exv4w8



 






Exhibit 4.8




UCBH HOLDINGS, INC.




as Issuer




INDENTURE




Dated as of September 22, 2005




WILMINGTON TRUST COMPANY




as Trustee




FIXED/FLOATING RATE JUNIOR SUBORDINATED DEBT SECURITIES DUE 2035




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	ARTICLE I DEFINITIONS	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 1.01
	 	Definitions
	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE II DEBT SECURITIES	 	 	9	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 2.01
	 	Authentication and Dating
	 	 	9	 
	 

	 	Section 2.02
	 	Form of Trustee’s Certificate of Authentication
	 	 	10	 
	 

	 	Section 2.03
	 	Form and Denomination of Debt Securities
	 	 	10	 
	 

	 	Section 2.04
	 	Execution of Debt Securities
	 	 	10	 
	 

	 	Section 2.05
	 	Exchange and Registration of Transfer of Debt
Securities
	 	 	11	 
	 

	 	Section 2.06
	 	Mutilated, Destroyed, Lost or Stolen Debt Securities
	 	 	14	 
	 

	 	Section 2.07
	 	Temporary Debt Securities
	 	 	15	 
	 

	 	Section 2.08
	 	Payment of Interest
	 	 	15	 
	 

	 	Section 2.09
	 	Cancellation of Debt Securities Paid, etc
	 	 	17	 
	 

	 	Section 2.10
	 	Computation of Interest
	 	 	17	 
	 

	 	Section 2.11
	 	Extension of Interest Payment Period
	 	 	18	 
	 

	 	Section 2.12
	 	CUSIP Numbers
	 	 	19	 
	 

	 	Section 2.13
	 	Global Debentures
	 	 	19	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE III PARTICULAR COVENANTS OF THE COMPANY	 	 	22	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 3.01
	 	Payment of Principal, Premium and Interest; Agreed
Treatment of the Debt Securities
	 	 	22	 
	 

	 	Section 3.02
	 	Offices for Notices and Payments, etc
	 	 	23	 
	 

	 	Section 3.03
	 	Appointments to Fill Vacancies in Trustee’s Office
	 	 	23	 
	 

	 	Section 3.04
	 	Provision as to Paying Agent
	 	 	23	 
	 

	 	Section 3.05
	 	Certificate to Trustee
	 	 	24	 
	 

	 	Section 3.06
	 	Additional Amounts
	 	 	25	 
	 

	 	Section 3.07
	 	Compliance with Consolidation Provisions
	 	 	25	 
	 

	 	Section 3.08
	 	Limitation on Dividends
	 	 	25	 
	 

	 	Section 3.09
	 	Covenants as to the Trust
	 	 	26	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IV LISTS	 	 	26	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 4.01
	 	Securityholders’ Lists
	 	 	26	 
	 

	 	Section 4.02
	 	Preservation and Disclosure of Lists
	 	 	27	 
	 

	 	Section 4.03
	 	Financial and Other Information
	 	 	28	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS	 	 	29	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 5.01
	 	Events of Default
	 	 	29	 
	 

	 	Section 5.02
	 	Payment of Debt Securities on Default; Suit Therefor
	 	 	31	 
	 

	 	Section 5.03
	 	Application of Moneys Collected by Trustee
	 	 	32	 






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	 	Section 5.04
	 	Proceedings by Securityholders
	 	 	33	 
	 

	 	Section 5.05
	 	Proceedings by Trustee
	 	 	33	 
	 

	 	Section 5.06
	 	Remedies Cumulative and Continuing
	 	 	33	 
	 

	 	Section 5.07
	 	Direction of Proceedings and Waiver of Defaults by
Majority of Securityholders
	 	 	34	 
	 

	 	Section 5.08
	 	Notice of Defaults
	 	 	34	 
	 

	 	Section 5.09
	 	Undertaking to Pay Costs
	 	 	35	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VI CONCERNING THE TRUSTEE	 	 	35	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 6.01
	 	Duties and Responsibilities of Trustee
	 	 	35	 
	 

	 	Section 6.02
	 	Reliance on Documents, Opinions, etc
	 	 	36	 
	 

	 	Section 6.03
	 	No Responsibility for Recitals, etc
	 	 	37	 
	 

	 	Section 6.04
	 	Trustee, Authenticating Agent, Paying Agents, Transfer

Agents or Registrar May Own Debt Securities
	 	 	38	 
	 

	 	Section 6.05
	 	Moneys to be Held in Trust
	 	 	38	 
	 

	 	Section 6.06
	 	Compensation and Expenses of Trustee
	 	 	38	 
	 

	 	Section 6.07
	 	Officers’ Certificate as Evidence
	 	 	39	 
	 

	 	Section 6.08
	 	Eligibility of Trustee
	 	 	39	 
	 

	 	Section 6.09
	 	Resignation or Removal of Trustee
	 	 	40	 
	 

	 	Section 6.10
	 	Acceptance by Successor Trustee
	 	 	41	 
	 

	 	Section 6.11
	 	Succession by Merger, etc
	 	 	42	 
	 

	 	Section 6.12
	 	Authenticating Agents
	 	 	42	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VII CONCERNING THE SECURITYHOLDERS	 	 	43	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 7.01
	 	Action by Securityholders
	 	 	43	 
	 

	 	Section 7.02
	 	Proof of Execution by Securityholders
	 	 	44	 
	 

	 	Section 7.03
	 	Who Are Deemed Absolute Owners
	 	 	44	 
	 

	 	Section 7.04
	 	Debt Securities Owned by Company Deemed Not

Outstanding
	 	 	45	 
	 

	 	Section 7.05
	 	Revocation of Consents; Future Holders Bound
	 	 	45	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VIII SECURITYHOLDERS’ MEETINGS	 	 	45	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 8.01
	 	Purposes of Meetings
	 	 	45	 
	 

	 	Section 8.02
	 	Call of Meetings by Trustee
	 	 	46	 
	 

	 	Section 8.03
	 	Call of Meetings by Company or Securityholders
	 	 	46	 
	 

	 	Section 8.04
	 	Qualifications for Voting
	 	 	46	 
	 

	 	Section 8.05
	 	Regulations
	 	 	46	 
	 

	 	Section 8.06
	 	Voting
	 	 	47	 
	 

	 	Section 8.07
	 	Quorum; Actions
	 	 	48	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IX SUPPLEMENTAL INDENTURES	 	 	48	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 9.01
	 	Supplemental Indentures without Consent of
Securityholders
	 	 	48	 
	 

	 	Section 9.02
	 	Supplemental Indentures with Consent of Securityholders
	 	 	50	 






ii









 






	 	 	 	 	 	 	 	 	 
	 

	 	Section 9.03
	 	Effect of Supplemental Indentures
	 	 	51	 
	 

	 	Section 9.04
	 	Notation on Debt Securities
	 	 	51	 
	 

	 	Section 9.05
	 	Evidence of Compliance of Supplemental Indenture to
be
Furnished to Trustee
	 	 	51	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE X REDEMPTION OF SECURITIES	 	 	52	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 10.01
	 	Optional Redemption
	 	 	52	 
	 

	 	Section 10.02
	 	Special Event Redemption
	 	 	52	 
	 

	 	Section 10.03
	 	Notice of Redemption; Selection of Debt Securities
	 	 	52	 
	 

	 	Section 10.04
	 	Payment of Debt Securities Called for Redemption
	 	 	53	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XI CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE	 	 	53	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 11.01
	 	Company May Consolidate, etc., on Certain Terms
	 	 	53	 
	 

