Exhibit 4.1


 




 





 


JUNIOR SUBORDINATED INDENTURE


 


 


between


 


 


REPUBLIC BANCORP, INC.


 


 


and


 


 


WILMINGTON TRUST COMPANY,

as Trustee


 


 










 


Dated as of August 16, 2005


 












 


 





 





















 


TABLE OF
CONTENTS


 


	
  ARTICLE I

  	
   

  
	
  Definitions and Other
  Provisions of General Application

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.1.

  	
  Definitions

  	
   

  
	
  SECTION 1.2.

  	
  Compliance
  Certificate and Opinions

  	
   

  
	
  SECTION 1.3.

  	
  Forms of
  Documents Delivered to Trustee

  	
   

  
	
  SECTION 1.4.

  	
  Acts of Holders

  	
   

  
	
  SECTION 1.5.

  	
  Notices, Etc. to Trustee and
  Company

  	
   

  
	
  SECTION 1.6.

  	
  Notice to
  Holders; Waiver

  	
   

  
	
  SECTION 1.7.

  	
  Effect of
  Headings and Table of Contents

  	
   

  
	
  SECTION 1.8.

  	
  Successors and
  Assigns

  	
   

  
	
  SECTION 1.9.

  	
  Separability Clause

  	
   

  
	
  SECTION 1.10.

  	
  Benefits of
  Indenture

  	
   

  
	
  SECTION 1.11.

  	
  Governing Law

  	
   

  
	
  SECTION 1.12.

  	
  Submission to
  Jurisdiction

  	
   

  
	
  SECTION 1.13.

  	
  Non-Business Days

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
  Security Forms

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.1.

  	
  Form of Security

  	
   

  
	
  SECTION 2.2.

  	
  Restricted
  Legend

  	
   

  
	
  SECTION 2.3.

  	
  Form of Trustee’s
  Certificate of Authentication

  	
   

  
	
  SECTION 2.4.

  	
  Temporary Securities

  	
   

  
	
  SECTION 2.5.

  	
  Definitive Securities

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
  The Securities

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.1.

  	
  Payment of Principal
  and Interest

  	
   

  
	
  SECTION 3.2.

  	
  Denominations

  	
   

  
	
  SECTION 3.3.

  	
  Execution,
  Authentication, Delivery and Dating

  	
   

  
	
  SECTION 3.4.

  	
  Global Securities

  	
   

  
	
  SECTION 3.5.

  	
  Registration, Transfer
  and Exchange Generally

  	
   

  
	
  SECTION 3.6.

  	
  Mutilated, Destroyed,
  Lost and Stolen Securities

  	
   

  
	
  SECTION 3.7.

  	
  Persons Deemed Owners

  	
   

  
	
  SECTION 3.8.

  	
  Cancellation

  	
   

  
	
  SECTION 3.9.

  	
  Deferrals of Interest
  Payment Dates

  	
   

  
	
  SECTION 3.10.

  	
  Right of Set-Off

  	
   

  
	
  SECTION 3.11.

  	
  Agreed Tax Treatment

  	
   

  
	
  SECTION 3.12.

  	
  CUSIP Numbers

  	
   

  



 


i





















 


	
  ARTICLE IV

  	
   

  
	
  Satisfaction
  and Discharge

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.1.

  	
  Satisfaction and
  Discharge of Indenture

  	
   

  
	
  SECTION 4.2.

  	
  Application of Trust
  Money

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  
	
  Remedies

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.1.

  	
  Events of Default

  	
   

  
	
  SECTION 5.2.

  	
  Acceleration of
  Maturity; Rescission and Annulment

  	
   

  
	
  SECTION 5.3.

  	
  Collection of
  Indebtedness and Suits for Enforcement by Trustee

  	
   

  
	
  SECTION 5.4.

  	
  Trustee May File
  Proofs of Claim

  	
   

  
	
  SECTION 5.5.

  	
  Trustee May Enforce
  Claim Without Possession of Securities

  	
   

  
	
  SECTION 5.6.

  	
  Application of Money
  Collected

  	
   

  
	
  SECTION 5.7.

  	
  Limitation on Suits

  	
   

  
	
  SECTION 5.8.

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

  	
   

  
	
  SECTION 5.9.

  	
  Restoration of Rights
  and Remedies

  	
   

  
	
  SECTION 5.10.

  	
  Rights and Remedies
  Cumulative

  	
   

  
	
  SECTION 5.11.

  	
  Delay or Omission Not
  Waiver

  	
   

  
	
  SECTION 5.12.

