Exhibit 4.1


 




 





S.Y. BANCORP, INC.


 


AND


 


WILMINGTON TRUST COMPANY,


AS TRUSTEE


 


INDENTURE


 


[          %]
SUBORDINATED DEBENTURES DUE 2038


 


DATED AS OF [DECEMBER
        , 2008]




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  DEFINITIONS

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 1.1

  	
  Definitions of Terms

  	
  2

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  ISSUE, DESCRIPTION, TERMS,
  CONDITIONS, REGISTRATION AND EXCHANGE OF THE DEBENTURES

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  Designation and Principal Amount

  	
  10

  
	
  Section 2.2

  	
  Maturity

  	
  10

  
	
  Section 2.3

  	
  Form and Payment

  	
  11

  
	
  Section 2.4

  	
  [Intentionally Omitted]

  	
  11

  
	
  Section 2.5

  	
  Interest

  	
  11

  
	
  Section 2.6

  	
  Execution and Authentication

  	
  12

  
	
  Section 2.7

  	
  Registration of Transfer and Exchange

  	
  13

  
	
  Section 2.8

  	
  Temporary Debentures

  	
  14

  
	
  Section 2.9

  	
  Mutilated, Destroyed, Lost or Stolen Debentures

  	
  14

  
	
  Section 2.10

  	
  Cancellation

  	
  15

  
	
  Section 2.11

  	
  Benefit of Indenture

  	
  15

  
	
  Section 2.12

  	
  Authentication Agent

  	
  16

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  REDEMPTION OF DEBENTURES

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Redemption

  	
  16

  
	
  Section 3.2

  	
  Special Event Redemption

  	
  16

  
	
  Section 3.3

  	
  Optional Redemption by the Company

  	
  17

  
	
  Section 3.4

  	
  Notice of Redemption

  	
  18

  
	
  Section 3.5

  	
  Payment upon Redemption

  	
  19

  
	
  Section 3.6

  	
  No Sinking Fund

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  EXTENSION OF INTEREST PAYMENT
  PERIOD

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Extension of Interest Payment Period

  	
  19

  
	
  Section 4.2

  	
  Notice of Extension

  	
  20

  
	
  Section 4.3

  	
  Limitation on Transactions

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  PARTICULAR COVENANTS OF THE
  COMPANY

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 5.1

  	
  Payment of Principal and Interest

  	
  21

  
	
  Section 5.2

  	
  Maintenance of Agency

  	
  21

  
	
  Section 5.3

  	
  Paying Agents

  	
  22

  
				



 


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TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 5.4

  	
  Appointment to Fill Vacancy in Office of the Trustee

  	
  23

  
	
  Section 5.5

  	
  Compliance with Consolidation Provisions

  	
  23

  
	
  Section 5.6

  	
  Limitation on Transactions

  	
  23

  
	
  Section 5.7

  	
  Covenants as to the Trust

  	
  23

  
	
  Section 5.8

  	
  Covenants as to Purchases

  	
  24

  
	
  Section 5.9

  	
  Waiver of Usury, Stay or Extension Laws

  	
  24

  
	
  Section 5.10

  	
  Limitation on Additional Junior Indebtedness

  	
  24

  
	
  Section 5.11

  	
  No Intent to Commence Extension Period

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  THE DEBENTUREHOLDERS’ LISTS AND
  REPORTS BY THE COMPANY AND THE TRUSTEE

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  The Company to Furnish the Trustee Names and
  Addresses of the Debentureholders

  	
  25

  
	
  Section 6.2

  	
  Preservation of Information Communications with the
  Debentureholders

  	
  25

  
	
  Section 6.3

  	
  Reports by the Company

  	
  25

  
	
  Section 6.4

  	
  Reports by the Trustee

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  REMEDIES OF THE TRUSTEE AND
  DEBENTUREHOLDERS ON EVENT OF DEFAULT

  	
  26

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Events of Default

  	
  26

  
	
  Section 7.2

  	
  Collection of Indebtedness and Suits for Enforcement
  by the Trustee

  	
  28

  
	
  Section 7.3

  	
  Application of Moneys Collected

  	
  29

  
	
  Section 7.4

  	
  Limitation on Suits

  	
  30

  
	
  Section 7.5

  	
  Rights and Remedies Cumulative; Delay or Omission
  not Waiver

  	
  31

  
	
  Section 7.6

  	
  Control by the Debentureholders

  	
  31

  
	
  Section 7.7

  	
  Undertaking to Pay Costs

  	
  32

  
	
  Section 7.8

  	
  Direct Action; Right of Set-Off

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  FORM OF THE DEBENTURE AND
  ORIGINAL ISSUE

  	
  32

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
  Form of Debenture

  	
  32

  
	
  Section 8.2

  	
  Original Issue of the Debentures

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  CONCERNING THE TRUSTEE

  	
  33

  
	
   

  	
   

  	
   

  
	
  Section 9.1

  	
  Certain Duties and Responsibilities of the Trustee

  	
  33

  
				



 


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TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 9.2

  	
  Notice of Defaults

  	
  34

  
	
  Section 9.3

  	
  Certain Rights of the Trustee

  	
  34

  
	
  Section 9.4

  	
  The Trustee not Responsible for Recitals, Etc

  	
  35

  
	
  Section 9.5

  	
  May Hold the Debentures

  	
  36

  
	
  Section 9.6

  	
  Moneys Held in Trust

  	
  36

  
	
  Section 9.7

  	
  Compensation and Reimbursement

  	
  36

  
	
  Section 9.8

  	
  Reliance on Officers’ Certificate

  	
  36

  
	
  Section 9.9

  	
  Disqualification; Conflicting Interests

  	
  37

  
	
  Section 9.10

  	
  Corporate Trustee Required; Eligibility

  	
  37

  
	
  Section 9.11

  	
  Resignation and Removal; Appointment of Successor

  	
  37

  
	
  Section 9.12

  	
  Acceptance of Appointment by Successor

  	
  38

  
	
  Section 9.13

  	
  Merger, Conversion, Consolidation or Succession to
  Business

  	
  39

  
	
  Section 9.14

  	
  Preferential Collection of Claims against the
  Company

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  CONCERNING THE DEBENTUREHOLDERS

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 10.1

  	
  Evidence of Action by the Holders

  	
  39

  
	
  Section 10.2

  	
  Proof of Execution by the Debentureholders

  	
  40

  
	
  Section 10.3

  	
  Who May Be Deemed Owners

  	
  40

  
	
  Section 10.4

  	
  Certain Debentures Owned by Company Disregarded

  	
  40

  
	
  Section 10.5

  	
  Actions Binding on the Future Debentureholders

  	
  41

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  SUPPLEMENTAL INDENTURES

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 11.1

  	
  Supplemental Indentures without the Consent of the
  Debentureholders

  	
  41

  
	
  Section 11.2

  	
  Supplemental Indentures with Consent of the
  Debentureholders

  	
  42

  
	
  Section 11.3

  	
  Effect of Supplemental Indentures

  	
  43

  
	
  Section 11.4

  	
  The Debentures Affected by Supplemental Indentures

  	
  43

  
	
  Section 11.5

  	
  Execution of Supplemental Indentures

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  SUCCESSOR CORPORATION

  	
  44

  
	
   

  	
   

  	
   

  
	
  Section 12.1

  	
  The Company May Consolidate, Etc

  	
  44

  
	
  Section 12.2

  	
  Successor Corporation Substituted

  	
  44

  
	
  Section 12.3

  	
  Evidence of Consolidation, Etc

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
  SATISFACTION AND DISCHARGE

  	
  45

  
				



 


 


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TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 13.1

  	
  Satisfaction and Discharge of Indenture

  	
  45

  
	
  Section 13.2

  	
  Discharge of Obligations

  	
  45

  
	
  Section 13.3

  	
  Deposited Moneys to Be Held in Trust

  	
  46

  
	
  Section 13.4

  	
  Payment of Monies Held by Paying Agents

  	
  46

  
	
  Section 13.5

  	
  Repayment to the Company

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  	
  IMMUNITY OF INCORPORATORS,
  STOCKHOLDERS, OFFICERS AND DIRECTORS

  	
  46

  
	
   

  	
   

  	
   

  
	
  Section 14.1

  	
  No Recourse

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV

  	
  MISCELLANEOUS PROVISIONS

  	
  47

  
	
   

  	
   

  	
   

  
	
  Section 15.1

  	
  Effect on Successors and Assigns

  	
  47

  
	
  Section 15.2

  	
  Actions by Successor

  	
  47

  
	
  Section 15.3

  	
  Surrender of the Company Powers

  	
  47

  
	
  Section 15.4

  	
  Notices

  	
  47

  
	
  Section 15.5

  	
  Governing Law

  	
  47

  
	
  Section 15.6

  	
  Treatment of the Debentures as Debt

  	
  47

  
	
  Section 15.7

  	
  Compliance Certificates and Opinions

  	
  47

  
	
  Section 15.8

  	
  Payments on Business Days

  	
  48

  
	
  Section 15.9

  	
  Conflict with Trust Indenture Act

  	
  48

  
	
  Section 15.10

  	
  Counterparts

  	
  48

  
	
  Section 15.11

  	
  Separability

  	
  48

  
	
  Section 15.12

  	
  Assignment

  	
  48

  
	
  Section 15.13

  	
  Acknowledgment of Rights; Right of Setoff

  	
  49

  
	
  Section 15.14

  	
  Table of Contents, Headings, etc

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVI

  	
  SUBORDINATION OF THE DEBENTURES

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 16.1

  	
  Agreement to Subordinate

  	
  49

  
	
  Section 16.2

  	
  Default on Senior Indebtedness

  	
  49

  
	
  Section 16.3

  	
  Liquidation; Dissolution; Bankruptcy

  	
  50

  
	
  Section 16.4

  	
  Subrogation

  	
  51

  
	
  Section 16.5

  	
  The Trustee to Effectuate Subordination

  	
  52

  
	
  Section 16.6

  	
  Notice by the Company

  	
  52

  
	
  Section 16.7

  	
  Rights of the Trustee; Holders of the Senior Indebtedness

  	
  53

  
				



 


iv

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 16.8

  	
  Subordination May not Be Impaired

  	
  53

  



 


v

















 


CROSS-REFERENCE
TABLE


 


	
  Section of

  	
   

  	
   

  
	
  Trust Indenture Act

  	
   

  	
  Section of

  
	
  of 1939, as amended

  	
   

  	
  Indenture

  
	
   

  	
   

  	
   

  
	
  310(a)

  	
   

  	
  9.10

  
	
  310(b)

  	
   

  	
  9.9, 9.11

  
	
  310(c)

  	
   

  	
  Not Applicable

  
	
  311(a)

  	
   

  	
  9.14

  
	
  311(b)

  	
   

  	
  9.14

  
	
  311(c)

  	
   

  	
  Not Applicable

  
	
  312(a)

  	
   

  	
  6.1, 6.2(a)

  
	
  312(b)

  	
   

  	
  6.2(c)

  
	
  312(c)

  	
   

  	
  6.2(c)

  
	
  313(a)

  	
   

  	
  6.4(a)

  
	
  313(b)

  	
   

  	
  6.4(b)

  
	
  313(c).

  	
   

  	
  6.4(a), 6.4(b)

  
	
  313(d)

  	
   

  	
  6.4(c)

  
	
  314(a)

  	
   

  	
  6.3(a)

  
	
  314(b)

  	
   

  	
  Not Applicable

  
	
  314(c)

  	
   

  	
  15.7

  
	
  314(d)

  	
   

  	
  Not Applicable

  
	
  314(e)

  	
   

  	
  15.7

  
	
  314(f)

  	
   

  	
  Not Applicable

  
	
  315(a)

  	
   

  	
  9.1(a), 9.3

  
	
  315(b)

  	
   

  	
  9.2

  
	
  315(c)

  	
   

  	
  9.1(a)

  
	
  315(d)

  	
   

  	
  9.1(b)

  
	
  315(e)

  	
   

  	
  7.7

  
	
  316(a)

  	
   

  	
  1.1, 7.6

  
	
  316(b)

  	
   

  	
  7.4(b)

  
	
  316(c)

  	
   

  	
  10.1(b)

  
	
  317(a)

  	
   

  	
  7.2

  
	
  317(b)

  	
   

  	
  5.3

  
	
  318(a)

  	
   

  	
  15.9

  



 


Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Indenture.


 


i














 


INDENTURE


 


INDENTURE, dated as of [December         ,
2008], between S.Y. BANCORP, INC., a Kentucky corporation (the “Company”), and
WILMINGTON TRUST COMPANY, a banking corporation duly organized and
existing under the laws of the State of Delaware, as trustee (the “Trustee”).


 


RECITALS


 


WHEREAS, for its lawful
corporate purposes, the Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance of securities to be known as its
[            %]
Subordinated Debentures due 2038 (hereinafter referred to as the “Debentures”),
the form and substance of such Debentures and the terms, provisions and
conditions thereof to be set forth as provided in this Indenture;


 


WHEREAS, S.Y. Bancorp
Capital Trust II, a Delaware statutory trust (the “Trust”), has offered to the
public $27,000,000 aggregate liquidation amount of its Preferred Securities (as
defined herein) ($30,000,000 if the Underwriters exercise their Option (as
defined herein)) and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust to the Company
of $810,000 aggregate liquidation amount of its Common Securities (as defined
herein) ($900,000 if the Underwriters exercise their Option) in $27,810,000
aggregate principal amount of the Debentures ($30,900,000 if the Underwriters
exercise their Option);


 


WHEREAS, the Company has
requested that the Trustee execute and deliver this Indenture;


 


WHEREAS, all requirements
necessary to make this Indenture a valid instrument in accordance with its
terms, and to make the Debentures, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the
Company, have been performed, and the execution and delivery of this Indenture
have been duly authorized in all respects;


 


WHEREAS, to provide the
terms and conditions upon which the Debentures are to be authenticated, issued
and delivered, the Company has duly authorized the execution of this Indenture;
and


 


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


 


NOW, THEREFORE, in
consideration of the premises and the purchase of the Debentures by the holders
thereof, it is mutually covenanted and agreed as follows for the equal and
ratable benefit of the holders of the Debentures:


 

















 


ARTICLE I

DEFINITIONS


 


Section 1.1            Definitions of Terms. 
The terms defined in this Section 1.1 (except as in this Indenture
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 and shall include
the plural as well as the singular.  All
other terms used in this Indenture that are defined in the Trust Indenture Act,
or that are by reference in the Trust Indenture Act defined in the Securities
Act (except as herein otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in the
Trust Indenture Act and in the Securities Act as in force at the date of the
execution of this instrument.  All
accounting terms used herein and not expressly defined shall have the meanings
assigned to such terms in accordance with Generally Accepted Accounting
Principles.


 


“Accelerated Maturity Date”
means if the Company elects to accelerate the Maturity Date in accordance with Section 2.2(b),
the date selected by the Company which is prior to the Scheduled Maturity Date,
but is after [December 31, 2013].


 


“Additional Junior
Indebtedness” means, without duplication, (A) 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 (or any successor Rule applicable
thereto)) 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 intended to qualify for Tier 1 capital treatment
(or the then equivalent thereof) for purposes of the capital adequacy
guidelines of the Federal Reserve, as then in effect and applicable to the
Company, other than the Debentures; 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 to which the Federal Reserve now accords 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 of the Federal Reserve and (B) any
indebtedness, liabilities or obligations of the Company, or any Subsidiary of
the Company, that is junior or otherwise subordinate in right of payment to
Senior Indebtedness of the Company and that has a maturity or is otherwise due
and payable by the Company on a date twelve (12) months or more after its date
of original issuance, other than the Debentures.


 


“Additional Payments” shall
have the meaning set forth in Section 2.5(c).


 


“Additional Senior
Obligations” means all indebtedness of the Company whether incurred on or prior
to the date of this Indenture or thereafter incurred, for claims in respect of
derivative products such as interest and foreign exchange rate contracts,
commodity contracts and similar arrangements; provided, however,
that Additional Senior Obligations does not 


 


2

















 


include
claims in respect of Senior Debt or Subordinated Debt or obligations which, by
their terms, are expressly stated to be not superior in right of payment to the
Debentures or to rank pari passu in right of payment with the Debentures.  For purposes of this definition, “claim”
shall have the meaning assigned thereto in Section 101(4) of the
United States Bankruptcy Code of 1978, as amended.


 


“Administrative Trustees”
shall have the meaning set forth in the Trust Agreement.


