VINEYARD
NATIONAL BANCORP
 as
Issuer
  INDENTURE
  Dated as
of December 22, 2004
  WELLS
FARGO BANK, NATIONAL ASSOCIATION
 as
Trustee
  FLOATING
RATE JUNIOR SUBORDINATED DEBT SECURITIES DUE 2034
  
   
   TABLE
OF CONTENTS
  Page
  Parties
    1Recitals
    1Authorization
      of Indenture
    1Compliance
      with Legal Requirements
    1Purpose
      of and Consideration for Indenture
    1
 
  ARTICLE
I
  DEFINITIONS
  Section
      1.01.
    Definitions
    1
 
 ARTICLE
II
  DEBT
SECURITIES
  Section
      2.01.
    Authentication
      and Dating
    8Section
      2.02.
    Form
      of Trustee's Certificate of Authentication
    9Section
      2.03.
    Form
      and Denomination of Debt Securities
    9Section
      2.04.
    Execution
      of Debt Securities
    9Section
      2.05.
    Exchange
      and Registration of Transfer of Debt Securities
    10Section
      2.06.
    Mutilated,
      Destroyed, Lost or Stolen Debt Securities
    12Section
      2.07.
    Temporary
      Debt Securities
    13Section
      2.08.
    Payment
      of Interest
    13Section
      2.09.
    Cancellation
      of Debt Securities Paid, etc
    14Section
      2.10.
    Computation
      of Interest
    15Section
      2.11.
    Extension
      of Interest Payment Period
    16Section
      2.12.
    CUSIP
      Numbers
    17
 
 ARTICLE
III
  PARTICULAR
COVENANTS OF THE COMPANY
  Section
      3.01.
    Payment
      of Principal, Premium and Interest; Agreed Treatment of the Debt
      Securities
    17Section
      3.02.
    Offices
      for Notices and Payments, etc
    17Section
      3.03.
    Appointments
      to Fill Vacancies in Trustee's Office
    18Section
      3.04.
    Provision
      as to Paying Agent
    18Section
      3.05.
    Certificate
      to Trustee
    19Section
      3.06.
    Additional
      Interest
    19Section
      3.07.
    Compliance
      with Consolidation Provisions
    19Section
      3.08.
    Limitation
      on Dividends
    20Section
      3.09.
    Covenants
      as to the Trust
    20
 
 ARTICLE
IV
  LISTS AND
REPORTS BY THE COMPANY AND THE TRUSTEE
  -i-
 Section
      4.01.
    Securityholders'
      Lists
    20Section
      4.02.
    Preservation
      and Disclosure of Lists
    21Section
      4.03.
    Financial
      and Other Information
    22
 
 ARTICLE
V
  REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT
  Section
      5.01.
    Events
      of Default
    22Section
      5.02.
    Payment
      of Debt Securities on Default; Suit Therefor
    24Section
      5.03.
    Application
      of Moneys Collected by Trustee
    25Section
      5.04.
    Proceedings
      by Securityholders
    25Section
      5.05.
    Proceedings
      by Trustee
    26Section
      5.06.
    Remedies
      Cumulative and Continuing
    26Section
      5.07.
    Direction
      of Proceedings and Waiver of Defaults by Majority of
      Securityholders
    26Section
      5.08.
    Notice
      of Defaults
    27Section
      5.09.
    Undertaking
      to Pay Costs
    27
 
 ARTICLE
VI
  CONCERNING
THE TRUSTEE
  Section
      6.01.
    Duties
      and Responsibilities of Trustee
    28Section
      6.02.
    Reliance
      on Documents, Opinions, etc
    29Section
      6.03.
    No
      Responsibility for Recitals, etc
    30Section
      6.04.
    Trustee,
      Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own
      Debt Securities
    30Section
      6.05.
    Moneys
      to be Held in Trust
    30Section
      6.06.
    Compensation
      and Expenses of Trustee
    30Section
      6.07.
    Officers'
      Certificate as Evidence
    31Section
      6.08.
    Eligibility
      of Trustee
    31Section
      6.09.
    Resignation
      or Removal of Trustee
    32Section
      6.10.
    Acceptance
      by Successor Trustee
    33Section
      6.11.
    Succession
      by Merger, etc
    33Section
      6.12.
    Authenticating
      Agents
    34
 
 ARTICLE
VII
  CONCERNING
THE SECURITYHOLDERS
  Section
      7.01.
    Action
      by Securityholders
    35Section
      7.02.
    Proof
      of Execution by Securityholders
    35Section
      7.03.
    Who
      Are Deemed Absolute Owners
    36Section
      7.04.
    Debt
      Securities Owned by Company Deemed Not Outstanding
    36Section
      7.05.
    Revocation
      of Consents; Future Securityholders Bound
    36
 
 -ii-
 ARTICLE
VIII
  SECURITYHOLDERS’
MEETINGS
  Section
      8.01.
    Purposes
      of Meetings
    37Section
      8.02.
    Call
      of Meetings by Trustee
    37Section
      8.03.
    Call
      of Meetings by Company or Securityholders
    37Section
      8.04.
    Qualifications
      for Voting
    37Section
      8.05.
    Regulations
    38Section
      8.06.
    Voting
    38Section
      8.07.
    Quorum;
      Actions
    38
 
 ARTICLE
IX
  SUPPLEMENTAL
INDENTURES
  Section
      9.01.
    Supplemental
      Indentures without Consent of Securityholders
    39Section
      9.02.
    Supplemental
      Indentures with Consent of Securityholders
    40Section
      9.03.
    Effect
      of Supplemental Indentures
    41Section
      9.04.
    Notation
      on Debt Securities
    41Section
      9.05.
    Evidence
      of Compliance of Supplemental Indenture to be furnished to
      Trustee
    42
 
 ARTICLE
X
  REDEMPTION
OF DEBT SECURITIES
  Section
      10.01.
    Optional
      Redemption
    42Section
      10.02.
    Special
      Event Redemption
    42Section
      10.03.
    Notice
      of Redemption; Selection of Debt Securities
    42Section
      10.04.
    Payment
      of Debt Securities Called for Redemption
    43
 
 ARTICLE
XI
  CONSOLIDATION,
MERGER, SALE, CONVEYANCE AND LEASE
  Section
      11.01.
    Company
      May Consolidate, etc., on Certain Terms
    43Section
      11.02
    Successor
      Entity to be Substituted
    44Section
      11.03.
    Opinion
      of Counsel to be Given to Trustee
    44
 
 ARTICLE
XII
  SATISFACTION
AND DISCHARGE OF INDENTURE
  Section
      12.01.
    Discharge
      of Indenture
    44Section
      12.02.
    Deposited
      Moneys to be Held in Trust by Trustee
    45Section
      12.03.
    Paying
      Agent to Repay Moneys Held
    45Section
      12.04.
    Return
      of Unclaimed Moneys
    45
 
 ARTICLE
XIII
  IMMUNITY
OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
  Section
      13.01.
    Indenture
      and Debt Securities Solely Corporate Obligations
    46
 
 -iii-
 ARTICLE
XIV
  MISCELLANEOUS
PROVISIONS
  Section
      14.01.
    Successors
    46Section
      14.02.
    Official
      Acts by Successor Entity
    46Section
      14.03.
    Surrender
      of Company Powers
    46Section
      14.04.
    Addresses
      for Notices, etc
    46Section
      14.05.
    Governing
      Law
    47Section
      14.06.
    Evidence
      of Compliance with Conditions Precedent
    47Section
      14.07.
    Non-Business
      Days
    47Section
      14.08.
    Table
      of Contents, Headings, etc
    47Section
      14.09.
    Execution
      in Counterparts
    48Section
      14.10.
    Severability
    48Section
      14.11.
    Assignment
    48Section
      14.12.
    Acknowledgment
      of Rights
    48
 
 ARTICLE
XV
  SUBORDINATION
OF DEBT SECURITIES
  Section
      15.01.
    Agreement
      to Subordinate
    48Section
      15.02.
    Default
      on Senior Indebtedness
    49Section
      15.03.
    Liquidation;
      Dissolution; Bankruptcy
    49Section
      15.04.
    Subrogation
    50Section
      15.05.
    Trustee
      to Effectuate Subordination
    51Section
      15.06.
    Notice
      by the Company
    51Section
      15.07.
    Rights
      of the Trustee, Holders of Senior Indebtedness
    52Section
      15.08.
    Subordination
      May Not Be Impaired
    52
 
 EXHIBITS
  EXHIBIT
      A
    FORM
      OF DEBT SECURITY
 
  
  
   -iv-
   THIS
INDENTURE, dated as of December 22, 2004, between Vineyard National Bancorp, a
bank holding company incorporated in California (hereinafter sometimes called
the “Company”), and Wells Fargo Bank, National Association, a national banking
association with its principal place of business in the State of Delaware, as
trustee (hereinafter sometimes called the “Trustee”).
  W I T N E
S S E T H :
  WHEREAS,
for its lawful corporate purposes, the Company has duly authorized the issuance
of its Floating Rate Junior Subordinated Debt Securities due 2034 (the “Debt
Securities”) under this Indenture and to provide, among other things, for the
execution and authentication, delivery and administration thereof, the Company
has duly authorized the execution of this Indenture.
  NOW,
THEREFORE, in consideration of the premises, and the purchase of the Debt
Securities by the holders thereof, the Company covenants and agrees with the
Trustee for the equal and proportionate benefit of the respective holders from
time to time of the Debt Securities as follows:
  ARTICLE
I
  
