Exhibit 10.13


 


 




 





LANDMARK BANCORP, INC.,


as Issuer


 


 


INDENTURE


 


Dated as of December 30, 2005


 


WILMINGTON TRUST COMPANY,


 


as Trustee


 


 


FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURES


 


DUE 2036


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I. DEFINITIONS

  	
  1

  
	
  Section 1.1.

  	
  Definitions.

  	
  1

  
	
   

  	
   

  
	
  ARTICLE II. DEBENTURES

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 2.1.

  	
  Authentication and Dating.

  	
  9

  
	
  Section 2.2.

  	
  Form of Trustee’s Certificate of Authentication.

  	
  9

  
	
  Section 2.3.

  	
  Form and Denomination of Debentures.

  	
  9

  
	
  Section 2.4.

  	
  Execution of Debentures.

  	
  10

  
	
  Section 2.5.

  	
  Exchange and Registration of Transfer of Debentures.

  	
  10

  
	
  Section 2.6.

  	
  Mutilated, Destroyed, Lost or Stolen Debentures.

  	
  12

  
	
  Section 2.7.

  	
  Temporary Debentures.

  	
  13

  
	
  Section 2.8.

  	
  Payment of Interest and Additional Interest.

  	
  13

  
	
  Section 2.9.

  	
  Cancellation of Debentures Paid, etc.

  	
  14

  
	
  Section 2.10.

  	
  Computation of Interest.

  	
  14

  
	
  Section 2.11.

  	
  Extension of Interest Payment Period.

  	
  16

  
	
  Section 2.12.

  	
  CUSIP Numbers.

  	
  17

  
	
   

  	
   

  
	
  ARTICLE III. PARTICULAR
  COVENANTS OF THE COMPANY

  	
  17

  
	
   

  	
   

  
	
  Section 3.1.

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

  	
  17

  
	
  Section 3.2.

  	
  Offices for Notices and Payments, etc.

  	
  17

  
	
  Section 3.3.

  	
  Appointments to Fill Vacancies in Trustee’s Office.

  	
  18

  
	
  Section 3.4.

  	
  Provision as to Paying Agent.

  	
  18

  
	
  Section 3.5.

  	
  Certificate to Trustee.

  	
  19

  
	
  Section 3.6.

  	
  Additional Sums.

  	
  19

  
	
  Section 3.7.

  	
  Compliance with Consolidation Provisions.

  	
  19

  
	
  Section 3.8.

  	
  Limitation on Dividends.

  	
  19

  
	
  Section 3.9.

  	
  Covenants as to the Trust.

  	
  20

  
	
  Section 3.10.

  	
  Additional Junior Indebtedness.

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV. SECURITYHOLDERS’
  LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE

  	
  20

  
	
   

  	
   

  
	
  Section 4.1.

  	
  Securityholders’ Lists.

  	
  20

  
	
  Section 4.2.

  	
  Preservation and Disclosure of Lists.

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE V. REMEDIES OF THE
  TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT

  	
  21

  
	
   

  	
   

  
	
  Section 5.1.

  	
  Events of Default.

  	
  21

  
	
  Section 5.2.

  	
  Payment of Debentures on Default; Suit Therefor.

  	
  23

  
	
  Section 5.3.

  	
  Application of Moneys Collected by Trustee.

  	
  24

  
	
  Section 5.4.

  	
  Proceedings by Securityholders.

  	
  25

  
	
  Section 5.5.

  	
  Proceedings by Trustee.

  	
  25

  
	
  Section 5.6.

  	
  Remedies Cumulative and Continuing; Delay or Omission Not a Waiver.

  	
  25

  



 


i

















 


	
  Section 5.7.

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

  	
  25

  
	
  Section 5.8.

  	
  Notice of Defaults.

  	
  26

  
	
  Section 5.9.

  	
  Undertaking to Pay Costs.

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI. CONCERNING THE
  TRUSTEE

  	
  27

  
	
   

  	
   

  
	
  Section 6.1.

  	
  Duties and Responsibilities of Trustee.

  	
  27

  
	
  Section 6.2.

  	
  Reliance on Documents, Opinions, etc.

  	
  27

  
	
  Section 6.3.

  	
  No Responsibility for Recitals, etc.

  	
  28

  
	
  Section 6.4.

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

  	
  29

  
	
  Section 6.5.

  	
  Moneys to be Held in Trust.

  	
  29

  
	
  Section 6.6.

  	
  Compensation and Expenses of Trustee.

  	
  29

  
	
  Section 6.7.

  	
  Officers’ Certificate as Evidence.

  	
  29

  
	
  Section 6.8.

  	
  Eligibility of Trustee.

  	
  30

  
	
  Section 6.9.

  	
  Resignation or Removal of Trustee

  	
  30

  
	
  Section 6.10.

  	
  Acceptance by Successor Trustee.

  	
  31

  
	
  Section 6.11.

  	
  Succession by Merger, etc.

  	
  32

  
	
  Section 6.12.

  	
  Authenticating Agents.

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII. CONCERNING THE
  SECURITYHOLDERS

  	
  33

  
	
   

  	
   

  
	
  Section 7.1.

  	
  Action by Securityholders.

  	
  33

  
	
  Section 7.2.

  	
  Proof of Execution by Securityholders.

  	
  33

  
	
  Section 7.3.

  	
  Who Are Deemed Absolute Owners.

  	
  34

  
	
  Section 7.4.

  	
  Debentures Owned by Company Deemed Not Outstanding.

  	
  34

  
	
  Section 7.5.

  	
  Revocation of Consents; Future Holders Bound.

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII. SECURITYHOLDERS’
  MEETINGS

  	
  34

  
	
   

  	
   

  
	
  Section 8.1.

  	
  Purposes of Meetings.

  	
  34

  
	
  Section 8.2.

  	
  Call of Meetings by Trustee.

  	
  35

  
	
  Section 8.3.

  	
  Call of Meetings by Company or Securityholders.

  	
  35

  
	
  Section 8.4.

  	
  Qualifications for Voting.

  	
  35

  
	
  Section 8.5.

  	
  Regulations.

  	
  35

  
	
  Section 8.6.

  	
  Voting.

  	
  36

  
	
  Section 8.7.

  	
  Quorum; Actions.

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX. SUPPLEMENTAL
  INDENTURES

  	
  37

  
	
   

  	
   

  
	
  Section 9.1.

  	
  Supplemental Indentures without Consent of Securityholders.

  	
  37

  
	
  Section 9.2.

  	
  Supplemental Indentures with Consent of Securityholders.

  	
  38

  
	
  Section 9.3.

  	
  Effect of Supplemental Indentures.

  	
  38

  
	
  Section 9.4.

  	
  Notation on Debentures.

  	
  39

  
	
  Section 9.5.

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

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE X. REDEMPTION OF
  SECURITIES

  	
  39

  
	
   

  	
   

  
	
  Section 10.1.

  	
  Optional Redemption.

  	
  39

  
	
  Section 10.2.

  	
  Special Event Redemption.

  	
  39

  
	
  Section 10.3.

  	
  Notice of Redemption; Selection of Debentures.

  	
  40

  
	
  Section 10.4.

  	
  Payment of Debentures Called for Redemption.

  	
  40

  



 


ii

















 


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

  	
  41

  
	
   

  	
   

  
	
  Section 11.1.

  	
  Company May Consolidate, etc., on Certain Terms.

  	
  41

  
	
  Section 11.2.

  	
  Successor Entity to be Substituted.

  	
  41

  
	
  Section 11.3.

  	
  Opinion of Counsel to be Given to Trustee.

  	
  41

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII. SATISFACTION AND
  DISCHARGE OF INDENTURE

  	
  41

  
	
   

  	
   

  
	
  Section 12.1.

  	
  Discharge of Indenture.

  	
  41

  
	
  Section 12.2.

  	
  Deposited Moneys to be Held in Trust by Trustee.

  	
  42

  
	
  Section 12.3.

  	
  Paying Agent to Repay Moneys Held.

  	
  42

  
	
  Section 12.4.

  	
  Return of Unclaimed Moneys.

