exv4w1



 






Exhibit 4.1




 

 






FCB BANCORP,

as Issuer




INDENTURE




Dated as of September 30, 2005




WILMINGTON TRUST COMPANY,

as Trustee




FIXED/FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST

DEBENTURES




DUE 2035




 

 






 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 
	ARTICLE I. DEFINITIONS	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 1.1.
	 	Definitions
	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE II. DEBENTURES	 	 	8	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 2.1.
	 	Authentication and Dating
	 	 	8	 
	 

	 	Section 2.2.
	 	Form of Trustee’s Certificate of Authentication
	 	 	9	 
	 

	 	Section 2.3.
	 	Form and Denomination of Debentures
	 	 	9	 
	 

	 	Section 2.4.
	 	Execution of Debentures
	 	 	9	 
	 

	 	Section 2.5.
	 	Exchange and Registration of Transfer of Debentures
	 	 	10	 
	 

	 	Section 2.6.
	 	Mutilated, Destroyed, Lost or Stolen Debentures
	 	 	12	 
	 

	 	Section 2.7.
	 	Temporary Debentures
	 	 	12	 
	 

	 	Section 2.8.
	 	Payment of Interest and Additional Interest
	 	 	13	 
	 

	 	Section 2.9.
	 	Cancellation of Debentures Paid, etc
	 	 	14	 
	 

	 	Section 2.10.
	 	Computation of Interest
	 	 	14	 
	 

	 	Section 2.11.
	 	Extension of Interest Payment Period
	 	 	15	 
	 

	 	Section 2.12.
	 	CUSIP Numbers
	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE III. PARTICULAR COVENANTS OF THE COMPANY	 	 	17	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 3.1.
	 	Payment of Principal, Premium and Interest; Agreed Treatment of the Debentures
	 	 	17	 
	 

	 	Section 3.2.
	 	Offices for Notices and Payments, etc
	 	 	17	 
	 

	 	Section 3.3.
	 	Appointments to Fill Vacancies in Trustee’s Office
	 	 	18	 
	 

	 	Section 3.4.
	 	Provision as to Paying Agent
	 	 	18	 
	 

	 	Section 3.5.
	 	Certificate to Trustee
	 	 	19	 
	 

	 	Section 3.6.
	 	Additional Sums
	 	 	19	 
	 

	 	Section 3.7.
	 	Compliance with Consolidation Provisions
	 	 	19	 
	 

	 	Section 3.8.
	 	Limitation on Dividends
	 	 	19	 
	 

	 	Section 3.9.
	 	Covenants as to the Trust
	 	 	20	 
	 

	 	Section 3.10.
	 	Additional Junior Indebtedness
	 	 	20	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IV. SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE	 	 	20	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 4.1.
	 	Securityholders’ Lists
	 	 	20	 
	 

	 	Section 4.2.
	 	Preservation and Disclosure of Lists
	 	 	21	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE V. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT	 	 	22	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 5.1.
	 	Events of Default
	 	 	22	 
	 

	 	Section 5.2.
	 	Payment of Debentures on Default; Suit Therefor
	 	 	23	 
	 

	 	Section 5.3.
	 	Application of Moneys Collected by Trustee
	 	 	25	 
	 

	 	Section 5.4.
	 	Proceedings by Securityholders
	 	 	25	 
	 

	 	Section 5.5.
	 	Proceedings by Trustee
	 	 	25	 
	 

	 	Section 5.6.
	 	Remedies Cumulative and Continuing; Delay or Omission Not a Waiver
	 	 	26	 






i









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 5.7.
	 	Direction of Proceedings and Waiver of Defaults by Majority of Securityholders
	 	 	26	 
	 

	 	Section 5.8.
	 	Notice of Defaults
	 	 	26	 
	 

	 	Section 5.9.
	 	Undertaking to Pay Costs
	 	 	27	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VI. CONCERNING THE TRUSTEE	 	 	27	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 6.1.
	 	Duties and Responsibilities of Trustee
	 	 	27	 
	 

	 	Section 6.2.
	 	Reliance on Documents, Opinions, etc
	 	 	28	 
	 

	 	Section 6.3.
	 	No Responsibility for Recitals, etc
	 	 	29	 
	 

	 	Section 6.4.
	 	Trustee, Authenticating Agent, Paying Agents, Transfer Agents or Registrar May

Own Debentures
	 	 	29	 
	 

	 	Section 6.5.
	 	Moneys to be Held in Trust
	 	 	29	 
	 

	 	Section 6.6.
	 	Compensation and Expenses of Trustee
	 	 	29	 
	 

	 	Section 6.7.
	 	Officers’ Certificate as Evidence
	 	 	30	 
	 

	 	Section 6.8.
	 	Eligibility of Trustee
	 	 	30	 
	 

	 	Section 6.9.
	 	Resignation or Removal of Trustee
	 	 	31	 
	 

	 	Section 6.10.
	 	Acceptance by Successor Trustee
	 	 	32	 
	 

	 	Section 6.11.
	 	Succession by Merger, etc
	 	 	32	 
	 

	 	Section 6.12.
	 	Authenticating Agents
	 	 	33	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VII. CONCERNING THE SECURITYHOLDERS	 	 	33	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 7.1.
	 	Action by Securityholders
	 	 	33	 
	 

	 	Section 7.2.
	 	Proof of Execution by Securityholders
	 	 	34	 
	 

	 	Section 7.3.
	 	Who Are Deemed Absolute Owners
	 	 	34	 
	 

	 	Section 7.4.
	 	Debentures Owned by Company Deemed Not Outstanding
	 	 	34	 
	 

	 	Section 7.5.
	 	Revocation of Consents; Future Holders Bound
	 	 	35	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VIII. SECURITYHOLDERS’ MEETINGS	 	 	35	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 8.1.
	 	Purposes of Meetings
	 	 	35	 
	 

