EX-4.2



 





Exhibit 4.2




 





JUNIOR SUBORDINATED INDENTURE




between




MIDDLEFIELD BANC CORP.




and




WILMINGTON TRUST COMPANY,

as Trustee




 






Dated as of December 21, 2006




 






 





 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE I
	 	 	 	 
	 	 	 
	 	 	 	 
	Definitions and Other Provisions of General Application
	 	 	 	 
	 	 	 
	 	 	 	 
	SECTION 1.1.	 	Definitions
	 	 	1	 
	SECTION 1.2.	 	Compliance Certificate and Opinions
	 	 	10	 
	SECTION 1.3.	 	Forms of Documents Delivered to Trustee
	 	 	11	 
	SECTION 1.4.	 	Acts of Holders
	 	 	12	 
	SECTION 1.5.	 	Notices, Etc
	 	 	13	 
	SECTION 1.6.	 	Notice to Holders; Waiver
	 	 	14	 
	SECTION 1.7.	 	Effect of Headings and Table of Contents
	 	 	14	 
	SECTION 1.8.	 	Successors and Assigns
	 	 	14	 
	SECTION 1.9.	 	Separability Clause
	 	 	15	 
	SECTION 1.10.	 	Benefits of Indenture
	 	 	15	 
	SECTION 1.11.	 	Governing Law
	 	 	15	 
	SECTION 1.12.	 	Submission to Jurisdiction
	 	 	15	 
	SECTION 1.13.	 	Non-Business Days
	 	 	15	 
	 	 	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	 	 	 
	 	 	 	 
	Security Forms
	 	 	 	 
	 	 	 
	 	 	 	 
	SECTION 2.1.	 	Form of Security
	 	 	16	 
	SECTION 2.2.	 	Restricted Legend
	 	 	16	 
	SECTION 2.3.	 	Form of Trustee’s Certificate of Authentication
	 	 	16	 
	SECTION 2.4.	 	Temporary Securities
	 	 	16	 
	SECTION 2.5.	 	Definitive Securities
	 	 	17	 
	 	 	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	 	 	 
	 	 	 	 
	The Securities
	 	 	 	 
	 	 	 
	 	 	 	 
	SECTION 3.1.	 	Payment of Principal and Interest
	 	 	17	 
	SECTION 3.2.	 	Denominations
	 	 	19	 
	SECTION 3.3.	 	Execution, Authentication, Delivery and Dating
	 	 	19	 
	SECTION 3.4.	 	Global Securities
	 	 	20	 
	SECTION 3.5.	 	Registration, Transfer and Exchange Generally
	 	 	22	 
	SECTION 3.6.	 	Mutilated, Destroyed, Lost and Stolen Securities
	 	 	23	 
	SECTION 3.7.	 	Persons Deemed Owners
	 	 	24	 
	SECTION 3.8.	 	Cancellation
	 	 	24	 
	SECTION 3.9.	 	Deferrals of Interest Payment Dates
	 	 	24	 
	SECTION 3.10.	 	Right of Set-Off
	 	 	25	 
	SECTION 3.11.	 	Agreed Tax Treatment
	 	 	25	 






-i-









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	SECTION 3.12.	 	CUSIP Numbers
	 	 	25	 
	 	 	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 	 	 
	 	 	 	 
	Satisfaction and Discharge
	 	 	 	 
	 	 	 
	 	 	 	 
	SECTION 4.1.	 	Satisfaction and Discharge of Indenture
	 	 	26	 
	SECTION 4.2.	 	Application of Trust Money
	 	 	27	 
	 	 	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	 	 	 
	 	 	 	 
	Remedies
	 	 	 	 
	 	 	 
	 	 	 	 
	SECTION 5.1.	 	Events of Default
	 	 	27	 
	SECTION 5.2.	 	Acceleration of Maturity; Rescission and Annulment
	 	 	28	 
	SECTION 5.3.	 	Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	29	 
	SECTION 5.4.	 	Trustee May File Proofs of Claim
	 	 	30	 
	SECTION 5.5.	 	Trustee May Enforce Claim Without Possession of Securities
	 	 	30	 
	SECTION 5.6.	 	Application of Money Collected
	 	 	31	 
	SECTION 5.7.	 	Limitation on Suits
	 	 	31	 
	SECTION 5.8.	 	Unconditional Right of Holders to Receive Principal, Premium and
Interest; Direct Action by Holders of Preferred Securities
	 	 	32	 
	SECTION 5.9.	 	Restoration of Rights and Remedies
	 	 	32	 
	SECTION 5.10.	 	Rights and Remedies Cumulative
	 	 	32	 
	SECTION 5.11.	 	Delay or Omission Not Waiver
	 	 	33	 
	SECTION 5.12.	 	Control by Holders
	 	 	33	 
	SECTION 5.13.	 	Waiver of Past Defaults
	 	 	33	 
	SECTION 5.14.	 	Undertaking for Costs
	 	 	34	 
	SECTION 5.15.	 	Waiver of Usury, Stay or Extension Laws
	 	 	34	 
	 	 	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 	 	 
	 	 	 	 
	The Trustee
	 	 	 	 
	 	 	 
	 	 	 	 
	SECTION 6.1.	 	Corporate Trustee Required
	 	 	34	 
	SECTION 6.2.	 	Certain Duties and Responsibilities
	 	 	35	 
	SECTION 6.3.	 	Notice of Defaults
	 	 	36	 
	SECTION 6.4.	 	Certain Rights of Trustee
	 	 	36	 
	SECTION 6.5.	 	May Hold Securities
	 	 	38	 
	SECTION 6.6.	 	Compensation; Reimbursement; Indemnity
	 	 	38	 
	SECTION 6.7.	 	Resignation and Removal; Appointment of Successor
	 	 	39	 
	SECTION 6.8.	 	Acceptance of Appointment by Successor
	 	 	40	 
	SECTION 6.9.	 	Merger, Conversion, Consolidation or Succession to Business
	 	 	40	 
	SECTION 6.10.	 	Not Responsible for Recitals or Issuance of Securities
	 	 	41	 
	SECTION 6.11.	 	Appointment of Authenticating Agent
	 	 	41	 






-ii-









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE VII
	 	 	 	 
	 	 	 
	 	 	 	 
	Holders’ Lists and Reports by Trustee and Company
	 	 	 	 
	 	 	 
	 	 	 	 
	SECTION 7.1.	 	Company to Furnish Trustee Names and Addresses of Holders
	 	 	42	 
	SECTION 7.2.	 	Preservation of Information, Communications to Holders
	 	 	43	 
	SECTION 7.3.	 	Reports by Company and Trustee
	 	 	43	 
	 	 	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 	 	 
	 	 	 	 
	Consolidation, Merger, Conveyance, Transfer or Lease
	 	 	 	 
	 	 	 
	 	 	 	 
	SECTION 8.1.	 	Company May Consolidate, Etc., Only on Certain Terms
	 	 	44	 
	SECTION 8.2.	 	Successor Company Substituted
	 	 	44	 
	 	 	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	 	 	 
	 	 	 	 
	Supplemental Indentures
	 	 	 	 
	 	 	 
	 	 	 	 
	SECTION 9.1.	 	Supplemental Indentures without Consent of Holders
	 	 	45	 
	SECTION 9.2.	 	Supplemental Indentures with Consent of Holders
	 	 	46	 
	SECTION 9.3.	 	Execution of Supplemental Indentures
	 	 	46	 
	SECTION 9.4.	 	Effect of Supplemental Indentures
	 	 	47	 
	SECTION 9.5.	 	Reference in Securities to Supplemental Indentures
	 	 	47	 
	 	 	 
	 	 	 	 
	ARTICLE X
	 	 	 	 
	 	 	 
	 	 	 	 
	Covenants
	 	 	 	 
	 	 	 
	 	 	 	 
	SECTION 10.1.	 	Payment of Principal, Premium and Interest
	 	 	47	 
	SECTION 10.2.	 	Money for Security Payments to be Held in Trust
	 	 	47	 
	SECTION 10.3.	 	Statement as to Compliance
	 	 	48	 
	SECTION 10.4.	 	Calculation Agent
	 	 	49	 
	SECTION 10.5.	 	Additional Tax Sums
	 	 	49	 
	SECTION 10.6.	 	Additional Covenants
	 	 	50	 
	SECTION 10.7.	 	Waiver of Covenants
	 	 	51	 
	SECTION 10.8.	 	Treatment of Securities
	 	 	51	 
	 	 	 
	 	 	 	 
	ARTICLE XI
	 	 	 	 
	 	 	 
	 	 	 	 
	Redemption of Securities
	 	 	 	 
	 	 	 
	 	 	 	 
	SECTION 11.1.	 	Optional Redemption
	 	 	51	 
	SECTION 11.2.	 	Special Event Redemption
	 	 	52	 
	SECTION 11.3.	 	Election to Redeem; Notice to Trustee
	 	 	52	 
	SECTION 11.4.	 	Selection of Securities to be Redeemed
	 	 	52	 
	SECTION 11.5.	 	Notice of Redemption
	 	 	53	 
	SECTION 11.6.	 	Deposit of Redemption Price
	 	 	54	 
	SECTION 11.7.	 	Payment of Securities Called for Redemption
	 	 	54	 






-iii-









 







	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE XII
	 	 	 	 
	 	 	 
	 	 	 	 
	Subordination of Securities
	 	 	 	 
	 	 	 
	 	 	 	 
	SECTION 12.1.	 	Securities Subordinate to Senior Debt
	 	 	54	 
	SECTION 12.2.	 	No Payment When Senior Debt in Default; Payment Over of Proceeds Upon
Dissolution, Etc.
	 	 	55	 
	SECTION 12.3.	 	Payment Permitted If No Default
	 	 	56	 
	SECTION 12.4.	 	Subrogation to Rights of Holders of Senior Debt
	 	 	56	 
	SECTION 12.5.	 	Provisions Solely to Define Relative Rights
	 	 	57	 
	SECTION 12.6.	 	Trustee to Effectuate Subordination
	 	 	57	 
	SECTION 12.7.	 	No Waiver of Subordination Provisions
	 	 	57	 
	SECTION 12.8.	 	Notice to Trustee
	 	 	58	 
	SECTION 12.9.	 	Reliance on Judicial Order or Certificate of Liquidating Agent
	 	 	58	 
	SECTION 12.10.	 	Trustee Not Fiduciary for Holders of Senior Debt
	 	 	59	 
	SECTION 12.11.	 	Rights of Trustee as Holder of Senior Debt; Preservation of Trustee’s Rights
	 	 	59	 
	SECTION 12.12.	 	Article Applicable to Paying Agents
	 	 	59	 






SCHEDULES




	 	 	 
	Schedule A

	 	Determination of LIBOR
	 
	Exhibit A

	 	Form of Junior Subordinated Note
	Exhibit B

	 	Form of Financial Officer’s Certificate
	Exhibit C

	 	Form of Officers’ Certificate pursuant to Section 10.3






-iv-









 





     Junior Subordinated Indenture, dated as of December 21, 2006, between Middlefield
Banc Corp., an Ohio corporation (the “Company”), and Wilmington Trust Company, a
Delaware banking corporation, as Trustee (in such capacity, the “Trustee”).



Recitals of the Company




     Whereas, the Company has duly authorized the execution and delivery of this Indenture
to provide for the issuance of its unsecured junior subordinated deferrable interest notes (the
“Securities”) issued to evidence loans made to the Company of the proceeds from the issuance by
Middlefield Statutory Trust I, a Delaware statutory trust (the “Trust”), of undivided preferred
beneficial interests in the assets of the Trust (the “Preferred Securities”) and undivided common
beneficial interests in the assets of the Trust (the “Common Securities” and, collectively with the
Preferred Securities, the “Trust Securities”), and to provide the terms and conditions upon which
the Securities are to be authenticated, issued and delivered; and



     Whereas, all things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.



     Now, therefore, this Indenture Witnesseth:



     For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities, as follows:



ARTICLE I




Definitions and Other Provisions of General Application




     SECTION 1.1. Definitions.




     For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:




     (a) the terms defined in this Article I have the meanings assigned to them in
this Article I;




     (b) the words “include”, “includes” and “including” shall be deemed to be followed by
the phrase “without limitation”;




     (c) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with GAAP;




     (d) unless the context otherwise requires, any reference to an “Article” or a “Section”
refers to an Article or a Section, as the case may be, of this Indenture;




     (e) the words “hereby”, “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;



1









 






     (f) a reference to the singular includes the plural and vice versa; and




     (g) the masculine, feminine or neuter genders used herein shall include the masculine,
feminine and neuter genders.



     “Act” when used with respect to any Holder, has the meaning specified in Section 1.4.



     “Additional Interest” means the interest, if any, that shall accrue on any amounts payable on
the Securities, the payment of which has not been made on the applicable Interest Payment Date and
which shall accrue at the rate per annum, compounded quarterly, specified or determined as
specified in such Security.



     “Additional Tax Sums” has the meaning specified in Section 10.5.



     “Additional Taxes” means taxes, duties or other governmental charges imposed on the Trust as a
result of a Tax Event (which, for the sake of clarity, does not include amounts required to be
deducted or withheld by the Trust from payments made by the Trust to or for the benefit of the
Holder of, or any Person that acquires a beneficial interest in, the Securities).



     “Administrative Trustee” means, with respect to the Trust, a Person identified as an
“Administrative Trustee” in the Trust Agreement, solely in its capacity as Administrative Trustee
of the Trust under the Trust Agreement and not in its individual capacity, or its successor in
interest in such capacity, or any successor Administrative Trustee appointed as therein provided.



     “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control,” when used with respect to any specified Person, means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.



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



     “Authenticating Agent” means any Person authorized by the Trustee pursuant to Section
6.11 to act on behalf of the Trustee to authenticate the Securities.



     “Bankruptcy Code” means Title 11 of the United States Code or any successor statute thereto,
in each case as amended from time to time.



     “Board of Directors” means the board of directors of the Company or any duly authorized
committee of that board.



     “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.



2









 





     “Business Day” means any day other than (i) a Saturday or Sunday, (ii) a day on which banking
institutions in the City of New York are authorized or required by law or executive order to remain
closed or (iii) a day on which the Corporate Trust Office of the Trustee is closed for business.



     “Calculation Agent” has the meaning specified in Section 10.4.



     “Capital Disqualification Event” means the receipt by the Company of an Opinion of Counsel
experienced in such matters that, as a result of an amendment to or a change in law, rule or
regulation (including any announced prospective change) or a change in interpretation or
application of law, rule or regulation by any legislative body, court, governmental agency or
regulatory authority, there is more than an insubstantial risk that within ninety (90) days of the
date of such opinion, the aggregate liquidation amount of the Preferred Securities will not be
eligible to be treated by the Company as “Tier 1 Capital” (or the then equivalent) for purposes of
the capital adequacy guidelines of the Federal Reserve or other “appropriate Federal banking
agency” as such term is defined in 12 U.S.C. 1813(q), which amendment, change or prospective change
becomes effective or would become effective, as the case may be, on or after the date of issuance
of the Securities; provided, however, that the inability of the Company to treat all or any portion
of the liquidation amount of the Preferred Securities as Tier 1 Capital shall not constitute the
basis for a Capital Disqualification Event if such inability results from the Company having such
Preferred Securities outstanding in an amount that for any reason is in excess of the amount which
may now or hereafter qualify for treatment as Tier 1 Capital under applicable capital adequacy
guidelines. By way of example, the inability of the Company to treat all or any portion of the
liquidation amount of the Preferred Securities as Tier 1 Capital as a result of the Final Rule on
Risk-Based Capital Standards: Trust Preferred Securities and the Definition of Capital, adopted on
March 1, 2005, by the Federal Reserve, shall not constitute the basis for a Capital
Disqualification Event.



     “Common Securities” has the meaning specified in the first recital of this Indenture.



     “Common Stock” means the common stock, no par value, of the Company.



     “Company” means the Person named as the “Company” in the first paragraph of this Indenture
until a successor corporation shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Company” shall mean such successor corporation.



     “Company Request” and “Company Order” mean, respectively, the written request or order signed
in the name of the Company by its Chairman of the Board of Directors, its Vice Chairman of the
Board of Directors, its Chief Executive Officer, President or a Vice President, and by its Chief
Financial Officer, Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.



     “Corporate Trust Office” means the principal office of the Trustee at which at any particular
time its corporate trust business shall be administered, which office at the date of this Indenture
is located at Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001,
Attention: Corporate Capital Markets.



3









 





     “Debt” means, with respect to any Person, whether recourse is to all or a portion of the
assets of such Person, whether currently existing or hereafter incurred and whether or not
contingent and without duplication, (i) every obligation of such Person for money borrowed; (ii)
every obligation of such Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property, assets or
businesses; (iii) every reimbursement obligation of such Person with respect to letters of credit,
bankers’ acceptances or similar facilities issued for the account of such Person; (iv) every
obligation of such Person issued or assumed as the deferred purchase price of property or services
(but excluding trade accounts payable or other accrued liabilities arising in the ordinary course
of business); (v) every capital lease obligation of such Person; (vi) all indebtedness of such
Person, whether incurred on or prior to the date of this Indenture or thereafter incurred, for
claims in respect of derivative products, including interest rate, foreign exchange rate and
commodity forward contracts, options and swaps and similar arrangements; (vii) every obligation of
the type referred to in clauses (i) through (vi) of another Person and all dividends of another
Person the payment of which, in either case, such Person has guaranteed or is responsible or liable
for, directly or indirectly, as obligor or otherwise; and (viii) any renewals, extensions,
refundings, amendments or modifications of any obligation of the type referred to in clauses (i)
through (vii).



     “Defaulted Interest” has the meaning specified in Section 3.1.