  	
  Control by Holders

  	
   

  
	
  SECTION 5.13.

  	
  Waiver of Past
  Defaults

  	
   

  
	
  SECTION 5.14.

  	
  Undertaking for Costs

  	
   

  
	
  SECTION 5.15.

  	
  Waiver of Usury, Stay
  or Extension Laws

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  
	
  The Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.1.

  	
  Corporate Trustee
  Required

  	
   

  
	
  SECTION 6.2.

  	
  Certain Duties and
  Responsibilities

  	
   

  
	
  SECTION 6.3.

  	
  Notice of Defaults

  	
   

  
	
  SECTION 6.4.

  	
  Certain Rights of
  Trustee

  	
   

  
	
  SECTION 6.5.

  	
  May Hold
  Securities

  	
   

  
	
  SECTION 6.6.

  	
  Compensation;
  Reimbursement; Indemnity

  	
   

  
	
  SECTION 6.7.

  	
  Resignation and
  Removal; Appointment of Successor

  	
   

  
	
  SECTION 6.8.

  	
  Acceptance of
  Appointment by Successor

  	
   

  
	
  SECTION 6.9.

  	
  Merger, Conversion,
  Consolidation or Succession to Business

  	
   

  
	
  SECTION 6.10.

  	
  Not Responsible for
  Recitals or Issuance of Securities

  	
   

  
	
  SECTION 6.11.

  	
  Appointment of
  Authenticating Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  
	
  Holder’s Lists and Reports by
  Trustee and Company

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.1.

  	
  Company to Furnish
  Trustee Names and Addresses of Holders

  	
   

  
	
  SECTION 7.2.

  	
  Preservation of
  Information, Communications to Holders

  	
   

  
	
  SECTION 7.3.

  	
  Reports
  by Company

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  
	
  Consolidation,
  Merger, Conveyance, Transfer or Lease

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.1.

  	
  Company May Consolidate, Etc.,
  Only on Certain Terms

  	
   

  



 


ii





















 


	
  SECTION 8.2.

  	
  Successor Company Substituted

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
   

  
	
  Supplemental
  Indentures

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.1.

  	
  Supplemental Indentures without
  Consent of Holders

  	
   

  
	
  SECTION 9.2.

  	
  Supplemental Indentures with
  Consent of Holders

  	
   

  
	
  SECTION 9.3.

  	
  Execution of Supplemental Indentures

  	
   

  
	
  SECTION 9.4.

  	
  Effect of Supplemental Indentures

  	
   

  
	
  SECTION 9.5.

  	
  Reference in Securities to
  Supplemental Indentures

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
   

  
	
  Covenants

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.1.

  	
  Payment of Principal, Premium and
  Interest

  	
   

  
	
  SECTION 10.2.

  	
  Money for Security Payments to be
  Held in Trust

  	
   

  
	
  SECTION 10.3.

  	
  Statement as to Compliance

  	
   

  
	
  SECTION 10.4.

  	
  Calculation Agent

  	
   

  
	
  SECTION 10.5.

  	
  Additional Tax
  Sums

  	
   

  
	
  SECTION 10.6.

  	
  Additional
  Covenants

  	
   

  
	
  SECTION 10.7.

  	
  Waiver of
  Covenants

  	
   

  
	
  SECTION 10.8.

  	
  Treatment
  of Securities

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
   

  
	
  Redemption
  of Securities

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.1.

  	
  Optional
  Redemption

  	
   

  
	
  SECTION 11.2.

  	
  Special
  Event Redemption

  	
   

  
	
  SECTION 11.3.

  	
  Election
  to Redeem; Notice to Trustee

  	
   

  
	
  SECTION 11.4.

  	
  Selection
  of Securities to be Redeemed

  	
   

  
	
  SECTION 11.5.

  	
  Notice of
  Redemption

  	
   

  
	
  SECTION 11.6.

  	
  Deposit
  of Redemption Price

  	
   

  
	
  SECTION 11.7.

  	
  Payment
  of Securities Called for Redemption

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
   

  
	
  Subordination
  of Securities

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 12.1.

  	
  Securities
  Subordinate to Senior Debt

  	
   

  
	
  SECTION 12.2.

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

  	
   

  
	
  SECTION 12.3.

  	
  Payment
  Permitted If No Default

  	
   

  
	
  SECTION 12.4.

  	
  Subrogation
  to Rights of Holders of Senior Debt

  	
   

  
	
  SECTION 12.5.

  	
  Provisions
  Solely to Define Relative Rights

  	
   

  
	
  SECTION 12.6.