	 	Section 8.2.
	 	Call of Meetings by Trustee
	 	 	35	 
	 

	 	Section 8.3.
	 	Call of Meetings by Company or Securityholders
	 	 	36	 
	 

	 	Section 8.4.
	 	Qualifications for Voting
	 	 	36	 
	 

	 	Section 8.5.
	 	Regulations
	 	 	36	 
	 

	 	Section 8.6.
	 	Voting
	 	 	36	 
	 

	 	Section 8.7.
	 	Quorum; Actions
	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IX. SUPPLEMENTAL INDENTURES	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 9.1.
	 	Supplemental Indentures without Consent of Securityholders
	 	 	37	 
	 

	 	Section 9.2.
	 	Supplemental Indentures with Consent of Securityholders
	 	 	39	 
	 

	 	Section 9.3.
	 	Effect of Supplemental Indentures
	 	 	39	 
	 

	 	Section 9.4.
	 	Notation on Debentures
	 	 	39	 
	 

	 	Section 9.5.
	 	Evidence of Compliance of Supplemental Indenture to be Furnished to Trustee
	 	 	40	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE X. REDEMPTION OF SECURITIES	 	 	40	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 10.1.
	 	Optional Redemption
	 	 	40	 
	 

	 	Section 10.2.
	 	Special Event Redemption
	 	 	40	 
	 

	 	Section 10.3.
	 	Notice of Redemption; Selection of Debentures
	 	 	40	 
	 

	 	Section 10.4.
	 	Payment of Debentures Called for Redemption
	 	 	41	 






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	 	 	 	 	 	 	Page
	ARTICLE XI. CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE	 	 	41	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 11.1.
	 	Company May Consolidate, etc., on Certain Terms
	 	 	41	 
	 

	 	Section 11.2.
	 	Successor Entity to be Substituted
	 	 	42	 
	 

	 	Section 11.3.
	 	Opinion of Counsel to be Given to Trustee
	 	 	42	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XII. SATISFACTION AND DISCHARGE OF INDENTURE	 	 	42	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 12.1.
	 	Discharge of Indenture
	 	 	42	 
	 

	 	Section 12.2.
	 	Deposited Moneys to be Held in Trust by Trustee
	 	 	43	 
	 

	 	Section 12.3.
	 	Paying Agent to Repay Moneys Held
	 	 	43	 
	 

	 	Section 12.4.
	 	Return of Unclaimed Moneys
	 	 	43	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XIII. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS	 	 	43	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 13.1.
	 	Indenture and Debentures Solely Corporate Obligations
	 	 	43	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XIV. MISCELLANEOUS PROVISIONS	 	 	44	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 14.1.
	 	Successors
	 	 	44	 
	 

	 	Section 14.2.
	 	Official Acts by Successor Entity
	 	 	44	 
	 

	 	Section 14.3.
	 	Surrender of Company Powers
	 	 	44	 
	 

	 	Section 14.4.
	 	Addresses for Notices, etc
	 	 	44	 
	 

	 	Section 14.5.
	 	Governing Law
	 	 	44	 
	 

	 	Section 14.6.
	 	Evidence of Compliance with Conditions Precedent
	 	 	44	 
	 

	 	Section 14.7.
	 	Table of Contents, Headings, etc
	 	 	45	 
	 

	 	Section 14.8.
	 	Execution in Counterparts
	 	 	45	 
	 

	 	Section 14.9.
	 	Separability
	 	 	45	 
	 

	 	Section 14.10.
	 	Assignment
	 	 	45	 
	 

	 	Section 14.11.
	 	Acknowledgment of Rights
	 	 	45	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XV. SUBORDINATION OF DEBENTURES	 	 	45	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 15.1.
	 	Agreement to Subordinate
	 	 	45	 
	 

	 	Section 15.2.
	 	Default on Senior Indebtedness
	 	 	46	 
	 

	 	Section 15.3.
	 	Liquidation, Dissolution, Bankruptcy
	 	 	46	 
	 

	 	Section 15.4.
	 	Subrogation
	 	 	47	 
	 

	 	Section 15.5.
	 	Trustee to Effectuate Subordination
	 	 	48	 
	 

	 	Section 15.6.
	 	Notice by the Company
	 	 	48	 
	 

	 	Section 15.7.
	 	Rights of the Trustee; Holders of Senior Indebtedness
	 	 	48	 
	 

	 	Section 15.8.
	 	Subordination May Not Be Impaired
	 	 	49	 
	 
	 	 	 	 	 	 	 	 
	Exhibit	 	A Form of Fixed/Floating Rate Junior Subordinated Deferrable Interest Debenture
	Exhibit	 	B Form of Certificate to Trustee






iii









 






     THIS INDENTURE, dated as of September 30, 2005, between FCB Bancorp, a California
corporation (the “Company”), and Wilmington Trust Company, a Delaware banking corporation,
as debenture trustee (the “Trustee”).



WITNESSETH:




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



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



     NOW, THEREFORE, This Indenture Witnesseth:



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



ARTICLE I.

DEFINITIONS




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



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



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



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



1









 







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



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



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



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



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



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



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



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



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



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



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



2









 







the amount which may now or hereafter qualify for treatment as Tier
1 Capital under applicable capital adequacy guidelines; provided further,
however, that the distribution of Debentures in connection with the liquidation of the
Trust shall not in and of itself constitute a Capital Treatment Event unless such liquidation shall
have occurred in connection with a Tax Event or an Investment Company Event.



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



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



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



     “Comparable Treasury Issue” means with respect to any Special Redemption Date the
United States Treasury security selected by the Quotation Agent as having a maturity comparable to
the Fixed Rate Period Remaining Life that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the Fixed Rate Period Remaining Life. If no United States Treasury security
has a maturity which is within a period from three months before to three months after the Interest
Payment Date in December 2010, the two most closely corresponding fixed, non-callable United States
Treasury securities, as selected by the Quotation Agent, shall be used as the Comparable Treasury
Issue, and the Treasury Rate shall be interpolated or extrapolated on a straight-line basis,
rounding to the nearest month using such securities.