  DEFINITIONS
  SECTION
1.01.  Definitions .
  The terms
defined in this Section 1.01 (except as herein otherwise expressly provided or
unless the context otherwise requires) for all purposes of this Indenture and of
any indenture supplemental hereto shall have the respective meanings specified
in this Section 1.01. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance with
generally accepted accounting principles and the term “generally accepted
accounting principles” means such accounting principles as are generally
accepted in the United States at the time of any computation. The words
“herein,” “hereof” and “hereunder” and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision.
  “ Acceleration
Event of Default ”: has
the meaning set forth in Section 5.01.
  “ Additional
Amounts ”: has
the meaning set forth in Section 3.06.
  “ Additional
Provisions ”: has
the meaning set forth in Section 15.01.
  “ 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.
  1
 “ Business
Day ”: means
any day other than a Saturday, Sunday or any other day on which banking
institutions in Wilmington, Delaware, New York City or Irvine,
California are permitted or required by any applicable law or executive order to
close.
  “ Calculation
Agent ”: means
the Person identified as “Trustee” in the first paragraph hereof with respect to
the Debt Securities and the Institutional Trustee with respect to the Trust
Securities.
  “ Capital
Securities ”: means
undivided beneficial interests in the assets of the Trust which are designated
as “TruPS ® ”
and  rank *pari
passu* with
Common Securities issued by the Trust; provided , however , that if
an Event of Default (as defined in the Declaration) has occurred and is
continuing, the rights of holders of such Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and otherwise
are subordinated to the rights of holders of such Capital
Securities.
  “ Capital
Securities Guarantee ”: means
the guarantee agreement that the Company will enter into with Wells Fargo Bank,
National Association or other Persons that operates directly or indirectly for
the benefit of holders of Capital Securities of the Trust.
  “ Capital
Treatment Event ”: means
the receipt by the Company and the Trust of an Opinion of Counsel experienced in
such matters to the effect that, as a result of any amendment to, or change in,
the laws, rules 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
Debt Securities, 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 the then equivalent thereof) for purposes of the capital adequacy
guidelines of the Federal Reserve (or any successor regulatory authority with
jurisdiction over bank holding companies), as then in effect and applicable to
the Company; provided , however , that
the distribution of the Debt Securities in connection with the liquidation of
the Trust by the Company shall not in and of itself constitute a Capital
Treatment Event unless such liquidation shall have occurred in connection with a
Tax Event or an Investment Company Event. For the avoidance of doubt, the
adoption by the Federal Reserve of any of the proposals set forth in its notice
of proposed rulemaking dated May 6, 2004 as a final rule shall not constitute a
Capital Treatment 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.
  “ Clearstream ”: means
Citibank, N.A., as operator of Clearstream Banking, société
anonyme.
  “ Code ”: has
the meaning set forth in Section 4.03.
  “ Common
Securities ”: means
undivided beneficial interests in the assets of the Trust which are designated
as “Common Securities” and rank *pari
passu* with
Capital Securities issued by the Trust; provided , however , that if
an Event of Default (as defined in the Declaration) has occurred and is
continuing, the rights of holders of such Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and otherwise
are subordinated to the rights of holders of such Capital
Securities.
  “ Company ”: means
Vineyard National Bancorp, a bank holding company incorporated in California,
and, subject to the provisions of Article XI, shall include its successors
and assigns.
  2
 “ Comparable
Treasury Issue ”: means
with respect to any Special Redemption Date, the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the Remaining
Life that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the Remaining Life. If no United States Treasury
security has a maturity which is within a period from three months before to
three months after December 16, 2009, the two most closely
corresponding United States Treasury securities shall be used as the Comparable
Treasury Issue, and the Treasury Rate shall be interpolated or extrapolated on a
straight-line basis, rounding to the nearest month using such
securities.
  “ Comparable
Treasury Price ”: means
(a) the average of five Reference Treasury Dealer Quotations for such Special
Redemption Date, after excluding the highest and lowest such Reference Treasury
Dealer Quotations, or (b) if the Quotation Agent receives fewer than five such
Reference Treasury Dealer Quotations, the average of all such
Quotations.
  “ Debt
Security ” or
“ Debt
Securities ”: has
the meaning stated in the first recital of this Indenture.
  “ Debt
Security Register ”: has
the meaning specified in Section 2.05.
  “ Declaration ”: means
the Amended and Restated Declaration of Trust of the Trust dated as of December
22, 2004, as amended or supplemented from time to time.
  “ Default ”: means
any event, act or condition that with notice or lapse of time, or both, would
constitute an Event of Default.
  “ Defaulted
Interest ”: has
the meaning set forth in Section 2.08.
  “ Deferred
Interest ”: has
the meaning set forth in Section 2.11.
  “ Euroclear ”:
Euroclear Bank S.A./N.V. as operator and depository of the Euroclear
system.
  “ Event
of Default ”: means
any event specified in Section 5.01, which has continued for the period of
time, if any, and after the giving of the notice, if any, therein
designated.
  “ Exchange
Act ”: means
the Securities Exchange Act of 1934, as amended.
  “ Extension
Period ”: has
the meaning set forth in Section 2.11.
  “ Federal
Reserve ”: means
the Board of Governors of the Federal Reserve System.
  “ 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 16, June 16, September 16 and December 16 of each year, commencing on
March 16, 2005, during the term of this Indenture.
  “ Interest
Period ”: has
the meaning set forth in Section 2.08.
  “ Interest
Rate ”: means
subject to the occurrence of a Reset Event, a per annum rate of interest, reset
quarterly, equal to LIBOR, as determined on the LIBOR Determination Date for
such Interest Period, plus 2.00%. A Reset Event will occur if on any day
specified by the Initial Purchaser (as defined in the Declaration), Regional
Diversified Funding 2004-II Ltd. or another pooled trust preferred vehicle
becomes the registered owner of the Capital Securities (such day, the “Reset
Date”). Upon the occurrence of a Reset Event, the applicable LIBOR will be reset
on the Reset Date to be equal to the LIBOR applicable on the newly issued trust
preferred capital securities with the same LIBOR Determination Dates issued by
other trust subsidiaries of bank holding companies or thrift holding companies
who issue LIBOR based 30 year floating rate trust preferred capital securities
to Regional Diversified Funding 2004-II Ltd. or another pooled trust preferred
vehicle designated by the Initial Purchaser.
  3
 “ Investment
Company Event ”: means
the receipt by the Company and the Trust of an Opinion of Counsel experienced in
such matters to the effect that, as a result of a change in law or regulation or
written change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority, there is
more than an insubstantial risk that the Trust is or, within 90 days of the date
of such opinion will be, considered an “investment company” that is required to
be registered under the Investment Company Act of 1940, as amended, which change
or prospective change becomes effective or would become effective, as the case
may be, on or after the date of the original issuance of the Debt
Securities.
  “ LIBOR ”: means
the London Interbank Offered Rate for U.S. Dollar deposits in Europe as
determined by the Calculation Agent according to
Section 2.10(b).
  “ LIBOR
Banking Day ”: has
the meaning set forth in Section 2.10(b)(1).
  “ LIBOR
Business Day ”: has
the meaning set forth in Section 2.10(b)(1).
  “ LIBOR
Determination Date ”: has
the meaning set forth in Section 2.10(b).
  “ Liquidation
Amount ”: means
the stated amount of $1,000 per Trust Security.
  “ Maturity
Date ”: means
December 16, 2034.
  “ Officers’
Certificate ”: means
a certificate signed by the Chairman of the Board, the Vice Chairman, the
President or any Vice President, and by the Chief Financial Officer, the
Treasurer, an Assistant Treasurer, the Comptroller, an Assistant Comptroller,
the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee. Each such certificate shall include the statements provided for in
Section 14.06 if and to the extent required by the provisions of such
Section.
  “ Opinion
of Counsel ”: means
an opinion in writing signed by legal counsel, who may be an employee of or
counsel to the Company, or may be other counsel reasonably satisfactory to the
Trustee. Each such opinion shall include the statements provided for in
Section 14.06 if and to the extent required by the provisions of such
Section.
  The term
“ outstanding ,” when
used with reference to Debt Securities, subject to the provisions of
Section 7.04, means, as of any particular time, all Debt Securities
authenticated and delivered by the Trustee or the Authenticating Agent under
this Indenture, except
  (a)  Debt
Securities theretofore canceled by the Trustee or the Authenticating Agent or
delivered to the Trustee for cancellation;
  (b)  Debt
Securities, or portions thereof, for the payment or redemption of which moneys
in the necessary amount shall have been deposited in trust with the Trustee or
with any Paying Agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own Paying
Agent); provided , that,
if such Debt Securities, or portions thereof, are to be redeemed prior to
maturity thereof, notice of such redemption shall have been given as provided in
Articles X and XIV or provision satisfactory to the Trustee shall have been made
for giving such notice; and
  4
 (c)  Debt
Securities paid pursuant to Section 2.06 or in lieu of or in substitution
for which other Debt Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.06 unless proof satisfactory to the
Company and the Trustee is presented that any such Debt Securities are held by
bona fide holders in due course.
  “ Paying
Agent ”: has
the meaning set forth in Section 3.04(e).
  “ Person ”: means
any individual, corporation, limited liability company, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
  “ Predecessor
Security ”: of any
particular Debt Security means every previous Debt Security evidencing all or a
portion of the same debt as that evidenced by such particular Debt Security;
and, for the purposes of this definition, any Debt Security authenticated and
delivered under Section 2.06 in lieu of a lost, destroyed or stolen Debt
Security shall be deemed to evidence the same debt as the lost, destroyed or
stolen Debt Security.
  “ Primary
Treasury Dealer ”: means
a primary United States Government securities dealer in New York
City.
  “ Principal
Office of the Trustee ”: means
the office of the Trustee, at which at any particular time its corporate trust
business shall be principally administered, which at all times shall be located
within the United States and at the time of the execution of this Indenture
shall be 919 North Market Street, Suite 700, Wilmington, DE 19801.
  “ Quotation
Agent ”: means
Citigroup Global Markets Inc. and its successors; provided , however , that if
the foregoing shall cease to be a Primary Treasury Dealer, the Company shall
substitute therefor another Primary Treasury Dealer.
  “ Redemption
Date ”: has
the meaning set forth in Section 10.01.
  “ Redemption Price ”: means
100% of the principal amount of the Debt Securities being redeemed plus
accrued and unpaid interest on such Debt Securities to the Redemption Date or,
in the case of redemption at full maturity, the Maturity Date, or, in the case
of a redemption due to the occurrence of a Special Event, to the Special
Redemption Date if such Special Redemption Date is on or after
December 16, 2009.
  “ Reference
Treasury Dealer ”: means
(i) the Quotation Agent and (ii) any other Primary Treasury Dealer selected by
the Trustee after consultation with the Company.
  “ Reference
Treasury Dealer Quotations ”: means,
with respect to each Reference Treasury Dealer and any Special Redemption Date,
the average, as determined by the Quotation Agent, of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such Reference Treasury
Dealer at 5:00 p.m., New York City time, on the third Business Day preceding
such Special Redemption Date.
  5
 “ Regulation
S Transferee ”: means
a non-U.S. Person acquiring Debt Securities in accordance with Regulation S
under the Securities Act.
  “ Remaining
Life ”: means,
with respect to any Debt Security, the period from the Special Redemption Date
for such Debt Security to December 16, 2009.
  “ Reset
Date ”: means
“Reset Date” as used in the definition of Interest Rate.
  “ Reset
Event ”: means
“Reset Event” as used in the definition of Interest Rate.
  “ Responsible
Officer ”: means,
with respect to the Trustee, any officer within the Principal Office of the
Trustee with direct responsibility for the administration of the Indenture,
including any vice-president, any assistant vice-president, any secretary, any
assistant secretary, the treasurer, any assistant treasurer, any trust officer
or other officer of the Principal Office of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer’s knowledge of
and familiarity with the particular subject.
  “ Securities
Act ”: means
the Securities Act of 1933, as amended.
  “ Securityholder, ”
“ holder
of Debt Securities ” or
other similar terms: means any Person in whose name at the time a particular
Debt Security is registered on the Debt Security Register.
  “ Senior
Indebtedness ”: means,
with respect to the Company, (i) the principal, premium, if any, and
interest in respect of (A) indebtedness of the Company for money borrowed
and (B) indebtedness evidenced by securities, debentures, notes, bonds or
other similar instruments issued by the Company; (ii) all capital lease
obligations of the Company; (iii) all obligations of the Company issued or
assumed as the deferred purchase price of property, all conditional sale
obligations of the Company and all obligations of the Company under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of the Company for the
reimbursement of any letter of credit, any banker’s acceptance, any security
purchase facility, any repurchase agreement or similar arrangement, any interest
rate swap, any other hedging arrangement, any obligation under options or any
similar credit or other transaction; (v) all obligations of the type
referred to in clauses (i) through (iv) above of other Persons for the
payment of which the Company is responsible or liable as obligor, guarantor or
otherwise (“ guarantees ”); and
(vi) all obligations of the type referred to in clauses (i) through (v)
above of other Persons secured by any lien on any property or asset of the
Company (whether or not such obligation is assumed by the Company), whether
incurred on or prior to the date of this Indenture or thereafter incurred, except
that Senior Indebtedness does not include obligations in respect of (1) any
indebtedness issued under this Indenture, (2) the Capital Securities Guarantee,
and (3) any indebtedness or any guarantee that is
by its terms subordinated to or *pari
passu* with the
Debt Securities and the issuance of which, in the case of this clause (3) only,
(x) has received the concurrence or
approval of the staff of the Federal
Reserve or (y) does not at the time of issuance prevent the Debt Securities from
qualifying for Tier 1 capital treatment (irrespective of any limits on the
amount includible in the Company’s Tier 1 capital) under the applicable capital
adequacy guidelines, regulations, policies or published interpretations of the
Federal Reserve, including, without limitation, the debt securities of the
Company issued under the Indenture, dated December 19, 2002 ,between the Company
and Wilmington Trust Company, as trustee, including, without limitation, the
debt securities of the Company issued under the Indenture, dated December 19,
2002, between the Company and State Street Bank and Trust Company of
Connecticut, National Association, as trustee, including, without limitation,
the debt securities of the Company issued under the Indenture, dated September
25, 2003 between the Company and Wilmington Trust Company , as trustee,
including, without limitation, the debt securities of the Company issued under
the Indenture, dated December 19, 2003, between the Company and Wilmington Trust
Company, as trustee, including, without limitation, the debt securities of the
Company issued under the Indenture, dated March 25, 2004, between the Company
and JPMorgan Chase Bank, as trustee, and including, without limitation, the debt
securities of the Company issued under the Indenture, dated May 18, 2004 ,
between the Company and JPMorgan Chase Bank, as trustee.
  6
 “ Special
Event ”: means
any of a Tax Event, an Investment Company Event or a Capital Treatment
Event.
  “ Special
Redemption Date ”: has
the meaning set forth in Section 10.02.
  “ Special
Redemption Price ”: means
(1) if the Special Redemption Date is before December 16, 2009, the
greater of (a) 100% of the principal amount of the Debt Securities being
redeemed pursuant to Section 10.02 or (b) as determined by a Quotation Agent,
the sum of the present value of the principal amount payable as part of the
Redemption Price with respect to a redemption as of December 16, 2009,
together with the present value of interest payments over the Remaining Life of
such Debt Securities calculated at a fixed per annum rate of interest equal to
7.12%, discounted to the Special Redemption Date on a quarterly basis (assuming
a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus
0.50%, plus, in the case of either (a) or (b), accrued and unpaid interest on
such Debt Securities to the Special Redemption Date and (2) if the Special
Redemption Date is on or after December 16, 2009, the
Redemption  Price for
such Special Redemption Date.
  “ Subsidiary ”: means,
with respect to any Person, (i) any corporation, at least a majority of the
outstanding voting stock of which is owned, directly or indirectly, by such
Person or by one or more of its Subsidiaries, or by such Person and one or more
of its Subsidiaries, (ii) any general partnership, joint venture or similar
entity, at least a majority of the outstanding partnership or similar interests
of which shall at the time be owned by such Person, or by one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries, and
(iii) any limited partnership of which such Person or any of its
Subsidiaries is a general partner. For the purposes of this definition, “voting
stock” means shares, interests, participations or other equivalents in the
equity interest (however designated) in such Person having ordinary voting power
for the election of a majority of the directors (or the equivalent) of such
Person, other than shares, interests, participations or other equivalents having
such power only by reason of the occurrence of a contingency.
  “ Tax
Event ”: means
the receipt by the Company and the Trust of an Opinion of Counsel experienced in
such matters to the effect that, as a result of any amendment to or change
(including any announced prospective change) in the laws or any regulations
thereunder of the United States or any political subdivision or taxing authority
thereof or therein, or as a result of any official administrative pronouncement
(including any private letter ruling, technical advice memorandum, regulatory
procedure, notice or announcement (an “Administrative Action”)) or judicial
decision interpreting or applying such laws or regulations, regardless of
whether such Administrative Action or judicial decision is issued to or in
connection with a proceeding involving the Company or the Trust and whether or
not subject to review or appeal, which amendment, clarification, change,
Administrative Action or decision is enacted, promulgated or announced, in each
case on or after the date of original issuance of the Debt Securities, there is
more than an insubstantial risk that: (i) the Trust is, or will be within
90 days of the date of such opinion, subject to United States federal income tax
with respect to income received or accrued on the Debt Securities; (ii) interest
payable by the Company on the Debt Securities is not, or within 90 days of the
date of such opinion, will not be, deductible by the Company, in whole or in
part, for United States federal income tax purposes; or (iii) the Trust is, or
will be within 90 days of the date of such opinion, subject to or otherwise
required to pay, or required to withhold from distributions to holders of Trust
Securities, more than a de minimis amount of other taxes (including withholding
taxes), duties, assessments or other governmental charges.
  7
 “ Treasury
Rate ”: means
(i) the yield, under the heading which represents the average for the week
immediately prior to the date of calculation, appearing in the most recently
published statistical release designated H.15 (519) or any successor publication
which is published weekly by the Federal Reserve and which establishes yields on
actively traded United States Treasury securities adjusted to constant maturity
under the caption “Treasury Constant Maturities,” for the maturity corresponding
to the Remaining Life (if no maturity is within three months before or after the
Remaining Life, yields for the two published maturities most closely
corresponding to the Remaining Life shall be determined and the Treasury Rate
shall be interpolated or extrapolated from such yields on a straight-line basis,
rounding to the nearest month) or (ii) if such release (or any successor
release) is not published during the week preceding the calculation date or does
not contain such yields, the rate per annum equal to the quarterly equivalent
yield to maturity of the Comparable Treasury Issue, calculated using a price for
the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such Special Redemption Date.
The Treasury Rate shall be calculated on the third Business Day preceding the
Special Redemption Date.
  “ Trust ”: means
Vineyard Statutory Trust VII, the Delaware statutory trust, or any other similar
trust created for the purpose of issuing Capital Securities in connection with
the issuance of Debt Securities under this Indenture, of which the Company is
the sponsor.
  “ Trust
Indenture Act ”: means
the Trust Indenture Act of 1939, as amended from time-to-time, or any successor
legislation.
  “ Trust
Securities ”: means
Common Securities and Capital Securities of Vineyard Statutory Trust
VII.
  “ Trustee ”: means
the Person identified as “Trustee” in the first paragraph hereof, and, subject
to the provisions of Article VI hereof, shall also include its successors
and assigns as Trustee hereunder.
  “ United
States ”: means
the United States of America and the District of Columbia.
  “ U.S.
Person ”: has
the meaning given to United States Person as set forth in Section 7701(a)(30) of
the Code.
  ARTICLE
II
  