     “Delaware Trustee” means, with respect to the Trust, the Person identified as the “Delaware
Trustee” in the Trust Agreement, solely in its capacity as Delaware Trustee of the Trust under the
Trust Agreement and not in its individual capacity, or its successor in interest in such capacity,
or any successor Delaware Trustee appointed as therein provided.



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



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



     “Distributions” means amounts payable in respect of the Trust Securities as provided in the
Trust Agreement and referred to therein as “Distributions.”



     “Dollar” or “$” means the currency of the United States of America that, as at the time of
payment, is legal tender for the payment of public and private debts.



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



     “Equity Interests” means any of (a) the partnership interests (general or limited) in a
partnership, (b) the membership interests in a limited liability company or (c) the shares or stock
interests (both common stock and preferred stock) in a corporation.



     “Event of Default” has the meaning specified in Section 5.1.



4









 





     “Exchange Act” means the Securities Exchange Act of 1934 or any statute successor thereto, in
each case as amended from time to time.



     “Expiration Date” has the meaning specified in Section 1.4.



     “Extension Period” has the meaning specified in Section 3.9.



     “Federal Reserve” means the Board of Governors of the Federal Reserve System, the staff
thereof, or a Federal Reserve Bank, acting through delegated authority, in each case under the
rules, regulations and policies of the Federal Reserve System, or if at any time after the
execution of this Indenture any such entity is not existing and performing the duties now assigned
to it , any successor body performing similar duties or functions.



     “GAAP” means United States generally accepted accounting principles, consistently applied,
from time to time in effect.



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



     “Government Obligation” means (a) any security that is (i) a direct obligation of the United
States of America of which the full faith and credit of the United States of America is pledged or
(ii) an obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of America, which, in either
case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (b) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any Government Obligation that is specified in clause (a) above and held
by such bank for the account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any Government Obligation that is so specified and
held, provided, that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the Government Obligation or the specific payment of principal or
interest evidenced by such depositary receipt.



     “Guarantee Agreement” means the Guarantee Agreement executed by the Company and Wilmington
Trust Company, as Guarantee Trustee, contemporaneously with the execution and delivery of this
Indenture, for the benefit of the holders of the Preferred Securities, as modified, amended or
supplemented from time to time.



     “Holder” means a Person in whose name a Security is registered in the Securities Register.



     “Indenture” means this instrument as originally executed or as it may from time to time be
amended or supplemented by one or more amendments or indentures supplemental hereto entered into
pursuant to the applicable provisions hereof.



     “Interest Payment Date” means January 30th, April 30th, July 30th and October 30th of each
year, commencing on January 30, 2007, during the term of this Indenture.



5









 





     “Investment Company Act” means the Investment Company Act of 1940 or any successor statute
thereto, in each case as amended from time to time.



     “Investment Company Event” means the receipt by the Company 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 (including any announced prospective change) or a written change in interpretation or
application of law or regulation by any legislative body, court, governmental agency or regulatory
authority, there is more than an insubstantial risk that the Trust is or, within ninety (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, 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
Securities.



     “LIBOR” has the meaning specified in Schedule A.



     “LIBOR Business Day” has the meaning specified in Schedule A.



     “LIBOR Determination Date” has the meaning specified in Schedule A.



     “Liquidation Amount” has the meaning specified in the Trust Agreement.



     “Maturity,” when used with respect to any Security, means the date on which the principal of
such Security or any installment of principal becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.



     “Major Bank Subsidiary,” means any subsidiary of the Company that is a “major bank subsidiary”
as such term is used in the Adopting Release accompanying the Final Rule on Risk-Based Capital
Standards: Trust Preferred Securities and the Definition of Capital, adopted on March 1, 2005, by
the Federal Reserve, and as such term may subsequently be defined or interpreted in any rule,
regulation, written interpretation or other public issuance of the Federal Reserve. For purposes
of this definition, any “depository institution” subsidiary of the Company within the meaning of
Section 3(c) of the Federal Deposit Insurance Act that would be considered a Major Bank Subsidiary
except for the fact that such subsidiary is not a “bank” within the meaning of Section 3(a) of the
Bank Holding Company Act of 1956, shall be deemed to be a Major Bank Subsidiary.



     “Notice of Default” means a written notice of the kind specified in Section 5.1(d).



     “Officers’ Certificate” means a certificate signed by the Chairman of the Board, a Vice
Chairman of the Board, the Chief Executive Officer, President or a Vice President, and by the Chief
Financial Officer, Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Company and delivered to the Trustee.



     “Opinion of Counsel” means a written opinion of counsel, who may be counsel for or an employee
of the Company or any Affiliate of the Company.



6









 





     “Original Issue Date” means the date of original issuance of each Security.



     “Outstanding” means, when used in reference to any Securities, as of the date of
determination, all Securities theretofore authenticated and delivered under this Indenture, except:




     (i) Securities theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;




     (ii) Securities for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided, that, if such Securities are to
be redeemed, notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made; and




     (iii) Securities that have been paid, or in substitution for or in lieu of which other
Securities have been authenticated and delivered pursuant to the provisions of this
Indenture, unless proof satisfactory to the Trustee is presented that any such Securities
are held by Holders in whose hands such Securities are valid, binding and legal obligations
of the Company;


provided, that, in determining whether the Holders of the requisite principal amount of Outstanding
Securities have given any request, demand, authorization, direction, notice, consent or waiver
hereunder, Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only Securities that a
Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect
to such Securities and that the pledgee is not the Company or any other obligor upon the Securities
or any Affiliate of the Company or such other obligor. Notwithstanding anything herein to the
contrary, Securities initially issued to the Trust that are owned by the Trust shall be deemed to
be Outstanding notwithstanding the ownership by the Company or an Affiliate of any beneficial
interest in the Trust.




     “Paying Agent” means the Trustee or any Person authorized by the Company to pay the principal
of or any premium or interest on, or other amounts in respect of, any Securities on behalf of the
Company.



     “Person” means a legal person, including any individual, corporation, company, estate,
partnership, joint venture, association, joint stock company, limited liability company, trust,
unincorporated association, government or any agency or political subdivision thereof, or any other
entity of whatever nature.



7









 





     “Place of Payment” means, with respect to the Securities, the Corporate Trust Office of the
Trustee.



     “Preferred Securities” has the meaning specified in the first recital of this Indenture.



     “Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security. For the purposes of
this definition, any security authenticated and delivered under Section 3.6 in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.



     “Proceeding” has the meaning specified in Section 12.2.



     “Property Trustee” means the Person identified as the “Property Trustee” in the Trust
Agreement, solely in its capacity as Property Trustee of the Trust under the Trust Agreement and
not in its individual capacity, or its successor in interest in such capacity, or any successor
Property Trustee appointed as therein provided.



     “Purchase Agreement” means the Purchase Agreement, dated as of December 21, 2006, executed and
delivered by the Trust, the Depositor and the Purchaser.



     “Purchaser” means TWE, Ltd., as Purchaser of the Preferred Securities pursuant to the Purchase
Agreement.



     “Redemption Date” means, when used with respect to any Security to be redeemed, the date fixed
for such redemption by or pursuant to this Indenture.



     “Redemption Price” means, when used with respect to any Security to be redeemed, in whole or
in part, the price at which such Security or portion thereof is to be redeemed as fixed by or
pursuant to this Indenture.



     “Reference Banks” has the meaning specified in Schedule A.



     “Regular Record Date” for the interest payable on any Interest Payment Date with respect to
the Securities means the date that is fifteen (15) days preceding such Interest Payment Date
(whether or not a Business Day).



     “Responsible Officer” means, with respect to the Trustee, any Senior Vice President, any Vice
President, any Assistant Vice President, the Secretary, any Assistant Secretary, the Treasurer, any
Assistant Treasurer, any Financial Services Officer or Assistant Financial Services Officer, or any
other officer in the Corporate Trust Office of the Trustee with direct responsibility for the
administration of this Indenture 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.



     “Rights Plan” means a plan of the Company providing for the issuance by the Company to all
holders of its Equity Interests of rights entitling the holders thereof to subscribe for or
purchase Equity Interests of the Company which rights (i) are deemed to be transferred with such



8









 







Equity Interests and (ii) are also issued in respect of future issuances of such Equity Interests,
in each case until the occurrence of a specified event or events.



     “Securities” or “Security” means any debt securities or debt security, as the case may be,
authenticated and delivered under this Indenture.



     “Securities Act” means the Securities Act of 1933 or any successor statute thereto, in each
case as amended from time to time.



     “Securities Register” and “Securities Registrar” have the respective meanings specified in
Section 3.5.



     “Senior Debt” means the principal of and any premium and interest on (including interest
accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the
Company, whether or not such claim for post-petition interest is allowed in such proceeding) all
Debt of the Company, whether incurred on or prior to the date of this Indenture or thereafter
incurred, unless it is provided in the instrument creating or evidencing the same or pursuant to
which the same is outstanding, that such obligations are not superior in right of payment to the
Securities; provided, however, that if the Company is subject to the regulation and supervision of
an “appropriate Federal banking agency” within the meaning of 12 U.S.C. 1813(q), the Company shall
have received the approval of such appropriate Federal banking agency prior to issuing any such
obligation if not otherwise generally approved; provided further, that Senior Debt shall not
include any other debt securities, and guarantees in respect of such debt securities, issued to any
trust other than the Trust (or a trustee of such trust), partnership or other entity affiliated
with the Company that is a financing vehicle of the Company (a “financing entity”), in connection
with the issuance by such financing entity of equity securities or other securities that are
treated as equity capital for regulatory capital purposes guaranteed by the Company pursuant to an
instrument that ranks pari passu with or junior in right of payment to the Securities.



     “Special Event” means the occurrence of a Capital Disqualification Event, an Investment
Company Event or a Tax Event.



     “Special Event Redemption Price” has the meaning specified in Section 11.2.



     “Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.1.



     “Stated Maturity” means January 30, 2037.



     “Subsidiary” means a Person more than fifty percent (50%) of the outstanding voting stock or
other voting interests of which is owned, directly or indirectly, by the Company or by one or more
other Subsidiaries, or by the Company and one or more other Subsidiaries. For purposes of this
definition, “voting stock” means stock that ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.



     “Tax Event” means the receipt by the Company of an Opinion of Counsel experienced in such
matters to the effect that, as a result of (a) any amendment to or change (including any



9









 







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 (b) any judicial decision or any official
administrative pronouncement (including any private letter ruling, technical advice
memorandum or field service advice) or regulatory procedure, including any notice or
announcement of intent to adopt any such pronouncement or procedure (an “Administrative Action”),
regardless of whether such judicial decision or Administrative Action 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, change, judicial decision or Administrative Action is enacted, promulgated
or announced, in each case, on or after the date of issuance of the Securities, there is more than
an insubstantial risk that (i) the Trust is, or will be within ninety (90) days of the date of such
opinion, subject to United States federal income tax with respect to income received or accrued on
the Securities, (ii) interest payable by the Company on the Securities is not, or within ninety
(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 ninety (90)
days of the date of such opinion, subject to more than a de minimis amount of other taxes, duties
or other governmental charges.



     “Trust” has the meaning specified in the first recital of this Indenture.



     “Trust Agreement” means the Amended and Restated Trust Agreement executed and delivered by the
Company, the Property Trustee, the Delaware Trustee and the Administrative Trustees named therein,
contemporaneously with the execution and delivery of this Indenture, for the benefit of the holders
of the Trust Securities, as amended or supplemented from time to time.



     “Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument,
solely in its capacity as such and not in its individual capacity, until a successor Trustee shall
have become such pursuant to the applicable provisions of this Indenture, and, thereafter,
"Trustee” shall mean or include each Person who is then a Trustee hereunder.



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended and as in effect on
the date as of this Indenture.



     “Trust Securities” has the meaning specified in the first recital of this Indenture.



     SECTION 1.2. Compliance Certificate and Opinions.



     (a) Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate
stating that all conditions precedent (including covenants compliance with which constitutes a
condition precedent), if any, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel, if required by the Trustee, stating that in the
opinion of such counsel all such conditions precedent (including covenants compliance with which
constitutes a condition precedent), if any, have been complied with, except that, in the case of
any such application or request as to which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.




10









 





     (b) Every certificate delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture (other than the certificate provided pursuant to
Section 10.3) shall include:




     (i) a statement by each individual signing such certificate or opinion that such
individual has read such covenant or condition and the definitions herein relating thereto;




     (ii) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions of such individual contained in such certificate or
opinion are based;




     (iii) a statement that, in the opinion of such individual, he or she has made such
examination or investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been complied with; and




     (iv) a statement as to whether, in the opinion of such individual, such condition or
covenant has been complied with.



     SECTION 1.3. Forms of Documents Delivered to Trustee.



     (a) In any case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified or covered by only
one document, but one such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.



     (b) Any certificate or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless
such officer knows, or after reasonable inquiry should know, that the certificate or opinion or
representations with respect to matters upon which his or her certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or after reasonable inquiry should know, that the
certificate or opinion or representations with respect to such matters are erroneous.



     (c) Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.



     (d) Whenever, subsequent to the receipt by the Trustee of any Board Resolution, Officers’
Certificate, Opinion of Counsel or other document or instrument, a clerical, typographical or other
inadvertent or unintentional error or omission shall be discovered therein, a new document or
instrument may be substituted therefor in corrected form with the same force and effect as if
originally received in the corrected form and, irrespective of the date or dates of the actual
execution and/or delivery thereof, such substitute document or instrument shall be deemed to have
been executed and/or delivered as of the date or dates required with respect to



11









 







the document or instrument for which it is substituted. Without limiting the generality of
the foregoing, any Securities issued under the authority of such defective document or instrument
shall nevertheless be the valid obligations of the Company entitled to the benefits of this
Indenture equally and ratably with all other Outstanding Securities.



     SECTION 1.4. Acts of Holders.



     (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given to or taken by Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders in person or by an
agent thereof duly appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments (including any appointment of an
agent) is or are delivered to the Trustee, and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section 1.4.



     (b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by the certificate of any notary public
or other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him or her the execution thereof. Where such
execution is by a Person acting in other than his or her individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his or her authority. The fact and date of the
execution by any Person of any such instrument or writing, or the authority of the Person executing
the same, may also be proved in any other manner that the Trustee deems sufficient and in
accordance with such reasonable rules as the Trustee may determine.



     (c) The ownership of Securities shall be proved by the Securities Register.



     (d) Any request, demand, authorization, direction, notice, consent, waiver or other action by
the Holder of any Security shall bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such Security.



     (e) Without limiting the foregoing, a Holder entitled to take any action hereunder with regard
to any particular Security may do so with regard to all or any part of the principal amount of such
Security or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.



     (f) Except as set forth in paragraph (g) of this Section 1.4, the Company may set any
day as a record date for the purpose of determining the Holders of Outstanding Securities entitled
to give, make or take any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken by Holders of
Securities. If any record date is set pursuant to this paragraph, the Holders of Outstanding



12









 







Securities on such record date, and no other Holders, shall be entitled to take the relevant
action, whether or not such Holders remain Holders after such record date; provided, that no such
action shall be effective hereunder unless taken on or prior to the applicable Expiration Date (as
defined below) by Holders of the requisite principal amount of Outstanding Securities on such
record date. Nothing in this paragraph shall be construed to prevent the Company from setting a
new record date for any action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with no action by any
Person be canceled and of no effect). Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to
each Holder of Securities in the manner set forth in Section 1.6.



     (g) The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities entitled to join in the giving or making of (i) any Notice of Default, (ii)
any declaration of acceleration or rescission or annulment thereof referred to in Section
5.2, (iii) any request to institute proceedings referred to in Section 5.7(b) or (iv)
any direction referred to in Section 5.12. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities on such record date, and no other Holders, shall
be entitled to join in such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided, that no such action shall be effective hereunder
unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities on such record date. Nothing in this paragraph shall be construed
to prevent the Trustee from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect). Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause
notice of such record date, the proposed action by Holders and the applicable Expiration Date to be
given to the Company in writing and to each Holder of Securities in the manner set forth in
Section 1.6.



     (h) With respect to any record date set pursuant to paragraph (f) or (g) of this Section
1.4, the party hereto that sets such record date may designate any day as the “Expiration Date”
and from time to time may change the Expiration Date to any earlier or later day; provided, that no
such change shall be effective unless notice of the proposed new Expiration Date is given to the
other party hereto in writing, and to each Holder of Securities in the manner set forth in
Section 1.6, on or prior to the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this Section 1.4, the party
hereto that set such record date shall be deemed to have initially designated the ninetieth
(90th) day after such record date as the Expiration Date with respect thereto, subject
to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the
foregoing, no Expiration Date shall be later than the one hundred and eightieth (180th)
day after the applicable record date.



     SECTION 1.5. Notices, Etc.



     Any request, demand, authorization, direction, notice, consent, waiver, Act of Holders, or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with:



13









 





     (a) the Trustee by any Holder, any holder of Preferred Securities or the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the
Trustee at its Corporate Trust Office,



     (b) the Company by the Trustee, any Holder or any holder of Preferred Securities shall be
sufficient for every purpose hereunder if in writing and mailed, first class, postage prepaid, to
the Company addressed to it at 15985 East High Street, P. O. Box 35, Middlefield, Ohio 44062, Attn:
Chief Financial Officer, or at any other address previously furnished in writing to the Trustee by
the Company, or



     (c) the Purchaser by the Trustee, the Company, any Holder or any holder or beneficial owner of
the Preferred Securities, shall be sufficient for every purpose hereunder if in writing and mailed
first-class postage prepaid to the Purchaser at: TWE, Ltd., c/o Maples Finance Limited, P.O. Box
1093 GT, Queensgate House, South Church Street, George Town, Grand Cayman, Cayman Islands, or any
other address previously furnished by the Purchaser.



     SECTION 1.6. Notice to Holders; Waiver.



     Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first
class, postage prepaid, to each Holder affected by such event to the address of such Holder as it
appears in the Securities Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. If, by reason of the suspension of or
irregularities in regular mail service or for any other reason, it shall be impossible or
impracticable to mail notice of any event to Holders when said notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect
in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall
be filed with the Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.



     SECTION 1.7. Effect of Headings and Table of Contents.



     The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction of this Indenture.



     SECTION 1.8. Successors and Assigns.



     This Indenture shall be binding upon and shall inure to the benefit of any successor to the
Company and the Trustee, including any successor by operation of law. Except in connection with a
transaction involving the Company that is permitted under Article VIII and pursuant to
which the assignee agrees in writing to perform the Company’s obligations hereunder, the Company
shall not assign its obligations hereunder.



14









 





     SECTION 1.9. Separability Clause.



     If any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby, and there shall be deemed substituted for the provision at
issue a valid, legal and enforceable provision as similar as possible to the provision at issue.



     SECTION 1.10. Benefits of Indenture.



     Nothing in this Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors and assigns, the holders of Senior Debt, the
Holders of the Securities and, to the extent expressly provided in Sections 5.2,
5.8, 5.9, 5.11, 5.13, 9.2 and 10.7, the holders of
Preferred Securities, any benefit or any legal or equitable right, remedy or claim under this
Indenture.



     SECTION 1.11. Governing Law.



     This Indenture and the rights and obligations of each of the Holders, the Company and the
Trustee shall be construed and enforced in accordance with and governed by the laws of the State of
New York without reference to its conflict of laws provisions (other than Section 5-1401 of the
General Obligations Law).



     SECTION 1.12. Submission to Jurisdiction.



     ANY LEGAL ACTION OR PROCEEDING BY OR AGAINST ANY PARTY HERETO OR WITH RESPECT TO OR ARISING
OUT OF THIS INDENTURE MAY BE BROUGHT IN OR REMOVED TO THE COURTS OF THE STATE OF NEW YORK, IN AND
FOR THE COUNTY OF NEW YORK, OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW
YORK (IN EACH CASE SITTING IN THE BOROUGH OF MANHATTAN). BY EXECUTION AND DELIVERY OF THIS
INDENTURE, EACH PARTY ACCEPTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS (AND COURTS OF APPEALS THEREFROM) FOR
LEGAL PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS INDENTURE.



     SECTION 1.13. Non-Business Days.



     If any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be
a Business Day, then (notwithstanding any other provision of this Indenture or the Securities)
payment of interest, premium, if any, or principal or other amounts in respect of such Security
shall not be made on such date, but shall be made on the next succeeding Business Day (and no
interest shall accrue in respect of the amounts whose payment is so delayed for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be, until
such next succeeding Business Day) except that, if such Business Day falls in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on the Interest Payment Date or Redemption Date or at the
Stated Maturity.



15









 





ARTICLE II




Security Forms




     SECTION 2.1. Form of Security.



     Any Security issued hereunder shall be in substantially the form attached hereto as
Exhibit A.



     SECTION 2.2. Restricted Legend.



     (a) Any Security issued hereunder shall bear a legend in substantially the form attached
hereto as Exhibit A.



     (b) Such legend shall not be removed from any Security unless there is delivered to the
Company satisfactory evidence, which may include an Opinion of Counsel, as may be reasonably
required to ensure that any future transfers thereof may be made without restriction under or
violation of the provisions of the Securities Act and other applicable law. Upon provision of such
satisfactory evidence, the Company shall execute and deliver to the Trustee, and the Trustee shall
deliver, at the written direction of the Company, a Security that does not bear the legend.



     SECTION 2.3. Form of Trustee’s Certificate of Authentication.



     The Trustee’s certificates of authentication shall be in substantially the form contained in
Exhibit A attached hereto.



     SECTION 2.4. Temporary Securities.



     (a) Pending the preparation of definitive Securities, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities that are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any denomination, substantially
of the tenor of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the officers executing
such Securities may determine, as evidenced by their execution of such Securities.



     (b) If temporary Securities are issued, the Company will cause definitive Securities to be
prepared without unreasonable delay. After the preparation of definitive Securities, the temporary
Securities shall be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for that purpose without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive
Securities of any authorized denominations having the same Original Issue Date and Stated Maturity
and having the same terms as such temporary Securities. Until so exchanged, the temporary
Securities shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities.



16









 





     SECTION 2.5. Definitive Securities.



     The Securities issued on the Original Issue Date shall be in definitive form. The definitive
Securities shall be printed, lithographed or engraved, or produced by any combination of these
methods, if required by any securities exchange on which the Securities may be listed, on a steel
engraved border or steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as determined by the
officers executing such Securities, as evidenced by their execution of such Securities.



ARTICLE III




The Securities




     SECTION 3.1. Payment of Principal and Interest.



     (a) The unpaid principal amount of the Securities shall bear interest at a fixed rate per
annum equal to 6.58% through the Interest Payment Date in January, 2012, and a variable rate per
annum, reset quarterly, equal to LIBOR plus 1.67% thereafter, such interest to accrue from the
Original Issue Date or from the most recent Interest Payment Date to which interest has been paid
or duly provided for, and any overdue principal, premium or Additional Tax Sums and any overdue
installment of interest shall bear Additional Interest (to the extent payment of such interest
would be legally enforceable) at a fixed rate per annum equal to 6.58% through the Interest Payment
Date in January, 2012, and a variable rate per annum, reset quarterly, equal to LIBOR plus 1.67%
thereafter, compounded quarterly, from the dates such amounts are due until they are paid or funds
for the payment thereof are made available for payment.



     (b) Interest and Additional Interest on any Security that is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, except that interest and any Additional Interest payable on
the Stated Maturity (or any date of principal repayment upon early maturity) of the principal of a
Security or on a Redemption Date shall be paid to the Person to whom principal is paid. The initial
payment of interest on any Security that is issued between a Regular Record Date and the related
Interest Payment Date shall be payable as provided in such Security.



     (c) Any interest on any Security that is due and payable, but is not timely paid or duly
provided for, on any Interest Payment Date for Securities (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 may be paid by the Company, at its
election in each case, as provided in paragraph (i) or (ii) below:




     (i) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities (or their respective Predecessor Securities) are registered at
the close of business on a special record date for the payment of such Defaulted Interest (a
“Special Record Date”), which shall be fixed in the following manner. At least thirty (30)
days prior to the date of the proposed payment, the Company



17









 







shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be
paid on each Security and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements 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. Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest, which shall be not more than fifteen (15) days and not less than ten
(10) days prior to the date of the proposed payment and not less than ten (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 Holder of a
Security at the address of such Holder as it appears in the Securities Register not less
than ten (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 so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered on such Special Record Date; or




     (ii) The Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange or automated quotation
system on which the Securities may be listed, traded or quoted and, upon such notice as may
be required by such exchange or automated quotation system (or by the Trustee if the
Securities are not listed), if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such payment shall be deemed practicable by the
Trustee.



     (d) Payments of interest on the Securities shall include interest accrued to but excluding the
respective Interest Payment Dates. The amount of interest payable for any interest period shall be
computed and paid on the basis of a 360-day year and the actual number of days elapsed in the
relevant interest period.



     (e) Payment of principal of, premium, if any, and interest on the Securities shall be made in
such coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts. Payments of principal, premium, if any, and interest due at
the Maturity of such Securities shall be made at the Place of Payment upon surrender of such
Securities to the Paying Agent and payments of interest shall be made subject to such surrender
where applicable, by wire transfer at such place and to such account at a banking institution in
the United States as may be designated in writing to the Paying Agent at least ten (10) Business
Days prior to the date for payment by the Person entitled thereto unless proper written transfer
instructions have not been received by the relevant record date, in which case such payments shall
be made by check mailed to the address of such Person as such address shall appear in the Security
Register. Notwithstanding the foregoing, so long as the holder of the Security is the Property
Trustee, the payment of the principal of (and premium if any) and interest (including any overdue
installment of interest and Additional Tax Sums, if any) on the



18









 







Security will be made at such place and to such account as may be designated by the Property
Trustee.



     (f) Subject to the foregoing provisions of this Section 3.1, each Security delivered
under this Indenture upon transfer of or in exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other
Security.



     SECTION 3.2. Denominations.



     The Securities shall be in registered form without coupons and shall be issuable in minimum
denominations of $100,000 and any integral multiple of $1,000 in excess thereof.



     SECTION 3.3. Execution, Authentication, Delivery and Dating.



     (a) At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities in an aggregate principal amount (including all then Outstanding
Securities) not in excess of $8,248,000 executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such Securities. In
authenticating such Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon:




     (i) a copy of any Board Resolution relating thereto; and




     (ii) an Opinion of Counsel stating that (1) such Securities, when authenticated and
delivered by the Trustee and issued by the Company 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 bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles; (2) the Securities have been
duly authorized and executed by the Company and have been delivered to the Trustee for
authentication in accordance with this Indenture; and (3) the Securities are not required to
be registered under the Securities Act.



     (b) The Securities shall be executed on behalf of the Company by its Chairman of the Board,
its Vice Chairman of the Board, its Chief Executive Officer, its President or one of its Vice
Presidents. The signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.



     (c) No Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose, unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by the manual signature of
one of its authorized officers, and such certificate upon any Security shall be conclusive



19









 







evidence, and the only evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 3.8, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.



     (d) Each Security shall be dated the date of its authentication.



     SECTION 3.4. Global Securities.



     (a) Upon the election of the Holder after the Original Issue Date, which election need not be
in writing, the Securities owned by such Holder shall be issued in the form of one or more Global
Securities registered in the name of the Depositary or its nominee. Each Global Security issued
under this Indenture shall be registered in the name of the Depositary designated by the Company
for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof
or custodian therefor, and each such Global Security shall constitute a single Security for all
purposes of this Indenture.



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



     (c) If any Global Security is to be exchanged for other Securities or canceled in part, or if
another Security is to be exchanged in whole or in part for a beneficial interest in any Global
Security, then either (i) such Global Security shall be so surrendered for exchange or cancellation
as provided in this Article III or (ii) the principal amount thereof shall be reduced or
increased by an amount equal to the portion thereof to be so exchanged or canceled, or equal to the
principal amount of such other Security to be so exchanged for a beneficial interest therein, as
the case may be, by means of an appropriate adjustment made on the records of the Securities
Registrar, whereupon the Trustee, in accordance with the Applicable Depositary Procedures, shall
instruct the Depositary or its authorized representative to make a corresponding adjustment



20









 







to its records. Upon any such surrender or adjustment of a Global Security by the Depositary,
accompanied by registration instructions, the Company shall execute and the Trustee shall
authenticate and deliver any Securities issuable in exchange for such Global Security (or any
portion thereof) in accordance with the instructions of the Depositary. The Trustee shall not be
liable for any delay in delivery of such instructions and may conclusively rely on, and shall be
fully protected in relying on, such instructions.



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



     (e) Securities distributed to holders of Book-Entry Preferred Securities (as defined in the
Trust Agreement) upon the dissolution of the Trust shall be distributed in the form of one or more
Global Securities registered in the name of a Depositary or its nominee, and deposited with the
Securities Registrar, as custodian for such Depositary, or with such Depositary, for credit by the
Depositary to the respective accounts of the beneficial owners of the Securities represented
thereby (or such other accounts as they may direct). Securities distributed to holders of
Preferred Securities other than Book-Entry Preferred Securities upon the dissolution of the Trust
shall not be issued in the form of a Global Security or any other form intended to facilitate
book-entry trading in beneficial interests in such Securities.



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



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



     (h) No holder of any beneficial interest in any Global Security held on its behalf by a
Depositary shall have any rights under this Indenture with respect to such Global Security, and
such Depositary may be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the owner of such Global Security for all purposes whatsoever. None of the Company, the
Trustee nor any agent of the Company or the Trustee will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial ownership interests
of a Global Security or maintaining, supervising or reviewing any records relating to such
beneficial ownership interests. Notwithstanding the foregoing, nothing herein



21









 







shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by a Depositary or
impair, as between a Depositary and such holders of beneficial interests, the operation of
customary practices governing the exercise of the rights of the Depositary (or its nominee) as
Holder of any Security.



     SECTION 3.5. Registration, Transfer and Exchange Generally.



     (a) The Trustee shall cause to be kept at the Corporate Trust Office a register (the
“Securities Register”) in which the registrar and transfer agent with respect to the Securities
(the “Securities Registrar”), subject to such reasonable regulations as it may prescribe, shall
provide for the registration of Securities and of transfers and exchanges of Securities. The
Trustee shall at all times also be the Securities Registrar. The provisions of Article VI
shall apply to the Trustee in its role as Securities Registrar.



     (b) Subject to compliance with Section 2.2(b), upon surrender for registration of
transfer of any Security at the offices or agencies of the Company designated for that purpose the
Company shall execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of any authorized denominations of
like tenor and aggregate principal amount.



     (c) At the option of the Holder, Securities may be exchanged for other Securities of any
authorized denominations, of like tenor and aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and upon receipt thereof the Trustee shall authenticate and
deliver, the Securities that the Holder making the exchange is entitled to receive.



     (d) All Securities issued upon any transfer or exchange of Securities shall be the valid
obligations of the Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such transfer or exchange.



     (e) Every Security presented or surrendered for transfer or exchange shall (if so required by
the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company and the Securities Registrar, duly executed by the Holder
thereof or such Holder’s attorney duly authorized in writing.



     (f) No service charge shall be made to a Holder for any transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Securities.



     (g) Neither the Company nor the Trustee shall be required pursuant to the provisions of this
Section 3.5 (i) to issue, register the transfer of or exchange any Security during a period
beginning at the opening of business fifteen (15) days before the day of selection for redemption
of Securities pursuant to Article XI and ending at the close of business on the day of
mailing of the notice of redemption or (ii) to register the transfer of or exchange any Security so
selected for



22









 







redemption in whole or in part, except, in the case of any such Security to be redeemed in
part, any portion thereof not to be redeemed.



     (h) The Company shall designate an office or offices or agency or agencies where Securities
may be surrendered for registration or transfer or exchange. The Company initially designates the
Corporate Trust Office as its office and agency for such purposes. The Company shall give prompt
written notice to the Trustee and to the Holders of any change in the location of any such office
or agency.



     SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities.



     (a) If any mutilated Security is surrendered to the Trustee together with such security or
indemnity as may be required by the Company or the Trustee to save each of them harmless, the
Company shall execute and upon receipt thereof the Trustee shall authenticate and deliver in
exchange therefor a new Security of like tenor and aggregate principal amount and bearing a number
not contemporaneously outstanding.



     (b) If there shall be delivered to the Company and to the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity
as may be required by them to save each of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company
shall execute and upon its written request the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security, a new Security of like tenor and aggregate principal
amount as such destroyed, lost or stolen Security, and bearing a number not contemporaneously
outstanding.



     (c) If any such mutilated, destroyed, lost or stolen Security has become or is about to become
due and payable, the Company in its discretion may, instead of issuing a new Security, pay such
Security.



     (d) Upon the issuance of any new Security under this Section 3.6, 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 (including the fees and expenses of the Trustee)
connected therewith.



     (e) Every new Security issued pursuant to this Section 3.6 in lieu of any mutilated,
destroyed, lost or stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.



     (f) The provisions of this Section 3.6 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.



23









 





     SECTION 3.7. Persons Deemed Owners.



     The Company, the Trustee and any agent of the Company or the Trustee shall treat the Person in
whose name any Security is registered as the owner of such Security for the purpose of receiving
payment of principal of and any interest on such Security and for all other purposes whatsoever,
and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected
by notice to the contrary.



     SECTION 3.8. Cancellation.



     All Securities surrendered for payment, redemption, transfer or exchange shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee, and any such Securities and
Securities surrendered directly to the Trustee for any such purpose shall be promptly canceled by
it. The Company may at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder that the Company may have acquired in any manner whatsoever,
and all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided in this Section
3.8, except as expressly permitted by this Indenture. All canceled Securities shall be disposed
of by the Trustee in accordance with its customary practices and the Trustee shall deliver to the
Company a certificate of such disposition.



     SECTION 3.9. Deferrals of Interest Payment Dates.



     (a) So long as no Event of Default pursuant to Sections 5.1(c), (e),
(f), (g) or (h) has occurred and is continuing, the Company shall have the
right, at any time and from time to time during the term of the Security, to defer the payment of
interest on the Securities for a period of up to twenty (20) consecutive quarterly interest payment
periods (each such period, an “Extension Period”), during which Extension Period(s), the Company
shall have the right to make no payments or partial payments of interest on any Interest Payment
Date (except any Additional Tax Sums that otherwise may be due and payable). No Extension Period
shall end on a date other than an Interest Payment Date and no Extension Period shall extend beyond
the Stated Maturity of the principal of the Securities. No 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 payment of such interest would be legally enforceable) at a fixed rate per annum equal
to 6.58% through the Interest Payment Date in January, 2012, and a variable rate per annum, reset
quarterly, equal to LIBOR plus 1.67% thereafter, compounded quarterly, from the dates on which
amounts would have otherwise been due and payable until paid or until funds for the payment thereof
have been made available for payment. At the end of any such Extension Period, the Company shall
pay all interest then accrued and unpaid on the Securities together with such Additional Interest.
Prior to the termination of any such Extension Period, the Company may extend such Extension Period
and further defer the payment of interest; provided, that (i) all such previous and further
extensions comprising such Extension Period do not exceed twenty (20) quarterly interest payment
periods, (ii) no Extension Period shall end on a date other than an Interest Payment Date and (iii)
no Extension Period shall extend beyond the Stated Maturity of the principal of the Securities.
Upon the termination of any such Extension Period and upon the payment of all accrued and unpaid
interest and any Additional Interest then due on



24









 







any Interest Payment Date, the Company may elect to begin a new Extension Period; provided,
that (i) such Extension Period does not exceed twenty (20) quarterly interest payment periods, (ii)
no Extension Period shall end on a date other than an Interest Payment Date, (iii) no Extension
Period shall extend beyond the Stated Maturity of the principal of the Securities and (iv) no Event
of Default pursuant to Sections 5.1(c), (e), (f), (g) or
(h) has occurred and is continuing. The Company shall give (i) the Holders of the
Securities, (ii) the Trustee, (iii) the Property Trustee and (iv) any beneficial owner of the
Preferred Securities reasonably identified to the Company (which identification may be made either
by such beneficial owner or by the Purchaser) written notice of its election to begin any such
Extension Period no later than the close of business on the fifteenth (15th) Business Day prior to
the next succeeding Interest Payment Date on which interest on the Securities would be payable but
for such deferral.



