Exhibit 4.1




 





 


 


NSB HOLDINGS, INC.,


as Issuer


 


 


INDENTURE


 


Dated as of April 28, 2005


 


 


WILMINGTON TRUST COMPANY,


as Trustee


 


 


FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST
DEBENTURES


 


DUE 2035




 





 





















 


TABLE OF CONTENTS


 


	
  ARTICLE I. DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 1.1.

  	
  Definitions.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II. DEBENTURES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 2.1.

  	
  Authentication
  and Dating.

  	
   

  
	
   

  	
  Section 2.2.

  	
  Form of
  Trustee’s Certificate of Authentication.

  	
   

  
	
   

  	
  Section 2.3.

  	
  Form and
  Denomination of Debentures.

  	
   

  
	
   

  	
  Section 2.4.

  	
  Execution
  of Debentures.

  	
   

  
	
   

  	
  Section 2.5.

  	
  Exchange
  and Registration of Transfer of Debentures.

  	
   

  
	
   

  	
  Section 2.6.

  	
  Mutilated,
  Destroyed, Lost or Stolen Debentures.

  	
   

  
	
   

  	
  Section 2.7.

  	
  Temporary
  Debentures.

  	
   

  
	
   

  	
  Section 2.8.

  	
  Payment of
  Interest and Additional Interest.

  	
   

  
	
   

  	
  Section 2.9.

  	
  Cancellation
  of Debentures Paid, etc.

  	
   

  
	
   

  	
  Section 2.10.

  	
  Computation
  of Interest.

  	
   

  
	
   

  	
  Section 2.11.

  	
  Extension
  of Interest Payment Period.

  	
   

  
	
   

  	
  Section 2.12.

  	
  CUSIP
  Numbers.

  	
   

  
	
   

  	
  Section 2.13.

  	
  Global
  Debentures.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III.
  PARTICULAR COVENANTS OF THE COMPANY

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.1.

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

  	
   

  
	
   

  	
  Section 3.2.

  	
  Offices
  for Notices and Payments, etc.

  	
   

  
	
   

  	
  Section 3.3.

  	
  Appointments
  to Fill Vacancies in Trustee’s Office.

  	
   

  
	
   

  	
  Section 3.4.

  	
  Provision
  as to Paying Agent.

  	
   

  
	
   

  	
  Section 3.5.

  	
  Certificate
  to Trustee.

  	
   

  
	
   

  	
  Section 3.6.

  	
  Additional
  Sums.

  	
   

  
	
   

  	
  Section 3.7.

  	
  Compliance
  with Consolidation Provisions.

  	
   

  
	
   

  	
  Section 3.8.

  	
  Limitation
  on Dividends.

  	
   

  
	
   

  	
  Section 3.9.

  	
  Covenants
  as to the Trust.

  	
   

  
	
   

  	
  Section 3.10.

  	
  Additional
  Junior Indebtedness.

  	
   

  
	
   

  	
   

  	
   

  	
   

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

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.1.

  	
  Securityholders’
  Lists.

  	
   

  
	
   

  	
  Section 4.2.

  	
  Preservation
  and Disclosure of Lists.

  	
   

  
	
   

  	
   

  	
   

  	
   

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

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 5.1.

  	
  Events
  of Default.

  	
   

  
	
   

  	
  Section 5.2.

  	
  Payment
  of Debentures on Default; Suit Therefor.

  	
   

  
	
   

  	
  Section 5.3.

  	
  Application
  of Moneys Collected by Trustee.

  	
   

  
	
   

  	
  Section 5.4.

  	
  Proceedings
  by Securityholders.

  	
   

  
	
   

  	
  Section 5.5.

  	
  Proceedings
  by Trustee.

  	
   

  
	
   

  	
  Section 5.6.

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

  	
   

  



 


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  Section 5.7.

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

  	
   

  
	
   

  	
  Section 5.8.

  	
  Notice
  of Defaults.

  	
   

  
	
   

  	
  Section 5.9.

  	
  Undertaking
  to Pay Costs.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI.
  CONCERNING THE TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.1.

  	
  Duties
  and Responsibilities of Trustee.

  	
   

  
	
   

  	
  Section 6.2.

  	
  Reliance
  on Documents, Opinions, etc.

  	
   

  
	
   

  	
  Section 6.3.

  	
  No
  Responsibility for Recitals, etc.

  	
   

  
	
   

  	
  Section 6.4.

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

  	
   

  
	
   

  	
  Section 6.5.

  	
  Moneys
  to be Held in Trust.

  	
   

  
	
   

  	
  Section 6.6.

  	
  Compensation
  and Expenses of Trustee.

  	
   

  
	
   

  	
  Section 6.7.

  	
  Officers’
  Certificate as Evidence.

  	
   

  
	
   

  	
  Section 6.8.

  	
  Eligibility
  of Trustee.

  	
   

  
	
   

  	
  Section 6.9.

  	
  Resignation
  or Removal of Trustee

  	
   

  
	
   

  	
  Section 6.10.

  	
  Acceptance by Successor Trustee.

  	
   

  
	
   

  	
  Section 6.11.

  	
  Succession
  by Merger, etc.

  	
   

  
	
   

  	
  Section 6.12.

  	
  Authenticating Agents.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII.
  CONCERNING THE SECURITYHOLDERS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.1.

  	
  Action
  by Securityholders.

  	
   

  
	
   

  	
  Section 7.2.

  	
  Proof
  of Execution by Securityholders.

  	
   

  
	
   

  	
  Section 7.3.

  	
  Who
  Are Deemed Absolute Owners.

  	
   

  
	
   

  	
  Section 7.4.

  	
  Debentures
  Owned by Company Deemed Not Outstanding.

  	
   

  
	
   

  	
  Section 7.5.

  	
  Revocation
  of Consents; Future Holders Bound.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII.
  SECURITYHOLDERS’ MEETINGS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.1.

  	
  Purposes
  of Meetings.

  	
   

  
	
   

  	
  Section 8.2.

  	
  Call
  of Meetings by Trustee.

  	
   

  
	
   

  	
  Section 8.3.

  	
  Call
  of Meetings by Company or Securityholders.

  	
   

  
	
   

  	
  Section 8.4.

  	
  Qualifications
  for Voting.

  	
   

  
	
   

  	
  Section 8.5.

  	
  Regulations.

  	
   

  
	
   

  	
  Section 8.6.

  	
  Voting.

  	
   

  
	
   

  	
  Section 8.7.

  	
  Quorum;
  Actions.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX.
  SUPPLEMENTAL INDENTURES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.1.

  	
  Supplemental
  Indentures without Consent of Securityholders.

  	
   

  
	
   

  	
  Section 9.2.

  	
  Supplemental
  Indentures with Consent of Securityholders.

  	
   

  
	
   

  	
  Section 9.3.

  	
  Effect
  of Supplemental Indentures.

  	
   

  
	
   

  	
  Section 9.4.

  	
  Notation
  on Debentures.

  	
   

  
	
   

  	
  Section 9.5.

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

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X.
  REDEMPTION OF SECURITIES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 10.1.

  	
  Optional
  Redemption.

  	
   

  
	
   

  	
  Section 10.2.

  	
  Special
  Event Redemption.

  	
   

  
	
   

  	
  Section 10.3.