  DEBT
SECURITIES
  SECTION
2.01.  Authentication
and Dating .
  Upon the
execution and delivery of this Indenture, or from time to time thereafter, Debt
Securities in an aggregate principal amount not in excess of $10,310,000 may be
executed and delivered by the Company to the Trustee for authentication, and the
Trustee shall thereupon authenticate and make available for delivery said Debt
Securities to or upon the written order of the Company, signed by its Chairman
of the Board of Directors, Vice Chairman, President or Chief Financial Officer
or one of its Vice Presidents, without any further action by the Company
hereunder. In authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities, the
Trustee shall be entitled to receive, and (subject to Section 6.01) shall
be fully protected in relying upon a copy of any Board Resolution or Board
Resolutions relating thereto and, if applicable, an appropriate record of any
action taken pursuant to such resolution, in each case certified by the
Secretary or an Assistant Secretary or other officers with appropriate delegated
authority of the Company as the case may be.
  8
 The
Trustee shall have the right to decline to authenticate and deliver any Debt
Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if a Responsible
Officer of the Trustee in good faith shall determine that such action would
expose the Trustee to personal liability to existing
Securityholders.
  The
definitive Debt Securities shall be typed, printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Debt Securities, as evidenced by their execution
of such Debt Securities.
  SECTION
2.02.  Form
of Trustee’s Certificate of Authentication .
  The
Trustee’s certificate of authentication on all Debt Securities shall be in
substantially the following form:
  This is
one of the Debt Securities referred to in the within-mentioned
Indenture.
  Wells
Fargo Bank, National Association, not in its individual capacity but solely as
trustee
  By_________________________
  Authorized
Officer
  SECTION
2.03.  Form
and Denomination of Debt Securities .
  Subject
to Section 2.05, the Debt Securities shall be substantially in the form of
Exhibit A hereto. The Debt Securities shall be in registered, certificated form
without coupons and in minimum denominations of $100,000 and any multiple of
$1,000 in excess thereof. The Debt Securities shall be numbered, lettered, or
otherwise distinguished in such manner or in accordance with such plans as the
officers executing the same may determine with the approval of the Trustee as
evidenced by the execution and authentication thereof.
  SECTION
2.04.  Execution
of Debt Securities .
  The Debt
Securities shall be signed in the name and on behalf of the Company by the
manual or facsimile signature of its Chairman of the Board of Directors, Vice
Chairman, President or Chief Financial Officer or one of its Executive Vice
Presidents, Senior Vice Presidents or Vice Presidents, by facsimile or
otherwise, and which need not be attested. Only such Debt Securities as shall
bear thereon a certificate of authentication substantially in the form herein
before recited, executed by the Trustee or the Authenticating Agent by the
manual signature of an authorized officer, shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose. Such certificate by
the Trustee or the Authenticating Agent upon any Debt Security executed by the
Company shall be conclusive evidence that the Debt Security so authenticated has
been duly authenticated and delivered hereunder and that the holder is entitled
to the benefits of this Indenture.
  In case
any officer of the Company who shall have signed any of the Debt Securities
shall cease to be such officer before the Debt Securities so signed shall have
been authenticated and delivered by the Trustee or the Authenticating Agent, or
disposed of by the Company, such Debt Securities nevertheless may be
authenticated and delivered or disposed of as though the Person who signed such
Debt Securities had not ceased to be such officer of the Company; and any Debt
Security may be signed on behalf of the Company by such Persons as, at the
actual date of the execution of such Debt Security, shall be the proper officers
of the Company, although at the date of the execution of this Indenture any such
person was not such an officer.
  9
 Every
Debt Security shall be dated the date of its authentication.
  SECTION
2.05.  Exchange
and Registration of Transfer of Debt Securities .
  The
Company shall cause to be kept, at the office or agency maintained for the
purpose of registration of transfer and for exchange as provided in
Section 3.02, a register (the “Debt Security Register”) for the Debt
Securities issued hereunder in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration and transfer of
all Debt Securities as provided in this Article II. Such register shall be in
written form or in any other form capable of being converted into written form
within a reasonable time.
  Debt
Securities to be exchanged may be surrendered at the Principal Office of the
Trustee or at any office or agency to be maintained by the Company for such
purpose as provided in Section 3.02, and the Company shall execute, the Company
or the Trustee shall register and the Trustee or the Authenticating Agent shall
authenticate and make available for delivery in exchange therefor the Debt
Security or Debt Securities which the Securityholder making the exchange shall
be entitled to receive. Upon due presentment for registration of transfer of any
Debt Security at the Principal Office of the Trustee or at any office or agency
of the Company maintained for such purpose as provided in Section 3.02, the
Company shall execute, the Company or the Trustee shall register and the Trustee
or the Authenticating Agent shall authenticate and make available for delivery
in the name of the transferee or transferees a new Debt Security for a like
aggregate principal amount. Registration or registration of transfer of any Debt
Security by the Trustee or by any agent of the Company appointed pursuant to
Section 3.02, and delivery of such Debt Security, shall be deemed to
complete the registration or registration of transfer of such Debt
Security.
  All Debt
Securities presented for registration of transfer or for exchange or payment
shall (if so required by the Company or the Trustee or the Authenticating Agent)
be duly endorsed by, or be accompanied by, a written instrument or instruments
of transfer in form satisfactory to the Company and either the Trustee or the
Authenticating Agent duly executed by, the holder or such holder’s attorney duly
authorized in writing.
  No
service charge shall be made for any exchange or registration of transfer of
Debt Securities, but the Company or the Trustee may require payment of a sum
sufficient to cover any tax, fee or other governmental charge that may be
imposed in connection therewith.
  The
Company or the Trustee shall not be required to exchange or register a transfer
of any Debt Security for a period of 15 days immediately preceding the date of
selection of Debt Securities for redemption.
  Upon the
request of the Initial Purchaser (as defined in the Declaration ) the Company
shall provide for the Debt Securities to be transferred and held through the
facilities of The Depository Trust Company, the Euroclear, Clearstream or
similar book-entry systems for holders and transferees who are qualified
institutional buyers for purposes of Rule 144A under the Securities Act or
Regulation S Transferees or, consistent with an opinion of counsel, other
holders or transferees. The Company shall cause appropriate revisions to the
form of Debt Securities necessary to facilitate book-entry transfers and
holding.
  10
 Notwithstanding
the foregoing, Debt Securities may not be transferred except in compliance with
the restricted securities legend set forth below (subject to the preceding
paragraph), unless otherwise determined by the Company in accordance with
applicable law, which legend shall be placed on each Debt Security:
  THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TO THE COMPANY, (B) PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON THE HOLDER
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (C) TO A “NON-U.S. PERSON” IN AN “OFFSHORE TRANSACTION”
PURSUANT TO REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO AN “ACCREDITED
INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE
501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT,
OR FOR THE ACCOUNT OF AN “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A
COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY. THE HOLDER OF THIS SECURITY BY
ITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.
  THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS AND WARRANTS
THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THIS SECURITY UNLESS
SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT.
  11
 THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR
OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (EACH A “PLAN”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT
IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR
HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO
SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY
INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING
THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF
SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT
RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF
THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.
  IN
CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY WILL DELIVER TO THE
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.
  THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A PRINCIPAL
AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY
ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING A PRINCIPAL AMOUNT OF LESS
THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY
SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF THIS SECURITY
FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON
THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST
WHATSOEVER IN THIS SECURITY.
  SECTION
2.06.  Mutilated,
Destroyed, Lost or Stolen Debt Securities .
  In case
any Debt Security shall become mutilated or be destroyed, lost or stolen, the
Company shall execute, and upon its written request the Trustee shall
authenticate and deliver, a new Debt Security bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Debt Security, or in lieu of and in substitution for the Debt Security so
destroyed, lost or stolen. In every case the applicant for a substituted Debt
Security shall furnish to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company and
the Trustee evidence to their satisfaction of the destruction, loss or theft of
such Debt Security and of the ownership thereof.
  The
Trustee may authenticate any such substituted Debt Security and deliver the same
upon the written request or authorization of any officer of the Company. Upon
the issuance of any substituted Debt Security, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses connected therewith.
In case any Debt Security which has matured or is about to mature or has been
called for redemption in full shall become mutilated or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Debt Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated Debt Security) if the applicant for such payment shall furnish to
the Company and the Trustee such security or indemnity as may be required by
them to save each of them harmless and, in case of destruction, loss or theft,
evidence satisfactory to the Company and to the Trustee of the destruction, loss
or theft of such Debt Security and of the ownership thereof.
  12
 Every
substituted Debt Security issued pursuant to the provisions of this Section 2.06
by virtue of the fact that any such Debt Security is destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Debt Security shall be found at any time, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debt Securities duly issued hereunder.
All Debt Securities shall be held and owned upon the express condition that, to
the extent permitted by applicable law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Debt Securities and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
  SECTION
2.07.  Temporary
Debt Securities .
  Pending
the preparation of definitive Debt Securities, the Company may execute and the
Trustee shall authenticate and make available for delivery temporary Debt
Securities that are typed, printed or lithographed. Temporary Debt Securities
shall be issuable in any authorized denomination, and substantially in the form
of the definitive Debt Securities but with such omissions, insertions and
variations as may be appropriate for temporary Debt Securities, all as may be
determined by the Company. Every such temporary Debt Security shall be executed
by the Company and be authenticated by the Trustee upon the same conditions and
in substantially the same manner, and with the same effect, as the definitive
Debt Securities. Without unreasonable delay, the Company will execute and
deliver to the Trustee or the Authenticating Agent definitive Debt Securities
and thereupon any or all temporary Debt Securities may be surrendered in
exchange therefor, at the Principal Office of the Trustee or at any office or
agency maintained by the Company for such purpose as provided in Section 3.02,
and the Trustee or the Authenticating Agent shall authenticate and make
available for delivery in exchange for such temporary Debt Securities a like
aggregate principal amount of such definitive Debt Securities. Such exchange
shall be made by the Company at its own expense and without any charge therefor
except that in case of any such exchange involving a registration of transfer
the Company may require payment of a sum sufficient to cover any tax, fee or
other governmental charge that may be imposed in relation thereto. Until so
exchanged, the temporary Debt Securities shall in all respects be entitled to
the same benefits under this Indenture as definitive Debt Securities
authenticated and delivered hereunder.
  SECTION
2.08.  Payment
of Interest .
  Each Debt
Security will bear interest at the then applicable Interest Rate, for the period
from and including the immediately preceding Interest Payment Date or, in the
case of the first interest period, the original date of issuance of such Debt
Security to, but excluding, the next applicable Interest Payment Date or, in the
case of the last interest period, the Redemption Date, Special Redemption Date
or Maturity Date, as applicable (each such period an “Interest Period”), on the
principal thereof, on any overdue principal and (to the extent that payment of
such interest is enforceable under applicable law) on Deferred Interest and on
any overdue installment of interest (including Defaulted Interest), payable
(subject to the provisions of Article XV) on each Interest Payment Date
commencing on March 16, 2005. Interest and any Deferred Interest on any Debt
Security that is payable, and is punctually paid or duly provided for by the
Company, on any Interest Payment Date shall be paid to the Person in whose name
said Debt Security (or one or more Predecessor Securities) is registered at the
close of business on the regular record date for such interest installment,
except that interest and any Deferred Interest payable on the Maturity Date, the
Redemption Date or the Special Redemption Date, as the case may be, shall be
paid to the Person to whom principal is paid. In the event that any Debt
Security or portion thereof is called for redemption and the redemption date is
subsequent to a regular record date with respect to any Interest Payment Date
and prior to such Interest Payment Date, interest on such Debt Security will be
paid upon presentation and surrender of such Debt Security.
  13
 Any
interest on any Debt Security, other than Deferred Interest, that is payable,
but is not punctually paid or duly provided for by the Company, on any Interest
Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be
payable to the registered holder on the relevant regular record date by virtue
of having been such holder, and such Defaulted Interest shall be paid by the
Company to the Persons in whose names such Debt Securities (or their respective
Predecessor Securities) are registered at the close of business on a special
record date for the payment of such Defaulted Interest, which shall be fixed in
the following manner: the Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each such Debt Security and
the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements reasonably
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a special record date for the payment of such
Defaulted Interest which shall not be more than fifteen nor less than ten days
prior to the date of the proposed payment and not less than ten days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed, first
class postage prepaid, to each Securityholder at his or her address as it
appears in the Debt Security Register, not less than ten days prior to such
special record date. Notice of the proposed payment of such Defaulted Interest
and the special record date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names such Debt
Securities (or their respective Predecessor Securities) are registered on such
special record date and thereafter the Company shall have no further payment
obligation in respect of the Defaulted Interest.
  Any
interest scheduled to become payable on an Interest Payment Date occurring
during an Extension Period shall not be Defaulted Interest and shall be payable
on such other date as may be specified in the terms of such Debt
Securities.
  The term
“regular record date” as used herein shall mean the fifteenth day prior to an
Interest Payment Date whether or not such date is  a
Business Day.
  Subject
to the foregoing provisions of this Section, each Debt Security delivered under
this Indenture upon registration of transfer of or in exchange for or in lieu of
any other Debt Security shall carry the rights to interest accrued and unpaid,
and to accrue, that were carried by such other Debt Security.
  SECTION
2.09.  Cancellation
of Debt Securities Paid, etc .
  All Debt
Securities surrendered for the purpose of payment, redemption, exchange or
registration of transfer, shall, if surrendered to the Company or any Paying
Agent, be surrendered to the Trustee and promptly canceled by it, or, if
surrendered to the Trustee or any Authenticating Agent, shall be promptly
canceled by it, and no Debt Securities shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. All Debt
Securities canceled by any Authenticating Agent shall be delivered to the
Trustee. The Trustee shall destroy all canceled Debt Securities unless the
Company otherwise directs the Trustee in writing, in which case the Trustee
shall dispose of such Debt Securities as directed by the Company. If the Company
shall acquire any of the Debt Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Debt Securities unless and until the same are surrendered to the Trustee for
cancellation.
  14
 SECTION
2.10.  Computation
of Interest .
  (a)  The
amount of interest payable for each Interest Period will be computed on the
basis of a 360-day year and the actual number of days elapsed in the relevant
interest period; provided , however , that
upon the occurrence of a Special Event Redemption pursuant to Section 10.02 the
amounts payable pursuant to this Indenture shall be calculated as set forth in
the definition of Special Redemption Price.
  (b)  LIBOR for
a given Interest Period shall be determined by the Calculation Agent in
accordance with the following provisions:
  (1)  Subject
to the occurrence of a Reset Event, on the second LIBOR Business Day
( provided , that on
such day commercial banks are open for business (including dealings in foreign
currency deposits) in London (a “LIBOR Banking Day”), and otherwise the next
preceding LIBOR Business Day that is also a LIBOR Banking Day) prior to March 1,
June 1, September 1 and December 1), as the case may be, immediately prior to
the commencement of such Interest Period (except, with respect to the first
Interest Period, LIBOR for such Interest Period shall be determined on
December 15, 2004) (each such day, a “LIBOR Determination Date”), LIBOR
shall equal the rate, as obtained by the Calculation Agent, for three-month U.S.
Dollar deposits in Europe which appears on Telerate Page 3750 (as defined in the
International Swaps and Derivatives Association, Inc. 1991 Interest Rate and
Currency Exchange Definitions) or such other page as may replace such Telerate
Page 3750, as of 11:00 a.m. (London time) on such LIBOR Determination Date, as
reported by Bloomberg Financial Markets Commodities News. “LIBOR Business Day”
means any day that is not a Saturday, Sunday or other day on which commercial
banking institutions in New York, New York or Wilmington, Delaware are
authorized or obligated by law or executive order to be closed. If such rate is
superseded on Telerate Page 3750 by a corrected rate before 12:00 noon (London
time) on the same LIBOR Determination Date, the corrected rate as so substituted
will be the applicable LIBOR for that LIBOR Determination Date.
  (2)  If, on
any LIBOR Determination Date, such rate does not appear on Telerate Page 3750 as
reported by Bloomberg Financial Markets Commodities News or such other page as
may replace such Telerate Page 3750, the Calculation Agent shall determine the
arithmetic mean of the offered quotations of the Reference Banks (as defined
below) to leading banks in the London interbank market for three-month U.S.
Dollar deposits in Europe (in an amount determined by the Calculation Agent) by
reference to requests for quotations as of approximately 11:00 a.m. (London
time) on the LIBOR Determination Date made by the Calculation Agent to the
Reference Banks. If, on any LIBOR Determination Date, at least two of the
Reference Banks provide such quotations, LIBOR shall equal the arithmetic mean
of such quotations. If, on any LIBOR Determination Date, only one or none of the
Reference Banks provides such a quotation, LIBOR shall be deemed to be the
arithmetic mean of the offered quotations that at least two leading banks in the
City of New York (as selected by the Calculation Agent) are quoting on the
relevant LIBOR Determination Date for three-month U.S. Dollar deposits in Europe
at approximately 11:00 a.m. (London time) in an amount determined by the
Calculation Agent. As used herein, “Reference Banks” means four major banks in
the London interbank market selected by the Calculation Agent.
  (3)  If the
Calculation Agent is required but is unable to determine a rate in accordance
with at least one of the procedures provided above, LIBOR for such Interest
Period shall be LIBOR in effect for the immediately preceding Interest
Period.
  15
 (c)  All
percentages resulting from any calculations on the Debt Securities will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)), and all
dollar amounts used in or resulting from such calculation will be rounded to the
nearest cent (with one-half cent being rounded upward).
  (d)  On each
LIBOR Determination Date and the Reset Date, the Calculation Agent shall notify,
in writing, the Company and the Paying Agent of the applicable Interest Rate in
effect for the related Interest Payment Date. The Calculation Agent shall, upon
the request of the holder of any Debt Securities, provide the Interest Rate then
in effect. All calculations made by the Calculation Agent in the absence of
manifest error shall be conclusive for all purposes and binding on the Company
and the Holders of the Debt Securities. The Paying Agent shall be entitled to
rely on information received from the Calculation Agent or the Company as to the
Interest Rate. The Company shall, from time to time, provide any necessary
information to the Paying Agent relating to any original issue discount and
interest on the Debt Securities that is included in any payment and reportable
for taxable income calculation purposes.
  SECTION
2.11.  Extension
of Interest Payment Period .
  So long
as no Event of Default has occurred and is continuing, the Company shall have
the right, from time to time and without causing an Event of Default, to defer
payments of interest on the Debt Securities by extending the interest payment
period on the Debt Securities at any time and from time to time during the term
of the Debt Securities, for up to twenty consecutive quarterly periods (each
such extended interest payment period, an “Extension Period”), during which
Extension Period no interest shall be due and payable. No Extension Period may
end on a date other than an Interest Payment Date. During any Extension Period,
interest will continue to accrue on the Debt Securities, and interest on such
accrued interest (such accrued interest and interest thereon referred to herein
as “Deferred Interest”) will accrue at an annual rate equal to the Interest Rate
in effect for such Extension Period, compounded quarterly from the date such
Deferred Interest would have been payable were it not for the Extension Period,
to the extent permitted by law. No interest or Deferred Interest shall be due
and payable during an Extension Period, except at the end thereof. At the end of
any such Extension Period the Company shall pay all Deferred Interest then
accrued and unpaid on the Debt Securities; provided , however , that no
Extension Period may extend beyond the Maturity Date, Redemption Date or Special
Redemption Date; and provided  further , however , that
during any such Extension Period, the Company shall be subject to the
restrictions set forth in Section 3.08 of this Indenture. Prior to the
termination of any Extension Period, the Company may further extend such period, provided , that
such period together with all such previous and further consecutive extensions
thereof shall not exceed twenty consecutive quarterly periods, or extend beyond
the Maturity Date, Redemption Date or Special Redemption Date. The deferral of
the payment of interest during an Extension Period shall not defer the payment
of any Additional Amounts that may be due and payable. Upon the termination of
any Extension Period and upon the payment of all Deferred Interest, the Company
may commence a new Extension Period, subject to the foregoing requirements. The
Company must give the Trustee notice of its election to begin any Extension
Period at least one Business Day prior to the regular record date related to the
date such interest would otherwise be next payable. The Company must give the
Trustee notice of its election to extend any Extension Period at least one
Business Day prior to the regular record date related to the next succeeding
date on which interest on the Debt Securities would have been payable except for
the election to extend such existing Extension Period. The
Trustee shall give notice of the Company’s election to begin a new Extension
Period to the Securityholders.
  16
 
 SECTION
2.12.  CUSIP
Numbers .
  The
Company in issuing the Debt Securities may use a “CUSIP” number (if then
generally in use), and, if so, the Trustee shall use a “CUSIP” number in notices
of redemption as a convenience to Securityholders; provided , that
any such notice may state that no representation is made as to the correctness
of such number either as printed on the Debt Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Debt Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee in writing of any change in the CUSIP
number.
  ARTICLE
III
  
  PARTICULAR
COVENANTS OF THE COMPANY
  SECTION
3.01.  Payment
of Principal, Premium and Interest; Agreed Treatment of the Debt
Securities .
  (a)  The
Company covenants and agrees that it will duly and punctually pay or cause to be
paid all payments due on the Debt Securities at the place, at the respective
times and in the manner provided in this Indenture and the Debt Securities. At
the option of the Company, each installment of interest on the Debt Securities
may be paid (i) by mailing checks for such interest payable to the order of the
holders of Debt Securities entitled thereto as they appear on the Debt Security
Register or (ii) by wire transfer to any account with a banking institution
located in the United States designated by such holders to the Paying Agent no
later than the related record date.
  (b)  The
Company will treat the Debt Securities as indebtedness, and the interest payable
in respect of such Debt Securities as interest, for all U.S. federal income tax
purposes. All payments in respect of such Debt Securities will be made free and
clear of U.S. withholding tax to any beneficial owner thereof that has provided
an Internal Revenue Service Form W-8 BEN (or any substitute or successor form)
establishing its non-U.S. status for U.S. federal income tax
purposes.
  (c)  As of the
date of this Indenture, the Company has no intention to exercise its right under
Section 2.11 to defer payments of interest on the Debt Securities by commencing
an Extension Period.
  (d)  As of the
date of this Indenture, the Company believes that the likelihood that it would
exercise its right under Section 2.11 to defer payments of interest on the Debt
Securities by commencing an Extension Period at any time during which the Debt
Securities are outstanding is remote because of the restrictions that would be
imposed on the Company’s ability to declare or pay dividends or distributions
on, or to redeem, purchase or make a liquidation payment with respect to, any of
its outstanding equity and on the Company’s ability to make any payments of
principal of or interest on, or repurchase or redeem, any of its debt securities
that rank *pari
passu* in all
respects with (or junior in interest to) the Debt Securities.
  SECTION
3.02.  Offices
for Notices and Payments, etc .
  So long
as any of the Debt Securities remain outstanding, the Company will maintain in
Wilmington, Delaware or in Irvine, California an office or agency where the Debt
Securities may be presented for payment, an office or agency where the Debt
Securities may be presented for registration of transfer and for exchange as
provided in this Indenture and an office or agency where notices and demands to
or upon the Company in respect of the Debt Securities or of this Indenture may
be served. The Company will give to the Trustee written notice of the location
of any such office or agency and of any change of location thereof. Until
otherwise designated from time to time by the Company in a notice to the
Trustee, or specified as contemplated by Section 2.05, such office or agency for
all of the above purposes shall be the Principal Office of the Trustee. In case
the Company shall fail to maintain any such office or agency in Wilmington,
Delaware or in Irvine, California 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.
  17
 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 or
Irvine, California where the Debt Securities may be presented for registration
of transfer and for exchange in the manner provided in this Indenture, and the
Company may from time to time rescind such designation, as the Company may deem
desirable or expedient; provided , however , that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain any such office or agency in Wilmington, Delaware or in
Irvine, California for the purposes above mentioned. The Company will give to
the Trustee prompt written notice of any such designation or rescission
thereof.
  SECTION
3.03.  Appointments
to Fill Vacancies in Trustee’s Office .
  The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.09, a Trustee, so that there
shall at all times be a Trustee hereunder.
  SECTION
3.04.  Provision
as to Paying Agent .
  (a)  If the
Company shall appoint a Paying Agent other than the Trustee, it will cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provision of this Section
3.04,
  (1)  that it
will hold all sums held by it as such agent for the payment of all payments due
on the Debt Securities (whether such sums have been paid to it by the Company or
by any other obligor on the Debt Securities) in trust for the benefit of the
holders of the Debt Securities;
  (2)  that it
will give the Trustee prompt written notice of any failure by the Company (or by
any other obligor on the Debt Securities) to make any payment on the Debt
Securities when the same shall be due and payable; and
  (3)  that it
will, at any time during the continuance of any Event of Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
  (b)  If the
Company shall act as its own Paying Agent, it will, on or before each due date
of the payments due on the Debt Securities, set aside, segregate and hold in
trust for the benefit of the holders of the Debt Securities a sum sufficient to
pay such payments so becoming due and will notify the Trustee in writing of any
failure to take such action and of any failure by the Company (or by any other
obligor under the Debt Securities) to make any payment on the Debt Securities
when the same shall become due and payable.
  Whenever
the Company shall have one or more Paying Agents for the Debt Securities, it
will, on or prior to each due date of the payments on the Debt Securities,
deposit with a Paying Agent a sum sufficient to pay all payments so becoming
due, such sum to be held in trust for the benefit of the Persons entitled
thereto and (unless such Paying Agent is the Trustee) the Company shall promptly
notify the Trustee in writing of its action or failure to act.
  18
 (c)  Anything
in this Section 3.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge with respect to
the Debt Securities, or for any other reason, pay, or direct any Paying Agent to
pay to the Trustee all sums held in trust by the Company or any such Paying
Agent, such sums to be held by the Trustee upon the same terms and conditions
herein contained.
  (d)  Anything
in this Section 3.04 to the contrary notwithstanding, the agreement to hold sums
in trust as provided in this Section 3.04 is subject to Sections 12.03 and
12.04.
  (e)  The
Company hereby initially appoints the Trustee to act as Paying Agent (the
“Paying Agent”).
  SECTION
3.05.  Certificate
to Trustee .
  The
Company will deliver to the Trustee on or before 120 days after the end of each
fiscal year, so long as Debt Securities are outstanding hereunder, a Certificate
stating that in the course of the performance by the signers of their duties as
officers of the Company they would normally have knowledge of any default by the
Company in the performance of any covenants of the Company contained herein,
stating whether or not they have knowledge of any such default and, if so,
specifying each such default of which the signers have knowledge and the nature
thereof.
  SECTION
3.06.  Additional
Amounts .
  If and
for so long as the Trust is the holder of all Debt Securities and is subject to
or otherwise required to pay, or is required to withhold from distributions to
holders of Trust Securities, any additional taxes (including withholding taxes),
duties, assessments or other governmental charges as a result of a Tax Event,
the Company will pay such additional amounts (the “Additional Amounts”) on the
Debt Securities as shall be required so that the net amounts received and
retained by the Trust for distribution to holders of Trust Securities after
paying all taxes (including withholding taxes on distributions to holders of
Trust Securities), duties, assessments or other governmental charges will be
equal to the amounts the Trust would have received and retained for distribution
to holders of Trust Securities after paying all taxes (including withholding
taxes on distributions to holders of Trust Securities), duties, assessments or
other governmental charges if no such additional taxes, duties, assessments or
other governmental charges had been imposed. Whenever in this Indenture or the
Debt Securities there is a reference in any context to the payment of principal
of or interest on the Debt Securities, such mention shall be deemed to include
mention of payments of the Additional Amounts provided for in this paragraph to
the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to the provisions of this paragraph and
express mention of the payment of Additional Amounts (if applicable) in any
provisions hereof shall not be construed as excluding Additional Amounts 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 Amounts that may be
due and payable.
  SECTION
3.07.  Compliance
with Consolidation Provisions .
  The
Company will not, while any of the Debt Securities remain outstanding,
consolidate with, or merge into any other Person, or merge into itself, or sell
or convey all or substantially all of its property to any other Person unless
the provisions of Article XI hereof are complied with.
  19
 SECTION
3.08.  Limitation
on Dividends .
  If Debt
Securities are initially issued to the Trust or a trustee of such Trust in
connection with the issuance of Trust Securities by the Trust (regardless of
whether Debt Securities continue to be held by such Trust) and (i) there
shall have occurred and be continuing an Event of Default, (ii) the Company
shall be in default with respect to its payment of any obligations under the
Capital Securities Guarantee or (iii) the Company shall have given notice
of its election to defer payments of interest on the Debt Securities by
extending the interest payment period as provided herein and such period, or any
extension thereof, shall have commenced and be continuing, then the Company may
not (A) declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the Company’s
capital stock or (B) make any payment of principal of or interest or premium, if
any, on or repay, repurchase or redeem any debt securities of the Company that
rank *pari
passu* in ** all
respects with or junior in interest to the Debt Securities (other than (a)
repurchases, redemptions or other acquisitions of shares of capital stock of the
Company (I) in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of one or more employees, officers,
directors or consultants, (II) in connection with a dividend reinvestment or
stockholder stock purchase plan or (III) in connection with the issuance of
capital stock of the Company (or securities convertible into or exercisable for
such capital stock), as consideration in an acquisition transaction entered into
prior to the occurrence of (i), (ii) or (iii) above, (b) as a result of any
exchange or conversion of any class or series of the Company’s capital stock (or
any capital stock of a subsidiary of the Company) for any class or series of the
Company’s capital stock or of any class or series of the Company’s indebtedness
for any class or series of the Company’s capital stock, (c) the purchase of
fractional interests in shares of the Company’s capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (d) any declaration of a dividend in connection with any
stockholder’s rights plan, or the issuance of rights, stock or other property
under any stockholder’s rights plan, or the redemption or repurchase of rights
pursuant thereto, or (e) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks *pari
passu* with or
junior to such stock).
  SECTION
3.09.  Covenants
as to the Trust .
  For so
long as such Trust Securities remain outstanding, the Company shall maintain
100% ownership of the Common Securities; provided , however , that
any permitted successor of the Company under this Indenture that is a U.S.
Person may succeed to the Company’s ownership of such Common Securities. The
Company, as owner of the Common Securities, shall use commercially reasonable
efforts (a) to cause the Trust to remain a statutory trust, except in
connection with a distribution of Debt Securities to the holders of Trust
Securities in liquidation of the Trust, the redemption of all of the Trust
Securities or certain mergers, consolidations or amalgamations, each as
permitted by the Declaration, (b) to cause the Trust to otherwise continue
to be classified as a grantor trust for United States federal income tax
purposes and (c) to cause each holder of Trust Securities to be treated as
owning an undivided beneficial interest in the Debt Securities.
  ARTICLE
IV
  