     (b) In connection with any such Extension Period, the Company shall be subject to the
restrictions set forth in Section 10.6(a).



     SECTION 3.10. Right of Set-Off.



     Notwithstanding anything to the contrary herein, the Company shall have the right to set off
any payment it is otherwise required to make in respect of any Security to the extent the Company
has theretofore made, or is concurrently on the date of such payment making, a payment under the
Guarantee Agreement relating to such Security or to a holder of Preferred Securities pursuant to an
action undertaken under Section 5.8 of this Indenture.



     SECTION 3.11. Agreed Tax Treatment.



     Each Security issued hereunder shall provide that the Company and, by its acceptance or
acquisition of a Security or a beneficial interest therein, the Holder of, and any Person that
acquires a direct or indirect beneficial interest in, such Security, intend and agree to treat such
Security as indebtedness of the Company for United States Federal, state and local tax purposes and
to treat the Preferred Securities (including but not limited to all payments and proceeds with
respect to the Preferred Securities) as an undivided beneficial ownership interest in the Trust
(and payments and proceeds therefrom, respectively) for United States Federal, state and local tax
purposes. The provisions of this Indenture shall be interpreted to further this intention and
agreement of the parties.



     SECTION 3.12. CUSIP Numbers.



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




25










 





ARTICLE IV




Satisfaction and Discharge




     SECTION 4.1. Satisfaction and Discharge of Indenture.




     This Indenture shall, upon Company Request, cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein expressly provided
for and as otherwise provided in this Section 4.1) and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge
of this Indenture, when



     (a) either




     (i) all Securities theretofore authenticated and delivered (other than (A) Securities
that have been mutilated, destroyed, lost or stolen and that have been replaced or paid as
provided in Section 3.6 and (B) Securities for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust as provided in Section 10.2) have been
delivered to the Trustee for cancellation; or




     (ii) all such Securities not theretofore delivered to the Trustee for cancellation




	 	(A)	 	have become due and payable, or
	 
	 	(B)	 	will become due and payable at their Stated
Maturity within one year of the date of deposit, or
	 
	 	(C)	 	are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of the
Company,






and the Company, in the case of subclause (ii)(A), (B) or (C) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust for such purpose (x) an amount in
the currency or currencies in which the Securities are payable, (y) Government Obligations
which through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than the due date of any payment, money
in an amount or (z) a combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for cancellation, for principal
and any premium and interest (including any Additional Interest) to the date of such deposit
(in the case of Securities that have become due and payable) or to the Stated Maturity (or
any date of principal repayment upon early maturity) or Redemption Date, as the case may be;



     (b) the Company has paid or caused to be paid all other sums payable hereunder by the Company;
and



26









 





     (c) the Company has delivered to the Trustee 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.


Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 6.6, the obligations of the Company to any Authenticating Agent
under Section 6.11 and, if money shall have been deposited with the Trustee pursuant to
subclause (a)(ii) of this Section 4.1, the obligations of the Trustee under Section
4.2 and Section 10.2(e) shall survive.




     SECTION 4.2. Application of Trust Money.



     Subject to the provisions of Section 10.2(e), all money deposited with the Trustee
pursuant to Section 4.1 shall be held in trust and applied by the Trustee, in accordance
with the provisions of the Securities and this Indenture, to the payment in accordance with
Section 3.1, either directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal and any premium and interest (including any Additional Interest) for the payment of which
such money or obligations have been deposited with or received by the Trustee. Moneys held by the
Trustee under this Section 4.2 shall not be subject to the claims of holders of Senior Debt
under Article XII.



ARTICLE V




Remedies




     SECTION 5.1. Events of Default.



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



     (a) default in the payment of any interest upon any Security, including any Additional
Interest in respect thereof, when it becomes due and payable, and continuance of such default for a
period of thirty (30) days (subject to the deferral of any due date in the case of an Extension
Period); or



     (b) default in the payment of the principal of or any premium on any Security at its Maturity;
or



     (c) default in the payment of any interest upon any Security, including any Additional
Interest in respect thereof, following the nonpayment of any such interest for twenty (20) or more
consecutive quarterly interest payment periods; or



     (d) default in the performance, or breach, of any covenant or warranty of the Company in this
Indenture and continuance of such default or breach for a period of thirty (30)



27









 







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 twenty five percent (25%) in
aggregate principal amount of the Outstanding Securities a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a “Notice of Default”
hereunder; or



     (e) the entry by a court having jurisdiction in the premises of a decree or order adjudging
the Company a bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the Company under any
applicable Federal or state bankruptcy, insolvency, reorganization or other similar law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of sixty (60) consecutive days; or



     (f) the institution by the Company of proceedings to be adjudicated a bankrupt or insolvent,
or the consent by the Company to the institution of bankruptcy or insolvency proceedings against
it, or the filing by the Company of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or state bankruptcy, insolvency, reorganization or other
similar law, or the consent by it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due and its willingness to be adjudicated a bankrupt or
insolvent, or the taking of corporate action by the Company in furtherance of any such action; or



     (g) either (1) a court or administrative or governmental agency or body shall enter a decree
or order for the appointment of a receiver of a Major Bank Subsidiary or all or substantially all
of its property in any liquidation, insolvency or similar proceeding, or (2) a Major Bank
Subsidiary shall consent to the appointment of a receiver for it or all or substantially all of its
property in any liquidation, insolvency or similar proceeding; or



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



     SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.



     (a) If an Event of Default pursuant to Sections 5.1(c), (e), (f),
(g) or (h) occurs and is continuing, then and in every such case the Trustee or the
Holders of not less than twenty five percent (25%) in principal amount of the Outstanding
Securities may declare the principal amount of all the Securities to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given by Holders),
provided, that if, upon an Event of Default pursuant to Sections 5.1(c), (e),
(f), (g) or (h), the Trustee or the Holders of not less than twenty five
percent (25%) in principal amount of the Outstanding Securities fail to declare the principal



28









 







of all the Outstanding Securities to be immediately due and payable, the holders of at least
twenty five percent (25%) in aggregate Liquidation Amount of the Preferred Securities then
outstanding shall have the right to make such declaration by a notice in writing to the Property
Trustee, the Company and the Trustee; and upon any such declaration the principal amount of and the
accrued interest (including any Additional Interest) on all the Securities shall become immediately
due and payable.



     (b) At any time after such a declaration of acceleration with respect to Securities has been
made and before a judgment or decree for payment of the money due has been obtained by the Trustee
as hereinafter provided in this Article V, the Holders of a majority in principal amount of
the Outstanding Securities, by written notice to the Indenture Trustee, or the holders of a
majority in aggregate Liquidation Amount of the Preferred Securities, by written notice to the
Property Trustee, the Company and the Trustee, may rescind and annul such declaration and its
consequences if:




     (i) the Company has paid or deposited with the Trustee a sum sufficient to pay:




	 	(A)	 	all overdue installments of interest on all
Securities,
	 
	 	(B)	 	any accrued Additional Interest on all
Securities,
	 
	 	(C)	 	the principal of and any premium on any
Securities that have become due otherwise than by such declaration of
acceleration and interest (including any Additional Interest) thereon
at the rate borne by the Securities, and
	 
	 	(D)	 	all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, the Property Trustee and their agents and
counsel; and






     (ii) all Events of Default with respect to Securities, other than the non-payment of
the principal of Securities that has become due solely by such acceleration, have been cured
or waived as provided in Section 5.13;


provided, that if the Holders of such Securities fail to annul such declaration and waive such
default, the holders of not less than a majority in aggregate Liquidation Amount of the Preferred
Securities then outstanding shall also have the right to rescind and annul such declaration and its
consequences by written notice to the Property Trustee, the Company and the Trustee, subject to the
satisfaction of the conditions set forth in paragraph (b) of this Section 5.2. No such
rescission shall affect any subsequent default or impair any right consequent thereon.




     SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.



     (a) The Company covenants that if:



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     (i) default is made in the payment of any installment of interest (including any
Additional Interest) on any Security when such interest becomes due and payable and such
default continues for a period of thirty (30) days, or




     (ii) default is made in the payment of the principal of and any premium on any Security
at the Maturity thereof,


the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of
such Securities, the whole amount then due and payable on such Securities for principal and any
premium and interest (including any Additional Interest) and, in addition thereto, all amounts
owing the Trustee under Section 6.6.




     (b) If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its
own name and as trustee of an express trust, may institute a judicial proceeding for the collection
of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and
may enforce the same against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of the property of the
Company or any other obligor upon the Securities, wherever situated.



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



     SECTION 5.4. Trustee May File Proofs of Claim.



     In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or similar judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized
hereunder in order to have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder 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 Holders, to
first pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts owing the Trustee, any
predecessor Trustee and other Persons under Section 6.6.



     SECTION 5.5. Trustee May Enforce Claim Without Possession of Securities.



     All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production



30









 







thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any recovery of judgment
shall, subject to Article XII and after provision for the payment of all the amounts owing
the Trustee, any predecessor Trustee and other Persons under Section 6.6, be for the
ratable benefit of the Holders of the Securities in respect of which such judgment has been
recovered.



     SECTION 5.6. Application of Money Collected.



     Any money or property collected or to be applied by the Trustee with respect to the Securities
pursuant to this Article V shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money or property on account of
principal or any premium or interest (including any Additional Interest), upon presentation of the
Securities and the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:



     FIRST: To the payment of all amounts due the Trustee, any predecessor Trustee and other
Persons under Section 6.6;



     SECOND: To the payment of all Senior Debt of the Company if and to the extent required by
Article XII.



     THIRD: Subject to Article XII, to the payment of the amounts then due and unpaid upon
the Securities for principal and any premium and interest (including any Additional Interest) in
respect of which or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on the Securities for
principal and any premium and interest (including any Additional Interest), respectively; and



     FOURTH: The balance, if any, to the Person or Persons entitled thereto.



     SECTION 5.7. Limitation on Suits.




     Subject to Section 5.8, no Holder of any Securities shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture or for the appointment of a
custodian, receiver, assignee, trustee, liquidator, sequestrator (or other similar official) or for
any other remedy hereunder, unless:



     (a) such Holder has previously given written notice to the Trustee of a continuing Event of
Default with respect to the Securities;



     (b) the Holders of not less than a majority in aggregate principal amount of the Outstanding
Securities shall have made written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;



     (c) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in compliance with such request;



     (d) the Trustee after its receipt of such notice, request and offer of indemnity has failed to
institute any such proceeding for sixty (60) days; and



31









 





     (e) no direction inconsistent with such written request has been given to the Trustee during
such sixty (60)-day period by the Holders of a majority in aggregate principal amount of the
Outstanding Securities;


it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing itself of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holders of Securities, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable benefit of all such
Holders.




     SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium and Interest;
Direct Action by Holders of Preferred Securities.



     Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of and any
premium on such Security at its Maturity and payment of interest (including any Additional
Interest) on such Security when due and payable and to institute suit for the enforcement of any
such payment, and such right shall not be impaired without the consent of such Holder. Any
registered holder of the Preferred Securities shall have the right, upon the occurrence of an Event
of Default described in Section 5.1(a), Section 5.1(b) or Section 5.1(c),
to institute a suit directly against the Company for enforcement of payment to such holder of
principal of and any premium and interest (including any Additional Interest) on the Securities
having a principal amount equal to the aggregate Liquidation Amount of the Preferred Securities
held by such holder.



     SECTION 5.9. Restoration of Rights and Remedies.



     If the Trustee, any Holder or any holder of Preferred Securities has instituted any proceeding
to enforce any right or remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee, such Holder or such
holder of Preferred Securities, then and in every such case the Company, the Trustee, such Holders
and such holder of Preferred Securities shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions hereunder, and thereafter all rights
and remedies of the Trustee, such Holder and such holder of Preferred Securities shall continue as
though no such proceeding had been instituted.



     SECTION 5.10. Rights and Remedies Cumulative.



     Except as otherwise provided in Section 3.6(f), no right or remedy herein conferred
upon or reserved to the Trustee or the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.



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     SECTION 5.11. Delay or Omission Not Waiver.



     No delay or omission of the Trustee, any Holder of any Securities or any holder of any
Preferred Security to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article V or by law to the Trustee or to the
Holders and the right and remedy given to the holders of Preferred Securities by Section
5.8 may be exercised from time to time, and as often as may be deemed expedient, by the
Trustee, the Holders or the holders of Preferred Securities, as the case may be.



     SECTION 5.12. Control by Holders.



     The Holders of not less than a majority in aggregate principal amount of the Outstanding
Securities (or, as the case may be, the holders of a majority in aggregate Liquidation Amount of
the Preferred Securities) 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; provided, that:



     (a) such direction shall not be in conflict with any rule of law or with this Indenture,



     (b) the Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction, and



     (c) subject to the provisions of Section 6.2, the Trustee shall have the right to
decline to follow such direction if a Responsible Officer or Officers of the Trustee shall, in good
faith, reasonably determine that the proceeding so directed would be unjustly prejudicial to the
Holders not joining in any such direction or would involve the Trustee in personal liability.



     SECTION 5.13. Waiver of Past Defaults.



     (a) The Holders of not less than a majority in aggregate principal amount of the Outstanding
Securities and the holders of not less than a majority in aggregate Liquidation Amount of the
Preferred Securities may waive any past Event of Default hereunder and its consequences except an
Event of Default:




     (i) in the payment of the principal of or any premium or interest (including any
Additional Interest) on any Security (unless such Event of Default has been cured and the
Company has paid to or deposited with the Trustee a sum sufficient to pay all installments
of interest (including any Additional Interest) due and past due and all principal of and
any premium on all Securities due otherwise than by acceleration), or




     (ii) in respect of a covenant or provision hereof that under Article IX cannot
be modified or amended without the consent of each Holder of any Outstanding Security.



     (b) Any such waiver shall be deemed to be on behalf of the Holders of all the Securities or,
in the case of a waiver by holders of Preferred Securities issued by such Trust, by all holders of
Preferred Securities.



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     (c) Upon any such waiver, such Event of Default shall cease to exist and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Event of Default or impair any right consequent
thereon.



     SECTION 5.14. Undertaking for Costs.



     All parties to this Indenture agree, and each Holder of any Security by his or her 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; but the provisions of this Section 5.14 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than ten percent (10%) in aggregate principal amount of the Outstanding
Securities, or to any suit instituted by any Holder for the enforcement of the payment of the
principal of or any premium on the Security after the Stated Maturity or any interest (including
any Additional Interest) on any Security after it is due and payable.



     SECTION 5.15. Waiver of Usury, Stay or Extension Laws.



     The Company covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no such law had been
enacted.



ARTICLE VI




The Trustee




     SECTION 6.1. Corporate Trustee Required.



     There shall at all times be a Trustee hereunder with respect to the Securities. The Trustee
shall be a corporation organized and doing business under the laws of the United States or of any
state thereof, authorized to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000, subject to supervision or examination by Federal or state authority and
having an office within the United States. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of such supervising or examining authority,
then, for the purposes of this Section 6.1, 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 the Trustee shall cease to be eligible in



34









 







accordance with the provisions of this Section 6.1, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article VI.



     SECTION 6.2. Certain Duties and Responsibilities.



     (a) Except during the continuance of an Event of Default:




     (i) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and




     (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture; provided, that in the case of any such certificates or opinions that 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 substantially conform
on their face to the requirements of this Indenture.



     (b) If an Event of Default known to the Trustee has occurred and is continuing, the Trustee
shall, prior to the receipt of directions, if any, from the Holders of at least a majority in
aggregate principal amount of the Outstanding Securities (or, if applicable, from the holders of a
majority in aggregate Liquidation Amount of the Preferred Securities), exercise such of the rights
and powers vested in it by this Indenture, and use the same degree of care and skill in its
exercise, as a prudent person would exercise or use under the circumstances in the conduct of such
person’s own affairs.



     (c) Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it. Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this Section 6.2.
To the extent that, at law or in equity, the Trustee has duties and liabilities relating to the
Holders, the Trustee shall not be liable to any Holder for the Trustee’s good faith reliance on the
provisions of this Indenture. The provisions of this Indenture, to the extent that they restrict
the duties and liabilities of the Trustee otherwise existing at law or in equity, are agreed by the
Company and the Holders to replace such other duties and liabilities of the Trustee.



     (d) No provisions of this Indenture shall be construed to relieve the Trustee from liability
with respect to matters that are within the authority of the Trustee under this Indenture for its
own negligent action, negligent failure to act or willful misconduct, except that:




     (i) the Trustee shall not be liable for any error or judgment made in good faith by an
authorized officer of the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts;



35









 






     (ii) 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 Holders of at least a
majority in aggregate principal amount of the Outstanding Securities (or, if applicable,
from the holders of a majority in aggregate Liquidation Amount of the Preferred Securities),
relating to the time, method and place of conducting any proceeding for any remedy available
to the Trustee under this Indenture; and




     (iii) the Trustee shall be under no liability for interest on any money received by it
hereunder and money held by the Trustee in trust hereunder need not be segregated from other
funds except to the extent required by law.



