Securities, and interest on such accrued interest (such accrued interest and
interest thereon referred to herein as “Deferred Interest”) will accrue at an
annual rate equal to the Interest Rate applicable during such Extension Period,
compounded quarterly from the date such Deferred Interest would have been
payable were it not for the Extension Period, to the extent permitted by law.
No interest or Deferred Interest shall be due and payable during an Extension
Period, except at the end thereof. At the end of any such Extension Period the
Company shall pay all Deferred Interest then accrued and unpaid on the Debt
Securities; provided, however, that during any such Extension
Period, the Company shall be subject to the restrictions set forth in Section
3.08 of this Indenture. Prior to the termination of any Extension Period, the
Company may further extend such period, provided, that such period
together with all such previous and further consecutive extensions thereof
shall not exceed twenty consecutive quarterly periods. Upon the termination of
any Extension Period and upon the payment of all Deferred Interest, the Company
may commence a new Extension Period, subject to the foregoing requirements. The
Company must give the Trustee notice of its election to begin such Extension
Period (“Notice”) at least one Business Day prior to the earlier of (i) the
next succeeding date on which interest on the Debt Securities would have been
payable except for the election to begin such Extension Period or (ii) the date
such interest is payable, but in any event not later than the related regular
record date.  The Notice shall describe,
in reasonable detail, why the company has elected to begin an Extension
Period.  The Notice shall acknowledge and
affirm the Company’s understanding that it is prohibited from issuing dividends
and other distributions during the Extension Period.  Upon receipt of the Notice, an Initial Purchaser, shall have the
right, at its sole discretion, to disclose the name of the Company, the fact
that the Company has elected to begin an Extension Period and 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’s election to begin
a new Extension Period to the Securityholders.


 


17

















 


SECTION 2.12. 
CUSIP Numbers.


 


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


 


ARTICLE III


 


PARTICULAR
COVENANTS OF THE COMPANY


 


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


 


(a)                                  The
Company covenants and agrees that it will duly and punctually pay or cause to
be paid all payments due on the Debt Securities at the place, at the respective
times and in the manner provided in this Indenture and the Debt Securities. At
the option of the Company, each installment of interest on the Debt Securities
may be paid (i) by mailing checks for such interest payable to the order of the
holders of Debt Securities entitled thereto as they appear on the Debt Security
Register or (ii) by wire transfer to any account with a banking institution
located in the United States designated by such Person to the Paying Agent no
later than the related record date.


 


(b)                                 The
Company will treat the Debt Securities as indebtedness, and the interest
payable in respect of such Debt Securities as interest, for all U.S. federal
income tax purposes. Unless otherwise required by law, all payments in respect
of such Debt Securities will be made free and clear of U.S. withholding tax to
any beneficial owner thereof that has provided an Internal Revenue Service Form
W-8 BEN (or any substitute or successor form) establishing its non-U.S. status
for U.S. federal income tax purposes.


 


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


 


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


 


18

















 


SECTION 3.02. 
Offices for Notices and Payments, etc.


 


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


 


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


 


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


 


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


 


SECTION 3.04. 
Provision as to Paying Agent.


 


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


 


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


 


(2)                                  that
it 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 the
Debt Securities when the same shall be due and payable; and


 


19

















 


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


 


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


 


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


 


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


 


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


 


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


 


SECTION 3.05. 
Certificate to Trustee.


 


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


 


SECTION 3.06. 
Additional Interest.


 


If and for so
long as the Trust is the holder of all Debt Securities and is subject to or
otherwise required to pay, or is required to withhold from distributions to
holders of Trust Securities, any additional taxes (including withholding
taxes), duties, assessments or other governmental charges as a result of a Tax
Event, the Company will pay such additional amounts (the “Additional Interest”)
on the Debt Securities as shall be required so that the net amounts received
and retained by the Trust for distribution to holders of Trust Securities after
paying all


 


20

















 


taxes (including withholding taxes on distributions to holders of Trust
Securities), duties, assessments or other governmental charges will be equal to
the amounts the Trust would have received and retained for distribution to
holders of Trust Securities after paying all taxes (including withholding taxes
on distributions to holders of Trust Securities), duties, assessments or other
governmental charges if no such additional taxes, duties, assessments or other
governmental charges had been imposed. Whenever in this Indenture or the Debt
Securities there is a reference in any context to the payment of principal of or
interest on the Debt Securities, such mention shall be deemed to include
mention of payments of the Additional Interest provided for in this paragraph
to the extent that, in such context, Additional Interest is, was or would be
payable in respect thereof pursuant to the provisions of this paragraph and
express mention of the payment of Additional Interest (if applicable) in any
provisions hereof shall not be construed as excluding Additional Interest in
those provisions hereof where such express mention is not made, provided,
however, that the deferral of the payment of interest during an
Extension Period pursuant to Section 2.11 shall not defer the payment of any
Additional Interest that may be due and payable.


 


SECTION 3.07. 
Compliance with Consolidation Provisions.


 


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


 


SECTION 3.08. 
Limitation on Dividends.


 


If Debt
Securities are initially issued to the Trust or a trustee of such Trust in
connection with the issuance of Trust Securities by the Trust (regardless of
whether Debt Securities continue to be held by such Trust) and (i) there shall
have occurred and be continuing an Event of Default, (ii) the Company shall be
in default with respect to its payment of any obligations under the Capital
Securities Guarantee or (iii) the Company shall have given notice of its
election to defer payments of interest on the Debt Securities by extending the
interest distribution
period as provided herein and such period, or any extension thereof, shall have
commenced and be continuing, then the Company may not (A) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company’s capital stock or (B)
make any payment of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior
in interest to the Debt Securities (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 similar arrangement with or
for the benefit of one or more employees, officers, directors or consultants,
(II) in connection with a dividend reinvestment or stockholder stock purchase
plan or (III) in connection with the issuance of capital stock of the Company
(or securities convertible into or exercisable for such capital stock), as
consideration in an acquisition transaction entered into prior to the
occurrence of (i), (ii) or (iii) above, (b) as a
result of any exchange, reclassification, combination or conversion of any
class or series of the Company’s capital stock (or any capital stock of a
subsidiary of the Company) for any class or series of the Company’s capital
stock or of any class or series of the Company’s indebtedness for any class or
series of the Company’s capital stock, (c) the purchase


 


21

















 


of fractional interests in shares of the Company’s capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (d) any declaration of a dividend in
connection with any stockholder’s rights plan, or the issuance of rights, stock
or other property under any stockholder’s rights plan, or the redemption or
repurchase of rights pursuant thereto, (e) any dividend in the form of stock,
warrants, options or other rights where the dividend stock or the stock
issuable upon exercise of such warrants, options or other rights is the same
stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock
and any cash payments in lieu of fractional shares issued in connection
therewith, or (f) payments under the Capital Securities Guarantee or any
guarantee of securities similar to the Capital Securities issued by a trust).


 


SECTION 3.09. 
Covenants as to the Trust.


 


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


 


SECTION 3.10. 
Deferral of Interest on Class A Notes.


 


The Company covenants and agrees that for so long as any Debt
Securities shall remain outstanding, the Company shall not elect to defer any
payments on the Class A Notes that it is otherwise permitted to elect to defer
pursuant to the provisions of 12 U.S.C. §3014(c).


 


ARTICLE IV


 


LISTS 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 be furnished to the
Trustee:


 


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


 


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


 


22

















 


except that no such lists need be furnished under this Section 4.01 so
long as the Trustee is in possession thereof by reason of its acting as Debt
Security registrar.


 


SECTION 4.02. 
Preservation and Disclosure of Lists.