 


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


 


“Authenticating Agent” means
an authenticating agent with respect to the Debentures appointed by the Trustee
pursuant to Section 2.12.


 


“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 of the Company or any duly authorized committee of such
Board.


 


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


 


“Business Day” means, with
respect to the Debentures, any day other than a Saturday or a Sunday or a day
on which federal or state banking institutions in the Borough of Manhattan, the
City of New York, are authorized or required by law, executive order or
regulation to close, or a day on which the Corporate Trust Office of the
Trustee or the Property Trustee is closed for business.


 


“Capital Treatment Event”
means the receipt by the Company and the Trust of an Opinion of Counsel,
rendered by counsel experienced in such matters within a reasonable period of
time after the applicable occurrence, 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 thereof or therein, or as a result of any official or
administrative pronouncement, action or judicial decision interpreting or applying
such laws or regulations, which amendment or change is effective or, which
pronouncement, action or judicial decision is announced on or after the date of
issuance of the Preferred Securities under the Trust Agreement, there is more
than an insubstantial risk of impairment of the Company’s ability to treat the
aggregate Liquidation Amount (as defined in the Trust Agreement) of the
Preferred Securities (or any substantial portion thereof) as Tier 1 capital (or
the then equivalent thereof) for purposes of the capital adequacy guidelines of
the Federal Reserve, as then in effect and applicable to the Company; provided,
however, that the Trust or the Company shall have requested and received
such an Opinion of Counsel with regard to such matters within a reasonable
period of time after the Trust or the Company shall have become aware of the
occurrence or the possible occurrence of any of the events described above; provided further,
however, that the inability of the Company to treat all or any portion
of the Liquidation Amount of the Preferred Securities as Tier l capital
shall not constitute the basis for a Capital Treatment 


 


3

















 


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 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.


 


“Change in 1940 Act Law”
shall have the meaning set forth in the definition of “Investment Company
Event.”


 


“Code” means the Internal
Revenue Code of 1986, as amended.


 


“Commission” means the
Securities and Exchange Commission, as from time to time constituted, created
under the Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.


 


“Common Securities” means
undivided beneficial interests in the assets of the Trust which rank pari passu
with the Preferred Securities; provided, however, that upon the occurrence
and during the continuation of an Event of Default, the rights of holders of
Common Securities to payment in respect of (a) distributions, and (b) payments
upon liquidation, redemption and otherwise, are subordinated to the rights of
holders of Preferred Securities.


 


“Company” means S.Y. Bancorp, Inc.,
a corporation duly organized and existing under the laws of the Commonwealth of
Kentucky, and, subject to the provisions of Article XII, shall also
include its successors and assigns.


 


“Compounded Interest” shall
have the meaning set forth in Section 4.1.


 


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


 


“Coupon Rate” shall have the
meaning set forth in Section 2.5(a).


 


“Custodian” means any
receiver, trustee, assignee, liquidator, or similar official under any
Bankruptcy Law.


 


“Debentures” shall have the
meaning set forth in the Recitals hereto.


 


“Debentureholder,” “holder
of Debentures,” “registered holder,” or other similar term, means the Person or
Persons in whose name or names a particular Debenture shall be registered on
the books of the Company or the Trustee kept for that purpose in accordance
with the terms of this Indenture.


 


4

















 


“Debenture Register” shall
have the meaning set forth in Section 2.7(b).


 


“Debenture Registrar” shall
have the meaning set forth in Section 2.7(b).


 


“Debt” means with respect to
any Person, whether recourse is to all or a portion of the assets of such
Person and whether or not contingent, (a) every obligation of such Person
for money borrowed or purchased; (b) every obligation of such Person
evidenced by securities, bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (c) every reimbursement obligation of such Person
with respect to letters of credit, bankers’ acceptances, any security purchase
facility, any repurchase agreement or similar facilities,  any interest rate swap, any other hedging
arrangement, any obligation under options or any similar credit or other
transaction issued for the account of such Person; (d) every obligation of
such Person issued or assumed as the deferred purchase price of property or
services (but excluding trade accounts payable or accrued liabilities arising
in the ordinary course of business); (e) every capital lease obligation of
such Person; and (f) and every obligation of the type referred to in
clauses (a) through (e) of another Person and all dividends of
another Person the payment of which, in either case, such Person has guaranteed
or is responsible or liable, directly or indirectly, as obligor or otherwise,
including, without limitation similar obligations arising from off-balance
sheet guarantees and direct credit substitutes.


 


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


 


“Deferred Payments” shall
have the meaning set forth in Section 4.1.


 


“Direct Action” shall have
the meaning set forth in Section 7.8.


 


“Dissolution Event” means
that as a result of the occurrence and continuation of a Special Event, the
Trust is to be dissolved in accordance with the Trust Agreement and the
Debentures held by the Property Trustee are to be distributed to the holders of
the Trust Securities issued by the Trust pro rata in accordance with the Trust
Agreement.


 


“Distribution” shall have
the meaning set forth in the Trust Agreement.


 


“Event of Default” means,
with respect to the Debentures, any event specified in Section 7.1, which
has continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.


 


“Exchange Act” means the
Securities Exchange Act of 1934, as amended, as in effect at the date of
execution of this Indenture.


 


“Extension Period” shall
have the meaning set forth in Section 4.1.


 


“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.


 


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“Guarantee” shall have the
meaning set forth in the Trust Agreement.


 


“Generally Accepted
Accounting Principles” means such accounting principles as are generally
accepted in the United States at the time of any computation required
hereunder.


 


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


 


“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.


 


“Indenture” means this
instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into in accordance with the terms hereof.


 


“Interest Payment Date”
shall have the meaning set forth in Section 2.5(a).


 


“Investment Company Act”
means the Investment Company Act of 1940, as amended, as in effect at the date
of execution of this Indenture.


 


“Investment Company Event”
means the receipt by the Trust and the Company of an Opinion of Counsel,
rendered by counsel experienced in such matters within a reasonable amount of
time after the applicable occurrence, to the effect that, as a result of the
occurrence of a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a “Change in 1940 Act Law”), the Trust is or
shall be considered an “investment company” that is required to be registered
under the Investment Company Act, which Change in 1940 Act Law becomes
effective on or after the date of original issuance of the Preferred Securities
under the Trust Agreement; provided, however, that the Trust or
the Company shall have requested and received such an Opinion of Counsel with
regard to such matters within a reasonable period of time after the Trust or
the Company shall have become aware of the occurrence or the possible
occurrence of any such Change in 1940 Act Law.


 


“Maturity Date” means the
date on which the Debentures mature and on which the principal shall be due and
payable together with all accrued and unpaid interest thereon including
Compounded Interest and Additional Payments, if any.


 


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“Ministerial Action” shall
have the meaning set forth in Section 3.2.


 


“Officers’ Certificate”
means a certificate signed by the Chief Executive Officer, President or an
Executive Vice President and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary of the Company that is delivered to the
Trustee in accordance with the terms hereof. 
Each such certificate shall include the statements provided for in Section 15.7,
if and to the extent required by the provisions thereof.


 


“Opinion of Counsel” means
an opinion in writing of independent, outside legal counsel for the Company,
that is delivered to the Trustee in accordance with the terms hereof.  Each such opinion shall include the
statements provided for in Section 15.7, if and to the extent required by
the provisions thereof.


 


“Outstanding,” when used
with reference to the Debentures, means, subject to the provisions of Section 10.4,
as of any particular time, all Debentures theretofore authenticated and
delivered by the Trustee under this Indenture, except (a) Debentures
theretofore canceled by the Trustee or any Paying Agent, or delivered to the
Trustee or any paying agent for cancellation or that have previously been
canceled; (b) Debentures or portions thereof for the payment or redemption
of which money or Governmental Obligations 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 of such Debentures are to be redeemed
prior to the maturity thereof, notice of such redemption shall have been given
as in Article III provided, or provision satisfactory to the Trustee shall
have been made for giving such notice; and (c) Debentures in lieu of or in
substitution for which other Debentures shall have been authenticated and
delivered pursuant to the terms of Section 2.7; provided, however,
that in determining whether the holders of the requisite percentage of
Debentures have given any request, notice, consent or waiver hereunder,
Debentures held by the Company or any Affiliate of the Company shall not be
included; provided, further, that the Trustee shall be protected in relying upon
any request, notice, consent or waiver unless a Responsible Officer of the
Trustee shall have actual knowledge that the holder of such Debenture is the
Company or an Affiliate thereof.


 


“Paying Agent” means any
paying agent or co-paying agent appointed pursuant to Section 5.3.


 


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


 


“Predecessor Debenture”
means every previous Debenture evidencing all or a portion of the same debt as
that evidenced by such particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 2.9 in
lieu of a lost, destroyed or stolen Debenture shall be deemed to evidence the
same debt as the lost, destroyed or stolen Debenture.


 


7

















 


“Preferred Securities” means
the [            %]
Cumulative Trust Preferred Securities representing 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 during the continuation of an Event of Default, the rights of
holders of Common Securities to payment in respect of (a) distributions,
and (b) payments upon liquidation, redemption and otherwise, are
subordinated to the rights of holders of Preferred Securities.


 


“Preferred Securities
Guarantee” means any guarantee that the Company may enter into with the Trustee
or other Persons that operates directly or indirectly for the benefit of
holders of Preferred Securities.


 


“Property Trustee” has the
meaning set forth in the Trust Agreement.


 


“Redemption Price” shall
have the meaning set forth in Section 3.2.


 


“Responsible Officer” when
used with respect to the Trustee means any officer within the Corporate Trust
Office of the Trustee or, for purposes of the Trust Agreement, the Property
Trustee (as defined in the Trust Agreement) with direct responsibility for the
administration of this Indenture, including any vice president, any assistant
vice president, any assistant secretary or any other officer or assistant
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.


 


“Scheduled Maturity Date”
means [December 31, 2038].


 


“Securities Act” means the
Securities Act of 1933, as amended, as in effect at the date of execution of
this Indenture.


 


“Senior Debt” means the
principal of (and premium, if any) and interest, if any (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not such claim for
post-petition interest is allowed in such proceeding), on all Debt, whether
incurred on or prior to the date of this Indenture or thereafter incurred,
unless, in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that such obligations are not superior
in right of payment to the Debentures or to other Debt which is pari passu
with, or subordinated to, the Debentures; provided, that Senior Debt
shall not be deemed to include (a) any Debt of the Company which when
incurred and without respect to any election under section 1111(b) of the
United States Bankruptcy Code of 1978, as amended, was without recourse to the
Company; (b) the Guarantee Agreement; (c) Debt to any employee of the
Company; (d) Debt which by its terms is subordinated to trade accounts
payable or accrued liabilities arising in the ordinary course of business to
the extent that payments made to the holders of such Debt by the holders of the
Debentures as a result of the subordination provisions of this Indenture would
be greater than they otherwise would have been as a result of any obligation of
such holders to pay amounts over to the obligees on such trade accounts payable
or accrued liabilities arising in the ordinary course of business as a result
of subordination provisions to which such Debt is subject; and (e) Debt
which constitutes Subordinated Debt.


 


8














 


“Senior Indebtedness” shall
have the meaning set forth in Section 16.1.


 


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


 


“Subordinated Debt” means
the principal of (and premium, if any) and interest, if any (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not such claim for
post-petition interest is allowed in such proceeding), on Debt (other than the
Debentures), whether incurred on or prior to the date of this Indenture or
thereafter incurred, which is by its terms expressly provided to be junior and
subordinate to other Debt of the Company (other than the Debentures); provided,
however, that Subordinated Debt will not be deemed to include (a) any
Debt of the Company which when incurred and without respect to any election
under section 1111(b) of the United States Bankruptcy Code of 1978, as
amended, was without recourse to the Company, (b) Debt which constitutes
Senior Debt; (c) Debt to any employee of the Company; (d) Debt which
by its terms is subordinated to trade accounts payable or accrued liabilities
arising in the ordinary course of business to the extent that payments made to
the holders of such Debt by the holders of the Debentures as a result of the
subordination provisions of this Indenture would be greater than they otherwise
would have been as a result of any obligation of such holders to pay amounts
over to the obligees on such trade accounts payable or accrued liabilities
arising in the ordinary course of business as a result of subordination
provisions to which such Debt is subject; and (e) any Debt of the Company
under debt securities (and guarantees in respect of these debt securities)
initially issued to any trust, or a trustee of a trust, partnership or other
entity affiliated with the Company that is, directly or indirectly, a financing
vehicle of the Company in connection with the issuance by that entity of
preferred securities or other securities which are intended to qualify for Tier
1 capital treatment.


 


“Subsidiary” means, with
respect to any Person, (a) any corporation at least a majority of whose
outstanding Voting Stock shall at the time be 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; (b) any general partnership, limited liability
company, joint venture, trust or similar entity, at least a majority of whose
outstanding partnership or similar interests 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 (c) any limited partnership of which such
Person or any of its Subsidiaries is a general partner.


 


“Tax Event” means the
receipt by the Company and the Trust of an Opinion of Counsel, rendered by
counsel experienced in such matters within a reasonable amount of time after
the applicable occurrence, 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 or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or which
pronouncement or decision is announced on or after the date of issuance of the
Preferred Securities under the Trust Agreement, there is more than an
insubstantial risk that (a) the Trust is, or shall be within ninety (90)
days after the date of such Opinion of Counsel, subject to United States
federal income tax with respect to income received or accrued on the
Debentures; (b) interest payable by the Company 


 


9

















 


on
the Debentures is not, or within ninety (90) days after the date of such
Opinion of Counsel, shall not be, deductible by the Company, in whole or in
part, for United States federal income tax purposes; or (c) the Trust is,
or shall be within ninety (90) days after the date of such Opinion of Counsel,
subject to more than a de minimis amount of other taxes, duties, assessments or
other governmental charges; provided, however, that the Trust or
the Company shall have requested and received such an Opinion of Counsel with
regard to such matters within a reasonable period of time after the Trust or
the Company shall have become aware of the occurrence or the possible
occurrence of any of the events described in clauses (a) through (c) above.


 


“Trust” means S.Y. Bancorp
Capital Trust II, a Delaware statutory trust, or any other similar trust
created for the purpose of issuing Preferred Securities in connection with the
issuance of Debentures under this Indenture, of which the Company is the
sponsor.


 


“Trust Agreement” means the
Amended and Restated Trust Agreement, dated as of [December         ,
2008], of the Trust.


 


“Trustee” means Wilmington
Trust Company, a Delaware banking corporation, and, subject to the provisions
of Article IX, shall also include its successors and assigns, and, if at
any time there is more than one Person acting in such capacity hereunder, “Trustee”
shall mean each such Person.


 


“Trust Indenture Act” means
the Trust Indenture Act of 1939, as amended, subject to the provisions of
Sections 11.1, 11.2, and 12.1, as in effect at the date of execution of this
Indenture.


 


“Trust Securities” means the
Common Securities and Preferred Securities, collectively.


 


“Voting Stock,” as applied
to stock of any Person, 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.


 


ARTICLE
II

ISSUE, DESCRIPTION, TERMS, CONDITIONS, 

REGISTRATION AND EXCHANGE OF THE DEBENTURES


 


Section 2.1            Designation and Principal
Amount.  There are hereby authorized Debentures designated the “[            %]
Subordinated Debentures due 2038,” limited in aggregate principal amount up to
$30,900,000, which amount shall be as set forth in any written order of the
Company for the authentication and delivery of Debentures pursuant to Section 2.6.


 


Section 2.2            Maturity.


 


(a)           The Maturity Date shall be either:


 


(i)            the Scheduled Maturity Date; or


 


10

















 


(ii)           if the Company elects to accelerate the Maturity Date
to be a date prior to the Scheduled Maturity Date in accordance with Section 2.2(c),
the Accelerated Maturity Date.


 


(b)           The Company may at any time before the day which is
ninety (90) days before the Scheduled Maturity Date and after [December 31,
2013], elect to shorten the Maturity Date only once to the Accelerated Maturity
Date provided that the Company has received the prior approval of the Federal
Reserve if then required under applicable capital guidelines, policies or
regulations of the Federal Reserve.


 


(c)           If the Company elects to accelerate the Maturity Date
in accordance with Section 2.2(b), the Company shall give notice to the
Trustee and the Trust (unless the Trust is not the holder of the Debentures, in
which case the Trustee will give notice to the holders of the Debentures) of
the acceleration of the Maturity Date and the Accelerated Maturity Date at
least thirty (30) days and no more than one hundred eighty (180) days before
the Accelerated Maturity Date; provided, however, that nothing
provided in this Section 2.2 shall limit the Company’s rights, as provided
in Article III hereof, to redeem all or a portion of the Debentures at
such time or times on or after [December 31, 2013], as the Company may so
determine, or at any time upon the occurrence of a Special Event.