     “Comparable Treasury Price” means (a) the average of five Reference Treasury Dealer
Quotations for such Special Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (b) if the Quotation Agent obtains fewer than five such Reference
Treasury Dealer Quotations, the average of all such Quotations.



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



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



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



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



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



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



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



3









 





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



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



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



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



     “Fixed Rate Period Remaining Life” means, with respect to any Debenture, the period
from the Special Redemption Date for such Debenture to the Interest Payment Date in December 2010.



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



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



     “Interest Payment Date” means March 15, June 15, September 15 and December 15 of each
year during the term of this Indenture, or if such day is not a Business Day, then the next
succeeding Business Day (it being understood that interest accrues for any such non-Business Day
during the applicable Distribution Period, beginning on or after December 15, 2010), commencing in
December 2005.



     “Interest Rate” means for the Distribution Period beginning on (and including) the
date of original issuance and ending on (but excluding) the Interest Payment Date in December 2010
the rate per annum of [RATE]%, and for each Distribution Period beginning on or after the Interest
Payment Date in December 2010, the Coupon Rate for such Distribution Period.



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



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



     “Maturity Date” means December 15, 2035.



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



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



4









 





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



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



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



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



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



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



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



     “Primary Treasury Dealer” means either a nationally recognized primary United States
Government securities dealer or an entity of recognized standing in matters pertaining to the
quotation of treasury securities that is reasonably acceptable to the Company and the Trustee.



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



     “Quotation Agent” means a designee of the Institutional Trustee who shall be a Primary
Treasury Dealer.



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



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



     “Reference Treasury Dealer” means (i) the Quotation Agent and (ii) any other Primary
Treasury Dealer selected by the Trustee after consultation with the Company.



5









 





     “Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Quotation Agent by such Reference Treasury Dealer at
5:00 p.m., New York City time, on the third Business Day preceding such Redemption Date.



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



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



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



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



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



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



     “Special Redemption Price” means (a) if the Special Redemption Date occurs before the
Interest Payment Date in December 2010, the greater of (i) 107.5% of the principal amount of the
Debentures, plus accrued and unpaid interest (including Additional Interest) on the Debentures to
the Special Redemption Date, or (ii) as determined by the Quotation Agent, (A) the sum of the
present values of the scheduled payments of principal and interest on the Debentures during the
Fixed Rate Period Remaining Life of the Debentures (assuming the Debentures matured on the Interest
Payment Date in December 2010) discounted to the Special Redemption Date on a quarterly basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus (B) accrued
and unpaid interest (including Additional Interest) on the Debentures to such Special Redemption
Date, or (b) if the Special Redemption Date occurs on or after the Interest Payment Date in
December 2010, 100% of the principal amount of the Debentures being redeemed, plus accrued and
unpaid interest (including any Additional Interest) on such Debentures to the Special Redemption
Date.



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



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



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



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



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     “Treasury Rate” means (i) the yield, under the heading which represents the average
for the week immediately prior to the date of calculation, appearing in the most recently published
statistical release designated H.15 (519) or any successor publication which is published weekly by
the Federal Reserve and which establishes yields on actively traded United States Treasury
securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the
maturity corresponding to the Fixed Rate Period Remaining Life (if no maturity is within three
months before or after the Fixed Rate Period Remaining Life, yields for the two published
maturities most closely corresponding to the Fixed Rate Period Remaining Life shall be determined
and the Treasury Rate shall be interpolated or extrapolated from such yields on a straight-line
basis, rounding to the nearest month) or (ii) if such release (or any successor release) is not
published during the week preceding the calculation date or does not contain such yields, the rate
per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such Special Redemption Date. The
Treasury Rate shall be calculated by the Quotation Agent on the third Business Day preceding the
Special Redemption Date.



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



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



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



ARTICLE II.

DEBENTURES




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



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



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




     (1) that such Debentures, when authenticated and delivered by the Trustee and
issued by the Company in each case in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, subject to or limited by applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership, moratorium and other
statutory or



8









 







decisional laws relating to or affecting creditors’ rights or the
reorganization of financial institutions (including, without limitation, preference
and fraudulent conveyance or transfer laws), heretofore or hereafter enacted or in
effect, affecting the rights of creditors generally; and




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



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



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



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



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



	 	 	 	 	 	 	 
	 	 	WILMINGTON TRUST COMPANY, as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	Authorized Signer	 	 






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



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



     In case any officer of the Company who shall have signed any of the Debentures shall cease to
be such officer before the Debentures so signed shall have been authenticated and delivered by the
Trustee or



9









 







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



     Every Debenture shall be dated the date of its authentication.



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



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



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



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



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



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



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



10









 





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



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



11









 





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



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



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



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



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



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



12









 







definitive Debentures and thereupon any or all temporary Debentures may be
surrendered in exchange therefor, at the principal corporate trust office of the Trustee or at any
office or agency maintained by the Company for such purpose as provided in Section 3.2, and the
Trustee or the Authenticating Agent
shall authenticate and make available for delivery in exchange
for such temporary Debentures a like aggregate principal amount of such definitive Debentures.
Such exchange shall be made by the Company at its own expense and without any charge therefor
except that in case of any such exchange involving a registration of transfer the Company may
require payment of a sum sufficient to cover any tax, fee or other governmental charge that may be
imposed in relation thereto. Until so exchanged, the temporary Debentures shall in all respects be
entitled to the same benefits under this Indenture as definitive Debentures authenticated and
delivered hereunder.



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



     Each Debenture shall bear interest for the period beginning on (and including) the date of
original issuance and ending on (but excluding) the Interest Payment Date in December 2010 at a
rate per annum of [RATE]%, and shall bear interest for each successive Distribution Period
beginning on or after the Interest Payment Date in December 2010 at a rate per annum equal to the
3-Month LIBOR, determined as described in Section 2.10, plus 1.55% (the “Coupon Rate”),
applied to the principal amount thereof, until the principal thereof becomes due and payable, and
on any overdue principal and to the extent that payment of such interest is enforceable under
applicable law (without duplication) on any overdue installment of interest (including Additional
Interest) at the Interest Rate in effect for each applicable period compounded quarterly. Interest
shall be payable (subject to any relevant Extension Period) quarterly in arrears on each Interest
Payment Date with the first installment of interest to be paid on the Interest Payment Date in
December 2005.