 


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


 


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


 


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


 


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


 


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


 


23

















 


sustained have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Securityholders with
reasonable promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation or duty to
such applicants respecting their application.


 


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


 


ARTICLE V


 


REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
UPON AN EVENT OF DEFAULT


 


SECTION 5.01.  Events of Default.  The following events shall be “Events of
Default” with respect to Debt Securities:


 


(a)                                  the
Company defaults in the payment of any interest upon any Debt Security when it
becomes due and payable, and continuance of such default for a period of 30
days; for the avoidance of doubt, an extension of any interest distribution
period by the Company in accordance with Section 2.11 of this Indenture shall
not constitute a default under this clause 5.01(a); or


 


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


 


(c)                                  the
Company defaults in the performance of, or breaches, any of its covenants or
agreements in Sections 3.06, 3.07, 3.08 or 3.09 of this Indenture (other than a
covenant or agreement a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and continuance of such
default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the holders of not less than 25% in aggregate principal
amount of the outstanding Debt Securities, a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a “Notice of Default” hereunder; or


 


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


 


24

















 


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


 


(f)                                    the
Trust shall have voluntarily or involuntarily liquidated, dissolved, wound-up
its business or otherwise terminated its existence except in connection with
(1) the distribution of the Debt Securities to holders of the Trust Securities
in liquidation of their interests in the Trust, (2) the redemption of all of the
outstanding Trust Securities or (3) certain mergers, consolidations or
amalgamations, each as permitted by the Declaration.


 


If an Event of
Default occurs and is continuing with respect to the Debt Securities, then, and
in each and every such case, unless the principal of the Debt Securities shall
have already become due and payable, either the Trustee or the holders of not
less than 25% in aggregate principal amount of the Debt Securities then
outstanding hereunder, by notice in writing to the Company (and to the Trustee
if given by Securityholders), may declare the entire principal of the Debt
Securities and the interest accrued, but unpaid, thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable.


 


The foregoing
provisions, however, are subject to the condition that if, at any time after
the principal of the Debt Securities shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, (i) the Company
shall pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Debt Securities and all payments on the
Debt Securities which shall have become due otherwise than by acceleration
(with interest upon all such payments and Deferred Interest, to the extent
permitted by law) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee, their respective
agents, attorneys and counsel, and all other amounts due to the Trustee
pursuant to Section 6.06, if any, and (ii) all Events of Default under this
Indenture, other than the non-payment of the payments on Debt Securities which
shall have become due by acceleration, shall have been cured, waived or
otherwise remedied as provided herein, then and in every such case the holders
of a majority in aggregate principal amount of the Debt Securities then
outstanding, by written notice to the Company and to the Trustee, may waive all
defaults and rescind and annul such declaration and its consequences, but no
such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.


 


In case the
Trustee shall have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the Company, the Trustee
and the holders of the Debt Securities shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and


 


25

















 


powers of the Company, the Trustee and the holders of the Debt
Securities 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 Default pursuant to clause
5.01(a) or 5.01(b) and upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Debt Securities, the whole
amount that then shall have become due and payable on all Debt Securities
including Deferred Interest accrued on the Debt Securities; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including a reasonable compensation to the Trustee, its
agents, attorneys and counsel, and any other amounts due to the Trustee under
Section 6.06. In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any actions or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or any other
obligor on such Debt Securities and collect in the manner provided by law out
of the property of the Company or any other obligor on such Debt Securities
wherever situated the moneys adjudged or decreed to be payable.


 


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


 


26

















 


compensation to the Trustee, each predecessor Trustee and their
respective agents, attorneys and counsel, and all other amounts due to the
Trustee under Section 6.06.


 


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


 


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


 


In any
proceedings brought by the Trustee (and also any proceedings involving the
interpretation of any provision of this Indenture to which the Trustee shall be
a party) the Trustee shall be held to represent all the holders of the Debt
Securities, and it shall not be necessary to make any holders 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 following order, at the date
or dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the several Debt Securities in respect of which moneys have
been collected, and stamping thereon the payment, if only partially paid, and
upon surrender thereof if fully paid:


 


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


 


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


 


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


 


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


 


SECTION 5.04. 
Proceedings by Securitvholders.


 


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


 


27

















 


proceeding and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred thereby, and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such action,
suit or proceeding; provided, that no holder of Debt Securities shall
have any right to prejudice the rights of any other holder of Debt Securities,
obtain priority or preference over any other such holder or enforce any right
under this Indenture except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Debt Securities.


 


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


 


SECTION 5.05. 
Proceedings by Trustee.


 


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


 


SECTION 5.06. 
Remedies Cumulative and Continuing.


 


Except as
otherwise provided in Section 2.06, all powers and remedies given by this
Article V to the Trustee or to the Securityholders shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any other powers
and remedies available to the Trustee or the holders of the Debt Securities, by
judicial proceedings or otherwise, to enforce the performance or observance of
the covenants and agreements contained in this Indenture or otherwise
established with respect to the Debt Securities, and no delay or omission of
the Trustee or of any holder of any of the Debt Securities to exercise any
right or power accruing upon any Event of Default occurring and continuing as
aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 5.04, every power and remedy given by this Article V or
by law to the Trustee or to the Securityholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.


 


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


 


The holders of
a majority in aggregate principal amount of the Debt Securities affected
(voting as one class) at the time outstanding shall have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee with respect to such Debt Securities;


 


28

















 


provided, however, that (subject to the
provisions of Section 6.01) the Trustee shall have the right to decline to
follow any such direction if the Trustee shall determine that the action so
directed would be unjustly prejudicial to the holders not taking part in such
direction or if the Trustee being advised by counsel determines that the action
or proceeding so directed may not lawfully be taken or if a Responsible Officer
of the Trustee shall determine that the action or proceedings so directed would
involve the Trustee in personal liability. Prior to any declaration
accelerating the maturity of the Debt Securities, the holders of a majority in
aggregate principal amount of the Debt Securities at the time outstanding may on
behalf of the holders of all of the Debt Securities waive (or modify any
previously granted waiver of) any past default or Event of Default and its
consequences, except a default (a) in the payment of principal of, premium, if
any, or interest on any of the Debt Securities, (b) in respect of covenants or
provisions hereof which cannot be modified or amended without the consent of
the holder of each Debt Security affected, or (c) in respect of the covenants
contained in Section 3.09; provided, however, that if the Debt
Securities are held by the Trust or a trustee of such trust, such waiver or
modification to such waiver shall not be effective until the holders of a
majority in Liquidation Amount of the Trust Securities of the Trust shall have
consented to such waiver or modification to such waiver; provided, further,
that if the consent of the holder of each outstanding Debt Security is
required, such waiver shall not be effective until each holder of the Trust
Securities of the Trust shall have consented to such waiver. Upon any such
waiver, the default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and the holders of the
Debt Securities shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon. Whenever
any default or Event of Default hereunder shall have been waived as permitted
by this Section 5.07, said default or Event of Default shall for all purposes
of the Debt Securities and this Indenture be deemed to have been cured and to
be not continuing.


 


SECTION 5.08. 
Notice of Defaults.


 


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


 


SECTION 5.09. 
Undertaking to Pay Costs.


 


All parties to
this Indenture agree, and each holder of any Debt Security by such holder’s
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken
or omitted by it as Trustee, the filing by any party


 


29

















 


litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys’ fees and expenses, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section 5.09 shall not
apply to any suit instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding in the aggregate more than
10% in principal amount of the Debt Securities outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Debt Security against the
Company on or after the same shall have become due and payable.


 


ARTICLE VI


 


CONCERNING THE TRUSTEE


 


SECTION 6.01. 
Duties and Responsibilities of Trustee.