  	
  Notice
  of Redemption; Selection of Debentures.

  	
   

  
	
   

  	
  Section 10.4.

  	
  Payment
  of Debentures Called for Redemption.

  	
   

  



 


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

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.1.

  	
  Company May Consolidate, etc.,
  on Certain Terms.

  	
   

  
	
   

  	
  Section 11.2.

  	
  Successor
  Entity to be Substituted.

  	
   

  
	
   

  	
  Section 11.3.

  	
  Opinion
  of Counsel to be Given to Trustee.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII.
  SATISFACTION AND DISCHARGE OF INDENTURE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 12.1.

  	
  Discharge of Indenture.

  	
   

  
	
   

  	
  Section 12.2.

  	
  Deposited Moneys to be Held in Trust
  by Trustee.

  	
   

  
	
   

  	
  Section 12.3.

  	
  Paying Agent to Repay Moneys Held.

  	
   

  
	
   

  	
  Section 12.4.

  	
  Return of Unclaimed Moneys.

  	
   

  
	
   

  	
   

  	
   

  	
   

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

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.1.

  	
  Indenture and Debentures Solely
  Corporate Obligations.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIV.
  MISCELLANEOUS PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 14.1.

  	
  Successors.

  	
   

  
	
   

  	
  Section 14.2.

  	
  Official
  Acts by Successor Entity.

  	
   

  
	
   

  	
  Section 14.3.

  	
  Surrender of Company Powers.

  	
   

  
	
   

  	
  Section 14.4.

  	
  Addresses for Notices, etc.

  	
   

  
	
   

  	
  Section 14.5.

  	
  Governing
  Law.

  	
   

  
	
   

  	
  Section 14.6.

  	
  Evidence
  of Compliance with Conditions Precedent.

  	
   

  
	
   

  	
  Section 14.7.

  	
  Table of Contents, Headings, etc.

  	
   

  
	
   

  	
  Section 14.8.

  	
  Execution in Counterparts.

  	
   

  
	
   

  	
  Section 14.9.

  	
  Separability.

  	
   

  
	
   

  	
  Section 14.10.

  	
  Assignment.

  	
   

  
	
   

  	
  Section 14.11.

  	
  Acknowledgment of Rights.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XV.
  SUBORDINATION OF DEBENTURES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 15.1.

  	
  Agreement
  to Subordinate.

  	
   

  
	
   

  	
  Section 15.2.

  	
  Default
  on Senior Indebtedness.

  	
   

  
	
   

  	
  Section 15.3.

  	
  Liquidation,
  Dissolution, Bankruptcy.

  	
   

  
	
   

  	
  Section 15.4.

  	
  Subrogation.

  	
   

  
	
   

  	
  Section 15.5.

  	
  Trustee
  to Effectuate Subordination.

  	
   

  
	
   

  	
  Section 15.6.

  	
  Notice
  by the Company.

  	
   

  
	
   

  	
  Section 15.7.

  	
  Rights
  of the Trustee; Holders of Senior Indebtedness.

  	
   

  
	
   

  	
  Section 15.8.

  	
  Subordination
  May Not Be Impaired.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of
  Floating Rate Junior Subordinated Deferrable Interest Debenture

  	
   

  
					



 


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THIS
INDENTURE, dated as of April 28, 2005, between NSB Holdings, Inc., a
Georgia corporation (the “Company”), and Wilmington Trust Company, a
Delaware banking corporation, as debenture trustee (the “Trustee”).


 


WITNESSETH:


 


WHEREAS,
for its lawful corporate purposes, the Company has duly authorized the issuance
of its Floating Rate Junior Subordinated Deferrable Interest Debentures due
2035 (the “Debentures”) under this Indenture to provide, among other
things, for the execution and authentication, delivery and administration
thereof, and the Company has duly authorized the execution of this Indenture;
and


 


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


 


NOW,
THEREFORE, This Indenture Witnesseth:


 


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


 


ARTICLE I.

DEFINITIONS


 


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


 


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


 


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


 


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


 


1





















 


subsidiaries, or any other
class of security or interest which the Federal Reserve now or may hereafter
accord Tier 1 capital treatment (including the Debentures) in excess of
the amount which may qualify for treatment as Tier 1 capital under
applicable capital adequacy guidelines.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Capital
Treatment Event” means the receipt by the Company and the Trust of an
opinion of counsel experienced in such matters to the effect that, as a result
of the occurrence of any amendment to, or change (including any announced
prospective change) in, the laws, rules or regulations of the United
States or any political subdivision thereof or therein, or as the result of any
official or administrative pronouncement or action or decision interpreting or
applying such laws, rules or regulations, which amendment or change is
effective or which pronouncement, action or decision is announced on or after
the date of original issuance of the Debentures, there is more than an
insubstantial risk that the Company will not, within 90 days of the date of
such opinion, be entitled to treat an amount equal to the aggregate liquidation
amount of the Capital Securities as “Tier 1 Capital” (or its then
equivalent) for purposes of the capital adequacy guidelines of the Federal
Reserve, as then in effect and applicable to the Company (or if the Company is
not a bank holding company, such guidelines applied to the Company as if the
Company were subject to such guidelines); provided, however, that
the inability of the Company to treat all or any 


 


2





















 


portion
of the liquidation amount of the Capital Securities as Tier l Capital
shall not constitute the basis for a Capital Treatment Event, if such inability
results from the Company having cumulative preferred stock, minority interests
in consolidated subsidiaries, or any other class of security or interest which
the Federal Reserve or OTS, as applicable, may now or hereafter accord
Tier 1 Capital treatment in excess of the amount which may now or
hereafter qualify for treatment as Tier 1 Capital under applicable capital
adequacy guidelines; provided  further, however, that the
distribution of Debentures in connection with the liquidation of the Trust
shall not in and of itself constitute a Capital Treatment Event unless such
liquidation shall have occurred in connection with a Tax Event or an Investment
Company Event.


 


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


 


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


 


“Company”
means NSB Holdings, Inc., a Georgia corporation, and, subject to the
provisions of Article XI, shall include its successors and assigns.


 


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


 


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


 


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


 


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


 


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


 


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


 


“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.  The initial Depositary will be DTC.


 


“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.


 


“Distribution
Period” means (i) with respect to interest paid on the first Interest
Payment Date, the period beginning on (and including) the date of original
issuance and ending on (but excluding) the Interest Payment Date in
June 2005 and (ii) thereafter, with respect to interest paid on each
successive Interest Payment Date, the period beginning on (and including) the
preceding Interest Payment Date and ending on (but excluding) such current
Interest Payment Date.


 


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


 


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


 


3





















 


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


 


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


 


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


 


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


 


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


 


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


 


“Interest
Payment Date” means March 15, June 15, September 15 and
December 15 of each year during the term of this Indenture, or if such day
is not a Business Day, then the next succeeding Business Day, commencing in
June 2005.


 


“Interest
Rate” means for the Distribution Period beginning on (and including) the
date of original issuance and ending on (but excluding) the Interest Payment
Date in June 2005 the rate per annum of [RATE]%, and for each Distribution
Period beginning on or after the Interest Payment Date in June 2005, the
Coupon Rate for such Distribution Period.