  	
  42

  
	
   

  	
   

  	
   

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

  	
  43

  
	
   

  	
   

  
	
  Section 13.1.

  	
  Indenture and Debentures Solely Corporate Obligations.

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV. MISCELLANEOUS
  PROVISIONS

  	
  43

  
	
   

  	
   

  
	
  Section 14.1.

  	
  Successors.

  	
  43

  
	
  Section 14.2.

  	
  Official Acts by Successor Entity.

  	
  43

  
	
  Section 14.3.

  	
  Surrender of Company Powers.

  	
  43

  
	
  Section 14.4.

  	
  Addresses for Notices, etc.

  	
  43

  
	
  Section 14.5.

  	
  Governing Law.

  	
  43

  
	
  Section 14.6.

  	
  Evidence of Compliance with Conditions Precedent.

  	
  43

  
	
  Section 14.7.

  	
  Table of Contents, Headings, etc.

  	
  44

  
	
  Section 14.8.

  	
  Execution in Counterparts.

  	
  44

  
	
  Section 14.9.

  	
  Separability.

  	
  44

  
	
  Section 14.10.

  	
  Assignment.

  	
  44

  
	
  Section 14.11.

  	
  Acknowledgment of Rights.

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV. SUBORDINATION OF
  DEBENTURES

  	
  44

  
	
   

  	
   

  
	
  Section 15.1.

  	
  Agreement to Subordinate.

  	
  44

  
	
  Section 15.2.

  	
  Default on Senior Indebtedness.

  	
  45

  
	
  Section 15.3.

  	
  Liquidation, Dissolution, Bankruptcy.

  	
  45

  
	
  Section 15.4.

  	
  Subrogation.

  	
  46

  
	
  Section 15.5.

  	
  Trustee to Effectuate Subordination.

  	
  47

  
	
  Section 15.6.

  	
  Notice by the Company.

  	
  47

  
	
  Section 15.7.

  	
  Rights of the Trustee; Holders of Senior Indebtedness.

  	
  47

  
	
  Section 15.8.

  	
  Subordination May Not Be Impaired.

  	
  48

  
	
   

  	
   

  
	
  Exhibit A

  	
  Form of Floating Rate Junior Subordinated
  Deferrable Interest Debenture

  	
   

  
	
  Exhibit B

  	
  Form of Certificate to Trustee

  	
   

  
				



 


iii

















 


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


 


WITNESSETH:


 


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


 


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


 


NOW, THEREFORE, This
Indenture Witnesseth:


 


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


 


ARTICLE I.

DEFINITIONS


 


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


 


“Acceleration Event of
Default” means an Event of Default under Section 5.1(a), (d), (e) or
(f), whatever the reason for such Acceleration Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body.


 


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


 


“Additional Junior
Indebtedness” means, without duplication and other than the Debentures, any
indebtedness, liabilities or obligations of the Company, or any Subsidiary of
the Company, under debt securities (or guarantees in respect of debt
securities) initially issued after the date of this Indenture to any trust, or
a trustee of a trust, partnership or other entity affiliated with the Company
that is, directly or indirectly, a finance subsidiary (as such term is defined
in Rule 3a-5 under the Investment Company Act of 1940) or other financing
vehicle of the Company or any Subsidiary of the Company in connection with the
issuance by that entity of preferred securities or other securities that are
eligible to qualify for Tier 1 capital treatment (or its then equivalent)
for purposes of the capital adequacy guidelines of the Federal Reserve, as then
in effect and applicable to the Company (or, if the Company is not a bank
holding company, such guidelines applied to the Company as if the Company were
subject to such guidelines); provided, however, that the
inability of the Company to treat all or any portion of the Additional Junior
Indebtedness as Tier 1 capital shall not disqualify it as Additional
Junior Indebtedness if such inability results from the Company having
cumulative preferred stock, minority interests in consolidated subsidiaries, or
any other class of security or interest which the Federal Reserve now or may hereafter
accord Tier 1 capital treatment


 


1

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Capital Treatment
Event” means the receipt by the Company and the Trust of an opinion of
counsel experienced in such matters to the effect that, as a result of the
occurrence of any amendment to, or change (including any announced prospective
change) in, the laws, rules or regulations of the United States or any
political subdivision thereof or therein, or as the result of any official or
administrative pronouncement or action or decision interpreting or applying
such laws, rules or regulations, which amendment or change is effective or
which pronouncement, action or decision is announced on or after the date of
original issuance of the Debentures, there is more than an insubstantial risk
that the Company will not, within 90 days of the date of such opinion, be
entitled to treat an amount equal to the aggregate liquidation amount of the
Capital Securities as “Tier 1 Capital” (or its then equivalent) for
purposes of the capital adequacy guidelines of the Federal Reserve, as then in
effect and applicable to the Company (or if the Company is not a bank holding
company or is otherwise not subject to the Federal Reserve’s risk-based capital
adequacy guidelines, such guidelines applied to the Company as if the Company
were subject to such guidelines); provided, however, that the
inability of the Company to treat all or any portion of the liquidation amount
of the Capital Securities as Tier l Capital shall not constitute the basis
for a Capital Treatment Event, if such inability results from the Company
having cumulative preferred stock, minority interests in consolidated
subsidiaries, or any other class of security or interest which the Federal
Reserve or OTS, as applicable, may now or hereafter accord Tier 1
Capital treatment in excess of the amount which may now or hereafter
qualify for treatment as Tier 1 Capital under applicable capital adequacy
guidelines; provided  further, however, that the
distribution of


 


2

















 


Debentures in
connection with the liquidation of the Trust shall not in and of itself
constitute a Capital Treatment Event unless such liquidation shall have
occurred in connection with a Tax Event or an Investment Company Event.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Distribution Period”
means (i) with respect to interest paid on the first Interest Payment
Date, the period beginning on (and including) the date of original issuance and
ending on (but excluding) the Interest Payment Date in March 2006 and (ii) thereafter,
with respect to interest paid on each successive Interest Payment Date, the
period beginning on (and including) the preceding Interest Payment Date and
ending on (but excluding) such current Interest Payment Date.


 


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


 


3

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Maturity Date”
means March 15, 2036.


 


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


 


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


 


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


 


4

















 


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


 


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


 


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


 


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


 


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


 


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


 


“Primary Treasury
Dealer” means either a nationally recognized primary United States
Government securities dealer or an entity of recognized standing in matters
pertaining to the quotation of treasury securities that is reasonably
acceptable to the Company and the Trustee.


 


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


 


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


 


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


 


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


 


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


 


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


 


5

















 


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


 


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


 


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


 


“Senior Indebtedness”
means, with respect to the Company, (i) the principal, premium, if any,
and interest in respect of (A) indebtedness of the Company for all
borrowed and purchased money and (B) indebtedness evidenced by securities,
debentures, notes, bonds or other similar instruments issued by the Company; (ii) all
capital lease obligations of the Company; (iii) all obligations of the
Company issued or assumed as the deferred purchase price of property, all
conditional sale obligations of the Company and all obligations of the Company
under any title retention agreement; (iv) all obligations of the Company
for the reimbursement of any letter of credit, any banker’s acceptance, any
security purchase facility, any repurchase agreement or similar arrangement,
any interest rate swap, any other hedging arrangement, any obligation under
options or any similar credit or other transaction; (v) all obligations of
the Company associated with derivative products such as interest and foreign
exchange rate contracts, commodity contracts, and similar arrangements; (vi) all
obligations of the type referred to in clauses (i) through (v) above
of other Persons for the payment of which the Company is responsible or liable
as obligor, guarantor or otherwise including, without limitation, similar
obligations arising from off-balance sheet guarantees and direct credit
substitutes; and (vii) all obligations of the type referred to in
clauses (i) through (vi) above of other Persons secured by any
lien on any property or asset of the Company (whether or not such obligation is
assumed by the Company), whether incurred on or prior to the date of this
Indenture or thereafter incurred. Notwithstanding the foregoing, “Senior
Indebtedness” shall not include (1) any Additional Junior Indebtedness, (2) Debentures
issued pursuant to this Indenture and guarantees in respect of such Debentures,
(3) trade accounts payable of the Company arising in the ordinary course
of business (such trade accounts payable being pari passu
in right of payment to the Debentures), or (4) obligations with respect to
which (a) in the instrument creating or evidencing the same or pursuant to
which the same is outstanding, it is provided that such obligations are pari passu, junior or otherwise not superior in right of
payment to the Debentures and (b) the Company, prior to the issuance
thereof, has notified (and, if then required under the applicable guidelines of
the regulating entity, has received approval from) the Federal Reserve (if the
Company is a bank holding company) or the OTS (if the Company is a savings and
loan holding company). Senior Indebtedness shall continue to be Senior
Indebtedness and be entitled to the subordination provisions irrespective of
any amendment, modification or waiver of any term of such Senior Indebtedness.