     Any interest on any Debenture, including Additional Interest, that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the registered holder on the relevant regular
record date by virtue of having been such holder; and such Defaulted Interest shall be paid by the
Company to the Persons in whose names such Debentures (or their respective Predecessor Securities)
are registered at the close of business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company shall notify the Trustee in
writing at least 25 days prior to the date of the proposed payment of the amount of Defaulted
Interest proposed to be paid on each such Debenture and
the date of the proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust for the benefit of
the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted Interest which shall not be more
than 15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such special record date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the special record date
therefor to be mailed, first class postage prepaid, to each Securityholder at its address as it
appears in the Debenture Register, not less than 10 days prior to such special record date. Notice
of the proposed payment of such Defaulted Interest and the special record date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in



13









 







whose names such
Debentures (or their respective Predecessor Securities) are registered on such special record date
and shall be no longer payable.



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



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



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



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



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



     Section 2.10. Computation of Interest. The amount of interest payable (i) for any
Distribution Period commencing on or after the date of original issuance but before the Interest
Payment Date in December 2010 will be computed on the basis of a 360-day year of twelve 30-day
months, and (ii) for the Distribution Period commencing on the Interest Payment Date in December
2010 and each succeeding Distribution Period will be calculated by applying the Interest Rate to
the principal amount outstanding at the commencement of the Distribution Period on the basis of the
actual number of days in the Distribution Period concerned divided by 360. All percentages
resulting from any calculations on the Debentures will be rounded, if necessary, to the nearest
one hundred-thousandth of a percentage point, with five one-millionths of a percentage point
rounded upward (e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or .0987655), and all
dollar amounts used in or resulting from such calculation will be rounded to the nearest cent (with
one-half cent being rounded upward)).



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




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



14









 






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




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




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



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



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



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



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



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



     Section 2.11. Extension of Interest Payment Period. So long as no Acceleration Event
of Default has occurred and is continuing, the Company shall have the right, from time to time, and
without



15









 







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



     Section 2.12. CUSIP Numbers. The Company in issuing the Debentures may use “CUSIP”
numbers (if then generally in use), and, if so, the Trustee shall use CUSIP numbers in notices of



16









 







redemption as a convenience to Securityholders; provided, however, that any such notice may state
that no representation is made as to the correctness of such numbers either as printed on the
Debentures or as contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Debentures, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will promptly notify the
Trustee in writing of any change in the CUSIP numbers.



ARTICLE III.

PARTICULAR COVENANTS OF THE COMPANY




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



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



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



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



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



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



17









 







above purposes shall be the office or agency of the
Trustee. In case the Company shall fail to maintain any such office or agency in Wilmington,
Delaware, or shall fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the Principal Office of
the Trustee.



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



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



     Section 3.4. Provision as to Paying Agent.



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




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




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




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



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



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



18









 





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



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



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



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



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



     Section 3.8. Limitation on Dividends. If Debentures are initially issued to the Trust
or a trustee of such Trust in connection with the issuance of Trust Securities by the Trust
(regardless of whether Debentures continue to be held by such Trust) and (i) there shall have
occurred and be continuing an Event of Default, (ii) the Company shall be in default with respect
to its payment of any obligations under the Capital Securities Guarantee, or (iii) the Company
shall have given notice of its election to defer payments of interest on the Debentures by
extending the interest payment period as provided herein and such period, or any extension thereof,
shall be continuing, then the Company shall not, and shall not allow any Affiliate of the Company
to, (x) declare or pay any dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company’s capital stock or its Affiliates’ capital
stock (other than payments of dividends or distributions to the Company) or make any guarantee
payments with respect to the foregoing or (y) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the Company or any
Affiliate that rank pari passu in all respects with or junior in interest to the Debentures (other
than, with respect to clauses (x) and (y) above, (1) repurchases, redemptions or other
acquisitions of shares of capital stock of



19









 







the Company in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of one or more employees,
officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock
purchase plan or in connection with the issuance of capital stock of the Company (or securities
convertible into or exercisable for such capital stock) as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, if any, (2) as a result of any
exchange or conversion of any class or series of the Company’s capital stock (or any capital stock
of a subsidiary of the Company) for any class or series of the Company’s capital stock or of any
class or series of the Company’s indebtedness for any class or series of the Company’s capital
stock, (3) the purchase of fractional interests in shares of the Company’s capital stock pursuant
to the conversion or exchange provisions of such capital stock or the security being converted or
exchanged, (4) any declaration of a dividend in connection with any stockholders’ rights plan, or
the issuance of rights, stock or other property under any stockholders’ rights plan, or the
redemption or repurchase of rights pursuant thereto, (5) any dividend in the form of stock,
warrants, options or other rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which the dividend is being
paid or ranks pari passu with or junior to such stock and any cash payments in lieu of fractional
shares issued in connection therewith, or (6) payments under the Capital Securities Guarantee).



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



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



ARTICLE IV.

SECURITYHOLDERS’ LISTS AND REPORTS

BY THE COMPANY AND THE TRUSTEE




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



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



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



20









 





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



     Section 4.2. Preservation and Disclosure of Lists.



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



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




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




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



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



     (c) Each and every holder of Debentures, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any paying agent shall be held
accountable by reason of the disclosure of any such information as to the names and addresses of
the holders of Debentures in accordance with the provisions of subsection (b) of this Section 4.2,
regardless



21









 







of the source from which such information was derived, and that the Trustee shall not be
held accountable by reason of mailing any material pursuant to a request made under said subsection
(b).