     SECTION 6.3. Notice of Defaults.



     Within ninety (90) days after the occurrence of any default actually known to the Trustee, the
Trustee shall give the Holders notice of such default unless such default shall have been cured or
waived; provided, that except in the case of a default in the payment of the principal of or any
premium or interest on any Securities, the Trustee shall be fully protected in withholding the
notice if and so long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines that withholding the
notice is in the interest of holders of Securities; and provided, further, that in the case of any
default of the character specified in Section 5.1(d), no such notice to Holders shall be
given until at least thirty (30) days after the occurrence thereof. For the purpose of this
Section 6.3, the term “default” means any event which is, or after notice or lapse of time
or both would become, an Event of Default.



     SECTION 6.4. Certain Rights of Trustee.



     Subject to the provisions of Section 6.2:



     (a) the Trustee may conclusively rely and shall be fully protected in acting or refraining
from acting in good faith and in accordance with the terms hereof upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note 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) if (i) in performing its duties under this Indenture the Trustee is required to decide
between alternative courses of action, (ii) in construing any of the provisions of this Indenture
the Trustee finds ambiguous or inconsistent with any other provisions contained herein or (iii) the
Trustee is unsure of the application of any provision of this Indenture, then, except as to any
matter as to which the Holders are entitled to decide under the terms of this Indenture, the
Trustee shall deliver a notice to the Company requesting the Company’s written instruction as to
the course of action to be taken and the Trustee shall take such action, or refrain from taking
such action, as the Trustee shall be instructed in writing to take, or to refrain from taking, by
the Company; provided, that if the Trustee does not receive such instructions from the Company
within ten Business Days after it has delivered such notice or such reasonably shorter period of
time set forth in such notice the Trustee may, but shall be under no duty to, take such action, or
refrain from taking such action, as the Trustee shall deem advisable and in the best interests of



36









 







the Holders, in which event the Trustee shall have no liability except for its own negligence,
bad faith or willful misconduct;



     (c) any request or direction of the Company shall be sufficiently evidenced by a Company
Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced
by a Board Resolution;



     (d) the Trustee may consult with counsel (which counsel may be counsel to the Trustee, the
Company or any of its Affiliates, and may include any of its employees) and the advice of such
counsel or any 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 reliance
thereon;



     (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders or any holder of Preferred
Securities pursuant to this Indenture, unless such Holders (or such holders of Preferred
Securities) shall have offered to the Trustee security or indemnity reasonably satisfactory to it
against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities
that might be incurred by it in compliance with such request or direction, including reasonable
advances as may be requested by the Trustee;



     (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, direction,
consent, order, bond, indenture, note or other paper or document, but the Trustee in its discretion
may make such inquiry or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;



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



     (h) whenever in the administration of this Indenture the Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or taking any other action with
respect to enforcing any remedy or right hereunder, the Trustees (i) may request instructions from
the Holders (which instructions may only be given by the Holders of the same aggregate principal
amount of Outstanding Securities as would be entitled to direct the Trustee under this Indenture in
respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or
taking such action until such instructions are received and (iii) shall be protected in acting in
accordance with such instructions;



     (i) except as otherwise expressly provided by this Indenture, the Trustee shall not be under
any obligation to take any action that is discretionary under the provisions of this Indenture;



37









 





     (j) without prejudice to any other rights available to the Trustee under applicable law, when
the Trustee incurs expenses or renders services in connection with any bankruptcy, insolvency or
other proceeding referred to in clauses (e) or (f) of the definition of Event of Default, such
expenses (including legal fees and expenses of its agents and counsel) and the compensation for
such services are intended to constitute expenses of administration under any bankruptcy laws or
law relating to creditors rights generally;



     (k) whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, conclusively rely upon an Officers’ Certificate addressing such matter, which, upon
receipt of such request, shall be promptly delivered by the Company;



     (l) the Trustee shall not be charged with knowledge of any default or Event of Default unless
either (i) a Responsible Officer of the Trustee shall have actual knowledge or (ii) the Trustee
shall have received written notice thereof from the Company or a Holder; and



     (m) in the event that the Trustee is also acting as Paying Agent, Authenticating Agent or
Securities Registrar hereunder, the rights and protections afforded to the Trustee pursuant to this
Article VI shall also be afforded such Paying Agent, Authenticating Agent, or Securities
Registrar.



     SECTION 6.5. May Hold Securities.



     The Trustee, any Authenticating Agent, any Paying Agent, any Securities Registrar or any other
agent of the Company, in its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Securities Registrar or such other agent.



     SECTION 6.6. Compensation; Reimbursement; Indemnity.



     (a) The Company agrees




     (i) to pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder in such amounts as the Company and the Trustee shall agree from
time to time (which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);




     (ii) to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses and disbursements
of its agents and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence, bad faith or willful misconduct; and




     (iii) to the fullest extent permitted by applicable law, to indemnify the Trustee
(including in its individual capacity) and its Affiliates, and their officers, directors,
shareholders, agents, representatives and employees for, and to hold them harmless



38









 







against, any loss, damage, liability, tax (other than income, franchise or other taxes
imposed on amounts paid pursuant to (i) or (ii) hereof), penalty, expense or claim of any
kind or nature whatsoever incurred without negligence, bad faith or willful misconduct on
its part arising out of or in connection with the acceptance or administration of this trust
or the performance of the Trustee’s duties hereunder, including the advancement of funds to
cover the costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties hereunder.



     (b) To secure the Company’s payment obligations in this Section 6.6, the Company
hereby grants and pledges to the Trustee and the Trustee shall have a lien prior to the Securities
on all money or property held or collected by the Trustee, other than money or property held in
trust to pay principal and interest on particular Securities. Such lien shall survive the
satisfaction and discharge of this Indenture or the resignation or removal of the Trustee.



     (c) The obligations of the Company under this Section 6.6 shall survive the
satisfaction and discharge of this Indenture and the earlier resignation or removal of the Trustee.



     (d) In no event shall the Trustee be liable for any indirect, special, punitive or
consequential loss or damage of any kind whatsoever, including, but not limited to, lost profits,
even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the
form of action.



     (e) In no event shall the Trustee be liable for any failure or delay in the performance of its
obligations hereunder because of circumstances beyond its control, including, but not limited to,
acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo,
government action, including any laws, ordinances, regulations, governmental action or the like
which delay, restrict or prohibit the providing of the services contemplated by this Indenture.



     SECTION 6.7. Resignation and Removal; Appointment of Successor.



     (a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article VI shall become effective until the acceptance of appointment by
the successor Trustee under Section 6.8.



     (b) The Trustee may resign at any time by giving written notice thereof to the Company.



     (c) Unless an Event of Default shall have occurred and be continuing, the Trustee may be
removed at any time by the Company by a Board Resolution. If an Event of Default shall have
occurred and be continuing, the Trustee may be removed by Act of the Holders of a majority in
aggregate principal amount of the Outstanding Securities, delivered to the Trustee and to the
Company.



     (d) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any reason, at a time when no Event of Default shall have
occurred and be continuing, the Company, by a Board Resolution, shall promptly appoint a successor
Trustee, and such successor Trustee and the retiring Trustee shall comply



39









 







with the applicable requirements of Section 6.8. If the Trustee shall resign, be
removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any
reason, at a time when an Event of Default shall have occurred and be continuing, the Holders, by
Act of the Holders of a majority in aggregate principal amount of the Outstanding Securities, shall
promptly appoint a successor Trustee, and such successor Trustee and the retiring Trustee shall
comply with the applicable requirements of Section 6.8. If no successor Trustee shall have
been so appointed by the Company or the Holders and accepted appointment within sixty (60) days
after the giving of a notice of resignation by the Trustee or the removal of the Trustee in the
manner required by Section 6.8, any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of such Holder and all others similarly situated, and any
resigning Trustee may, at the expense of the Company, petition any court of competent jurisdiction
for the appointment of a successor Trustee.



     (e) The Company shall give notice to all Holders in the manner provided in Section 1.6
of each resignation and each removal of the Trustee and each appointment of a successor Trustee.
Each notice shall include the name of the successor Trustee and the address of its Corporate Trust
Office.



     SECTION 6.8. Acceptance of Appointment by Successor.



     (a) In case of the appointment hereunder of a successor Trustee, each successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, 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, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such retiring Trustee
hereunder.



     (b) Upon request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Trustee all
rights, powers and trusts referred to in paragraph (a) of this Section 6.8.



     (c) No successor Trustee shall accept its appointment unless at the time of such acceptance
such successor Trustee shall be qualified and eligible under this Article VI.



     SECTION 6.9. Merger, Conversion, Consolidation or Succession to Business.



     Any Person into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to all or substantially all of the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder, without the
execution or filing of any paper or any further act on the part of any of the parties hereto,
provided, that such Person shall be otherwise qualified and eligible under this Article VI.
In case any Securities shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by



40









 







merger, conversion or consolidation or as otherwise provided above in this Section 6.9
to such authenticating Trustee may adopt such authentication and deliver the Securities so
authenticated, and in case any Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor Trustee or in the
name of such successor Trustee, and in all cases the certificate of authentication shall have the
full force which it is provided anywhere in the Securities or in this Indenture that the
certificate of the Trustee shall have.



     SECTION 6.10. Not Responsible for Recitals or Issuance of Securities.



     The recitals contained herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or application by the
Company of the Securities or the proceeds thereof.



     SECTION 6.11. Appointment of Authenticating Agent.



     (a) The Trustee may appoint an Authenticating Agent or Agents, if so requested by the Company,
with respect to the Securities, which shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon original issue and upon exchange, registration of transfer or
partial redemption thereof or pursuant to Section 3.6, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture
to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business under the laws of the
United States of America, or of any State or Territory thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or examination by Federal or state authority.
If such Authenticating Agent publishes reports of condition at least annually pursuant to law or to
the requirements of said supervising or examining authority, then for the purposes of this
Section 6.11 the combined capital and surplus of such Authenticating Agent 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 6.11, such Authenticating Agent shall resign immediately in the
manner and with the effect specified in this Section 6.11.



     (b) Any Person into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any Person resulting from any merger, conversion or consolidation to which
such Authenticating Agent shall be a party, or any Person succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor Authenticating Agent
hereunder, provided such Person shall be otherwise eligible under this Section 6.11,
without the execution or filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.



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     (c) An Authenticating Agent may resign at any time by giving written notice thereof to the
Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof 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 such
Authenticating Agent shall cease to be eligible in accordance with the provisions of this
Section 6.11, the Trustee may appoint a successor Authenticating Agent eligible under the
provisions of this Section 6.11, which shall be acceptable to the Company, and shall give
notice of such appointment to all Holders. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an Authenticating Agent.



     (d) The Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section 6.11 in such amounts as the Company and
the Authenticating Agent shall agree from time to time.



     (e) If an appointment of an Authenticating Agent is made pursuant to this Section
6.11, the Securities may have endorsed thereon, in addition to the Trustee’s certificate of
authentication, an alternative certificate of authentication in the following form:



This represents Securities designated therein and referred to in the within mentioned Indenture.



Dated:



	 	 	 	 	 	 	 
	 	 	WILMINGTON TRUST COMPANY, not in its individual

capacity, but solely as Trustee	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	Authenticating Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Authorized Officer
	 	 






ARTICLE VII




Holders’ Lists and Reports by Trustee and Company




     SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders.



     The Company will furnish or cause to be furnished to the Trustee:



     (a) semi-annually, on or before June 30 and December 31 of each year, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders as of a date not more
than fifteen (15) days prior to the delivery thereof, and



42









 





     (b) at such other times as the Trustee may request in writing, within thirty (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 fifteen (15) days prior to the time such list is furnished, in each case to the extent
such information is in the possession or control of the Company and has not otherwise been received
by the Trustee in its capacity as Securities Registrar.



     SECTION 7.2. Preservation of Information, Communications to Holders.



     (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names
and addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 7.1 and the names and addresses of Holders received by the Trustee in its capacity
as Securities Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.



     (b) The rights of Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided in the Trust Indenture Act.



     (c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and
the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of information as to the names and addresses of the Holders
made pursuant to the Trust Indenture Act.



     SECTION 7.3. Reports by Company and Trustee.



     (a) The Company shall furnish to the Holders and to prospective purchasers of Securities, upon
their request, the information required to be furnished pursuant to Rule 144A(d)(4) under the
Securities Act. The Company shall furnish to the Trustee and, so long as the Property Trustee
holds any of the Securities, the Company shall furnish to the Property Trustee, (i) reports on
Federal Reserve form FR Y-9SP promptly following their filing with the Federal Reserve, or (ii) if
at such time the Company is no longer required to file the reports set forth in (i) above, such
other similar reports as the Company may be required to file at such time with the Company’s
primary federal banking regulator promptly following their filing with such banking regulator.



     (b) The Company shall furnish to (i) the Holders and to subsequent holders of Securities, (ii)
the Purchaser, (iii) any beneficial owner of the Securities reasonably identified to the Company
(which identification may be made either by such beneficial owner or by the Purchaser) and (iv) any
designee of (i), (ii) or (iii) above, a duly completed and executed certificate in the form
attached hereto as Exhibit B, including the financial statements referenced in such
Exhibit, which certificate and financial statements shall be so furnished by the Company not later
than forty five (45) days after the end of each of the first three fiscal quarters of each fiscal
year of the Company and not later than ninety (90) days after the end of each fiscal year of the
Company.



     (c) The Trustee shall receive all reports, certificates and information, which it is entitled
to receive under each of the Operative Documents (as defined in the Trust Agreement),



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and deliver to the Purchaser, or its designee, as identified in writing to the Trustee, all such
reports, certificates or information promptly upon receipt thereof.



ARTICLE VIII




Consolidation, Merger, Conveyance, Transfer or Lease




     SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms.



     The Company shall not consolidate with or merge into any other Person or convey, transfer or
lease its properties and assets substantially as an entirety to any Person, and no Person shall
consolidate with or merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:



     (a) if the Company shall consolidate with or merge into another Person or convey, transfer or
lease its properties and assets substantially as an entirety to any Person, the entity formed by
such consolidation or into which the Company is merged or the Person that acquires by conveyance or
transfer, or that leases, the properties and assets of the Company substantially as an entirety
shall be an entity organized and existing under the laws of the United States of America or any
State or Territory thereof or the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the
Trustee, the due and punctual payment of the principal of and any premium and interest (including
any Additional Interest) on all the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;



     (b) immediately after giving effect to such transaction, no Event of Default, and no event
that, after notice or lapse of time, or both, would constitute an Event of Default, shall have
happened and be continuing; and



     (c) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction, any such supplemental
indenture comply with this Article VIII and that all conditions precedent herein provided
for relating to such transaction have been complied with; and the Trustee may rely upon such
Officers’ Certificate and Opinion of Counsel as conclusive evidence that such transaction complies
with this Section 8.1.



     SECTION 8.2. Successor Company Substituted.



     (a) Upon any consolidation or merger by the Company with or into any other Person, or any
conveyance, transfer or lease by the Company of its properties and assets substantially as an
entirety to any Person in accordance with Section 8.1 and the execution and delivery to the
Trustee of the supplemental indenture described in Section 8.1(a), the successor entity
formed by such consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such successor Person had
been named as the Company herein; and in the event of any such conveyance or transfer, following



44









 







the execution and delivery of such supplemental indenture, the Company shall be discharged
from all obligations and covenants under the Indenture and the Securities.



     (b) Such successor Person may cause to be executed, and may issue either in its own name or in
the name of the Company, any or all of the Securities issuable hereunder that theretofore shall not
have been signed by the Company and delivered to the Trustee; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities that
previously shall have been signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities that such successor Person thereafter shall cause to be executed
and delivered to the Trustee on its behalf. All the Securities so issued shall in all respects have
the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter
issued in accordance with the terms of this Indenture.



     (c) In case of any such consolidation, merger, sale, conveyance or lease, such changes in
phraseology and form may be made in the Securities thereafter to be issued as may be appropriate to
reflect such occurrence.



ARTICLE IX




Supplemental Indentures




     SECTION 9.1. Supplemental Indentures without Consent of Holders.



     Without the consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into one or more indentures supplemental
hereto, in form reasonably satisfactory to the Trustee, for any of the following purposes:



     (a) to evidence the succession of another Person to the Company, and the assumption by any
such successor of the covenants of the Company herein and in the Securities; or



     (b) to cure any ambiguity, to correct or supplement any provision herein that may be defective
or inconsistent with any other provision herein, or to make or amend any other provisions with
respect to matters or questions arising under this Indenture, which shall not be inconsistent with
the other provisions of this Indenture, provided, that such action pursuant to this clause (b)
shall not adversely affect in any material respect the interests of any Holders or the holders of
the Preferred Securities; or



     (c) to add to the covenants, restrictions or obligations of the Company or to add to the
Events of Default, provided, that such action pursuant to this clause (c) shall not adversely
affect in any material respect the interests of any Holders or the holders of the Preferred
Securities; or



     (d) to modify, eliminate or add to any provisions of the Indenture or the Securities to such
extent as shall be necessary to ensure that the Securities are treated as indebtedness of the
Company for United States Federal income tax purposes, provided, that such action pursuant to this
clause (d) shall not adversely affect in any material respect the interests of any Holders or the
holders of the Preferred Securities.



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     SECTION 9.2. Supplemental Indentures with Consent of Holders.