 


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


 


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


 


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


 


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


 


(2)                                  in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but, in the case
of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to


 


30

















 


examine the
same to determine whether or not they conform on their face to the requirements
of this Indenture;


 


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


 


(c)                                  the
Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith, in accordance with the direction of the
Securityholders pursuant to Section 5.07, relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture;


 


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


 


(e)                                  in
the absence of bad faith on the part of the Trustee, the Trustee may seek and
rely on reasonable instructions from the Company.


 


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


 


SECTION 6.02. 
Reliance on Documents, Opinions, etc.


 


Except as
otherwise provided in Section 6.01:


 


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


 


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


 


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


 


31

















 


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


 


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


 


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


 


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


 


SECTION 6.03. 
No Responsibility for Recitals, etc.


 


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


 


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


 


The Trustee or
any Authenticating Agent or any Paying Agent or any transfer agent or any Debt
Security registrar, in its individual or any other capacity, may become the


 


32

















 


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


 


SECTION 6.06. 
Compensation and Expenses of Trustee.


 


The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as shall be agreed to in writing
between the Company and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust), and the Company will pay or reimburse the Trustee upon its written
request for all documented reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of
this Indenture (including the reasonable compensation and the reasonable
expenses and disbursements of its counsel and of all Persons not regularly in
its employ) except any such expense, disbursement or advance that arises from
its negligence or bad faith. The Company also covenants to indemnify each of
the Trustee (including in its individual capacity) and any predecessor Trustee
(and its officers, agents, directors and employees) for, and to hold it
harmless against, any and all loss, damage, claim, liability or expense
including taxes (other than taxes based on the income of the Trustee), except
to the extent such loss, damage, claim, liability or expense results from the
negligence or bad faith of such indemnitee, arising out of or in connection
with the acceptance or administration of this Trust, including the costs and
expenses of defending itself against any claim or liability in the premises.
The obligations of the Company under this Section 6.06 to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for documented
expenses, disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien prior to
that of the Debt Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the benefit of the holders
of particular Debt Securities.


 


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


 


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


 


SECTION 6.07. 
Officers’ Certificate as Evidence.


 


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


 


SECTION 6.08. 
Eligibility of Trustee.


 


The Trustee
hereunder shall at all times be a U.S. Person that is a banking corporation or
national association organized and doing business under the laws of the United
States of America or any state thereof or of the District of Columbia and
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least fifty million U.S. dollars
($50,000,000) and subject to supervision or examination by federal, state, or
District of Columbia authority. If such corporation or national association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 6.08 the combined capital and surplus of such
corporation or national association shall be deemed to be its combined capital
and surplus as set forth in its most recent records of condition so published.


 


The Company
may not, nor may any Person directly or indirectly controlling, controlled by,
or under common control with the Company, serve as Trustee, notwithstanding
that such corporation or national association shall be otherwise eligible and
qualified under this Article.


 


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


 


If the Trustee
has or shall acquire any “conflicting interest” within the meaning of § 310(b)
of the Trust Indenture Act, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided 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 any trustee or trustees hereafter appointed, the Calculation Agent,
the Paying Agent and any Debt Security Registrar may at any time resign by
giving written notice of such resignation to the Company and by mailing notice
thereof, at the Company’s expense, to the holders of the Debt Securities at
their addresses as they shall appear


 


34

















 


on the Debt Security Register. Upon receiving
such notice of resignation, the Company shall promptly appoint a successor or
successors by written instrument, in duplicate, executed by order of its Board
of Directors, one copy of which instrument shall be delivered to the resigning
party and one copy to the successor. If no successor shall have been so
appointed and have accepted appointment within 30 days after the mailing of
such notice of resignation to the affected Securityholders, the resigning party
may petition any court of competent jurisdiction for the appointment of a
successor, or any Securityholder who has been a bona fide holder of a Debt
Security or Debt Securities for at least six months may, subject to the
provisions of Section 5.09, on behalf of himself or herself and all others
similarly situated, petition any such court for the appointment of a successor.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor.


 


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


 


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


 


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


 


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


 


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


 


(c)                                  Upon
prior written notice to the Company and the Trustee, the holders of a majority
in aggregate principal amount of the Debt Securities at the time outstanding
may at any time remove the Trustee and nominate a successor Trustee, which
shall be deemed appointed as successor Trustee unless within ten Business Days
after such nomination the Company objects thereto, in which case or in the case
of a failure by such holders to nominate a successor Trustee, the Trustee so
removed or any Securityholder, upon the terms and conditions and otherwise as
in subsection (a) of this Section 6.09 provided, may petition any court of
competent jurisdiction for an appointment of a successor.


 


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(d)                                 Any
resignation or removal of the Trustee, the Calculation Agent, the Paying Agent
and any Debt Security Registrar and appointment of a successor pursuant to any
of the provisions of this Section 6.09 shall become effective upon acceptance
of appointment by the successor as provided in Section 6.10.


 


SECTION 6.10. 
Acceptance by Successor.


 


Any successor
Trustee, Calculation Agent, Paying Agent or Debt Security Registrar appointed
as provided in Section 6.09 shall execute, acknowledge and deliver to the
Company and to its predecessor an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the retiring party shall
become effective and such successor, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations with respect to the Debt Securities of its predecessor hereunder,
with like effect as if originally named herein; but, nevertheless, on the
written request of the Company or of the successor, the party ceasing to act
shall, upon payment of the amounts then due it pursuant to the provisions of
Section 6.06, execute and deliver an instrument transferring to such successor
all the rights and powers of the party so ceasing to act and shall duly assign,
transfer and deliver to such successor all property and money held by such
retiring party hereunder. Upon request of any such successor, the Company shall
execute any and all instruments in writing for more fully and certainly vesting
in and confirming to such successor all such rights and powers. Any party
ceasing to act shall, nevertheless, retain a lien upon all property or funds
held or collected 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 Trustee and the successor
Trustee shall execute and deliver an indenture supplemental hereto which shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Debt Securities as to which the predecessor Trustee is not
retiring shall continue to be vested in the predecessor Trustee, and shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the Trust hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee.


 


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


 


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


 


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 Debt Securities at their
addresses as they shall appear on the Debt Security Register. If the Company
fails to mail such notice within ten


 


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Business Days after the acceptance of appointment by the successor, the
successor shall cause such 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 with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding
to all or substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder without the execution or filing
of any paper or any further act on the part of any of the parties hereto; provided,
that such Person shall be otherwise eligible and qualified under this Article.


 


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


 


SECTION 6.12. 
Authenticating Agents.


 


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


 


Any Person
into which any Authenticating Agent may be merged or converted or with which it
may be consolidated, or any Person resulting from any merger, consolidation or
conversion to which any Authenticating Agent shall be a party, or any Person
succeeding to all


 


37

















 


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


 


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


 


The Company
agrees to pay to any Authenticating Agent from time to time reasonable
compensation for its services. Any Authenticating Agent shall have no
responsibility or liability for any action taken by it as such in accordance with
the directions of the Trustee and shall receive such reasonable indemnity as it
may require against the costs, expenses and liabilities incurred in furtherance
of its duties under this Section 6.12.


 


ARTICLE VII


 


CONCERNING THE SECURITYHOLDERS


 


SECTION 7.01. 
Action by Securityholders.