  LISTS AND
REPORTS
  BY THE
COMPANY AND THE TRUSTEE
  SECTION
4.01.  Securityholders’
Lists .
  The
Company covenants and agrees that it will furnish or cause to be furnished to
the Trustee:
  20
 (a)  on each
regular record date for an Interest Payment Date, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the
Securityholders of the Debt Securities as of such record date; and
  (b)  at such
other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is
furnished;
  except
that no such lists need be furnished under this Section 4.01 so long as the
Trustee is in possession thereof by reason of its acting as Debt Security
registrar.
  SECTION
4.02.  Preservation
and Disclosure of Lists .
  (a)  The
Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Debt Securities (1)
contained in the most recent list furnished to it as provided in Section 4.01 or
(2) received by it in the capacity of Debt Securities registrar (if so acting)
hereunder. The Trustee may destroy any list furnished to it as provided in
Section 4.01 upon receipt of a new list so furnished.
  (b)  In case
three or more holders of Debt Securities (hereinafter referred to as
“applicants”) apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Debt Security for a period
of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other holders
of Debt Securities with respect to their rights under this Indenture or under
such Debt Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall
within five Business Days after the receipt of such application, at its
election, either:
  (1)  afford
such applicants access to the information preserved at the time by the Trustee
in accordance with the provisions of subsection (a) of this Section 4.02,
or
  (2)  inform
such applicants as to the approximate number of holders of Debt Securities whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this Section
4.02, and as to the approximate cost of mailing to such Securityholders the form
of proxy or other communication, if any, specified in such
application.
  If the
Trustee shall elect not to afford such applicants access to such information,
the Trustee shall, upon the written request of such applicants, mail to each
Securityholder of Debt Securities whose name and address appear in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.02 a copy of the form of proxy or
other communication which is specified in such request with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Securities and Exchange Commission, if permitted or
required by applicable law, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the holders of all Debt
Securities, as the case may be, or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If said Commission,
as permitted or required by applicable law, after opportunity for a hearing upon
the objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, said Commission shall find, after
notice and opportunity for hearing, that all the objections so 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.
  21
 (c)  Each and
every holder of Debt Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
Paying Agent shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the holders of Debt Securities in
accordance with the provisions of subsection (b) of this Section 4.02,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under said subsection (b).
  SECTION
4.03.  Financial
and Other Information .
  If at any
time the Trust ceases to exist for whatever reason or is no longer the holder of
the Debt Securities, the Company shall:
  (a)  deliver
to each Securityholder either (1) each Report on Form 10-K and Form 10-Q
prepared by the Company and filed with the Securities and Exchange Commission in
accordance with the Exchange Act within 90 days after the filing of each Form
10-K and within 30 days after the filing of each Form 10-Q, or (2) if the
Company is at any time neither subject to Section 13 or 15(d) of the Exchange
Act nor exempt from reporting pursuant to Rule 12g3-2(b) thereunder, the
information required to be provided by Rule 144A(d)(4) under the Securities Act;
and
  (b)  (1)
deliver to each Securityholder the Company’s reports on FR Y-9LP, promptly
following their filing with the Federal Reserve, and (2) prepare and deliver to
each Securityholder, within 30 days after the end of the fiscal year of the
Company, Form 1099 or such other annual U.S. federal income tax information
statement required by the Internal Revenue Code of 1986, as amended (the
“Code”), containing such information with regard to the Debt Securities held by
such Securityholder as is required by the Code and the income tax regulations of
the U.S. Treasury thereunder.
  ARTICLE
V
  
  REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS
  UPON AN
EVENT OF DEFAULT
  SECTION
5.01.  Events
of Default .
  The
following events shall be “Events of Default” with respect to Debt
Securities:
  (a)  a court
having jurisdiction in the premises shall enter a decree or order for relief in
respect of the Company in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appoints a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of its property, or orders
the winding-up or liquidation of its affairs and such decree or order shall
remain unstayed and in effect for a period of 90 consecutive days;
or
  (b)  the
Company shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, shall consent to the
entry of an order for relief in an involuntary case under any such law, or shall
consent to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or shall make any general
assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due; or
  22
 (c)  the
Company fails to pay in full accrued interest (including Deferred Interest) on
any Debt Security upon the conclusion of either (i) an Extension Period of 20
consecutive quarterly periods taken by the Company in accordance with Section
2.11 of this Indenture, or (ii) a period consisting of 20 consecutive quarters
commencing with the earliest quarter for which accrued interest (including
Deferred Interest) has not been paid in full, and continuance of such nonpayment
and default under either clause (i) or (ii) for a period of 30 days thereafter;
or
  (d)  the
Company defaults in the payment of any interest upon any Debt Security when it
becomes due and payable, and continuance of such default for a period of 30
days; for the avoidance of doubt, an extension of any interest payment period by
the Company in accordance with Section 2.11 of this Indenture shall not
constitute a default under this clause 5.01(d); or
  (e)  the
Company defaults in the payment of all or any part of the principal of (or
premium, if any, on) any Debt Securities as and when the same shall become due
and payable either at maturity, upon an optional or Special Event redemption in
accordance with Article X of this Indenture, by declaration of acceleration
pursuant to this Section 5.01 or otherwise; or
  (f)  the
Company defaults in the performance of, or breaches, any of its covenants or
agreements in Section 3.06, 3.07, 3.08 or 3.09 of this Indenture (other than a
covenant or agreement a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and continuance of such
default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the holders of not less than 25% in aggregate principal
amount of the outstanding Debt Securities, a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a “Notice of Default” hereunder; or
  (g)  the Trust
shall have voluntarily or involuntarily liquidated, dissolved, wound-up its
business or otherwise terminated its existence except in connection with
(1) the distribution of the Debt Securities to holders of the Trust
Securities in liquidation of their interests in the Trust, (2) the
redemption of all of the outstanding Trust Securities or (3) certain
mergers, consolidations or amalgamations, each as permitted by the
Declaration.
  If an
Event of Default described in clause (a), (b) or (c) above (each such Event of
Default, an “Acceleration Event of Default”) occurs and is continuing with
respect to the Debt Securities, then, and in each and every such case, unless
the principal of the Debt Securities shall have already become due and payable,
either the Trustee or the holders of not less than 25% in aggregate principal
amount of the Debt Securities then outstanding hereunder, by notice in writing
to the Company (and to the Trustee if given by Securityholders), may declare the
entire principal of the Debt Securities and the interest accrued, but unpaid,
thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable.
  The
foregoing provisions, however, are subject to the condition that if, at any time
after the principal of the Debt Securities shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, (i) the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Debt Securities and all payments
on the Debt Securities which shall have become due otherwise than by
acceleration (with interest upon all such payments and Deferred Interest, to the
extent permitted by law) and such amount as shall be sufficient to cover
reasonable compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and all other amounts due to the
Trustee pursuant to Section 6.06, if any, and (ii) all Events of
Default under this Indenture, other than the non-payment of the payments on Debt
Securities which shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein, then and in every such case the
holders of a majority in aggregate principal amount of the Debt Securities then
outstanding, by written notice to the Company and to the Trustee, may waive all
defaults and rescind and annul such declaration and its consequences, but no
such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
  23
 In case
the Trustee shall have proceeded to enforce any right under this Indenture and
such proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the Company, the Trustee
and the holders of the Debt Securities shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of
the Company, the Trustee and the holders of the Debt Securities shall continue
as though no such proceeding had been taken.
  SECTION
5.02.  Payment
of Debt Securities on Default; Suit Therefor .
  The
Company covenants that upon the occurrence of either (i) an Event of Default
pursuant to clause 5.01(c), 5.01(d) or 5.01(e) and upon demand of the Trustee,
which, notwithstanding any other provision of this Indenture, the Trustee is
hereby authorized to and shall make within one Business Day of acquiring
knowledge of such Event of Default, or (ii) an Event of Default pursuant to
clause 5.01(f) caused by the breach of any of the covenants or agreements in
Section 3.08, the Company will pay to the Trustee, for the benefit of the
holders of the Debt Securities, the whole amount that then shall have become due
and payable on all Debt Securities and any Deferred Interest accrued on the Debt
Securities; and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including a reasonable
compensation to the Trustee, its agents, attorneys and counsel, and any other
amounts due to the Trustee under Section 6.06. In case the Company shall
fail forthwith to pay such amounts upon such demand, the Trustee, in its own
name and as trustee of an express trust, shall be entitled and empowered to
institute any actions or proceedings at law or in equity for the collection of
the sums so due and unpaid, and may prosecute any such action or proceeding to
judgment or final decree, and may enforce any such judgment or final decree
against the Company or any other obligor on such Debt Securities and collect in
the manner provided by law out of the property of the Company or any other
obligor on such Debt Securities wherever situated the moneys adjudged or decreed
to be payable.
  In case
there shall be pending proceedings for the bankruptcy or for the reorganization
of the Company or any other obligor on the Debt Securities under Bankruptcy Law,
or in case a receiver or trustee shall have been appointed for the property of
the Company or such other obligor, or in the case of any other similar judicial
proceedings relative to the Company or other obligor upon the Debt Securities,
or to the creditors or property of the Company or such other obligor, the
Trustee, irrespective of whether the principal of the Debt Securities shall then
be due and payable as therein expressed or by declaration of acceleration or
otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section 5.02, shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove a
claim or claims for the whole amount of principal and interest owing and unpaid
in respect of the Debt Securities and, in case of any judicial proceedings, to
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all other
amounts due to the Trustee under Section 6.06) and of the Securityholders
allowed in such judicial proceedings relative to the Company or any other
obligor on the Debt Securities, or to the creditors or property of the Company
or such other obligor, unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Debt Securities in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or Person performing similar
functions in comparable proceedings, and to collect and receive any moneys or
other property payable or deliverable on any such claims, and to distribute the
same after the deduction of its charges and expenses; and any receiver, assignee
or trustee in bankruptcy or reorganization is hereby authorized by each of the
Securityholders to make such payments to the Trustee, and, in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be sufficient to
cover reasonable compensation to the Trustee, each predecessor Trustee and their
respective agents, attorneys and counsel, and all other amounts due to the
Trustee under Section 6.06.
  24
 Nothing
herein contained shall be construed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities or the rights of any holder thereof or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such
proceeding.
  All
rights of action and of asserting claims under this Indenture, or under any of
the Debt Securities, may be enforced by the Trustee without the possession of
any of the Debt Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall be for the ratable benefit of the holders of the Debt
Securities.
  In any
proceedings brought by the Trustee (and also any proceedings involving the
interpretation of any provision of this Indenture to which the Trustee shall be
a party) the Trustee shall be held to represent all the holders of the Debt
Securities, and it shall not be necessary to make any holders of the Debt
Securities parties to any such proceedings.
  SECTION
5.03.  Application
of Moneys Collected by Trustee .
  Any
moneys collected by the Trustee shall be applied in the following order, at the
date or dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the several Debt Securities in respect of which moneys have been
collected, and stamping thereon the payment, if only partially paid, and upon
surrender thereof if fully paid:
  First: To
the payment of costs and expenses incurred by, and reasonable fees of, the
Trustee, its agents, attorneys and counsel, and of all other amounts due to the
Trustee under Section 6.06;
  Second:
To the payment of all Senior Indebtedness of the Company if and to the extent
required by Article XV;
  Third: To
the payment of the amounts then due and unpaid upon Debt Securities, in respect
of which or for the benefit of which money has been collected, ratably, without
preference or priority of any kind, according to the amounts due on such Debt
Securities; and
  Fourth:
The balance, if any, to the Company.
  SECTION
5.04.  Proceedings
by Securityholders .
  No holder
of any Debt Security shall have any right to institute any suit, action or
proceeding for any remedy hereunder, unless such holder previously shall have
given to the Trustee written notice of an Event of Default with respect to the
Debt Securities and unless the holders of not less than 25% in aggregate
principal amount of the Debt Securities then outstanding shall have given the
Trustee a written request to institute such action, suit or proceeding and shall
have offered to the Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred thereby, and the Trustee for
60 days after its receipt of such notice, request and offer of indemnity shall
have failed to institute any such action, suit or proceeding; provided , that no
holder of Debt Securities shall have any right to prejudice the rights of any
other holder of Debt Securities, obtain priority or preference over any other
such holder or enforce any right under this Indenture except in the manner
herein provided and for the equal, ratable and common benefit of all holders of
Debt Securities.
  25
 Notwithstanding
any other provisions in this Indenture, however, the right of any holder of any
Debt Security to receive payment of the principal of, premium, if any, and
interest on such Debt Security when due, or to institute suit for the
enforcement of any such payment, shall not be impaired or affected without the
consent of such holder. For the protection and enforcement of the provisions of
this Section, each and every Securityholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
  SECTION
5.05.  Proceedings
by Trustee .
  In case
of an Event of Default hereunder the Trustee may in its discretion proceed to
protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either by suit in equity or by action at
law or by proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by
law.
  SECTION
5.06.  Remedies
Cumulative and Continuing .
  Except as
otherwise provided in Section 2.06, all powers and remedies given by this
Article V to the Trustee or to the Securityholders shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any other powers and
remedies available to the Trustee or the holders of the Debt Securities, by
judicial proceedings or otherwise, to enforce the performance or observance of
the covenants and agreements contained in this Indenture or otherwise
established with respect to the Debt Securities, and no delay or omission of the
Trustee or of any holder of any of the Debt Securities to exercise any right or
power accruing upon any Event of Default occurring and continuing as aforesaid
shall impair any such right or power, or shall be construed to be a waiver of
any such default or an acquiescence therein; and, subject to the provisions of
Section 5.04, every power and remedy given by this Article V or by law to the
Trustee or to the Securityholders may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the
Securityholders.
  SECTION
5.07.  Direction
of Proceedings and Waiver of Defaults by Majority of
Securityholders .
  26
 The
holders of a majority in aggregate principal amount of the Debt Securities
affected (voting as one class) at the time outstanding shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee with respect to such Debt Securities; provided , however , that
(subject to the provisions of Section 6.01) the Trustee shall have the right to
decline to follow any such direction if the Trustee shall determine that the
action so directed would be unjustly prejudicial to the holders not taking part
in such direction or if the Trustee being advised by counsel determines that the
action or proceeding so directed may not lawfully be taken or if a Responsible
Officer of the Trustee shall determine that the action or proceedings so
directed would involve the Trustee in personal liability. Prior to any
declaration accelerating the maturity of the Debt Securities, the holders of a
majority in aggregate principal amount of the Debt Securities at the time
outstanding may on behalf of the holders of all of the Debt Securities waive (or
modify any previously granted waiver of) any past default or Event of Default
and its consequences, except a default (a) in the payment of principal of,
premium, if any, or interest on any of the Debt Securities, (b) in respect
of covenants or provisions hereof which cannot be modified or amended without
the consent of the holder of each Debt Security affected, or (c)  in
respect of the covenants contained in Section 3.09; provided , however , that if
the Debt Securities are held by the Trust or a trustee of such trust, such
waiver or modification to such waiver shall not be effective until the holders
of a majority in liquidation preference of the Trust Securities shall have
consented to such waiver or modification to such waiver; provided , further , that if
the consent of the holder of each outstanding Debt Security is required, such
waiver shall not be effective until each holder of the Trust Securities shall
have consented to such waiver. Upon any such waiver, the default covered thereby
shall be deemed to be cured for all purposes of this Indenture and the Company,
the Trustee and the holders of the Debt Securities shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon. Whenever any default or Event of Default hereunder
shall have been waived as permitted by this Section 5.07, said default or Event
of Default shall for all purposes of the Debt Securities and this Indenture be
deemed to have been cured and to be not continuing.
  SECTION
5.08.  Notice
of Defaults .
  The
Trustee shall, within 90 days after a Responsible Officer of the Trustee shall
have actual knowledge or received written notice of the occurrence of a default
with respect to the Debt Securities, mail to all Securityholders, as the names
and addresses of such holders appear upon the Debt Security Register, notice of
all defaults with respect to the Debt Securities known to the Trustee, unless
such defaults shall have been cured before the giving of such notice (the term
“defaults” for the purpose of this Section 5.08 being hereby defined to be the
events specified in subsections (a), (b), (c), (d), (e) and (f) of Section 5.01,
not including periods of grace, if any, provided for therein); provided , that,
except in the case of default in the payment of the principal of, premium, if
any, or interest on any of the Debt Securities, the Trustee shall be protected
in withholding such notice if and so long as a Responsible Officer of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Securityholders.
  SECTION
5.09.  Undertaking
to Pay Costs .
  All
parties to this Indenture agree, and each holder of any Debt Security by such
holder’s acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 5.09 shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding in the aggregate more than 10% in principal amount of
the Debt Securities outstanding, or to any suit instituted by any Securityholder
for the enforcement of the payment of the principal of (or premium, if any) or
interest on any Debt Security against the Company on or after the same shall
have become due and payable.
  27
 ARTICLE
VI
  