     (a) With the consent of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may 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 modifying in any manner the
rights of the Holders of Securities under this Indenture; provided, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security,




     (i) change the Stated Maturity of the principal or any premium of any Security or
change the date of payment of any installment of interest (including any Additional
Interest) on any Security, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof or change the place of payment
where, or the coin or currency in which, any Security or interest thereon is payable, or
restrict or impair the right to institute suit for the enforcement of any such payment on or
after such date, or




     (ii) reduce the percentage in aggregate principal amount of the Outstanding Securities,
the consent of whose Holders is required for any such supplemental indenture, or the consent
of whose Holders is required for any waiver of compliance with any provision of this
Indenture or of defaults hereunder and their consequences provided for in this Indenture, or




     (iii) modify any of the provisions of this Section 9.2, Section 5.13 or
Section 10.7, except to increase any percentage in aggregate principal amount of the
Outstanding Securities, the consent of whose Holders is required for any reason, or to
provide that certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Security;


provided, further, that, so long as any Preferred Securities remain outstanding, no amendment under
this Section 9.2 shall be effective until the holders of a majority in Liquidation Amount
of the Trust Securities shall have consented to such amendment; provided, further, that if the
consent of the Holder of each Outstanding Security is required for any amendment under this
Indenture, such amendment shall not be effective until the holder of each Outstanding Trust
Security shall have consented to such amendment.




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



     SECTION 9.3. Execution of Supplemental Indentures.



     In executing or accepting the additional trusts created by any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully protected in conclusively
relying upon, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such



46









 







supplemental indenture is authorized or permitted by this Indenture, and that all conditions
precedent herein provided for relating to such action have been complied with. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture that affects the Trustee’s
own rights, duties, indemnities or immunities under this Indenture or otherwise. Copies of the
final form of each supplemental indenture shall be delivered by the Trustee at the expense of the
Company to each Holder, and, if the Trustee is the Property Trustee, to each holder of Preferred
Securities, promptly after the execution thereof.



     SECTION 9.4. Effect of Supplemental Indentures.



     Upon the execution of any supplemental indenture under this Article IX, this Indenture
shall be modified in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.



     SECTION 9.5. Reference in Securities to Supplemental Indentures.



     Securities authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and shall if required by the Company, bear a notation in
form approved by the Company as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities so modified as to conform, in the opinion of the
Company, to any such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding Securities.



ARTICLE X




Covenants




     SECTION 10.1. Payment of Principal, Premium and Interest.



     The Company covenants and agrees for the benefit of the Holders of the Securities that it will
duly and punctually pay the principal of and any premium and interest (including any Additional
Interest) on the Securities in accordance with the terms of the Securities and this Indenture.



     SECTION 10.2. Money for Security Payments to be Held in Trust.



     (a) If the Company shall at any time act as its own Paying Agent with respect to the
Securities, it will, on or before each due date of the principal of and any premium or interest
(including any Additional Interest) on the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal and any premium or interest
(including Additional Interest) so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee in writing of its
failure so to act.



     (b) Whenever the Company shall have one or more Paying Agents, it will, prior to 10:00 a.m.,
New York City time, on each due date of the principal of or any premium or interest (including any
Additional Interest) on any Securities, deposit with a Paying Agent a sum



47









 







sufficient to pay such amount, such sum to be held as provided in the Trust Indenture Act and
(unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
failure so to act.



     (c) The Company will cause each Paying Agent for the Securities other than the Trustee or the
Company to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section 10.2, that such Paying Agent
will (i) comply with the provisions of this Indenture and the Trust Indenture Act applicable to it
as a Paying Agent and (ii) during the continuance of any default by the Company (or any other
obligor upon the Securities) in the making of any payment in respect of the Securities, upon the
written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Securities.



     (d) The Company may at any time, for the purpose of obtaining the satisfaction and discharge
of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be
held by the Trustee upon the same terms as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such money.



     (e) Any money deposited with the Trustee or any Paying Agent, or then held by the Company in
trust for the payment of the principal of and any premium or interest (including any Additional
Interest) on any Security and remaining unclaimed for two years after such principal and any
premium or interest has become due and payable shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law) be paid on Company Request
to the Company, or (if then held by the Company) shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law) be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of general circulation in
the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than thirty (30) days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid to the Company.



     SECTION 10.3. Statement as to Compliance.



     The Company shall deliver to the Trustee, within one hundred and twenty (120) days after the
end of each fiscal year of the Company ending after the date hereof, an Officers’ Certificate
(substantially in the form attached hereto as Exhibit C) covering the preceding fiscal
year, stating whether or not to the knowledge of the signers thereof the Company is in default in
the performance or observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided hereunder), and if the



48









 







Company shall be in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.



     SECTION 10.4. Calculation Agent.



     (a) The Company hereby agrees that for so long as any of the Securities remain Outstanding
after the Interest Payment Date in January, 2012, there will at all times be an agent appointed to
calculate LIBOR in respect of each Interest Payment Date in accordance with the terms of
Schedule A (the “Calculation Agent”). The Company has initially appointed the Property
Trustee as Calculation Agent for purposes of determining LIBOR for each Interest Payment Date. The
Calculation Agent may be removed by the Company at any time. Except as described in the
immediately preceding sentence, so long as the Property Trustee holds any of the Securities, the
Calculation Agent shall be the Property Trustee. If the Calculation Agent is unable or unwilling
to act as such or is removed by the Company, the Company will promptly appoint as a replacement
Calculation Agent the London office of a leading bank which is engaged in transactions in
Eurodollar deposits in the international Eurodollar market and which does not control or is not
controlled by or under common control with the Company or its Affiliates. The Calculation Agent
may not resign its duties without a successor having been duly appointed.



     (b) The Calculation Agent shall be required to agree that, as soon as possible after 11:00
a.m. (London time) on each LIBOR Determination Date (as defined in Schedule A), but in no
event later than 11:00 a.m. (London time) on the Business Day immediately following each LIBOR
Determination Date, the Calculation Agent will calculate the interest rate and dollar amount
(rounded to the nearest cent, with half a cent being rounded upwards) for the related Interest
Payment Date, and will communicate such rate and amount to the Company, the Trustee, each Paying
Agent and the Depositary. The Calculation Agent will also specify to the Company the quotations
upon which the foregoing rates and amounts are based and, in any event, the Calculation Agent shall
notify the Company before 5:00 p.m. (London time) on each LIBOR Determination Date that either:
(i) it has determined or is in the process of determining the foregoing rates and amounts or (ii)
it has not determined and is not in the process of determining the foregoing rates and amounts,
together with its reasons therefor. The Calculation Agent’s determination of the foregoing rates
and amounts for any Interest Payment Date will (in the absence of manifest error) be final and
binding upon all parties. For the sole purpose of calculating the interest rate for the
Securities, “Business Day” shall be defined as any day on which dealings in deposits in Dollars are
transacted in the London interbank market.



     SECTION 10.5. Additional Tax Sums.



     If (a) the Trust is the Holder of all of the Outstanding Securities and (b) a Tax Event
described in clause (i) or (iii) in the definition of Tax Event in Section 1.1 hereof has
occurred and is continuing, the Company shall pay to the Trust (and its permitted successors or
assigns under the related Trust Agreement) for so long as the Trust (or its permitted successor or
assignee) is the registered holder of the Outstanding Securities, such amounts as may be necessary
in order that the amount of Distributions (including any Additional Interest Amount (as defined in
the Trust Agreement)) then due and payable by the Trust on the Preferred Securities and Common
Securities that at any time remain outstanding in accordance with the



49









 







terms thereof shall not be reduced as a result of any Additional Taxes arising from such Tax
Event (additional such amounts payable by the Company to the Trust, the “Additional Tax Sums”).
Whenever in this Indenture or the Securities there is a reference in any context to the payment of
principal of or interest on the Securities, such mention shall be deemed to include mention of the
payments of the Additional Tax Sums provided for in this Section 10.5 to the extent that,
in such context, Additional Tax Sums are, were or would be payable in respect thereof pursuant to
the provisions of this Section 10.5 and express mention of the payment of Additional Tax
Sums (if applicable) in any provisions hereof shall not be construed as excluding Additional Tax
Sums in those provisions hereof where such express mention is not made; provided, that the deferral
of the payment of interest pursuant to Section 3.9 on the Securities shall not defer the
payment of any Additional Tax Sums that may be due and payable.



     SECTION 10.6. Additional Covenants.



     (a) The Company covenants and agrees with each Holder of Securities that if an Event of
Default shall have occurred and be continuing or the Company shall have given notice of its
election to begin an Extension Period with respect to the Securities and shall not have rescinded
such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not
(i) declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company’s Equity Interests, (ii) vote in favor of
or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or
otherwise retire, any of such Subsidiary’s Equity Interests entitling the holders thereof to a
stated rate of return, other than dividends or distributions on Equity Interests issued by any
Subsidiary solely payable to the Company or any Subsidiary thereof (for the avoidance of doubt,
whether such Equity Interests are perpetual or otherwise), or (iii) make any payment of principal
of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company
that rank pari passu in all respects with or junior in interest to the Securities (other than (A)
repurchases, redemptions or other acquisitions of Equity Interests of the Company in connection
with any employment contract, benefit plan or other similar arrangement with or for the benefit of
any one or more employees, officers, directors or consultants, in connection with a dividend
reinvestment or stockholder stock purchase or similar plan with respect to any Equity Interests or
in connection with the issuance of Equity Interests of the Company (or securities convertible into
or exercisable for such Equity Interests) as consideration in an acquisition transaction entered
into prior to the applicable Event of Default or Extension Period, (B) as a result of an exchange
or conversion of any class or series of the Company’s Equity Interests (or any Equity Interests of
a Subsidiary of the Company) for any class or series of the Company’s Equity Interests or of any
class or series of the Company’s indebtedness for any class or series of the Company’s Equity
Interests, (C) the purchase of fractional interests in Equity Interests of the Company pursuant to
the conversion or exchange provisions of such Equity Interests or the security being converted or
exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of
rights, Equity Interests or other property under any Rights Plan or the redemption or repurchase of
rights pursuant thereto, or (E) any dividend in the form of Equity Interests, warrants, options or
other rights where the dividend Equity Interests or the Equity Interests issuable upon exercise of
such warrants, options or other rights are the same Equity Interests as those on which the dividend
is being paid or rank pari passu with or junior to such Equity Interests).



50









 





     (b) The Company also covenants with each Holder of Securities (i) to hold, directly or
indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any
permitted successor of the Company hereunder may succeed to the Company’s ownership of such Common
Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or
liquidate the Trust other than (A) in connection with a distribution of the Securities to the
holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain
mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its
reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to
cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United
States Federal income tax purposes.



     SECTION 10.7. Waiver of Covenants.



     The Company may omit in any particular instance to comply with any covenant or condition
contained in Section 10.6 if, before or after the time for such compliance, the Holders of
at least a majority in aggregate principal amount of the Outstanding Securities shall, by Act of
such Holders, and at least a majority of the aggregate Liquidation Amount of the Preferred
Securities then outstanding, by consent of such holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company in respect of any such covenant
or condition shall remain in full force and effect.



     SECTION 10.8. Treatment of Securities.



     The Company will treat the Securities as indebtedness, and the amounts (other than payments of
principal) payable in respect of the principal amount of such Securities as interest, for all U.S.
federal income tax purposes. All payments in respect of the Securities will be made free and clear
of U.S. withholding tax to any beneficial owner thereof that has provided an Internal Revenue
Service Form W-9 or W-8BEN (or any substitute or successor form) establishing its U.S. or non-U.S.
status for U.S. federal income tax purposes.



ARTICLE XI




Redemption of Securities




     SECTION 11.1. Optional Redemption.



     The Company may, at its option, on any Interest Payment Date, on or after January 30, 2012,
redeem the Securities in whole at any time or in part from time to time, at a Redemption Price
equal to one hundred percent (100%) of the principal amount thereof (or of the redeemed portion
thereof, as applicable), together, in the case of any such redemption, with accrued interest,
including any Additional Interest, to but excluding the date fixed for redemption; provided, that
the Company shall have received the prior approval of the Federal Reserve with respect to such
redemption if then required.



51









 





     SECTION 11.2. Special Event Redemption.



     Upon the occurrence and during the continuation of a Special Event, the Company may, at its
option, redeem the Securities, in whole but not in part, at a redemption price equal to one hundred
three and one half (103.50%) percent of the principal amount thereof, if the redemption occurs
prior to January 30, 2008, and thereafter at a redemption price equal to the percentage of the
principal amount of the Securities that is specified below, together, in the case of any such
redemption, with accrued interest, including any Additional Interest, to but excluding the date
fixed for redemption (the “Special Event Redemption Price”):



	 	 	 
	Special Event Redemption During	 	 
	the 12-Month Period Beginning January 30,	 	Percentage of Principal Amount
	2008
	 	102.80%
	2009
	 	102.10%
	2010
	 	101.40%
	2011
	 	100.70%
	2012 and thereafter
	 	100.00%






     ; provided, that the Company shall have received the prior approval of the Federal Reserve
with respect to such redemption if then required.



     SECTION 11.3. Election to Redeem; Notice to Trustee.



     The election of the Company to redeem any Securities, in whole or in part, shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election of the Company,
the Company shall, not less than thirty (30) days and not more than sixty (60) days prior to the
Redemption Date (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee
and the Property Trustee under the Trust Agreement in writing of such date and of the principal
amount of the Securities to be redeemed and provide the additional information required to be
included in the notice or notices contemplated by Section 11.5. In the case of any
redemption of Securities, in whole or in part, (a) prior to the expiration of any restriction on
such redemption provided in this Indenture or the Securities or (b) pursuant to an election of the
Company which is subject to a condition specified in this Indenture or the Securities, the Company
shall furnish the Trustee with an Officers’ Certificate and an Opinion of Counsel evidencing
compliance with such restriction or condition.



     SECTION 11.4. Selection of Securities to be Redeemed.



     (a) If less than all the Securities are to be redeemed, the particular Securities to be
redeemed shall be selected and redeemed on a pro rata basis not more than sixty (60) days prior to
the Redemption Date by the Trustee from the Outstanding Securities not previously called for
redemption, provided, that the unredeemed portion of the principal amount of any Security shall be
in an authorized denomination (which shall not be less than the minimum authorized denomination)
for such Security.



52









 





     (b) The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the case of any Security
redeemed or to be redeemed only in part, to the portion of the principal amount of such Security
that has been or is to be redeemed.



     (c) The provisions of paragraphs (a) and (b) of this Section 11.4 shall not apply with
respect to any redemption affecting only a single Security, whether such Security is to be redeemed
in whole or in part. In the case of any such redemption in part, the unredeemed portion of the
principal amount of the Security shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Security.



     SECTION 11.5. Notice of Redemption.



     (a) Notice of redemption shall be given not later than the thirtieth (30th) day, and not
earlier than the sixtieth (60th) day, prior to the Redemption Date to each Holder of Securities to
be redeemed, in whole or in part (unless a shorter notice shall be satisfactory to the Property
Trustee under the related Trust Agreement).



     (b) With respect to Securities to be redeemed, in whole or in part, each notice of redemption
shall state:




     (i) the Redemption Date;




     (ii) the Redemption Price or, if the Redemption Price cannot be calculated prior to the
time the notice is required to be sent, the estimate of the Redemption Price, as calculated
by the Company, together with a statement that it is an estimate and that the actual
Redemption Price will be calculated on the fifth Business Day prior to the Redemption Date
(and if an estimate is provided, a further notice shall be sent of the actual Redemption
Price on the date that such Redemption Price is calculated);




     (iii) if less than all Outstanding Securities are to be redeemed, the identification
(and, in the case of partial redemption, the respective principal amounts) of the particular
Securities to be redeemed;




     (iv) that on the Redemption Date, the Redemption Price will become due and payable upon
each such Security or portion thereof, and that any interest (including any Additional
Interest) on such Security or such portion, as the case may be, shall cease to accrue on and
after said date; and




     (v) the place or places where such Securities are to be surrendered for payment of the
Redemption Price.



     (c) Notice of redemption of Securities to be redeemed, in whole or in part, at the election of
the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name
and at the expense of the Company and shall be irrevocable. The notice if mailed in the manner
provided above shall be conclusively presumed to have been duly given,



53









 







whether or not the Holder receives such notice. In any case, a failure to give such notice by
mail or any defect in the notice to the Holder of any Security designated for redemption as a whole
or in part shall not affect the validity of the proceedings for the redemption of any other
Security.



     SECTION 11.6. Deposit of Redemption Price.



     Prior to 10:00 a.m., New York City time, on the Redemption Date specified in the notice of
redemption given as provided in Section 11.5, the Company will deposit with the Trustee or
with one or more Paying Agents (or if the Company is acting as its own Paying Agent, the Company
will segregate and hold in trust as provided in Section 10.2) an amount of money sufficient
to pay the Redemption Price of, and any accrued interest (including any Additional Interest) on,
all the Securities (or portions thereof) that are to be redeemed on that date.



     SECTION 11.7. Payment of Securities Called for Redemption.



     (a) If any notice of redemption has been given as provided in Section 11.5, the
Securities or portion of Securities with respect to which such notice has been given shall become
due and payable on the date and at the place or places stated in such notice at the applicable
Redemption Price, together with accrued interest (including any Additional Interest) to the
Redemption Date. On presentation and surrender of such Securities at a Place of Payment specified
in such notice, the Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable Redemption Price, together with accrued interest (including any
Additional Interest) to the Redemption Date.



     (b) Upon presentation of any Security redeemed in part only, the Company shall execute and
upon receipt thereof the Trustee shall authenticate and deliver to the Holder thereof, at the
expense of the Company, a new Security or Securities, of authorized denominations, in aggregate
principal amount equal to the unredeemed portion of the Security so presented and having the same
Original Issue Date, Stated Maturity and terms.



     (c) If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal of and any premium on such Security shall, until paid, bear interest from
the Redemption Date at the rate prescribed therefor in the Security.



