Exhibit
4.3


 





CAPITAL CORP OF THE WEST,


as Issuer


 


 


INDENTURE


 


Dated as of
December 17, 2003


 


 


U.S. BANK
NATIONAL ASSOCIATION,


as Trustee


 


 


FLOATING
RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES


 


 


DUE 2033




 





 

















 


TABLE OF CONTENTS


 


 


	
  ARTICLE I. DEFINITIONS

  	
   

  
	
   

  	
   

  
	
   

  	
  Section
  1.1.

  	
  Definitions.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II. DEBENTURES

  	
   

  
	
   

  	
   

  
	
   

  	
  Section 2.1.

  	
  Authentication
  and Dating.

  	
   

  
	
   

  	
  Section
  2.2.

  	
  Form
  of Trustee’s Certificate of Authentication.

  	
   

  
	
   

  	
  Section
  2.3.

  	
  Form
  and Denomination of Debentures

  	
   

  
	
   

  	
  Section 2.4.

  	
  Execution of
  Debentures.

  	
   

  
	
   

  	
  Section
  2.5.

  	
  Exchange
  and Registration of Transfer of Debentures.

  	
   

  
	
   

  	
  Section 2.6.

  	
  Mutilated, Destroyed, Lost or Stolen
  Debentures.

  	
   

  
	
   

  	
  Section 2.7.

  	
  Temporary Debentures

  	
   

  
	
   

  	
  Section
  2.8.

  	
  Payment
  of Interest and Additional Interest.

  	
   

  
	
   

  	
  Section
  2.9.

  	
  Cancellation
  of Debentures Paid, etc

  	
   

  
	
   

  	
  Section 2.10.

  	
  Computation of
  Interest

  	
   

  
	
   

  	
  Section
  2.11.

  	
  Extension
  of Interest Payment Period.

  	
   

  
	
   

  	
  Section 2.12.

  	
  CUSIP Numbers

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III. PARTICULAR COVENANTS OF THE
  COMPANY

  	
   

  
	
   

  	
   

  
	
   

  	
  Section 3.1.

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

  	
   

  
	
   

  	
  Section
  3.2.

  	
  Offices
  for Notices and Payments, etc

  	
   

  
	
   

  	
  Section
  3.3.

  	
  Appointments
  to Fill Vacancies in Trustee’s Office

  	
   

  
	
   

  	
  Section 3.4.

  	
  Provision as
  to Paying Agent

  	
   

  
	
   

  	
  Section 3.5.

  	
  Certificate to
  Trustee

  	
   

  
	
   

  	
  Section 3.6.

  	
  Additional Sums.

  	
   

  
	
   

  	
  Section
  3.7.

  	
  Compliance
  with Consolidation Provisions

  	
   

  
	
   

  	
  Section 3.8.

  	
  Limitation on
  Dividends

  	
   

  
	
   

  	
  Section 3.9.

  	
  Covenants as to
  the Trust.

  	
   

  
	
   

  	
  Section
  3.10.

  	
  Additional
  Junior Indebtedness

  	
   

  
	
   

  	
   

  	
   

  	
   

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

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.1.

  	
  Securityholders’
  Lists.

  	
   

  
	
   

  	
  Section
  4.2.

  	
  Preservation
  and Disclosure of Lists

  	
   

  
	
   

  	
   

  	
   

  	
   

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

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 5.1.

  	
  Events of Default

  	
   

  
	
   

  	
  Section
  5.2.

  	
  Payment
  of Debentures on Default; Suit Therefor.

  	
   

  
	
   

  	
  Section
  5.3.

  	
  Application
  of Moneys Collected by Trustee

  	
   

  
	
   

  	
  Section
  5.4.

  	
  Proceedings
  by Securityholders.

  	
   

  
	
   

  	
  Section 5.5.

  	
  Proceedings by
  Trustee.

  	
   

  
	
   

  	
  Section
  5.6.

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

  	
   

  



 


i

















 


	
   

  	
  Section
  5.7.

  	
  Direction
  of Proceedings and Waiver of Defaults by Majority of Securityholders

  	
   

  
	
   

  	
  Section 5.8.

  	
  Notice of Defaults

  	
   

  
	
   

  	
  Section 5.9.

  	
  Undertaking to
  Pay Costs

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI. CONCERNING THE TRUSTEE

  	
   

  
	
   

  	
   

  
	
   

  	
  Section
  6.1.

  	
  Duties
  and Responsibilities of Trustee

  	
   

  
	
   

  	
  Section 6.2.

  	
  Reliance on Documents, Opinions, etc.

  	
   

  
	
   

  	
  Section
  6.3.

  	
  No
  Responsibility for Recitals, etc

  	
   

  
	
   

  	
  Section 6.4.

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

  	
   

  
	
   

  	
  Section 6.5.

  	
  Moneys to be Held in Trust.

  	
   

  
	
   

  	
  Section 6.6.

  	
  Compensation and Expenses of Trustee

  	
   

  
	
   

  	
  Section 6.7.

  	
  Officers’ Certificate as Evidence

  	
   

  
	
   

  	
  Section 6.8.

  	
  Eligibility of Trustee

  	
   

  
	
   

  	
  Section 6.9.

  	
  Resignation or Removal of Trustee

  	
   

  
	
   

  	
  Section 6.10.