	 	Section 11.02
	 	Successor Entity to be Substituted
	 	 	54	 
	 

	 	Section 11.03
	 	Opinion of Counsel to be Given to Trustee
	 	 	55	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XII SATISFACTION AND DISCHARGE OF INDENTURE	 	 	55	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 12.01
	 	Discharge of Indenture
	 	 	55	 
	 

	 	Section 12.02
	 	Deposited Moneys to be Held in Trust by Trustee
	 	 	56	 
	 

	 	Section 12.03
	 	Paying Agent to Repay Moneys Held
	 	 	56	 
	 

	 	Section 12.04
	 	Return of Unclaimed Moneys
	 	 	56	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XIII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS	 	 	56	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 13.01
	 	Indenture and Debt Securities Solely Corporate
Obligations
	 	 	56	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XIV MISCELLANEOUS PROVISIONS	 	 	57	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Section 14.01
	 	Successors
	 	 	57	 
	 

	 	Section 14.02
	 	Official Acts by Successor Entity
	 	 	57	 
	 

	 	Section 14.03
	 	Surrender of Company Powers
	 	 	57	 
	 

	 	Section 14.04
	 	Addresses for Notices, etc
	 	 	57	 
	 

	 	Section 14.05
	 	Governing Law
	 	 	57	 
	 

	 	Section 14.06
	 	Evidence of Compliance with Conditions Precedent
	 	 	57	 
	 

	 	Section 14.07
	 	Business Day Convention
	 	 	58	 
	 

	 	Section 14.08
	 	Table of Contents, Headings, etc
	 	 	58	 
	 

	 	Section 14.09
	 	Execution in Counterparts
	 	 	58	 
	 

	 	Section 14.10
	 	Separability
	 	 	58	 
	 

	 	Section 14.11
	 	Assignment
	 	 	59	 
	 

	 	Section 14.12
	 	Acknowledgment of Rights
	 	 	59	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XV SUBORDINATION OF DEBT SECURITIES	 	 	59	 
	 
	 	 	 	 	 	 	 	 





iii









 






	 	 	 	 	 	 	 	 	 
	 

	 	Section 15.01
	 	Agreement to Subordinate
	 	 	59	 
	 

	 	Section 15.02
	 	Default on Senior Indebtedness
	 	 	60	 
	 

	 	Section 15.03
	 	Liquidation; Dissolution; Bankruptcy
	 	 	60	 
	 

	 	Section 15.04
	 	Subrogation
	 	 	61	 
	 

	 	Section 15.05
	 	Trustee to Effectuate Subordination
	 	 	62	 
	 

	 	Section 15.06
	 	Notice by the Company
	 	 	62	 
	 

	 	Section 15.07
	 	Rights of the Trustee; Holders of Senior Indebtedness
	 	 	63	 
	 

	 	Section 15.08
	 	Subordination May Not Be Impaired
	 	 	63	 






	 	 	 	 	 
	EXHIBITS	 	 
	 

	 	EXHIBIT A

EXHIBIT B
	 	Form of Debt Security

Form of Certificate of Officer of the Company






iv









 






               THIS INDENTURE, dated as of September 22, 2005, between UCBH Holdings, Inc., a bank
holding company incorporated in the State of Delaware (hereinafter sometimes called the “Company”),
and Wilmington Trust Company, a Delaware banking corporation, as trustee (hereinafter sometimes
called the “Trustee”).



WITNESSETH:




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



               NOW, THEREFORE, in consideration of the premises, and the purchase of the Debt Securities by
the holders thereof, the Company covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective holders from time to time of the Debt Securities as
follows:



ARTICLE
I 

DEFINITIONS




               Section 1.01 Definitions.



               The terms defined in this Section 1.01 (except as herein otherwise expressly provided or
unless the context otherwise requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this Section 1.01. All
accounting terms used herein and not expressly defined shall have the meanings assigned to such
terms in accordance with generally accepted accounting principles and the term “generally accepted
accounting principles” means such accounting principles as are generally accepted in the United
States at the time of any computation. The words “herein,”
“hereof” and “hereunder” and other words
of similar import refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision.



               “Additional Amounts” has the meaning set forth in Section 3.06.



               “Additional Provisions” has the meaning set forth in Section 15.01.



               “Administrative Action” has the meaning specified within the definition of “Tax Event” in
this Section 1.01.



               “Applicable Depositary Procedures” means, with respect to any transfer or transaction
involving a Book-Entry Capital Security or a Debt Security represented by a Global Debenture, the
rules and procedures of the Depositary for such Book-Entry Capital Security or Debt Security
represented by a Global Debenture, in each case to the extent applicable to such transaction and as
in effect from time to time.



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



 









 





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



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



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



               “Book-Entry Capital Security” means a Capital Security the ownership and transfers of which
shall be reflected and made, as applicable, through book entries by the Depositary.



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



               “Calculation Agent” means the Person identified as “Trustee” in the first paragraph hereof
with respect to the Debt Securities and the Institutional Trustee with respect to the Trust
Securities.



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



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



               “Capital Treatment Event” means, if the Company is organized and existing under the laws of
the United States or any state thereof or the District of Columbia, the receipt by the Company and
the Trust of an Opinion of Counsel experienced in such matters to the effect that, as a result of
any amendment to, or change in, the laws, rules or regulations of the United States or any
political subdivision thereof or therein, or as the result of any official or administrative
pronouncement or action or decision interpreting or applying such laws, rules or regulations,
which amendment or change is effective or which pronouncement, action or decision is announced on
or after the date of original issuance of the Debt Securities, there is more than an insubstantial
risk that the Company will not, within 90 days of the date of such opinion, be entitled to treat
Capital Securities as “Tier 1 Capital” (or the then equivalent thereof) for purposes of the
capital adequacy guidelines of the Federal Reserve (or any successor regulatory authority with
jurisdiction over bank holding companies), as then in effect and applicable to the Company;
provided, however, that the inability of the Company to treat all or any portion of the
aggregate Liquidation Amount of the Capital Securities as “Tier 1 Capital” shall not constitute
the basis for a Capital Treatment Event if such inability results from the Company having



2









 







preferred stock, minority interests in consolidated subsidiaries and any other class of security or
interest which the Federal Reserve (or any successor regulatory authority with jurisdiction over
bank holding companies) may now or hereafter accord “Tier 1 Capital” treatment that, in the
aggregate, exceed the amount which may now or hereafter qualify for treatment as “Tier 1 Capital”
under applicable capital adequacy guidelines of the Federal Reserve (or any successor regulatory
authority with jurisdiction over bank holding companies); provided, further,
however, that the distribution of the Debt Securities in connection with the liquidation of
the Trust by the Company shall not in and of itself constitute a Capital Treatment Event unless
such liquidation shall have occurred in connection with a Tax Event or an Investment Company Event.
For the avoidance of doubt, the inability of the Company to treat all or any portion of the
aggregate Liquidation Amount of the Capital Securities as “Tier 1 Capital” as a result of the
changes effected by the final rule adopted by the Federal Reserve on March 1, 2005 shall not
constitute the basis for a Capital Treatment Event.



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



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



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



               “Company” means UCBH Holdings, Inc., a bank holding company incorporated in the State of
Delaware, and, subject to the provisions of Article XI, shall include its successors and assigns.



               “Debt Security” or “Debt Securities” has the meaning stated in the first recital of this
Indenture.



               “Debt Security Register” has the meaning specified in Section 2.05.