  CONCERNING
THE TRUSTEE
  SECTION
6.01.  Duties
and Responsibilities of Trustee .
  With
respect to the holders of Debt Securities issued hereunder, the Trustee, prior
to the occurrence of an Event of Default with respect to the Debt Securities and
after the curing or waiving of all Events of Default which may have occurred,
with respect to the Debt Securities, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture. In case an Event of
Default with respect to the Debt Securities has occurred (which has not been
cured or waived) the Trustee shall exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of such person’s own affairs.
  No
provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or its
own willful misconduct, except that:
  (a)  prior to
the occurrence of an Event of Default with respect to the Debt Securities and
after the curing or waiving of all Events of Default which may have
occurred
  (1)  the
duties and obligations of the Trustee with respect to the Debt Securities shall
be determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties and
obligations with respect to the Debt Securities as are specifically set forth in
this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
  (2)  in the
absence of bad faith on the part of the Trustee, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but, in the case of any
such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform on their face to the
requirements of this Indenture;
  (b)  the
Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Officers of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
  (c)  the
Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith, in accordance with the direction of the
Securityholders pursuant to Section 5.07, relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture;
and
  (d)  the
Trustee shall not be charged with knowledge of any Default or Event of Default
with respect to the Debt Securities unless either (1) a Responsible Officer
shall have actual knowledge of such Default or Event of Default or (2) written
notice of such Default or Event of Default shall have been given to the Trustee
by the Company or any other obligor on the Debt Securities or by any holder of
the Debt Securities, except with respect to an Event of Default pursuant to
Section 5.01(c), 5.01(d) or 5.01(e) hereof (other than an Event of Default
resulting from the default in the payment of Additional Amounts, or premium, if
any, if the Trustee does not have actual knowledge or written notice that such
payment is due and payable), of which the Trustee shall be deemed to have
knowledge.
  28
 None of
the provisions contained in this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers.
  SECTION
6.02.  Reliance
on Documents, Opinions, etc .
  Except as
otherwise provided in Section 6.01:
  (a)  the
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, note, debenture or other
paper or document believed by it in good faith to be genuine and to have been
signed or presented by the proper party or parties;
  (b)  any
request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in
respect thereof be herein specifically prescribed); and any Board Resolution may
be evidenced to the Trustee by a copy thereof certified by the Secretary or an
Assistant Secretary of the Company;
  (c)  the
Trustee may consult with counsel of its selection and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
  (d)  the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of the
Securityholders, pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby;
  (e)  the
Trustee shall not be liable for any action taken or omitted by it in good faith
and reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon the occurrence of an
Event of Default with respect to the Debt Securities (that has not been cured or
waived) to exercise with respect to the Debt Securities such of the rights and
powers vested in it by this Indenture, and to use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs;
  (f)  the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, debenture, coupon or other
paper or document, unless requested in writing to do so by the holders of not
less than a majority in principal amount of the outstanding Debt Securities
affected thereby; provided , however , that if
the payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expense or liability as a condition to so
proceeding; and
  (g)  the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents (including any Authenticating
Agent) or attorneys, and the Trustee shall not be responsible for any misconduct
or negligence on the part of any such agent or attorney appointed by it with due
care.
  29
 SECTION
6.03.  No
Responsibility for Recitals, etc .
  The
recitals contained herein and in the Debt Securities (except in the certificate
of authentication of the Trustee or the Authenticating Agent) shall be taken as
the statements of the Company and the Trustee and the Authenticating Agent
assume no responsibility for the correctness of the same. The Trustee and the
Authenticating Agent make no representations as to the validity or sufficiency
of this Indenture or of the Debt Securities. The Trustee and the Authenticating
Agent shall not be accountable for the use or application by the Company of any
Debt Securities or the proceeds of any Debt Securities authenticated and
delivered by the Trustee or the Authenticating Agent in conformity with the
provisions of this Indenture.
  SECTION
6.04.  Trustee,
Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own Debt
Securities .
  The
Trustee or any Authenticating Agent or any Paying Agent or any transfer agent or
any Debt Security registrar, in its individual or any other capacity, may become
the owner or pledgee of Debt Securities with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent, transfer agent or Debt
Security registrar.
  SECTION
6.05.  Moneys
to be Held in Trust .
  Subject
to the provisions of Section 12.04, all moneys received by the Trustee or any
Paying Agent shall, until used or applied as herein provided, be held in trust
for the purpose for which they were received, but need not be segregated from
other funds except to the extent required by law. The Trustee and any Paying
Agent shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Company. So long as no
Event of Default shall have occurred and be continuing, all interest allowed on
any such moneys, if any, shall be paid from time to time to the Company upon the
written order of the Company, signed by the Chairman of the Board of Directors,
the President, the Chief Operating Officer, a Vice President, the Treasurer or
an Assistant Treasurer of the Company.
  SECTION
6.06.  Compensation
and Expenses of Trustee .
  The
Company covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, such compensation as shall be agreed to in writing
between the Company and the Trustee (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust), and the
Company will pay or reimburse the Trustee upon its written request for all
documented reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the reasonable expenses and
disbursements of its counsel and of all Persons not regularly in its employ)
except any such expense, disbursement or advance that arises from its negligence
or bad faith. The Company also covenants to indemnify each of the Trustee
(including in its individual capacity) and any predecessor Trustee (and its
officers, agents, directors and employees) for, and to hold it harmless against,
any and all loss, damage, claim, liability or expense including taxes (other
than taxes based on the income of the Trustee), except to the extent such loss,
damage, claim, liability or expense results from the negligence or bad faith of
such indemnitee, arising out of or in connection with the acceptance or
administration of this Trust, including the costs and expenses of defending
itself against any claim or liability in the premises. The obligations of the
Company under this Section 6.06 to compensate and indemnify the Trustee and to
pay or reimburse the Trustee for documented expenses, disbursements and advances
shall constitute additional indebtedness hereunder. Such additional indebtedness
shall be secured by a lien prior to that of the Debt Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the holders of particular Debt
Securities.
  30
 Without
prejudice to any other rights available to the Trustee under applicable law,
when the Trustee incurs expenses or renders services in connection with an Event
of Default specified in subsections (a), (b) or (g) of Section 5.01, the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
  The
provisions of this Section shall survive the resignation or removal of the
Trustee and the defeasance or other termination of this Indenture.
  SECTION
6.07.  Officers’
Certificate as Evidence .
  Except as
otherwise provided in Sections 6.01 and 6.02, whenever in the administration of
the provisions of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers’ Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken or omitted by it under the
provisions of this Indenture upon the faith thereof.
  SECTION
6.08.  Eligibility
of Trustee .
  The
Trustee hereunder shall at all times be a U.S. Person that is a banking
corporation or national association organized and doing business under the laws
of the United States of America or any state thereof or of the District of
Columbia and authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least fifty million U.S. dollars
($50,000,000) and subject to supervision or examination by federal, state, or
District of Columbia authority. If such corporation or national association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 6.08 the combined capital and surplus of such
corporation or national association shall be deemed to be its combined capital
and surplus as set forth in its most recent records of condition so
published.
  The
Company may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as Trustee,
notwithstanding that such corporation or national association shall be otherwise
eligible and qualified under this Article.
  In case
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 6.08, the Trustee shall resign immediately in the
manner and with the effect specified in Section 6.09.
  If the
Trustee has or shall acquire any “conflicting interest” within the meaning of §
310(b) of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
this Indenture.
  31
 SECTION
6.09.  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 Debt Securities
at their addresses as they shall appear on the Debt Security 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 Debt Security or Debt Securities for at
least six months may, subject to the provisions of Section 5.09, on behalf of
himself or herself and all others similarly situated, petition any such court
for the appointment of a successor 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 the last paragraph of
Section 6.08 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Debt Security or Debt
Securities for at least six months,
  (2)  the
Trustee shall cease to be eligible in accordance with the provisions of Section
6.08 and shall fail to resign after written request therefor by the Company or
by any such Securityholder, or
  (3)  the
Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
  then, in
any such case, the Company may remove the Trustee and appoint a successor
Trustee by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor Trustee, or, subject to the provisions of
Section 5.09, if no successor Trustee shall have been so appointed and have
accepted appointment within 30 days of the occurrence of any of (1), (2) or (3)
above, any Securityholder who has been a bona fide holder of a Debt Security or
Debt Securities for at least six months may, on behalf of himself or herself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor Trustee.
  (c)  Upon
prior written notice to the Company and the Trustee, the holders of a majority
in aggregate principal amount of the Debt Securities at the time outstanding may
at any time remove the Trustee and nominate a successor Trustee, which shall be
deemed appointed as successor Trustee unless within ten Business Days after such
nomination the Company objects thereto, in which case or in the case of a
failure by such holders to nominate a successor Trustee, the Trustee so removed
or any Securityholder, upon the terms and conditions and otherwise as in
subsection (a) of this Section 6.09 provided, may petition any court of
competent jurisdiction for an appointment of a successor.
  32
 (d)  Any
resignation or removal of the Trustee and appointment of a successor Trustee
pursuant to any of the provisions of this Section 6.09 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 6.09 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 Debt
Securities 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 the
amounts then due it pursuant to the provisions of Section 6.06, 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 hereunder. In addition, if a successor Trustee is appointed, the
Company, the retiring Trustee and the successor Trustee shall execute and
deliver an indenture supplemental hereto which shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Debt Securities as
to which the predecessor Trustee is not retiring shall continue to be vested in
the predecessor Trustee, and shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the Debt Securities and trusts 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.
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 6.06.
  No
successor Trustee shall accept appointment as provided in this Section 6.10
unless at the time of such acceptance such successor Trustee shall be eligible
and qualified under the provisions of Section 6.08.
  In no
event shall a retiring Trustee 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 Debt Securities at their addresses as they shall appear on the
Debt Security Register. If the Company fails to mail such notice within ten
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 , that
such corporation shall be otherwise eligible and qualified under this
Article.
  33
 In case
at the time such successor to the Trustee shall succeed to the trusts created by
this Indenture any of the Debt Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor Trustee, and deliver such Debt Securities so
authenticated; and in case at that time any of the Debt Securities shall not
have been authenticated, any successor to the Trustee may authenticate such Debt
Securities either in the name of any predecessor hereunder or in the name of the
successor Trustee; and in all such cases such certificates shall have the full
force which it is anywhere in the Debt Securities or in this Indenture provided
that the certificate of the Trustee shall have; provided , however , that
the right to adopt the certificate of authentication of any predecessor Trustee
or authenticate Debt Securities in the name of any predecessor Trustee shall
apply only to its successor or successors by merger, conversion or
consolidation.
  SECTION
6.12.  Authenticating
Agents .
  There may
be one or more Authenticating Agents appointed by the Trustee upon the request
of the Company with power to act on its behalf and subject to its direction in
the authentication and delivery of Debt Securities issued upon exchange or
registration of transfer thereof as fully to all intents and purposes as though
any such Authenticating Agent had been expressly authorized to authenticate and
deliver Debt Securities; provided , that
the Trustee shall have no liability to the Company for any acts or omissions of
the Authenticating Agent with respect to the authentication and delivery of Debt
Securities. Any such Authenticating Agent shall at all times be a corporation
organized and doing business under the laws of the United States or of any state
thereof or of the District of Columbia authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of at least
$50,000,000 and being subject to supervision or examination by federal, state or
District of Columbia authority. If such corporation publishes reports of
condition at least annually pursuant to law or the requirements of such
authority, then for the purposes of this Section 6.12 the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and
with the effect herein specified in this Section.
  Any
corporation into which any Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
consolidation or conversion to which any Authenticating Agent shall be a party,
or any corporation succeeding to all or substantially all of the corporate trust
business of any Authenticating Agent, shall be the successor of such
Authenticating Agent 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 Debt
Securities by giving written notice of termination to such Authenticating Agent
and to the Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible under this Section 6.12, the Trustee may, and upon the request of the
Company shall, promptly appoint a successor Authenticating Agent eligible under
this Section 6.12, shall give written notice of such appointment to the Company
and shall mail notice of such appointment to all holders of Debt Securities as
the names and addresses of such holders appear on the Debt Security Register.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities with
respect to the Debt Securities of its predecessor hereunder, with like effect as
if originally named as Authenticating Agent herein.
  34
 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
7.01.  Action
by Securityholders .
  Whenever
in this Indenture it is provided that the holders of a specified percentage in
aggregate principal amount of the Debt Securities may take any action (including
the making of any demand or request, the giving of any notice, consent or waiver
or the taking of any other action), the fact that at the time of taking any such
action the holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by such Securityholders in person or by agent or proxy appointed in
writing, or (b) by the record of such holders of Debt Securities voting in favor
thereof at any meeting of such Securityholders duly called and held in
accordance with the provisions of Article VIII, 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 Debt Securities for the
determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action or revocation
of the same, but the Company shall have no obligation to do so. If such a record
date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other action or revocation of the same may be given before or after
the record date, but only the Securityholders of record at the close of business
on the record date shall be deemed to be Securityholders for the purposes of
determining whether Securityholders of the requisite proportion of outstanding
Debt Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action or revocation
of the same, and for that purpose the outstanding Debt Securities shall be
computed as of the record date; provided , however , that no
such authorization, agreement or consent by such Securityholders on the record
date shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record
date.
  SECTION
7.02.  Proof
of Execution by Securityholders .
  Subject
to the provisions of Sections 6.01, 6.02 and 8.05, proof of the execution of any
instrument by a Securityholder or such Securityholder’s agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee. The ownership of Debt Securities shall be proved by the Debt
Security Register or by a certificate of the Debt Security registrar. The
Trustee may require such additional proof of any matter referred to in this
Section as it shall deem necessary.
  The
record of any Securityholders’ meeting shall be proved in the manner provided in
Section 8.06.
  35
 SECTION
7.03.  Who
Are Deemed Absolute Owners .
  Prior to
due presentment for registration of transfer of any Debt Security, the Company,
the Trustee, any Authenticating Agent, any Paying Agent, any transfer agent and
any Debt Security registrar may deem the Person in whose name such Debt Security
shall be registered upon the Debt Security Register to be, and may treat such
Person as, the absolute owner of such Debt Security (whether or not such Debt
Security shall be overdue) for the purpose of receiving payment of or on account
of the principal of, premium, if any, and interest on such Debt Security and for
all other purposes; and neither the Company nor the Trustee nor any
Authenticating Agent nor any Paying Agent nor any transfer agent nor any Debt
Security registrar shall be affected by any notice to the contrary. All such
payments so made to any holder for the time being or upon such holder’s order
shall be valid, and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for moneys payable upon any such Debt
Security.
  SECTION
7.04.  Debt
Securities Owned by Company Deemed Not Outstanding .
  In
determining whether the holders of the requisite aggregate principal amount of
Debt Securities have concurred in any direction, consent or waiver under this
Indenture, Debt Securities which are owned by the Company or any other obligor
on the Debt Securities or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
other obligor on the Debt Securities shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided , that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only Debt Securities which a
Responsible Officer of the Trustee actually knows are so owned shall be so
disregarded. Debt Securities so owned which have been pledged in good faith may
be regarded as outstanding for the purposes of this Section 7.04 if the pledgee
shall establish to the satisfaction of the Trustee the pledgee’s right to vote
such Debt Securities and that the pledgee is not the Company or any such other
obligor or Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any such other obligor. In
the case of a dispute as to such right, any decision by the Trustee taken upon
the advice of counsel shall be full protection to the Trustee.
  SECTION
7.05.  Revocation
of Consents; Future Securityholders Bound .
  At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 7.01, of the taking of any action by the holders of the percentage in
aggregate principal amount of the Debt Securities specified in this Indenture in
connection with such action, any holder (in cases where no record date has been
set pursuant to Section 7.01) or any holder as of an applicable record date (in
cases where a record date has been set pursuant to Section 7.01) of a Debt
Security (or any Debt Security issued in whole or in part in exchange or
substitution therefor) the serial number of which is shown by the evidence to be
included in the Debt Securities the holders of which have consented to such
action may, by filing written notice with the Trustee at the Principal Office of
the Trustee and upon proof of holding as provided in Section 7.02, revoke such
action so far as concerns such Debt Security (or so far as concerns the
principal amount represented by any exchanged or substituted Debt Security).
Except as aforesaid any such action taken by the holder of any Debt Security
shall be conclusive and binding upon such holder and upon all future holders and
owners of such Debt Security, and of any Debt Security issued in exchange or
substitution therefor or on registration of transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon such Debt Security or
any Debt Security issued in exchange or substitution therefor.
  36
 ARTICLE
VIII
  