ARTICLE XII




Subordination of Securities




     SECTION 12.1. Securities Subordinate to Senior Debt.



     The Company covenants and agrees, and each Holder of a Security, by its acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this
Article XII, the payment of the principal of and any premium and interest (including any
Additional Interest) on each and all of the Securities are hereby expressly made subordinate and
subject in right of payment to the prior payment in full of all Senior Debt.



54









 





     SECTION 12.2. No Payment When Senior Debt in Default; Payment Over of Proceeds Upon
Dissolution, Etc.



     (a) In the event and during the continuation of any default by the Company in the payment of
any principal of or any premium or interest on any Senior Debt (following any grace period, if
applicable) when the same becomes due and payable, whether at maturity or at a date fixed for
prepayment or by declaration of acceleration or otherwise, then, upon written notice of such
default to the Company by the holders of such Senior Debt or any trustee therefor, unless and until
such default shall have been cured or waived or shall have ceased to exist, no direct or indirect
payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made
on account of the principal of or any premium or interest (including any Additional Interest) on
any of the Securities, or in respect of any redemption, repayment, retirement, purchase or other
acquisition of any of the Securities.



     (b) In the event of a bankruptcy, insolvency or other proceeding described in clause (e) or
(f) of the definition of Event of Default (each such event, if any, herein sometimes referred to as
a “Proceeding”), all Senior Debt (including any interest thereon accruing after the commencement of
any such proceedings) shall first be paid in full before any payment or distribution, whether in
cash, securities or other property, shall be made to any Holder of any of the Securities on account
thereof. Any payment or distribution, whether in cash, securities or other property (other than
securities of the Company or any other entity provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness evidenced by the Securities, to the
payment of all Senior Debt at the time outstanding and to any securities issued in respect thereof
under any such plan of reorganization or readjustment), which would otherwise (but for these
subordination provisions) be payable or deliverable in respect of the Securities shall be paid or
delivered directly to the holders of Senior Debt in accordance with the priorities then existing
among such holders until all Senior Debt (including any interest thereon accruing after the
commencement of any Proceeding) shall have been paid in full.



     (c) In the event of any Proceeding, after payment in full of all sums owing with respect to
Senior Debt, the Holders of the Securities, together with the holders of any obligations of the
Company ranking on a parity with the Securities, shall be entitled to be paid from the remaining
assets of the Company the amounts at the time due and owing on account of unpaid principal of and
premium, if any, and interest (including any Additional Interest) on the Securities and such other
obligations before any payment or other distribution, whether in cash, property or otherwise, shall
be made on account of any Equity Interests or any obligations of the Company ranking junior to the
Securities and such other obligations. If, notwithstanding the foregoing, any payment or
distribution of any character or any security, whether in cash, securities or other property (other
than securities of the Company or any other entity provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness evidenced by the Securities, to the
payment of all Senior Debt at the time outstanding and to any securities issued in respect thereof
under any such plan of reorganization or readjustment) shall be received by the Trustee or any
Holder in contravention of any of the terms hereof and before all Senior Debt shall have been paid
in full, such payment or distribution or security shall be received in trust for the benefit of,
and shall be paid over or delivered and transferred to, the holders of the



55









 







Senior Debt at the time outstanding in accordance with the priorities then existing among such
holders for application to the payment of all Senior Debt remaining unpaid, to the extent necessary
to pay all such Senior Debt (including any interest thereon accruing after the commencement of any
Proceeding) in full. In the event of the failure of the Trustee or any Holder to endorse or assign
any such payment, distribution or security, each holder of Senior Debt is hereby irrevocably
authorized to endorse or assign the same.



     (d) The Trustee and the Holders, at the expense of the Company, shall take such reasonable
action (including the delivery of this Indenture to an agent for any holders of Senior Debt or
consent to the filing of a financing statement with respect hereto) as may, in the opinion of
counsel designated by the holders of a majority in principal amount of the Senior Debt at the time
outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected
by these provisions.



     (e) The provisions of this Section 12.2 shall not impair any rights, interests,
remedies or powers of any secured creditor of the Company in respect of any security interest the
creation of which is not prohibited by the provisions of this Indenture.



     (f) The securing of any obligations of the Company, otherwise ranking on a parity with the
Securities or ranking junior to the Securities, shall not be deemed to prevent such obligations
from constituting, respectively, obligations ranking on a parity with the Securities or ranking
junior to the Securities.



     SECTION 12.3. Payment Permitted If No Default.



     Nothing contained in this Article XII or elsewhere in this Indenture or in any of the
Securities shall prevent (a) the Company, at any time, except during the pendency of the conditions
described in paragraph (a) of Section 12.2 or of any Proceeding referred to in Section
12.2, from making payments at any time of principal of and any premium or interest (including
any Additional Interest) on the Securities or (b) the application by the Trustee of any moneys
deposited with it hereunder to the payment of or on account of the principal of and any premium or
interest (including any Additional Interest) on the Securities or the retention of such payment by
the Holders, if, at the time of such application by the Trustee, it did not have knowledge (in
accordance with Section 12.8) that such payment would have been prohibited by the
provisions of this Article XII, except as provided in Section 12.8.



     SECTION 12.4. Subrogation to Rights of Holders of Senior Debt.



     Subject to the payment in full of all amounts due or to become due on all Senior Debt, or the
provision for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, the Holders of the Securities shall be subrogated to the extent of the
payments or distributions made to the holders of such Senior Debt pursuant to the provisions of
this Article XII (equally and ratably with the holders of all indebtedness of the Company
that by its express terms is subordinated to Senior Debt of the Company to substantially the same
extent as the Securities are subordinated to the Senior Debt and is entitled to like rights of
subrogation by reason of any payments or distributions made to holders of such Senior Debt) to the
rights of the holders of such Senior Debt to receive payments and distributions of cash,



56









 







property and securities applicable to the Senior Debt until the principal of and any premium
and interest (including any Additional Interest) on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the Senior Debt of any
cash, property or securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article XII, and no payments made pursuant to
the provisions of this Article XII to the holders of Senior Debt by Holders of the
Securities or the Trustee, shall, as among the Company, its creditors other than holders of Senior
Debt, and the Holders of the Securities, be deemed to be a payment or distribution by the Company
to or on account of the Senior Debt.



     SECTION 12.5. Provisions Solely to Define Relative Rights.



     The provisions of this Article XII are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand and the holders of
Senior Debt on the other hand. Nothing contained in this Article XII or elsewhere in this
Indenture or in the Securities is intended to or shall (a) impair, as between the Company and the
Holders of the Securities, the obligations of the Company, which are absolute and unconditional, to
pay to the Holders of the Securities the principal of and any premium and interest (including any
Additional Interest) on the Securities as and when the same shall become due and payable in
accordance with their terms, (b) affect the relative rights against the Company of the Holders of
the Securities and creditors of the Company other than their rights in relation to the holders of
Senior Debt or (c) prevent the Trustee or the Holder of any Security (or to the extent expressly
provided herein, the holder of any Preferred Security) from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, including filing and voting claims
in any Proceeding, subject to the rights, if any, under this Article XII of the holders of
Senior Debt to receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder.



     SECTION 12.6. Trustee to Effectuate Subordination.



     Each Holder of a Security by his or her acceptance thereof 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 provided in this Article XII and appoints the Trustee his or
her attorney-in-fact for any and all such purposes.



     SECTION 12.7. No Waiver of Subordination Provisions.



     (a) No right of any present or future holder of any Senior Debt 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 be otherwise charged with.



     (b) Without in any way limiting the generality of paragraph (a) of this Section 12.7,
the holders of Senior Debt may, at any time and from to time, without the consent of or notice to
the Trustee or the Holders of the Securities, without incurring responsibility to such Holders of



57









 







the Securities and without impairing or releasing the subordination provided in this
Article XII or the obligations hereunder of such Holders of the Securities to the holders
of Senior Debt, 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, Senior Debt, or otherwise amend or
supplement in any manner Senior Debt or any instrument evidencing the same or any agreement under
which Senior Debt is outstanding, (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt, (iii) release any Person liable in any manner
for the payment of Senior Debt and (iv) exercise or refrain from exercising any rights against the
Company and any other Person.



     SECTION 12.8. Notice to Trustee.



     (a) The Company shall give prompt written notice to a Responsible Officer of the Trustee of
any fact known to the Company that would prohibit the making of any payment to or by the Trustee in
respect of the Securities. Notwithstanding the provisions of this Article XII 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 to or by the Trustee in respect of the
Securities, unless and until a Responsible Officer of the Trustee shall have received written
notice thereof from the Company or a holder of Senior Debt or from any trustee, agent or
representative therefor; provided, that if the Trustee shall not have received the notice provided
for in this Section 12.8 at least two Business Days prior to the date upon which by the
terms hereof any monies may become payable for any purpose (including, the payment of the principal
of and any premium on or interest (including any Additional Interest) on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such monies and to apply the same to the purpose for which they were received
and shall not be affected by any notice to the contrary that may be received by it within two
Business Days prior to such date.



     (b) The Trustee shall be entitled to rely on the delivery to it of a written notice by a
Person representing himself or herself to be a holder of Senior Debt (or a trustee, agent,
representative or attorney-in-fact therefor) to establish that such notice has been given by a
holder of Senior Debt (or a trustee, agent, representative or attorney-in-fact therefor). 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 Senior Debt to participate in any payment or distribution
pursuant to this Article XII, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior Debt 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 XII, 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 12.9. Reliance on Judicial Order or Certificate of Liquidating Agent.



     Upon any payment or distribution of assets of the Company referred to in this Article
XII, the Trustee and the Holders of the Securities shall be entitled to conclusively rely upon
any order or decree entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian,
assignee for the



58









 







benefit of creditors, agent or other Person making such payment or distribution, delivered to
the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior Debt 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 XII.



     SECTION 12.10. Trustee Not Fiduciary for Holders of Senior Debt.



     The Trustee, in its capacity as trustee under this Indenture, shall not owe or be deemed to
owe any fiduciary duty to the holders of Senior Debt and shall not be liable to any such holders if
it shall in good faith mistakenly pay over or distribute to Holders of Securities or to the Company
or to any other Person cash, property or securities to which any holders of Senior Debt shall be
entitled by virtue of this Article XII or otherwise.



     SECTION 12.11. Rights of Trustee as Holder of Senior Debt; Preservation of Trustee’s Rights.



     The Trustee in its individual capacity shall be entitled to all the rights set forth in this
Article XII with respect to any Senior Debt that may at any time be held by it, to the same
extent as any other holder of Senior Debt, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder. With respect to the holders of Senior Debt of the Company, the
Trustee undertakes to perform only such of its obligations as are specifically set forth in this
Article XII, and no implied covenants or obligations with respect to the holders of such Senior
Debt shall be read into this Indenture against the Trustee. Nothing in this Article XII shall
apply to claims of, or payments to, the Trustee under or pursuant to Section 6.6.



     SECTION 12.12. Article Applicable to Paying Agents.



     If at any time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term “Trustee” as used in this Article XII shall
in such case (unless the context otherwise requires) be construed as extending to and including
such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article XII in addition to or in place of the Trustee; provided, that
Sections 12.8 and 12.11 shall not apply to the Company or any Affiliate of
the Company if the Company or such Affiliate acts as Paying Agent.



     This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument. Delivery of an executed signature page of this Indenture by facsimile
transmission shall be effective as delivery of a manually executed counterpart hereof.



* * * *




59









 





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



	 	 	 	 	 	 	 
	 	 	MIDDLEFIELD BANC CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	WILMINGTON TRUST COMPANY, not in its individual

capacity, but solely as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 







60









 





Schedule A




DETERMINATION OF LIBOR




     With respect to the Securities, the London interbank offered rate (“LIBOR”) shall be
determined by the Calculation Agent in accordance with the following provisions (in each case
rounded to the nearest .000001%):


(1) On the second LIBOR Business Day (as defined below) prior to an Interest Payment Date (each
such day, a “LIBOR Determination Date”), LIBOR for any given security shall, for the following
interest payment period, equal the rate, as obtained by the Calculation Agent from Bloomberg
Financial Markets Commodities News, for three-month U.S. Dollar deposits in Europe, which appears
on Dow Jones Telerate Page 3750 (as defined in the International Swaps and Derivatives Association,
Inc. 1991 Interest Rate and Currency Exchange Definitions), or such other page as may replace such
Page 3750, as of 11:00 a.m. (London time) on such LIBOR Determination Date.



(2) If, on any LIBOR Determination Date, such rate does not appear on Dow Jones Telerate Page 3750
or such other page as may replace such Page 3750, the Calculation Agent shall determine the
arithmetic mean of the offered quotations of the Reference Banks (as defined below) to leading
banks in the London interbank market for three-month U.S. Dollar deposits in Europe in an amount
determined by the Calculation Agent by reference to requests for quotations as of approximately
11:00 a.m. (London time) on the LIBOR Determination Date made by the Calculation Agent to the
Reference Banks. If, on any LIBOR Determination Date, at least two of the Reference Banks provide
such quotations, LIBOR shall equal such arithmetic mean of such quotations. If, on any LIBOR
Determination Date, only one or none of the Reference Banks provide such quotations, LIBOR shall be
deemed to be the arithmetic mean of the offered quotations that leading banks in the City of New
York selected by the Calculation Agent are quoting on the relevant LIBOR Determination Date for
three-month U.S. Dollar deposits in Europe in an amount determined by the Calculation Agent by
reference to the principal London offices of leading banks in the London interbank market; provided
that, if the Calculation Agent is required but is unable to determine a rate in accordance with at
least one of the procedures provided above, LIBOR shall be LIBOR as determined on the previous
LIBOR Determination Date.



(3) As used herein: “Reference Banks” means four major banks in the London interbank market
selected by the Calculation Agent; and “LIBOR Business Day” means a day on which commercial banks
are open for business (including dealings in foreign exchange and foreign currency deposits) in
London.




Schedule A-1





 









 








Exhibit A




[FORM OF JUNIOR SUBORDINATED NOTE DUE 2037]




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



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



     THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND SUCH
SECURITIES, AND ANY INTEREST THEREIN, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF ANY
SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OF THE SECURITIES MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES
ACT.



     THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) SUCH SECURITIES MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY (I) TO THE
COMPANY, (II) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, OR (III) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH
(a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR
ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF AN “ACCREDITED INVESTOR,” WITHIN THE MEANING OF SUBPARAGRAPH
(a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, 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, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND, IN THE CASE OF (III),
SUBJECT TO THE RIGHT OF THE COMPANY TO REQUIRE AN OPINION OF COUNSEL ADDRESSING COMPLIANCE WITH THE
U.S. SECURITIES LAWS, AND OTHER INFORMATION SATISFACTORY TO IT AND (B) THE HOLDER WILL NOTIFY ANY
PURCHASER OF ANY SECURITIES FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.




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



     THE HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF ALSO
AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT PLAN, INDIVIDUAL RETIREMENT
ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE “CODE”) (EACH A “PLAN”), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON
OF ANY PLAN’S INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY
ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE
FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER SECTION 408(b)(17) OF ERISA, 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, OR ANY INTEREST THEREIN, ARE NOT PROHIBITED
BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE AND 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 OR OTHER PLAN
TO WHICH TITLE I OF ERISA OR SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON
ACTING ON BEHALF OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE
“PLAN ASSETS” OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH
PURCHASE OR HOLDING WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR
SECTION 4975 OF



 









 




THE CODE FOR WHICH FULL EXEMPTIVE RELIEF IS NOT AVAILABLE UNDER AN APPLICABLE
STATUTORY OR ADMINISTRATIVE EXEMPTION.




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



 









 





Exhibit A




Middlefield Banc Corp.



Junior Subordinated Note due 2037




			
	 	 	 
	No.                     
	 	$                    






     Middlefield Banc Corp., a corporation organized and existing under the laws of Ohio
(hereinafter called the “Company,” which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay
to                                          (the
“Holder”), or registered assigns, the principal sum of
$                     DOLLARS [if the Security is a
Global Security, then insert— or such other principal amount represented hereby as may be set forth
in the records of the Securities Registrar hereinafter referred to in accordance with the
Indenture] on January 30, 2037. The Company further promises to pay interest on said principal sum
from December 21, 2006, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, quarterly (subject to deferral as set forth herein) in arrears on
January 30th, April 30th, July 30th and October 30th of each year, commencing on January 30, 2007,
or if any such day is not a Business Day, on the next succeeding Business Day (and no interest
shall accrue in respect of the amounts whose payment is so delayed for the period from and after
such Interest Payment Date until such next succeeding Business Day), except that, if such Business
Day falls in the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case, with the same force and effect as if made on the Interest
Payment Date, at a fixed rate per annum equal to 6.58% through the Interest Payment Date in
January, 2012, and a variable rate per annum, reset quarterly, equal to LIBOR plus 1.67%
thereafter, together with Additional Tax Sums, if any, as provided in Section 10.5 of the
Indenture, until the principal hereof is paid or duly provided for or made available for payment;
provided, that any overdue principal, premium, if any, or Additional Tax Sums and any overdue
installment of interest shall bear Additional Interest (to the extent that the payment of such
interest shall be legally enforceable) at a fixed rate per annum equal to 6.58% through the
Interest Payment Date in January, 2012, and a variable rate per annum, reset quarterly, equal to
LIBOR plus 1.67% thereafter, compounded quarterly, from the dates such amounts are due until they
are paid or made available for payment, and such interest shall be payable on demand.



     The amount of interest payable for any interest period shall be computed and paid on the basis
of a 360-day year and the actual number of days elapsed in the relevant interest period. The
interest so payable, and punctually paid or duly provided for, on any Interest Payment Date shall,
as provided in the Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular Record Date for such
interest installment. Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to
the Person in whose name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Securities not less than ten (10) days
prior to such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange or automated quotation system on
which the Securities may be listed, traded or quoted and upon such notice as may be required by
such exchange or automated quotation system, all as more fully provided in the Indenture.