 


Section 2.3            Form and Payment.  The Debentures shall be issued in fully registered
certificated form without interest coupons. 
Principal and interest on the Debentures issued in certificated form
shall be payable, the transfer of such Debentures shall be registrable and such
Debentures shall be exchangeable for Debentures bearing identical terms and
provisions at the office or agency of the Trustee; provided, however,
that payment of interest may be made at the option of the Company by check
mailed to the holder at such address as shall appear in the Debenture Register
or by wire transfer to an account maintained by the holder as specified in the
Debenture Register, provided that the holder provides proper transfer
instructions by the regular record date. 
Notwithstanding the foregoing, so long as the holder of any Debentures
is the Property Trustee, the payment of principal of and interest (including
Compounded Interest and Additional Payments, if any) on such Debentures held by
the Property Trustee shall be made at such place and to such account as may be
designated by the Property Trustee.


 


Section 2.4            [Intentionally Omitted].


 


Section 2.5            Interest.


 


(a)           Each Debenture shall bear interest at a rate of
[            %] per
annum (the “Coupon Rate”) from the original date of issuance 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)
on any overdue installment of interest at the Coupon Rate, compounded
quarterly, payable (subject to the provisions of Article IV) quarterly in
arrears on March 31, June 30, September 30, and December 31
of each year (each, an “Interest Payment Date”), commencing on March 31,
2009, to the Person in whose name such Debenture or any Predecessor Debenture
is registered, at the close of business on the regular record date for such
interest installment, which shall be the fifteenth day of the last month of the
calendar quarter.


 


11

















 


(b)           The amount of interest payable for any period shall be
computed on the basis of a 360-day year of twelve 30-day months.  The amount of interest payable for any period
shorter than a full quarterly period for which interest is computed shall be
computed on the basis of the number of days elapsed in a 360-day year of twelve
30-day months.  In the event that any
date on which interest is payable on the Debentures is not a Business Day, then
payment of interest payable on such date shall 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 (and without any reduction of interest or any other
payment in respect of any such acceleration), in each case with the same force
and effect as if made on the date such payment was originally payable.


 


(c)           If, at any time while the Property Trustee is the
holder of any Debentures, the Trust or the Property Trustee is required to pay
any taxes, duties, assessments or governmental charges of whatever nature
(other than withholding taxes) imposed by the United States, or any other
taxing authority, then, in any case, the Company shall pay as additional
payments (“Additional Payments”) on the Debentures held by the Property
Trustee, such additional amounts as shall be required so that the net amounts
received and retained by the Trust and the Property Trustee after paying such
taxes, duties, assessments or other governmental charges shall be equal to the
amounts the Trust and the Property Trustee would have received had no such
taxes, duties, assessments or other government charges 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 Payments provided for in this paragraph to the extent that,
in such context, Additional Payments are, were or would be payable in respect
thereof pursuant to the provisions of this paragraph and express mention of the
payment of Additional Payments (if applicable) in any provisions hereof shall
not be construed as excluding Additional Payments 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 4.1
shall not defer the payment of any Additional Payments that may be due and
payable.


 


Section 2.6            Execution and Authentication.


 


(a)           The Debentures shall be signed on behalf of the
Company by its Chief Executive Officer, President or one of its Executive Vice
Presidents, under its corporate seal attested by its Secretary or one of its
Assistant Secretaries.  Signatures may be
in the form of a manual or facsimile signature. 
The Company may use the facsimile signature of any Person who shall have
been a Chief Executive Officer, President or Executive Vice President thereof,
or of any Person who shall have been a Secretary or Assistant Secretary
thereof, notwithstanding the fact that at the time the Debentures shall be
authenticated and delivered or disposed of such Person shall have ceased to be
the Chief Executive Officer, President or an Executive Vice President, or the
Secretary or an Assistant Secretary, of the Company (and any such signature
shall be binding on the Company).  The
seal of the Company may be in the form of a facsimile of such seal and may be
impressed, affixed, imprinted or otherwise reproduced on the Debentures.  The Debentures may contain such notations,
legends or endorsements required by law, stock exchange rule or usage.  Each Debenture shall be dated the date of its
authentication by the Trustee.


 


12

















 


(b)           A Debenture shall not be valid until manually
authenticated by an authorized signatory of the Trustee, or by an Authenticating
Agent.  Such signature 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.


 


(c)           At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Debentures executed by
the Company to the Trustee for authentication, together with a written order of
the Company for the authentication and delivery of such Debentures signed by
its Chief Executive Officer, President or any Executive Vice President and its
Treasurer or any Assistant Treasurer, and the Trustee in accordance with such
written order shall authenticate and deliver such Debentures.


 


(d)           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 9.1)
shall be fully protected in relying upon, an Opinion of Counsel stating that
the form and terms thereof have been established in conformity with the
provisions of this Indenture.


 


(e)           The Trustee shall not be required to authenticate such
Debentures if the issue of such Debentures pursuant to this Indenture shall
affect the Trustee’s own rights, duties or immunities under the Debentures and
this Indenture or otherwise in a manner that is not reasonably acceptable to
the Trustee.


 


Section 2.7            Registration of Transfer and
Exchange.


 


(a)           Debentures may be exchanged upon presentation thereof at
the office or agency of the Company designated for such purpose in the Borough
of Manhattan, the City of New York, or at the office of the Debenture
Registrar, for other Debentures and for a like aggregate principal amount in
denominations of integral multiples of $10, upon payment of a sum sufficient to
cover any tax or other governmental charge in relation thereto, all as provided
in this Section 2.7.  In respect of
any Debentures so surrendered for exchange, the Company shall execute, the
Trustee shall authenticate and such office or agency shall deliver in exchange
therefor the Debenture or Debentures that the Debentureholder making the
exchange shall be entitled to receive, bearing numbers not contemporaneously
outstanding.


 


(b)           The Company shall keep, or cause to be kept, at its
office or agency designated for such purpose in the Borough of Manhattan, the
City of New York, or at the office of the Debenture Registrar, or such other
location designated by the Company a register or registers (herein referred to
as the “Debenture Register”) in which, subject to such reasonable regulations
as the Debenture Registrar (as defined below) may prescribe, the Company shall
register the Debentures and the transfers of Debentures as in this Article II
provided and which at all reasonable times shall be open for inspection by the
Trustee.  The registrar for the purpose
of registering Debentures and transfer of Debentures as herein provided shall
initially be the Trustee and thereafter as may be appointed by the Company as
authorized by Board Resolution (the “Debenture Registrar”).  Upon surrender for transfer of any Debenture
at the office or agency of the Company designated for such purpose, the Company
shall execute, the Trustee shall authenticate and such office or agency shall
deliver in the name of the 


 


13

















 


transferee or transferees
a new Debenture or Debentures for a like aggregate principal amount.  All Debentures presented or surrendered for
exchange or registration of transfer, as provided in this Section 2.7,
shall be accompanied (if so required by the Company or the Debenture Registrar)
by a written instrument or instruments of transfer, in form satisfactory to the
Company or the Debenture Registrar, duly executed by the registered holder or
by such holder’s duly authorized attorney in writing.


 


(c)           No service charge shall be made for any exchange or
registration of transfer of Debentures, or issue of new Debentures in case of
partial redemption, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge in relation thereto, other than
exchanges pursuant to Section 2.8, Section 3.5(b) and Section 11.4
not involving any transfer.


 


(d)           The Company shall not be required (i) to issue,
exchange or register the transfer of any Debentures during a period beginning
at the opening of business fifteen (15) days before the day of the mailing of a
notice of redemption of less than all the Outstanding Debentures and ending at
the close of business on the day of such mailing; nor (ii) to register the
transfer of or exchange any Debentures or portions thereof called for
redemption.


 


(e)           Debentures may only be transferred, in whole or in
part, in accordance with the terms and conditions set forth in this
Indenture.  Any transfer or purported
transfer of any Debenture not made in accordance with this Indenture shall be
null and void.


 


Section 2.8            Temporary Debentures.  Pending the preparation of definitive Debentures, the
Company may execute, and the Trustee shall authenticate and deliver, temporary
Debentures (printed, lithographed, or typewritten).  Such temporary Debentures shall be
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 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 like effect, as the
definitive Debentures.  Without
unnecessary delay, the Company shall execute and shall furnish definitive
Debentures and thereupon any or all temporary Debentures may be surrendered in
exchange therefor (without charge to the holders), at the office or agency of
the Company designated for the purpose and the Trustee shall authenticate and
such office or agency shall deliver in exchange for such temporary Debentures
an equal aggregate principal amount of definitive Debentures, unless the
Company advises the Trustee to the effect that definitive Debentures need not
be authenticated and furnished until further notice from the Company.  Until so exchanged, the temporary Debentures
shall be entitled to the same benefits under this Indenture as definitive
Debentures authenticated and delivered hereunder.


 


Section 2.9            Mutilated, Destroyed, Lost or
Stolen Debentures.


 


(a)           In case any temporary or definitive Debenture shall
become mutilated or be destroyed, lost or stolen, the Company (subject to the
next succeeding sentence) shall execute, and upon the Company’s request the
Trustee (subject as aforesaid) shall authenticate and deliver, a new Debenture
bearing a number not contemporaneously outstanding, 


 


14

















 


in exchange and
substitution for the mutilated Debenture, or in lieu of and in substitution for
the Debenture so destroyed, lost, stolen or mutilated.  In every case the applicant for a substituted
Debenture shall furnish to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and the Trustee evidence to their satisfaction of the destruction,
loss or theft of the applicant’s Debenture and of the ownership thereof.  The Trustee shall authenticate any such
substituted Debenture and deliver the same upon the written request or
authorization of the Chief Executive Officer, President or any Executive Vice
President and the Treasurer or any Assistant Treasurer 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 (including the fees and expenses of the Trustee) connected
therewith.  In case any Debenture that
has matured or is about to mature 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 they may require to
save them harmless, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft
of such Debenture and of the ownership thereof.


 


(b)           Every replacement Debenture issued pursuant to the
provisions of this Section 2.9 shall constitute an additional contractual
obligation of the Company whether or not the mutilated, destroyed, lost or
stolen Debenture shall be found at any time, or be enforceable by anyone, 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 the
foregoing provisions are exclusive with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Debentures, and shall preclude (to the
extent lawful) 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 2.10         Cancellation.  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 delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be canceled by it, and
no Debentures shall be issued in lieu thereof except as expressly required or
permitted by any of the provisions of this Indenture.  On request of the Company at the time of such
surrender, the Trustee shall deliver to the Company canceled Debentures held by
the Trustee.  In the absence of such
request the Trustee may dispose of canceled Debentures in accordance with its
standard procedures and deliver a certificate of disposition to the
Company.  If the Company shall otherwise
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 delivered to the Trustee for cancellation.


 


Section 2.11         Benefit of Indenture.  Nothing in this Indenture or in the
Debentures, express or implied, shall give or be construed to give to any
Person, other than the parties hereto and the holders of the Debentures (and,
with respect to the provisions of Article XVI, the holders of the Senior
Indebtedness) any legal or equitable right, remedy or claim under or in respect
of 


 


15

















 


this Indenture, or under
any covenant, condition or provision herein contained; all such covenants,
conditions and provisions being for the sole benefit of the parties hereto and
of the holders of the Debentures (and, with respect to the provisions of Article XVI,
the holders of the Senior Indebtedness).


 


Section 2.12         Authentication Agent.  


 


(a)           So long as any of the Debentures remain Outstanding
there may be an Authenticating Agent for any or all such Debentures, which
Authenticating Agent the Trustee shall have the right to appoint.  Said Authenticating Agent shall be authorized
to act on behalf of the Trustee to authenticate Debentures issued upon
exchange, transfer or partial redemption thereof, and Debentures so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder.  All references in this
Indenture to the authentication of Debentures by the Trustee shall be deemed to
include authentication by an Authenticating Agent.  Each Authenticating Agent shall be acceptable
to and approved by the Company in writing and shall be a corporation that has a
combined capital and surplus, as most recently reported or determined by it,
sufficient under the laws of any jurisdiction under which it is organized or in
which it is doing business to conduct a trust business, and that is otherwise
authorized under such laws to conduct such business and is subject to supervision
or examination by federal or state authorities. 
If at any time any Authenticating Agent shall cease to be eligible in
accordance with these provisions, it shall resign immediately.


 


(b)           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 (and upon request
by the Company shall) terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and to the
Company.  Upon resignation, termination
or cessation of eligibility of any Authenticating Agent, the Trustee may
appoint a successor Authenticating Agent eligible under the provisions of Section 12.2(a) of
this Indenture.  Any successor
Authenticating Agent, upon acceptance of its appointment hereunder, shall
become vested with all the rights, powers and duties of its predecessor
hereunder as if originally named as an Authenticating Agent pursuant hereto.


 


(c)           The Trustee agrees to pay the Authenticating Agent
from time to time reasonable compensation for its services under this Section,
and the Trustee shall be entitled to be reimbursed for such payments pursuant
to Section 9.7.


 


ARTICLE
III

REDEMPTION OF DEBENTURES


 


Section 3.1            Redemption. 
Subject to the Company having received prior approval of the Federal
Reserve, if then required under the applicable capital guidelines, policies or
regulations of the Federal Reserve, the Company may redeem the Debentures
issued hereunder on and after the dates set forth in and in accordance with the
terms of this Article III.


 


Section 3.2            Special Event Redemption.  Subject to the Company having received the prior
approval of the Federal Reserve, if then required under the applicable capital
guidelines, 


 


16

















 


policies or regulations
of the Federal Reserve, if a Special Event has occurred and is continuing,
then, notwithstanding Section 3.3(a) but subject to Section 3.3(b),
the Company shall have the right upon not less than thirty (30) days’ nor more
than sixty (60) days’ notice to the holders of the Debentures to redeem the
Debentures, in whole but not in part, for cash within one hundred eighty (180)
days following the occurrence of such Special Event (the “180-Day Period”) at a
redemption price equal to 100% of the principal amount to be redeemed plus any
accrued and unpaid interest thereon to the date of such redemption (the “Redemption
Price”), provided that if at the time there is available to the Company the
opportunity to eliminate, within the 180-Day Period, a Tax Event by taking some
ministerial action (a “Ministerial Action”), such as filing a form or making an
election, or pursuing some other similar reasonable measure which has no
adverse effect on the Company, the Trust or the holders of the Trust Securities
issued by the Trust, the Company shall pursue such Ministerial Action in lieu
of redemption, and, provided further, that the Company shall
have no right to redeem the Debentures pursuant to this Section 3.2 while
it is pursuing any Ministerial Action pursuant to its obligations hereunder,
and, provided further, that, if it is determined that the
taking of a Ministerial Action would not eliminate the Tax Event within the 180
Day Period, the Company’s right to redeem the Debentures pursuant to this Section 3.2
shall be restored and it shall have no further obligations to pursue the
Ministerial Action.  The Redemption Price
shall be paid prior to 12:00 noon, New York time, on the date of such
redemption or such earlier time as the Company determines, provided that the
Company shall deposit with the Trustee an amount sufficient to pay the
Redemption Price by 10:00 a.m., New York time, on the date such Redemption
Price is to be paid.


 


Section 3.3            Optional Redemption by the
Company.


 


(a)           Subject to the provisions of Section 3.3(c),
except as otherwise may be specified in this Indenture, the Company shall have
the right to redeem the Debentures, in whole or in part, from time to time, on
or after [December 31, 2013], at a Redemption Price equal to 100% of the
principal amount to be redeemed plus any accrued and unpaid interest thereon to
the date of such redemption.  Any
redemption pursuant to this Section 3.3(a) shall be made upon not
less than thirty (30) days’ nor more than sixty (60) days’ notice to the holder
of the Debentures, at the Redemption Price. 
If the Debentures are only partially redeemed pursuant to this Section 3.3(a),
the Debentures shall be redeemed pro rata or by lot or in such other manner as
the Trustee shall deem appropriate and fair in its discretion.  The Redemption Price shall be paid prior to
12:00 noon, New York time, on the date of such redemption or at such earlier
time as the Company determines provided that the Company shall deposit with the
Trustee an amount sufficient to pay the Redemption Price by 10:00 a.m.,
New York time, on the date such Redemption Price is to be paid.