  SECURITYHOLDERS’
MEETINGS
  SECTION
8.01.  Purposes
of Meetings .
  A meeting
of Securityholders may be called at any time and from time to time pursuant to
the provisions of this Article VIII for any of the following
purposes:
  (a)  to give
any notice to the Company or to the Trustee, or to give any directions to the
Trustee, or to consent to the waiving of any default hereunder and its
consequences, or to take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of Article V;
  (b)  to remove
the Trustee and nominate a successor trustee pursuant to the provisions of
Article VI;
  (c)  to
consent to the execution of an indenture or indentures supplemental hereto
pursuant to the provisions of Section 9.02; or
  (d)  to take
any other action authorized to be taken by or on behalf of the holders of any
specified aggregate principal amount of such Debt Securities under any other
provision of this Indenture or under applicable law.
  SECTION
8.02.  Call
of Meetings by Trustee .
  The
Trustee may at any time call a meeting of Securityholders to take any action
specified in Section 8.01, to be held at such time and at such place in New
York, New York or Wilmington, Delaware, as the Trustee shall determine. Notice
of every meeting of the Securityholders, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be mailed to holders of Debt Securities affected at their
addresses as they shall appear on the Debt Securities Register. Such notice
shall be mailed not less than 20 nor more than 180 days prior to the date fixed
for the meeting.
  SECTION
8.03.  Call
of Meetings by Company or Securityholders .
  In case
at any time the Company pursuant to a Board Resolution, or the holders of at
least 10% in aggregate principal amount of the Debt Securities, as the case may
be, then outstanding, shall have requested the Trustee to call a meeting of
Securityholders, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of such request,
then the Company or such Securityholders may determine the time and the place in
Irvine, California for such meeting and may call such meeting to take any action
authorized in Section 8.01, by mailing notice thereof as provided in Section
8.02.
  SECTION
8.04.  Qualifications
for Voting .
  To be
entitled to vote at any meeting of Securityholders a Person shall be (a) a
holder of one or more Debt Securities with respect to which the meeting is being
held or (b) a Person appointed by an instrument in writing as proxy by a holder
of one or more such Debt Securities. The only Persons who shall be entitled to
be present or to speak at any meeting of Securityholders shall be the Persons
entitled to vote at such meeting and their counsel and any representatives of
the Trustee and its counsel and any representatives of the Company and its
counsel.
  37
 SECTION
8.05.  Regulations .
  Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Securityholders, in
regard to proof of the holding of Debt Securities and of the appointment of
proxies, and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate.
  The
Trustee shall, by an instrument in writing, appoint a temporary chairman of the
meeting, unless the meeting shall have been called by the Company or by
Securityholders as provided in Section 8.03, in which case the Company or the
Securityholders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by majority vote at the meeting.
  Subject
to the provisions of Section 7.04, at any meeting each holder of Debt Securities
with respect to which such meeting is being held or proxy therefor shall be
entitled to one vote for each $1,000 principal amount of Debt Securities held or
represented by such holder; provided , however , that no
vote shall be cast or counted at any meeting in respect of any Debt Security
challenged as not outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of Debt Securities held by such chairman or instruments in writing as
aforesaid duly designating such chairman as the Person to vote on behalf of
other Securityholders. Any meeting of Securityholders duly called pursuant to
the provisions of Section 8.02 or 8.03 may be adjourned from time to time by a
majority of those present, whether or not constituting a quorum, and the meeting
may be held as so adjourned without further notice.
  SECTION
8.06.  Voting .
  The vote
upon any resolution submitted to any meeting of holders of Debt Securities with
respect to which such meeting is being held shall be by written ballots on which
shall be subscribed the signatures of such holders or of their representatives
by proxy and the serial number or numbers of the Debt Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in triplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Securityholders shall
be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 8.02. The record shall show the serial
numbers of the Debt Securities voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
  Any
record so signed and verified shall be conclusive evidence of the matters
therein stated.
  SECTION
8.07.  Quorum;
Actions .
  38
 The
Persons entitled to vote a majority in outstanding principal amount of the Debt
Securities shall constitute a quorum for a meeting of Securityholders; provided , however , that if
any action is to be taken at such meeting with respect to a consent, waiver,
request, demand, notice, authorization, direction or other action which may be
given by the holders of not less than a specified percentage in outstanding
principal amount of the Debt Securities, the Persons holding or representing
such specified percentage in outstanding principal amount of the Debt Securities
will constitute a quorum. In the absence of a quorum within 30 minutes of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Securityholders, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the permanent
chairman of the meeting prior to the adjournment of such meeting. In the absence
of a quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the permanent
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 8.02, except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the outstanding principal amount of the Debt
Securities which shall constitute a quorum.
  Except as
limited by the proviso in the first paragraph of Section 9.02, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
holders of not less than a majority in outstanding principal amount of the Debt
Securities; provided , however , that,
except as limited by the proviso in the first paragraph of Section 9.02,
any resolution with respect to any consent, waiver, request, demand, notice,
authorization, direction or other action that this Indenture expressly provides
may be given by the holders of not less than a specified percentage in
outstanding principal amount of the Debt Securities may be adopted at a meeting
or an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid only by the affirmative vote of the holders of not less than such
specified percentage in outstanding principal amount of the Debt
Securities.
  Any
resolution passed or decision taken at any meeting of holders of Debt Securities
duly held in accordance with this Section shall be binding on all the
Securityholders, whether or not present or represented at the
meeting.
  ARTICLE
IX
  
  SUPPLEMENTAL
INDENTURES
  SECTION
9.01.  Supplemental
Indentures Without Consent of Securityholders .
  The
Company, when authorized by a Board Resolution, and the Trustee may from time to
time and at any time enter into an indenture or indentures supplemental hereto,
without the consent of the Securityholders, for one or more of the following
purposes:
  (a)  to
evidence the succession of another corporation to the Company, or successive
successions, and the assumption by the successor corporation of the covenants,
agreements and obligations of the Company, pursuant to Article XI
hereof;
  (b)  to add to
the covenants of the Company such further covenants, restrictions or conditions
for the protection of the holders of Debt Securities as the Board of Directors
shall consider to be for the protection of the holders of such Debt Securities,
and to make the occurrence, or the occurrence and continuance, of a default in
any of such additional covenants, restrictions or conditions a default or an
Event of Default permitting the enforcement 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;
  39
 (c)  to cure
any ambiguity or to correct or supplement any provision contained herein or in
any supplemental indenture which may be defective or inconsistent with any other
provision contained herein or in any supplemental indenture, or to make such
other provisions in regard to matters or questions arising under this Indenture; provided , that
any such action shall not adversely affect the interests of the holders of the
Debt Securities;
  (d)  to add
to, delete from, or revise the terms of Debt Securities, including, without
limitation, any terms relating to the issuance, exchange, registration or
transfer of Debt Securities, including to provide for transfer procedures and
restrictions substantially similar to those applicable to the Capital
Securities, as required by Section 2.05 (for purposes of assuring that no
registration of Debt Securities is required under the Securities Act); provided , that
any such action shall not adversely affect the interests of the holders of the
Debt Securities then outstanding (it being understood, for purposes of this
proviso, that providing for transfer of the Debt Securities in global or
book-entry form and transfer restrictions on Debt Securities substantially
similar to those applicable to Capital Securities shall not be deemed to
adversely affect the holders of the Debt Securities);
  (e)  to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Debt Securities and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 6.10;
  (f)  to make
any change (other than as elsewhere provided in this paragraph) that does not
adversely affect the rights of any Securityholder in any material respect;
or
  (g)  to
provide for the issuance of and establish the form and terms and conditions of
the Debt Securities, to establish the form of any certifications required to be
furnished pursuant to the terms of this Indenture or the Debt Securities, or to
add to the rights of the holders of Debt Securities.
  The
Trustee is hereby authorized to join with the Company in the execution of any
such supplemental indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall not be
obligated to, but may in its discretion, enter into any such supplemental
indenture which affects the Trustee’s own rights, duties or immunities under
this Indenture or otherwise.
  Any
supplemental indenture authorized by the provisions of this Section 9.01 may be
executed by the Company and the Trustee without the consent of the holders of
any of the Debt Securities at the time outstanding, notwithstanding any of the
provisions of Section 9.02.
  SECTION
9.02.  Supplemental
Indentures with Consent of Securityholders .
  40
 With the
consent (evidenced as provided in Section 7.01) of the holders of not less than
a majority in aggregate principal amount of the Debt Securities at the time
outstanding affected by such supplemental indenture (voting as a class), the
Company, when authorized by a Board Resolution, and the Trustee may from time to
time and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act, then in
effect, applicable to indentures qualified thereunder) for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of the Debt Securities; provided , however , that no
such supplemental indenture shall without such consent of the holders of each
Debt Security then outstanding and affected thereby (i) extend the fixed
maturity of any Debt Security, or reduce the principal amount thereof or any
premium thereon, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption thereof or make the
principal thereof or any interest or premium thereon payable in any coin or
currency other than that provided in the Debt Securities, or impair or affect
the right of any Securityholder to institute suit for payment thereof or impair
the right of repayment, if any, at the option of the holder, or (ii) reduce
the aforesaid percentage of Debt Securities the holders of which are required to
consent to any such supplemental indenture; and provided , further , that if
the Debt Securities are held by the Trust or a trustee of such trust, such
supplemental indenture shall not be effective until the holders of a majority in
liquidation preference of the Trust Securities shall have consented to such
supplemental indenture; provided , further , that if
the consent of the Securityholder of each outstanding Debt Security is required,
such supplemental indenture shall not be effective until each holder of the
Trust Securities shall have consented to such supplemental
indenture.
  Upon the
request of the Company accompanied by a Board Resolution authorizing the
execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Securityholders as aforesaid, the Trustee
shall join with the Company in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such supplemental
indenture.
  Promptly
after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of this Section, the Trustee shall transmit by mail,
first class postage prepaid, a notice, prepared by the Company, setting forth in
general terms the substance of such supplemental indenture, to the
Securityholders as their names and addresses appear upon the Debt Security
Register. Any failure of the Trustee to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
  It shall
not be necessary for the consent of the Securityholders under this Section 9.02
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance
thereof.
  SECTION
9.03.  Effect
of Supplemental Indentures .
  Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article IX, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Debt Securities shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
  SECTION
9.04.  Notation
on Debt Securities .
  Debt
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to the provisions of this Article IX may bear a notation as
to any matter provided for in such supplemental indenture. If the Company or the
Trustee shall so determine, new Debt Securities so modified as to conform, in
the opinion of the Board of Directors of the Company, to any modification of
this Indenture contained in any such supplemental indenture may be prepared and
executed by the Company, authenticated by the Trustee or the Authenticating
Agent and delivered in exchange for the Debt Securities then
outstanding.
  41
 SECTION
9.05.  Evidence
of Compliance of Supplemental Indenture to be furnished to
Trustee .
  The
Trustee, subject to the provisions of Sections 6.01 and 6.02, shall, in
addition to the documents required by Section 14.06, receive an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant hereto complies with the requirements
of this Article IX. The Trustee shall receive an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this
Article IX is authorized or permitted by, and conforms to, the terms of this
Article IX and that it is proper for the Trustee under the provisions of this
Article IX to join in the execution thereof.
  ARTICLE
X
  
  REDEMPTION
OF DEBT SECURITIES
  SECTION
10.01.  Optional
Redemption .
  At any
time the Company shall have the right, subject to the receipt by the Company of
prior approval from the Federal Reserve, if then required under applicable
capital guidelines or policies of the Federal Reserve, to redeem the Debt
Securities, in whole or in part, on any Interest Payment Date on or after
December 16, 2009 (the “Redemption Date”), at the Redemption Price.
  SECTION
10.02.  Special
Event Redemption .
  If a
Special Event shall occur and be continuing, the Company shall have the right,
subject to the receipt by the Company of prior approval from the Federal Reserve
if then required under applicable capital guidelines or policies of the Federal
Reserve, to redeem the Debt Securities, in whole but not in part, at any time
within 90 days following the occurrence of such Special Event (the “Special
Redemption Date”), at the Special Redemption Price.
  SECTION
10.03.  Notice
of Redemption; Selection of Debt Securities .
  In case
the Company shall desire to exercise the right to redeem all, or, as the case
may be, any part of the Debt Securities, it shall fix a date for redemption and
shall mail a notice of such redemption at least 30 and not more than 60 days
prior to the date fixed for redemption to the holders of Debt Securities so to
be redeemed as a whole or in part at their last addresses as the same appear on
the Debt Security Register. Such mailing shall be by first class mail. The
notice if mailed in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the holder receives such notice. In any
case, failure to give such notice by mail or any defect in the notice to the
holder of any Debt Security designated for redemption as a whole or in part
shall not affect the validity of the proceedings for the redemption of any other
Debt Security.
  Each such
notice of redemption shall specify the CUSIP number, if any, of the Debt
Securities to be redeemed, the date fixed for redemption, the redemption price
at which Debt Securities are to be redeemed (and, in the case of a redemption
upon the occurrence of a Special Event for which the Special Redemption Date
will be prior to December 16, 2009, the method by which the Special
Redemption Price will be calculated), the place or places of payment, that
payment will be made upon presentation and surrender of such Debt Securities,
that interest accrued to the date fixed for redemption will be paid as specified
in said notice, and that on and after said date interest thereon or on the
portions thereof to be redeemed will cease to accrue. If less than all the Debt
Securities are to be redeemed the notice of redemption shall specify the numbers
of the Debt Securities to be redeemed. In case the Debt Securities are to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Debt Security, a new Debt
Security or Debt Securities in principal amount equal to the unredeemed portion
thereof will be issued.
  42
 Prior to
10:00 a.m. New York City time on the Redemption Date or the Special Redemption
Date specified in the notice of redemption given as provided in this Section,
the Company will deposit with the Trustee or with one or more Paying Agents an
amount of money sufficient to redeem on the redemption date all the Debt
Securities so called for redemption at the appropriate redemption price,
together with accrued interest to the date fixed for redemption.
  The
Company will give the Trustee notice not less than 45 nor more than 60 days
prior to the redemption date as to the Redemption Price or Special Redemption
Price (as the case may be) at which the Debt Securities are to be redeemed (and,
in the case of a redemption upon the occurrence of a Special Event for which the
Special Redemption Date will be prior to December 16, 2009, the method
by which the Special Redemption Price will be calculated), and the aggregate
principal amount of Debt Securities to be redeemed and the Trustee shall select,
in such manner as in its sole discretion it shall deem appropriate and fair, the
Debt Securities or portions thereof (in integral multiples of $1,000) to be
redeemed.
  SECTION
10.04.  Payment
of Debt Securities Called for Redemption .
  If notice
of redemption has been given as provided in Section 10.03, the Debt Securities
or portions of Debt Securities with respect to which such notice has been given
shall become due and payable on the Redemption Date or the Special Redemption
Date (as the case may be) and at the place or places stated in such notice at
the applicable Redemption Price or Special Redemption Price (as the case may
be), and on and after said Redemption Date or the Special Redemption Date
(unless the Company shall default in the payment of the Redemption Price or
Special Redemption Price (as the case may be) for such Debt Securities) interest
on the Debt Securities or portions of Debt Securities so called for redemption
shall cease to accrue. On presentation and surrender of such Debt Securities at
a place of payment specified in said notice, such Debt Securities or the
specified portions thereof shall be paid and redeemed by the Company at the
applicable Redemption Price or Special Redemption Price (as the case may
be).
  Upon
presentation of any Debt Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery to
the holder thereof, at the expense of the Company, a new Debt Security or Debt
Securities of authorized denominations in principal amount equal to the
unredeemed portion of the Debt Security so presented.
  ARTICLE
XI
  
  CONSOLIDATION,
MERGER, SALE, CONVEYANCE AND LEASE
  SECTION
11.01.  Company
May Consolidate, etc., on Certain Terms .
  Nothing
contained in this Indenture or in the Debt Securities shall prevent any
consolidation or merger of the Company with or into any other corporation or
corporations (whether or not affiliated with the Company) or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any sale, conveyance, transfer or
other disposition of the property or capital stock of the Company or its
successor or successors as an entirety, or substantially as an entirety, to any
other corporation (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 all payments due
on all of the Debt Securities in accordance with their terms, according to their
tenor, and the due and punctual performance and observance of all the covenants
and conditions of this Indenture to be kept or performed by the Company, shall
be expressly assumed by supplemental indenture reasonably satisfactory in form
to the Trustee executed and delivered to the Trustee by the entity formed by
such consolidation, or into which the Company shall have been merged, or by the
entity which shall have acquired such property or capital stock and after giving
effect to such consolidation, merger, sale, conveyance, transfer or other
disposition, no Default or Event of Default shall have occurred and be
continuing.
  43
 SECTION
11.02.  Successor
Entity to be Substituted .
  In case
of any such consolidation, merger, sale, conveyance, transfer or other
disposition and upon the assumption by the successor entity, by supplemental
indenture, executed and delivered to the Trustee and reasonably satisfactory in
form to the Trustee, of the due and punctual payment of the principal of and
premium, if any, and interest on all of the Debt Securities and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed or observed by the Company, such successor entity
shall succeed to and be substituted for the Company, with the same effect as if
it had been named herein as the Company, and thereupon the predecessor entity
shall be relieved of any further liability or obligation hereunder or upon the
Debt Securities. Such successor entity thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the
Debt Securities issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee or the Authenticating Agent; and,
upon the order of such successor entity instead of the Company and subject to
all the terms, conditions and limitations in this Indenture prescribed, the
Trustee or the Authenticating Agent shall authenticate and deliver any Debt
Securities which previously shall have been signed and delivered by the officers
of the Company, to the Trustee or the Authenticating Agent for authentication,
and any Debt Securities which such successor entity thereafter shall cause to be
signed and delivered to the Trustee or the Authenticating Agent for that
purpose. All the Debt Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Debt Securities theretofore
or thereafter issued in accordance with the terms of this Indenture as though
all of such Debt Securities had been issued at the date of the execution
hereof.
  SECTION
11.03.  Opinion
of Counsel to be Given to Trustee .
  The
Trustee, subject to the provisions of Sections 6.01 and 6.02, shall receive, in
addition to the Opinion of Counsel required by Section 9.05, an Opinion of
Counsel as conclusive evidence that any consolidation, merger, sale, conveyance,
transfer or other disposition, and any assumption, permitted or required by the
terms of this Article XI complies with the provisions of this Article
XI.
  ARTICLE
XII
  