               “Declaration” means the Amended and Restated Declaration of Trust of the Trust, dated as of
September 22, 2005, as amended or supplemented from time to time.



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



               “Defaulted Interest” has the meaning set forth in Section 2.08.



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



               “Depositary” means an organization registered as a clearing agency under the Exchange Act
that is designated as Depositary by the Company. DTC will be the initial Depositary.



3









 





               “Depositary Participant” means a broker, dealer, bank, other financial institution or other
Person for whom from time to time the Depositary effects book-entry transfers and pledges of
securities deposited with or on behalf of the Depositary.



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



               “Event of Default” means any event specified in Section 5.01, which has continued for the
period of time, if any, and after the giving of the notice, if any, therein designated.



               “Exchange Act” means the Securities Exchange Act of 1934, as amended.



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



               “Federal Reserve” means the Board of Governors of the Federal Reserve System.



               “Global Debenture” means a global certificate that evidences all or part of the Debt
Securities the ownership and transfers of which shall be reflected and made, as applicable,
through book entries by the Depositary and the Depositary Participants.



               “Indenture” means this Indenture 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 February 23, May 23, August 23 and November 23 of each year,
commencing on November 23, 2005, subject to Section 14.07.



               “Interest Period” has the meaning set forth in Section 2.08.



               “Interest Rate” means, a per annum rate of interest equal to (1) with respect to any Interest
Period prior to the Interest Period commencing on the Interest Payment Date in November 2010,
5.82% and (2) with respect to any Interest Period commencing on or after the Interest Payment Date
in November 2010, LIBOR, as determined on the LIBOR Determination Date for such Interest Period
plus, 1.38%; provided, however, that the Interest Rate for any Interest Period
commencing on or after the Interest Payment Date in November 2010 may not exceed the highest rate
permitted by New York law, as the same may be modified by United States law of general
application.



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



4









 





               “LIBOR” means the London Interbank Offered Rate for three-month U.S. Dollar deposits in Europe
as determined by the Calculation Agent according to Section 2.10(b).



               “LIBOR Banking Day” has the meaning set forth in Section 2.10(b)(i).



               “LIBOR Business Day” has the meaning set forth in Section 2.10(b)(i).



               “LIBOR Determination Date” has the meaning set forth in Section 2.10(b)(i).



               “Liquidation Amount” means the liquidation amount of $1,000 per Trust Security.



               “Major Depository Institution Subsidiary” means any subsidiary of the Company that (i) is a
depository institution and (ii) meets the definition of “significant subsidiary” within the
meaning of Rule 405 under the Securities Act.



               “Maturity Date” means November 23, 2035, subject to Section 14.07.



               “Officers’ Certificate” means a certificate signed by the Chairman of the Board, the Vice
Chairman, the President or any Vice President, and by the Chief Financial Officer, the Treasurer,
an Assistant Treasurer, the Comptroller, an Assistant Comptroller, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee. Each such certificate shall include the
statements provided for in Section 14.06 if and to the extent required by the provisions of such
Section.



               “Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be an
employee of or counsel to the Company or may be other counsel reasonably satisfactory to the
Trustee. Each such opinion shall include the statements provided for in Section 14.06 if and to
the extent required by the provisions of such Section.



               The term “outstanding,” when used with reference to Debt Securities, subject to the
provisions of Section 7.04, means, as of any particular time, all Debt Securities authenticated
and delivered by the Trustee or the Authenticating Agent under this Indenture, except



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



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



               (c) Debt Securities paid pursuant to Section 2.06 or in lieu of or in
substitution for which other Debt Securities shall have been authenticated and delivered
pursuant
to the terms of Section 2.06 unless proof satisfactory to the Company and the Trustee is
presented that any such Debt Securities are held by bona fide holders in due course.



5









 





               “Optional Redemption Date” has the meaning set forth in Section 10.01.



               “Optional Redemption Price” means an amount in cash equal to 100% of the principal amount of
the Debt Securities being redeemed plus unpaid interest accrued on such Debt Securities to the
related Optional Redemption Date.



               “Paying Agent” has the meaning set forth in Section 3.04(e).



               “Person” means a legal person, including any individual, corporation, estate, partnership,
joint venture, association, joint-stock company, limited liability company, trust, unincorporated
association, or government or any agency or political subdivision thereof, or any other entity of
whatever nature.



               “Predecessor Security” of any particular Debt Security means every previous Debt Security
evidencing all or a portion of the same debt as that evidenced by such particular Debt Security;
and, for the purposes of this definition, any Debt Security authenticated and delivered under
Section 2.06 in lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence the
same debt as the lost, destroyed or stolen Debt Security.



               “Principal Office of the Trustee” means the office of the Trustee at which at any particular
time its corporate trust business shall be principally administered, which at all times shall be
located within the United States and at the time of the execution of this Indenture shall be
Rodney Square North, 1100 North Market Street, Wilmington, DE 19890-0001.



               “Purchase Agreement” means the Purchase Agreement relating to the offer and sale of Capital
Securities.



               “Purchaser” has the meaning set forth in the Purchase Agreement.



               “Reference Banks” has the meaning set forth in Section 2.10(b)(ii).



               “Resale Restriction Termination Date” means, with respect to any Debt Security, the date
which is the later of (i) two years (or such shorter period of time as permitted by Rule 144(k)
under the Securities Act) after the later of (y) the date of original issuance of such Debt
Security and (z) the last date on which the Company or any Affiliate (as defined in Rule 405 under
the Securities Act) of the Company was the holder of such Debt Security (or any predecessor
thereto) and (ii) such later date, if any, as may be required by any subsequent change in
applicable law.



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



6









 





               “Securities Act” means the Securities Act of 1933, as amended.



               “Securityholder,” “holder of Debt Securities” or other similar terms, means any Person in
whose name at the time a particular Debt Security is registered on the Debt Security Register.



               “Senior Indebtedness” means, with respect to the Company, (i) the principal, premium, if any,
and interest in respect of (A) indebtedness of the Company for money borrowed, as well as similar
obligations arising from off-balance sheet guarantees and direct credit substitutes and (B)
indebtedness evidenced by securities, debentures, notes, bonds or other similar instruments issued
by the Company, (ii) all capital lease obligations of the Company, (iii) all obligations of the
Company issued or assumed as the deferred purchase price of property, all conditional sale
obligations of the Company and all obligations of the Company under any title retention agreement
(but excluding trade accounts payable and other accrued liabilities arising in the ordinary course
of business), (iv) all obligations of the Company for the reimbursement of any letter of credit,
any banker’s acceptance, any security purchase facility, any repurchase agreement or similar
arrangement, all obligations associated with derivative products such as interest rate and foreign
exchange contracts and commodity contracts, any interest rate swap, any other hedging arrangement,
any obligation under options or any similar credit or other transaction, (v) all obligations of the
type referred to in clauses (i) through (iv) above of other Persons for the payment of which the
Company is responsible or liable as obligor, guarantor or otherwise and (vi) all obligations of the
type referred to in clauses (i) through (v) above of other Persons secured by any lien on any
property or asset of the Company (whether or not such obligation is assumed by the Company),
whether the obligations of the type referred to in clauses (i) through (vi) above were incurred on
or prior to the date of this Indenture or thereafter incurred, unless, with the prior approval of
the Federal Reserve if not otherwise generally approved, it is provided in the instrument creating
or evidencing the same or pursuant to which the same is outstanding that such obligations are not
superior or are pari passu in right of payment to the Debt Securities; provided,
however, that Senior Indebtedness shall not include (A) any debt securities issued to any
trust other than the Trust (or a trustee of such trust) that is a financing vehicle of the Company
(a “financing entity”) in connection with the issuance by such financing entity of equity or other
securities in transactions substantially similar in structure to the transactions contemplated
hereunder and in the Declaration or (B) any guarantees of the Company in respect of the equity or
other securities of any financing entity referred to in clause (A) above.