 


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


 


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


 


“Special Redemption
Price” means (A) if the Special Redemption Date occurs before the
Interest Payment Date in March 2011, the sum of (i) the product of (a) 62.5%
times (b) the price set forth in the following table for any Special
Redemption Date that occurs on the date indicated below (or if such day is not
a Business Day, then the next succeeding Business Day), expressed as the
percentage of the principal amount of the Debentures:


 


6

















 




	
  Month in which Special

  Redemption Date Occurs

  	
   

  	
  Special Redemption Price

  
	
  March 2006

  	
   

  	
  104.625%

  
	
  June 2006

  	
   

  	
  104.300%

  
	
  September 2006

  	
   

  	
  104.000%

  
	
  December 2006

  	
   

  	
  103.650%

  
	
  March 2007

  	
   

  	
  103.350%

  
	
  June 2007

  	
   

  	
  103.000%

  
	
  September 2007

  	
   

  	
  102.700%

  
	
  December 2007

  	
   

  	
  102.350%

  
	
  March 2008

  	
   

  	
  102.050%

  
	
  June 2008

  	
   

  	
  101.700%

  
	
  September 2008

  	
   

  	
  101.400%

  
	
  December 2008

  	
   

  	
  101.050%

  
	
  March 2009

  	
   

  	
  100.750%

  
	
  June 2009

  	
   

  	
  100.450%

  
	
  September 2009

  	
   

  	
  100.200%

  
	
  December 2009 and thereafter

  	
   

  	
  100.000%

  






 


plus (ii) the
product of 37.5% times the greater of (y) 107.5% of the principal amount
of the Debentures, plus accrued and unpaid interest (including Additional
Interest) on the Debentures to the Special Redemption Date, or (z) as determined
by the Quotation Agent, the sum of the present values of the scheduled payments
of principal and interest on the Debentures during the Fixed Rate Period
Remaining Life of the Debentures (assuming the Debentures matured on the
Interest Payment Date in March 2011) discounted to the Special Redemption
Date on a quarterly basis (based on the actual number of days) at the Treasury
Rate, plus (iii) in each case, accrued and unpaid interest (including
Additional Interest) on the Debentures to such Special Redemption Date, or (B) if
the Special Redemption Date occurs on or after the Interest Payment Date in March 2011,
100% of the principal amount of the Debentures, plus accrued and unpaid
interest (including any Additional Interest) on such Debentures to the Special
Redemption Date.


 


“Subsidiary” means
with respect to any Person, (i) any corporation at least a majority of the
outstanding voting stock of which is owned, directly or indirectly, by such
Person or by one or more of its Subsidiaries, or by such Person and one or more
of its Subsidiaries, (ii) any general partnership, joint venture or
similar entity, at least a majority of the outstanding partnership or similar
interests of which shall at the time be owned by such Person, or by one or more
of its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any
limited partnership of which such Person or any of its Subsidiaries is a
general


 


7

















 


partner. For the
purposes of this definition, “voting stock” means shares, interests,
participations or other equivalents in the equity interest (however designated)
in such Person having ordinary voting power for the election of a majority of
the directors (or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the
occurrence of a contingency.


 


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


 


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


 


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


 


“Treasury Rate”
means (i) the yield, under the heading which represents the average for
the week immediately prior to the date of calculation, appearing in the most
recently published statistical release designated H.15 (519) or any successor
publication which is published weekly by the Federal Reserve and which
establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption “Treasury Constant Maturities,”
for the maturity corresponding to the Fixed Rate Period Remaining Life (if no
maturity is within three months before or after the Fixed Rate Period Remaining
Life, yields for the two published maturities most closely corresponding to the
Fixed Rate Period Remaining Life shall be determined and the Treasury Rate
shall be interpolated or extrapolated from such yields on a straight-line
basis, rounding to the nearest month) or (ii) if such release (or any
successor release) is not published during the week preceding the calculation
date or does not contain such yields, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue, calculated using
a price for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such Special
Redemption Date. The Treasury Rate shall be calculated by the Quotation Agent
on the third Business Day preceding the Special Redemption Date.


 


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


 


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


 


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


 


8

















 


ARTICLE II.

DEBENTURES


 


Section 2.1.                                Authentication
and Dating. Upon the execution and delivery of this Indenture, or from
time to time thereafter, Debentures in an aggregate principal amount not in
excess of $8,248,000.00 may be executed and delivered by the Company to
the Trustee for authentication, and the Trustee, upon receipt of a written
authentication order from the Company, shall thereupon authenticate and make
available for delivery said Debentures to or upon the written order of the
Company, signed by its Chairman of the Board of Directors, Chief Executive
Officer, Vice Chairman, the President, one of its Managing Directors or one of
its Vice Presidents without any further action by the Company hereunder. Notwithstanding
anything to the contrary contained herein, the Trustee shall be fully protected
in relying upon the aforementioned authentication order and written order in
authenticating and delivering said Debentures. In authenticating such
Debentures, and accepting the additional responsibilities under this Indenture
in relation to such Debentures, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


WILMINGTON TRUST COMPANY,
as Trustee


 


	
  By

  	
   

  	
   

  
	
  Authorized
  Signer

  



 


Section 2.3.                                Form and
Denomination of Debentures. The Debentures shall be substantially in
the form of Exhibit A attached hereto. The Debentures shall be in
registered, certificated form without


 


9

















 


coupons and in
minimum denominations of $100,000.00 and any multiple of $1,000.00 in excess
thereof. Any attempted transfer of the Debentures in a block having an
aggregate principal amount of less than $100,000.00 shall be deemed to be void
and of no legal effect whatsoever. Any such purported transferee shall be
deemed not to be a holder of such Debentures for any purpose, including, but
not limited to the receipt of payments on such Debentures, and such purported
transferee shall be deemed to have no interest whatsoever in such Debentures. The
Debentures shall be numbered, lettered, or otherwise distinguished in such
manner or in accordance with such plans as the officers executing the same may determine
with the approval of the Trustee as evidenced by the execution and
authentication thereof.


 


Section 2.4.                                Execution
of Debentures. The Debentures shall be signed in the name and on behalf
of the Company by the manual or facsimile signature of its Chairman of the
Board of Directors, Chief Executive Officer, Vice Chairman, President, one of
its Managing Directors or one of its Executive Vice Presidents, Senior Vice
Presidents or Vice Presidents. Only such Debentures as shall bear thereon a
certificate of authentication substantially in the form herein before
recited, executed by the Trustee or the Authenticating Agent by the manual
signature of an authorized signer, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee or the Authenticating Agent upon any Debenture executed by the Company
shall be conclusive evidence that the Debenture so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture.


 


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


 


Every Debenture shall be
dated the date of its authentication.


 


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


 


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


 


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


 


10

















 


written instrument
or instruments of transfer in form satisfactory to the Company and the
Trustee or the Authenticating Agent duly executed by the holder or his attorney
duly authorized in writing.


 


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


 


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


 


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


 


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


 


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


 


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


 


11

















 


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


 


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


 


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


 


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


 


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


 


Every substituted
Debenture issued pursuant to the provisions of this Section 2.6 by virtue
of the fact that any such Debenture is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Debenture shall be found at any time, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Debentures duly issued hereunder. All Debentures shall
be held and owned upon the express condition that, to the extent


 


12

















 


permitted by
applicable law, the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Debentures and
shall preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.