  	
  Acceptance by Successor Trustee

  	
   

  
	
   

  	
  Section 6.11.

  	
  Succession by Merger, etc

  	
   

  
	
   

  	
  Section 6.12.

  	
  Authenticating Agents

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII. CONCERNING THE SECURITYHOLDERS

  	
   

  
	
   

  	
   

  
	
   

  	
  Section 7.1.

  	
  Action by Securityholders.

  	
   

  
	
   

  	
  Section 7.2.

  	
  Proof of Execution by Securityholders.

  	
   

  
	
   

  	
  Section 7.3.

  	
  Who Are Deemed Absolute Owners

  	
   

  
	
   

  	
  Section 7.4.

  	
  Debentures Owned by Company Deemed Not
  Outstanding.

  	
   

  
	
   

  	
  Section 7.5.

  	
  Revocation of Consents; Future Holders
  Bound.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII. SECURITYHOLDERS’ MEETINGS

  	
   

  
	
   

  	
   

  
	
   

  	
  Section 8.1.

  	
  Purposes of Meetings

  	
   

  
	
   

  	
  Section 8.2.

  	
  Call of Meetings by Trustee

  	
   

  
	
   

  	
  Section 8.3.

  	
  Call of Meetings by Company or
  Securityholders.

  	
   

  
	
   

  	
  Section 8.4.

  	
  Qualifications for Voting.

  	
   

  
	
   

  	
  Section 8.5.

  	
  Regulations.

  	
   

  
	
   

  	
  Section 8.6.

  	
  Voting

  	
   

  
	
   

  	
  Section 8.7.

  	
  Quorum; Actions.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX. SUPPLEMENTAL INDENTURES

  	
   

  
	
   

  	
   

  
	
   

  	
  Section 9.1.

  	
  Supplemental Indentures without Consent of
  Securityholders.

  	
   

  
	
   

  	
  Section 9.2.

  	
  Supplemental Indentures with Consent of
  Securityholders

  	
   

  
	
   

  	
  Section 9.3.

  	
  Effect of Supplemental Indentures.

  	
   

  
	
   

  	
  Section 9.4.

  	
  Notation on Debentures

  	
   

  
	
   

  	
  Section 9.5.

  	
  Evidence of Compliance of Supplemental
  Indenture to be Furnished to Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X. REDEMPTION OF SECURITIES

  	
   

  
	
   

  	
   

  
	
   

  	
  Section 10.1.

  	
  Optional Redemption.

  	
   

  
	
   

  	
  Section 10.2.

  	
  Special Event Redemption.

  	
   

  
	
   

  	
  Section 10.3.

  	
  Notice of Redemption; Selection of
  Debentures

  	
   

  
	
   

  	
  Section 10.4.

  	
  Payment of Debentures Called for
  Redemption.

  	
   

  



 


ii

















 


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

  	
   

  
	
   

  	
   

  
	
   

  	
  Section 11.1.

  	
  Company May Consolidate, etc., on Certain
  Terms

  	
   

  
	
   

  	
  Section 11.2.

  	
  Successor Entity to be Substituted

  	
   

  
	
   

  	
  Section 11.3.

  	
  Opinion of Counsel to be Given to Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII. SATISFACTION AND DISCHARGE OF
  INDENTURE

  	
   

  
	
   

  	
   

  
	
   

  	
  Section 12.1.

  	
  Discharge of Indenture

  	
   

  
	
   

  	
  Section 12.2.

  	
  Deposited Moneys to be Held in Trust by
  Trustee

  	
   

  
	
   

  	
  Section 12.3.

  	
  Paying Agent to Repay Moneys Held.

  	
   

  
	
   

  	
  Section 12.4.

  	
  Return of Unclaimed Moneys.

  	
   

  
	
   

  	
   

  	
   

  	
   

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

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.1.

  	
  Indenture and Debentures Solely Corporate
  Obligations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIV. MISCELLANEOUS PROVISIONS

  	
   

  
	
   

  	
   

  
	
   

  	
  Section 14.1.

  	
  Successors

  	
   

  
	
   

  	
  Section 14.2.

  	
  Official Acts by Successor Entity

  	
   

  
	
   

  	
  Section 14.3.

  	
  Surrender of Company Powers.

  	
   

  
	
   

  	
  Section 14.4.

  	
  Addresses for Notices, etc

  	
   

  
	
   

  	
  Section 14.5.

  	
  Governing Law

  	
   

  
	
   

  	
  Section 14.6.

  	
  Evidence of Compliance with Conditions
  Precedent

  	
   

  
	
   

  	
  Section 14.7.

  	
  Table of Contents, Headings, etc

  	
   

  
	
   

  	
  Section 14.8.

  	
  Execution in Counterparts.

  	
   

  
	
   

  	
  Section 14.9.

  	
  Separability.

  	
   

  
	
   

  	
  Section 14.10.

  	
  Assignment.

  	
   

  
	
   

  	
  Section 14.11.

  	
  Acknowledgment of Rights.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XV. SUBORDINATION OF DEBENTURES

  	
   

  
	
   

  	
   

  
	
   

  	
  Section 15.1.

  	
  Agreement to Subordinate

  	
   

  
	
   

  	
  Section 15.2.