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



               “Special Redemption Date” has the meaning set forth in Section 10.02.



               “Special Redemption Price” means, with respect to the redemption of any Debt Security
following a Special Event, an amount in cash equal to 104.00% of the principal amount of Debt
Securities to be redeemed prior to November 23, 2006 and thereafter equal to the percentage of the
principal amount of the Debt Securities that is specified below for the Special Redemption Date
plus, in each case, unpaid interest accrued thereon to the Special Redemption Date:



7









 





	 	 	 	 	 
	Special Redemption During the 12-Month	 	 
	Period Beginning November 23,	 	Percentage of Principal Amount
	2006
	 	 	103.20	%
	 
	 	 	 	 
	2007
	 	 	102.40	%
	 
	 	 	 	 
	2008
	 	 	101.60	%
	 
	 	 	 	 
	2009
	 	 	100.80	%
	 
	 	 	 	 
	2010 and thereafter
	 	 	100.00	%






               “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 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 one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, and (iii) any limited
partnership of which such Person or any of its Subsidiaries is a general partner. For the purposes
of this definition, “voting stock” means shares, interests, participations or other equivalents in
the equity interest (however designated) in such Person having ordinary voting power for the
election of a majority of the directors (or the equivalent) of such Person, other than shares,
interests, participations or other equivalents having such power only by reason of the occurrence
of a contingency.



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



8









 







is, or will be within 90 days of the date of such opinion, subject to or otherwise required to
pay, or required to withhold from distributions to holders of Trust Securities, more than a de
minimis amount of other taxes (including withholding taxes), duties, assessments or other
governmental charges.



               “Trust” means UCBH Capital Trust V, the Delaware statutory trust, or any other similar trust
created for the purpose of issuing Capital Securities in connection with the issuance of Debt
Securities under this Indenture, of which the Company is the sponsor.



               “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended from time to time, or
any successor legislation.



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



               “Trustee” means the Person identified as “Trustee” in the first paragraph hereof, and,
subject to the provisions of Article VI hereof, shall also include its successors and assigns as
Trustee hereunder.



               “United States” means the United States of America and the District of Columbia.



               “U.S. Person” has the meaning given to United States Person as set forth in Section
7701(a)(30) of the Code.



ARTICLE II

DEBT SECURITIES




               Section 2.01 Authentication and Dating.



               Upon the execution and delivery of this Indenture, or from time to time thereafter, Debt
Securities in an aggregate principal amount not in excess of $41,238,000 may be executed and
delivered by the Company to the Trustee for authentication, and the Trustee shall thereupon
authenticate and make available for delivery said Debt Securities to or upon the written order of
the Company, signed by its Chairman of the Board of Directors, Vice Chairman, President or Chief
Financial Officer or one of its Vice Presidents, without any further action by the Company
hereunder. In authenticating such Debt Securities, and accepting the additional responsibilities
under this Indenture in relation to such Debt Securities, the Trustee shall be entitled to receive,
and (subject to Section 6.01) shall be fully protected in relying upon a copy of any Board
Resolution or Board Resolutions relating thereto and, if applicable, an appropriate record of any
action taken pursuant to such resolution, in each case certified by the Secretary or an Assistant
Secretary or other officers with appropriate delegated authority of the Company as the case may be.



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



9









 





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



               Section 2.02 Form of Trustee’s Certificate of Authentication.



               The Trustee’s certificate of authentication on all Debt Securities shall be in substantially
the following form:



               This certificate represents Debt Securities referred to in the within-mentioned Indenture.



	 	 	 	 	 
	 	Wilmington Trust Company,
      not in
its individual capacity
      but
solely as trustee

 	 
	 	By:  	 	 
	 	 	Authorized Officer        	 
	 	 	 	 
	 




               Section 2.03 Form and Denomination of Debt Securities.



               The Debt Securities shall be substantially in the form of Exhibit A hereto. The Debt
Securities shall be in registered form without coupons and in minimum denominations of $100,000 and
any multiple of $1,000 in excess thereof. The Debt Securities shall be numbered, lettered, or
otherwise distinguished in such manner or in accordance with such plans as the officers executing
the same may determine with the approval of the Trustee as evidenced by the execution and
authentication thereof.



               Section 2.04 Execution of Debt Securities.



               The Debt Securities shall be signed in the name and on behalf of the Company by the manual or
facsimile signature of its Chairman of the Board of Directors, Vice Chairman, President or Chief
Financial Officer or one of its Executive Vice Presidents, Senior Vice Presidents or Vice
Presidents, under its corporate seal (if legally required) which may be affixed thereto or
printed, engraved or otherwise reproduced thereon, by facsimile or otherwise, and which need not
be attested. Only such Debt Securities as shall bear thereon a certificate of authentication
substantially in the form herein before recited, executed by the Trustee or the Authenticating
Agent by the manual or facsimile signature of an authorized officer, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee or the Authenticating Agent upon any Debt Security executed by the Company shall be
conclusive evidence that the Debt Security so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits of this Indenture.



               In case any officer of the Company who shall have signed any of the Debt Securities shall
cease to be such officer before the Debt Securities so signed shall have been authenticated and
delivered by the Trustee or the Authenticating Agent, or disposed of by the



10









 







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



               Every Debt Security shall be dated the date of its authentication.



               Section 2.05 Exchange and Registration of Transfer of Debt
Securities.



               The Company shall cause to be kept, at the office or agency maintained for the purpose of
registration of transfer and for exchange as provided in Section 3.02, a register (the “Debt
Security Register”) for the Debt Securities issued hereunder in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration and transfer of
all Debt Securities as provided in this Article II. Such register shall be in written form or in
any other form capable of being converted into written form within a reasonable time.



               Debt Securities to be exchanged may be surrendered at the Principal Office of the Trustee or
at any office or agency to be maintained by the Company for such purpose as provided in Section
3.02, and the Company shall execute, the Company or the Trustee shall register and the Trustee or
the Authenticating Agent shall authenticate and make available for delivery in exchange therefor,
the Debt Security or Debt Securities which the Securityholder making the exchange shall be
entitled to receive. Upon due presentment for registration of transfer of any Debt Security at the
Principal Office of the Trustee or at any office or agency of the Company maintained for such
purpose as provided in Section 3.02, the Company shall execute, the Company or the Trustee shall
register and the Trustee or the Authenticating Agent shall authenticate and make available for
delivery in the name of the transferee or transferees, a new Debt Security for a like aggregate
principal amount. Registration or registration of transfer of any Debt Security by the Trustee or
by any agent of the Company appointed pursuant to Section 3.02, and delivery of such Debt
Security, shall be deemed to complete the registration or registration of transfer of such Debt
Security.



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



               No service charge shall be made for any exchange or registration of transfer of Debt
Securities, but the Company or the Trustee may require payment of a sum sufficient to cover any
tax, fee or other governmental charge that may be imposed in connection therewith other than
exchanges pursuant to Section 2.07, Section 9.04 or Section 10.04 not involving any transfer.



11









 





               The Company or the Trustee shall not be required to exchange or register a transfer of any
Debt Security for a period of 15 days immediately preceding the date of selection of Debt
Securities for redemption.