 


(b)           Subject to the provisions of Section 3.3(c), the
Company shall have the right to redeem Debentures at any time and from time to
time in a principal amount equal to the Liquidation Amount (as defined in the
Trust Agreement) of any Preferred Securities purchased and beneficially owned
by the Company, plus an additional principal amount of Debentures equal to the
Liquidation Amount of that number of Common Securities that bears the same
proportion to the total number of Common Securities then outstanding as the
number of Preferred Securities to be redeemed bears to the total number of
Preferred Securities then outstanding. 
Such Debentures shall be redeemed pursuant to this Section 3.3(b) only
in


 


17

















 


exchange for and upon
surrender by the Company to the Property Trustee of the Preferred Securities
and a proportionate amount of Common Securities, whereupon the Property Trustee
shall cancel the Preferred Securities and Common Securities so surrendered and
a Like Amount (as defined in the Trust Agreement) of Debentures shall be
extinguished by the Trustee and shall no longer be deemed Outstanding.


 


(c)           If a partial redemption of the Debentures would result
in the delisting of the Preferred Securities from the NASDAQ Global Select
Market or from any national securities exchange or in the termination of
inclusion of the Preferred Securities issued by the Trust from the NASDAQ
National Market or other self-regulatory organization on or in which the
Preferred Securities are then listed, quoted or included, the Company shall not
be permitted to effect such partial redemption and may only redeem the
Debentures in whole.


 


Section 3.4            Notice of Redemption.


 


(a)           Except in the case of a redemption pursuant to Section 3.3(b),
in case the Company shall desire to exercise such right to redeem all or, as
the case may be, a portion of the Debentures in accordance with the right
reserved so to do, the Company shall, or shall cause the Trustee to upon
receipt of forty-five (45) days’ written notice from the Company (which notice
shall, in the event of a partial redemption, include a representation to the effect
that such partial redemption will not result in the delisting of the Preferred
Securities as described in Section 3.3(c) above), give notice of such
redemption to holders of the Debentures to be redeemed by mailing, first class
postage prepaid, a notice of such redemption not less than thirty (30) days and
not more than sixty (60) days before the date fixed for redemption to such
holders at their last addresses as they shall appear upon the Debenture
Register unless a shorter period is specified in the Debentures to be
redeemed.  Any notice that is mailed in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the registered holder receives the notice.  In any case, failure duly to give such notice
to the holder of any Debenture designated for redemption in whole or in part,
or any defect in the notice, shall not affect the validity of the proceedings
for the redemption of any other Debentures. 
In the case of any redemption of Debentures prior to the expiration of
any restriction on such redemption provided in the terms of such Debentures or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers’ Certificate evidencing compliance with any such restriction.  Each such notice of redemption shall specify
the date fixed for redemption and the Redemption Price and shall state that
payment of the Redemption Price shall be made at the office or agency of the
Company in the Borough of Manhattan, the City of New York or at the Corporate Trust
Office, upon presentation and surrender of such Debentures, that interest
accrued to the date fixed for redemption shall be paid as specified in said
notice and that from and after said date interest shall cease to accrue.  If less than all the Debentures are to be
redeemed, the notice to the holders of the Debentures shall specify the
particular Debentures to be redeemed.  If
the Debentures are to be redeemed in part only, the notice shall state the
portion of the principal amount thereof to be redeemed and shall state that on
and after the redemption date, upon surrender of such Debenture, a new
Debenture or Debentures in principal amount equal to the unredeemed portion
thereof shall be issued.


 


(b)           Except in the case of a redemption pursuant to Section 3.3(b),
if less than all the Debentures are to be redeemed, the Company shall give the
Trustee at least


 


18














 


forty-five (45) days’ written notice in advance of the date fixed for
redemption as to the aggregate principal amount of Debentures to be redeemed,
and thereupon the Trustee shall select, pro rata or by lot or in such other
manner as it shall deem appropriate and fair in its discretion, the portion or
portions (equal to $10 or any integral multiple thereof) of the Debentures to
be redeemed and shall thereafter promptly notify the Company in writing of the
numbers of the Debentures to be redeemed, in whole or in part.  The Company may, if and whenever it shall so
elect pursuant to the terms hereof, by delivery of instructions signed on its
behalf by its Chief Executive Officer, President or any Executive Vice
President, instruct the Trustee or any Paying Agent to call all or any part of
the Debentures for redemption and to give notice of redemption in the manner
set forth in this Section 3.4, such notice to be in the name of the
Company or its own name as the Trustee or such Paying Agent may deem
advisable.  In any case in which notice
of redemption is to be given by the Trustee or any such Paying Agent, the
Company shall deliver or cause to be delivered to, or permit to remain with,
the Trustee or such Paying Agent, as the case may be, such Debenture Register,
transfer books or other records, or suitable copies or extracts therefrom,
sufficient to enable the Trustee or such Paying Agent to give any notice by
mail that may be required under the provisions of this Section 3.4.


 


Section 3.5            Payment
upon Redemption.


 


(a)           If the giving of notice of redemption
shall have been completed as above provided, the Debentures or portions of
Debentures to be redeemed specified in such notice shall become due and payable
on the date and at the place stated in such notice at the applicable Redemption
Price, and interest on such Debentures or portions of Debentures shall cease to
accrue on and after the date fixed for redemption, unless the Company shall
default in the payment of such Redemption Price with respect to any such Debenture
or portion thereof.  On presentation and
surrender of such Debentures on or after the date fixed for redemption at the
place of payment specified in the notice, said Debentures shall be paid and
redeemed at the Redemption Price (but if the date fixed for redemption is an
Interest Payment Date, the interest installment payable on such date shall be
payable to the registered holder at the close of business on the applicable
record date pursuant to Section 3.3).


 


(b)           Upon presentation of any Debenture that
is to be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Debenture is presented shall
deliver to the holder thereof, at the expense of the Company, a new Debenture
of authorized denomination in principal amount equal to the unredeemed portion
of the Debenture so presented.


 


Section 3.6            No
Sinking Fund.  The Debentures are not
entitled to the benefit of any sinking fund.


 


ARTICLE
IV

EXTENSION OF INTEREST PAYMENT PERIOD


 


Section 4.1            Extension
of Interest Payment Period.  So long
as no Event of Default has occurred and is continuing, the Company shall have
the right, at any time and from time to time during the term of the Debentures,
to defer payments of interest by extending the interest payment period of such
Debentures for a period not exceeding twenty (20) consecutive quarters 


 


19

















 


(the “Extension Period”),
during which Extension Period no interest shall be due and payable; provided
that no Extension Period may extend beyond the Maturity Date or end on a date
other than an Interest Payment Date.  To
the extent permitted by applicable law, interest, the payment of which has been
deferred because of the extension of the interest payment period pursuant to
this Section 4.1, shall bear interest thereon at the Coupon Rate
compounded quarterly for each quarter of the Extension Period (“Compounded
Interest”).  At the end of the Extension
Period, the Company shall calculate (and deliver such calculation to the
Trustee) and pay all interest accrued and unpaid on the Debentures, including
any Additional Payments and Compounded Interest (together, “Deferred Payments”)
that shall be payable to the holders of the Debentures in whose names the Debentures
are registered in the Debenture Register on the first record date after the end
of the Extension Period.  Before the
termination of any Extension Period, the Company may further extend such period
so long as no Event of Default has occurred and is continuing, provided that
such period together with all such further extensions thereof shall not exceed
twenty (20) consecutive quarters, or extend beyond the Maturity Date of the
Debentures or end on a date other than an Interest Payment Date.  Upon the termination of any Extension Period
and upon the payment of all Deferred Payments then due, the Company may
commence a new Extension Period, subject to the foregoing requirements.  No interest shall be due and payable during
an Extension Period, except at the end thereof, but the Company may prepay at
any time all or any portion of the interest accrued during an Extension Period.


 


Section 4.2            Notice
of Extension.


 


(a)           If the Property Trustee is the only
registered holder of the Debentures at the time the Company selects an
Extension Period, the Company shall give written notice to the Administrative
Trustees, the Property Trustee and the Trustee of its selection of such
Extension Period at least two Business Days before the earlier of (i) the
next succeeding date on which Distributions on the Trust Securities issued by
the Trust are payable; or (ii) the date the Trust is required to give
notice of the record date, or the date such Distributions are payable, to the
American Stock Exchange, Inc. or other applicable exchange or
self-regulatory organization or to holders of the Preferred Securities issued
by the Trust, but in any event at least one Business Day before such record
date.


 


(b)           If the Property Trustee is not the
only holder of the Debentures at the time the Company selects an Extension
Period, the Company shall give the holders of the Debentures and the Trustee
written notice of its selection of such Extension Period at least two Business
Days before the earlier of (i) the next succeeding Interest Payment Date;
or (ii) the date the Company is required to give notice of the record or
payment date of such interest payment to the NASDAQ Global Select Market or
other applicable exchange or self-regulatory organization or to holders of the
Debentures.


 


(c)           The quarter in which any notice is
given pursuant to paragraphs (a) or (b) of this Section 4.2
shall be counted as one of the twenty (20) quarters permitted in the maximum
Extension Period permitted under Section 4.1.


 


Section 4.3            Limitation
on Transactions.  If (a) the
Company shall exercise its right to defer payment of interest as provided in Section 4.1;
or (b) there shall have occurred and be continuing any Event of Default,
then (i) neither the Company nor any of its Subsidiaries shall 


 


20

















 


declare or pay any
dividend on, make any distributions with respect to, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital stock
(other than (A) dividends or distributions in common stock of the Company,
or any declaration of a non-cash dividend in connection with the implementation
of a shareholder rights plan, or the issuance of stock under any such plan in
the future, or the redemption or repurchase of any such rights pursuant
thereto, (B) purchases of common stock of the Company related to the
rights under any of the Company’s benefit plans for its directors, officers or
employees, (C) as a result of a reclassification of its capital stock for
another class of its capital stock, (D) dividends or distributions made by
a Subsidiary to the Company, or (E) dividends or distributions made by a
Subsidiary to a Subsidiary); (ii) neither the Company nor any Subsidiary
shall make any payment of interest, principal or premium, if any, or repay,
repurchase or redeem any debt securities issued by the Company or any
Subsidiary which rank pari passu with or junior to the Debentures or make any
guarantee payments with respect to any guarantee by the Company of any debt
securities if such guarantee ranks pari passu with or junior in interest to the
Debentures; provided, however, that notwithstanding the foregoing
the Company may make payments pursuant to its obligations under the Preferred
Securities Guarantee; and (iii) the Company shall not redeem, purchase or
acquire less than all of the Outstanding Debentures or any of the Preferred
Securities.


 


ARTICLE
V

PARTICULAR COVENANTS OF THE COMPANY


 


Section 5.1            Payment
of Principal and Interest.  The
Company shall duly and punctually pay or cause to be paid the principal of and
interest on the Debentures at the time and place and in the manner provided
herein.  Each such payment of the
principal of and interest on the Debentures shall relate only to the Debentures,
shall not be combined with any other payment of the principal of or interest on
any other obligation of the Company, and shall be clearly and unmistakably
identified as pertaining to the Debentures.


 


Section 5.2            Maintenance
of Agency.  So long as any of the
Debentures remain Outstanding, the Company shall maintain, or shall cause to be
maintained, an office or agency in the Borough of Manhattan, the City of New
York, and at such other location or locations as may be designated as provided
in this Section 5.2, where (a) Debentures may be presented for
payment; (b) Debentures may be presented as hereinabove authorized for
registration of transfer and exchange; and (c) notices and demands to or
upon the Company in respect of the Debentures and this Indenture may be given
or served, such designation to continue with respect to such office or agency
until the Company shall, by written notice signed by its President or an
Executive Vice President and delivered to the Trustee, designate some other
office or agency for such purposes or any of them.  If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, notices and demands may
be made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
notices and demands.   In addition to any
such office or agency, the Company may from time to time designate one or more
offices or agencies outside of the Borough of Manhattan, the City of New York,
where the Debentures may be presented for registration or transfer and for
exchange in the manner provided herein, and the Company may from time to time
rescind such designation as the Company may deem desirable or expedient; provided,



 


21

















 


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 the Borough of
Manhattan, the City of New York, for the purposes above mentioned.  The Company shall give the Trustee prompt
written notice of any such designation or rescission thereof.


 


Section 5.3            Paying
Agents.


 


(a)           The
Company shall be the initial Paying Agent. 
If the Company shall appoint one or more Paying Agents for the
Debentures, other than the Trustee, the Company shall cause each such Paying
Agent to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 5.3:


 


(i)            that it shall hold all sums held by
it as such agent for the payment of the principal of or interest on the
Debentures (whether such sums have been paid to it by the Company or by any
other obligor of such Debentures) in trust for the benefit of the Persons
entitled thereto;


 


(ii)           that it shall give the Trustee notice
of any failure by the Company (or by any other obligor of such Debentures) to
make any payment of the principal of or interest on the Debentures when the
same shall be due and payable;


 


(iii)          that it shall, at any time during the
continuance of any failure referred to in the preceding paragraph (a)(ii) above,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent; and


 


(iv)          that it shall perform all other duties
of Paying Agent as set forth in this Indenture.


 


(b)           If
the Company shall act as its own Paying Agent with respect to the Debentures,
it shall on or before each due date of the principal of or interest on such
Debentures, set aside, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay such principal or interest so
becoming due on Debentures until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and shall promptly notify the Trustee
of such action, or any failure (by it or any other obligor on such Debentures)
to take such action. Whenever the Company shall have one or more Paying Agents
for the Debentures, it shall, prior to each due date of the principal of or
interest on any Debentures, deposit with the Paying Agent a sum sufficient to
pay the principal or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal or interest, and (unless
such Paying Agent is the Trustee) the Company shall promptly notify the Trustee
of this action or failure so to act.


 


(c)           Notwithstanding
anything in this Section 5.3 to the contrary, (i) the agreement to
hold sums in trust as provided in this Section 5.3 is subject to the
provisions of Section 13.3 and 13.4; and (ii) the Company may at any
time, for the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or direct any Paying Agent to pay, to
the Trustee all sums held in trust by the Company or such Paying Agent, such 


 


22

















 


sums to be held by the
Trustee upon the same terms and conditions as those upon which such sums were
held by the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.


 


Section 5.4            Appointment
to Fill Vacancy in Office of the Trustee. 
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, shall appoint, in the manner provided in Section 9.11,
a Trustee, so that there shall at all times be a Trustee hereunder.


 


Section 5.5            Compliance
with Consolidation Provisions.  The
Company shall 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 company unless such
consolidation, merger, sale or conveyance is in compliance with the provisions
of Article XII hereof.


 


Section 5.6            Limitation
on Transactions.  If Debentures are
issued to the Trust or a trustee of the Trust in connection with the issuance
of Trust Securities by the Trust and (a) there shall have occurred and be
continuing an Event of Default; (b) the Company shall be in default with
respect to its payment of any obligations under the Preferred Securities
Guarantee relating to the Trust; or (c) if the Company shall have given
notice of its election to defer payments of interest on such Debentures by
extending the interest payment period as provided in this Indenture and such
Extension Period, or any extension thereof, shall be continuing, then (i) neither
the Company nor any of its Subsidiaries shall declare or pay any dividend on,
make any distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock (other than (A) dividends
or distributions in common stock of the Company, or any declaration of a
non-cash dividend in connection with the implementation of a shareholder rights
plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, (B) purchases
of common stock of the Company related to the rights under any of the Company’s
benefit plans for its directors, officers or employees, (C) as a result of
a reclassification of its capital stock, or (D) dividends or distributions
made by a Subsidiary to the Company, or (E) dividends or distributions
made by a Subsidiary to a Subsidiary); (ii) neither the Company nor any
Subsidiary shall make any payment of principal, interest or premium, if any, or
repay, repurchase or redeem any debt securities issued by the Company or any Subsidiary
which rank pari passu with or junior in interest to the Debentures or make any
guarantee payments with respect to any guarantee by the Company of any debt
securities if such guarantee ranks pari passu with or junior in interest to the
Debentures; provided, however, that the Company may make payments
pursuant to its obligations under the Preferred Securities Guarantee; and (iii) the
Company shall not redeem, purchase or acquire less than all of the Outstanding
Debentures or any of the Preferred Securities.