  SATISFACTION
AND DISCHARGE OF INDENTURE
  SECTION
12.01.  Discharge
of Indenture .
  44
 When (a)
the Company shall deliver to the Trustee for cancellation all Debt Securities
theretofore authenticated (other than any Debt Securities which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 2.06) and not theretofore canceled, or (b) all the Debt Securities
not theretofore canceled or delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and the
Company shall deposit with the Trustee, in trust, funds, which shall be
immediately due and payable, sufficient to pay at maturity or upon redemption
all of the Debt Securities (other than any Debt Securities which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 2.06) not theretofore canceled or delivered to the Trustee for
cancellation, including principal and premium, if any, and interest due or to
become due to such date of maturity or redemption date, as the case may be, but
excluding, however, the amount of any moneys for the payment of principal of,
and premium, if any, or interest on the Debt Securities (1) theretofore repaid
to the Company in accordance with the provisions of Section 12.04, or (2) paid
to any state or to the District of Columbia pursuant to its unclaimed property
or similar laws, and if in the case of either clause (a) or clause (b) the
Company shall also pay or cause to be paid all other sums payable hereunder by
the Company, then this Indenture shall cease to be of further effect except for
the provisions of Sections 2.05, 2.06, 3.01, 3.02, 3.04, 6.06, 6.09 and 12.04
hereof, which shall survive until such Debt Securities shall mature or are
redeemed, as the case may be, and are paid in full. Thereafter, Sections 6.06,
6.09 and 12.04 shall survive, and the Trustee, on demand of the Company
accompanied by an Officers’ Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with, and at the cost and
expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture, the Company, however, hereby
agreeing to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred by the Trustee in connection with this
Indenture or the Debt Securities.
  SECTION
12.02.  Deposited
Moneys to be Held in Trust by Trustee .
  Subject
to the provisions of Section 12.04, all moneys deposited with the Trustee
pursuant to Section 12.01 shall be held in trust and applied by it to the
payment, either directly or through any Paying Agent (including the Company if
acting as its own Paying Agent), to the holders of the particular Debt
Securities for the payment of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal, and premium,
if any, and interest.
  SECTION
12.03.  Paying
Agent to Repay Moneys Held .
  Upon the
satisfaction and discharge of this Indenture, all moneys then held by any Paying
Agent of the Debt Securities (other than the Trustee) shall, upon demand of the
Company, be repaid to the Company or paid to the Trustee, and thereupon such
Paying Agent shall be released from all further liability with respect to such
moneys.
  SECTION
12.04.  Return
of Unclaimed Moneys .
  Any
moneys deposited with or paid to the Trustee or any Paying Agent for payment of
the principal of, and premium, if any, or interest on Debt Securities and not
applied but remaining unclaimed by the holders of Debt Securities for two years
after the date upon which the principal of, and premium, if any, or interest on
such Debt Securities, as the case may be, shall have become due and payable,
shall be repaid to the Company by the Trustee or such Paying Agent on written
demand; and the holder of any of the Debt Securities shall thereafter look only
to the Company for any payment which such holder may be entitled to collect and
all liability of the Trustee or such Paying Agent with respect to such moneys
shall thereupon cease.
  45
 ARTICLE
XIII
  
  IMMUNITY
OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
  SECTION
13.01.  Indenture
and Debt Securities Solely Corporate Obligations .
  No
recourse for the payment of the principal of or premium, if any, or interest on
any Debt Security, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in this Indenture or in any supplemental indenture, or in any such
Debt Security, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer, director,
employee or agent, as such, past, present or future, of the Company or of any
predecessor or successor corporation of the Company, either directly or through
the Company or any successor corporation of the Company, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the Debt
Securities.
  ARTICLE
XIV
  
  MISCELLANEOUS
PROVISIONS
  SECTION
14.01.  Successors .
  All the
covenants, stipulations, promises and agreements of the Company contained in
this Indenture shall bind its successors and assigns whether so expressed or
not.
  SECTION
14.02.  Official
Acts by Successor Entity .
  Any act
or proceeding by any provision of this Indenture authorized or required to be
done or performed by any board, committee or officer of the Company shall and
may be done and performed with like force and effect by the like board,
committee, officer or other authorized Person of any entity that shall at the
time be the lawful successor of the Company.
  SECTION
14.03.  Surrender
of Company Powers .
  The
Company by instrument in writing executed by authority of 2/3 (two-thirds) of
its Board of Directors and delivered to the Trustee may surrender any of the
powers reserved to the Company and thereupon such power so surrendered shall
terminate both as to the Company and as to any permitted successor.
  SECTION
14.04.  Addresses
for Notices, etc .
  Any
notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the Securityholders on the
Company may be given or served in writing by being deposited postage prepaid by
registered or certified mail in a post office letter box addressed (until
another address is filed by the Company with the Trustee for such purpose) to
the Company at:
  Vineyard
National Bancorp
 8105
Irvine Center Drive #600
 Irvine,
CA 92618
 Attention:
Gordon Fong
  46
 Any
notice, direction, request or demand by any Securityholder or the Company to or
upon the Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or made in writing at the office of Wells Fargo Bank,
National Association at:
  919 North
Market Street
 Suite
700
 Wilmington,
DE 19801
 Attention:
Corporate Trust Administration
  SECTION
14.05.  Governing
Law .
  This
Indenture and each Debt Security shall be deemed to be a contract made under the
law of the State of New York, and for all purposes shall be governed by and
construed in accordance with the law of said State, without regard to conflict
of laws principles thereof.
  SECTION
14.06.  Evidence
of Compliance with Conditions Precedent .
  Upon any
application or demand by the Company to the Trustee to take any action under any
of the provisions of this Indenture, the Company shall furnish to the Trustee an
Officers’ Certificate stating that in the opinion of the signers all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent have been complied with
(except that no such Opinion of Counsel is required to be furnished to the
Trustee in connection with the authentication and issuance of Debt Securities
issued on the date of this Indenture).
  Each
certificate or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant provided for in
this Indenture (except certificates delivered pursuant to Section 3.05)
shall include (a) a statement that the person making such certificate or opinion
has read such covenant or condition; (b) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (c) a statement that, in the
opinion of such person, he or she has made such examination or investigation as
is necessary to enable him or her to express an informed opinion as to whether
or not such covenant or condition has been complied with; and (d) a statement as
to whether or not, in the opinion of such person, such condition or covenant has
been complied with.
  SECTION
14.07.  Non-Business
Days .
  In any
case where the date of payment of interest on or principal of the Debt
Securities is not a Business Day, the payment of such interest on or principal
of the Debt Securities need not be made on such date but may be made on the next
succeeding Business Day, with the same force and effect as if made on the date
of payment, except if such Business Day is in the next succeeding calendar year,
such payment will be made on the immediately preceding Business
Day.
  SECTION
14.08.  Table
of Contents, Headings, etc .
  The table
of contents and the titles and headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
  47
 SECTION
14.09.  Execution
in Counterparts .
  This
Indenture may be executed in any number of counterparts, each of which shall be
an original, but such counterparts shall together constitute but one and the
same instrument.
  SECTION
14.10.  Severability .
  In case
any one or more of the provisions contained in this Indenture or in the Debt
Securities shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions of this Indenture or of such Debt Securities, but this
Indenture and such Debt Securities shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or
therein.
  SECTION
14.11.  Assignment .
  Subject
to Article XI, the Company will have the right at all times to assign any of its
rights or obligations under this Indenture to a direct or indirect wholly owned
Subsidiary of the Company, provided , that,
in the event of any such assignment, the Company will remain liable for all such
obligations. Subject to the foregoing, this Indenture is binding upon and inures
to the benefit of the parties hereto and their respective successors and
assigns. This Indenture may not otherwise be assigned by the parties
thereto.
  SECTION
14.12.  Acknowledgment
of Rights .
  The
Company acknowledges that, with respect to any Debt Securities held by the Trust
or the Institutional Trustee of the Trust, if the Institutional Trustee of the
Trust fails to enforce its rights under this Indenture as the holder of Debt
Securities held as the assets of the Trust after the holders of a majority in
Liquidation Amount of the Capital Securities of the Trust have so directed in
writing such Institutional Trustee, a holder of record of such Capital
Securities may to the fullest extent permitted by law institute legal
proceedings directly against the Company to enforce such Institutional Trustee’s
rights under this Indenture without first instituting any legal proceedings
against such Institutional Trustee or any other Person. Notwithstanding the
foregoing, if an Event of Default has occurred and is continuing and such event
is attributable to the failure of the Company to pay interest (or premium, if
any) or principal on the Debt Securities on the date such interest (or premium,
if any) or principal is otherwise due and payable (or in the case of redemption,
on the redemption date), the Company acknowledges that a holder of record of
Capital Securities of the Trust may directly institute a proceeding against the
Company for enforcement of payment to such holder directly of the principal of
(or premium, if any) or interest on the Debt Securities having an aggregate
principal amount equal to the aggregate Liquidation Amount of the Capital
Securities of such holder on or after the respective due date specified in the
Debt Securities.
  ARTICLE
XV
  
  SUBORDINATION
OF DEBT SECURITIES
  SECTION
15.01.  Agreement
to Subordinate .
  The
Company covenants and agrees, and each holder of Debt Securities issued
hereunder and under any supplemental indenture (the “Additional Provisions”) by
such Securityholder’s acceptance thereof likewise covenants and agrees, that all
Debt Securities shall be issued subject to the provisions of this Article XV;
and each holder of a Debt Security, whether upon original issue or upon transfer
or assignment thereof, accepts and agrees to be bound by such
provisions.
  48
 The
payment by the Company of the payments due on all Debt Securities issued
hereunder and under any Additional Provisions shall, to the extent and in the
manner hereinafter set forth, be subordinated and junior in right of payment to
the prior payment in full of all Senior Indebtedness of the Company, whether
outstanding at the date of this Indenture or thereafter incurred.
  No
provision of this Article XV shall prevent the occurrence of any default or
Event of Default hereunder.
  SECTION
15.02.  Default
on Senior Indebtedness .
  In the
event and during the continuation of any default by the Company in the payment
of principal, premium, interest or any other payment due on any Senior
Indebtedness of the Company following any applicable grace period, or in the
event that the maturity of any Senior Indebtedness of the Company has been
accelerated because of a default, and such acceleration has not been rescinded
or canceled and such Senior Indebtedness has not been paid in full, then, in
either case, no payment shall be made by the Company with respect to the
payments due on the Debt Securities.
  In the
event that, notwithstanding the foregoing, any payment shall be received by the
Trustee when such payment is prohibited by the preceding paragraph of this
Section 15.02, such payment shall, subject to Section 15.06, be held in
trust for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only to the
extent that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on the Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
  SECTION
15.03.  Liquidation;
Dissolution; Bankruptcy .
  Upon any
payment by the Company or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any
dissolution or winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due upon all Senior Indebtedness of the Company
shall first be paid in full, or payment thereof provided for in money in
accordance with its terms, before any payment is made by the Company on the Debt
Securities; and upon any such dissolution or winding-up or liquidation or
reorganization, any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the Securityholders or the Trustee would be entitled to receive from the
Company, except for the provisions of this Article XV, shall be paid by the
Company, or by any receiver, trustee in bankruptcy, liquidating trustee, agent
or other Person making such payment or distribution, or by the Securityholders
or by the Trustee under this Indenture if received by them or it, directly to
the holders of Senior Indebtedness of the Company (pro rata to such holders on
the basis of the respective amounts of Senior Indebtedness held by such holders,
as calculated by the Company) or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such Senior Indebtedness in
full, in money or money’s worth, after giving effect to any concurrent payment
or distribution to or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the Securityholders.
  49
 In the
event that, notwithstanding the foregoing, any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities, prohibited by the foregoing, shall be received by the Trustee before
all Senior Indebtedness of the Company is paid in full, or provision is made for
such payment in money in accordance with its terms, such payment or distribution
shall be held in trust for the benefit of and shall be paid over or delivered to
the holders of such Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Indebtedness may have been issued,
as their respective interests may appear, as calculated by the Company, for
application to the payment of all Senior Indebtedness of the Company remaining
unpaid to the extent necessary to pay such Senior Indebtedness in full in money
in accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the benefit of the holders of such Senior
Indebtedness.
  For
purposes of this Article XV, the words “cash, property or securities” shall
not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article XV with respect to
the Debt Securities to the payment of all Senior Indebtedness of the Company,
that may at the time be outstanding, provided , that
(a) such Senior Indebtedness is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment, and (b) the rights of
the holders of such Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment. The consolidation of
the Company with, or the merger of the Company into, another corporation or 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 15.03 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 15.02 or in this Section 15.03 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.06 of this Indenture.
  SECTION
15.04.  Subrogation .
  Subject
to the payment in full of all Senior Indebtedness of the Company, the
Securityholders shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to such Senior Indebtedness until all
payments due on the Debt Securities shall be paid in full; and, for the purposes
of such subrogation, no payments or distributions to the holders of such Senior
Indebtedness of any cash, property or securities to which the Securityholders or
the Trustee would be entitled except for the provisions of this Article XV, and
no payment over pursuant to the provisions of this Article XV to or for the
benefit of the holders of such Senior Indebtedness by Securityholders or the
Trustee, shall, as between the Company, its creditors other than holders of
Senior Indebtedness of the Company, and the holders of the Debt Securities be
deemed to be a payment or distribution by the Company to or on account of such
Senior Indebtedness. It is understood that the provisions of this
Article XV are and are intended solely for the purposes of defining the
relative rights of the holders of the Debt Securities, on the one hand, and the
holders of such Senior Indebtedness, on the other hand.
  Nothing
contained in this Article XV or elsewhere in this Indenture, any Additional
Provisions or in the Debt Securities is intended to or shall impair, as between
the Company, its creditors other than the holders of Senior Indebtedness of the
Company, and the holders of the Debt Securities, the obligation of the Company,
which is absolute and unconditional, to pay to the holders of the Debt
Securities all payments on the Debt Securities as and when the same shall become
due and payable in accordance with their terms, or is intended to or shall
affect the relative rights of the holders of the Debt Securities and creditors
of the Company, other than the holders of Senior Indebtedness of the Company,
nor shall anything herein or therein prevent the Trustee or the holder of any
Debt Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article XV of the holders of such Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy.
  50
 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
15.05.  Trustee
to Effectuate Subordination .
  Each
Securityholder by such Securityholder’s acceptance thereof authorizes and
directs the Trustee on such Securityholder’s behalf to take such action as may
be necessary or appropriate to effectuate the subordination provided in this
Article XV and appoints the Trustee such Securityholder’s attorney-in-fact
for any and all such purposes.
  SECTION
15.06.  Notice
by the Company .
  The
Company shall give prompt written notice to a Responsible Officer of the Trustee
at the Principal Office of the Trustee of any fact known to the Company that
would prohibit the making of any payment of moneys to or by the Trustee in
respect of the Debt Securities pursuant to the provisions of this Article XV.
Notwithstanding the provisions of this Article XV or any other provision of this
Indenture or any Additional Provisions, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any
payment of moneys to or by the Trustee in respect of the Debt Securities
pursuant to the provisions of this Article XV, unless and until a Responsible
Officer of the Trustee at the Principal Office of the Trustee shall have
received written notice thereof from the Company or a holder or holders of
Senior Indebtedness or from any trustee therefor; and before the receipt of any
such written notice, the Trustee, subject to the provisions of Article VI of
this Indenture, shall be entitled in all respects to assume that no such facts
exist; provided , however , that if
the Trustee shall not have received the notice provided for in this Section
15.06 at least two Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any) or interest on
any Debt Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purposes for which they were received, and
shall not be affected by any notice to the contrary that may be received by it
within two Business Days prior to such date.
  The
Trustee, subject to the provisions of Article VI of this Indenture, shall be
entitled to conclusively rely on the delivery to it of a written notice by a
Person representing himself or herself to be a holder of Senior Indebtedness of
the Company (or a trustee or representative on behalf of such holder) to
establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee or representative on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of such
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article XV, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this 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.
  51
 SECTION
15.07.  Rights
of the Trustee; Holders of Senior Indebtedness .
  The
Trustee in its individual capacity shall be entitled to all the rights set forth
in this Article XV in respect of any Senior Indebtedness at any time held by it,
to the same extent as any other holder of Senior Indebtedness, and nothing in
this Indenture or any Additional Provisions shall deprive the Trustee of any of
its rights as such holder.
  With
respect to the holders of Senior Indebtedness of the Company, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article XV, and no implied covenants or
obligations with respect to the holders of such Senior Indebtedness shall be
read into this Indenture or any Additional Provisions against the Trustee. The
Trustee shall not owe or be deemed to owe any fiduciary duty to the holders of
such Senior Indebtedness and, subject to the provisions of Article VI of this
Indenture, the Trustee shall not be liable to any holder of such Senior
Indebtedness if it shall pay over or deliver to Securityholders, the Company or
any other Person money or assets to which any holder of such Senior Indebtedness
shall be entitled by virtue of this Article XV or otherwise.
  Nothing
in this Article XV shall apply to claims of, or payments to, the Trustee under
or pursuant to Section 6.06.
  SECTION
15.08.  Subordination
May Not Be Impaired .
  No right
of any present or future holder of any Senior Indebtedness of the Company to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company,
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company, with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
otherwise be charged with.
  Without
in any way limiting the generality of the foregoing paragraph, the holders of
Senior Indebtedness of the Company may, at any time and from time to time,
without the consent of or notice to the Trustee or the Securityholders, without
incurring responsibility to the Securityholders and without impairing or
releasing the subordination provided in this Article XV or the obligations
hereunder of the holders of the Debt Securities to the holders of such Senior
Indebtedness, do any one or more of the following: (a) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, such
Senior Indebtedness, or otherwise amend or supplement in any manner such Senior
Indebtedness or any instrument evidencing the same or any agreement under which
such Senior Indebtedness is outstanding; (b) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such
Senior Indebtedness; (c) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (d) exercise or refrain from
exercising any rights against the Company, and any other Person.
  Wells
Fargo Bank, National Association, in its capacity as Trustee, hereby accepts the
trusts in this Indenture declared and provided, upon the terms and conditions
herein above set forth.
   52
  