 


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


 


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


 


“Maturity
Date” means June 15, 2035.


 


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


 


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


 


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


 


4





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


5





















 


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


 


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


 


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


 


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


 


“Special
Redemption Price” means the price set forth in the following table for any
Special Redemption Date that occurs on the date indicated below (or if such day
is not a Business Day, then the next succeeding Business Day), expressed as the
percentage of the principal amount of the Debentures being redeemed:


 


6





















 




	
  Month in
  which Special

  Redemption Date Occurs

  	
   

  	
  Special Redemption Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  June 2005

  	
   

  	
  104.625

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  September 2005

  	
   

  	
  104.300

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  December 2005

  	
   

  	
  104.000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  March 2006

  	
   

  	
  103.650

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  June 2006

  	
   

  	
  103.350

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  September 2006

  	
   

  	
  103.000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  December 2006

  	
   

  	
  102.700

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  March 2007

  	
   

  	
  102.350

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  June 2007

  	
   

  	
  102.050

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  September 2007

  	
   

  	
  101.700

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  December 2007

  	
   

  	
  101.400

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  March 2008

  	
   

  	
  101.050

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  June 2008

  	
   

  	
  100.750

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  September 2008

  	
   

  	
  100.450

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  December 2008

  	
   

  	
  100.200

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  March 2009 and thereafter

  	
   

  	
  100.000

  	
  %

  






 


plus, in each case, accrued and unpaid interest (including any Additional
Interest) on such Debentures to the Special Redemption Date.


 


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


 


“Tax
Event” means the receipt by the Company and the Trust of an opinion of
counsel experienced in such matters to the effect that, as a result of any
amendment to or change (including any announced prospective change) in the laws
or any regulations thereunder of the United States or any political subdivision
or taxing authority thereof or therein, or as a result of any official
administrative pronouncement (including any private letter ruling, technical
advice memorandum, field service advice, regulatory procedure, notice or
announcement, including any notice or announcement of intent to adopt such
procedures or regulations) (an “Administrative Action”) or judicial
decision interpreting or applying such laws or regulations, regardless of
whether such Administrative Action or judicial decision is issued to or in connection
with a proceeding involving the Company or the Trust and whether or not subject
to review or appeal, which amendment, clarification, change, Administrative
Action or decision is enacted, 


 


7





















 


promulgated
or announced, in each case on or after the date of original issuance of the
Debentures, there is more than an insubstantial risk that:  (i) the Trust is, or will be within
90 days of the date of such opinion, subject to United States federal
income tax with respect to income received or accrued on the Debentures;
(ii) interest payable by the Company on the Debentures is not, or within
90 days of the date of such opinion, will not be, deductible by the
Company, in whole or in part, for United States federal income tax purposes; or
(iii) the Trust is, or will be within 90 days of the date of such
opinion, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.


 


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


 


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


 


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


 


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


 


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


 


ARTICLE II.

DEBENTURES


 


Section 2.1.                                Authentication
and Dating.   Upon the execution and delivery of this
Indenture, or from time to time thereafter, Debentures in an aggregate
principal amount not in excess of $10,310,000.00 may be executed and delivered
by the Company to the Trustee for authentication, and the Trustee, upon receipt
of a written authentication order from the Company, shall thereupon
authenticate and make available for delivery said Debentures to or upon the
written order of the Company, signed by its Chairman of the Board of Directors,
Chief Executive Officer, Vice Chairman, the President, one of its Managing
Directors or one of its Vice Presidents without any further action by the
Company hereunder.  Notwithstanding
anything to the contrary contained herein, the Trustee shall be fully protected
in relying upon the aforementioned authentication order and written order in
authenticating and delivering said Debentures. 
In authenticating such Debentures, and accepting the additional
responsibilities under this Indenture in relation to such Debentures, the
Trustee shall be entitled to receive, and (subject to Section 6.1) shall
be fully protected in relying upon:


 


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


 


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


 


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


 


8





















 


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


 


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


 


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


 


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


 


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


 


	
   

  	
  WILMINGTON
  TRUST COMPANY, as Trustee

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
  Authorized
  Signer

  



 


Section 2.3.                                Form and
Denomination of Debentures.   The Debentures shall be substantially in the form of Exhibit A
attached hereto.  The Debentures shall be
in registered, certificated form without coupons and in minimum denominations
of $100,000.00 and any multiple of $1,000.00 in excess thereof.  Any attempted transfer of the Debentures in a
block having an aggregate principal amount of less than $100,000.00 shall be
deemed to be void and of no legal effect whatsoever.  Any such purported transferee shall be deemed
not to be a holder of such Debentures for any purpose, including, but not
limited to the receipt of payments on such Debentures, and such purported
transferee shall be deemed to have no interest whatsoever in such Debentures.  The Debentures shall be numbered, lettered,
or otherwise distinguished in such manner or in accordance with such plans as
the officers executing the same may determine with the approval of the Trustee
as evidenced by the execution and authentication thereof.


 


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


 


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


 


9





















 


the Company, although at the date of the
execution of this Indenture any such person was not such an officer.


 


Every
Debenture shall be dated the date of its authentication.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAW.  NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH 


 


10





















 


REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.  THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY ONLY
(A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A,
(D) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE
MEANING OF SUBPARAGRAPH (A) OF RULE 501 UNDER THE SECURITIES ACT
THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH
MAY BE OBTAINED FROM THE COMPANY.


 


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


 


THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN
AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000.00 AND MULTIPLES OF
$1,000.00 IN EXCESS THEREOF.  ANY
ATTEMPTED TRANSFER OF THIS 


 


11





















 


SECURITY IN A BLOCK HAVING AN
AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000.00 SHALL BE DEEMED TO BE VOID
AND OF NO LEGAL EFFECT WHATSOEVER.


 


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


 


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


 


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


 


Every
substituted Debenture issued pursuant to the provisions of this
Section 2.6 by virtue of the fact that any such Debenture is destroyed,
lost or stolen shall constitute an additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Debenture shall be found
at any time, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Debentures duly issued
hereunder.  All Debentures shall be held
and owned upon the express condition that, to the extent permitted by
applicable law, the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Debentures and
shall preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.


 


Section 2.7.                                Temporary
Debentures.   Pending
the preparation of definitive Debentures, the Company may execute and the
Trustee shall authenticate and make available for delivery temporary Debentures
that are typed, printed or lithographed. 
Temporary Debentures shall be issuable in any authorized denomination,
and substantially in the form of the definitive Debentures in lieu of which
they are issued but with such omissions, insertions and variations as may be
appropriate for temporary Debentures, all as may be determined by the
Company.  Every such temporary Debenture
shall be executed by the Company and be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and with the same effect,
as the definitive Debentures.  Without
unreasonable delay the Company will execute and deliver to the Trustee or the
Authenticating Agent definitive Debentures and thereupon any or all temporary
Debentures may be surrendered in exchange therefor, at the principal corporate
trust office of the Trustee or at any office or agency maintained by the
Company for such purpose as provided in Section 3.2, and the Trustee or
the Authenticating Agent shall 


 


12





















 


authenticate
and make available for delivery in exchange for such temporary Debentures a
like aggregate principal amount of such definitive Debentures.  Such exchange shall be made by the Company at
its own expense and without any charge therefor except that in case of any such
exchange involving a registration of transfer the Company may require payment
of a sum sufficient to cover any tax, fee or other governmental charge that may
be imposed in relation thereto.  Until so
exchanged, the temporary Debentures shall in all respects be entitled to the
same benefits under this Indenture as definitive Debentures authenticated and
delivered hereunder.