 


Section 5.7            Covenants
as to the Trust.  For so long as the
Trust Securities of the Trust remain outstanding, the Company (a) shall
maintain 100% direct or indirect ownership of the Common Securities of the
Trust; provided, however, that any permitted successor of the
Company under this Indenture may succeed to the Company’s ownership of the
Common Securities; (b) shall not voluntarily terminate, wind up or
liquidate the Trust, except upon prior approval of the Federal Reserve if then
so required under applicable capital guidelines, policies 


 


23

















 


or regulations of the
Federal Reserve; (c) shall use its reasonable efforts to cause the Trust (i) to
remain a statutory trust (and to avoid involuntary termination, winding up or
liquidation), except in connection with a distribution of Debentures, the
redemption of all of the Trust Securities of the Trust or certain mergers,
consolidations or amalgamations, each as permitted by the Trust Agreement; and (ii) to
otherwise continue to be classified as a grantor trust and not as an
association taxable as a corporation or partnership for United States federal
income tax purposes; (d) shall use its reasonable efforts to cause each
holder of Trust Securities to be treated as owning an individual beneficial
interest in the Debentures; and (e) including any successor to the
Company, shall use reasonable efforts to maintain the eligibility of the
Preferred Securities for listing, quotation or inclusion on or in any national
securities exchange or other self-regulatory organization on or in which the
Preferred Securities are then listed, quoted or included (including, if
applicable, the NASDAQ Global Select Market) and shall use reasonable efforts
to keep the Preferred Securities so listed, quoted or included for so long as
the Preferred Securities remain outstanding. 
In connection with the distribution of the Debentures to the holders of
the Preferred Securities issued by the Trust upon a Dissolution Event, the
Company shall use its best efforts to list such Debentures on the NASDAQ Global
Select Market or such other exchange or to include such Debentures in such
self-regulatory organization as the Preferred Securities are then listed,
quoted or included.


 


Section 5.8            Covenants
as to Purchases.  Except upon the
exercise by the Company of its right to redeem the Debentures pursuant to Section 3.2
upon the occurrence and continuation of a Special Event, the Company shall not
purchase any Debentures, in whole or in part, from the Trust prior to [December 31,
2013].


 


Section 5.9            Waiver
of Usury, Stay or Extension Laws. 
The Company shall not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performances of this Indenture, and the Company
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the extension of every such power as though no such law had
been enacted.


 


Section 5.10         Limitation
on 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.


 


Section 5.11         No
Intent to Commence Extension Period.  The
Company has no present intention to exercise its right under Section 4.1
to defer payments of interest on the Debentures by selecting an Extension
Period.  The Company believes that the
likelihood that it would exercise its right under Section 4.1 to defer
payments of interest on the Debentures by selecting an Extension Period at any
time during which the Debentures are outstanding is remote 


 


24

















 


because of the
restrictions that would be imposed on the Company pursuant to Sections 4.3 and
5.6 of this Indenture.


 


ARTICLE
VI

THE DEBENTUREHOLDERS’ LISTS AND REPORTS

BY THE COMPANY AND THE TRUSTEE


 


Section 6.1            The
Company to Furnish the Trustee Names and Addresses of the
Debentureholders.  The Company shall
furnish or cause to be furnished to the Trustee (a) on a quarterly basis
on each regular record date (as described in Section 2.5) a list, in such
form as the Trustee may reasonably require, of the names and addresses of the
holders of the Debentures as of such regular record date, provided that the
Company shall not be obligated to furnish or cause to be furnished such list at
any time that the list shall not differ in any respect from the most recent
list furnished to the Trustee by the Company (in the event the Company fails to
provide such list on a quarterly basis, the Trustee shall be entitled to rely
on the most recent list provided by the Company); and (b) at such other
times as the Trustee may request in writing within thirty (30) days after the
receipt by the Company of any such request, a list in similar form and content
as of a date not more than fifteen (15) days prior to the time such list is
furnished; provided, however, that, in either case, no such list
need be furnished if the Trustee shall be the Debenture Registrar.


 


Section 6.2            Preservation
of Information Communications with the Debentureholders.


 


(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 contained in the most recent list
furnished to it as provided in Section 6.1 and as to the names and addresses
of holders of Debentures received by the Trustee in its capacity as Debenture
Registrar for the Debentures (if acting in such capacity).


 


(b)           The Trustee may destroy any list
furnished to it as provided in Section 6.1 upon receipt of a new list so
furnished.


 


(c)           Debentureholders may communicate as
provided in Section 312(b) of the Trust Indenture Act with other
Debentureholders with respect to their rights under this Indenture or under the
Debentures.


 


Section 6.3            Reports
by the Company.


 


(a)           The Company covenants and agrees to
file with the Trustee, within fifteen (15) days after the Company files the
same with the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and regulations
prescribe) that the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or,
if the Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports that may be required 


 


25

















 


pursuant to Section 13
of the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such rules and
regulations.


 


(b)           The Company covenants and agrees to
file with the Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants provided for in this Indenture as may be
required from time to time by such rules and regulations.


 


(c)           The Company covenants and agrees to
transmit by mail, first class postage prepaid, or reputable overnight delivery
service that provides for evidence of receipt, to the Debentureholders, as
their names and addresses appear upon the Debenture Register, within thirty
(30) days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company pursuant
to subsections (a) and (b) of this Section 6.3 as may be
required by rules and regulations prescribed from time to time by the
Commission.


 


Section 6.4            Reports
by the Trustee.


 


(a)           On or before October 15 in each
year in which any of the Debentures are Outstanding, the Trustee shall transmit
by mail, first class postage prepaid, to the Debentureholders, as their names
and addresses appear upon the Debenture Register, a brief report dated as of
the preceding September 30, if and to the extent required under Section 313(a) of
the Trust Indenture Act.


 


(b)           The Trustee shall comply with Section 313(b) and
313(c) of the Trust Indenture Act.


 


(c)           A copy of each such report shall, at
the time of such transmission to Debentureholders, be filed by the Trustee with
the Company, with the NASDAQ Global Select Market, or other stock exchange on
which any Debentures are listed and/or any other self-regulatory organization
on or in which any Debentures are quoted or included (if so listed, quoted or
included) and also with the Commission. 
The Company agrees to notify the Trustee when any Debentures become
listed on the NASDAQ Global Select Market or on any other stock exchange or designated
for inclusion or quotation in or on any other self-regulatory organization.


 


ARTICLE
VII

REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS

ON EVENT OF DEFAULT


 


Section 7.1            Events
of Default.


 


(a)           Whenever used herein with respect to
the Debentures, “Event of Default” means any one or more of the following
events that has occurred and is continuing:


 


26

















 


(i)            the Company defaults in the payment
of any installment of interest upon any of the Debentures, as and when the same
shall become due and payable, and continuance of such default for a period of
thirty (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;


 


(ii)           the Company defaults in the payment
of the principal on the Debentures as and when the same shall become due and
payable whether at maturity, upon redemption, by declaration or otherwise;


 


(iii)          the Company fails to observe or
perform any other of its covenants or agreements with respect to the Debentures
for a period of ninety (90) days after the date on which written notice of such
failure, requiring the same to be remedied and stating that such notice is a “Notice
of Default” hereunder, shall have been given to the Company by the Trustee, by
registered or certified mail, or to the Company and the Trustee by the holders
of at least twenty-five percent (25%) in principal amount of the Debentures at
the time Outstanding;


 


(iv)          the Company pursuant to or within the
meaning of any Bankruptcy Law (A) commences a voluntary case; (B) consents
to the entry of an order for relief against it in an involuntary case; (C) consents
to the appointment of a Custodian of it or for all or substantially all of its
property; or (D) makes a general assignment for the benefit of its
creditors;


 


(v)           a court of competent jurisdiction
enters an order under any Bankruptcy Law that (A) is for relief against
the Company in an involuntary case; (B) appoints a Custodian of the
Company for all or substantially all of its property; or (C) orders the
liquidation of the Company, and the order or decree remains unstayed and in
effect for ninety (90) days; or


 


(vi)          the Trust shall have voluntarily or
involuntarily dissolved, wound-up its business or otherwise terminated its
existence except in connection with (A) the distribution of Debentures to
holders of Trust Securities in liquidation of their interests in the Trust; (B) the
redemption of all of the outstanding Trust Securities of the Trust; or (C) certain
mergers, consolidations or amalgamations, each as permitted by the Trust
Agreement.


 


(b)           In
each and every such case referred to in items (i) through (vi) of Section 7.1(a),
unless the principal of all the Debentures shall have already become due and
payable, either the Trustee or the holders of not less than twenty-five percent
(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
such Debentureholders) may declare the principal of all the Debentures to be
due and payable immediately, and upon any such declaration the same shall
become and shall be immediately due and payable, notwithstanding anything
contained in this Indenture or in the Debentures.


 


27














 


(c)           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, the holders of at least a majority in
aggregate principal amount of the Debentures then Outstanding hereunder, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if: (i) the Company has paid or deposited
with the Trustee a sum sufficient to pay all matured installments of interest
upon all the Debentures and the principal of any and all Debentures that shall
have become due otherwise than by acceleration (with interest upon such
principal, and, to the extent that such payment is enforceable under applicable
law, upon overdue installments of interest, at the rate per annum expressed in
the Debentures to the date of such payment or deposit) and the amount payable
to the Trustee under Section 9.7; and (ii) any and all Events of Default
under this Indenture, other than the nonpayment of principal on Debentures that
shall not have become due by their terms, shall have been remedied or waived as
provided in Section 7.6.  No such
rescission and annulment shall extend to or shall affect any subsequent default
or impair any right consequent thereon.


 


(d)           If the Trustee shall have proceeded
to enforce any right with respect to Debentures 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 and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company and the Trustee shall continue as
though no such proceedings had been taken.


 


Section 7.2            Collection
of Indebtedness and Suits for Enforcement by the Trustee.


 


(a)           The Company covenants that (i) in
case it shall default in the payment of any installment of interest on any of
the Debentures, and such default shall have continued for a period of thirty
(30) days (other than by reason of a valid extension of an interest payment
period by the Company in accordance with the terms of this Indenture); or (ii) in
case it shall default in the payment of the principal of any of the Debentures
when the same shall have become due and payable, whether upon maturity of the
Debentures or upon redemption or upon declaration or otherwise, then, upon
demand of the Trustee, the Company shall pay to the Trustee, for the benefit of
the holders of the Debentures, the whole amount that then shall have been
become due and payable on all such Debentures for principal or interest, or
both, as the case may be, with interest upon the overdue principal; and (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 the Trust, without
duplication of any other amounts paid by the Trust or trustee in respect
thereof) upon overdue installments of interest at the rate per annum expressed
in the Debentures; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, and the amount
payable to the Trustee under Section 9.7.


 


(b)           If the Company shall fail to pay such
amounts set forth in Section 7.2(a) forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, shall be entitled
and empowered to institute any action 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 


 


28

















 


against the Company or
other obligor upon the Debentures and collect the moneys adjudged or decreed to
be payable in the manner provided by law out of the property of the Company or
other obligor upon the Debentures, wherever situated.


 


(c)           In case of any receivership,
insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement,
composition or judicial proceedings affecting the Company, the Trust, or the
creditors or property of either, the Trustee shall have power to intervene in
such proceedings and take any action therein that may be permitted by the court
and shall (except as may be otherwise provided by law) be entitled to file such
proofs of claim and other papers and documents as may be necessary or advisable
in order to have the claims of the Trustee and of the holders of the Debentures
allowed for the entire amount due and payable by the Company under this
Indenture at the date of institution of such proceedings and for any additional
amount that may become due and payable by the Company after such date, and to
collect and receive any moneys or other property payable or deliverable on any
such claim, and to distribute the same after the deduction of the amount
payable to the Trustee under Section 9.7; and any receiver, assignee or
trustee in bankruptcy or reorganization is hereby authorized by each of the
holders of the Debentures to make such payments to the Trustee, and, in the
event that the Trustee shall consent to the making of such payments directly to
such Debentureholders, to pay to the Trustee any amount due it under Section 9.7.


 


(d)           All rights of action and of asserting
claims under this Indenture, or under any of the terms established with respect
to the Debentures, may be enforced by the Trustee without the possession of any
of such 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, after provision for payment to the Trustee of any
amounts due under Section 9.7, be for the ratable benefit of the holders
of the Debentures.  In case of an Event
of Default hereunder which is continuing, 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 at law or in equity or 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.  Nothing contained herein shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Debentureholder 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 Debentureholder in
any such proceeding.


 


Section 7.3            Application
of Moneys Collected.  Any moneys or
other assets collected by the Trustee pursuant to this Article VII with
respect to the Debentures shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such moneys
or other assets on account of principal or interest, upon presentation of the
Debentures, and notation thereon of the payment, if only partially paid, and
upon surrender thereof if fully paid:


 


FIRST: To the payment of costs and expenses
of collection and of all amounts payable to the Trustee under Section 9.7;


 


29

















 


SECOND: To the payment of all Senior
Indebtedness if and to the extent required by Article XVI;


 


THIRD: To the payment of the amounts then due
and unpaid upon the Debentures for principal and interest, in respect of which
or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Debentures for principal and interest, respectively;


 


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


 


Section 7.4            Limitation
on Suits.


 


(a)           Except as set forth in this
Indenture, no holder of any Debenture shall have any right by virtue or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless (i) such holder previously shall have given to the
Trustee written notice of an Event of Default and of the continuance thereof
with respect to the Debentures specifying such Event of Default, as
hereinbefore provided; (ii) the holders of not less than twenty-five (25%)
in aggregate principal amount of the Debentures then Outstanding shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as trustee hereunder; (iii) such holder or
holders shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby; and (iv) the Trustee for sixty (60) days after its receipt of
such notice, request and offer of indemnity shall have failed to institute any
such action, suit or proceeding and during such sixty (60) day period, the
holders of at least a majority in principal amount of the Debentures do not
give the Trustee a direction inconsistent with the request.


 


(b)           Notwithstanding anything contained
herein to the contrary or any other provisions of this Indenture, the right of
any holder of the Debentures to receive payment of the principal of and
interest on the Debentures, as therein provided, on or after the respective due
dates expressed in such Debenture (or in the case of redemption, on the
redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, 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 the Debentures shall have any right in
any manner whatsoever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of the holders of any
other of such 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 the Debentures. For the protection and
enforcement of the provisions of this Section 7.4, each and every
Debentureholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.


 


30

















 


Section 7.5            Rights
and Remedies Cumulative; Delay or Omission not Waiver.


 


(a)           Except as otherwise provided in Section 2.9(b),
all powers and remedies given by this Article VII to the Trustee or to the
Debentureholders 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 such Debentures.


 


(b)           No delay or omission of the Trustee
or of any holder of any of the Debentures to exercise any right or power
accruing upon any Event of Default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a waiver of any
such default or an acquiescence therein; and, subject to the provisions of Section 7.4,
every power and remedy given by this Article VII or by law to the Trustee
or the Debentureholders may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Debentureholders.


 


Section 7.6            Control
by the Debentureholders.  The holders
of at least a majority in aggregate principal amount of the Debentures at the
time Outstanding, determined in accordance with Section 10.4, shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee; provided, however, that such direction shall not
be in conflict with any rule of law or with this Indenture.  Subject to the provisions of Section 9.1,
the Trustee shall have the right to decline to follow any such direction if the
Trustee in good faith shall determine that the action so directed would be
unjustly prejudicial to the holders not taking part in such direction or if the
Trustee, being advised by counsel, determines that the action or proceeding so
directed may not lawfully be taken, or if a Responsible Officer or Officers of
the Trustee, determine that the proceeding so directed would involve the
Trustee in personal liability.  The holders
of at least a majority in aggregate principal amount of the Debentures at the
time Outstanding affected thereby, or the holders of at least a majority in
liquidation preference of the Trust Securities of the Trust at the time
Outstanding affected thereby, in each case determined in accordance with Section 10.4,
may on behalf of the holders of all of the Debentures or of all of the
Preferred Securities waive any past default in the performance of any of the
covenants contained herein and its consequences or any past Default or Event of
Default, except (i) a default in the payment of the principal of or
interest on any of the Debentures as and when the same shall become due by the
terms of such Debentures otherwise than by acceleration (unless such default
has been cured and a sum sufficient to pay all matured installments of interest
and principal due otherwise than by acceleration has been deposited with the
Trustee (in accordance with Section 7.1(c)); (ii) a default in the
covenants contained in Section 5.7; or (iii) in respect of a covenant
or provision hereof which cannot be modified or amended without the consent of
the holder of each Outstanding Debenture affected; provided, however,
that if the Debentures are held by the Trust or a trustee of the Trust, such
waiver or modification to such waiver shall not be effective until the holders
of a majority in liquidation preference of Trust Securities of the Trust shall
have consented to such waiver or modification to such waiver; provided
further, that if the Debentures are held by the Trust or a trustee of the
Trust, and 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 


 


31

















 


positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.