  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.
  Vineyard
National Bancorp
  By______________________________
  Name:___________________________
  Title:____________________________
  Wells
Fargo Bank, National Association, as Trustee
  By______________________________
  Name:___________________________
  Title:____________________________
  
   53
   **EXHIBIT
A**
  **FORM
OF FLOATING RATE JUNIOR SUBORDINATED DEBT SECURITY DUE
2034**
  [FORM
OF FACE OF SECURITY]
  THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TO THE COMPANY, (B) PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON THE HOLDER
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (C) TO A “NON-U.S. PERSON” IN AN “OFFSHORE TRANSACTION”
PURSUANT TO REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO AN “ACCREDITED
INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE
501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT,
OR FOR THE ACCOUNT OF AN “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A
COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY. THE HOLDER OF THIS SECURITY BY
ITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.
  THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS AND WARRANTS
THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THIS SECURITY UNLESS
SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT.
  A-1
 THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR
OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (EACH A “PLAN”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT
IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR
HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO
SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY
INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING
THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF
SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT
RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF
THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.
  IN
CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY WILL DELIVER TO THE
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.
  THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A PRINCIPAL
AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY
ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING A PRINCIPAL AMOUNT OF LESS
THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY
SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF THIS SECURITY
FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON
THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST
WHATSOEVER IN THIS SECURITY.
  THIS
OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY
AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE
CORPORATION (THE “FDIC”). THIS OBLIGATION IS SUBORDINATED TO THE CLAIMS OF
DEPOSITORS AND THE CLAIMS OF GENERAL AND SECURED CREDITORS OF THE COMPANY, IS
INELIGIBLE AS COLLATERAL FOR A LOAN BY THE COMPANY OR ANY OF ITS SUBSIDIARIES
AND IS NOT SECURED.
   A-2
  
  Floating
Rate Junior Subordinated Debt Security due 2034
  of
  Vineyard
National Bancorp
  Vineyard
National Bancorp, a bank holding company incorporated in California (the
“Company”), for value received promises to pay to Wells Fargo Bank, National
Association, not in its individual capacity but solely as Institutional Trustee
for Vineyard Statutory Trust VII, a Delaware statutory trust (the “Holder”), or
registered assigns, the principal sum of Ten Million Three-Hundred Ten Thousdand
Dollars ($10,310,000) on December 16, 2034 and to pay interest on said principal
sum from December 22, 2004, or from the most recent interest payment date
(each such date, an “Interest Payment Date”) to which interest has been paid or
duly provided for, quarterly (subject to deferral as set forth herein) in
arrears on March 16, June 16, September 16 and December 16 of each year
commencing on March 16, 2005, at a variable per annum rate equal to LIBOR (as
defined in the Indenture) plus 2.00% (the “Interest Rate”), until the
principal hereof shall have become due and payable, and on any overdue principal
and (without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at an
annual rate equal to the Interest Rate in effect for each such Extension Period
compounded quarterly subject
to the occurrence of a Reset Event. Upon the occurrence of a Reset Event, the
applicable LIBOR will be reset on the Reset Date to be equal to the LIBOR
applicable on the newly issued trust preferred capital securities with the same
LIBOR Determination Dates issued by other trust subsidiaries of bank holding
companies or thrift holding companies who issue LIBOR based 30 year floating
rate trust preferred capital securities to Regional Diversified Funding 2004-II
Ltd. or another pooled trust preferred vehicle designated by the Initial
Purchaser (as defined in the Declaration). The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year and the
actual number of days elapsed in the relevant interest period. In the event that
any date on which the principal or interest is payable on this Debt Security is
not a Business Day, then payment payable on such date will be made on the next
succeeding day that is a Business Day, except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Debt Security (or one or more
Predecessor Securities, as defined in said Indenture) is registered at the close
of business on the regular record date for such interest installment, except
that interest and any Deferred Interest payable on the Maturity Date shall be
paid to the Person to whom principal is paid. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered holders on such regular record date and may be paid to the Person in
whose name this Debt Security (or one or more Predecessor Debt Securities) is
registered at the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered holders of the Debt Securities not less than 10 days
prior to such special record date, all as more fully provided in the Indenture.
The principal of and interest on this Debt Security shall be payable at the
office or agency of the Trustee (or other Paying Agent appointed by the Company)
maintained for that purpose in any coin or currency of the United States of
America that at the time of payment is legal tender for payment of public and
private debts; provided , however , that
payment of interest may be made at the option of the Company by check mailed to
the registered holder at such address as shall appear in the Debt Security
Register or by wire transfer to an account appropriately designated by the
holder hereof. Notwithstanding the foregoing, so long as the holder of this Debt
Security is the Institutional Trustee, the payment of the principal of and
interest on this Debt Security will be made in immediately available funds at
such place and to such account as may be designated by the Trustee.
  A-3
 So long
as no Event of Default has occurred and is continuing, the Company shall have
the right, from time to time and without causing an Event of Default, to defer
payments of interest on the Debt Securities by extending the interest payment
period on the Debt Securities at any time and from time to time during the term
of the Debt Securities, for up to 20 consecutive quarterly periods (each such
extended interest payment period, an “Extension Period”), during which Extension
Period no interest shall be due and payable. During any Extension Period,
interest will continue to accrue on the Debt Securities, and interest on such
accrued interest (such accrued interest and interest thereon referred to herein
as “Deferred Interest”) will accrue at an annual rate equal to the Interest Rate
in effect for each such Extension Period, compounded quarterly from the date
such Deferred Interest would have been payable were it not for the Extension
Period, to the extent permitted by law. No Extension Period may end on a date
other than an Interest Payment Date. At the end of any such Extension Period the
Company shall pay all Deferred Interest then accrued and unpaid on the Debt
Securities; provided , however , that no
Extension Period may extend beyond the Maturity Date, Redemption Date or Special
Redemption Date and provided , further , however, during
any such Extension Period, the Company may not (i) declare or pay any dividends
or distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company’s capital stock or (ii) make any payment on
or repay, repurchase or redeem any debt securities of the Company that rank *pari
passu* in all
respects with or junior in interest to the Debt Securities (other than (a)
repurchases, redemptions or other acquisitions of shares of capital stock of the
Company (A) in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of one or more employees, officers,
directors or consultants, (B) in connection with a dividend reinvestment or
stockholder stock purchase plan or (C) in connection with the issuance of
capital stock of the Company (or securities convertible into or exercisable for
such capital stock), as consideration in an acquisition transaction entered into
prior to the applicable Extension Period, (b) as a result of any exchange or
conversion of any class or series of the Company’s capital stock (or any capital
stock of a subsidiary of the Company) for any class or series of the Company’s
capital stock or of any class or series of the Company’s indebtedness for any
class or series of the Company’s capital stock, (c) the purchase of fractional
interests in shares of the Company’s capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged, (d) any declaration of a dividend in connection with any
stockholder’s rights plan, or the issuance of rights, stock or other property
under any stockholder’s rights plan, or the redemption or repurchase of rights
pursuant thereto, or (e) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks *pari
passu* with or
junior to such stock). 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, Redemption Date or Special Redemption Date. Upon the termination
of any Extension Period and upon the payment of all Deferred Interest, the
Company may commence a new Extension Period, subject to the foregoing
requirements. No interest or Deferred Interest shall be due and payable during
an Extension Period, except at the end thereof, but Deferred Interest shall
accrue upon each installment of interest that would otherwise have been due and
payable during such Extension Period until such installment is paid. The
deferral of the payment of interest during an Extension Period shall not defer
the payment of any Additional Amounts that may be due and payable. The Company
must give the Trustee notice of its election to begin such Extension Period at
least one Business Day prior to the earlier of (i) the next succeeding date
on which interest on the Debt Securities would have been payable except for the
election to begin such Extension Period or (ii)  the date such interest is
payable, but in any event not later than the related regular record
date.
  A-4
 The
indebtedness evidenced by this Debt Security is, to the extent provided in the
Indenture, subordinate and junior in right of payment to the prior payment in
full of all Senior Indebtedness, and this Debt Security is issued subject to the
provisions of the Indenture with respect thereto. Each holder of this Debt
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on such holder’s behalf to
take such action as may be necessary or appropriate to acknowledge or effectuate
the subordination so provided and (c) appoints the Trustee such holder’s
attorney-in-fact for any and all such purposes. Each holder hereof, by such
holder’s acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
  The
Company waives demand, presentment for payment, notice of nonpayment, notice of
protest, and all other notices.
  This Debt
Security shall not be entitled to any benefit under the Indenture hereinafter
referred to and shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been signed by or on behalf
of the Trustee.
  The
provisions of this Debt Security are continued on the reverse side hereof and
such continued provisions shall for all purposes have the same effect as though
fully set forth at this place.
   A-5
  IN
WITNESS WHEREOF, the Company has duly executed this certificate.
  Vineyard
National Bancorp
  By:________________________________
  Name:______________________________
  Title:_______________________________
  Dated:
December 22, 2004
  CERTIFICATE
OF AUTHENTICATION
  This is
one of the Debt Securities referred to in the within-mentioned
Indenture.
  Wells
Fargo Bank, National Association, not in its individual capacity but solely as
the Trustee
  By:________________________________
  Authorized
      Officer
  Dated: December
22, 2004
  
   A-6
   [FORM
OF REVERSE OF SECURITY]
  This Debt
Security is one of a duly authorized series of Debt Securities of the Company,
all issued or to be issued pursuant to an Indenture (the “Indenture”), dated as
of December 22, 2004, duly executed and delivered between the Company and Wells
Fargo Bank, National Association, as Trustee (the “Trustee”), to which Indenture
and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the holders of the Debt
Securities (referred to herein as the “Debt Securities”) of which this Debt
Security is a part. The summary of the terms of this Debt Security contained
herein does not purport to be complete and is qualified by reference to the
Indenture.
  Upon the
occurrence and continuation of a Tax Event, an Investment Company Event or a
Capital Treatment Event (each a “Special Event”), this Debt Security may become
due and payable, in whole but not in part, at any time, within 90 days following
the occurrence of such Tax Event, Investment Company Event or Capital Treatment
Event (the “Special Redemption Date”), as the case may be, at the Special
Redemption Price. The Company shall also have the right to redeem this Debt
Security at the option of the Company, in whole or in part, on any Interest
Payment Date on or after December 16, 2009 (a “Redemption Date”), at
the Redemption Price.
  Any
redemption pursuant to the preceding paragraph will be made, subject to the
receipt by the Company of prior approval from the Board of Governors of the
Federal Reserve System (the “Federal Reserve”) if then required under applicable
capital guidelines or policies of the Federal Reserve, upon not less than 30
days’ nor more than 60 days’ notice. If the Debt Securities are only partially
redeemed by the Company, the Debt Securities will be redeemed pro
rata ** or by lot
or by any other method utilized by the Trustee.
  “Redemption
Price” means 100% of the principal amount of the Debt Securities being redeemed plus
accrued and unpaid interest on such Debt Securities to the Redemption Date or,
in the case of a redemption due to the occurrence of a Special Event, to the
Special Redemption Date if such Special Redemption Date is on or after
December 16, 2009.
  “Special
Redemption Price ” means (1)
if the Special Redemption Date is before December 16, 2009, the
greater of (a) 100% of the principal amount of the Debt Securities being
redeemed pursuant to Section 10.02 of the Indenture or (b) as determined by a
Quotation Agent, the sum of the present value of the principal amount payable as
part of the Redemption Price with respect to a redemption as of
December 16, 2009, together with the present value of interest
payments over the Remaining Life of such Debt Securities calculated at a fixed
per annum rate of interest equal to 7.12%, discounted to the Special Redemption
Date on a quarterly basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 0.50%, plus, in the case of either (a) or (b),
accrued and unpaid interest on such Debt Securities to the Special Redemption
Date and (2) if the Special Redemption Date is on or after
December 16, 2009, the Redemption  Price for
such Special Redemption Date.
  “Comparable
Treasury Issue” means with respect to any Special Redemption Date, the United
States Treasury security selected by the Quotation Agent as having a maturity
comparable to the Remaining Life that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the Remaining
Life. If no United States Treasury security has a maturity which is within a
period from three months before to three months after
December 16, 2009, the two most closely corresponding United States
Treasury securities shall be used as the Comparable Treasury Issue, and the
Treasury Rate shall be interpolated or extrapolated on a straight-line basis,
rounding to the nearest month using such securities.
  A-7
 “Comparable
Treasury Price” means (a) the average of five Reference Treasury Dealer
Quotations for such Special Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (b) if the Quotation Agent
receives fewer than five such Reference Treasury Dealer Quotations, the average
of all such Quotations.
  “Primary
Treasury Dealer” means a primary United States Government securities dealer in
New York City.
  “Quotation
Agent” means Citigroup Global Markets Inc. and its successors; provided , however , that if
the foregoing shall cease to be a Primary Treasury Dealer, the Company shall
substitute therefor another Primary Treasury Dealer.
  “Reference
Treasury Dealer” means (i) the Quotation Agent and (ii) any other Primary
Treasury Dealer selected by the Trustee after consultation with the
Company.
  “Reference
Treasury Dealer Quotations” means, with respect to each Reference Treasury
Dealer and any Special Redemption Date, the average, as determined by the
Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such Special Redemption
Date.
  “Treasury
Rate” means (i) the yield, under the heading which represents the average for
the week immediately prior to the date of calculation, appearing in the most
recently published statistical release designated H.15 (519) or any successor
publication which is published weekly by the Federal Reserve and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption “Treasury Constant Maturities,” for the
maturity corresponding to the Remaining Life (if no maturity is within three
months before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Remaining Life shall be determined
and the Treasury Rate shall be interpolated or extrapolated from such yields on
a straight-line basis, rounding to the nearest month) or (ii) if such release
(or any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the quarterly equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such Special Redemption Date. The Treasury Rate shall be calculated on the third
Business Day preceding the Special Redemption Date.
  In the
event of redemption of this Debt Security in part only, a new Debt Security or
Debt Securities for the unredeemed portion hereof will be issued in the name of
the holder hereof upon the cancellation hereof.
  In case
an Acceleration Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debt Securities may be
declared due and payable, and upon such declaration of acceleration shall become
due and payable, in the manner, with the effect and subject to the conditions
provided in the Indenture.
  The
Indenture contains provisions permitting the Company and the Trustee, with the
consent of the holders of not less than a majority in aggregate principal amount
of the Debt Securities at the time outstanding affected thereby, as specified in
the Indenture, to execute supplemental indentures for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or of modifying in any manner the
rights of the holders of the Debt Securities; provided , however , that no
such supplemental indenture shall, among other things, without the consent of
the holders of each Debt Security then outstanding and affected thereby (i)
extend the fixed maturity of the Debt Securities, or reduce the principal amount
thereof or any redemption premium thereon, or reduce the rate or extend the time
of payment of interest thereon, or make payments due on the Debt Securities
payable in any coin or currency other than that provided in the Debt Securities,
or impair or affect the right of any holder of Debt Securities to institute suit
for the payment thereof, or (ii) reduce the aforesaid percentage of Debt
Securities, the holders of which are required to consent to any such
supplemental indenture. The Indenture also contains provisions permitting the
holders of a majority in aggregate principal amount of the Debt Securities at
the time outstanding, on behalf of all of the holders of the Debt Securities, to
waive any past default in the performance of any of the covenants contained in
the Indenture, or established pursuant to the Indenture, and its consequences,
except a default in payments due on any of the Debt Securities. Any such consent
or waiver by the registered holder of this Debt Security (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such holder and
upon all future holders and owners of this Debt Security and of any Debt
Security issued in exchange herefor or in place hereof (whether by registration
of transfer or otherwise), irrespective of whether or not any notation of such
consent or waiver is made upon this Debt Security.
  A-8
 No
reference herein to the Indenture and no provision of this Debt Security or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay all payments due on this Debt Security at the
time and place and at the rate and in the money herein prescribed.
  As
provided in the Indenture and subject to certain limitations herein and therein
set forth, this Debt Security is transferable by the registered holder hereof on
the Debt Security Register of the Company, upon surrender of this Debt Security
for registration of transfer at the office or agency of the Trustee in
Wilmington, Delaware accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company or the Trustee duly executed by the
registered holder hereof or such holder’s attorney duly authorized in writing,
and thereupon one or more new Debt Securities of authorized denominations and
for the same aggregate principal amount will be issued to the designated
transferee or transferees. No service charge will be made for any such
registration of transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
  Prior to
due presentment for registration of transfer of this Debt Security, the Company,
the Trustee, any Authenticating Agent, any Paying Agent, any transfer agent and
the Debt Security registrar may deem and treat the registered holder hereof as
the absolute owner hereof (whether or not this Debt Security shall be overdue
and notwithstanding any notice of ownership or writing hereon) for the purpose
of receiving payment of or on account of the principal hereof and interest due
hereon and for all other purposes, and neither the Company nor the Trustee nor
any Authenticating Agent nor any Paying Agent nor any transfer agent nor any
Debt Security registrar shall be affected by any notice to the
contrary.
  No
recourse shall be had for the payment of the principal of or the interest on
this Debt Security, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
  The Debt
Securities are issuable only in registered certificated form without coupons. As
provided in the Indenture and subject to certain limitations herein and therein
set forth, the Debt Securities are exchangeable for a like aggregate principal
amount of Debt Securities of a different authorized denomination, as requested
by the holder surrendering the same.
  A-9
 All terms
used in this Debt Security that are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
  THE LAW
OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THE DEBT SECURITIES,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
    A-10