 


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


 


Each
Debenture shall bear interest for the period beginning on (and including) the
date of original issuance and ending on (but excluding) the Interest Payment
Date in June 2005 at a rate per annum of [RATE]%, and shall bear interest
for each successive Distribution Period beginning on or after the Interest
Payment Date in June 2005 at a rate per annum equal to the 3-Month LIBOR,
determined as described in Section 2.10, plus 2.05% (the “Coupon Rate”),
applied to the principal amount thereof, until the principal thereof becomes
due and payable, and on any overdue principal and to the extent that payment of
such interest is enforceable under applicable law (without duplication) on any
overdue installment of interest (including Additional Interest) at the Interest
Rate in effect for each applicable period compounded quarterly.  Interest shall be payable (subject to any
relevant Extension Period) quarterly in arrears on each Interest Payment Date
with the first installment of interest to be paid on the Interest Payment Date
in June 2005.


 


Any
interest on any Debenture, including Additional Interest, that is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date (herein
called “Defaulted Interest”) shall forthwith cease to be payable to the
registered holder on the relevant regular record date by virtue of having been
such holder; and such Defaulted Interest shall be paid by the Company to the
Persons in whose names such Debentures (or their respective Predecessor
Securities) are registered at the close of business on a special record date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner: the Company shall notify the Trustee in writing at least 25
days prior to the date of the proposed payment of the amount of Defaulted
Interest proposed to be paid on each such Debenture and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided.  Thereupon the Trustee shall fix a special
record date for the payment of such Defaulted Interest which shall not be more
than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment.  The
Trustee shall promptly notify the Company of such special record date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the special record date therefor to be
mailed, first class postage prepaid, to each Securityholder at its address as
it appears in the Debenture Register, not less than 10 days prior to such
special record date.  Notice of the
proposed payment of such Defaulted Interest and the special record date
therefor having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names such Debentures (or their respective Predecessor
Securities) are registered on such special record date and shall be no longer
payable.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


14





















 


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


 


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


 


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


 


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


 


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


 


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


 


(e)                                  Subject to the corrective rights set
forth above, all certificates, communications, opinions, determinations,
calculations, quotations and decisions given, expressed, made or obtained for
the purposes of the provisions relating to the payment and calculation of
interest on the Debentures and distributions on the Capital Securities by the
Trustee or the Institutional Trustee will (in the absence of willful default,
bad faith and manifest error) be final, conclusive and binding on the Trust,
the Company and all of the holders of the Debentures and the Capital
Securities, and no liability shall (in the absence of willful default, bad
faith or manifest error) attach to the Trustee or the Institutional Trustee in
connection with the exercise or non-exercise by either of them or their
respective powers, duties and discretion.


 


Section 2.11.                         Extension
of Interest Payment Period.   So long as no Acceleration Event of Default
has occurred and is continuing, the Company shall have the right, from time to
time, and without causing an Event of Default, to defer payments of interest on
the Debentures by extending the interest payment period on the Debentures at
any time and from time to time during the term of the Debentures, for up to
20 consecutive quarterly periods (each such extended interest payment
period, an “Extension Period”), during which Extension Period no
interest (including Additional Interest) shall be due and payable (except any
Additional Sums that may be due and payable). 
No Extension Period may end on a date other than an Interest Payment
Date.  During an Extension Period, interest
will continue to accrue on the Debentures, and interest on such accrued
interest will accrue at an annual rate equal to the Interest 


 


15





















 


Rate in effect for such
Extension Period, compounded quarterly from the date such interest would have
been payable were it not for the Extension Period, to the extent permitted by
law (such interest referred to herein as “Additional Interest”).  At the end of any such Extension Period the
Company shall pay all interest then accrued and unpaid on the Debentures
(together with Additional Interest thereon); provided, however,
that no Extension Period may extend beyond the Maturity Date; provided  further,
however, that during any such Extension Period, the Company shall not
and shall not permit any Affiliate to (i) declare or pay any dividends or distributions
on, or redeem, purchase, acquire, or make a liquidation payment with respect
to, any of the Company’s or such Affiliate’s capital stock (other than payments
of dividends or distributions to the Company) or make any guarantee payments
with respect to the foregoing or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company or any Affiliate that rank pari passu in all respects with or junior in interest to the
Debentures (other than, with respect to clauses (i) or (ii) above,
(a) repurchases, redemptions or other acquisitions of shares of capital
stock of the Company in connection with any employment contract, benefit plan
or other similar arrangement with or for the benefit of one or more employees,
officers, directors or consultants, in connection with a dividend reinvestment
or stockholder stock purchase plan or in connection with the issuance of
capital stock of the Company (or securities convertible into or exercisable for
such capital stock) as consideration in an acquisition transaction entered into
prior to the applicable Extension Period, (b) as a result of any exchange
or conversion of any class or series of the Company’s capital stock (or any
capital stock of a subsidiary of the Company) for any class or series of the
Company’s capital stock or of any class or series of the Company’s indebtedness
for any class or series of the Company’s capital stock, (c) the purchase
of fractional interests in shares of the Company’s capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, (d) any declaration of a dividend in
connection with any stockholders’ rights plan, or the issuance of rights, stock
or other property under any stockholders’ rights plan, or the redemption or
repurchase of rights pursuant thereto, (e) any dividend in the form of
stock, warrants, options or other rights where the dividend stock or the stock
issuable upon exercise of such warrants, options or other rights is the same
stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock
and any cash payments in lieu of fractional shares issued in connection
therewith, or (f) payments under the Capital Securities Guarantee).  Prior to the termination of any Extension
Period, the Company may further extend such period, provided that such period
together with all such previous and further consecutive extensions thereof
shall not exceed 20 consecutive quarterly periods, or extend beyond the
Maturity Date.  Upon the termination of
any Extension Period and upon the payment of all accrued and unpaid interest
and Additional Interest, the Company may commence a new Extension Period,
subject to the foregoing requirements. 
No interest or Additional Interest shall be due and payable during an
Extension Period, except at the end thereof, but each installment of interest
that would otherwise have been due and payable during such Extension Period
shall bear Additional Interest to the extent permitted by applicable law.  The Company must give the Trustee notice of
its election to begin or extend an Extension Period by the close of business at
least 15 Business Days prior to the Interest Payment Date with respect to which
interest on the Debentures would have been payable except for the election to
begin or extend such Extension Period. 
The Trustee shall give notice of the Company’s election to begin a new
Extension Period to the Securityholders.


 


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


 


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Section 2.13.                         Global
Debentures.


 


(a)                                  Upon the election of the holder of
outstanding Debentures, which election need not be in writing, the Debentures
owned by such holder shall be issued in the form of one or more Global
Debentures registered in the name of the Depositary or its nominee.  Each Global Debenture issued under this
Indenture shall be registered in the name of the Depositary designated by the
Company for such Global Debenture or a nominee thereof, delivered to such Depositary
or a nominee thereof or custodian therefor and shall contain such legends as
may be required by the Depositary and each such Global Debenture shall
constitute a single Debenture for all purposes of this Indenture.