 


Section 7.7            Undertaking
to Pay Costs.  All parties to this
Indenture agree, and each holder of any Debentures by such holder’s acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or omitted
by it as the 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,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 7.7 shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Debentureholder, or group of the
Debentureholders holding more than ten percent (10%) in aggregate principal
amount of the Outstanding Debentures, or to any suit instituted by any
Debentureholder for the enforcement of the payment of the principal of or
interest on the Debentures, on or after the respective due dates expressed in
such Debenture or established pursuant to this Indenture.


 


Section 7.8            Direct
Action; Right of Set-Off.  In the
event that an Event of Default has occurred and is continuing and such event is
attributable to the failure of the Company to pay interest on or principal of
the Debentures on an Interest Payment Date or Maturity Date, as applicable,
then a holder of Preferred Securities may institute and prosecute a legal
proceeding directly against the Company for enforcement of payment to such
holder of the principal of or interest on such Debentures having a principal
amount equal to the aggregate Liquidation Amount of the Preferred Securities of
such holders (a “Direct Action”).  In
connection with such Direct Action, the Company will have a right of set-off
under this Indenture to the extent of any payment actually made by the Company
to such holder of the Preferred Securities with respect to such Direct Action.


 


ARTICLE
VIII

FORM OF THE DEBENTURE AND ORIGINAL ISSUE


 


Section 8.1            Form of
Debenture.  The Debenture and the
Trustee’s Certificate of Authentication to be endorsed thereon are to be
substantially in the forms contained as Exhibit A to this
Indenture, attached hereto and incorporated herein by reference.


 


Section 8.2            Original
Issue of the Debentures.  Debentures
in the aggregate principal amount of $27,810,000 may, upon execution of this
Indenture, be executed by the Company and delivered to the Trustee for
authentication.  If the Underwriters
exercise their Option and there is an Option Closing Date (as such terms are
defined in the Underwriting Agreement, dated [December       ,
2008], by and among the Company, the Trust, and J.J.B. Hilliard, W.L. Lyons, Inc.,
then, on such Option Closing Date, Debentures in the additional aggregate
amount of up to $3,090,000 may be executed by the Company and delivered to the
Trustee for authentication.  The Trustee
shall thereupon authenticate and deliver said Debentures to or upon the written
order of the Company, signed by its Chief Executive Officer, its President, or
any Executive Vice President and its Treasurer or an Assistant Treasurer,
without any further action by the Company.


 


32

















 


ARTICLE
IX

CONCERNING THE TRUSTEE


 


Section 9.1            Certain
Duties and Responsibilities of the Trustee.


 


(a)           The
Trustee, prior to the occurrence of an Event of Default and after the curing of
all Events of Default that may have occurred, shall undertake to perform with
respect to the Debentures 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 has occurred that 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 its exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.


 


(b)           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:


 


(i)            prior
to the occurrence of an Event of Default and after the curing or waiving of all
such Events of Default that may have occurred:


 


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


 


(B)           in the absence of bad faith on the
part of the Trustee, the Trustee may with respect to the Debentures
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 that by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture;


 


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


 


(iii)          the
Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the holders of
not less than a majority in principal amount of the Debentures at the time
Outstanding relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or 


 


33

















 


power conferred upon the Trustee under this Indenture
with respect to the Debentures; and


 


(iv)          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
reasonable ground for believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this Indenture or adequate
indemnity against such risk is not reasonably assured to it.


 


Section 9.2            Notice
of Defaults.  Within ninety (90) days
after actual knowledge by a Responsible Officer of the Trustee of the
occurrence of any Default hereunder with respect to the Debentures, the Trustee
shall transmit by mail to all holders of the Debentures, as their names and
addresses appear in the Debenture Register, notice of such Default, unless such
Default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal or interest
(including any Additional Payments) on any Debenture, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of the directors and/or Responsible
Officers of the Trustee determines in good faith that the withholding of such
notice is in the interests of the holders of such Debentures; and provided,
further, that in the case of any Default of the character specified in
section 7.1(a)(iii), no such notice to holders of Debentures need be sent until
at least thirty (30) days after the occurrence thereof.


 


Section 9.3            Certain
Rights of the Trustee.  Except as
otherwise provided in Section 9.1:


 


(a)           The Trustee may rely and shall be
protected in acting or refraining from acting upon any written resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, security 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 a
Board Resolution or an instrument signed in the name of the Company by its
President or any Executive Vice President and by the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer thereof (unless other
evidence in respect thereof is specifically prescribed herein);


 


(c)           The Trustee shall not be deemed to
have knowledge of a Default or an Event of Default, other than an Event of
Default specified in Section 7.1(a)(i) or (ii), unless and until it
receives written notification of such Event of Default from the Company or by
holders of at least twenty-five percent (25%) of the aggregate principal amount
of the Debentures at the time Outstanding;


 


(d)           The Trustee may consult with counsel
and the written advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection 


 


34

















 


in respect of any action
taken or suffered or omitted hereunder in good faith and in reliance thereon;


 


(e)           The Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the Debentureholders,
pursuant to the provisions of this Indenture, unless such Debentureholders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee of the obligation,
upon the occurrence of an Event of Default (that is continuing and has not been
cured or waived) to exercise with respect to the Debentures such of the rights
and powers vested in it by this Indenture, and to use the same degree of care
and skill in its 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 liable for
any action taken or omitted to be taken 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;


 


(g)           The Trustee shall not be bound to
make any investigation into the facts or matters stated in any written
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, security, or other papers or
documents, unless requested in writing so to do by the holders of not less than
a majority in principal amount of the Outstanding Debentures (determined as
provided in Section 10.4); 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 costs, expenses or liabilities as a condition
to so proceeding, and the reasonable expense of every such examination shall be
paid by the Company or, if paid by the Trustee, shall be repaid by the Company
upon demand; and


 


(h)           The Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.


 


Section 9.4            The
Trustee not Responsible for Recitals, Etc.


 


(a)           The Recitals contained herein and in
the Debentures shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same.


 


(b)           The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Debentures.


 


(c)           The Trustee shall not be accountable
for the use or application by the Company of any of the Debentures or of the
proceeds of such Debentures, or for the use or application of any moneys paid
over by the Trustee in accordance with any provision of this 


 


35

















 


Indenture, or for the use
or application of any moneys received by any Paying Agent other than the
Trustee.


 


Section 9.5            May Hold
the Debentures.  The Trustee or any
Paying Agent or Debenture Registrar for the Debentures, in its individual or
any other capacity, may become the owner or pledgee of the Debentures with the
same rights it would have if it were not Trustee, Paying Agent or Debenture
Registrar.


 


Section 9.6            Moneys
Held in Trust.  Subject to the
provisions of Section 13.5, all moneys received by the Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated from other funds except to
the extent required by law.  The Trustee
shall be under no liability for interest on any moneys received by it hereunder
except such as it may agree with the Company to pay thereon.


 


Section 9.7            Compensation
and Reimbursement.


 


(a)           The Company covenants and agrees to
pay to the Trustee, and the Trustee shall be entitled to, such reasonable
compensation (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust), as the Company and the
Trustee may from time to time agree in writing, for all services rendered by it
in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trustee, and,
except as otherwise expressly provided herein, the Company shall 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 bad faith. 
The Company also covenants to indemnify the Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on the part
of the Trustee and arising out of or in connection with the acceptance or
administration of this Indenture, including the costs and expenses of defending
itself against any claim of liability in the premises.


 


(b)           The obligations of the Company under
this Section 9.7 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.


 


Section 9.8            Reliance
on Officers’ Certificate.  Except as
otherwise provided in Section 9.1, 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 suffering or omitting
to take any action hereunder, such matter (unless other evidence in respect
thereof is herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers’ Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the part 


 


36

















 


of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted to be
taken by it under the provisions of this Indenture upon the faith thereof.


 


Section 9.9            Disqualification;
Conflicting Interests.  If the
Trustee has or shall acquire any “conflicting interest” within the meaning of Section 310(b) of
the Trust Indenture Act, the Trustee and the Company shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture
Act.


 


Section 9.10         Corporate
Trustee Required; Eligibility.  There
shall at all times be a Trustee with respect to the Debentures issued hereunder
which shall at all times be a corporation organized and doing business under
the laws of the United States or any state or territory thereof or of the
District of Columbia, or a corporation or other Person permitted to act as
trustee by the Commission, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
and subject to supervision or examination by federal, state, territorial, or
District of Columbia authority.  If such
Person 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 9.10, the combined capital and surplus of
such Person shall be deemed to be its combined capital and surplus as set forth
in its most recent report 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 9.10, the Trustee shall resign immediately in
the manner and with the effect specified in Section 9.11.


 


Section 9.11         Resignation
and Removal; Appointment of Successor.


 


(a)           The
Trustee or any successor hereafter appointed, may at any time resign by giving
written notice thereof to the Company and by transmitting notice of resignation
by mail, first class postage prepaid, to the Debentureholders, as their names
and addresses appear upon the Debenture Register.  Upon receiving such notice of resignation,
the Company shall promptly appoint a successor trustee with respect to
Debentures by written instrument, in duplicate, executed by order of the 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 thirty (30) days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee with respect to
Debentures, or any Debentureholder who has been a bona fide holder of a
Debenture or Debentures for at least six (6) months may, subject to the
provisions of Sections 9.9 and 9.10, on behalf of himself or herself and all
others similarly situated, petition any such court for the appointment of a
successor trustee.  Such court may
thereupon after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.


 


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


 


(i)            the
Trustee shall fail to comply with the provisions of Section 9.9 after
written request therefor by the Company or by any 


 


37

















 


Debentureholder who has been a bona fide holder of a
Debenture or Debentures for at least six months; or


 


(ii)           the
Trustee shall cease to be eligible in accordance with the provisions of Section 9.10
and shall fail to resign after written request therefor by the Company or by
any such Debentureholder; or


 


(iii)          the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the
Trustee or of its property shall be appointed or consented to, 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 with respect
to all Debentures 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 9.10, unless
the Trustee’s duty to resign is stayed as provided herein, any Debentureholder
who has been a bona fide holder of a Debenture or Debentures for at least six
months may, on behalf of that holder and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor trustee. 
Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee.


 


(c)           The holders of at least a majority in
aggregate principal amount of the Debentures at the time Outstanding may at any
time remove the Trustee by so notifying the Trustee and the Company and may
appoint a successor Trustee with the consent of the Company.


 


(d)           Any resignation or removal of the
Trustee and appointment of a successor trustee with respect to the Debentures
pursuant to any of the provisions of this Section 9.11 shall become
effective upon acceptance of appointment by the successor trustee as provided
in Section 9.12.


 


(e)           Any successor trustee appointed
pursuant to this Section 9.11 may be appointed with respect to the
Debentures, and at any time there shall be only one Trustee with respect to the
Debentures.


 


Section 9.12         Acceptance
of Appointment by Successor.


 


(a)           In case of the appointment hereunder
of a successor trustee with respect to the Debentures, every successor trustee
so appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights, powers, and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such
successor trustee all property and money held by such retiring Trustee
hereunder.


 


38














 


(b)           Upon request of any successor
trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor trustee all such rights,
powers and trusts referred to in paragraph (a) of this Section 9.12.


 


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


 


(d)           Upon acceptance of appointment by a
successor trustee as provided in this Section 9.12, the Company shall
transmit notice of the succession of such trustee hereunder by mail, first
class postage prepaid, to the Debentureholders, as their names and addresses
appear upon the Debenture Register.  If the
Company fails to transmit such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be transmitted at the expense of the Company.


 


Section 9.13         Merger,
Conversion, Consolidation or Succession to Business.  Any Person into which the Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any Person succeeding to the corporate trust business of
the Trustee, shall be the successor of the Trustee hereunder, provided that
such Person shall be qualified under the provisions of Section 9.9 and
eligible under the provisions of Section 9.10, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.  In case any Debentures shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Debentures so authenticated with the same
effect as if such successor Trustee had itself authenticated such Debentures.


 


Section 9.14         Preferential
Collection of Claims against the Company. 
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b) of
the Trust Indenture Act.  A Trustee who
has resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent included therein.


 


ARTICLE
X

CONCERNING THE DEBENTUREHOLDERS


 


Section 10.1         Evidence
of Action by the Holders.


 


(a)           Whenever
in this Indenture it is provided that the holders of at least a majority or
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 majority or specified
percentage have joined therein may be evidenced by any instrument or any number
of instruments of similar tenor executed by such holders of Debentures in
person or by agent or proxy appointed in writing.


 


(b)           If
the Company shall solicit from the Debentureholders any request, demand,
authorization, direction, notice, consent, waiver or other action, the Company 


 


39

















 


may, at its option, as
evidenced by an Officers’ Certificate, fix in advance a record date for the
determination of Debentureholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, 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 may be given before or after
the record date, but only the Debentureholders of record at the close of
business on the record date shall be deemed to be Debentureholders for the
purposes of determining whether Debentureholders 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, and
for that purpose the Outstanding Debentures shall be computed as of the record
date; provided, however, that no such authorization, agreement or
consent by such Debentureholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture
not later than six (6) months after the record date.


 


Section 10.2         Proof
of Execution by the Debentureholders.  Subject
to the provisions of Section 9.1, proof of the execution of any instrument
by a Debentureholder (such proof shall not require notarization) or such
Debentureholder’s agent or proxy and proof of the holding by any Person of any
of the Debentures shall be sufficient if made in the following manner:


 


(a)           The fact and date of the execution by
any such Person of any instrument may be proved in any reasonable manner
acceptable to the Trustee.


 


(b)           The ownership of Debentures shall be
proved by the Debenture Register of such Debentures or by a certificate of the
Debenture Registrar thereof.


 


(c)           The Trustee may require such
additional proof of any matter referred to in this Section 10.2 as it
shall deem necessary.


 


Section 10.3         Who
May Be Deemed Owners.  Prior to
the due presentment for registration of transfer of any Debenture, the Company,
the Trustee, any Paying Agent, any Authenticating Agent and any Debenture
Registrar may deem and treat the Person in whose name such Debenture shall be
registered upon the books of the Company as the absolute owner of such
Debenture (whether or not such Debenture shall be overdue and notwithstanding
any notice of ownership or writing thereon made by anyone other than the
Debenture Registrar) for the purpose of receiving payment of or on account of
the principal of and interest on such Debenture (subject to Section 2.3)
and for all other purposes; and neither the Company nor the Trustee nor any
Paying Agent nor any Authenticating Agent nor any Debenture Registrar shall be
affected by any notice to the contrary.


 


Section 10.4         Certain
Debentures Owned by Company Disregarded. 
In determining whether the holders of the requisite aggregate
principal amount of the Debentures have concurred in any direction, consent or
waiver under this Indenture, the Debentures that 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 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, except that (a) for
the purpose of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver, only Debentures that a 


 


40

















 


Responsible Officer of
the Trustee actually knows are so owned shall be so disregarded; and (b) for
purposes of this Section 10.4, the Trust shall be deemed not to be
controlled by the Company.  The
Debentures so owned that have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section 10.4, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee’s right so to act with
respect to such Debentures and that the pledgee is not a Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor.  In 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 10.5         Actions
Binding on the Future Debentureholders.  At
any time prior to (but not after) the evidencing to the Trustee, as provided in
Section 10.1, of the taking of any action by the holders of the majority
or percentage in aggregate principal amount of the Debentures specified in this
Indenture in connection with such action, any holder of a Debenture that 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,
and upon proof of holding as provided in Section 10.2, revoke such action
so far as concerns such 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 therefor, on registration of transfer thereof or in place
thereof, irrespective of whether or not any notation in regard thereto is made
upon such Debenture.  Any action taken by
the holders of the majority or percentage in aggregate principal amount of the
Debentures specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the holders of all the
Debentures.