 


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


 


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


 


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


 


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


 


13

















 


amount of
Defaulted Interest proposed to be paid on each such Debenture and the date of
the proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a special record date for the payment of such Defaulted
Interest which shall not be more than 15 nor less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such special record date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed, first class postage
prepaid, to each Securityholder at its address as it appears in the Debenture
Register, not less than 10 days prior to such special record date. Notice of
the proposed payment of such Defaulted Interest and the special record date
therefor having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names such Debentures (or their respective Predecessor
Securities) are registered on such special record date and shall be no longer
payable.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


14

















 


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


 


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


 


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


 


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


 


If the rate for U.S.
dollar deposits having a three-month maturity that initially appears on
Telerate Page 3750 as of 11:00 a.m. (London time) on the related Determination
Date is superseded on the Telerate Page 3750 by a corrected rate by
12:00 noon (London time) on such Determination Date, then the corrected
rate as so substituted on the applicable page will be the applicable 3-Month
LIBOR for such Determination Date.


 


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


 


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


 


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


 


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


 


15

















 


and manifest error) be final, conclusive and binding
on the Trust, the Company and all of the holders of the Debentures and the Capital
Securities, and no liability shall (in the absence of willful default, bad
faith or manifest error) attach to the Trustee or the Institutional Trustee in
connection with the exercise or non-exercise by either of them or their
respective powers, duties and discretion.


 


Section 2.11.                         Extension
of Interest Payment Period. So long as no Acceleration Event of Default
has occurred and is continuing, the Company shall have the right, from time to
time, and without causing an Event of Default, to defer payments of interest on
the Debentures by extending the interest payment period on the Debentures at
any time and from time to time during the term of the Debentures, for up to
20 consecutive quarterly periods (each such extended interest payment
period, an “Extension Period”), during which Extension Period no
interest (including Additional Interest) shall be due and payable (except any
Additional Sums that may be due and payable). No Extension Period may end
on a date other than an Interest Payment Date. During an Extension Period,
interest will continue to accrue on the Debentures, and interest on such
accrued interest will accrue at an annual rate equal to the Interest Rate in
effect for such Extension Period, compounded quarterly from the date such
interest would have been payable were it not for the Extension Period, to the
extent permitted by law (such interest referred to herein as “Additional
Interest”). At the end of any such Extension Period the Company shall pay
all interest then accrued and unpaid on the Debentures (together with
Additional Interest thereon); provided, however, that no
Extension Period may extend beyond the Maturity Date; provided  further,
however, that during any such Extension Period, the Company shall not
and shall not permit any Affiliate to (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company’s or such Affiliate’s capital stock (other
than payments of dividends or distributions to the Company) or make any
guarantee payments with respect to the foregoing or (ii) make any payment
of principal of or interest or premium, if any, on or repay, repurchase or
redeem any debt securities of the Company or any Affiliate that rank pari passu in all respects with or junior in interest to the
Debentures (other than, with respect to clauses (i) or (ii) above, (a) repurchases,
redemptions or other acquisitions of shares of capital stock of the Company in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of one or more employees, officers,
directors or consultants, in connection with a dividend reinvestment or
stockholder stock purchase plan or in connection with the issuance of capital
stock of the Company (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered into
prior to the applicable Extension Period, (b) as a result of any exchange
or conversion of any class or series of the Company’s capital stock
(or any capital stock of a subsidiary of the Company) for any class or series of
the Company’s capital stock or of any class or series of the Company’s
indebtedness for any class or series of the Company’s capital stock, (c) the
purchase of fractional interests in shares of the Company’s capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (d) any declaration of a dividend
in connection with any stockholders’ rights plan, or the issuance of rights,
stock or other property under any stockholders’ rights plan, or the redemption
or repurchase of rights pursuant thereto, (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). Prior to the termination of any Extension Period, the
Company may further extend such period, provided that such period together
with all such previous and further consecutive extensions thereof shall not
exceed 20 consecutive quarterly periods, or extend beyond the Maturity
Date. Upon the termination of any Extension Period and upon the payment of all
accrued and unpaid interest and Additional Interest, the Company may commence
a new Extension Period, subject to the foregoing requirements. No interest or
Additional Interest shall be due and payable during an Extension Period, except
at the end thereof, but each installment of interest that would otherwise have
been due and payable during such Extension Period shall bear Additional
Interest to the extent permitted by applicable law. The Company must give the
Trustee notice of its election to begin or extend an Extension Period by the
close of business at least 15 Business Days prior to the Interest Payment Date
with respect to which interest on the Debentures would have been


 


16

















 


payable except for
the election to begin or extend such Extension Period. The Trustee shall give
notice of the Company’s election to begin a new Extension Period to the
Securityholders.


 


Section 2.12.                         CUSIP
Numbers. The Company in issuing the
Debentures may use “CUSIP” numbers (if then generally in use), and, if so,
the Trustee shall use CUSIP numbers in notices of redemption as a convenience
to Securityholders; provided, however, that any such notice may state that
no representation is made as to the correctness of such numbers either as
printed on the Debentures or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers
printed on the Debentures, and any such redemption shall not be affected by any
defect in or omission of such numbers. The Company will promptly notify the
Trustee in writing of any change in the CUSIP numbers.


 


ARTICLE III.

PARTICULAR COVENANTS OF THE COMPANY


 


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


 


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


 


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


 


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


 


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


 


Section 3.2.                                Offices
for Notices and Payments, etc. So long as any of the Debentures remain
outstanding, the Company will maintain in Wilmington, Delaware, an office or
agency where the Debentures may be presented for payment, an office or
agency where the Debentures may be presented for registration of transfer
and for exchange as in this Indenture provided and an office or agency where
notices and demands to or upon the Company in respect of the Debentures or of
this Indenture may be served. The Company will give to the Trustee written
notice of the location of any such office or agency and of any change of location
thereof. Until otherwise designated from time to time by the Company in a
notice to the Trustee, or specified


 


17

















 


as contemplated by
Section 2.5, such office or agency for all of the above purposes shall be
the office or agency of the Trustee. In case the Company shall fail to maintain
any such office or agency in Wilmington, Delaware, or shall fail to give such
notice of the location or of any change in the location thereof, presentations
and demands may be made and notices may be served at the Principal
Office of the Trustee.


 


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


 


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


 


Section 3.4.                                Provision
as to Paying Agent.


 


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


 


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


 


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


 


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


 


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


 


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


 


(c)                                  Anything
in this Section 3.4 to the contrary notwithstanding, the Company may, at
any time, for the purpose of obtaining a satisfaction and discharge with
respect to the Debentures, or for any other


 


18

















 


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


 


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


 


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


 


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


 


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


 


Section 3.8.                                Limitation
on Dividends. If Debentures are initially issued to the Trust or a
trustee of such Trust in connection with the issuance of Trust Securities by
the Trust (regardless of whether Debentures continue to be held by such Trust)
and (i) there shall have occurred and be continuing an Event of Default, (ii) the
Company shall be in default with respect to its payment of any obligations
under the Capital Securities Guarantee, or (iii) the Company shall have
given notice of its election to defer payments of interest on the Debentures by
extending the interest payment period as provided herein and such period, or
any extension thereof, shall be continuing, then the Company shall not, and shall
not allow any Affiliate of the Company to, (x) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company’s capital stock or its
Affiliates’ capital stock (other than payments of dividends or distributions to
the Company) or make any guarantee payments with respect to the foregoing or
(y) make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Company or any Affiliate
that rank pari passu in all respects with or
junior in interest to the Debentures (other than, with respect to clauses (x)
and (y) above,  (1) repurchases,
redemptions or other acquisitions of shares of capital stock of the Company in connection
with any employment contract, benefit plan or other similar arrangement with or
for the benefit of one or more employees, officers, directors or consultants,
in connection with a dividend reinvestment or stockholder stock purchase plan
or in connection with the issuance of capital stock of the Company (or
securities convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered


 


19

















 


into prior to the
applicable Extension Period, if any, (2) as a result of any exchange or
conversion of any class or series of the Company’s capital stock (or
any capital stock of a subsidiary of the Company) for any class or series of
the Company’s capital stock or of any class or series of the Company’s
indebtedness for any class or series of the Company’s capital stock, (3) the
purchase of fractional interests in shares of the Company’s capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (4) any declaration of a dividend
in connection with any stockholders’ rights plan, or the issuance of rights,
stock or other property under any stockholders’ rights plan, or the redemption
or repurchase of rights pursuant thereto, (5) any dividend in the form of
stock, warrants, options or other rights where the dividend stock or the stock
issuable upon exercise of such warrants, options or other rights is the same
stock as that on which the dividend is being paid or ranks pari passu
with or junior to such stock and any cash payments in lieu of fractional shares
issued in connection therewith, or (6) payments under the Capital
Securities Guarantee).