 


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


 


If the Company
shall solicit from the Securityholders any request, demand, authorization,
direction, notice, consent, waiver or other action or revocation of the same,
the Company may, at its option, as evidenced by an Officers’ Certificate, fix
in advance a record date for such Debt Securities for the determination of
Securityholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action or revocation of the


 


38

















 


same, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other action or revocation of the same may be given before
or after the record date, but only the Securityholders of record at the close of
business on the record date shall be deemed to be Securityholders for the
purposes of determining whether Securityholders of the requisite proportion of
outstanding Debt Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
action or revocation of the same, and for that purpose the outstanding Debt
Securities shall be computed as of the record date; provided, however,
that no such authorization, agreement or consent by such Securityholders on the
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the record
date.


 


SECTION 7.02. 
Proof of Execution by Securityholders.


 


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


 


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


 


SECTION 7.03. 
Who Are Deemed Absolute Owners.


 


Prior to due
presentment for registration of transfer of any Debt Security, the Company, the
Trustee, any Authenticating Agent, any Paying Agent, any transfer agent and any
Debt Security registrar may deem the Person in whose name such Debt Security
shall be registered upon the Debt Security Register to be, 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 of receiving payment of or on
account of the principal of, premium, if any, and interest on such Debt Security
and for all other purposes; and neither the Company nor the Trustee nor any
Authenticating Agent nor any Paying Agent nor any transfer agent nor any Debt
Security registrar shall be affected by any notice to the contrary. All such
payments so made to any holder for the time being or upon such holder’s order
shall be valid, and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for moneys payable upon any such Debt
Security.


 


SECTION 7.04. 
Debt Securities Owned by Company Deemed Not Outstanding.


 


In determining
whether the holders of the requisite aggregate principal amount of Debt
Securities have concurred in any direction, consent or waiver under this
Indenture, Debt Securities which are owned by the Company or any other obligor
on the Debt Securities or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or
any other obligor on the Debt Securities shall be disregarded and


 


39

















 


deemed not to be outstanding for the purpose of any such determination;
provided, that for the purposes of determining whether the Trustee shall
be protected in relying on any such direction, consent or waiver, only Debt Securities
which a Responsible Officer of the Trustee actually knows are so owned shall be
so disregarded. Debt Securities so owned which have been pledged in good faith
may be regarded as outstanding for the purposes of this Section 7.04 if the
pledgee shall establish to the satisfaction of the Trustee the pledgee’s right
to vote such Debt Securities and that the pledgee is not the Company or any
such other obligor or Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company or any such
other obligor. In the case of a dispute as to such right, any decision by the
Trustee taken upon the advice of counsel shall be full protection to the
Trustee.


 


SECTION 7.05. 
Revocation of Consents; Future Holders Bound.


 


At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
7.01, of the taking of any action by the holders of the percentage in aggregate
principal amount of the Debt Securities specified in this Indenture in connection
with such action, any holder (in cases where no record date has been set
pursuant to Section 7.01) or any holder as of an applicable record date (in
cases where a record date has been set pursuant to Section 7.01) of a Debt
Security (or any Debt Security issued in whole or in part in exchange or
substitution therefor) the serial number of which is shown by the evidence to
be included in the Debt Securities the holders of which have consented to such
action may, by filing written notice with the Trustee at the Principal Office
of the Trustee and upon proof of holding as provided in Section 7.02, revoke
such action so far as concerns such Debt Security (or so far as concerns the
principal amount represented by any exchanged or substituted Debt Security). Except
as aforesaid any such action taken by the holder of any Debt Security shall be
conclusive and binding upon such holder and upon all future holders and owners
of such Debt Security, and of any Debt Security issued in exchange or
substitution therefor or on registration of transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon such Debt Security
or any Debt Security issued in exchange or substitution therefor.


 


ARTICLE VIII


 


SECURITYHOLDERS’ MEETINGS


 


SECTION 8.01. 
Purposes of Meetings.


 


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


 


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


 


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


 


40

















 


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


 


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


 


SECTION 8.02. 
Call of Meetings by Trustee.


 


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


 


SECTION 8.03. 
Call of Meetings by Company or Securityholders.


 


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


 


SECTION 8.04. 
Qualifications for Voting.


 


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


 


SECTION 8.05. 
Regulations.


 


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


 


41

















 


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


 


Subject to the
provisions of Section 7.04, at any meeting each holder of Debt Securities with
respect to which such meeting is being held or proxy therefor shall be entitled
to one vote for each $1,000 principal amount of 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 Debt Security challenged as
not outstanding and ruled by the chairman of the meeting to be not outstanding.
The chairman of the meeting shall have no right to vote other than by virtue of
Debt Securities held by such chairman or instruments in writing as aforesaid
duly designating such chairman as the Person to vote on behalf of other
Securityholders. Any meeting of Securityholders duly called pursuant to the
provisions of Section 8.02 or 8.03 may be adjourned from time to time by a
majority of those present, whether or not constituting a quorum, and the
meeting may be held as so adjourned without further notice.


 


SECTION 8.06. 
Voting.


 


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


 


SECTION 8.07. 
Quorum; Actions.


 


The Persons
entitled to vote a majority in outstanding principal amount of the Debt
Securities shall constitute a quorum for a meeting of Securityholders; provided,
however, that if any action is to be taken at such meeting with respect
to a consent, waiver, request, demand, notice, authorization, direction or
other action which may be given by the holders of not less than a specified
percentage in outstanding principal amount of the Debt Securities, the Persons
holding or representing such specified percentage in outstanding principal
amount of the Debt Securities will constitute a quorum. In the absence of a
quorum within 30 minutes of the


 


42

















 


time appointed for any such meeting, the meeting shall, if convened at
the request of Securityholders, be dissolved. In any other case the meeting may
be adjourned for a period of not less than 10 days as determined by the
permanent chairman of the meeting prior to the adjournment of such meeting. In
the absence of a quorum at any such adjourned meeting, such adjourned meeting
may be further adjourned for a period of not less than 10 days as determined by
the permanent chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 8.02, except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the outstanding principal
amount of the Debt Securities which shall constitute a quorum.


 


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


 


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


 


ARTICLE IX


 


SUPPLEMENTAL INDENTURES


 


SECTION 9.01. 
Supplemental Indentures without Consent of Securityholders.


 


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


 


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


 


(b)                                 to
add to the covenants of the Company such further covenants, restrictions or
conditions for the protection of the holders of Debt Securities as the Board of
Directors shall consider to be for the protection of the holders of such Debt
Securities, and to make the occurrence, or the occurrence and continuance, of a
default in any of such additional covenants, restrictions or conditions a
default or an Event of Default permitting the enforcement


 


43

















 


of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however,
that in respect of any such additional covenant, restriction or condition such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such default
or may limit the remedies available to the Trustee upon such default;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


44

















 


SECTION 9.02. 
Supplemental Indentures with Consent of Securityholders.


 


With the
consent (evidenced as provided in Section 7.01) of the holders of not less than
a majority in aggregate principal amount of the Debt Securities at the time
outstanding affected by such supplemental indenture (voting as a class), the
Company, when authorized by a Board Resolution, and the Trustee may from time
to time and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act, then in
effect, applicable to indentures qualified thereunder) for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying
in any manner the rights of the holders of the Debt Securities; provided,
however, that no such supplemental indenture shall without such consent
of the holders of each Debt Security then outstanding and affected thereby (i)
extend the fixed maturity of any Debt Security, or reduce the principal amount
thereof or any premium thereon, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption thereof
or make the principal thereof or any interest or premium thereon payable in any
coin or currency other than that provided in the Debt Securities, or impair or
affect the right of any Securityholder to institute suit for payment thereof or
impair the right of repayment, if any, at the option of the holder, or (ii)
reduce the aforesaid percentage of Debt Securities the holders of which are
required to consent to any such supplemental indenture; and provided, further,
that if the Debt Securities are held by the Trust or a trustee of such trust,
such supplemental indenture shall not be effective until the holders of a
majority in Liquidation Amount of the Trust Securities shall have consented to
such supplemental indenture; provided, further, that if the
consent of the Securityholder of each outstanding Debt Security is required,
such supplemental indenture shall not be effective until each holder of the
Trust Securities shall have consented to such supplemental indenture.