 


ARTICLE
XI

SUPPLEMENTAL INDENTURES


 


Section 11.1         Supplemental
Indentures without the Consent of the Debentureholders.  In addition to any supplemental indenture
otherwise authorized by this Indenture, the Company and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as
then in effect), without the consent of the Debentureholders, for one or more
of the following purposes:


 


(a)           to cure any ambiguity, defect, or inconsistency
herein, or in the Debentures;


 


(b)           to comply with Article X;


 


(c)           to provide for uncertificated
Debentures in addition to or in place of certificated Debentures;


 


(d)           to add to the covenants of the
Company for the benefit of the holders of all or any of the Debentures or to
surrender any right or power herein conferred upon the Company;


 


41

















 


(e)           to add to, delete from, or revise the
conditions, limitations and restrictions on the authorized amount, terms or
purposes of issue, authentication and delivery of Debentures, as herein set
forth;


 


(f)            to make any change that does not
adversely affect the rights of any Debentureholder in any material respect;


 


(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 of the Debentures, or to add to the rights of the holders of
the Debentures;


 


(h)           to qualify or maintain the
qualification of this Indenture under the Trust Indenture Act;


 


(i)            to evidence a consolidation or
merger involving the Company as permitted under Section 12.1; or


 


(j)            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.


 


The
Trustee is hereby authorized to join with the Company in the execution of any
such supplemental indenture, and to make any
further appropriate agreements and stipulations that may be therein contained,
but the Trustee shall not be obligated to enter into any such supplemental
indenture that affects the Trustee’s own rights, duties or immunities under
this Indenture or otherwise.  Any
supplemental indenture authorized by the provisions of this Section 11.1
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 11.2.


 


Section 11.2         Supplemental
Indentures with Consent of the Debentureholders.  With the consent (evidenced as provided in Section 10.1)
of the holders of not less than a majority in aggregate principal amount of the
Debentures at the time Outstanding, the Company, when authorized by Board
Resolutions, and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as then in effect) 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 not covered by Section 11.1 the rights of the holders of the
Debentures under this Indenture; provided, however, that no such
supplemental indenture shall without the consent of the holders of each
Debenture then Outstanding and affected thereby, (a) extend the fixed
maturity of any Debentures, reduce the principal amount thereof, reduce the
rate or extend the time of payment of interest thereon, or limit the right of a
holder of Preferred Securities to institute and prosecute a Direct Action; or (b) reduce
the aforesaid percentage of Debentures, the holders of which are required to
consent to any such supplemental indenture; provided further, that if
the Debentures are held by the Trust or a trustee of the Trust, such
supplemental indenture shall not be effective until the holders of at 


 


42

















 


least a majority in
liquidation preference of Trust Securities of the Trust shall have consented to
such supplemental indenture; provided further, that if the Debentures
are held by the Trust or a trustee of the Trust and if the consent of the
holder of each Outstanding Debenture is required, such supplemental indenture
shall not be effective until each holder of the Trust Securities of the Trust
shall have consented to such supplemental indenture.  It shall not be necessary for the consent of
the Debentureholders affected thereby under this Section 11.2 to approve
the particular form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.


 


Section 11.3         Effect
of Supplemental Indentures.  Upon the
execution of any supplemental indenture pursuant to the provisions of this Article XI,
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 11.4         The
Debentures Affected by Supplemental Indentures. 
The Debentures affected by a supplemental indenture, authenticated
and delivered after the execution of such supplemental indenture pursuant to
the provisions of this Article XI, may bear a notation in form approved by
the Company, provided such form meets the requirements of any exchange upon
which the Debentures may be listed, as to any matter provided for in such
supplemental indenture.  If the Company
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 by the Company,
authenticated by the Trustee and delivered in exchange for the Debentures then
Outstanding.


 


Section 11.5         Execution
of Supplemental Indentures.


 


(a)           Upon the request of the Company,
accompanied by its Board Resolutions authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of the
consent of the Debentureholders required to consent thereto 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.  The Trustee,
subject to the provisions of Sections 9.1, may receive an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this Article XI
is authorized or permitted by, and conforms to, the terms of this Article XI
and that it is proper for the Trustee under the provisions of this Article XI
to join in the execution thereof.


 


(b)           Promptly after the execution by the
Company and the Trustee of any supplemental indenture pursuant to the
provisions of this Section 11.5, the Trustee shall transmit by mail, first
class postage prepaid, a notice, setting forth in general terms the substance
of such supplemental indenture, to the Debentureholders as their names and
addresses appear upon the Debenture Register. 
Any failure of the Trustee to mail such notice, or any defect 


 


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therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.


 


ARTICLE
XII

SUCCESSOR CORPORATION


 


Section 12.1         The
Company May Consolidate, Etc.  Nothing
contained in this Indenture or in any of the Debentures shall prevent any
consolidation or merger of the Company with or into any other corporation or
corporations (whether or not affiliated with the Company, as the case may be),
or successive consolidations or mergers in which the Company, as the case may
be, or its successor or successors shall be a party or parties, or shall
prevent any sale, conveyance, transfer or other disposition of the property of
the Company, as the case may be, or its successor or successors as an entirety,
or substantially as an entirety, to any other corporation (whether or not
affiliated with the Company, as the case may be, or its successor or
successors) authorized to acquire and operate the same; provided, however,
that the Company hereby covenants and agrees that (a) upon any such
consolidation, merger, sale, conveyance, transfer or other disposition, the due
and punctual payment, in the case of the Company, of the principal of and
interest on all of the Debentures, 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, as the case may be, shall be
expressly assumed, by supplemental indenture (which shall conform to the
provisions of the Trust Indenture Act, as then in effect) satisfactory in form
to the Trustee executed and delivered to the Trustee by the entity formed by
such consolidation, or into which the Company, as the case may be, shall have
been merged, or by the entity which shall have acquired such property; (b) in
case the Company consolidates with or merges into another Person or conveys or
transfers its properties and assets substantially as an entirety to any Person,
the successor Person is organized under the laws of the United States or any
state or the District of Columbia; and (c) immediately after giving effect
thereto, an Event of Default, and no event which, after notice or lapse of time
or both, would become an Event of Default, shall have occurred and be
continuing.


 


Section 12.2         Successor
Corporation Substituted.


 


(a)           In case of any such consolidation,
merger, sale, conveyance, transfer or other disposition and upon the assumption
by the successor corporation, by supplemental indenture, executed and delivered
to the Trustee and satisfactory in form to the Trustee, of, in the case of the
Company, the due and punctual payment of the principal of and interest on all
of the Debentures Outstanding and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by the Company,
as the case may be, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named as
the Company herein, and thereupon the predecessor corporation shall be relieved
of all obligations and covenants under this Indenture and the Debentures.


 


(b)           In case of any such consolidation,
merger, sale, conveyance, transfer or other disposition, such changes in
phraseology and form (but not in substance) may be made in the Debentures
thereafter to be issued as may be appropriate.


 


44

















 


(c)           Nothing contained in this Indenture
or in any of the Debentures shall prevent the Company from merging into itself
or acquiring by purchase or otherwise, all or any part of, the property of any
other Person (whether or not affiliated with the Company).


 


Section 12.3         Evidence
of Consolidation, Etc. to Trustee.  The
Trustee, subject to the provisions of Section 9.1, may receive an Opinion
of Counsel as conclusive evidence that any such consolidation, merger, sale,
conveyance, transfer or other disposition, and any such assumption, comply with
the provisions of this Article XII.


 


ARTICLE
XIII

SATISFACTION AND DISCHARGE


 


Section 13.1         Satisfaction
and Discharge of Indenture.  If at
any time: (a) the Company shall have delivered to the Trustee for
cancellation all Debentures theretofore authenticated (other than any
Debentures that shall have been destroyed, lost or stolen and that shall have
been replaced or paid as provided in Section 2.9) and all Debentures for
whose payment money or Governmental Obligations have theretofore been deposited
in trust or segregated and held in trust by the Company (and thereupon repaid
to the Company or discharged from such trust, as provided in Section 13.5);
or (b) all such Debentures not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit or cause to be deposited with the
Trustee as trust funds the entire amount in moneys or Governmental Obligations
sufficient, or a combination thereof sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay at maturity or upon
redemption all Debentures not theretofore delivered to the Trustee for
cancellation, including principal and interest due or to become due on such
date of maturity or date fixed for redemption, as the case may be, and if the
Company shall also pay or cause to be paid all other sums payable hereunder by
the Company; then this Indenture shall thereupon cease to be of further effect
except for the provisions of Sections 2.3, 2.7, 2.9, 5.1, 5.2, 5.3, 9.7 and
9.10, that shall survive until the date of maturity or redemption date, as the
case may be, and Sections 9.7 and 13.5, that shall survive to such date and
thereafter, and the Trustee, on demand of the Company and at the cost and
expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture.


 


Section 13.2         Discharge
of Obligations.  If at any time all
Debentures not heretofore delivered to the Trustee for cancellation or that
have not become due and payable as described in Section 13.1 shall have
been paid by the Company by depositing irrevocably with the Trustee as trust
funds moneys or an amount of Governmental Obligations sufficient in the opinion
of a nationally recognized certified public accounting firm to pay at maturity
or upon redemption all Debentures not theretofore delivered to the Trustee for
cancellation, including principal and interest due or to become due to such
date of maturity or date fixed for redemption, as the case may be, and if the
Company shall also pay or cause to be paid all other sums payable hereunder by
the Company, then after the date such moneys or Governmental Obligations, as
the case may be, are deposited with the Trustee, the obligations of the Company
under this Indenture shall cease to be of further effect except for the
provisions of Sections 2.3, 2.7, 2.9, 5.1, 5.2, 5.3, 9.7 


 


45

















 


and 13.5, that shall
survive until such Debentures shall mature and be paid.  Thereafter, Sections 9.7 and 13.5 shall
survive.


 


Section 13.3         Deposited
Moneys to Be Held in Trust.  All
monies or Governmental Obligations deposited with the Trustee pursuant to
Sections 13.1 or 13.2 shall be held in trust and shall be available for payment
as due, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), to the holders of the Debentures for the
payment or redemption of which such moneys or Governmental Obligations have
been deposited with the Trustee.


 


Section 13.4         Payment
of Monies Held by Paying Agents.  In
connection with the satisfaction and discharge of this Indenture, all moneys or
Governmental Obligations then held by any Paying Agent under the provisions of
this Indenture shall, upon demand of the Company, be paid to the Trustee and
thereupon such Paying Agent shall be released from all further liability with
respect to such moneys or Governmental Obligations.


 


Section 13.5         Repayment
to the Company.  Any monies or
Governmental Obligations deposited with any Paying Agent or the Trustee, or
then held by the Company in trust, for payment of principal of or interest on
the Debentures that are not applied but remain unclaimed by the holders of such
Debentures for at least two years after the date upon which the principal of or
interest on such Debentures shall have respectively become due and payable,
shall be repaid to the Company, as the case may be, on June 30 of each
year or (if then held by the Company) shall be discharged from such trust; and
thereupon the Paying Agent and the Trustee shall be released from all further
liability with respect to such moneys or Governmental Obligations, and the
holder of any of the Debentures entitled to receive such payment shall
thereafter, as an unsecured general creditor, look only to the Company for the
payment thereof.


 


ARTICLE
XIV

IMMUNITY OF INCORPORATORS, STOCKHOLDERS,

OFFICERS AND DIRECTORS


 


Section 14.1         No
Recourse.  No recourse under or upon
any obligation, covenant or agreement of this Indenture, or of the Debentures,
or for any claim based thereon or otherwise in respect thereof, shall be had
against any incorporator, stockholder, officer or director, past, present or
future, as such, of the Company or of any predecessor or successor corporation,
either directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever,
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of the creation
of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Debentures or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, and any and all such rights and claims against, every
such incorporator, stockholder, officer or director as such, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or 


 


46

















 


agreements contained in
this Indenture or in any of the Debentures or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration for,
the execution of this Indenture and the issuance of such Debentures.


 


ARTICLE
XV

MISCELLANEOUS PROVISIONS


 


Section 15.1         Effect
on Successors and Assigns.  All the
covenants, stipulations, promises and agreements in this Indenture contained by
or on behalf of the Company shall bind its respective successors and assigns,
whether so expressed or not.


 


Section 15.2         Actions
by Successor.  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 corresponding board,
committee or officer of any corporation that shall at the time be the lawful
sole successor of the Company.


 


Section 15.3         Surrender
of the Company Powers.  The Company
by instrument in writing executed by appropriate authority 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, as the case may be, and as to any successor corporation.


 


Section 15.4         Notices.  Except as otherwise expressly provided
herein any notice or demand that by any provision of this Indenture is required
or permitted to be given or served by the Trustee or by the holders of
Debentures to or on the Company may be given or served by being deposited first
class postage prepaid in a post-office letterbox addressed (until another
address is filed in writing by the Company with the Trustee), as follows: c/o
S.Y. Bancorp, Inc., 1040 East Main Street, Louisville, Kentucky 40206,
Attention: Chief Financial Officer.  Any
notice, election, request or demand by the Company or any Debentureholder 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 Corporate Trust Office of the
Trustee.


 


Section 15.5         Governing
Law.  This Indenture and each
Debenture shall be deemed to be a contract made under the internal laws of the
State of Delaware and for all purposes shall be construed in accordance with
the laws of said State.


 


Section 15.6         Treatment
of the Debentures as Debt.  It is
intended that the Debentures shall be treated as indebtedness and not as equity
for federal income tax purposes. The provisions of this Indenture shall be
interpreted to further this intention. 
The Company (with respect to its separate books and records), the
Trustee and, by acceptance of a Debenture, each holder of a Debenture, agree to
treat the Debentures as indebtedness of the Company and not as equity for all
tax (including without limitation, federal income tax) and financial accounting
purposes.


 


Section 15.7         Compliance
Certificates and Opinions.


 


(a)           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 


 


47

















 


Trustee an Officers’
Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in the case of any
such application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.


 


(b)           Each certificate or opinion of the
Company provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant in this Indenture shall
include (i) a statement that the Person making such certificate or opinion
has read such covenant or condition; (ii) 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; (iii) a
statement that, in the opinion of such Person, he or she has made such
examination or investigation as, in the opinion of such Person, is necessary to
enable him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (iv) a statement as to
whether or not, in the opinion of such Person, such condition or covenant has
been complied with; provided, however, that each such certificate
shall comply with the provisions of Section 314 of the Trust Indenture
Act.


 


Section 15.8         Payments on Business Days.  In any case where the date of maturity of
interest or principal of any Debenture or the date of redemption of any
Debenture shall not be a Business Day, then payment of interest or principal
may (subject to Section 2.5(b)) be made on the next succeeding Business
Day with the same force and effect as if made on the nominal date of maturity
or redemption, and no interest shall accrue for the period after such nominal
date.


 


Section 15.9         Conflict
with Trust Indenture Act.  If and to
the extent that any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.


 


Section 15.10       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 15.11       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 the Debentures, but this Indenture and the Debentures shall be
construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.


 


Section 15.12       Assignment.  The Company shall have the right at all times
to assign any of its respective 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 shall remain liable for all such
obligations.  Subject to the foregoing,
this Indenture is binding upon and inures to the benefit of the parties thereto
and their respective successors and assigns. This Indenture may not otherwise
be assigned by the parties thereto.


 


48














 


Section 15.13       Acknowledgment
of Rights; Right of Setoff.


 


(a)           The Company acknowledges that, with
respect to any Debentures held by the Trust or a trustee of the Trust, if the
Property Trustee fails to enforce its rights under this Indenture as the holder
of the Debentures held as the assets of the Trust, any holder of Preferred
Securities may institute legal proceedings directly against the Company to
enforce such Property Trustee’s rights under this Indenture without first
instituting any legal proceedings against such Property Trustee or any other
person or entity.  Notwithstanding the
foregoing, and notwithstanding the provisions of Section 7.4(a) hereof,
if an Event of Default has occurred and is continuing and such event is
attributable to the failure of the Company to pay principal or interest on the
Debentures on the date such principal or interest is otherwise payable (or in
the case of redemption, on the redemption date), the Company acknowledges that
a holder of Preferred Securities may directly institute a proceeding for
enforcement of payment to such holder of the principal of or interest on the
Debentures having a principal amount equal to the aggregate liquidation amount
of the Preferred Securities of such holder on or after the respective due date
specified in the Debentures.


 


(b)           Notwithstanding anything to the
contrary contained in this Indenture, the Company shall have the right to
setoff any payment it is otherwise required to make hereunder in respect of any
Trust Securities to the extent that the Company has previously made, or is
concurrently making, a payment to the holder of such Trust Securities under the
Preferred Securities Guarantee or in connection with a proceeding for
enforcement of payment of the principal of or interest on the Debentures
directly brought by holders of any Trust Securities.