ARTICLE V.

REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS

UPON AN EVENT OF DEFAULT




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



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



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



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



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



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



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



     If an Acceleration Event of Default occurs and is continuing with respect to the Debentures,
then, and in each and every such case, unless the principal of the Debentures shall have already
become due and payable, either the Trustee or the holders of not less than 25% in aggregate
principal amount of the



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



     The foregoing provisions, however, are subject to the condition that if, at any time after the
principal of the Debentures shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered as hereinafter
provided, (i) the Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments
of interest upon all the Debentures and the principal of and premium, if any, on the
Debentures which shall have become due otherwise than by acceleration (with interest upon such
principal and premium, if any, and Additional Interest) and such amount as shall be sufficient to
cover reasonable compensation to the Trustee and each predecessor Trustee, their respective agents,
attorneys and counsel, and all other amounts due to the Trustee pursuant to Section 6.6, if any,
and (ii) all Events of Default under this Indenture, other than the non-payment of the principal of
or premium, if any, on Debentures which shall have become due by acceleration, shall have been
cured, waived or otherwise remedied as provided herein — then and in every such case the holders
of a majority in aggregate principal amount of the Debentures then outstanding, by written notice
to the Company and to the Trustee, may waive all defaults and rescind and annul such declaration
and its consequences, but no such waiver or rescission and annulment shall extend to or shall
affect any subsequent default or shall impair any right consequent thereon.



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



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



23









 







Company or any other obligor on such Debentures wherever situated the moneys
adjudged or decreed to be payable.



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




	 	(i)	 	to file and prove a claim or claims for the whole amount of principal and
interest owing and unpaid in respect of the Debentures,
	 
	 	(ii)	 	in case of any judicial proceedings, to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for reasonable compensation to the Trustee and each
predecessor Trustee, and their respective agents, attorneys and counsel, and for
reimbursement of all other amounts due to the Trustee under Section 6.6), and of the
Securityholders allowed in such judicial proceedings relative to the Company or any
other obligor on the Debentures, or to the creditors or property of the Company or such
other obligor, unless prohibited by applicable law and regulations, to vote on behalf
of the holders of the Debentures in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings
or Person performing similar functions in comparable proceedings,
	 
	 	(iii)	 	to collect and receive any moneys or other property payable or deliverable on
any such claims, and





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


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




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



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



     In any proceedings brought by the Trustee (and also any proceedings involving the
interpretation of any provision of this Indenture to which the Trustee shall be a party), the
Trustee shall be held to



24









 







represent all the holders of the Debentures, and it shall not be necessary
to make any holders of the Debentures parties to any such proceedings.



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



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



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



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



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



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



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



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



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



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



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



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



26









 







Trustee shall be
protected in withholding such notice if and so long as a Responsible Officer of the Trustee in good
faith determines that the withholding of such notice is in the interests of the Securityholders.



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



ARTICLE VI.

CONCERNING THE TRUSTEE




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



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



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




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




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



27









 





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



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



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



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



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



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



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



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



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



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



28









 







Trustee may require
reasonable indemnity against such expense or liability as a condition to so proceeding;



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



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



     Section 6.3. No Responsibility for Recitals, etc. The recitals contained herein and
in the Debentures (except in the certificate of authentication of the Trustee or the Authenticating
Agent) shall be taken as the statements of the Company, and the Trustee and the Authenticating
Agent assume no responsibility for the correctness of the same. The Trustee and the Authenticating
Agent make no representations as to the validity or sufficiency of this Indenture or of the
Debentures. The Trustee and the Authenticating Agent shall not be accountable for the use or
application by the Company of any Debentures or the proceeds of any Debentures authenticated and
delivered by the Trustee or the Authenticating Agent in conformity with the provisions of this
Indenture.



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



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



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



29









 







liability. The
obligations of the Company under this Section 6.6 to compensate and indemnify the Trustee and to
pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness hereunder. Such
additional indebtedness shall be secured by a lien prior to that of the Debentures upon all
property and funds held or collected by the Trustee as such, except funds held in trust for the
benefit of the holders of particular Debentures.



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



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



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



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



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



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



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



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



30









 





     Section 6.9. Resignation or Removal of Trustee



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



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




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




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




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




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



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



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



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



     If a successor Trustee is appointed, the Company, the retiring Trustee and the successor
Trustee shall execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Debentures as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the Trust hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be Trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustee.



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



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



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



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



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



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of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any predecessor
Trustee or authenticate Debentures in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.



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



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



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



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



ARTICLE VII.

CONCERNING THE SECURITYHOLDERS




     Section 7.1. Action by Securityholders. Whenever in this Indenture it is provided
that the holders of a specified percentage in aggregate principal amount of the Debentures may take
any action (including the making of any demand or request, the giving of any notice, consent or
waiver or the taking



33









 







of any other action) the fact that at the time of taking any such action the
holders of such specified percentage have joined therein may be evidenced (a) by any instrument or
any number of instruments of similar tenor executed by such Securityholders in person or by agent
or proxy appointed in writing, or (b) by the record of such holders of Debentures voting in favor
thereof at any meeting of such Securityholders duly called and held in accordance with the
provisions of Article VIII, or (c) by a combination of such instrument or instruments and any such
record of such a meeting of such Securityholders or (d) by any other method the Trustee deems
satisfactory.



     If the Company shall solicit from the Securityholders any request, demand, authorization,
direction, notice, consent, waiver or other action or revocation of the same, the Company may, at
its option, as evidenced by an Officers’ Certificate, fix in advance a record date for such
Debentures for the determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action or revocation of the same, but
the Company shall have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other action or revocation of the same
may be given before or after the record date, but only the Securityholders of record at the close
of business on the record date shall be deemed to be Securityholders for the purposes of
determining whether Securityholders of the requisite proportion of outstanding Debentures have
authorized or agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other action or revocation of the same, and for that purpose the outstanding
Debentures shall be computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Securityholders on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this Indenture not later
than 6 months after the record date.