  	
  Trustee
  to Effectuate Subordination

  	
   

  
	
  SECTION 12.7.

  	
  No
  Waiver of Subordination Provisions

  	
   

  
	
  SECTION 12.8.

  	
  Notice to
  Trustee

  	
   

  
	
  SECTION 12.9.

  	
  Reliance
  on Judicial Order or Certificate of Liquidating Agent

  	
   

  
	
  SECTION 12.10.

  	
  Trustee
  Not Fiduciary for Holders of Senior Debt

  	
   

  



 


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  SECTION 12.11.

  	
  Rights
  of Trustee as Holder of Senior Debt; Preservation of Trustee’s Rights

  	
   

  
	
  SECTION 12.12.

  	
  Article Applicable
  to Paying Agents

  	
   

  



 


SCHEDULES


 


	
  Schedule A

  	
  Determination
  of LIBOR

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of
  Officer’s Certificate

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit B

  	
  Form of
  Officer’s Certificate pursuant to Section 10.3

  	
   

  



 


iv





















 


Exhibit A


 


JUNIOR SUBORDINATED INDENTURE, dated as of August 16,
2005, between REPUBLIC BANCORP, INC., a Kentucky 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 Republic Bancorp Capital
Trust, 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;


 


A-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.


 


“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.


 


“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 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).


 


“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 or regulation (including any announced
prospective change) or a change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority, there is more than 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.


 


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


 


“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.


 


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 March 30th, June 30th, September 30th
and December 30th of each year, commencing on September 30,
2005, during the term of this Indenture.


 


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


 


5





















 


“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 (i) is a
depository institution and (ii) meets the definition of “significant
subsidiary” within the meaning of Regulation S-X promulgated by the Securities
and Exchange Commission.


 


 “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.


 


“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


 


6





















 


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, 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.


 


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


 


“Placement Agent”
has the meaning specified in the Trust Agreement.


 


“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.


 


7





















 


“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.


 


“Purchaser”
means Credit Suisse First Boston, acting through its Cayman Islands branch, as
purchaser of the Preferred Securities pursuant to the Subscription 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 Trust Officer
or Assistant Trust 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 Common Stock of rights entitling the holders thereof to
subscribe for or purchase shares of any class or series of capital stock of the
Company which rights (i) are deemed to be transferred with such shares of
such Common Stock and (ii) are also issued in respect of future issuances
of such Common Stock, 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.


 


8





















 


“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 Indenture.


 


“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 September 30, 2035.


 


“Subscription
Agreement” means the Preferred Securities Subscription Agreement,
dated as of August 16, 2005, by and among the Company, the Trust, the
Purchaser and Credit Suisse First Boston LLC (as to certain provisions
thereof).


 


“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 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


 


9





















 


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 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.


 


(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;


 


10





















 


(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 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.


 


11





















 


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 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


 


12





















 


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:


 


(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,


 


13





















 


(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 601 West Market
Street, Louisville, Kentucky 40202, Attn: Chief Financial Officer, or at any
other address previously furnished in writing to the Trustee by the Company,


 


(c)           the
Placement Agent 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
Placement Agent at Eleven Madison Avenue, New York, New York 10010, Attention:
CDO Group, or any other address previously furnished by the Placement Agent, or


 


(d)           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 c/o Credit Suisse First Boston LLC, Eleven
Madison Avenue, New York, New York 10010, Attention: CDO Group, 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


 


14





















 


which
the assignee agrees in writing to perform the Company’s obligations hereunder,
the Company shall not assign its obligations hereunder.


 


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


 


15





















 


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.


 


ARTICLE II


 


Security Forms


 


SECTION 2.1.  Form of Security.


 


Any Security issued hereunder shall be in
substantially the following form:


 


REPUBLIC BANCORP, INC.


 


Junior Subordinated Note due 2035


 


	
  No.

  	
  $

  



 


Republic Bancorp, Inc., a corporation organized
and existing under the laws of Kentucky (hereinafter called the “Company,” which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to                             ,
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 September 30,
2035.  The Company further promises to
pay interest on said principal sum from [                  ,
200   ], 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 March 30th, June 30th,
September 30th and December 30th of each year,
commencing on [                 ,
200   ], 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 6.015% through the Interest Payment Date in September, 2015, and a variable
rate per annum, reset quarterly, equal to LIBOR plus 1.42% 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 6.015% through the Interest Payment Date in September, 2015,
and a variable rate per annum, reset quarterly, equal to LIBOR plus 1.42%
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 shall be computed on
the basis of a 360-day year and the actual number of days elapsed in the
relevant interest period. The amount of interest payable for any full interest
period shall be computed by dividing the applicable rate per annum by four. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date shall,


 


16





















 


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 on which the Securities may be listed, and upon such
notice as may be required by such exchange, 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 6.015% through the
Interest Payment Date in September, 2015, and a variable rate per annum, reset
quarterly, equal to LIBOR plus 1.42% 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 Placement Agent or 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.