  	
  Default on Senior Indebtedness

  	
   

  
	
   

  	
  Section 15.3.

  	
  Liquidation, Dissolution, Bankruptcy.

  	
   

  
	
   

  	
  Section 15.4.

  	
  Subrogation.

  	
   

  
	
   

  	
  Section 15.5.

  	
  Trustee to Effectuate Subordination.

  	
   

  
	
   

  	
  Section 15.6.

  	
  Notice by the Company.

  	
   

  
	
   

  	
  Section 15.7.

  	
  Rights of the Trustee; Holders of Senior
  Indebtedness

  	
   

  
	
   

  	
  Section 15.8.

  	
  Subordination May Not Be Impaired

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A Form of Floating Rate Junior
  Subordinated Deferrable Interest Debenture

  	
   

  



 


iii

















 


THIS INDENTURE, dated as of
December 17, 2003, between Capital Corp of the West, a California corporation
(the “Company”), and U.S. Bank National Association, a national banking
association organized under the laws of the United States of America, as
debenture trustee (the “Trustee”).


 


WITNESSETH:


 


WHEREAS, for its lawful
corporate purposes, the Company has duly authorized the issuance of its
Floating Rate Junior Subordinated Deferrable Interest Debentures due 2033 (the
“Debentures”) under this Indenture to provide, among other things, for
the execution and authentication, delivery and administration thereof, and the
Company has duly authorized the execution of this Indenture; and


 


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


 


NOW, THEREFORE, This
Indenture Witnesseth:


 


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


 


ARTICLE I


DEFINITIONS


 


Section
1.1.           Definitions.  The
terms defined in this Section 1.1 (except as herein otherwise expressly
provided or unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the respective
meanings specified in this Section 1.1. 
All accounting terms used herein and not expressly defined shall have
the meanings assigned to such terms in accordance with generally accepted
accounting principles and the term “generally accepted accounting principles”
means such accounting g 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.


 


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


 


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


 


1

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


2

















 


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


 


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


 


“Company” means
Capital Corp of the West, a California corporation, and, subject to the
provisions of Article XI, shall include its successors and assigns.


 


“Coupon Rate” means
(i) for the Distribution Periods beginning on (and including) the date of
original issuance through (but excluding) the Interest Payment Date in
December, 2008, the rate per annum of the Prime Rate, plus 0.07%, and (ii) for
each successive Distribution Period beginning on (and including) the Interest
Payment Date in December, 2008, the rate per annum equal to 3-Month LIBOR,
determined as described in Section 2.10, plus 2.85%.


 


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


 


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


 


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


 


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


 


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


 


“Distribution Period”
means each period beginning on (and including) the date of original issuance
and each succeeding Interest Payment Date and ending on (but excluding) the
next succeeding Interest Payment Date.


 


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


 


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


 


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


 


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


 


“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 17, June 17, September 17 and December 17 of each year during the
term of this Indenture, or if such day is not a Business Day, then the next
succeeding Business Day, commencing with March 17, 2004.


 


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


 


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


 


“Maturity Date” means
December 17, 2033.


 


“New York City Banking
Day” means a day on which commercial banks are open for general business
(including dealings in foreign exchange and foreign currency deposits) in New
York City.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


4

















 


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


 


“Prime Rate” means
the quotient that results from dividing (i) the sum of each day’s USD
-Prime-H.15 during the Distribution Period by (ii) the actual number of days in
the Distribution Period.


 


“Principal Office of the
Trustee,” or other similar term, means the office of the Trustee, at which
at any particular time its corporate trust business shall be principally
administered, which at the time of the execution of this Indenture shall be 225
Asylum Street, Goodwin Square, Hartford, Connecticut 06103.


 


“Rate Cut-off Date”
means for each Distribution Period the date that is five New York City Banking
Days preceding the last day of the Distribution Period.


 


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


 


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


 


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


 


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


 


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


 


“Senior Indebtedness”
means, with respect to the Company, (i) the principal, premium, if any, and
interest in respect of (A) indebtedness of the Company for 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;
(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; 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. 
Notwithstanding the foregoing, “Senior Indebtedness” shall not include
(1) any Additional Junior Indebtedness, (2) Debentures issued pursuant to this
Indenture and guarantees


 


5

















 


in respect of such
Debentures, (3) trade accounts payable of the Company arising in the ordinary
course of business (such trade accounts payable being pari passu in right of payment to the
Debentures), or (4) obligations with respect to which (a) in the instrument
creating or evidencing the same or pursuant to which the same is outstanding,
it is provided that such obligations are pari
passu, junior or otherwise not superior in right of payment to the
Debentures and (b) the Company, prior to the issuance thereof, has notified
(and, if then required under the applicable guidelines of the regulating
entity, has received approval from) the Federal Reserve (if the Company is a
bank holding company) or the OTS (if the Company is a savings and loan holding
company).  Senior Indebtedness shall
continue to be Senior Indebtedness and be entitled to the subordination
provisions irrespective of any amendment, modification or waiver of any term of
such Senior Indebtedness.