               Notwithstanding the foregoing, Debt Securities may not be transferred prior to the Resale
Restriction Termination Date except in compliance with the legend set forth below, unless
otherwise determined by the Company in accordance with applicable law, which legend shall be
placed on each Debt Security:



               THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, BY ITS
ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN PRIOR TO THE DATE WHICH IS THE LATER OF (i) TWO
YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT) AFTER
THE LATER OF (Y) THE DATE OF ORIGINAL ISSUANCE HEREOF AND (Z) THE LAST DATE ON WHICH THE COMPANY
OR ANY AFFILIATE (AS DEFINED IN RULE 405 UNDER THE SECURITIES ACT) OF THE COMPANY WAS THE HOLDER
OF THIS SECURITY OR SUCH INTEREST OR PARTICIPATION (OR ANY PREDECESSOR THERETO) AND (ii) SUCH
LATER DATE, IF ANY, AS MAY BE REQUIRED BY ANY SUBSEQUENT CHANGE IN APPLICABLE LAW, ONLY (A) TO THE
COMPANY, (B) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON THE HOLDER
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”, AS DEFINED IN RULE 144A, THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF
SUBPARAGRAPH (a) (1), (2), (3), (7) OR (8) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING
THIS SECURITY OR SUCH INTEREST OR PARTICIPATION FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (D) PURSUANT TO OFFERS AND
SALES TO NON-US PERSONS THAT OCCUR OUTSIDE THE UNITED STATES PURSUANT TO REGULATION S UNDER THE
SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE



12









 







OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) ABOVE 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 OR ANY INTEREST OR
PARTICIPATION HEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, AGREES THAT IT WELL
COMPLY WITH THE FOREGOING RESTRICTIONS.



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



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



               THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS OF $100,000
AND MULTIPLES OF $1,000 IN



13









 







EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN DENOMINATIONS OF LESS THAN $100,000
SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL
BE DEEMED NOT TO BE THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN FOR ANY
PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS SECURITY OR SUCH
INTEREST OR PARTICIPATION, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST
WHATSOEVER IN THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN.



               THIS OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR
FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE CORPORATION (THE “FDIC”). THIS
OBLIGATION IS SUBORDINATED TO THE CLAIMS OF THE DEPOSITORS AND THE CLAIMS OF GENERAL AND SECURED
CREDITORS OF THE COMPANY, IS INELIGIBLE AS COLLATERAL FOR A LOAN BY THE COMPANY OR ANY OF ITS
SUBSIDIARIES AND IS NOT SECURED.



               Section 2.06 Mutilated, Destroyed, Lost or Stolen Debt
Securities.



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



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



               Every substituted Debt Security issued pursuant to the provisions of this Section 2.06 by
virtue of the fact that any such Debt Security is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Company, whether or not the destroyed, lost or stolen
Debt Security shall be found at any time, and shall be entitled to all the benefits of this
Indenture



14









 







equally and proportionately with any and all other Debt Securities duly issued hereunder. All Debt
Securities shall be held and owned upon the express condition that, to the extent permitted by
applicable law, the foregoing provisions are exclusive with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Debt Securities and shall preclude any and all other rights
or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with
respect to the replacement or payment of negotiable instruments or other securities without their
surrender.



               Section 2.07 Temporary Debt Securities.



               Pending the preparation of definitive Debt Securities, the Company may execute and the
Trustee shall authenticate and make available for delivery temporary Debt Securities that are
typed, printed or lithographed. Temporary Debt Securities shall be issuable in any authorized
denomination, and substantially in the form of the definitive Debt Securities but with such
omissions, insertions and variations as may be appropriate for temporary Debt Securities, all as
may be determined by the Company. Every such temporary Debt Security shall be executed by the
Company and be authenticated by the Trustee upon the same conditions and in substantially the same
manner, and with the same effect, as the definitive Debt Securities. Without unreasonable delay,
the Company will execute and deliver to the Trustee or the Authenticating Agent definitive Debt
Securities and thereupon any or all temporary Debt Securities may be surrendered in exchange
therefor, at the Principal Office of the Trustee or at any office or agency maintained by the
Company for such purpose as provided in Section 3.02, and the Trustee or the Authenticating Agent
shall authenticate and make available for delivery in exchange for such temporary Debt Securities
a like aggregate principal amount of such definitive Debt Securities. Such exchange shall be made
by the Company at its own expense and without any charge therefor except that in case of any such
exchange involving a registration of transfer the Company may require payment of a sum sufficient
to cover any tax, fee or other governmental charge that may be imposed in relation thereto. Until
so exchanged, the temporary Debt Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Debt Securities authenticated and delivered hereunder.



               Section 2.08 Payment of Interest.



               Each Debt Security will bear interest at the then applicable Interest Rate (i) in the case of
the initial Interest Period, for the period from, and including, the date of original issuance of
such Debt Security to, but excluding, the initial Interest Payment Date and (ii) thereafter, for
the period from, and including, the first day following the end of the preceding Interest Period
to, but excluding, the applicable Interest Payment Date or, in the case of the last Interest
Period, the related Optional Redemption Date, Special Redemption Date or Maturity Date, as
applicable (each such period, an “Interest Period”), on the principal thereof, on any overdue
principal and (to the extent that payment of such interest is enforceable under applicable law) on
Deferred Interest and on any overdue installment of interest (including Defaulted Interest),
payable (subject to the provisions of Article XV) on each Interest Payment Date and on the
Maturity Date, any Optional Redemption Date or the Special Redemption Date, as the case may be.
Interest and any Deferred Interest on any Debt Security that is payable, and is punctually paid or
duly provided for by the Company, on any Interest Payment Date shall be paid to the Person in
whose name such Debt Security (or one or more Predecessor Securities) is registered at the close



15









 







of business on the regular record date for such interest installment, except that interest and any
Deferred Interest payable on the Maturity Date, any Optional Redemption Date or the Special
Redemption Date, as the case may be, other than any Interest Payment Date shall be paid to the
Person to whom principal is paid. In case (i) the Maturity Date of any Debt Security or (ii) any
Debt Security or portion thereof is called for redemption and the related Optional Redemption Date
or the Special Redemption Date, as the case may be, is subsequent to the regular record date with
respect to any Interest Payment Date and prior to such Interest Payment Date, interest on such Debt
Security will be paid upon presentation and surrender of such Debt Security.



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



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



               The term “regular record date”, as used in this Section, shall mean the fifteenth day prior
to the applicable Interest Payment Date, whether or not such day is a Business Day.



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



16









 





               Section 2.09 Cancellation of Debt Securities Paid, etc.



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



               Section 2.10 Computation of Interest.



               (a) The amount of interest payable on the Debt Securities will be computed (i)
with respect to any Interest Period prior to the Interest Period commencing on the Interest
Payment Date in November 2010, on the basis of a 360-day year consisting of twelve 30-day
months and (ii) with respect to any Interest Period commencing on or after the Interest
Payment
Date in November 2010, on the basis of a 360-day year and the actual number of days elapsed in
such Interest Period.