 









 





     So long as no Event of Default pursuant to Sections 5.1(c), (e), (f),
(g) or (h) of the Indenture has occurred and is continuing, the Company shall have
the right, at any time and from time to time during the term of this Security, to defer the payment
of interest on this Security for a period of up to twenty (20) consecutive quarterly interest
payment periods (each such period, an “Extension Period”), during which Extension Period(s), no
interest shall be due and payable (except any Additional Tax Sums that may be due and payable). No
Extension Period shall end on a date other than an Interest Payment Date, and no Extension Period
shall extend beyond the Stated Maturity of the principal of this Security. No interest shall be
due and payable during an Extension Period (except any Additional Tax Sums that may be due and
payable), 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
payment of such interest would be legally enforceable) at a fixed rate per annum equal to 6.58%
through the Interest Payment Date in January, 2012, and a variable rate per annum, reset quarterly,
equal to LIBOR plus 1.67% thereafter, compounded quarterly, from the dates on which amounts would
have otherwise been due and payable until paid or made available for payment. At the end of any
such Extension Period, the Company shall pay all interest then accrued and unpaid on this Security,
together with such Additional Interest. Prior to the termination of any such Extension Period, the
Company may further defer the payment of interest; provided, that (i) all such previous and further
extensions comprising such Extension Period do not exceed twenty (20) quarterly interest payment
periods, (ii) no Extension Period shall end on a date other than an Interest Payment Date and (iii)
no Extension Period shall extend beyond the Stated Maturity of the principal of this Security.
Upon the termination of any such Extension Period and upon the payment of all accrued and unpaid
interest and any Additional Interest then due on any Interest Payment Date, the Company may elect
to begin a new Extension Period; provided, that (i) such Extension Period does not exceed twenty
(20) quarterly interest payment periods, (ii) no Extension Period shall end on a date other than an
Interest Payment Date, (iii) no Extension Period shall extend beyond the Stated Maturity of the
principal of this Security and (iv) no Event of Default pursuant to Sections 5.1(c),
(e), (f), (g) or (h) has occurred and is continuing. The Company
shall give (i) the Holder of this Security, (ii) the Trustee, (iii) the Property Trustee and (iv)
any beneficial owner of the Preferred Securities reasonably identified to the Company (which
identification may be made either by such beneficial owner or by the Purchaser) written notice of
its election to begin any such Extension Period no later than the close of business on the
fifteenth (15th) Business Day prior to the next succeeding Interest Payment Date on
which interest on this Security would be payable but for such deferral.



     During any such Extension Period, the Company shall not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any
of the Company’s Equity Interests, (ii) vote in favor of or permit or otherwise allow any of its
Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or
make a liquidation payment with respect to or otherwise retire, any of such Subsidiary’s Equity
Interests entitling the holders thereof to a stated rate of return, other than dividends or
distributions on Equity Interests issued by any Subsidiary solely payable to the Company or any
Subsidiary thereof (for the avoidance of doubt, whether such Equity Interests are perpetual or
otherwise), or (iii) make any payment of principal of or any interest or premium on or repay,
repurchase or redeem any debt securities of the Company that rank pari passu in all respects with
or junior in interest to this Security (other than (a) repurchases, redemptions or other
acquisitions of Equity Interests of the Company in connection with (1) any employment



 









 




contract,
benefit plan or other similar arrangement with or for the benefit of any one or more
employees, officers, directors or consultants, (2) a dividend reinvestment or stockholder
stock purchase or similar plan with respect to any Equity Interests or (3) the issuance of Equity
Interests of the Company (or securities convertible into or exercisable for such Equity Interests)
as consideration in an acquisition transaction entered into prior to the applicable Extension
Period, (b) as a result of an exchange or conversion of any class or series of the Company’s Equity
Interests (or any Equity Interests of a Subsidiary of the Company) for any class or series of the
Company’s Equity Interests or of any class or series of the Company’s indebtedness for any class or
series of the Company’s Equity Interests, (c) the purchase of fractional interests in Equity
Interests of the Company pursuant to the conversion or exchange provisions of such Equity Interests
or the security being converted or exchanged, (d) any declaration of a dividend in connection with
any Rights Plan, the issuance of rights, Equity Interests or other property under any Rights Plan,
or the redemption or repurchase of rights pursuant thereto or (e) any dividend in the form of
Equity Interests, warrants, options or other rights where the dividend Equity Interests or the
Equity Interests issuable upon exercise of such warrants, options or other rights are the same
Equity Interests as those on which the dividend is being paid or rank pari passu with or junior to
such Equity Interests).




     Payment of principal of, premium, if any, and interest on this Security shall be made in such
coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts. Payments of principal, premium, if any, and interest due at
the Maturity of this Security shall be made at the office or agency of the Company maintained for
that purpose in the Place of Payment upon surrender of such Securities to the Paying Agent, and
payments of interest shall be made, subject to such surrender where applicable, by wire transfer at
such place and to such account at a banking institution in the United States as may be designated
in writing to the Paying Agent at least ten (10) Business Days prior to the date for payment by the
Person entitled thereto unless proper written wire transfer instructions have not been received by
the relevant record date, in which case such payments shall be made by check mailed to the address
of such Person as such address shall appear in the Security Register. Notwithstanding the
foregoing, so long as the Holder of this Security is the Property Trustee, the payment of the
principal of (and premium, if any) and interest (including any overdue installment of interest and
Additional Tax Sums, if any) on this Security will be made at such place and to such account as may
be designated by the Property Trustee.



     The indebtedness evidenced by this Security is, to the extent provided in the Indenture,
subordinate and junior in right of payment to the prior payment in full of all Senior Debt, and
this Security is issued subject to the provisions of the Indenture with respect thereto. Each
Holder of this Security, 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 actions as may
be necessary or appropriate to 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, waives all notice of the acceptance of the subordination provisions
contained herein and in the Indenture by each holder of Senior Debt, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said provisions.



 









 





     Unless the certificate of authentication hereon has been executed by the Trustee by manual
signature, this Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.



 









 





     IN
WITNESS WHEREOF, the Company has duly executed this certificate this ___ day of
                                        ,
2006.



	 	 	 	 	 	 	 
	 	 	MIDDLEFIELD BANC CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






     This represents Securities referred to in the within-mentioned Indenture.



Dated:




	 	 	 	 	 	 	 
	 	 	WILMINGTON TRUST COMPANY, not in its	 	 
	 	 	individual capacity but solely as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Authorized Officer	 	 






 









 




Exhibit
A


[FORM OF REVERSE OF SECURITY]




     This Security is one of a duly authorized issue of securities of the Company (the
“Securities”) issued under the Junior Subordinated Indenture, dated as of December 21, 2006 (the
“Indenture”), between the Company and Wilmington Trust Company, as Trustee (in such capacity, the
“Trustee,” which term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee, the
holders of Senior Debt and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered.



     All terms used in this Security that are defined in the Indenture or in the Amended and
Restated Trust Agreement, dated as of December 21, 2006 (as modified, amended or supplemented from
time to time, the “Trust Agreement”), relating to Middlefield Statutory Trust I (the “Trust”),
among the Company, as Depositor, the trustees named therein and the holders from time to time of
the Trust Securities issued pursuant thereto, shall have the meanings assigned to them in the
Indenture or the Trust Agreement, as the case may be.



     The Company may, on any Interest Payment Date, at its option, upon not less than thirty (30)
days’ nor more than sixty (60) days’ written notice to the Holders of the Securities (unless a
shorter notice period shall be satisfactory to the Trustee) on or after January 30, 2012 and
subject to the terms and conditions of Article XI of the Indenture, redeem this Security in
whole at any time or in part from time to time at a Redemption Price equal to one hundred percent
(100%) of the principal amount hereof, together, in the case of any such redemption, with accrued
interest, including any Additional Interest, to but excluding the date fixed for redemption;
provided, that the Company shall have received the prior approval of the Federal Reserve if then
required.



     In addition, upon the occurrence and during the continuation of a Special Event, the Company
may, at its option, upon not less than thirty (30) days’ nor more than sixty (60) days’ written
notice to the Holders of the Securities (unless a shorter notice period shall be satisfactory to
the Trustee), redeem this Security, in whole but not in part, subject to the terms and conditions
of Article XI of the Indenture at the Special Event Redemption Price; provided, that the
Company shall have received the prior approval of the Federal Reserve if then required.



     In the event of redemption of this Security in part only, a new Security or Securities for the
unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation
hereof. If less than all the Securities are to be redeemed, the particular Securities to be
redeemed shall be selected not more than sixty (60) days prior to the Redemption Date by the
Trustee from the Outstanding Securities not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security.



     The Indenture permits, with certain exceptions as therein provided, the Company and the
Trustee at any time to enter into a supplemental indenture or indentures for the purpose of
modifying in any manner the rights and obligations of the Company and of the Holders of the
Securities, with the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities. The Indenture also contains provisions permitting Holders of specified



 









 




percentages in principal amount of the Securities, on behalf of the Holders of all Securities, to
waive compliance by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver by the Holder
of this Security shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this
Security.




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



     As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Securities Register, upon surrender of this
Security for registration of transfer at the office or agency of the Company maintained for such
purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory
to the Company and the Securities Registrar and duly executed by, the Holder hereof or such
Holder’s attorney duly authorized in writing, and thereupon one or more new Securities, of like
tenor, of authorized denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.



     The Securities are issuable only in registered form without coupons in minimum denominations
of $100,000 and any integral multiple of $1,000 in excess thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities are exchangeable for a like aggregate
principal amount of Securities and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.



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



     The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.



     The Company and, by its acceptance of this Security or a beneficial interest herein, the
Holder of, and any Person that acquires a beneficial interest in, this Security agree that, for
United States federal, state and local tax purposes, it is intended that this Security constitute
indebtedness.



     This Security shall be construed and enforced in accordance with and governed by the laws of
the State of New York, without reference to its conflict of laws provisions (other than Section
5-1401 of the General Obligations Law).



 









 





Exhibit B




Form of Financial Officer’s Certificate




     The undersigned, the [Chief Financial Officer] [Treasurer] [Assistant Treasurer] hereby
certifies, pursuant to Section 7.3(b) of the Junior Subordinated Indenture, dated as of December
21, 2006, between Middlefield Banc Corp. (the “Company”) and Wilmington Trust Company, as trustee,
that, as of                     , 20___, the Company had the following ratios and balances:



BANK HOLDING COMPANY

As of [Quarterly Financial Dates]




	 	 	 	 	 
	Tier 1 Risk Weighted Assets
	 	 	   	%
	 
	 	 	 
	Ratio of Double Leverage
	 	 	   	%
	 
	 	 	 
	Non-Performing Assets to Loans and OREO
	 	 	   	%
	 
	 	 	 
	Tangible Common Equity as a Percentage of Tangible Assets
	 	 	   	%
	 
	 	 	 
	Ratio of Reserves to Non-Performing Loans
	 	 	   	%
	 
	 	 	 
	Ratio of Net Charge-Offs to Loans
	 	 	   	%
	 
	 	 	 
	Return on Average Assets (annualized)
	 	 	   	%
	Net Interest Margin (annualized)
	 	 	   	%
	 
	 	 	 
	Efficiency Ratio
	 	 	   	%
	 
	 	 	 
	Ratio of Loans to Assets
	 	 	   	%
	 
	 	 	 
	Ratio of Loans to Deposits
	 	 	   	%
	 
	 	 	 
	Double Leverage (exclude trust preferred as equity)
	 	 	   	%
	 
	 	 	 
	Total Assets
	 	$	   	 
	 
	 	 	 
	Year to Date Income
	 	$	   	 
	 
	 	 	 







 




			
	*	 	A table describing the quarterly report calculation procedures is attached.




[FOR FISCAL YEAR END: Attached hereto are the audited consolidated financial statements
(including the balance sheet, income statement and statement of cash flows, and notes thereto,
together with the report of the independent accountants thereon) of the Company and its
consolidated subsidiaries for the three years ended                     , 20___.]




[FOR FISCAL QUARTER END: Attached hereto are the unaudited consolidated and consolidating financial
statements (including the balance sheet and income statement) of the Company and its consolidated
subsidiaries for the fiscal quarter and [six/nine] month
period ended                     , 20___.]



The financial statements fairly present in all material respects, in accordance with U.S. generally
accepted accounting principles (“GAAP”), the financial position of the Company and its consolidated
subsidiaries, and the results of operations and changes in financial condition as of the date, and
for the [___ quarter interim] [annual]
period ended                     , 20___, and such



 









 




financial statements have been prepared in accordance with GAAP consistently applied throughout the
period involved (except as otherwise noted therein).




     IN WITNESS WHEREOF, the undersigned has executed this Financial Officer’s Certificate as of
this
                    
day of
                                        , 20___



	 	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	 

	 	Middlefield Banc Corp.	 	 
	 

	 	15985 East High Street	 	 
	 

	 	P. O. Box 35	 	 
	 

	 	Middlefield, Ohio 44062	 	 
	 

	 	(440) 632-1666	 	 






 









 






Financial Definitions




	 	 	 	 	 
	 	 	Corresponding FRY-9C or LP Line Items with Line	 	 
	Report Item	 	Item corresponding Schedules	 	Description of Calculation
	Tier 1 Risk 

Weighted Assets

	 	BHCK7206

Schedule HC-R
	 	Tier 1 Risk Ratio: Core Capital

(Tier 1)/ Risk-Adjusted Assets
	 
	 	 	 	 
	Ratio of Double Leverage

	 	(BHCP0365)/(BCHCP3210) 

Schedule PC in the LP
	 	Total equity investments in
subsidiaries divided by the total
equity capital. This field is
calculated at the parent company
level. “Subsidiaries” include bank,
bank holding company, and non-bank
subsidiaries.
	 
	 	 	 	 
	Non-Performing Assets to Loans and OREO

	 	(BHCK5525-BHCK3506+BHCK5526-BHCK3507+BHCK2744/
(BHCK2122+BHCK2744)
 Schedules HC-C, HC-M & HC-N
	 	Total Nonperforming Assets

(NPLs+Foreclosed Real Estate+Other

Nonaccrual & Repossessed

Assets)/Total Loans+Foreclosed Real

Estate
	 
	 	 	 	 
	Tangible Common Equity as a Percentage of Tangible Assets

	 	(BHDM3210-BHCK3163)/(BHCK2170-BHCK3163) 

Schedule HC
	 	(Equity Capital – Goodwill)/(Total

Assets – Goodwill)
	 
	 	 	 	 
	Ratio of Reserves to Non-Performing Loans

	 	(BHCK3123+BHCK3128)/(BHCK5525-BHCK3506+BHCK5526

-BHCK3507)

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

	 	(BHCK4635-BHCK4605)/(BHCK3516)

Schedules HI-B & HC-K
	 	Net charge offs for the period as a
percentage of average loans.
	 
	 	 	 	 
	Return on Average Assets (annualized)

	 	(BHCK4340/BHCK3368)

Schedules HI & HC-K
	 	Net Income as a percentage of Assets.
	 
	 	 	 	 
	Net Interest Margin (annualized)

	 	(BHCK4519/(BHCK3515+BHCK3365+BHCK3516+BHCK3401+
BHCKB985)

Schedules HI Memorandum and HC-K
	 	(Net Interest Income Fully Taxable

Equivalent, if available/Average

Earning Assets)
	 
	 	 	 	 
	Efficiency Ratio

	 	(BHCK4093)/(BHCK4519+BHCK4079) 

Schedule HI
	 	(Non-interest Expense)/(Net Interest

Income Fully Taxable Equivalent, if

available, plus Non-interest Income)
	 
	 	 	 	 
	Ratio of Loans to Assets

	 	(BHCKB528+BHCK5369)/(BHCK2170) 

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

	 	(BHCKB528+BHCK5369)/(BHDM6631+BHDM6636+BHFN6631
+BHFN6636) 

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





 









 






	 	 	 	 	 
	 	 	Corresponding FRY-9C or LP Line Items with Line	 	 
	Report Item	 	Item corresponding Schedules	 	Description of Calculation
	Total Assets

	 	(BHCK2170) 

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

	 	(BHCK4300) 

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







 









 








FORM OF

OFFICERS’ CERTIFICATE

UNDER

SECTION 10.3




     Pursuant to Section 10.3 of the Junior Subordinated Indenture, dated as of December 21, 2006
(as amended or supplemented from time to time, the “Indenture”), between Middlefield Banc Corp., as
issuer (the “Company”), and Wilmington Trust Company, as trustee, each of the undersigned hereby
certifies that, to the knowledge of the undersigned, the Company is not in default in the
performance or observance of any of the terms, provisions or conditions contained in the Indenture
(without regard to any period of grace or requirement of notice provided under the Indenture), for
the fiscal year ending on
                    ,
20___ [, except as follows: specify each such default and the
nature and status thereof].



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



     IN WITNESS WHEREOF, the undersigned have executed this Officers’ Certificate as of
                    ,
20___.



	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:
	 	[Must be the Chairman of the Board,	 	 
	 

	 	 	 	a Vice Chairman of the Board, the	 	 
	 

	 	 	 	Chief Executive Officer, the	 	 
	 

	 	 	 	President, or a Vice President] of	 	 
	 

	 	 	 	Middlefield Banc Corp.	 	 
	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:
	 	[Must be the Chief Financial Officer,	 	 
	 

	 	 	 	the Treasurer, an Assistant Treasurer,	 	 
	 

	 	 	 	the Secretary or an Assistant	 	 
	 

	 	 	 	Secretary] of Middlefield Banc Corp.