 


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


 


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


 


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


 




	
  Special Redemption Date

  	
   

  	
  Special Redemption Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  March 17, 2004

  	
   

  	
  104.625

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  June 17, 2004

  	
   

  	
  104.300

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  September 17, 2004

  	
   

  	
  104.000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  December 17, 2004

  	
   

  	
  103.650

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  March 17, 2005

  	
   

  	
  103.350

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  June 17, 2005

  	
   

  	
  103.000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  September 17, 2005

  	
   

  	
  102.700

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  December 17, 2005

  	
   

  	
  102.350

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  March 17, 2006

  	
   

  	
  102.050

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  June 17, 2006

  	
   

  	
  101.700

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  September 17, 2006

  	
   

  	
  101.400

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  December 17, 2006

  	
   

  	
  101.050

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  March 17, 2007

  	
   

  	
  100.750

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  June 17, 2007

  	
   

  	
  100.450

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  September 17, 2007

  	
   

  	
  100.200

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  December 17, 2007 and
  thereafter

  	
   

  	
  100.000

  	
  %

  






 


6

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Trustee” means U.S.
Bank National Association, and, subject to the provisions of Article VI hereof,
shall also include its successors and assigns as Trustee hereunder.


 


“USD -Prime-H.15”
means for any date (subject to the Rate Cut-off Date) the rate set forth in the
Federal Reserve’s H.15(519) for that day opposite the caption “Bank prime
loan”.  If, by 5:00 p.m.,


 


7

















 


New York City time, on the
day that is one New York City Banking Day following that day, such rate for
that day is not yet published in H.15(519), the rate for that day will be the
rate set forth in H.15 Daily Update, or such other recognized electronic source
used for the purpose of displaying such rate, for that day opposite the caption
“Bank prime loan”.  If, by 5:00 p.m.,
New York City time, on the day that is one New York City Banking Day following
that day, such rate for that day is not yet published in H.15(519), H.15 Daily
Update or another recognized electronic source, or if that day is not a New
York City Banking Day, the rate for that day will be the rate for the first
preceding day for which such rate is set forth in H.15(519) opposite the
caption “Bank prime loan”.  The rate for
any day in the period between the day after the Rate Cut-off Date and the last
day of the Distribution Period shall be the rate on the Rate Cut-off Date.


 


ARTICLE II


DEBENTURES


 


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


 


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


 


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


 


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


 


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


 


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


 


8

















 


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


 


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


 


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


 


	
   

  	
  U.S. BANK NATIONAL ASSOCIATION,
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
  Authorized Signer

  



 


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


 


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


 


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


 


Every Debenture shall be
dated the date of its authentication.


 


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


 


9

















 


shall be in written form or
in any other form capable of being converted into written form within a
reasonable time.


 


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


 


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


 


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


 


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


 


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


 


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


 


THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW.  NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.  THE HOLDER OF THIS SECURITY BY
ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY
ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A, (D) TO A NON-U.S. PERSON IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH


 


10

















 


RULE 903 OR RULE 904 (AS
APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
“ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (A) OF RULE 501 UNDER
THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF
WHICH MAY BE OBTAINED FROM THE COMPANY.


 


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


 


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


 


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


 


Section 2.6.           Mutilated, Destroyed, Lost or Stolen Debentures.  In case any Debenture shall become mutilated or be destroyed, lost or
stolen, the Company shall execute, and upon its written request the Trustee
shall authenticate and deliver, a new Debenture bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Debenture, or in lieu of and in substitution for the Debenture so destroyed,
lost or stolen.  In every case the
applicant for a substituted Debenture shall


 


11

















 


furnish to the Company and
the Trustee such security or indemnity as may be required by them to save each
of them harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Company and the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Debenture and of the
ownership thereof.


 


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


 


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


 


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


 


Section
2.8.           Payment of Interest and
Additional Interest.  Interest at the Coupon Rate and any
Additional Interest on any Debenture that is payable, and is punctually paid or
duly provided for, on any Interest Payment Date for Debentures shall be paid to
the Person in whose name said Debenture (or


 


12

















 


one or more Predecessor
Securities) is registered at the close of business on the regular record date
for such interest installment except that interest and any Additional Interest
payable on the Maturity Date shall be paid to the Person to whom principal is
paid.


 


Each Debenture shall bear
interest at the Coupon Rate, applied to the principal amount thereof, until the
principal thereof becomes due and payable, and on any overdue principal and to
the extent that payment of such interest is enforceable under applicable law
(without duplication) on any overdue installment of interest (including
Additional Interest) at the Coupon Rate in effect for each applicable period
compounded quarterly.  Interest shall be
payable (subject to any relevant Extension Period) quarterly in arrears on each
Interest Payment Date with the first installment of interest to be paid on
March 17, 2004.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


14

















 


the corrected rate as so substituted
on the applicable page will be the applicable 3-Month LIBOR for such
Determination Date.