               (b) LIBOR shall be determined by the Calculation Agent for each Interest
Period commencing on or after the Interest Payment Date in November 2010 in accordance with
the following provisions:




               (i) On the second LIBOR Business Day (provided, that on such day commercial banks are
open for business (including dealings in foreign currency deposits) in London (a “LIBOR
Banking Day”), and otherwise the next preceding LIBOR Business Day that is also a LIBOR
Banking Day) prior to the Interest Payment Date that commences such Interest Period (each
such day, a “LIBOR Determination Date”), LIBOR shall equal the rate, as obtained by the
Calculation Agent, for three-month U.S. Dollar deposits in Europe, which appears on
Telerate (as defined in the International Swaps and Derivatives Association, Inc. 2000
Interest Rate and Currency Exchange Definitions) page 3750 or such other page as may
replace such page 3750, as of 11:00 a.m. (London time) on such LIBOR Determination Date, as
reported by Bloomberg Financial Markets Commodities News or any successor service
(“Telerate Page 3750”). “LIBOR Business Day” means any day that is not a Saturday, Sunday
or other day on which commercial banking institutions in The City of New York or
Wilmington, Delaware are authorized or obligated by law or executive order to be closed. If
such rate is superseded on Telerate Page 3750 by a corrected rate before 12:00 noon (London
time) on such LIBOR Determination Date, the corrected rate as so substituted will be LIBOR
for such LIBOR Determination Date.




               (ii) If, on such LIBOR Determination Date, such rate does not appear on Telerate Page
3750, the Calculation Agent shall determine the arithmetic mean of the



17









 







offered quotations of the Reference Banks to leading banks in the London interbank market
for three-month U.S. Dollar deposits in Europe (in an amount determined by the Calculation
Agent) by reference to requests for quotations as of approximately 11:00 a.m. (London time)
on such LIBOR Determination Date made by the Calculation Agent to the Reference Banks. If,
on such LIBOR Determination Date, at least two of the Reference Banks provide such
quotations, LIBOR shall equal the arithmetic mean of such quotations. If, on such LIBOR
Determination Date, only one or none of the Reference Banks provide such a quotation, LIBOR
shall be deemed to be the arithmetic mean of the offered quotations that at least two
leading banks in The City of New York (as selected by the Calculation Agent) are quoting on
such LIBOR Determination Date for three-month U.S. Dollar deposits in Europe at
approximately 11:00 a.m. (London time) (in an amount determined by the Calculation Agent).
As used herein, “Reference Banks” means four major banks in the London interbank market
selected by the Calculation Agent.




               (iii) If the Calculation Agent is required but is unable to determine a rate in
accordance with at least one of the procedures provided above, LIBOR for such Interest
Period shall be LIBOR in effect for the immediately preceding Interest Period.



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



               (d) On each LIBOR Determination Date, the Calculation Agent shall notify,
in writing, the Company and the Paying Agent of the applicable Interest Rate that applies to
the
related Interest Period. The Calculation Agent shall, upon the request of a holder of any
Debt
Securities, inform such holder of the Interest Rate that applies to the related Interest
Period. All
calculations made by the Calculation Agent in the absence of manifest error shall be
conclusive
for all purposes and binding on the Company and the holders of the Debt Securities. The Paying
Agent shall be entitled to rely on information received from the Calculation Agent or the
Company as to the applicable Interest Rate. The Company shall, from time to time, provide any
necessary information to the Paying Agent relating to any original issue discount and interest
on
the Debt Securities that is included in any payment and reportable for taxable income
calculation purposes.



               Section 2.11 Extension of Interest Payment Period.


So long as no Event of Default pursuant to Sections 5.01(b), (e), (f), (g), (h) or (i) of this
Indenture has occurred and is continuing, the Company shall have the right, from time to time and
without causing an Event of Default, to defer payments of interest on the Debt Securities by
extending the interest payment period on the Debt Securities at any time and from time to time
during the term of the Debt Securities, for up to 20 consecutive quarterly periods (each such
extended interest payment period, together with all previous and further consecutive extensions
thereof, is referred to herein as an “Extension Period”). No Extension Period may end on a date
other than an Interest Payment Date or extend beyond the Maturity Date, any Optional Redemption
Date or the Special Redemption Date, as the case may be. During any Extension


18









 






Period, interest will continue to accrue on the Debt Securities, and interest on such accrued
interest (such accrued interest and interest thereon referred to herein as “Deferred Interest”)
will accrue at an annual rate equal to the Interest Rate applicable during such Extension Period,
compounded quarterly from the date such Deferred Interest would have been payable were it not for
the Extension Period, to the extent permitted by applicable law. No interest or Deferred Interest
(except any Additional Amounts that may be due and payable) shall be due and payable during an
Extension Period, except at the end thereof. At the end of any Extension Period, the Company shall
pay all Deferred Interest then accrued and unpaid on the Debt Securities; provided,
however, that during any Extension Period, the Company shall be subject to the restrictions set
forth in Section 3.08. Prior to the termination of any Extension Period, the Company may further
extend such Extension Period, provided, that no Extension Period (including all previous
and further consecutive extensions that are part of such Extension Period) shall exceed 20
consecutive quarterly periods. Upon the termination of any Extension Period and upon the payment of
all Deferred Interest, the Company may commence a new Extension Period, subject to the foregoing
requirements. The Company must give the Trustee notice of its election to begin or extend an
Extension Period no later than the close of business on the fifteenth Business Day prior to the
applicable Interest Payment Date. The Trustee shall give notice of the Company’s election to begin
or extend an Extension Period to the Securityholders, promptly after receipt of notice from the
Company of its election to begin or extend an Extension Period.




               Section 2.12 CUSIP Numbers.



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



               Section 2.13 Global Debentures.



               (a) Upon the election of an owner of beneficial interests in outstanding Debt
Securities, the Debt Securities owned by such beneficial owner shall be issued in the form of
one
or more Global Debentures. Each Global Debenture issued under this Indenture shall be
registered in the name of the Depositary designated by the Company for such Global Debenture
or a nominee of such Depositary and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Debenture shall constitute a single Debt Security for
all
purposes of this Indenture.



               (b) Notwithstanding any other provision in this Indenture, no Global
Debenture may be exchanged in whole or in part for Debt Securities in certificated form, and
no
transfer of a Global Debenture in whole or in part may be, registered in the name of any
Person
other than the Depositary for such Global Debenture or a nominee thereof unless (i) such
Depositary advises the Trustee and the Company in writing that such Depositary is no longer



19









 







willing or able to properly discharge its responsibilities as Depositary with respect to such
Global Debenture, and no qualified successor is appointed by the Company within ninety (90) days of
receipt by the Company of such notice, (ii) such Depositary ceases to be a clearing agency
registered under the Exchange Act and no successor is appointed by the Company within ninety (90)
days after obtaining knowledge of such event or (iii) an Event of Default shall have occurred and
be continuing. Upon obtaining knowledge of the occurrence of any event specified in clause (i),
(ii) or (iii) above, the Trustee shall notify the Depositary and instruct the Depositary to notify
all owners of beneficial interests in such Global Debenture of the occurrence of such event and of
the availability of Debt Securities in certificated form to such beneficial owners requesting the
same. Upon the issuance of such Debt Securities in certificated form and the registration in the
Debt Security Register of such Debt Securities in the names of the holders thereof, the Trustee
shall recognize such holders as holders of Debt Securities for all purposes of this Indenture and
the Debt Securities.