 


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


 


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


 


It shall not
be necessary for the consent of the Securityholders under this Section 9.02 to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance thereof.


 


45

















 


SECTION 9.03. 
Effect of Supplemental Indentures.


 


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


 


SECTION 9.04. 
Notation on Debt Securities.


 


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


 


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


 


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


 


ARTICLE X


 


REDEMPTION OF SECURITIES


 


SECTION 10.01.  Optional Redemption.


 


At any time
the Company shall have the right, subject to the receipt by the Company of
prior approval from any regulatory authority with jurisdiction over the Company
if such approval is then required under applicable capital guidelines or
policies of such regulatory authority, to redeem the Debt Securities, in whole
or in part, on any Interest Payment Date on or after January 7, 2009 (the
“Redemption Date”), at the Redemption Price.


 


SECTION 10.02.  Special Event Redemption.


 


If a Special
Event shall occur and be continuing, the Company shall have the right, subject
to the receipt by the Company of prior approval from any regulatory authority
with


 


46

















 


jurisdiction over the Company if such approval is then required under
applicable capital guidelines or policies of such regulatory authority, to
redeem the Debt Securities, in whole or in part, at any time within 90 days
following the occurrence of such Special Event (the “Special Redemption Date”),
at the Special Redemption Price.


 


SECTION 10.03.  Notice of Redemption; Selection of Debt Securities.


 


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 date for redemption and shall
mail a notice of such redemption at least 30 and not more than 60 days prior to
the date fixed for redemption to the holders of Debt Securities so to be
redeemed as a whole or in part at their last addresses as the same appear on
the Debt Security Register. Such mailing shall be by first class mail. The
notice if mailed in the manner herein provided shall be conclusively presumed
to have been duly given, whether or not the holder receives such notice. In any
case, failure to give such notice by mail or any defect in the notice to the
holder of any Debt Security designated for redemption as a whole or in part
shall not affect the validity of the proceedings for the redemption of any
other 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, the redemption price
at which Debt Securities are to be redeemed, the place or places of payment,
that payment will be made upon presentation and surrender of such Debt
Securities, that interest accrued to the date fixed for redemption will be paid
as specified in said notice, and that on and after said date interest thereon
or on the portions thereof to be redeemed will cease to accrue. If less than
all the Debt Securities are to be redeemed the notice of redemption shall
specify the numbers of the Debt Securities to be redeemed. In case the Debt
Securities are to be redeemed in part only, the notice of redemption shall
state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Debt Security, a new Debt Security or Debt Securities in principal amount equal
to the unredeemed portion thereof will be issued.


 


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


 


The Company
will give the Trustee notice not less than 45 nor more than 60 days prior to
the redemption date as to the redemption price at which the Debt Securities are
to be redeemed and the aggregate principal amount of Debt Securities to be
redeemed and the Trustee 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 be redeemed.


 


SECTION 10.04.  Payment of Debt Securities Called for Redemption.


 


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 such notice has been given
shall


 


47

















 


become due and payable on the Redemption Date or the Special Redemption
Date (as the case may be) and at the place or places stated in such notice at
the Special Redemption Price or Redemption Price, as applicable, and on and
after said Redemption Date or the Special Redemption Date (unless the Company
shall default in the payment of such Debt Securities at the Special Redemption
Price or Redemption Price, as applicable) interest on the Debt Securities or
portions of Debt Securities so called for redemption shall cease to accrue. On
presentation and surrender of such Debt Securities at a place of payment
specified in said notice, such Debt Securities or the specified portions
thereof shall be paid and redeemed by the Company at the Special Redemption
Price or Redemption Price, as applicable.


 


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


 


ARTICLE XI


 


CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE


 


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


 


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


 


SECTION 11.02.  Successor Entity to be Substituted.


 


In case of any
such consolidation, merger, sale, conveyance, transfer or other disposition and
upon the assumption by the successor entity, by supplemental indenture,
executed and delivered to the Trustee and reasonably satisfactory in form to
the Trustee, of the due and punctual payment of the principal of and premium,
if any, and interest on all of the Debt Securities and the due and punctual
performance and observance of all of the covenants and


 


48

















 


conditions of this Indenture to be performed or observed by the
Company, such successor entity shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the Company,
and thereupon the predecessor entity shall be relieved of any further liability
or obligation hereunder or upon the Debt Securities. Such successor entity
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company, any or all of the Debt Securities issuable hereunder
which theretofore shall not have been signed by the Company and delivered to
the Trustee or the Authenticating Agent; and, upon the order of such successor
entity instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee or the Authenticating
Agent shall authenticate and deliver any Debt Securities which previously shall
have been signed and delivered by the officers of the Company, to the Trustee
or the Authenticating Agent for authentication, and any Debt Securities which such
successor entity thereafter shall cause to be signed and delivered to the
Trustee or the Authenticating Agent for that purpose. All the Debt Securities
so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Debt Securities theretofore or thereafter issued in accordance
with the terms of this Indenture as though all of such Debt 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, shall receive, in addition to the
Opinion of Counsel required by Section 9.05, an Opinion of Counsel as
conclusive evidence that any consolidation, merger, sale, conveyance, transfer
or other disposition, and any assumption, permitted or required by the terms of
this Article XI complies with the provisions of this Article XI.


 


ARTICLE XII


 


SATISFACTION AND DISCHARGE OF INDENTURE


 


SECTION 12.01.  Discharge of Indenture.


 


When (a) the
Company shall deliver to the Trustee for cancellation all Debt Securities
theretofore authenticated (other than any Debt Securities which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.06) and not theretofore canceled, or (b) all the Debt
Securities not theretofore canceled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit with the Trustee, in trust, funds,
which shall be immediately due and payable, sufficient to pay at maturity or
upon redemption all of the Debt Securities (other than any Debt Securities
which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.06) not theretofore canceled or
delivered to the Trustee for cancellation, including principal and premium, if
any, and interest due or to become due to, but excluding, such date of maturity
or redemption date, as the case may be, but excluding, however, the amount of
any moneys for the payment of principal of, and premium, if any, or interest on
the Debt Securities (1) theretofore repaid to the Company in accordance with
the provisions of


 


49

















 


Section 12.04, or (2) paid to any state or to the District of Columbia
pursuant to its unclaimed property or similar laws, and if in the case of
either clause (a) or clause (b) the Company shall also pay or cause to be paid
all other sums payable hereunder by the Company, then this Indenture shall
cease to be of further effect except for the provisions of Sections 2.05, 2.06,
3.01, 3.02, 3.04, 6.06, 6.09 and 12.04 hereof, which shall survive until such
Debt Securities shall mature or are redeemed, as the case may be, and are paid.
Thereafter, Sections 6.06, 6.09 and 12.04 shall survive, and the Trustee, on
demand of the Company accompanied by an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have been complied
with, and at the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture, the
Company, however, hereby agreeing to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Debt Securities.


 


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


 


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


 


SECTION 12.03.  Paying Agent to Repay Moneys Held.


 


Upon the
satisfaction and discharge of this Indenture, all moneys then held by any
Paying Agent of the 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 liability with respect to
such moneys.


 


SECTION 12.04.  Return of Unclaimed Moneys.


 


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


 


50

















 


ARTICLE XIII


 


IMMUNITY OF
INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS


 


SECTION 13.01.  Indenture and Debt Securities Solely Corporate Obligations.