 


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


 


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


 


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


 


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


 


Section 2.11.        Extension
of Interest Payment Period.  So long as no Event of Default has occurred
and is continuing, the Company shall have the right, from time to time, and
without causing an Event of Default, to defer payments of interest on the
Debentures by extending the interest payment period on the Debentures at any
time and from time to time during the term of the Debentures, for up to 20
consecutive quarterly periods (each such extended interest payment period, an “Extension
Period”), during which Extension Period no interest (including Additional
Interest) shall be due and payable (except any Additional Sums that may be due
and payable).  No Extension Period may
end on a date other than an Interest Payment Date.  During an Extension Period, interest will continue to accrue on
the Debentures, and interest on such accrued interest will accrue at an annual
rate equal to the Coupon Rate in effect for such Extension Period, compounded
quarterly from the date such interest would have been payable were it not for
the Extension Period, to the extent permitted by law (such interest referred to
herein as “Additional Interest”). 
At the end of any such Extension Period the Company shall pay all interest
then accrued and unpaid on the Debentures (together with Additional Interest
thereon); provided, however, that no Extension Period may extend
beyond the Maturity Date; provided  further, however, that
during any such Extension Period, the Company shall not and shall not permit
any Affiliate to (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any
of the Company’s or such Affiliate’s capital stock (other than payments of dividends
or distributions to the Company) or make any guarantee payments with respect to
the foregoing or (ii) make any payment of principal of or interest or premium,
if any, on or repay, repurchase or redeem any debt securities of the Company or
any Affiliate that rank pari passu
in all respects with or junior in interest to the Debentures (other than, with
respect to clauses (i) or (ii) above, (a) repurchases,


 


15

















 


redemptions or other
acquisitions of shares of capital stock of the Company in connection with any
employment contract, benefit plan or other similar arrangement with or for the
benefit of one or more employees, officers, directors or consultants, in
connection with a dividend reinvestment or stockholder stock purchase plan or
in connection with the issuance of capital stock of the Company (or securities
convertible into or exercisable for such capital stock) as consideration in an
acquisition transaction entered into prior to the applicable Extension Period,
(b) as a result of any exchange or conversion of any class or series of the
Company’s capital stock (or any capital stock of a subsidiary of the Company)
for any class or series of the Company’s capital stock or of any class or
series of the Company’s indebtedness for any class or series of the Company’s
capital stock, (c) the purchase of fractional interests in shares of the
Company’s capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, (d) any
declaration of a dividend in connection with any stockholders’ rights plan, or
the issuance of rights, stock or other property under any stockholders’ rights
plan, or the redemption or repurchase of rights pursuant thereto, (e) any
dividend in the form of stock, warrants, options or other rights where the
dividend stock or the stock issuable upon exercise of such warrants, options or
other rights is the same stock as that on which the dividend is being paid or
ranks pari passu with or junior
to such stock and any cash payments in lieu of fractional shares issued in
connection therewith, or (f) payments under the Capital Securities
Guarantee).  Prior to the termination of
any Extension Period, the Company may further extend such period, provided that
such period together with all such previous and further consecutive extensions
thereof shall not exceed 20 consecutive quarterly periods, or extend beyond the
Maturity Date.  Upon the termination of
any Extension Period and upon the payment of all accrued and unpaid interest
and Additional Interest, the Company may commence a new Extension Period,
subject to the foregoing requirements. 
No interest or Additional Interest shall be due and payable during an
Extension Period, except at the end thereof, but each installment of interest
that would otherwise have been due and payable during such Extension Period
shall bear Additional Interest to the extent permitted by applicable law.  The Company must give the Trustee notice of
its election to begin or extend an Extension Period at least 5 Business Days
prior to the regular record date (as such term is used in Section 2.8)
immediately preceding the Interest Payment Date with respect to which interest
on the Debentures would have been payable except for the election to begin or
extend such Extension Period.  The
Trustee shall give notice of the Company’s election to begin a new Extension
Period to the Securityholders.


 


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


 


ARTICLE III


PARTICULAR
COVENANTS OF THE COMPANY


 


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


 


(a)           The Company covenants and agrees that it will duly and
punctually pay or cause to be paid the principal of and premium, if any, and
interest and any Additional Interest and other payments on the Debentures at
the place, at the respective times and in the manner provided in this Indenture
and the Debentures. Each installment of interest on the Debentures may be paid
(i) by mailing checks for such interest payable to the order of the holders of
Debentures entitled thereto as they appear on the registry


 


16

















 


books of the Company if a
request for a wire transfer has not been received by the Company or (ii) by
wire transfer to any account with a banking institution located in the United
States designated in writing by such Person to the paying agent no later than
the related record date. 
Notwithstanding the foregoing, so long as the holder of this Debenture
is the Institutional Trustee, the payment of the principal of and interest on
this Debenture will be made in immediately available funds at such place and to
such account as may be designated by the Institutional Trustee.


 


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


 


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


 


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


 


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


 


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


 


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


 


17

















 


Section
3.4.           Provision as to Paying
Agent.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


18

















 


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


 


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


 


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


 


19

















 


in lieu of fractional shares
issued in connection therewith, or (6) payments under the Capital Securities
Guarantee).


 


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


 


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


 


ARTICLE IV


SECURITYHOLDERS’
LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE


 


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


 


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


 


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


 


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


 


Section 4.2.           Preservation
and Disclosure of Lists.