 


Section 3.9.                                Covenants
as to the Trust. For so long as the Trust Securities remain
outstanding, the Company shall maintain 100% ownership of the Common
Securities; provided, however, that any permitted successor of
the Company under this Indenture may succeed to the Company’s ownership of
such Common Securities. The Company, as owner of the Common Securities, shall,
except in connection with a distribution of Debentures to the holders of Trust
Securities in liquidation of the Trust, the redemption of all of the Trust
Securities or certain mergers, consolidations or amalgamations, each as
permitted by the Declaration, cause the Trust 
(a) to remain a statutory trust, (b) to otherwise continue to
be classified as a grantor trust for United States federal income tax purposes,
and (c) to cause each holder of Trust Securities to be treated as owning
an undivided beneficial interest in the Debentures.


 


Section 3.10.                         Additional
Junior Indebtedness. The Company shall not, and it shall not cause or
permit any Subsidiary of the Company to, incur, issue or be obligated on any
Additional Junior Indebtedness, either directly or indirectly, by way of
guarantee, suretyship or otherwise, other than Additional Junior Indebtedness (i) that,
by its terms, is expressly stated to be either junior and subordinate or pari passu in all respects to the Debentures, and (ii) of
which the Company has notified (and, if then required under the applicable
guidelines of the regulating entity, has received approval from) the Federal
Reserve, if the Company is a bank holding company, or the OTS, if the Company
is a savings and loan holding company.


 


ARTICLE IV.

SECURITYHOLDERS’ LISTS AND REPORTS

BY THE COMPANY AND THE TRUSTEE


 


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


 


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


 


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


 


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


 


Section 4.2.                                Preservation
and Disclosure of Lists.


 


(a)                                  The
Trustee shall preserve, in as current a form as is reasonably practicable,
all information as to the names and addresses of the holders of Debentures (1) contained
in the most recent list furnished to it


 


20

















 


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


 


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


 


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


 


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


 


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


 


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


 


ARTICLE V.

REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS

UPON AN EVENT OF DEFAULT


 


Section 5.1.                                Events
of Default. ”Event of Default,” wherever used herein, means any one of
the following events (whatever the reason for such Event of Default and whether
it shall be voluntary or


 


21

















 


involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):


 


(a)                                  the
Company defaults in the payment of any interest upon any Debenture, including
any Additional Interest in respect thereof, following the nonpayment of any
such interest for twenty or more consecutive Distribution Periods; or


 


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


 


(c)                                  the
Company defaults in the performance of, or breaches, any of its covenants or
agreements in this Indenture or in the terms of the Debentures established as
contemplated in this Indenture (other than a covenant or agreement a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of
60 days after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the holders of
at least 25% in aggregate principal amount of the outstanding Debentures, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a “Notice of Default” hereunder; or


 


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


 


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


 


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


 


If an Acceleration Event
of Default occurs and is continuing with respect to the Debentures, then, and
in each and every such case, unless the principal of the Debentures shall have
already become due and payable, either the Trustee or the holders of not less
than 25% in aggregate principal amount of the Debentures then outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal of the Debentures and
the interest accrued thereon, if any, to be due and payable immediately, and
upon any such declaration the same shall become immediately due and payable. If
an Event of Default under Section 5.1(b) or (c) occurs and is
continuing with respect to the Debentures, then, and in each and every such
case, unless the principal of the Debentures shall have already become due and
payable, either the Trustee or the holders of not less than 25% in aggregate
principal amount of the Debentures then outstanding hereunder, by notice in
writing to the Company (and to the Trustee if given by Securityholders), may proceed
to remedy the default or breach thereunder by such appropriate judicial
proceedings as the Trustee or such holders shall deem most effectual to remedy
the defaulted


 


22

















 


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


 


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


 


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


 


Section 5.2.                                Payment
of Debentures on Default; Suit Therefor. The Company covenants that
upon the occurrence of an Event of Default pursuant to Section 5.1(a) or
(b) then, upon demand of the Trustee, the Company will pay to the Trustee,
for the benefit of the holders of the Debentures the whole amount that then
shall have become due and payable on all Debentures for principal and premium,
if any, or interest, or both, as the case may be, with Additional Interest
accrued on the Debentures (to the extent that payment of such interest is
enforceable under applicable law and, if the Debentures are held by the Trust
or a trustee of such Trust, without duplication of any other amounts paid by
the Trust or a trustee in respect thereof); and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including a reasonable compensation to the Trustee, its agents,
attorneys and counsel, and any other amounts due to the Trustee under Section 6.6.
In case the Company shall fail forthwith to pay such amounts upon such demand,
the Trustee, in its own name and as trustee of an express trust, shall be
entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and may enforce
any such judgment or final decree against the Company or any other obligor on
such Debentures and collect in the manner provided by law out of the property
of the Company or any other obligor on such Debentures wherever situated the
moneys adjudged or decreed to be payable.


 


In case there shall be
pending proceedings for the bankruptcy or for the reorganization of the Company
or any other obligor on the Debentures under Bankruptcy Law, or in case a
receiver or trustee shall have been appointed for the property of the Company
or such other obligor, or in the case of any other similar judicial proceedings
relative to the Company or other obligor upon the Debentures, or to the
creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Debentures shall then be due and
payable as therein expressed or by declaration of acceleration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 5.2, shall be entitled and empowered, by
intervention in such proceedings or otherwise,


 


23

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 5.3.                                Application
of Moneys Collected by Trustee. Any moneys collected by the Trustee
pursuant to this Article V shall be applied in the following order, at the
date or dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the several Debentures in respect of which moneys have been
collected, and stamping thereon the payment, if only partially paid, and upon
surrender thereof if fully paid:


 


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


 


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


 


24

















 


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


 


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


 


Section 5.4.                                Proceedings
by Securityholders. No holder of any Debenture shall have any right to
institute any suit, action or proceeding for any remedy hereunder, unless such
holder previously shall have given to the Trustee written notice of an Event of
Default with respect to the Debentures and unless the holders of not less than
25% in aggregate principal amount of the Debentures then outstanding shall have
given the Trustee a written request to institute such action, suit or
proceeding and shall have offered to the Trustee such reasonable indemnity as
it may require against the costs, expenses and liabilities to be incurred
thereby, and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such action,
suit or proceeding.


 


Notwithstanding any other
provisions in this Indenture, however, the right of any holder of any Debenture
to receive payment of the principal of, premium, if any, and interest, on such
Debenture when due, or to institute suit for the enforcement of any such
payment, shall not be impaired or affected without the consent of such holder
and by accepting a Debenture hereunder it is expressly understood, intended and
covenanted by the taker and holder of every Debenture with every other such
taker and holder and the Trustee, that no one or more holders of Debentures
shall have any right in any manner whatsoever by virtue or by availing itself
of any provision of this Indenture to affect, disturb or prejudice the rights
of the holders of any other Debentures, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Debentures. For the protection and enforcement
of the provisions of this Section, each and every Securityholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.


 


Section 5.5.                                Proceedings
by Trustee. In case of an Event of Default hereunder the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either by suit in
equity or by action at law or by proceeding in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture, or
to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.