 


(b)                                 Notwithstanding any other provision in
this Indenture, no Global Debenture may be exchanged in whole or in part for
Debentures registered, and no transfer of a Global Debenture in whole or in
part may be registered, in the name of any Person other than the Depositary for
such Global Debenture 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 Debenture, 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 Debenture of the occurrence
of such event and of the availability of Debentures to such owners of
beneficial interests requesting the same. 
Upon the issuance of such Debentures and the registration in the
Debenture Register of such Debentures in the names of the holders of the
beneficial interests therein, the Trustee shall recognize such holders of
beneficial interests as holders.


 


(c)                                  If any Global Debenture is to be
exchanged for other Debentures or canceled in part, or if another Debenture is
to be exchanged in whole or in part for a beneficial interest in any Global
Debenture, then either (i) such Global Debenture shall be so surrendered
for exchange or cancellation as provided in this Article II 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 Debentures 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 Debenture 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 Debenture by the
Depositary, accompanied by registration instructions, the Company shall execute
and the Trustee shall authenticate and deliver any Debentures issuable in
exchange for such Global Debenture (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 Debenture authenticated and
delivered upon registration of transfer of, or in exchange for or in lieu of, a
Global Debenture or any portion thereof shall be authenticated and delivered in
the form of, and shall be, a Global Debenture, unless such Debenture is
registered in the name of a Person other than the Depositary for such Global
Debenture or a nominee thereof.


 


(e)                                  Debentures distributed to holders of
Book-Entry Capital Securities (as defined in the Declaration) upon the
dissolution of the Trust shall be distributed in the form of one or more Global
Debentures registered in the name of a Depositary or its nominee, and deposited
with the Debentures 


 


17





















 


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 Debentures represented thereby (or such other
accounts as they may direct).  Debentures
distributed to holders of Capital Securities other than Book-Entry Capital
Securities upon the dissolution of the Trust shall not be issued in the form of
a Global Debenture or any other form intended to facilitate book-entry trading
in beneficial interests in such Debentures.


 


(f)                                    The Depositary or its nominee, as the
registered owner of a Global Debenture, shall be the holder of such Global
Debenture for all purposes under this Indenture and the Debentures, and owners
of beneficial interests in a Global Debenture shall hold such interests
pursuant to the Applicable Depositary Procedures.  Accordingly, any such owner’s beneficial
interest in a Global Debenture 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 Debentures registrar and the Trustee shall be entitled to deal with
the Depositary for all purposes under this Indenture relating to a Global
Debenture (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 Debenture and shall have
no obligations to the owners of beneficial interests therein.  Neither the Trustee nor the Debentures
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 Debenture 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 Debenture held on its behalf by a Depositary shall have any rights
under this Indenture with respect to such Global Debenture, 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 Debenture 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
Debenture 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 Debenture.


 


ARTICLE III.

PARTICULAR COVENANTS OF THE COMPANY


 


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


 


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


 


18





















 


interest on this Debenture will be made in
immediately available funds at such place and to such account as may be
designated by the Institutional Trustee.


 


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


 


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


 


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


 


Section 3.2.                                Offices
for Notices and Payments, etc.  So long as any of the Debentures remain
outstanding, the Company will maintain in Wilmington, Delaware, an office or
agency where the Debentures may be presented for payment, an office or agency
where the Debentures may be presented for registration of transfer and for
exchange as in this Indenture provided and an office or agency where notices
and demands to or upon the Company in respect of the Debentures or of this
Indenture may be served.  The Company
will give to the Trustee written notice of the location of any such office or
agency and of any change of location thereof. 
Until otherwise designated from time to time by the Company in a notice
to the Trustee, or specified as contemplated by Section 2.5, such office
or agency for all of the above purposes shall be the office or agency of the
Trustee.  In case the Company shall fail
to maintain any such office or agency in Wilmington, Delaware, or shall fail to
give such notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served at the
Principal Office of the Trustee.


 


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


 


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


 


Section 3.4.                                Provision
as to Paying Agent.


 


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


 


19





















 


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


 


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


 


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


 


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


 


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


 


(c)                                  Anything in this Section 3.4 to the
contrary notwithstanding, the Company may, at any time, for the purpose of
obtaining a satisfaction and discharge with respect to the Debentures, or for
any other reason, pay, or direct any paying agent to pay to the Trustee all
sums held in trust by the Company or any such paying agent, such sums to be
held by the Trustee upon the trusts herein contained.


 


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


 


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


 


Section 3.6.                                Additional
Sums. 
If and for
so long as the Trust is the holder of all Debentures and the Trust is required
to pay any additional taxes (including withholding taxes), duties, assessments
or other governmental charges as a result of a Tax Event, the Company will pay
such additional amounts (“Additional Sums”) on the Debentures as shall
be required so that the net amounts received and retained by the Trust after
paying taxes (including withholding taxes), duties, assessments or other
governmental charges will be equal to the amounts the Trust would have received
if no such taxes, duties, assessments or other governmental charges had been
imposed.  Whenever in this Indenture or
the Debentures there is a


 


20





















 


reference in any context to the payment of principal
of or interest on the Debentures, such mention shall be deemed to include
mention of payments of the Additional Sums provided for in this paragraph to
the extent that, in such context, Additional Sums are, were or would be payable
in respect thereof pursuant to the provisions of this paragraph and express
mention of the payment of Additional Sums (if applicable) in any provisions
hereof shall not be construed as excluding Additional Sums in those provisions
hereof where such express mention is not made; provided, however,
that the deferral of the payment of interest during an Extension Period
pursuant to Section 2.11 shall not defer the payment of any Additional
Sums that may be due and payable.


 


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


 


Section 3.8.                                Limitation
on Dividends. 
If
Debentures are initially issued to the Trust or a trustee of such Trust in
connection with the issuance of Trust Securities by the Trust (regardless of
whether Debentures continue to be held by such Trust) and (i) there shall
have occurred and be continuing an Event of Default, (ii) the Company
shall be in default with respect to its payment of any obligations under the
Capital Securities Guarantee, or (iii) the Company shall have given notice
of its election to defer payments of interest on the Debentures by extending
the interest payment period as provided herein and such period, or any
extension thereof, shall be continuing, then the Company shall not, and shall
not allow any Affiliate of the Company to, (x) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company’s capital stock or its
Affiliates’ capital stock (other than payments of dividends or distributions to
the Company) or make any guarantee payments with respect to the foregoing or
(y) make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Company or any Affiliate
that rank pari passu in all
respects with or junior in interest to the Debentures (other than, with respect
to clauses (x) and (y) above, 
(1) repurchases, redemptions or other acquisitions of shares of
capital stock of the Company in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of one or
more employees, officers, directors or consultants, in connection with a
dividend reinvestment or stockholder stock purchase plan or in connection with
the issuance of capital stock of the Company (or securities convertible into or
exercisable for such capital stock) as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, if any,
(2) as a result of any exchange or conversion of any class or series of
the Company’s capital stock (or any capital stock of a subsidiary of the
Company) for any class or series of the Company’s capital stock or of any class
or series of the Company’s indebtedness for any class or series of the
Company’s capital stock, (3) the purchase of fractional interests in
shares of the Company’s capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged,
(4) any declaration of a dividend in connection with any stockholders’
rights plan, or the issuance of rights, stock or other property under any
stockholders’ rights plan, or the redemption or repurchase of rights pursuant
thereto, (5) any dividend in the form of stock, warrants, options or other
rights where the dividend stock or the stock issuable upon exercise of such
warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks pari passu
with or junior to such stock and any cash payments in lieu of fractional shares
issued in connection therewith, or (6) payments under the Capital Securities
Guarantee).