 


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


 


(b)           In case three or more holders of Debentures (hereinafter
referred to as “applicants”) apply in writing to the Trustee and furnish to the
Trustee reasonable proof that each such applicant has owned a Debenture for a
period of at least 6 months preceding the date of such application, and such
application states that the applicants desire to communicate with other holders
of Debentures with respect to their


 


20

















 


rights under this Indenture
or under such Debentures and is accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, then the Trustee
shall within 5 Business Days after the receipt of such application, at its
election, either:


 


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


 


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


 


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


 


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


 


ARTICLE V


REMEDIES OF
THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT


 


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


 


(a)           the Company defaults in the payment of any interest upon
any Debenture when it becomes due and payable, and fails to cure such default
for a period of 30 days; provided, however, that a valid
extension of an interest payment period by the Company in accordance with the
terms of this Indenture shall not constitute a default in the payment of
interest for this purpose; or


 


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


 


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


 


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


 


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


 


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


 


If an Event of Default
occurs and is continuing wit h respect to the Debentures, then, and in each and
every such case, unless the principal of the Debentures shall have already become
due and payable, either the Trustee or the holders of not less than 25% in
aggregate principal amount of the Debentures then outstanding hereunder, by
notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal of the Debentures and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.


 


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


 


22

















 


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


 


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


 


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


 


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


 


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


 


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


 


23

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


25

















 


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


 


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


 


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


 


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


 


26

















 


ARTICLE VI


CONCERNING
THE TRUSTEE


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


27

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


28

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 6.9.           Resignation or Removal of Trustee


 


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


 


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


 


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


 


30

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


31

















 


Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such Trustee shall be
Trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


ARTICLE VII


CONCERNING
THE SECURITYHOLDERS


 


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


 


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


 


33

















 


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


 


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


 


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


 


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


 


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


 


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


 


34

















 


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


 


ARTICLE VIII


SECURITYHOLDERS’
MEETINGS


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


35

















 


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


 


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


 


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


 


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


 


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


 


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


 


36

















 


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


 


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


 


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


 


ARTICLE IX


SUPPLEMENTAL
INDENTURES


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


ARTICLE X


REDEMPTION
OF SECURITIES


 


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


 


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a principal amount with
integral multiples of $1,000.00, on any Interest Payment Date on or after
December 17, 2008 (the “Redemption Date”), at the Redemption Price.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


ARTICLE XI


CONSOLIDATION,
MERGER, SALE, CONVEYANCE AND LEASE


 


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


 


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


 


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


 


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


 


ARTICLE XII


SATISFACTION
AND DISCHARGE OF INDENTURE


 


Section 12.1.        Discharge of Indenture.  When


 


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


 


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


 


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


 


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


 


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


 


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


 


ARTICLE XIII


IMMUNITY OF
INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS


 


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


 


ARTICLE XIV


MISCELLANEOUS
PROVISIONS


 


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


 


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


 


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


 


Section 14.4.        Addresses for Notices, etc.  Any notice,
consent, direction, request, authorization, waiver or demand which by any
provision of this Indenture is required or permitted to be given, made,
furnished or served by the Trustee or by the Securityholders on or to the
Company may be given or served in writing by being deposited postage prepaid by
registered or certified mail in a post office letter box addressed (until
another address is filed by the Company, with the Trustee for the purpose) to
the Company, 550 West Main Street, Merced, California  95341-0351, Attention: 
Kenneth K. Lee.  Any notice,
consent, direction, request, authorization, waiver or demand by any
Securityholder or the Company to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made in writing
at the office of the Trustee, addressed to the Trustee, 225 Asylum Street, Goodwin
Square, Hartford, Connecticut  06103
Attention: Vice President, Corporate Trust


 


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Services Division, with a
copy to the Trustee, 1 Federal Street – 3rd Floor, Boston, Massachusetts  02110, Attention:  Paul D. Allen, Corporate Trust Services Division.  Any notice, consent, direction, request,
authorization, waiver or demand on or to any Securityholder shall be deemed to
have been sufficiently given or made, for all purposes, if given or made in
writing at the address set forth in the Debenture Register.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 14.11.      Acknowledgment of Rights.  The Company
agrees that, with respect to any Debentures held by the Trust or the
Institutional Trustee of the Trust, if the Institutional Trustee of the Trust
fails to enforce its rights under this Indenture as the holder of Debentures
held as the assets of such


 


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


 


ARTICLE XV


SUBORDINATION
OF DEBENTURES


 


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


 


The payment by the Company of
the principal of, and premium, if any, and interest on all Debentures shall, to
the extent and in the manner hereinafter set forth, be subordinated and junior
in right of payment to the prior payment in full of all Senior Indebtedness of
the Company, whether outstanding at the date of this Indenture or thereafter
incurred; provided, however, that the Debentures shall rank pari passu in right of payment with Fixed
Rate Junior Subordinated Deferrable Interest Debentures due February 22, 2031
issued pursuant to an Indenture dated as of February 22, 2001 by and between
the Company and State Street Bank and Trust of Connecticut N.A. (n/k/a U.S.
Bank National Association).