 


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


 


ARTICLE XIV


 


MISCELLANEOUS PROVISIONS


 


SECTION 14.01.  Successors.


 


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


 


SECTION 14.02.  Official Acts by Successor Entity.


 


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


 


SECTION 14.03.  Surrender of Company Powers.


 


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


 


SECTION 14.04.  Addresses for Notices, etc.


 


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


 


51

















 


National Consumer Cooperative
Bank


1725 Eye Street, N.W., Suite
600


Washington, D.C. 20006


Attention:  Richard L. Reed


 


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


 


919 Market Street


Suite 700


Wilmington, DE 19801


Attention: Corporate Trust
Division


 


SECTION 14.05.  Governing Law.


 


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


 


SECTION 14.06.  Evidence of Compliance with Conditions Precedent.


 


Upon any application
or demand by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the Trustee an
Officers’ Certificate stating that in the opinion of the signers all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent have been complied with
(except that no such Opinion of Counsel is required to be furnished to the
Trustee in connection with the authentication and issuance of Debt Securities
issued on the date of this Indenture).


 


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


 


SECTION 14.07.  Non-Business Days.


 


Notwithstanding
anything to the contrary contained herein, if any Interest Payment Date, other
than on the Maturity Date, any Redemption Date or the Special Redemption Date
would otherwise fall on a day that is not a Business Day, such Interest Payment
Date will be moved to the next succeeding day that is a Business Day,
unless such Interest Payment Date


 


52

















 


would thereby fall into the next succeeding calendar month, in which
event such Interest Payment Date shall be the next preceding Business Day.  If the Maturity Date, any Redemption Date or
the Special Redemption Date falls on a day that is not a Business Day, then the
principal, premium, if any, and/or interest payable on such date will be paid
on the next succeeding Business Day, and no interest will accrue in respect of
the amount so payable for the period from and after such Maturity Date,
Redemption Date or Special Redemption Date.


 


SECTION 14.08.  Table of Contents, Headings, etc.


 


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


 


SECTION 14.09.  Execution in Counterparts.


 


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


 


SECTION 14.10.  Separability.


 


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


 


SECTION 14.11.  Assignment.


 


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


 


SECTION 14.12.  Acknowledgment of Rights.


 


The Company
acknowledges that, with respect to any Debt Securities held by the Trust or the
Institutional Trustee of the Trust, if the Institutional Trustee of the Trust
fails to enforce its rights under this Indenture as the holder of Debt
Securities held as the assets of the Trust after the holders of a majority in
Liquidation Amount of the Capital Securities of the Trust have so directed in
writing such Institutional Trustee, a holder of record of such Capital
Securities may to the fullest extent permitted by law institute legal
proceedings directly against the Company to enforce such Institutional
Trustee’s rights under this Indenture without first instituting any legal
proceedings against such Institutional Trustee or any other Person.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such


 


53

















 


event is attributable to the failure of the Company to pay interest (or
premium, if any) 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
of redemption, on the redemption date), the Company acknowledges that a holder
of record of Capital Securities of the Trust may directly institute a
proceeding against the Company for enforcement of payment to such holder
directly of the principal of (or premium, if any) or interest on the Debt Securities
having an aggregate principal amount equal to the aggregate Liquidation Amount
of the Capital Securities of such holder on or after the respective due date
specified in the Debt Securities.


 


ARTICLE XV


 


SUBORDINATION OF DEBT SECURITIES


 


SECTION 15.01.  Agreement to Subordinate.


 


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


 


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


 


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


 


SECTION 15.02.  Default on Senior Indebtedness.


 


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


 


In the event
that, notwithstanding the foregoing, any payment shall be received by the
Trustee when such payment is prohibited by the preceding paragraph of this
Section 15.02, 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 to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only to the
extent that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify


 


54

















 


the Trustee in writing within 90 days of such payment of the amounts
then due and owing on the Senior Indebtedness and only the amounts specified in
such notice to the Trustee shall be paid to the holders of Senior Indebtedness.


 


SECTION 15.03.  Liquidation; Dissolution; Bankruptcy.


 


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


 


In the event
that, notwithstanding the foregoing, any payment or distribution of assets of
the Company of any kind or character, whether in cash, property or securities,
prohibited by the foregoing, shall be received by the Trustee before all Senior
Indebtedness of the Company is paid in full, or provision is made for such
payment in money in accordance with its terms, such payment or distribution
shall be held in trust for the benefit of and shall be paid over or delivered
to the holders of such Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Indebtedness may have been issued,
as their respective interests may appear, as calculated by the Company, for
application to the payment of all Senior Indebtedness of the Company remaining
unpaid to the extent necessary to pay such Senior Indebtedness in full in money
in accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the benefit of the holders of such Senior Indebtedness.


 


For purposes
of this Article XV, the words “cash, property or securities” shall not be
deemed to include shares of stock of the Company as reorganized or readjusted,
or securities of the Company or any other corporation or other entity provided
for by a plan of reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article XV with respect to
the Debt Securities to the payment of all Senior Indebtedness of the Company,
that may at the time be outstanding, provided, that (a) such Senior
Indebtedness is assumed by the new corporation or other entity, if any,
resulting from any such reorganization or


 


55

















 


readjustment, and (b) the rights of the holders of such Senior
Indebtedness are not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the Company with, or the
merger of the Company into, another corporation or other entity or the
liquidation or dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety, to another
corporation or other entity upon the terms and conditions provided for in
Article IX of this Indenture shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 15.03 if such
other corporation or other entity shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article IX
of this Indenture. Nothing in Section 15.02 or in this Section 15.03 shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
6.06 of this Indenture.


 


SECTION 15.04.  Subrogation.


 


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


 


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


 


Upon any payment
or distribution of assets of the Company referred to in this Article XV, the
Trustee, subject to the provisions of Article VI of this Indenture, and the
Securityholders shall be entitled to conclusively rely upon any order or decree
made by any court of competent jurisdiction in which such dissolution, winding-
up, liquidation or reorganization proceedings are pending, or a certificate of
the receiver, trustee in bankruptcy, liquidation


 


56

















 


trustee, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Securityholders, for the purposes of
ascertaining the Persons entitled to participate in such distribution, the
holders of Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article XV.


 


SECTION 15.05.  Trustee to Effectuate Subordination.


 


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


 


SECTION 15.06.  Notice by the Company.


 


The Company
shall give prompt written notice to a Responsible Officer of the Trustee at the
Principal Office of the Trustee of any fact known to the Company that would
prohibit the making of any payment of moneys to or by the Trustee in respect of
the Debt Securities pursuant to the provisions of this Article XV.
Notwithstanding the provisions of this Article XV or
any other provision of this Indenture or any Additional Provisions, the Trustee
shall not be charged with knowledge of the existence of any facts that would
prohibit the making of any payment of moneys to or by the Trustee in respect of
the Debt Securities pursuant to the provisions of this Article XV, unless and
until a Responsible Officer of the Trustee at the Principal Office of the
Trustee shall have received written notice thereof from the Company or a holder
or holders of Senior Indebtedness or from any trustee therefor; and before the
receipt of any such written notice, the Trustee, subject to the provisions of
Article VI of this Indenture, shall be entitled in all respects to assume that
no such facts exist; provided, however, that if the Trustee shall
not have received the notice provided for in this Section 15.06 at least two
Business Days prior to the date upon which by the terms hereof any money may
become payable for any purpose (including, without limitation, the payment of
the principal of (or premium, if any) or interest on any Debt Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to
the purposes for which they were received, and shall not be affected by any
notice to the contrary that may be received by it within two Business Days
prior to such date.