 


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


 


Section 5.7.                                Direction
of Proceedings and Waiver of Defaults by Majority of Securityholders. The
holders of a majority in aggregate principal amount of the Debentures affected
(voting


 


25

















 


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


 


The holders of a majority
in aggregate principal amount of the Debentures at the time outstanding may on
behalf of the holders of all of the Debentures waive (or modify any previously
granted waiver of) any past default or Event of Default, and its consequences,
except a default (a) in the payment of principal of, premium, if any, or
interest on any of the Debentures, (b) in respect of covenants or
provisions hereof which cannot be modified or amended without the consent of
the holder of each Debenture affected, or (c) in respect of the covenants
contained in Section 3.9; provided, however, that if the
Debentures are held by the Trust or a trustee of such trust, such waiver or
modification to such waiver shall not be effective until the holders of a
majority in Liquidation Amount of Trust Securities of the Trust shall have
consented to such waiver or modification to such waiver, provided, further,
that if the consent of the holder of each outstanding Debenture is required,
such waiver shall not be effective until each holder of the Trust Securities of
the Trust shall have consented to such waiver. Upon any such waiver, the
default covered thereby shall be deemed to be cured for all purposes of this
Indenture and the Company, the Trustee and the holders of the Debentures shall
be restored to their former positions and rights hereunder, respectively; but
no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon. Whenever any default or Event
of Default hereunder shall have been waived as permitted by this Section, said
default or Event of Default shall for all purposes of the Debentures and this
Indenture be deemed to have been cured and to be not continuing.


 


Section 5.8.                                Notice
of Defaults. The Trustee shall, within 90 days after the actual
knowledge by a Responsible Officer of the Trustee of the occurrence of a
default with respect to the Debentures, mail to all Securityholders, as the
names and addresses of such holders appear upon the Debenture Register, notice
of all defaults with respect to the Debentures known to the Trustee, unless
such defaults shall have been cured before the giving of such notice (the term “defaults”
for the purpose of this Section 5.8 being hereby defined to be the events
specified in clauses (a), (b), (c), (d), (e) and (f) of Section 5.1,
not including periods of grace, if any, provided for therein); provided,
however, that, except in the case of default in the payment of the
principal of, premium, if any, or interest on any of the Debentures, the
Trustee shall be protected in withholding such notice if and so long as a
Responsible Officer of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders.


 


Section 5.9.                                Undertaking
to Pay Costs. All parties to this Indenture agree, and each holder of
any Debenture by his acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including
reasonable attorneys’ fees and expenses, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; provided, however, that the
provisions of this Section 5.9 shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding in the aggregate more than 10% in principal amount of
the Debentures outstanding, or to any suit instituted by any Securityholder for
the enforcement of the payment of the principal of (or premium, if any) or
interest on any Debenture against the Company on or after the same shall have
become due and payable.


 


26

















 


ARTICLE VI.

CONCERNING THE TRUSTEE


 


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


 


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


 


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


 


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


 


(2)                                  in
the absence of bad faith on the part of the Trustee, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but, in the case of any
such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture;


 


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


 


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


 


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


 


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


 


(a)                                  the
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order,


 


27

















 


bond, note, debenture or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;


 


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


 


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


 


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


 


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


 


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


 


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


 


(h)                                 with
the exceptions of defaults under Sections 5.1(a) or (b), the Trustee shall
not be charged with knowledge of any Default or Event of Default with respect
to the Debentures unless a written notice of such Default or Event of Default
shall have been given to the Trustee by the Company or any other obligor on the
Debentures or by any holder of the Debentures.


 


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


 


28

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


29

















 


such matter
(unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of negligence or willful misconduct on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers’
Certificate delivered to the Trustee, and such certificate, in the absence of
negligence or willful misconduct on the part of the Trustee, shall be full
warrant to the Trustee for any action taken or omitted by it under the
provisions of this Indenture upon the faith thereof.


 


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


 


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


 


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


 


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


 


Section 6.9.                                Resignation
or Removal of Trustee


 


(a)                                  The
Trustee, or any trustee or trustees hereafter appointed, may at any time
resign by giving written notice of such resignation to the Company and by
mailing notice thereof, at the Company’s expense, to the holders of the Debentures
at their addresses as they shall appear on the Debenture Register. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor trustee or trustees by written instrument, in duplicate, executed by
order of its Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor Trustee. If no
successor Trustee shall have been so appointed and have accepted appointment
within 30 days after the mailing of such notice of resignation to the affected
Securityholders, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee, or any Securityholder
who has been a bona fide holder of a Debenture or Debentures for at least six
months may, subject to the provisions of Section 5.9, on behalf of himself
and all others similarly situated, petition any such court for the appointment
of a successor Trustee. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, appoint a successor Trustee.


 


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


 


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


 


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


 


30

















 


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


 


then, in any such case, the Company may remove the Trustee and
appoint a successor Trustee by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor Trustee, or,
subject to the provisions of Section 5.9, any Securityholder who has been
a bona fide holder of a Debenture or Debentures for at least 6 months may,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint successor
Trustee.


 


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


 


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


 


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


 


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


 


31

















 


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


 


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


 


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


 


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


 


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


 


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


 


Any corporation into
which any Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger,
consolidation or conversion to which any Authenticating Agent shall be a party,
or any corporation succeeding to all or substantially all of the corporate
trust business of any Authenticating Agent, shall be the successor of such
Authenticating Agent


 


32

















 


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


 


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


 


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


 


ARTICLE VII.

CONCERNING THE SECURITYHOLDERS


 


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


 


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


 


Section 7.2.                                Proof
of Execution by Securityholders. Subject to the provisions of Section 6.1,
6.2 and 8.5, proof of the execution of any instrument by a Securityholder or
his agent or proxy shall be sufficient if made in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee
or in such manner as shall be satisfactory to the Trustee. The ownership of
Debentures shall be


 


33

















 


proved by the
Debenture Register or by a certificate of the Debenture registrar. The Trustee may require
such additional proof of any matter referred to in this Section as it
shall deem necessary.


 


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


 


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


 


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


 


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


 


ARTICLE VIII.

SECURITYHOLDERS’ MEETINGS


 


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


 


34

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


35

















 


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


 


Section 8.6.                                Voting.
The vote upon any resolution submitted to any meeting of holders of
Debentures with respect to which such meeting is being held shall be by written
ballots on which shall be subscribed the signatures of such holders or of their
representatives by proxy and the serial number or numbers of the Debentures
held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in triplicate of all votes cast at
the meeting. A record in duplicate of the proceedings of each meeting of
Securityholders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more Persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 8.2. The
record shall show the serial numbers of the Debentures voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of
the duplicates shall be delivered to the Company and the other to the Trustee
to be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting.


 


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


 


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


 


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


 


36

















 


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


 


ARTICLE IX.

SUPPLEMENTAL INDENTURES


 


Section 9.1.                                Supplemental
Indentures without Consent of Securityholders. The Company, when
authorized by a Board Resolution, and the Trustee may from time to time
and at any time enter into an indenture or indentures supplemental hereto,
without the consent of the Securityholders, for one or more of the following
purposes:


 


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


 


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


 


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


 


(d)                                 to
add to, delete from, or revise the terms of Debentures, including, without
limitation, any terms relating to the issuance, exchange, registration or
transfer of Debentures, including to provide for transfer procedures and
restrictions substantially similar to those applicable to the Capital
Securities as required by Section 2.5 (for purposes of assuring that no
registration of Debentures is required under the Securities Act); provided,
however, that any such action shall not adversely affect the interests
of the holders of the Debentures then outstanding (it being understood, for
purposes of this proviso, that transfer restrictions on Debentures
substantially similar to those that were applicable to Capital Securities shall
not be deemed to materially adversely affect the holders of the Debentures);


 


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


 


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


 


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


 


37

















 


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


 


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


 


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


 


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


 


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


 


Section 9.3.                                Effect
of Supplemental Indentures. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article IX, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and


 


38

















 


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


 


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


 


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


 


ARTICLE X.