 


17





















 


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 capital stock or (ii) 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 shares of capital stock 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 plan or (3) the issuance of capital stock of the Company (or
securities convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to the
applicable Extension Period, (b) as a result of an exchange or conversion
of any class or series of the Company’s capital stock (or any capital stock of
a Subsidiary of the Company) for any class or series of the Company’s capital
stock or of any class or series of the Company’s indebtedness for any class or
series of the Company’s capital stock, (c) the purchase of fractional
interests in shares of the Company’s capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted or
exchanged, (d) any declaration of a dividend in connection with any Rights
Plan, the issuance of rights, stock or other property under any Rights Plan, or
the redemption or repurchase of rights pursuant thereto or (e) any
dividend in the form of stock, warrants, options or other rights where the
dividend stock or the stock issuable upon exercise of such warrants, options or
other rights is the same stock as that on which the dividend is being paid or
ranks pari passu with or junior
to such stock).


 


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 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


 


18





















 


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.


 


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 August 16,
2005 (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 August 16,
2005 (as modified, amended or supplemented from time to time, the “Trust Agreement”), relating to Republic
Bancorp Capital Trust (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 September 30, 2015, 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.


 


19





















 


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.


 


20





















 


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).


 


IN
WITNESS WHEREOF, the Company has caused this instrument to be duly executed.


 


	
   

  	
  REPUBLIC
  BANCORP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


 


SECTION 2.2.  Restricted Legend.


 


(a)                                  Any
Security issued hereunder shall bear a legend in substantially the following
form:


 


“[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


 


21





















 


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, (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, 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, (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR (V) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER 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) OR (V), 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


 


22





















 


RETIREMENT
ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE “CODE”)
(EACH A “PLAN”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S
INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY
ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR
HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF
LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14
OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY,
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 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 (THE “FDIC”).”


 


(b)                                 The
above legends 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
following form:


 


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


 


Dated:


 


23





















 


	
   

  	
  WILMINGTON
  TRUST COMPANY, not in its

  individual capacity but solely  as
  Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized officer

  	
   

  



 


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.


 


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 6.015% through the Interest Payment Date in September, 2015,
and a variable rate per annum, reset quarterly, equal to LIBOR plus 1.42%
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


 


24





















 


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 6.015% through
the Interest Payment Date in September, 2015, and a variable rate per annum,
reset quarterly, equal to LIBOR plus 1.42% thereafter, 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 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


 


25





















 


(ii)                                  The
Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Securities may be listed and, upon such notice as may be required by such
exchange (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. Interest payments for the Securities
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 amount of interest payable for any full
interest period shall be computed by dividing the applicable rate per annum by
four.


 


(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 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 $41,240,000
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


 


26





















 


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 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


 


27





















 


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 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.


 


28





















 


(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 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.


 


29





















 


(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 to (i) 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 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


 


30





















 


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.


 


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


 


31





















 


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 6.015% through
the Interest Payment Date in September, 2015, and a variable rate per annum,
reset quarterly, equal to LIBOR plus 1.42% 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 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 Placement Agent or 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.


 


32





















 


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 Securities (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.


 


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


 


33





















 


(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


 


(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.


 


34





















 


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) 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


 


35





















 


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.


 


(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 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,


 


36





















 


(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:


 


(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


 


37





















 


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 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


 


38





















 


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


 


(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


 


39





















 


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.


 


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,


 


40





















 


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.


 


(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,


 


41





















 


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 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.


 


42





















 


(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;


 


(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.


 


43





















 


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 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,


 


44





















 


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;


 


(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 (d) or (e) 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


 


45





















 


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 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


 


46





















 


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 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


 


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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 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 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


 


48





















 


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.


 


(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:


 


49





















 


	
   

  	
  WILMINGTON
  TRUST COMPANY, not in its

  individual capacity, but solely as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Authenticating Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  



 


 


ARTICLE VII


 


Holder’s 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


 


(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.


 


50





















 


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, reports on Form FR Y-9C, FR Y-9LP and FR
Y-6 promptly following their filing with the Federal Reserve.