 


The Trustee,
subject to the provisions of Article VI of this Indenture, shall be entitled to
conclusively rely on the delivery to it of a written notice by a Person
representing himself or herself to be a holder of Senior Indebtedness of the
Company (or a trustee or representative on behalf of such holder) to establish
that such notice has been given by a holder of such Senior Indebtedness or a
trustee or representative on behalf of any such holder or holders. In the event
that the Trustee determines in good faith that further evidence is required
with respect to the right of any Person as a holder of such Senior Indebtedness
to participate in any payment or distribution pursuant to this Article XV, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness held
by such Person, the extent to which such Person is entitled to participate in
such payment or distribution and any other facts pertinent to the rights of
such Person under this


 


57

















 


Article XV, and, if such evidence is not furnished, the Trustee may
defer any payment to such Person pending judicial determination as to the right
of such Person to receive such payment.


 


SECTION 15.07.  Rights of the Trustee, Holders of Senior Indebtedness.


 


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


 


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


 


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


 


SECTION 15.08.  Subordination May Not Be Impaired.


 


No right of
any present or future holder of any Senior Indebtedness of the Company to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company,
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company, with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
otherwise be charged with.


 


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


 


58

















 


Wells Fargo
Bank, National Association, in its capacity as Trustee, hereby accepts the
trusts in this Indenture declared and provided, upon the terms and conditions
herein above set forth.


 


59

















 


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


 


	
   

  	
  National Consumer Cooperative Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Wells Fargo Bank, National Association,

  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
								



 


60

















 


EXHIBIT A


 


FORM OF JUNIOR SUBORDINATED DEBT SECURITY

DUE 2034


 


[FORM OF FACE 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 OTHER APPLICABLE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TO THE COMPANY, (B) PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON THE HOLDER
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE
144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (C) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT TO AN “ACCREDITED INVESTOR” WITHIN THE
MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
SUCH AN “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO,
OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF
WHICH MAY BE OBTAINED FROM THE COMPANY. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.


 


THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS AND WARRANTS THAT IT
WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THIS SECURITY 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, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN
OR ARRANGEMENT


 

















 


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


 


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


 


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


 


THIS
OBLIGATION IS NOT GUARANTEED BY THE UNITED STATES AND DOES NOT CONSTITUTE A
DEBT OBLIGATION OF THE UNITED STATES OR ANY AGENCY OR INSTRUMENTALITY THEREOF.


 

















 


Form of Junior Subordinated
Debt Security due 2034


 


of


 


National Consumer Cooperative
Bank


 


National
Consumer Cooperative Bank (the “Company”), for value received promises to pay
to Wells Fargo Bank, National Association, not in its individual capacity but
solely as Institutional Trustee for NCB Capital Trust I, a Delaware statutory
trust (the “Holder”), or registered assigns, the principal sum of Fifty One
Million Five Hundred Forty Seven Thousand Dollars on January 7, 2034 and to pay
interest on said principal sum from December 17, 2003, or from the most recent
interest payment date (each such date, an “Interest Payment Date”) to which
interest has been paid or duly provided for, quarterly (subject to deferral as
set forth herein) in arrears on January 7, April 7, July 7 and October 7 of
each year commencing January 7, 2004, at a variable per annum rate, which with
respect to any Interest Payment Period (as defined in the Indenture) will equal
LIBOR (as defined in the Indenture) as determined on the LIBOR Determination
Date for such Interest Payment Period plus 2.9% (the “Interest Rate”)  (provided, however, that the Interest Rate
for any Interest Payment Period may not exceed the highest rate permitted by
New York law, as the same may be modified by United States law of general
applicability) until the principal hereof shall have become due and payable,
and on any overdue principal and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at an annual rate equal to the then applicable Interest
Rate compounded quarterly. The amount of interest payable on any Interest
Payment Date shall be computed on the basis of a 360-day year and the actual
number of days elapsed in the relevant Interest Payment Period. Notwithstanding
anything to the contrary contained herein, if any Interest Payment Date, other
than on the Maturity Date, any Redemption Date or the Special Redemption Date,
falls on a day that is not a Business Day, such Interest Payment Date will be
moved to the next succeeding day that is a Business Day, unless such Interest Payment Date
would thereby fall into the next succeeding calendar month, in which event such
Interest Payment Date shall be the next preceding Business Day.  If the Maturity Date, any Redemption Date or
the Special Redemption date falls on a day that is not a Business Day, then the
principal, premium, if any, and/or interest payable on such date will be paid
on the next succeeding Business Day, and no interest will accrue in respect of
the amount so payable for the period from and after such Maturity Date,
Redemption Date or Special Redemption Date. 
The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Debt Security (or one or more
Predecessor Securities, as defined in said Indenture) is registered at the
close of business on the regular record date for such interest installment,
except that interest and any Deferred Interest payable on the Maturity Date
shall be paid to the Person to whom principal is paid. Any such interest
installment not punctually paid or duly provided for shall forthwith cease to
be payable to the registered holders on such regular record date and may be
paid to the Person in whose name this Debt Security (or one or more Predecessor
Debt Securities) is registered at the close of business on a special record
date 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 Securities
not less than 10 days prior to such special record date, all as more fully
provided in the Indenture. The principal of and interest on this Debt Security
shall be payable at the office or agency of the Trustee (or other Paying Agent
appointed by the Company) maintained for that


 

















 


purpose in any coin or currency of the United States of America that at
the time of payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the
Company by check mailed to the registered holder at such address as shall
appear in the Debt Security Register or by wire transfer to an account
appropriately designated by the holder hereof. Notwithstanding the foregoing,
so long as the holder of this Debt Security is the Institutional Trustee, the
payment of the principal of and interest on this Debt Security will be made in
immediately available funds at such place and to such account as may be
designated by the Institutional Trustee.


 


Upon
submission of Notice (as defined in the Indenture) and so long as no Event of
Default has occurred and is continuing, the Company shall have the right, from
time to time and without causing an Event of Default, to defer payments of
interest on the Debt Securities by extending the interest distribution
period on the Debt Securities at any time and from time to time during the term
of the Debt Securities, for up to 20 consecutive quarterly periods (each such
extended interest distribution
period, an “Extension Period”), during which Extension Period no interest shall
be due and payable (except any Additional Interest that may be due and
payable). During any Extension Period, interest will continue to accrue on the
Debt Securities, and interest on such accrued interest (such accrued interest
and interest thereon referred to herein as “Deferred Interest”) will accrue at
an annual rate equal to the Interest Rate applicable during such Extension
Period, compounded quarterly from the date such Deferred Interest would have
been payable were it not for the Extension Period, to the extent permitted by law.
No Extension Period may end on a date other than an Interest Payment Date. At
the end of any such Extension Period the Company shall pay all Deferred
Interest then accrued and unpaid on the Debt Securities; provided, however,
that no Extension Period may extend beyond the Maturity Date, Redemption Date
or Special Redemption Date,
as the case may be, and provided, further, however, during any
such Extension Period, the Company may not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company’s capital stock or (ii) make any payment on
or repay, repurchase or redeem any debt securities of the Company that rank
pari passu in all respects with or junior in interest to the Debt Securities
(other than (a) repurchases, redemptions or other acquisitions of shares of
capital stock of the Company (A) in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of one or more
employees, officers, directors or consultants, (B) in connection with a
dividend reinvestment or stockholder stock purchase plan or (C) in connection
with the issuance of capital stock of the Company (or securities convertible
into or exercisable for such capital stock), as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as a
result of any exchange, reclassification, combination or conversion of any
class or series of the Company’s capital stock (or any capital stock of a
subsidiary of the Company) for any class or series of the Company’s capital
stock or of any class or series of the Company’s indebtedness for any class or
series of the Company’s capital stock, (c) the purchase of fractional interests
in shares of the Company’s capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged,
(d) any declaration of a dividend in connection with any stockholder’s rights
plan, or the issuance of rights, stock or other property under any
stockholder’s rights plan, or the redemption or repurchase of rights pursuant
thereto, (e) any dividend in the form of stock, warrants, options or other
rights where the dividend stock or the stock issuable upon exercise of such
warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks pari passu
with or junior to such stock and any cash payments in lieu of fractional