REDEMPTION OF SECURITIES


 


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


 


Section 10.2.                         Special
Event Redemption. If a Special Event shall occur and be continuing, the
Company shall have the right (subject to the receipt by the Company of prior
approval (i) if the Company is a bank holding company, from the Federal
Reserve, if then required under applicable capital guidelines or policies of
the Federal Reserve or (ii) if the Company is a savings and loan holding
company, from the OTS, if then required under applicable capital guidelines or
policies of the OTS) to redeem the Debentures in whole, but not in part, at any
Interest Payment Date, within 120 days following the occurrence of such
Special Event (the “Special Redemption Date”) at the Special Redemption
Price. If the Special Event redemption occurs prior to the Interest Payment
Date in March 2011, the Company shall appoint a Quotation Agent, which
shall be a designee of the Institutional Trustee, for the purpose of performing
the services contemplated in, or by reference in, the definition of Special
Redemption Price. Any error in the calculation of the Special Redemption Price
by the Quotation Agent or the Trustee may be corrected at any time by
notice delivered to the Company and the holders of the Debentures. Subject to
the corrective rights set forth above, all certificates, communications,
opinions, determinations, calculations, quotations and decisions given,
expressed, made or obtained for the purposes of the provisions relating to the
payment and calculation of the Special Redemption Price on the Debentures by
the Trustee or the Quotation Agent, as the case may be, shall (in the
absence of willful default, bad faith or manifest error) be final, conclusive
and binding on the holders of the Debentures and the Company, and no liability
shall attach (except as provided above) to the Trustee or the Quotation Agent
in connection with the exercise or non-exercise by any of them of their
respective powers, duties and discretion.


 


39

















 


Section 10.3.                         Notice
of Redemption; Selection of Debentures. In case the Company shall
desire to exercise the right to redeem all, or, as the case may be, any part of
the Debentures, it shall cause to be mailed a notice of such redemption at
least 30 and not more than 60 days prior to the Redemption Date or the
Special Redemption Date to the holders of Debentures so to be redeemed as a
whole or in part at their last addresses as the same appear on the Debenture
Register. Such mailing shall be by first class mail. The notice if mailed
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the holder receives such notice. In any case, failure to
give such notice by mail or any defect in the notice to the holder of any
Debenture designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other Debenture.


 


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


 


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


 


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


 


Section 10.4.                         Payment
of Debentures Called for Redemption. If notice of redemption has been
given as provided in Section 10.3, the Debentures or portions of
Debentures with respect to which such notice has been given shall become due
and payable on the Redemption Date or Special Redemption Date, as applicable,
and at the place or places stated in such notice at the applicable Redemption
Price or Special Redemption Price and on and after said date (unless the
Company shall default in the payment of such Debentures at the Redemption Price
or Special Redemption Price, as applicable) interest on the Debentures or portions
of Debentures so called for redemption shall cease to accrue. On presentation
and surrender of such Debentures at a place of payment specified in said
notice, such Debentures or the specified portions thereof shall be paid and
redeemed by the Company at the applicable Redemption Price or Special
Redemption Price.


 


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


 


40

















 


ARTICLE XI.

CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE


 


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


 


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


 


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


 


ARTICLE XII.

SATISFACTION AND DISCHARGE OF INDENTURE


 


Section 12.1.                         Discharge
of Indenture. When


 


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


 


41

















 


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


 


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


 


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


 


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


 


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


 


42

















 


ARTICLE XIII.

IMMUNITY OF INCORPORATORS, STOCKHOLDERS,

OFFICERS AND DIRECTORS


 


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


 


ARTICLE XIV.

MISCELLANEOUS PROVISIONS


 


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


 


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


 


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


 


Section 14.4.                         Addresses
for Notices, etc. Any notice, consent, direction, request,
authorization, waiver or demand which by any provision of this Indenture is
required or permitted to be given, made, furnished or served by the Trustee or
by the Securityholders on or to the Company may be given or served in
writing by being deposited postage prepaid by registered or certified mail in a
post office letter box addressed (until another address is filed by the
Company, with the Trustee for the purpose) to the Company, 230 Poyntz Avenue, Manhattan,
Kansas  66502, Attention:  Mark A. Herpich. Any notice, consent,
direction, request, authorization, waiver or demand by any Securityholder or
the Company to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made in writing at the office of
the Trustee, addressed to the Trustee, Rodney Square North, 1100 North Market
Street, Wilmington, Delaware  19890-1600,
Attention:  Corporate Trust
Administration. Any notice, consent, direction, request, authorization, waiver
or demand on or to any Securityholder shall be deemed to have been sufficiently
given or made, for all purposes, if given or made in writing at the address set
forth in the Debenture Register.


 


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


 


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


 


43

















 


complied with and
an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.


 


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


 


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


 


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


 


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


 


Section 14.10.                  Assignment.
The 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 hereto.


 


Section 14.11.                  Acknowledgment
of Rights. The Company agrees that, with respect to any Debentures held
by the Trust or the Institutional Trustee of the Trust, if the Institutional
Trustee of the Trust fails to enforce its rights under this Indenture as the
holder of Debentures held as the assets of such Trust after the holders of a
majority in Liquidation Amount of the Capital Securities of such Trust have so
directed such Institutional Trustee, a holder of record of such Capital
Securities may, to the fullest extent permitted by law, institute legal
proceedings directly against the Company to enforce such Institutional Trustee’s
rights under this Indenture without first instituting any legal proceedings
against such trustee or any other Person. Notwithstanding the foregoing, if an
Event of Default has occurred and is continuing and such event is attributable
to the failure of the Company to pay interest (or premium, if any) or principal
on the Debentures on the date such interest (or premium, if any) or principal
is otherwise payable (or in the case of redemption, on the redemption date),
the Company agrees that a holder of record of Capital Securities of the Trust may directly
institute a proceeding against the Company for enforcement of payment to such
holder directly of the principal of (or premium, if any) or interest on the
Debentures having an aggregate principal amount equal to the aggregate
Liquidation Amount of the Capital Securities of such holder on or after the
respective due date specified in the Debentures.


 


ARTICLE XV.

SUBORDINATION OF DEBENTURES


 


Section 15.1.                         Agreement
to Subordinate. The Company covenants and agrees, and each holder of
Debentures by such Securityholder’s acceptance thereof likewise covenants and
agrees, that all


 


44

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


45

















 


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


 


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


 


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


 


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


 


46

















 


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


 


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


 


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


 


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


 


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


 


47

















 


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


 


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


 


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


 


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


 


Signatures
appear on the following page


 


48

















 


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.


 


	
   

  	
  LANDMARK BANCORP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
      /s/
  Patrick L. Alexander

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WILMINGTON TRUST COMPANY, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
      /s/ Christopher J. Monigle

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


49

















 


EXHIBIT A


 


FORM OF
FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE


 


[FORM OF FACE
OF SECURITY]


 


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


 


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


 


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


 


A-1

















 


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


 


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


 


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


 


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


 


Floating Rate
Junior Subordinated Deferrable Interest Debenture


 


of


 


Landmark Bancorp, Inc.


 


December 30,
2005


 


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


 


A-2

















 


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


 


“3-Month LIBOR” as used
herein, means the London interbank offered interest rate for three-month U.S.
dollar deposits determined by the Trustee in the following order of
priority:  (i) the rate (expressed
as a percentage per annum) for U.S. dollar deposits having a three-month
maturity that appears on Telerate Page 3750 as of 11:00 a.m. (London
time) on the related Determination Date (“Telerate Page 3750” means the
display designated as “Page 3750” on the Moneyline Telerate Service or
such other page as may replace Page 3750 on that service or such
other service or services as may be nominated by the British Bankers’
Association as the information vendor for the purpose of displaying London
interbank offered rates for U.S. dollar deposits); (ii) if such rate
cannot be identified on the related Determination Date, the Trustee will
request the principal London offices of four leading banks in the London
interbank market to provide such banks’ offered quotations (expressed as
percentages per annum) to prime banks in the London interbank market for U.S.
dollar deposits having a three-month maturity as of 11:00 a.m. (London
time) on such Determination Date. If at least two quotations are provided, 3-Month
LIBOR will be the arithmetic mean of such quotations; (iii) if fewer than
two such quotations are provided as requested in clause (ii) above, the
Trustee will request four major New York City banks to provide such banks’
offered quotations (expressed as percentages per annum) to leading European
banks for loans in U.S. dollars as of 11:00 a.m. (London time) on such
Determination Date. If at least two such quotations are provided, 3-Month LIBOR
will be the arithmetic mean of such quotations; and (iv) if fewer than two
such quotations are provided as requested in clause (iii) above, 3-Month
LIBOR will be a 3-Month LIBOR determined with respect to the Distribution
Period immediately preceding such current Distribution Period. If the rate for
U.S. dollar deposits having a three-month maturity that initially appears on
Telerate Page 3750 as of 11:00 a.m. (London time) on the related
Determination Date is superseded on the Telerate Page 3750 by a corrected
rate by 12:00 noon (London time) on such Determination Date, then the corrected
rate as so substituted on the applicable page will be the applicable 3-Month
LIBOR for such Determination Date. As used herein, “Determination Date” means
the date that is two London Banking Days (i.e., a business day in which
dealings in deposits in U.S. dollars are transacted in the London interbank
market) preceding the commencement of the relevant Distribution Period.