 


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


 


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


 


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


 


45

















 


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


 


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


 


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


 


Section 15.4.        Subrogation.  Subject to the payment in full of all Senior
Indebtedness, the Securityholders shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive


 


46

















 


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


 


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


 


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


 


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


 


Section 15.6.        Notice by the Company.  The Company
shall give prompt written notice to a Responsible Officer of the Trustee at the
Principal Office of the Trustee of any fact known to the Company that would
prohibit the making of any payment of monies to or by the Trustee in respect of
the Debentures pursuant to the provisions of this Article XV.  Notwithstanding the provisions of this
Article XV or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts that would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Debentures pursuant to the provisions of this Article XV, unless and until a
Responsible Officer of the Trustee at the Principal Office of the Trustee shall
have received written notice thereof from the Company or a holder or holders of
Senior Indebtedness or from any trustee therefor; and before the receipt of any
such written notice, the Trustee, subject to the provisions of Article VI of
this Indenture, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Section at least 2 Business Days prior
to the


 


47

















 


date upon which by the terms
hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any) or interest on
any Debenture), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such money and to apply the same to the purposes for which they were received,
and shall not be affected by any notice to the contrary that may be received by
it within 2 Business Days prior to such date.


 


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


 


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


 


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


 


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


 


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


 


Without in any way limiting
the generality of the foregoing paragraph, the holders of Senior Indebtedness
may, at any time and from time to time, without the consent of or notice to the
Trustee or the Securityholders, without incurring responsibility to the
Securityholders and without impairing or releasing the subordination provided
in this Article XV or the obligations hereunder of the holders of the
Debentures to the holders of such Senior Indebtedness, do any one or more of
the following:  (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
such Senior Indebtedness, or otherwise amend or supplement in any manner such
Senior Indebtedness or any instrument evidencing the same or any agreement
under which such Senior Indebtedness is outstanding;


 


48

















 


(ii) sell, exchange, release
or otherwise deal with any property pledged, mortgaged or otherwise securing
such Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company, and any other Person.


 


Signatures
appear on the following page


 


49

















 


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.


 


 


	
   

  	
   

  	
  CAPITAL CORP OF THE WEST

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
       /s/ Janey Cabnal

  	
   

  	
   

  
	
   

  	
   

  	
    Name:

  	
  Janey Cabnal

  	
   

  
	
   

  	
   

  	
    Title:

  	
  SVP

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION, as Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
        /s/ Paul Allen

  	
   

  	
   

  
	
   

  	
   

  	
    Name:

  	
  Paul Allen

  	
   

  
	
   

  	
   

  	
    Title:

  	
  Vice President

  	
   

  
							



 


50

















 


EXHIBIT A


 


FORM OF
FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE


 


[FORM OF FACE OF SECURITY]


 


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


 


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


 


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


 


A-1-1

















 


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


 


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


 


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


 


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


 


Floating Rate Junior
Subordinated Deferrable Interest Debenture


 


of


 


Capital Corp of the West


 


December 17, 2003


 


Capital Corp of the West, a
California corporation (the “Company” which term includes any successor Person
under the Indenture hereinafter referred to), for value received promises to
pay to U.S. Bank National Association, not in its individual capacity but
solely as Institutional Trustee for County Statutory Trust II (the “Holder”) or
registered assigns, the principal sum of ten million three hundred ten thousand
dollars ($10,310,000.00) on December 17, 2033, and to pay interest on said
principal sum from December 17, 2003, 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 17, June 17, September 17 and December 17 of each year (or
if such day is not a Business Day, then the next succeeding Business Day)
commencing on March 17, 2004, at an annual rate equal to (i) the Prime Rate,
plus 0.07%, for the Distribution Periods beginning on (and including) the date
of original issuance and each succeeding Interest Payment Date occurring prior
to December 17, 2008, and (ii) 3-Month LIBOR plus 2.85% for each successive
Distribution Period beginning on (and including) December 17, 2008 ((i) and
(ii) each referred to as the “Coupon Rate”), applied to the principal amount
hereof, until the principal hereof is paid or duly provided for or made
available for payment, and on any overdue principal and (without duplication
and to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest (including Additional Interest) at
the Coupon Rate in effect for each applicable period, compounded quarterly,
from the dates such amounts are due until they are paid or made available for
payment.  The


 


A-1-2

















 


amount of interest payable
for any period will be computed on the basis of the actual number of days in
the Distribution Period concerned divided by 360.  In the event that any date on which interest is payable on this
Debenture is not a Business Day, then a payment of the interest payable on such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay), 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 the date the payment was
originally payable.  The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Debenture (or one or more Predecessor Securities) is
registered at the close of business on the regular record date for such
interest installment, which shall be fifteen days prior to the day on which the
relevant Interest Payment Date occurs. 
Any such interest installment not so punctually paid or duly provided
for shall forthwith cease to be payable to the Holder on such regular record
date and may be paid to the Person in whose name this Debenture (or one or more
Predecessor Securities) is registered at the close of business on a special
record date.


 


“New York City Banking Day”
means a day on which commercial banks are open for general business (including
dealings in foreign exchange and foreign currency deposits) in New York City.


 


“Prime Rate” means the
quotient that results from dividing (i) the sum of each day’s USD -Prime-H.15
during the Distribution Period by (ii) the actual number of days in the
Distribution Period.


 


“Rate Cut-off Date” means
for each Distribution Period the date that is five New York City Banking Days
preceding the last day of the Distribution Period.