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



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



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



     Section 7.4. Debentures Owned by Company Deemed Not Outstanding. In determining
whether the holders of the requisite aggregate principal amount of Debentures have concurred in any
direction, consent or waiver under this Indenture, Debentures which are owned by the Company or any
other obligor on the Debentures or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company or any other obligor on the
Debentures shall be disregarded and deemed not to be outstanding for the purpose of any such
determination; provided, however, that for the purposes of determining whether the
Trustee shall be protected in relying on any



34









 







such direction, consent or waiver, only Debentures
which a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.
Debentures so owned which have been pledged in good faith may be regarded as outstanding for the
purposes of this Section 7.4 if the pledgee shall establish to the satisfaction of the Trustee the
pledgee’s right to vote such Debentures and that the pledgee is not the Company or any such other
obligor or Person directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any such other obligor. In the case of a dispute as to such
right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the
Trustee.



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



ARTICLE VIII.

SECURITYHOLDERS’ MEETINGS




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



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



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



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



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



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



35









 





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



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



     Section 8.5. Regulations. Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of Debentures and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such other matters concerning
the conduct of the meeting as it shall think fit.



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



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



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



36









 







Debentures voting in
favor of or against any resolution. The record shall be signed and verified by the affidavits of
the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to
the Company and the other to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting.



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



     Section 8.7. Quorum; Actions. The Persons entitled to vote a majority in principal
amount of the Debentures then outstanding shall constitute a quorum for a meeting of
Securityholders; provided, however, that if any action is to be taken at such
meeting with respect to a consent, waiver, request, demand, notice, authorization, direction or
other action which may be given by the holders of not less than a specified percentage in principal
amount of the Debentures then outstanding, the Persons holding or representing such specified
percentage in principal amount of the Debentures then outstanding will constitute a quorum. In the
absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of Securityholders, be dissolved. In any other case the meeting
may be adjourned for a period of not less than 10 days as determined by the permanent chairman of
the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10
days as determined by the permanent chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided
in Section 8.2, except that such notice need be given only once not less than 5 days prior to the
date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the principal amount of the
Debentures then outstanding which shall constitute a quorum.



     Except as limited by the provisos in the first paragraph of Section 9.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted by the affirmative vote of the holders of a majority in principal amount
of the Debentures then outstanding; provided, however, that, except as limited by
the provisos in the first paragraph of Section



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



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



ARTICLE IX.

SUPPLEMENTAL INDENTURES




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



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



37









 





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



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



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



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



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



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



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



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



     Section 9.2. Supplemental Indentures with Consent of Securityholders. With the
consent (evidenced as provided in Section 7.1) of the holders of not less than a majority in
aggregate principal amount of the Debentures at the time outstanding affected by such supplemental
indenture (voting as a class), the Company, when authorized by a Board Resolution, and the Trustee
may from time to time and



38









 







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



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



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



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



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



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



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



ARTICLE X.

REDEMPTION OF SECURITIES




     Section 10.1. Optional Redemption. The Company shall have the right (subject to the
receipt by the Company of prior approval (i) if the Company is a bank holding company, from the
Federal Reserve, if then required under applicable capital guidelines or policies of the Federal
Reserve or (ii) if the Company is a savings and loan holding company, from the OTS, if then
required under applicable capital guidelines or policies of the OTS) to redeem the Debentures, in
whole or in part, but in all cases in a principal amount with integral multiples of $1,000.00, on
any Interest Payment Date on or after the Interest Payment Date in December 2010 (the
“Redemption Date”), at the Redemption Price.



     Section 10.2. Special Event Redemption. If a Special Event shall occur and be
continuing, the Company shall have the right (subject to the receipt by the Company of prior
approval (i) if the Company is a bank holding company, from the Federal Reserve, if then required
under applicable capital guidelines or policies of the Federal Reserve or (ii) if the Company is a
savings and loan holding company, from the OTS, if then required under applicable capital
guidelines or policies of the OTS) to redeem the Debentures in whole, but not in part, at any
Interest Payment Date, within 120 days following the occurrence of such Special Event (the
“Special Redemption Date”) at the Special Redemption Price. If the Special Event
redemption occurs prior to the Interest Payment Date in December 2010, the Company shall appoint a
Quotation Agent, which shall be a designee of the Institutional Trustee, for the purpose of
performing the services contemplated in, or by reference in, the definition of Special Redemption
Price. Any error in the calculation of the Special Redemption Price by the Quotation Agent or the
Trustee may be corrected at any time by notice delivered to the Company and the holders of the
Debentures. Subject to the corrective rights set forth above, all certificates, communications,
opinions, determinations, calculations, quotations and decisions given, expressed, made or obtained
for the purposes of the provisions relating to the payment and calculation of the Special
Redemption Price on the Debentures by the Trustee or the Quotation Agent, as the case may be, shall
(in the absence of willful default, bad faith or manifest error) be final, conclusive and binding
on the holders of the Debentures and the Company, and no liability shall attach (except as provided
above) to the Trustee or the Quotation Agent in connection with the exercise or non-exercise by any
of them of their respective powers, duties and discretion.



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



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



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



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



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



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



ARTICLE XI.

CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE




     Section 11.1. Company May Consolidate, etc., on Certain Terms. Nothing contained in
this Indenture or in the Debentures shall prevent any consolidation or merger of the Company with
or into any other Person (whether or not affiliated with the Company) or successive consolidations
or mergers in which the Company or its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or other disposition of the property of the Company or
its successor or successors as an entirety, or substantially as an entirety, to any other Person
(whether or not affiliated with the Company, or its successor or successors) authorized to acquire
and operate the same; provided, however, that the Company hereby covenants and
agrees that, upon any such consolidation, merger (where the Company is not the surviving
corporation), sale, conveyance, transfer or other disposition, the due and



41









 







punctual payment of the
principal of (and premium, if any) and interest on all of the Debentures in accordance with their
terms, according to their tenor, and the due and punctual performance and observance of all the
covenants and conditions of this Indenture to be kept or performed by the Company, shall be
expressly assumed by supplemental indenture satisfactory in form to the Trustee executed and
delivered to the Trustee by the entity formed by such consolidation, or into which the Company
shall have been merged, or by the entity which shall have acquired such property.