 


Section 3.9.                                Covenants
as to the Trust. 
For so
long as the Trust Securities remain outstanding, the Company shall maintain
100% ownership of the Common Securities; provided, however, that
any permitted successor of the Company under this Indenture may succeed to the
Company’s ownership of such Common Securities. 
The Company, as owner of the Common Securities, shall, except in
connection with a distribution of Debentures to the holders of Trust Securities
in liquidation of the


 


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Trust, the redemption of all of the Trust Securities
or certain mergers, consolidations or amalgamations, each as permitted by the
Declaration, cause the Trust (a) to remain a statutory trust, (b) to
otherwise continue to be classified as a grantor trust for United States
federal income tax purposes, and (c) to cause each holder of Trust
Securities to be treated as owning an undivided beneficial interest in the
Debentures.


 


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


 


ARTICLE IV.

SECURITYHOLDERS’ LISTS AND REPORTS

BY THE COMPANY AND THE TRUSTEE


 


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


 


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


 


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


 


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


 


Section 4.2.                                Preservation
and Disclosure of Lists.


 


(a)                                  The Trustee shall preserve, in as current
a form as is reasonably practicable, all information as to the names and
addresses of the holders of Debentures (1) contained in the most recent
list furnished to it as provided in Section 4.1 or (2) received by it
in the capacity of Debentures registrar (if so acting) hereunder.  The Trustee may destroy any list furnished to
it as provided in Section 4.1 upon receipt of a new list so furnished.


 


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


 


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


 


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


 


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


 


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


 


ARTICLE V.

REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS

UPON AN EVENT OF DEFAULT


 


Section 5.1.                                Events
of Default. 
“Event of
Default,” wherever used herein, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):


 


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


 


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


 


(c)                                  the Company defaults in the performance
of, or breaches, any of its covenants or agreements in this Indenture or in the
terms of the Debentures established as contemplated in this Indenture (other
than a covenant or agreement a default in whose performance or whose breach is


 


23





















 


elsewhere in this Section specifically dealt
with), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the holders of at least 25% in
aggregate principal amount of the outstanding Debentures, a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a “Notice of Default” hereunder; or


 


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


 


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


 


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


 


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


 


The
foregoing provisions, however, are subject to the condition that if, at any
time after the principal of the Debentures shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, (i) the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Debentures and the principal of
and premium, if any, on the Debentures which shall have become due otherwise
than by acceleration (with interest upon such principal and premium, if any,
and Additional Interest) and such amount as shall be sufficient to cover
reasonable compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and all other amounts due to the
Trustee pursuant to Section 6.6, if any, and (ii) all Events of
Default under this Indenture, other than the non-payment of the principal of or
premium, if any, on


 


24





















 


Debentures
which shall have become due by acceleration, shall have been cured, waived or
otherwise remedied as provided herein -- then and in every such case the
holders of a majority in aggregate principal amount of the Debentures then
outstanding, by written notice to the Company and to the Trustee, may waive all
defaults and rescind and annul such declaration and its consequences, but no
such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.


 


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


 


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


 


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


 


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


 


(ii)                                  in case of any judicial proceedings, to file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all other
amounts due to the Trustee under Section 6.6), and of the Securityholders
allowed in such judicial proceedings relative to the Company or any other
obligor on the


 


25





















 


Debentures,
or to the creditors or property of the Company or such other obligor, unless
prohibited by applicable law and regulations, to vote on behalf of the holders
of the Debentures in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or insolvency
proceedings or Person performing similar functions in comparable proceedings,


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


26





















 


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


 


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


 


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


 


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


 


Section 5.7.                                Direction
of Proceedings and Waiver of Defaults by Majority of Securityholders.  The holders of a majority in aggregate
principal amount of the Debentures affected (voting as one class) at the time
outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to such
Debentures; provided, however, that (subject to the provisions of
Section 6.1) the Trustee shall have the right to decline to follow any
such direction if the Trustee shall determine that the action so directed would
be unjustly prejudicial to the holders not taking


 


27





















 


part in such direction or if the Trustee being advised by counsel
determines that the action or proceeding so directed may not lawfully be taken
or if a Responsible Officer of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal liability.


 


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


 


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


 


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


 


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ARTICLE VI.

CONCERNING THE TRUSTEE


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 6.3.                                No Responsibility for
Recitals, etc.  The
recitals contained herein and in the Debentures (except in the certificate of
authentication of the Trustee or the Authenticating Agent) shall be taken as
the statements of the Company, and the Trustee and the Authenticating Agent
assume no responsibility for the correctness of the same.  The Trustee and the Authenticating Agent make
no representations as to the validity or sufficiency of this Indenture or of
the Debentures.  The Trustee and


 


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the Authenticating Agent shall not be
accountable for the use or application by the Company of any Debentures or the
proceeds of any Debentures authenticated and delivered by the Trustee or the
Authenticating Agent in conformity with the provisions of this Indenture.


 


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


 


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


 


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


 


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


 


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


 


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


 


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Section 6.7.                                Officers’
Certificate as Evidence.  Except as otherwise provided in Sections 6.1
and 6.2, whenever in the administration of the provisions of this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or omitting any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of negligence or willful misconduct on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers’
Certificate delivered to the Trustee, and such certificate, in the absence of
negligence or willful misconduct on the part of the Trustee, shall be full
warrant to the Trustee for any action taken or omitted by it under the
provisions of this Indenture upon the faith thereof.


 


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


 


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


 


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


 


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


 


Section 6.9.                                Resignation or Removal of
Trustee


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


If
a successor Trustee is appointed, the Company, the retiring Trustee and the
successor Trustee shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debentures as to which the predecessor Trustee is
not retiring shall continue to be vested in the predecessor Trustee, and shall
add to or change any of the provisions of this Indenture as


 


33





















 


shall
be necessary to provide for or facilitate the administration of the Trust
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of
the same trust and that each such Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee.


 


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


 


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


 


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


 


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


 


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


 


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


 


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Any
corporation into which any Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, consolidation or conversion to which any Authenticating Agent shall be
a party, or any corporation succeeding to all or substantially all of the
corporate trust business of any Authenticating Agent, shall be the successor of
such Authenticating Agent hereunder, if such successor corporation is otherwise
eligible under this Section 6.12 without the execution or filing of any
paper or any further act on the part of the parties hereto or such
Authenticating Agent.


 


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


 


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


 


ARTICLE VII.