               (c) If any Global Debenture is to be exchanged for Debt Securities in
certificated form or canceled in part, or if a Debt Security in certificated form is to be
exchanged
in whole or in part for a beneficial interest in any Global Debenture, then either (i) such
Global
Debenture shall be so surrendered for exchange or cancellation as provided herein or (ii) the
principal amount thereof shall be reduced or increased, subject to Section 2.03, by an amount
equal to the portion thereof to be so exchanged or canceled, or equal to the principal amount
of
such Debt Security to be so exchanged for a beneficial interest therein, as the case may be,
by
means of an appropriate adjustment made on the records of the Debt Security registrar,
whereupon the Trustee, in accordance with the Applicable Depositary Procedures, shall instruct
the Depositary or its authorized representative to make a corresponding adjustment to its
records.
Upon any such surrender or adjustment of a Global Debenture by the Depositary, accompanied
by registration instructions, the Company shall execute and the Trustee shall authenticate and
deliver Debt Securities issuable in exchange for such Global Debenture (or any portion
thereof)
in accordance with the instructions of the Depositary. The Trustee may conclusively rely on,
and
shall be fully protected in relying on, such instructions.



               (d) Every Debt Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Debenture or any portion thereof shall
be
authenticated and delivered in the form of, and shall be, a Global Debenture, unless such Debt
Security is registered in the name of a Person other than the Depositary for such Global
Debenture or a nominee thereof.



               (e) Debt Securities distributed to holders of Book-Entry Capital Securities (as
defined in the Declaration) upon the dissolution of the Trust shall be distributed in the form
of
one or more Global Debentures registered in the name of the Depositary or its nominee, and
deposited with the Debt Securities registrar, as custodian for such Depositary, or with such
Depositary, for credit by the Depositary to the owners of beneficial interests in such
Book-Entry
Capital Securities. Debt Securities distributed to holders of Capital Securities in
certificated
form upon the dissolution of the Trust shall be issued in certificated form.



               (f) The Depositary or its nominee, as the registered owner of a Global
Debenture, shall be the holder of such Global Debenture for all purposes under this Indenture
and the Debt Securities, and owners of beneficial interests in a Global Debenture shall hold
such



20









 







interests pursuant to the Applicable Depositary Procedures. Accordingly, any such owner’s
beneficial interest in a Global Debenture shall be shown only on, and the transfer of such interest
shall be effected only through, records maintained by the Depositary or its nominee or its
Depositary Participants. The Debt Securities registrar and the Trustee shall be entitled to deal
with the Depositary for all purposes of this Indenture relating to a Global Debenture as the sole
holder of the Debt Security and shall have no obligation to any beneficial owner of a Global
Debenture. Neither the Trustee nor the Debt Securities registrar shall have any liability in
respect of any transfers affected by the Depositary or its Depositary Participants.



               (g) The rights of owners of beneficial interests in a Global Debenture shall be exercised
only through the Depositary and shall be limited to those established by law and agreements
between such owners and the Depositary and/or its Depositary Participants.



               (h) No owner of any beneficial interest in any Global Debenture shall have any rights under
this Indenture with respect to such Global Debenture, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the owner and holder of such
Global Debenture for all purposes under the Indenture. None of the Company, the Trustee nor any
agent of the Company or the Trustee will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership interests in a Global
Debenture or maintaining, supervising or reviewing any records relating to such beneficial
ownership interests. Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or impair, as between the
Depositary and such beneficial owners, the operation of customary practices governing the exercise
of the rights of the Depositary or its nominee as holder of any Debt Security.



               (i) Global Debentures shall bear the following legend on the face
thereof:




THIS SECURITY IS A GLOBAL DEBENTURE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”) OR A
NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A
PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A
WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC)
MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.




UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED



21









 







REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.



ARTICLE III

PARTICULAR COVENANTS OF THE COMPANY




               Section 3.01
Payment of Principal, Premium and Interest; Agreed Treatment of the
Debt Securities.



               (a) The Company covenants and agrees that it will duly and punctually pay or
cause to be paid all payments due in respect of the Debt Securities at the place, at the
respective
times and in the manner provided in this Indenture and the Debt Securities. Payment of the
principal of and premium, if any, and interest on the Debt Securities due on the Maturity
Date,
any Optional Redemption Date or the Special Redemption Date, as the case may be, will be
made by the Company in immediately available funds against presentation and surrender of such
Debt Securities. At the option of the Company, each installment of interest on the Debt
Securities due on an Interest Payment Date other than the Maturity Date, any Optional
Redemption Date or the Special Redemption Date, as the case may be, may be paid (i) by
mailing checks for such interest payable to the order of the holders of Debt Securities
entitled
thereto as they appear on the Debt Security Register or (ii) by wire transfer of immediately
available funds to any account with a banking institution located in the United States
designated
by such holders to the Paying Agent no later than the related record date. Notwithstanding
anything to the contrary contained in this Indenture or any Debt Security, if the Trust or the
trustee of the Trust is the holder of any Debt Security, then all payments in respect of such
Debt
Security shall be made by the Company in immediately available funds when due.



               (b) The Company will treat the Debt Securities as indebtedness, and the
interest payable in respect of such Debt Securities (including any Additional Amounts) as
interest, for all U.S. federal income tax purposes. All payments in respect of such Debt
Securities will be made free and clear of U.S. withholding tax provided, that (i) any
beneficial
owner thereof that is a “United States person” within the meaning of Section 7701(a)(30) of
the
Code (A) has provided an Internal Revenue Service Form W-9 (or any substitute or successor
form) in the manner required establishing its status as a “United States person” for U.S.
federal
income tax purposes, and (B) the Internal Revenue Service has neither notified the Issuer that
the
taxpayer identification number furnished by such beneficial owner is incorrect nor notified
the
Issuer that there is underreporting by such beneficial owner, and (ii) any beneficial owner
thereof
that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code has
provided an Internal Revenue Service Form W-8 BEN, Internal Revenue Service Form W-8ECI,
or Internal Revenue Service Form W-8EXP, as applicable (or any substitute or successor form)
in the manner required establishing its non-U.S. status for U.S. federal income tax purposes.



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



22









 





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



               Section 3.02 Offices for Notices and Payments, etc.



               So long as any of the Debt Securities remain outstanding, the Company will maintain in
Wilmington, Delaware or in Sacramento, California an office or agency where the Debt Securities may
be presented for payment, an office or agency where the Debt Securities may be presented for
registration of transfer and for exchange as provided in this Indenture and an office or agency
where notices and demands to or upon the Company in respect of the Debt Securities or of this
Indenture may be served. The Company will give to the Trustee written notice of the location of any
such office or agency and of any change of location thereof. Until otherwise designated from time
to time by the Company in a notice to the Trustee, or specified as contemplated by Section 2.05,
such office or agency for all of the above purposes shall be the Principal Office of the Trustee.
In case the Company shall fail to maintain any such office or agency in Wilmington, Delaware or in
Sacramento, California, or shall fail to give such notice of the location or of any change in the
location thereof, presentations and demands may be made and notices may be served at the Principal
Office of the Trustee.



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



               Section 3.03 Appointments to Fill Vacancies in Trustee’s Office.



               The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 6.09, a Trustee, so that there shall at all times be a
Trustee hereunder.



               Section 3.04 Provision as to Paying Agent.



               (a) If the Company shall appoint a Paying Agent other than the Trustee, it will cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree
with the Trustee, subject to the provision of this Section 3.04,




23









 







               (i) that it will hold all sums held by it as such agent for the payment of all
payments due on the Debt Securities (whether such sums have been paid to it by the Company
or by any other obligor on the Debt Securities) in trust for the benefit of the holders of
the Debt Securities;




               (ii) that it will give the Trustee prompt written notice of any failure by the Company
(or by any other obligor on the Debt Securities) to make any payment on the Debt Securities
when the same shall be due and payable; and




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



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



               Whenever the Company shall have one or more Paying Agents for the Debt Securities, it will,
on or prior to each due date of the payments on the Debt Securities, deposit with a Paying Agent a
sum sufficient to pay all payments so becoming due, such sum to be held in trust for the benefit
of the Persons entitled thereto and (unless such Paying Agent is the Trustee) the Company shall
promptly notify the Trustee in writing of its action or failure to act.