 


(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 Placement Agent or 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 A,
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), and deliver to (i) the Purchaser, (ii) the Placement
Agent and (iii) a designee of (i) or (ii) above, 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;


 


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(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 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 


 


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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.


 


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


 


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(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 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.


 


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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 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
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 


 


55





















 


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 B)
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 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, 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 (rounded to the nearest cent, with half a cent
being rounded upwards) for the related Interest Payment Date, and 


 


56





















 


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.


 


So long as no
Event of Default has occurred and is continuing, 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 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 shares of the Company’s capital stock,
or (ii) 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 shares of capital stock of the Company in connection with any employment
contract, benefit plan or other 


 


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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 plan or in connection with the issuance of capital
stock of the Company (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered into
prior to the applicable Event of Default or Extension Period, (B) as a
result of an exchange or conversion of any class or series of the Company’s
capital stock (or any capital stock of a Subsidiary of the Company) for any
class or series of the Company’s capital stock or of any class or series of the
Company’s indebtedness for any class or series of the Company’s capital stock, (C) the
purchase of fractional interests in shares of the Company’s capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (D) any declaration of a dividend
in connection with any Rights Plan, the issuance of rights, stock or other
property under any Rights Plan or the redemption or repurchase of rights
pursuant thereto, or (E) any dividend in the form of stock, warrants,
options or other rights where the dividend stock or the stock issuable upon
exercise of such warrants, options or other rights is the same stock as that on
which the dividend is being paid or ranks pari passu with
or junior to such stock).


 


(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 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 


 


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Form W-8BEN
(or any substitute or successor form) establishing its 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 September 30,
2015, 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.


 


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 (100%) percent of the principal amount thereof, 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”); 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 forty five (45) days and not more than seventy five (75)
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 


 


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be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.


 


(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.


 


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(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, 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 


 


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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.


 


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 (d) or
(e) 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 any premium 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 capital stock 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 


 


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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 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


 


63





















 


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, 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.


 


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(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 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.


 


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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 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.


 


* * * *


 


66





















 


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


 


	
   

  	
  REPUBLIC BANCORP, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin Sipes

  	
   

  
	
   

  	
   

  	
  Kevin Sipes

  
	
   

  	
   

  	
  Executive
  Vice President and Chief

  
	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WILMINGTON
  Trust Company,

  
	
   

  	
  not in its individual capacity, but solely as

  
	
   

  	
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ W.T.
  Morris, II

  	
   

  
	
   

  	
   

  	
  Name:

  	
  W. Thomas
  Morris, II

  
	
   

  	
   

  	
  Title:

  	
  Senior
  Financial Services Officer

  
						



 





















 


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.


 


1





















 


Exhibit A


 


Officer’s
Certificate


 


The
undersigned, the [Chief Financial Officer] [Treasurer] [Executive Vice
President] hereby certifies, pursuant to Section 7.3(b) of the Junior
Subordinated Indenture, dated as of August 16, 2005, among Republic
Bancorp, Inc. (the “Company”) and Wilmington Trust Company, as
trustee,  that, as of [date], [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] ended [date], 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 [date], 20   , and such
financial 


 


1





















 


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


 


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


 


 


	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  REPUBLIC
  BANCORP, INC.

  
	
   

  	
  601 West
  Market Street

  
	
   

  	
  Louisville,
  Kentucky 40202

  
	
   

  	
  (502) 560-8628

  



 


2





















 


Financial Definitions


 


	
  Report Item

  	
   

  	
  Corresponding FRY-9C or LP Line
  Items with Line

  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+BHDM6

  636+BHFN6631+BHFN6636)

  

  Schedule HC

  	
   

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

  



 





















 


	
  Report Item

  	
   

  	
  Corresponding FRY-9C or LP Line
  Items with Line

  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.

  



 


2





















 


Exhibit B


 


FORM OF


OFFICERS’ CERTIFICATE


UNDER


SECTION 10.3


 


Pursuant to Section 10.3 of the
Indenture, dated as of August 16, 2005 (as amended or supplemented from
time to time, the “Indenture”), between Republic Bancorp, Inc., 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

  
	
   

  	
   

  	
  Republic Bancorp, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
  [Must be the Chief
  Financial Officer,

  
	
   

  	
   

  	
  the Treasurer, an Assistant Treasurer,

  
	
   

  	
   

  	
  the Secretary or an Assistant

  
	
   

  	
   

  	
  Secretary] of Republic Bancorp, Inc.