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



     Section 11.3. Opinion of Counsel to be Given to Trustee. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, shall receive, in addition to the Opinion of Counsel required
by Section 9.5, an Opinion of Counsel as conclusive evidence that any consolidation, merger, sale,
conveyance, transfer or other disposition, and any assumption, permitted or required by the terms
of this Article XI complies with the provisions of this Article XI.



ARTICLE XII.

SATISFACTION AND DISCHARGE OF INDENTURE




     Section 12.1. Discharge of Indenture. When




	 	(a)	 	the Company shall deliver to the Trustee for cancellation all Debentures
theretofore authenticated (other than any Debentures which shall have been destroyed,
lost or stolen and which shall have been replaced or paid as provided in Section 2.6)
and not theretofore canceled, or
	 
	 	(b)	 	all the Debentures not theretofore canceled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become due and
payable within 1 year or are to be called for redemption within 1 year under
arrangements satisfactory to the Trustee for the giving of notice of redemption, and
the Company shall deposit with the Trustee, in trust, funds, which shall be immediately
due and payable, sufficient to pay at maturity or upon redemption all of the Debentures
(other than any Debentures which shall have been destroyed, lost or stolen and which
shall have been replaced or paid as provided in Section 2.6) not theretofore canceled
or delivered to the Trustee for cancellation, including principal and premium, if any,
and interest due or to 




42









 






	 	 	 	become due to such date of maturity or redemption date, as the
case may be, but excluding, however, the amount of any moneys for the payment of
principal of, and premium, if any, or interest on the Debentures (1) theretofore repaid
to the Company in accordance with the provisions of Section 12.4, or (2) paid to any
state or to the District of Columbia pursuant to its unclaimed property or similar
laws,




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




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



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



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



ARTICLE XIII.

IMMUNITY OF INCORPORATORS, STOCKHOLDERS,

OFFICERS AND DIRECTORS




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



43









 







expressly waived and released as a condition of, and
as a consideration for, the execution of this Indenture and the issue of the Debentures.



ARTICLE XIV.

MISCELLANEOUS PROVISIONS




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



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



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



     Section 14.4. Addresses for Notices, etc. Any notice, consent, direction, request,
authorization, waiver or demand which by any provision of this Indenture is required or permitted
to be given, made, furnished or served by the Trustee or by the Securityholders on or to the
Company may be given or served in writing by being deposited postage prepaid by registered or
certified mail in a post office letter box addressed (until another address is filed by the
Company, with the Trustee for the purpose) to the Company, 1100 Paseo Camarillo, Camarillo,
California 93010, Attention: Romolo Santarosa. Any notice, consent, direction, request,
authorization, waiver or demand by any Securityholder or the Company to or upon the Trustee shall
be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at
the office of the Trustee, addressed to the Trustee, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-1600, Attention: Corporate Trust Administration. Any notice, consent,
direction, request, authorization, waiver or demand on or to any Securityholder shall be deemed to
have been sufficiently given or made, for all purposes, if given or made in writing at the address
set forth in the Debenture Register.



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



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



     Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture shall include (1)
a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based; (3) a statement that, in
the opinion of such person, he has made such examination or investigation as is necessary to enable
him to express an



44









 







informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not in the opinion of such person, such
condition or covenant has been complied with.



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



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



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



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



     Section 14.11. Acknowledgment of Rights. The Company agrees that, with respect to any
Debentures held by the Trust or the Institutional Trustee of the Trust, if the Institutional
Trustee of the Trust fails to enforce its rights under this Indenture as the holder of Debentures
held as the assets of such Trust after the holders of a majority in Liquidation Amount of the
Capital Securities of such Trust have so directed such Institutional Trustee, a holder of record of
such Capital Securities may, to the fullest extent permitted by law, institute legal proceedings
directly against the Company to enforce such Institutional Trustee’s rights under this Indenture
without first instituting any legal proceedings against such trustee or any other Person.
Notwithstanding the foregoing, if an Event of Default has occurred and is continuing and such event
is attributable to the failure of the Company to pay interest (or premium, if any) or principal on
the Debentures on the date such interest (or premium, if any) or principal is otherwise payable (or
in the case of redemption, on the redemption date), the Company agrees that a holder of record of
Capital Securities of the Trust may directly institute a proceeding against the Company for
enforcement of payment to such holder directly of the principal of (or premium, if any) or interest
on the Debentures having an aggregate principal amount
equal to the aggregate Liquidation Amount of the Capital Securities of such holder on or after
the respective due date specified in the Debentures.



ARTICLE XV.

SUBORDINATION OF DEBENTURES




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



45









 





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



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



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



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



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



     In the event that, notwithstanding the foregoing, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, prohibited by the
foregoing, shall be received by the Trustee before all Senior Indebtedness is paid in full, or
provision is made for such payment in money in accordance with its terms, such payment or
distribution shall be held in trust



46









 







for the benefit of and shall be paid over or delivered to the
holders of such Senior Indebtedness or their representative or representatives, or to the trustee
or trustees under any indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, as their respective interests may appear, as calculated by the
Company, for application to the payment of all Senior Indebtedness, remaining unpaid to the extent
necessary to pay such Senior Indebtedness in full in money in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the benefit of the holders of
such Senior Indebtedness.