 


Section 15.14       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.


 


ARTICLE
XVI

SUBORDINATION OF THE DEBENTURES


 


Section 16.1         Agreement
to Subordinate.  The Company
covenants and agrees, and each holder of the Debentures issued hereunder by
such holder’s acceptance thereof likewise covenants and agrees, that all the
Debentures shall be issued subject to the provisions of this Article XVI;
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 interest on all the Debentures issued hereunder 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 Debt, Subordinated Debt and
Additional Senior Obligations of the Company (collectively, “Senior
Indebtedness”) to the extent provided herein, whether outstanding at the date
of this Indenture or thereafter incurred. 
No provision of this Article XVI shall prevent the occurrence of
any default or Event of Default hereunder.


 


Section 16.2         Default
on Senior Indebtedness.  Upon the
occurrence and any continuation of any default by the Company in the payment of
principal, premium, interest or any other payment due on any Senior
Indebtedness, or in the event that the maturity of any 


 


49

















 


Senior Indebtedness has
been accelerated because of such a default, or in the event of the commencement
of a judicial proceeding with regard to such an alleged default or event of
default, then, in any case, no payment shall be made by the Company with
respect to the principal (including redemption payments) of 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 sentence of this Section 16.2,
such payment shall 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 the Senior Indebtedness.


 


Section 16.3         Liquidation;
Dissolution; Bankruptcy.


 


(a)           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 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 or interest on the
Debentures; and upon any such dissolution or winding-up or liquidation or
reorganization, any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the holders of the Debentures or the Trustee would be entitled to receive
from the Company, except for the provisions of this Article XVI, 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
holders of the Debentures 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 holders of the
Debentures or to the Trustee.


 


(b)           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 


 


50

















 


Indebtedness, as the case
may be, 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.


 


(c)           For purposes of this Article XVI,
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 XVI with respect to the Debentures to the payment
of all Senior Indebtedness, as the case may be, 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 XII
shall not be deemed a dissolution, winding-up, liquidation or reorganization
for the purposes of this Section 16.3 if such other corporation shall, as
a part of such consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article XII. 
Nothing in Section 16.2 or in this Section 16.3 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 9.7.


 


Section 16.4         Subrogation.


 


(a)           Subject to the payment in full of all
Senior Indebtedness, the rights of the holders of the Debentures shall be
subrogated to the rights of the holders of such Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company, as
the case may be, applicable to such Senior Indebtedness until the principal of
and interest on the Debentures shall be paid in full; and, for the purposes of
such subrogation, no payments or distributions to the holders of such Senior
Indebtedness of any cash, property or securities to which the holders of the
Debentures or the Trustee would be entitled except for the provisions of this Article XVI,
and no payment over pursuant to the provisions of this Article XVI to or
for the benefit of the holders of such Senior Indebtedness by holders of the
Debentures 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 by the Company to or on account of such
Senior Indebtedness.  It is understood
that the provisions of this Article XVI are and are intended solely for
the purposes of defining the relative rights of the holders of the Debentures,
on the one hand, and the holders of such Senior Indebtedness on the other hand.


 


(b)           Nothing contained in this Article XVI
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 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, as the case may be, other than the holders of Senior
Indebtedness, as the case may be, nor shall anything herein or therein prevent 


 


51

















 


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 XVI of the holders of such Senior Indebtedness in respect of
cash, property or securities of the Company, as the case may be, received upon
the exercise of any such remedy.


 


(c)           Upon any payment or distribution of
assets of the Company referred to in this Article XVI, the Trustee,
subject to the provisions of Article IX, and the holders of the Debentures
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 holders
of the Debentures, for the purposes of ascertaining the Persons entitled to
participate in such distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, as the case may be, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article XVI.


 


Section 16.5         The
Trustee to Effectuate Subordination. 
Each holder of Debentures by such holder’s acceptance thereof authorizes
and directs the Trustee on such holder’s behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this Article XVI
and appoints the Trustee such holder’s attorney-in-fact for any and all such
purposes.


 


Section 16.6         Notice
by the Company.


 


(a)           The Company shall give prompt written
notice to a Responsible Officer of the Trustee of any fact known to the Company
that would prohibit the making of any payment of monies to or by the Trustee in
respect of the Debentures pursuant to the provisions of this Article XVI.  Notwithstanding the provisions of this Article XVI
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 XVI, unless and until a Responsible Officer
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 Section 9.1, 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 16.6 at
least two Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the principal of or 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 two Business Days prior to such
date.


 


(b)           The Trustee, subject to the
provisions of Section 9.1, shall be entitled to conclusively rely on the
delivery to it of a written notice by a Person representing himself or herself
to be a holder of Senior Indebtedness (or a trustee on behalf of such holder)
to establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee on 


 


52

















 


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 XVI,
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 XVI, 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 16.7         Rights
of the Trustee; Holders of the Senior Indebtedness.


 


(a)           The Trustee in its individual
capacity shall be entitled to all the rights set forth in this Article XVI
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.  The Trustee’s right to compensation and
reimbursement of expenses as set forth in Section 9.7 shall not be subject
to the subordination provisions of this Article XVI.


 


(b)           With respect to the holders of the
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 XVI,
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 Section 9.1, the Trustee shall not be liable to any holder
of such Senior Indebtedness if it shall pay over or deliver to holders of
Debentures, 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 XVI
or otherwise.


 


Section 16.8         Subordination
May not Be Impaired.


 


(a)           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.


 


(b)           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 holders of the Debentures, without incurring responsibility to
the holders of the Debentures and without impairing or releasing the
subordination provided in this Article XVI 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 


 


53

















 


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


 


* 
*  *  *  *


 


54

















 


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


 


 


	
   

  	
  S.Y. BANCORP, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  David P. Heintzman

  
	
   

  	
  Title:

  	
  Chairman and Chief Executive Officer

  



 


 


	
  Attest:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


 


	
  COMMONWEALTH OF KENTUCKY

  	
  )

  
	
   

  	
  ) ss

  
	
  COUNTY OF JEFFERSON

  	
  )

  



 


On this           
day of December, 2008, before me appeared David P. Heintzman, to me personally
known, who, being by me duly sworn, did say that he is the Chairman and Chief
Executive Officer of S.Y. Bancorp, Inc., and that the seal affixed to said
instrument is the corporate seal of said corporation, and that said instrument
was signed and sealed on behalf of said corporation by authority of its Board
of Directors and said David P. Heintzman acknowledged said instrument to be the
free act and deed of said corporation.


 


In testimony whereof I have hereunto set my hand and affixed my
official seal at my office in said county and state the day and year last above
written.


 


 


	
   

  	
   

  
	
   

  	
  Notary Public

  
	
   

  	
   

  
	
   

  	
  My term expires:

  	
   

  



 


55

















 


	
   

  	
  WILMINGTON TRUST COMPANY, as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


	
  Attest:

  
	
   

  
	
   

  	
   

  



 


 


	
  STATE OF DELAWARE

  	
  )

  
	
   

  	
  ) ss

  
	
  COUNTY OF

  	
  )

  



 


On this          day of
December, 2008, before me appeared
                                                  ,
to me personally known, who, being by me duly sworn, did say that he is the
                                          
of Wilmington Trust Company, and that the seal affixed to said instrument is
the corporate seal of said corporation, and that said instrument was signed and
sealed on behalf of said corporation by authority of its Board of Directors and
said                                                           ,
acknowledged said instrument to be the free act and deed of said corporation.


 


In testimony whereof I have hereunto set my hand and affixed my
official seal at my office in said county and commonwealth the day and year
last above written.


 


 


	
   

  	
   

  
	
   

  	
  Notary Public

  
	
   

  	
   

  
	
   

  	
  My term expires:

  	
   

  



 


56

















 


EXHIBIT A


(Form of Face of Debenture)


 


	
  No.

  	
   

  	
  $30,900,000.00

  
	
  CUSIP
  No.                                               .

  	
   

  	
   

  



 


S.Y. BANCORP, INC.


[          %]
SUBORDINATED DEBENTURE


DUE 2038


 


S.Y. Bancorp, Inc., a Kentucky corporation (the “Company,” which
term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Wilmington Trust
Company, as Property Trustee for S.Y. Bancorp Capital Trust II, or registered
assigns, the principal sum of Thirty Million Nine Hundred Thousand Dollars
($30,900,000.00) on [December 31, 2038] (the “Stated Maturity”), and to
pay interest on said principal sum from [December 31, 2008], 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 31, June 30, September 30
and December 31 of each year commencing [March 31, 2009], at the rate
of [            %]
per annum until the principal hereof shall have become due and payable, and on
any overdue principal and (without duplication and to the extent that payment
of such interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum compounded quarterly.  The amount of interest payable on any Interest
Payment Date shall be computed on the basis of a 360-day year of twelve 30-day
months.  The amount of interest for any
partial period shall be computed on the basis of the number of days elapsed in
a 360-day year of twelve 30-day months. 
In the event that any date on which interest is payable on this
Debenture is not a business day, then payment of interest payable on such date
shall be made on the next succeeding day that 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, payment of such
interest will be made on the immediately preceding business day, in each case,
with the same force and effect as if made on such date.  The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date shall, as
provided in the Indenture, be paid to the person in whose name this Debenture
(or one or more Predecessor Debentures, as defined in said Indenture) is
registered at the close of business on the regular record date for such
interest installment, which shall be the close of business on the business day
next preceding such Interest Payment Date unless otherwise provided in the
Indenture.  Any such interest installment
not punctually paid or duly provided for shall forthwith cease to be payable to
the registered holders on such regular record date and may be paid to the
Person in whose name this Debenture (or one or more Predecessor Debentures) is
registered at the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice thereof shall be
fixed by the Trustee for the payment of such defaulted interest, notice thereof
shall be given to the registered holders of the Debentures not less than 10 days
prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
or quotation system on or in which the Debentures may be listed or quoted, and
upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.  The principal
of and the interest on this Debenture shall be payable at the office or agency
of the Trustee maintained for that purpose in 


 

















 


any coin or currency of the United States of America that at the time
of payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the
Company by check mailed to the registered holder at such address as shall
appear in the Debenture Register. 
Notwithstanding the foregoing, so long as the holder of this Debenture
is the Property Trustee, the payment of the principal of and interest on this
Debenture shall be made at such place and to such account as may be designated
by the Trustee.


 


The Stated Maturity may be shortened at any time by the Company to any
date not earlier than [December 31, 2013], subject to the Company having
received prior approval of the Federal Reserve if then required under
applicable capital guidelines, policies or regulations of the Federal Reserve.


 


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 (as defined in the Indenture).  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 continued provisions shall for all purposes have the same
effect as though fully set forth at this place.


 














 


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


 


Dated: [December       , 2008]


 


 


	
   

  	
  S.Y. BANCORP, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  David P. Heintzman

  
	
   

  	
  Title:

  	
  Chairman and Chief Executive Officer

  



 


	
  Attest:

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
  Nancy B. Davis

  	
   

  
	
  Title:

  	
  Executive Vice President and

  	
   

  
	
   

  	
  Chief Financial Officer

  	
   

  



 

















 


[Form of Certificate of Authentication]


 


CERTIFICATE OF AUTHENTICATION


 


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


 


 


Dated:  [December         ,
2008]


 


	
  Wilmington Trust Company,

  	
   

  	
   

  
	
  as Trustee

  	
   

  	
  or Authenticating Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
        Authorized Signatory

  	
   

  	
   

  



 

















 


[Form of Reverse of Debenture]


 


[            %]
SUBORDINATED DEBENTURE DUE 2038


 


(CONTINUED)


 


This Debenture is one of the subordinated debentures of the Company
(herein sometimes referred to as the “Debentures”), all issued or to be issued
under and pursuant to an Indenture dated as of [December         ,
2008] (the “Indenture”) duly executed and delivered between the Company and
Wilmington Trust Company, as Trustee (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.


 


Because of the occurrence and continuation of a Special Event (as
defined in the Indenture), in certain circumstances, this Debenture may become
due and payable at the principal amount together with any interest accrued
thereon (the “Redemption Price”).  The
Redemption Price shall be paid prior to 12:00 noon Eastern Standard Time, on
the date of such redemption or at such earlier time as the Company
determines.  The Company shall have the
right as set forth in the Indenture to redeem this Debenture at the option of
the Company, without premium or penalty, in whole or in part at any time on or
after [December 31, 2013] (an “Optional Redemption”), or at any time in
certain circumstances upon the occurrence of a Special Event, at a Redemption
Price equal to 100% of the principal amount hereof plus any accrued but unpaid
interest hereon, to the date of such redemption.  Any redemption pursuant to this paragraph
shall be made upon not less than thirty (30) days’ nor more than sixty (60)
days’ notice, at the Redemption Price. 
The Redemption Price shall be paid at the time and in the manner
provided therefor in the Indenture.  If
the Debentures are only partially redeemed by the Company pursuant to an
Optional Redemption, the Debentures shall be redeemed pro rata or by lot or by
any other method utilized by the Trustee as described in the Indenture.  In the event of an Optional Redemption of
this Debenture in part only, a new Debenture or Debentures for the unredeemed
portion hereof shall be issued in the name of the holder hereof upon the
cancellation hereof.


 


In case an Event of Default (as defined in the Indenture) shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration 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 (as
defined in the Indenture), to execute supplemental indentures for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying in
any manner the rights of the holders of the Debentures; provided, however,
that no such supplemental indenture shall, except as provided in the Indenture,
(i) extend the fixed maturity of the Debentures, reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon without the consent of the holder of each Debenture so affected 


 

















 


thereby; or (ii) reduce the aforesaid percentage of the
Debentures, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holder of each Debenture
then Outstanding and so affected thereby. 
The Indenture also contains provisions permitting the holders of at
least a majority in aggregate principal amount of the Debentures at the time
Outstanding, on behalf of all of the holders of the Debentures, to waive any
past default in the performance of any of the covenants contained in the
Indenture, or established pursuant to the Indenture, and its consequences,
except a default in the payment of the principal of or interest on any of the
Debentures. Any such consent or waiver by the registered holder of this
Debenture (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such holder and upon all future holders and owners of this
Debenture and of any Debenture issued in exchange herefor or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Debenture.


 


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 and interest on this
Debenture at the time and place and at the rate and in the manner herein
prescribed.


 


The Company, as further described in the Indenture, shall have the
right at any time during the term of the Debentures and from time to time to
defer payments of interest by extending the interest payment period of such
Debentures for up to twenty (20) consecutive quarters (each, an “Extension
Period”), at the end of which period the Company shall pay all interest then
accrued (together with interest thereon at the rate specified for the
Debentures to the extent that payment of such interest is enforceable under
applicable law).  Before the termination
of any such Extension Period, so long as no Event of Default shall have
occurred and be continuing, the Company may further extend such Extension
Period, provided that such Extension Period together with all such further
extensions thereof shall not exceed twenty (20) consecutive quarters, extend
beyond [December 31, 2038], or end on a date other than an Interest
Payment Date. At the termination of any such Extension Period and upon the
payment of all Deferred Payments then due, the Company may commence a new
Extension Period.


 


As provided in the Indenture and subject to certain limitations therein
set forth, this Debenture is transferable by the registered holder hereof on
the Debenture Register (as defined in the Indenture) of the Company, upon
surrender of this Debenture for registration of transfer at the office or
agency of the Trustee accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company or the Trustee duly executed by
the registered holder hereof or his or her attorney duly authorized in writing,
and thereupon one or more new Debentures of authorized denominations and for
the same aggregate principal amount shall be issued to the designated
transferee or transferees.  No service
charge shall be made for any such transfer, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
relation thereto.


 


Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any Paying Agent (as defined in the
Indenture) and the Debenture Registrar may deem and treat the registered holder
hereof as the absolute owner hereof (whether or not this Debenture shall be
overdue and notwithstanding any notice of ownership or writing hereon made by
anyone 


 

















 


other than the Debenture Registrar) for the purpose of receiving
payment of or on account of the principal hereof and interest due hereon and
for all other purposes, and neither the Company nor the Trustee nor any Paying
Agent nor any Debenture Registrar shall be affected by any notice to the contrary.


 


No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.


 


The Debentures are issuable only in registered form without coupons in
denominations of $10 and any integral multiple thereof (or such other
denominations and any integral multiple thereof as may be deemed necessary by
the Company for the purpose of maintaining the eligibility of the Debentures
for listing on the NASDAQ Global Select Market or any successor thereto).


 


All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.