 

















 


shares issued in connection therewith, or (f) payments under the
Capital Securities Guarantee or any guarantee of securities similar to the
Capital Securities issued by a trust). Prior to the termination of any
Extension Period, the Company may further extend such period, provided that
such period together with all such previous and further consecutive extensions
thereof shall not exceed 20 consecutive quarterly periods. Upon the termination
of any Extension Period and upon the payment of all Deferred Interest, the
Company may commence a new Extension Period, subject to the foregoing
requirements. No interest or Deferred Interest shall be due and payable during
an Extension Period, except at the end thereof, but Deferred Interest shall
accrue upon each installment of interest that would otherwise have been due and
payable during such Extension Period until such installment is paid. The
Company must give the Trustee notice of its election to begin such Extension
Period at least one Business Day prior to the earlier of (i) the next
succeeding date on which interest on the Debt Securities would have been
payable except for the election to begin such Extension Period or (ii) the date
such interest is payable, but in any event not later than the related regular
record date.


 


The
indebtedness evidenced by this Debt Security is, to the extent provided in the
Indenture, subordinate and junior in right of payment to the prior payment in
full of all Senior Indebtedness, and this Debt Security is issued subject to
the provisions of the Indenture with respect thereto. Each holder of this Debt
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on such holder’s behalf to
take such action as may be necessary or appropriate to acknowledge or effectuate
the subordination so provided and (c) appoints the Trustee such holder’s
attorney-in-fact for any and all such purposes. Each holder hereof, by such
holder’s acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon said provisions.


 


The Company
and the Holder agree, and by acceptance of a beneficial ownership interest in
this Debt Security, each beneficial owner of the Debt Security will be deemed
to have agreed, to treat the Debt Security as indebtedness of the Company for
United States federal income tax purposes.


 


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


 


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


 


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


 

















 


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


 


	
   

  	
  National Consumer Cooperative Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


Dated:                      ,
2003


 


CERTIFICATE OF AUTHENTICATION


 


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


 


Wells Fargo Bank, National Association, not in its individual capacity
but solely as the Trustee


 


 


	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  	
   

  



 


Dated:                  ,
2003


 

















 


[FORM OF REVERSE OF SECURITY]


 


This Debt
Security is one of a duly authorized series of Debt Securities of the Company,
all issued or to be issued pursuant to an Indenture (the “Indenture”), dated as
of December 17, 2003, duly executed and delivered between the Company and Wells
Fargo Bank, National Association, as Trustee (the “Trustee”), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the holders of the Debt
Securities (referred to herein as the “Debt Securities”) of which this Debt
Security is a part. The summary of the terms of this Debt Security contained
herein does not purport to be complete and is qualified by reference to the
Indenture.


 


Upon the
occurrence and continuation of a Tax Event, an Investment Company Event or a
Capital Treatment Event (each a “Special Event”), this Debt Security may become
due and payable, in whole or in part, at any time, within 90 days following the
occurrence of such Tax Event, Investment Company Event or Capital Treatment
Event (the “Special Redemption Date”), as the case may be, at the Special
Redemption Price. The Company shall also have the right to redeem this Debt Security
at the option of the Company, in whole or in part, on any Interest Payment Date
on or after January 7, 2009 (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 regulatory authority with jurisdiction over
the Company if such approval is then required under applicable capital
guidelines or policies of such regulatory authority, upon not less than 30
days’ nor more than 60 days’ notice. If the Debt Securities are only partially
redeemed by the Company, the Debt Securities will be redeemed pro rata
or by lot or by any other method utilized by the Trustee.


 


“Redemption
Price” means 100% of the principal amount of the Debt Securities being redeemed
plus accrued and unpaid interest on such Debt Securities to the Redemption Date
or, in the case of a redemption due to the occurrence of a Special Event, to
the Special Redemption Date if such Special Redemption Date is on or after January
7, 2009.


 


“Special
Redemption Price” means (1) if the Special Redemption Date is before January 7,
2009, One Hundred Five Percent (105%) of the principal amount to be redeemed
plus any accrued and unpaid interest thereon to the date of such redemption and
(2) if the Special Redemption Date is on or after January 7, 2009 the
Redemption Price for such Special Redemption Date.


 


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


 


In case an
Event of Default, as defined in the Indenture, shall have occurred and be
continuing, the principal of all of the Debt Securities may be declared due and
payable, and upon such declaration of acceleration shall become due and
payable, in the manner, with the effect and subject to the conditions provided
in the Indenture.


 

















 


The Indenture
contains provisions permitting the Company and the Trustee, with the consent of
the holders of not less than a majority in aggregate principal amount of the
Debt Securities at the time outstanding affected thereby, as specified in the
Indenture, to execute supplemental indentures for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of the Debt Securities; provided, however,
that no such supplemental indenture shall, among other things, without the
consent of the holders of each Debt Security then outstanding and affected
thereby (i) extend the fixed maturity of the Debt Securities, or reduce the
principal amount thereof or any redemption premium thereon, or reduce the rate
or extend the time of payment of interest thereon, or make payments due on the
Debt Securities payable in any coin or currency other than that provided in the
Debt Securities, or impair or affect the right of any holder of Debt Securities
to institute suit for the payment thereof, or (ii) reduce the aforesaid
percentage of Debt Securities, the holders of which are required to consent to
any such supplemental indenture. The Indenture also contains provisions
permitting the holders of a majority in aggregate principal amount of the Debt
Securities at the time outstanding, on behalf of all of the holders of the Debt
Securities, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the Indenture,
and its consequences, except a default in payments due on any of the Debt
Securities. Any such consent or waiver by the registered holder of this Debt
Security (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such holder and upon all future holders and owners of this Debt
Security and of any Debt Security issued in exchange herefor or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Debt Security.


 


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


 


As provided in
the Indenture and subject to certain limitations herein and therein set forth,
this Debt Security is transferable by the registered holder hereof on the Debt Security
Register of the Company, upon surrender of this Debt Security for registration
of transfer at the office or agency of the Trustee in Wilmington, Delaware
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the registered
holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Debt Securities of authorized denominations and for
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be made for any such registration of
transfer, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in relation thereto.


 


Prior to due
presentment for registration of transfer of this Debt Security, the Company,
the Trustee, any Authenticating Agent, any Paying Agent, any transfer agent and
the Debt Security registrar may deem and treat the registered holder hereof as
the absolute owner hereof (whether or not this Debt Security shall be overdue
and notwithstanding any notice of ownership or writing hereon) for the purpose
of receiving payment of or on account of the principal hereof and interest due
hereon and for all other purposes, and neither the Company nor


 

















 


the Trustee nor any Authenticating Agent nor any Paying Agent nor any
transfer agent nor any Debt Security registrar shall be affected by any notice
to the contrary.


 


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


 


The Debt
Securities are issuable only in registered certificated form without coupons.
As provided in the Indenture and subject to certain limitations herein and
therein set forth, Debt Securities are exchangeable for a like aggregate
principal amount of Debt Securities of a different authorized denomination, as
requested by the holder surrendering the same.


 


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


 


THE LAW OF THE
STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THE DEBT SECURITIES, WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.