 


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


 


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


 


A-3

















 


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


 


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


 


So long as no Acceleration
Event of Default has occurred and is continuing, the Company shall have the
right, from time to time, and without causing an Event of Default, to defer payments
of interest on the Debentures by extending the interest payment period on the
Debentures at any time and from time to time during the term of the Debentures,
for up to 20 consecutive quarterly periods (each such extended interest
payment period, an “Extension Period”), during which Extension Period no
interest (including Additional Interest) shall be due and payable (except any
Additional Sums that may be due and payable). No Extension Period may end
on a date other than an Interest Payment Date. During an Extension Period,
interest will continue to accrue on the Debentures, and interest on such
accrued interest will accrue at an annual rate equal to the Interest Rate in
effect for such Extension Period, compounded quarterly from the date such interest
would have been payable were it not for the Extension Period, to the extent
permitted by law (such interest referred to herein as “Additional Interest”). At
the end of any such Extension Period the Company shall pay all interest then
accrued and unpaid on the Debentures (together with Additional Interest
thereon); provided, however, that no Extension Period may extend
beyond the Maturity Date; provided  further, however, that
during any such Extension Period, the Company shall not and shall not permit any
Affiliate to engage in any of the activities or transactions described on the
reverse side hereof and in the Indenture. Prior to the termination of any
Extension Period, the Company may further extend such period, provided
that such period together with all such previous and further consecutive
extensions thereof shall not exceed 20 consecutive quarterly periods, or
extend beyond the Maturity Date. Upon the termination of any Extension Period
and upon the payment of all accrued and unpaid interest and Additional
Interest, the Company may commence a new Extension Period, subject to the
foregoing requirements. No interest or Additional Interest shall be due and
payable during an Extension Period, except at the end thereof, but each
installment of interest that would otherwise have been due and payable during
such Extension Period shall bear Additional Interest. The Company must give the
Trustee notice of its election to begin or extend an Extension Period by the
close of business at least 15 Business Days prior to the Interest Payment Date
with respect to which interest on the Debentures would have been payable except
for the election to begin or extend such Extension Period.


 


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


 


A-4

















 


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


 


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


 


A-5

















 


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


 


	
   

  	
  LANDMARK BANCORP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


 


CERTIFICATE OF
AUTHENTICATION


 


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


 


	
   

  	
  WILMINGTON TRUST COMPANY, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Officer

  



 


A-6

















 


[FORM OF REVERSE OF DEBENTURE]


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


A-7

















 


The Indenture also contains provisions permitting the
holders of a majority in aggregate principal amount of the Debentures at the
time outstanding on behalf of the holders of all of the Debentures to waive (or
modify any previously granted waiver of) any past default or Event of Default,
and its consequences, except a default (a) in the payment of principal of,
premium, if any, or interest on any of the Debentures, (b) in respect of
covenants or provisions hereof or of the Indenture which cannot be modified or
amended without the consent of the holder of each Debenture affected, or (c) in
respect of the covenants contained in Section 3.9 of the Indenture; provided,
however, that if the Debentures are held by the Trust or a trustee of such
trust, such waiver or modification to such waiver shall not be effective until
the holders of a majority in Liquidation Amount of Trust Securities of the
Trust shall have consented to such waiver or modification to such waiver, provided,
further, that if the consent of the holder of each outstanding Debenture
is required, such waiver shall not be effective until each holder of the Trust
Securities of the Trust shall have consented to such waiver. Upon any such
waiver, the default covered thereby shall be deemed to be cured for all
purposes of the Indenture and the Company, the Trustee and the holders of the
Debentures shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon. Whenever any
default or Event of Default hereunder shall have been waived as permitted by
the Indenture, said default or Event of Default shall for all purposes of the
Debentures and the Indenture be deemed to have been cured and to be not
continuing.


 


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


 


The Company has agreed that if Debentures are
initially issued to the Trust or a trustee of such Trust in connection with the
issuance of Trust Securities by the Trust (regardless of whether Debentures
continue to be held by such Trust) and (i) there shall have occurred and
be continuing an Event of Default, (ii) the Company shall be in default
with respect to its payment of any obligations under the Capital Securities
Guarantee, or (iii) the Company shall have given notice of its election to
defer payments of interest on the Debentures by extending the interest payment
period as provided herein and such Extension Period, or any extension thereof,
shall be continuing, then the Company shall not, and shall not allow any
Affiliate of the Company to, (x) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company’s capital stock or its Affiliates’ capital
stock (other than payments of dividends or distributions to the Company) or
make any guarantee payments with respect to the foregoing or (y) make any
payment of principal of or interest or premium, if any, on or repay, repurchase
or redeem any debt securities of the Company or any Affiliate that rank pari passu in all respects with or junior in interest to the
Debentures (other than, with respect to clauses (x) and (y) above,  (1) repurchases, redemptions or other
acquisitions of shares of capital stock of the Company in connection with any
employment contract, benefit plan or other similar arrangement with or for the
benefit of one or more employees, officers, directors or consultants, in
connection with a dividend reinvestment or stockholder stock purchase plan or
in connection with the issuance of capital stock of the Company (or securities
convertible into or exercisable for such capital stock) as consideration in an
acquisition transaction entered into prior to the applicable Extension Period,
if any, (2) as a result of any exchange or conversion of any class or
series of the Company’s capital stock (or any capital stock of a
subsidiary of the Company) for any class or series of the Company’s
capital stock or of any class or series of the Company’s indebtedness
for any class or series of the Company’s capital stock, (3) the
purchase of fractional interests in shares of the Company’s capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (4) any declaration of a dividend
in connection with any stockholders’ rights plan, or the issuance of rights,
stock or other property under any stockholders’ rights plan, or the redemption
or repurchase of rights pursuant thereto, (5) any dividend in the form of
stock, warrants, options or other rights where the


 


A-8

















 


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 (6) payments under the Capital
Securities Guarantee).


 


The Debentures are issuable only in registered,
certificated form without coupons and in minimum denominations of
$100,000.00 and any multiple of $1,000.00 in excess thereof. As provided in the
Indenture and subject to the transfer restrictions and limitations as may be
contained herein and therein from time to time, this Debenture is transferable
by the holder hereof on the Debenture Register of the Company. Upon due
presentment for registration of transfer of any Debenture at the Principal
Office of the Trustee or at any office or agency of the Company maintained for
such purpose as provided in Section 3.2 of the Indenture, the Company
shall execute, the Company or the Trustee shall register and the Trustee or the
Authenticating Agent shall authenticate and make available for delivery in the
name of the transferee or transferees a new Debenture for a like aggregate
principal amount. All Debentures presented for registration of transfer or for
exchange or payment shall (if so required by the Company or the Trustee or the
Authenticating Agent) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to, the Company
and the Trustee or the Authenticating Agent duly executed by the holder or his
attorney duly authorized in writing. No service charge shall be made for any
exchange or registration of transfer of Debentures, but the Company or the
Trustee may require payment of a sum sufficient to cover any tax, fee or
other governmental charge that may be imposed in connection therewith.


 


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


 


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


 


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


 


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


 


A-9

















 


EXHIBIT B


 


FORM OF CERTIFICATE TO TRUSTEE


 


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


 


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


 


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


 


or, alternatively:


 


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


 


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


 


IN WITNESS WHEREOF, the undersigned has executed this
Certificate.


 


Date:


 


 


	
   

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


B-1