CONCERNING THE SECURITYHOLDERS


 


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


 


If
the Company shall solicit from the Securityholders any request, demand,
authorization, direction, notice, consent, waiver or other action or revocation
of the same, the Company may, at its option, as evidenced by an Officers’
Certificate, fix in advance a record date for such Debentures for the
determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action or revocation
of the same, but the Company shall have no obligation to do so.  If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other action or
revocation of the same may be given before or after the record date, but only
the Securityholders of record at the close of business on the record date shall
be deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of outstanding Debentures have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action or revocation of the same,
and for that purpose the outstanding Debentures shall be computed as of the
record date; provided, however, that no such authorization,


 


35





















 


agreement or consent by such Securityholders on the
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than 6 months after the record
date.


 


Section 7.2.                                Proof
of Execution by Securityholders.  Subject to the provisions of
Section 6.1, 6.2 and 8.5, proof of the execution of any instrument by a
Securityholder or his agent or proxy shall be sufficient if made in accordance
with such reasonable rules and regulations as may be prescribed by the
Trustee or in such manner as shall be satisfactory to the Trustee.  The ownership of Debentures shall be proved
by the Debenture Register or by a certificate of the Debenture registrar.  The Trustee may require such additional proof
of any matter referred to in this Section as it shall deem necessary.


 


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


 


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


 


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


 


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


 


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any exchanged or substituted Debenture).  Except as aforesaid any such action taken by
the holder of any Debenture shall be conclusive and binding upon such holder and
upon all future holders and owners of such Debenture, and of any Debenture
issued in exchange or substitution therefor or on registration of transfer
thereof, irrespective of whether or not any notation in regard thereto is made
upon such Debenture or any Debenture issued in exchange or substitution
therefor.


 


ARTICLE VIII.

SECURITYHOLDERS’ MEETINGS


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 8.5.                                Regulations.  Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Securityholders, in


 


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regard
to proof of the holding of Debentures and of the appointment of proxies, and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall think
fit.


 


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


 


Subject
to the provisions of Section 7.4, at any meeting each holder of Debentures
with respect to which such meeting is being held or proxy therefor shall be
entitled to one vote for each $1,000.00 principal amount of Debentures held or
represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Debenture challenged as not
outstanding and ruled by the chairman of the meeting to be not
outstanding.  The chairman of the meeting
shall have no right to vote other than by virtue of Debentures held by him or
instruments in writing as aforesaid duly designating him as the Person to vote
on behalf of other Securityholders.  Any
meeting of Securityholders duly called pursuant to the provisions of
Section 8.2 or 8.3 may be adjourned from time to time by a majority of
those present, whether or not constituting a quorum, and the meeting may be
held as so adjourned without further notice.


 


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


 


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


 


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


 


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10 days
as determined by the permanent chairman of the meeting prior to the adjournment
of such adjourned meeting.  Notice of the
reconvening of any adjourned meeting shall be given as provided in
Section 8.2, except that such notice need be given only once not less than
5 days prior to the date on which the meeting is scheduled to be reconvened.  Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the
principal amount of the Debentures then outstanding which shall constitute a
quorum.


 


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


 


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


 


ARTICLE IX.

SUPPLEMENTAL INDENTURES


 


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


 


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


 


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


 


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


 


39





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


40





















 


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


 


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


 


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


 


Section 9.3.                                Effect of Supplemental
Indentures.  Upon the execution of any supplemental
indenture pursuant to the provisions of this Article IX, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Company and the holders of
Debentures shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.


 


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


 


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


 


ARTICLE X.

REDEMPTION OF SECURITIES


 


Section 10.1.                         Optional Redemption.  The Company shall have the right (subject to the receipt by the Company
of prior approval (i) if the Company is a bank holding company, from the
Federal Reserve, if then required under applicable capital guidelines or
policies of the Federal Reserve or (ii) if the Company is a savings and
loan holding company, from the OTS, if then required under applicable capital
guidelines or policies of the OTS) to redeem the Debentures, in whole or in
part, but in all cases in


 


41





















 


a
principal amount with integral multiples of $1,000.00, on any Interest Payment
Date on or after the Interest Payment Date in June 2010 (the “Redemption
Date”), at the Redemption Price.


 


Section 10.2.                         Special Event Redemption.  If a Special Event shall occur and be continuing, the Company shall
have the right (subject to the receipt by the Company of prior approval
(i) if the Company is a bank holding company, from the Federal Reserve, if
then required under applicable capital guidelines or policies of the Federal
Reserve or (ii) if the Company is a savings and loan holding company, from
the OTS, if then required under applicable capital guidelines or policies of
the OTS) to redeem the Debentures in whole, but not in part, at any Interest
Payment Date, within 120 days following the occurrence of such Special
Event (the “Special Redemption Date”) at the Special Redemption Price.


 


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


 


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


 


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


 


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


 


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


 


42





















 


surrender
of such Debentures at a place of payment specified in said notice, such
Debentures or the specified portions thereof shall be paid and redeemed by the
Company at the applicable Redemption Price or Special Redemption Price.


 


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


 


ARTICLE XI.

CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE


 


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


 


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


 


Section 11.3.                         Opinion of Counsel to be
Given to Trustee.  The Trustee, subject to the provisions of
Sections 6.1 and 6.2, shall receive, in addition to the Opinion of Counsel
required by Section 9.5, an Opinion of Counsel as conclusive evidence that
any consolidation, merger, sale,


 


43





















 


conveyance,
transfer or other disposition, and any assumption, permitted or required by the
terms of this Article XI complies with the provisions of this
Article XI.


 


ARTICLE XII.

SATISFACTION AND DISCHARGE OF INDENTURE


 


Section 12.1.                         Discharge of Indenture.  When


 


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


 


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


 


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


 


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


 


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


 


44





















 


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


 


ARTICLE XIII.

IMMUNITY OF INCORPORATORS, STOCKHOLDERS,

OFFICERS AND DIRECTORS


 


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


 


ARTICLE XIV.

MISCELLANEOUS PROVISIONS


 


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


 


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


 


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


 


Section 14.4.                         Addresses for Notices, etc.  Any notice, consent, direction, request,
authorization, waiver or demand which by any provision of this Indenture is
required or permitted to be given, made, furnished or served by the Trustee or
by the Securityholders on or to the Company may be given or served in writing
by being deposited postage prepaid by registered or certified mail in a post
office letter box addressed (until another address is filed by the Company,
with the Trustee for the purpose) to the Company, 4077 Forsyth Road, Macon,
Georgia 31210, Attention:  Carol W.
Soto.  Any notice, consent, direction,
request, authorization, waiver or demand by any Securityholder or the Company
to or upon the Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if given or made in writing at the office of the Trustee,
addressed to the Trustee, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-1600, Attention: 
Corporate Trust


 


45





















 


Administration.  Any notice, consent, direction, request,
authorization, waiver or demand on or to any Securityholder shall be deemed to
have been sufficiently given or made, for all purposes, if given or made in writing
at the address set forth in the Debenture Register.


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 14.10.                  Assignment.  The Company will have the right at all times to assign any of its
rights or obligations under this Indenture to a direct or indirect wholly owned
Subsidiary of the Company, provided that, in the event of any such assignment,
the Company will remain liable for all such obligations.  Subject to the foregoing, this Indenture is
binding upon and inures to the benefit of the parties hereto and their
respective successors and assigns.  This
Indenture may not otherwise be assigned by the parties hereto.