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



     Section 15.4. Subrogation. Subject to the payment in full of all Senior Indebtedness,
the Securityholders shall be subrogated to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of cash, property or securities of the Company, applicable to
such Senior Indebtedness until the principal of (and premium, if any) and interest on the
Debentures shall be paid in full. For the purposes of such subrogation, no payments or
distributions to the holders of such Senior Indebtedness of any cash, property or securities to
which the Securityholders or the Trustee would be entitled except for the provisions of this
Article XV, and no payment over pursuant to the provisions of this Article XV to or for the benefit
of the holders of such Senior Indebtedness by Securityholders or the Trustee, shall, as between the
Company, its creditors other than holders of Senior Indebtedness of the Company, and the holders of
the Debentures be deemed to be a payment or distribution by the Company to or on account of such
Senior Indebtedness. It
is understood that the provisions of this Article XV are and are intended solely for the
purposes of defining the relative rights of the holders of the Securities, on the one hand, and the
holders of such Senior Indebtedness, on the other hand.



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



47









 





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



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



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



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



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



48









 





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



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



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



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



Signatures appear on the following page




49









 








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



	 	 	 	 	 
	 	 	FCB BANCORP
	 
	 	 	 	 
	 

	 	By	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 	 	WILMINGTON TRUST COMPANY, as Trustee
	 
	 	 	 	 
	 

	 	By	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






50









 






EXHIBIT A




FORM OF FIXED/FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST

DEBENTURE




[FORM OF FACE OF SECURITY]




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



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



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



A- 1









 







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



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



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



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



Fixed/Floating Rate Junior Subordinated Deferrable Interest Debenture




of




FCB Bancorp




September 30, 2005




     FCB Bancorp, a California corporation (the “Company” which term includes any successor Person
under the Indenture hereinafter referred to), for value received promises to pay to Wilmington
Trust Company, not in its individual capacity but solely as Institutional Trustee for FCB Statutory
Trust I (the “Holder”) or registered assigns, the principal sum of ten million three hundred ten
thousand dollars ($10,310,000.00) on December 15, 2035, and to pay interest on said principal sum
from September 30, 2005, or from the most recent Interest Payment Date (as defined below) to which
interest has been paid or duly provided for, quarterly (subject to deferral as set forth herein) in
arrears on March 15, June 15, September 15 and December 15 of each year or if such day is not a
Business Day, then the next succeeding Business Day (each such date, an “Interest Payment Date”)
(it being understood that interest accrues for any such non-Business Day during the applicable
Distribution Period, beginning on or after December 15, 2010), commencing on the Interest Payment
Date in December 2005, at an annual rate equal to [RATE]% beginning on (and including) the date of
original issuance and ending on (but excluding) the Interest Payment Date in December 2010 and at
an annual rate for each successive period beginning on (and including) the Interest Payment Date in
December 2010, and each succeeding Interest Payment Date, and ending on (but excluding) the next
succeeding Interest



A- 2









 







Payment Date (each a “Distribution Period”), equal to 3-Month LIBOR, determined
as described below, plus 1.55% (the
“Coupon Rate”), applied to the principal amount hereof, until the principal hereof is paid or
duly provided for or made available for payment, and on any overdue principal and (without
duplication and to the extent that payment of such interest is enforceable under applicable law) on
any overdue installment of interest (including Additional Interest) at the Interest Rate in effect
for each applicable period, compounded quarterly, from the dates such amounts are due until they
are paid or made available for payment. The amount of interest payable (i) for any Distribution
Period commencing on or after the date of original issuance but before the Interest Payment Date in
December 2010 will be computed on the basis of a 360-day year of twelve 30-day months, and (ii) for
the Distribution Period commencing on the Interest Payment Date in December 2010 and each
succeeding Distribution Period will be computed on the basis of the actual number of days in the
Distribution Period concerned divided by 360. The interest installment so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid
to the Person in whose name this Debenture (or one or more Predecessor Securities) is registered at
the close of business on the regular record date for such interest installment, which shall be
fifteen Business Days prior to the day on which the relevant Interest Payment Date occurs. Any
such interest installment not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such regular record date and may be paid to the Person in whose name this
Debenture (or one or more Predecessor Securities) is registered at the close of business on a
special record date.



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



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



A- 3









 





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



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



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



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



A- 4









 







holder of Senior Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.



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



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



A- 5









 





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



	 	 	 	 	 
	 	FCB BANCORP

 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



CERTIFICATE OF AUTHENTICATION





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



	 	 	 	 	 
	 	WILMINGTON TRUST COMPANY, as Trustee

 	 
	 	By:  	
 	 
	 	 	Authorized Officer 	 
	 	 	 	 
	 




A- 6









 





[FORM OF REVERSE OF DEBENTURE]




     This Debenture is one of the fixed/floating rate junior subordinated deferrable interest
debentures of the Company, all issued or to be issued under and pursuant to the Indenture dated as
of September 30, 2005 (the “Indenture”), duly executed and delivered between the Company and the
Trustee, to which Indenture reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the
holders of the Debentures. The Debentures are limited in aggregate principal amount as specified
in the Indenture.



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



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



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



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



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



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



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



A- 7









 





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



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



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



A- 8









 







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



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



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



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



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



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



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EXHIBIT B




FORM OF CERTIFICATE TO TRUSTEE




     Pursuant to Section 3.5 of the Indenture between FCB Bancorp, as the Company (the “Company”),
and Wilmington Trust Company, as Trustee, dated as of September 30, 2005 (the “Indenture”), the
undersigned hereby certifies as follows:




	 	1.	 	In my capacity as an officer of the Company, I would normally have knowledge of
any default by the Company during the last fiscal year in the performance of any
covenants of the Company contained in the Indenture.
	 
	 	2.	 	[To my knowledge, the Company is not in default in the performance of any
covenants contained in the Indenture.
	 
	 	•	 	r, alternatively:
	 
	 	 	 	I am aware of the default(s) in the performance of covenants in the Indentures, as
specified below.]





     Capitalized terms used herein, and not otherwise defined herein, have the respective meanings
ascribed thereto in the Indenture.



     IN WITNESS WHEREOF, the undersigned has executed this Certificate.



Date:





	 	 	 
	 

	 	 

	 

	 	Name:
	 

	 	Title:







B-1