 


“USD -Prime-H.15” means for
any date (subject to the Rate Cut-off Date) the rate set forth in the Federal
Reserve’s H.15(519) for that day opposite the caption “Bank prime loan”.  If, by 5:00 p.m., New York City time, on the
day that is one New York City Banking Day following that day, such rate for
that day is not yet published in H.15(519), the rate for that day will be the
rate set forth in H.15 Daily Update, or such other recognized electronic source
used for the purpose of displaying such rate, for that day opposite the caption
“Bank prime loan”.  If, by 5:00 p.m.,
New York City time, on the day that is one New York City Banking Day following
that day, such rate for that day is not yet published in H.15(519), H.15 Daily
Update or another recognized electronic source, or if that day is not a New
York City Banking Day, the rate for that day will be the rate for the first
preceding day for which such rate is set forth in H.15(519) opposite the caption
“Bank prime loan”.  The rate for any day
in the period between the day after the Rate Cut-off Date and the last day of
the Distribution Period shall be the rate on the Rate Cut-off Date.


 


“3-Month LIBOR” as used
herein, means the London interbank offered interest rate for three-month U.S.
dollar deposits determined by the Trustee in the following order of
priority:  (i) the rate (expressed as a
percentage per annum) for U.S. dollar deposits having a three-month maturity
that appears on Telerate Page 3750 as of 11:00 a.m. (London time) on the
related Determination Date (“Telerate Page 3750” means the display designated
as “Page 3750” on the Dow Jones Telerate Service or such other page as may
replace Page 3750 on that service or such other service or services as may be
nominated by the British Bankers’ Association as the information vendor for the
purpose of displaying London interbank offered rates for U.S. dollar deposits);
(ii) if such rate cannot be identified on the related Determination Date, the
Trustee will request the principal London offices of four leading banks in the
London interbank market to provide such banks’ offered quotations (expressed as
percentages per annum) to prime banks in the London interbank market for U.S.
dollar deposits having a three-month maturity as of 11:00 a.m. (London time) on
such Determination Date.  If at least
two quotations are provided, 3-Month LIBOR will be the arithmetic mean of such
quotations; (iii) if fewer than two such quotations are provided as requested
in clause (ii) above, the Trustee will request four major New York City banks
to


 


A-1-3

















 


provide such banks’ offered
quotations (expressed as percentages per annum) to leading European banks for
loans in U.S. dollars as of 11:00 a.m. (London time) on such Determination
Date.  If at least two such quotations
are provided, 3-Month LIBOR will be the arithmetic mean of such quotations; and
(iv) if fewer than two such quotations are provided as requested in clause
(iii) above, 3-Month LIBOR will be a 3-Month LIBOR determined with respect to
the Distribution Period immediately preceding such current Distribution
Period.  If the rate for U.S. dollar
deposits having a three-month maturity that initially appears on Telerate Page
3750 as of 11:00 a.m. (London time) on the related Determination Date is
superseded on the Telerate Page 3750 by a corrected rate by 12:00 noon (London
time) on such Determination Date, then the corrected rate as so substituted on
the applicable page will be the applicable 3-Month LIBOR for such Determination
Date.  As used herein, “Determination
Date” means the date that is two London Banking Days (i.e., a business day in
which dealings in deposits in U.S. dollars are transacted in the London
interbank market) preceding the commencement of the relevant Distribution
Period.


 


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


 


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


 


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


 


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


 


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termination of any Extension
Period and upon the payment of all accrued and unpaid interest and Additional
Interest, the Company may commence a new Extension Period, subject to the
foregoing requirements.  No interest or
Additional Interest shall be due and payable during an Extension Period, except
at the end thereof, but each installment of interest that would otherwise have
been due and payable during such Extension Period shall bear Additional
Interest.  The Company must give the
Trustee notice of its election to begin or extend an Extension Period at least
5 Business Days prior to the regular record date (as such term is used in
Section 2.8 of the Indenture) immediately preceding the Interest Payment Date
with respect to which interest on the Debentures would have been payable except
for the election to begin or extend such Extension Period.


 


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


 


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


 


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


 


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


 


	
   

  	
  CAPITAL CORP OF THE WEST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  



 


 


CERTIFICATE OF
AUTHENTICATION


 


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


 


	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   Authorized Officer

  



 


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[FORM OF REVERSE OF
DEBENTURE]


 


This Debenture is one of the
floating rate junior subordinated deferrable interest debentures of the
Company, all issued or to be issued under and pursuant to the Indenture dated
as of December 17, 2003 (the “Indenture”), duly executed and delivered between
the Company and the Trustee, to which Indenture reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the holders of the
Debentures.  The Debentures are limited
in aggregate principal amount as specified in the Indenture.


 


Upon the occurrence and
continuation of a Special Event prior to December 17, 2008, the Company shall
have the right to redeem the Debentures in whole, but not in part, at any
Interest Payment Date, within 120 days following the occurrence of such Special
Event, at the Special Redemption Price.


 


In addition, the Company shall
have the right to redeem the Debentures, in whole or in part, but in all cases
in a principal amount with integral multiples of $1,000.00, on any Interest
Payment Date on or after December 17, 2008, at the Redemption Price.


 


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


 


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


 


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


 


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


 


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


 


The Indenture also contains
provisions permitting the holders of a majority in aggregate principal amount
of the Debentures at the time outstanding on behalf of the holders of all of
the Debentures to


 


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


 


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


 


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


 


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cash payments in lieu of
fractional shares issued in connection therewith, or (6) payments under the
Capital Securities Guarantee).


 


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


 


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


 


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


 


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


 


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


 


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