 


Section 14.11.                  Acknowledgment of Rights.  The Company agrees that, with respect to any Debentures held by the
Trust or the Institutional Trustee of the Trust, if the Institutional Trustee
of the Trust fails to enforce its rights under this Indenture as the holder of
Debentures held as the assets of such Trust after the holders of a majority in
Liquidation Amount of the Capital Securities of such Trust have so directed
such Institutional Trustee, a holder of record of such Capital Securities may,
to the fullest extent


 


46





















 


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


 


ARTICLE XV.

SUBORDINATION OF DEBENTURES


 


Section 15.1.                         Agreement to Subordinate.  The Company covenants and agrees, and each holder of Debentures by such
Securityholder’s acceptance thereof likewise covenants and agrees, that all
Debentures shall be issued subject to the provisions of this Article XV;
and each holder of a Debenture, whether upon original issue or upon transfer or
assignment thereof, accepts and agrees to be bound by such provisions.


 


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


 


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


 


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


 


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


 


Section 15.3.                         Liquidation, Dissolution,
Bankruptcy.  Upon any payment by the Company or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to creditors upon any dissolution or winding-up
or liquidation or reorganization of the Company, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other proceedings,
all amounts due upon all Senior Indebtedness of the Company shall first be paid
in full, or payment thereof provided for in money in accordance with its terms,
before any payment is made by the Company, on account of the


 


47





















 


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


 


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


 


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


 


Section 15.4.                         Subrogation.  Subject to the payment in full of all Senior Indebtedness, the
Securityholders shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company, applicable to such Senior Indebtedness until the
principal of (and premium, if any) and interest on the Debentures shall be paid
in full.  For the purposes of such
subrogation, no payments or distributions to the holders of such Senior
Indebtedness of any cash, property or securities to which the Securityholders
or the Trustee would be entitled except for the provisions of this
Article XV, and no payment over pursuant to the provisions of this
Article XV to or for the benefit of the holders of such Senior
Indebtedness by Securityholders or the


 


48





















 


Trustee,
shall, as between the Company, its creditors other than holders of Senior
Indebtedness of the Company, and the holders of the Debentures be deemed to be
a payment or distribution by the Company to or on account of such Senior
Indebtedness.  It is understood that the
provisions of this Article XV are and are intended solely for the purposes
of defining the relative rights of the holders of the Securities, on the one
hand, and the holders of such Senior Indebtedness, on the other hand.


 


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


 


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


 


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


 


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


 


49





















 


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


 


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


 


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


 


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


 


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


 


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


 


Signatures appear on the following page


 


50





















 


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


 


	
   

  	
  NSB
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Mark A. Stevens

  	
   

  
	
   

  	
   

  	
  Name:  Mark A. Stevens

  
	
   

  	
   

  	
  Title:    President & Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WILMINGTON
  TRUST COMPANY, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Heather L. Williamson

  	
   

  
	
   

  	
   

  	
  Name:  Heather L. Williamson

  
	
   

  	
   

  	
  Title:    Financial Services Officer

  
					



 


51





















 


EXHIBIT A


 


FORM OF FLOATING RATE JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE


 


[FORM OF FACE OF SECURITY]


 


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


 


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


 


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


 


A-1





















 


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


 


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


 


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


 


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


 


Floating Rate Junior Subordinated Deferrable Interest Debenture


 


of


 


NSB Holdings, Inc.


 


April 28, 2005


 


NSB
Holdings, Inc., a Georgia corporation (the “Company” which term includes
any successor Person under the Indenture hereinafter referred to), for value
received promises to pay to Wilmington Trust Company, not in its individual
capacity but solely as Institutional Trustee for New Southern Statutory
Trust I (the “Holder”) or registered assigns, the principal sum of ten
million three hundred ten thousand dollars ($10,310,000.00) on June 15,
2035, and to pay interest on said principal sum from April 28, 2005, or
from the most recent Interest Payment Date (as defined below) to which interest
has been paid or duly provided for, quarterly (subject to deferral as set forth
herein) in arrears on March 15, June 15, September 15 and
December 15 of each year or if such day is not a Business Day, then the
next succeeding Business Day (each such date, an “Interest Payment Date”) (it
being understood that interest accrues for any such non-Business Day),
commencing on the Interest Payment Date in June 2005, at an annual rate
equal to [RATE]% beginning on (and including) the date of original issuance and
ending on (but excluding) the Interest Payment Date in June 2005 and at an
annual rate for each successive period beginning on (and including) the
Interest Payment Date in June 2005, and each succeeding Interest Payment
Date, and ending on (but excluding) the next succeeding Interest Payment Date
(each a “Distribution Period”), equal to 3-Month LIBOR, determined as described
below, plus 2.05% (the “Coupon Rate”), applied to the principal amount hereof,
until the principal hereof is paid or duly provided for or made available for
payment, and on any overdue principal and (without duplication and to the
extent that payment of such interest is enforceable under applicable law) on
any overdue installment of


 


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interest
(including Additional Interest) at the Interest Rate in effect for each
applicable period, compounded quarterly, from the dates such amounts are due
until they are paid or made available for payment.  The amount of interest payable for any period
will be computed on the basis of the actual number of days in the Distribution
Period concerned divided by 360.  The
interest installment so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Debenture (or one or more Predecessor Securities) is
registered at the close of business on the regular record date for such
interest installment, which shall be fifteen Business Days prior to the day on
which the relevant Interest Payment Date occurs.  Any such interest installment not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such regular record date and may be paid to the Person in whose name
this Debenture (or one or more Predecessor Securities) is registered at the
close of business on a special record date.


 


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


 


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


 


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


 


The
principal of and interest on this Debenture shall be payable at the office or
agency of the Trustee (or other paying agent appointed by the Company)
maintained for that purpose in any coin or


 


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


 


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


 


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


 


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


 


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


 


A-5





















 


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


 


	
   

  	
  NSB
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


 


CERTIFICATE OF AUTHENTICATION


 


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


 


	
   

  	
  WILMINGTON
  TRUST COMPANY, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized
  Officer

  
	
   

  	
   

  
					



 


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[FORM OF REVERSE OF DEBENTURE]


 


This
Debenture is one of the floating rate junior subordinated deferrable interest
debentures of the Company, all issued or to be issued under and pursuant to the
Indenture dated as of April 28, 2005 (the “Indenture”), duly executed and
delivered between the Company and the Trustee, to which Indenture reference is
hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the holders of the Debentures.  The
Debentures are limited in aggregate principal amount as specified in the
Indenture.


 


Upon
the occurrence and continuation of a Special Event prior to the Interest
Payment Date in June 2010, the Company shall have the right to redeem the
Debentures in whole, but not in part, at any Interest Payment Date, within 120
days following the occurrence of such Special Event, at the Special Redemption
Price.


 


In
addition, the Company shall have the right to redeem the Debentures, in whole
or in part, but in all cases in a principal amount with integral multiples of
$1,000.00, on any Interest Payment Date on or after the Interest Payment Date
in June 2010, at the Redemption Price.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


A-8





















 


dividend
stock or the stock issuable upon exercise of such warrants, options or other
rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock
and any cash payments in lieu of fractional shares issued in connection
therewith, or (6) payments under the Capital Securities Guarantee).


 


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


 


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


 


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


 


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


 


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


 


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