               (c) Anything in this Section 3.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and discharge with
respect to the Debt Securities, or for any other reason, pay, or direct any Paying Agent to pay, to
the Trustee all sums held in trust by the Company or any such Paying Agent, such sums to be held
by the Trustee upon the same terms and conditions herein contained.



               (d) Anything in this Section 3.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 3.04 is subject to Sections 12.03
and 12.04.



               (e) The Company hereby initially appoints the Trustee to act as paying agent
for the Debt Securities (the “Paying Agent”).



               Section 3.05 Certificate to Trustee.



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



24









 





               Section 3.06 Additional Amounts.



               If and for so long as the Trust is the holder of all Debt Securities and is subject to or
otherwise required to pay (or is required to withhold from distributions to holders of Trust
Securities) any additional taxes (including withholding taxes), duties, assessments or other
governmental charges as a result of a Tax Event, the Company will pay such additional amounts (the
“Additional Amounts”) on the Debt Securities or the Trust Securities, as the case may be, as shall
be required so that the net amounts received and retained by the holders of Debt Securities or
Trust Securities, as the case may be, after payment of all taxes (including withholding taxes),
duties, assessments or other governmental charges, will be equal to the amounts that such holders
would have received and retained had no such taxes (including withholding taxes), duties,
assessments or other governmental charges been imposed.



               Whenever in this Indenture or the Debt Securities there is a reference in any context to the
payment of principal of or premium, if any, or interest on the Debt Securities, such mention shall
be deemed to include mention of payments of the Additional Amounts provided for in this Section to
the extent that, in such context, Additional Amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not made,
provided, however, that, notwithstanding anything to the contrary contained in
this Indenture or any Debt Security, the deferral of the payment of interest during an Extension
Period pursuant to Section 2.11 shall not defer the payment of any Additional Amounts that may be
due and payable.



               Section 3.07 Compliance with Consolidation Provisions.



               The Company will not, while any of the Debt Securities remain outstanding, consolidate with,
or merge into, any other Person, or merge into itself, or sell, convey, transfer or otherwise
dispose of all or substantially all of its property or capital stock to any other Person unless the
provisions of Article XI hereof are complied with.



               Section 3.08 Limitation on Dividends.



               If (i) there shall have occurred and be continuing a Default or an Event of Default, (ii) the
Company shall be in default with respect to its payment of any obligations under the Capital
Securities Guarantee or (iii) the Company shall have given notice of its election to defer
payments of interest on the Debt Securities by extending the interest payment period as provided
herein and such period, or any extension thereof, shall have commenced and be continuing, then the
Company may not (A) declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the Company’s capital stock, (B)
make any payment of principal of or premium, if any, or interest on or repay, repurchase or redeem
any debt securities of the Company that rank pari passu in all respects with or junior in interest
to the Debt Securities or (C) make any payment under any guarantees of the Company that rank pari
passu in all respects with or junior in interest to the Capital Securities Guarantee (other than
(a) repurchases, redemptions or other acquisitions of shares of capital stock of the Company (I)
in connection with any employment contract, benefit plan or other similar



25









 







arrangement with or for the benefit of one or more employees, officers, directors or consultants,
(II) in connection with a dividend reinvestment or stockholder stock purchase plan or (III) in
connection with the issuance of capital stock of the Company (or securities convertible into or
exercisable for such capital stock) as consideration in an acquisition transaction entered into
prior to the occurrence of (i), (ii) or (iii) above, (b) as a result of any exchange or conversion
of any class or series of the Company’s capital stock (or any capital stock of a subsidiary of the
Company) for any class or series of the Company’s capital stock or of any class or series of the
Company’s indebtedness for any class or series of the Company’s capital stock, (c) the purchase of
fractional interests in shares of the Company’s capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or exchanged, (d) any
declaration of a dividend in connection with any stockholder’s rights plan, or the issuance of
rights, stock or other property under any stockholder’s rights plan, or the redemption or
repurchase of rights pursuant thereto or (e) any dividend in the form of stock, warrants, options
or other rights where the dividend stock or the stock issuable upon exercise of such warrants,
options or other rights is the same stock as that on which the dividend is being paid or ranks pari
passu with or junior in interest to such stock).



               Section 3.09 Covenants as to the Trust.



               For so long as such Trust Securities remain outstanding, the Company shall maintain 100%
ownership of the Common Securities; provided, however, that any permitted
successor of the Company under this Indenture may succeed to the Company’s ownership of such
Common Securities. The Company, as owner of the Common Securities, shall use commercially
reasonable efforts to cause the Trust (a) to remain a statutory trust, except in connection with a
distribution of Debt Securities to the holders of Trust Securities in liquidation of the Trust,
the redemption of all of the Trust Securities or mergers, consolidations or amalgamations, each as
permitted by the Declaration, (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 Debt Securities.



ARTICLE IV

LISTS




               Section 4.01 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 an Interest Payment Date, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the Securityholders
of the Debt Securities as of such record date; and



               (b) at such other times as the Trustee may request in writing, within 30 days
after the receipt by the Company of any such request, a list of similar form and content as of
a date not more than 15 days prior to the time such list is furnished; except that no such lists
need be furnished under this Section 4.01 so long as the Trustee is in possession thereof by reason
of its acting as Debt Security registrar.



26









 





               Section 4.02 Preservation and Disclosure of Lists.



               (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the holders of Debt Securities
(1) contained in the most recent list furnished to it as provided in Section 4.01 or (2) received
by it in the capacity of Debt Securities registrar (if so acting) hereunder. The Trustee may destroy
any list furnished to it as provided in Section 4.01 upon receipt of a new list so furnished.



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




               (i) afford such applicants access to the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this Section 4.02, or




               (ii) inform such applicants as to the approximate number of holders of Debt Securities
whose names and addresses appear in the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this Section 4.02, and as to the
approximate cost of mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.



               If the Trustee shall elect not to afford such applicants access to such information, the
Trustee shall, upon the written request of such applicants, mail to each Securityholder of Debt
Securities whose name and address appear in the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this Section 4.02 a copy of the form of proxy
or other communication which is specified in such request with reasonable promptness after a tender
to the Trustee of the material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender, the Trustee shall mail
to such applicants and file with the Securities and Exchange Commission, if permitted or required
by applicable law, together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of
the holders of all Debt Securities, as the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If said Commission, as permitted or
required by applicable law, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, said Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained have been met and
shall enter an order so declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.



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               (c) Each and every holder of Debt Securities, by receiving and holding the same, agrees with
the Company and the Trustee that none of the Company, the Trustee or any Paying Agent shall be held
accountable by reason of the disclosure of any such information as to the names and addresses of
the holders of Debt Securities in accordance with the provisions of subsection (b) of this Section
4.02, regardless of the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a request made under said
subsection (b).



     Section 4.03 Financial and Other Information.



     (a) The Company shall deliver, by hardcopy or electronic transmission, to
each Securityholder (i) each Report on Form 10-K and Form 10-Q, if any, prepared by the
Company and filed with the Securities and Exchange Commission in accordance with the
Exchange Act within 10 Business Days after the filing thereof or (ii) if the Company is (a)
not then subject to Section 13 or 15(d) of the Exchange Act (a “Private Entity”) or (b) exempt
from reporting pursuant to Rule 12g3-2(b) thereunder, the information required by Rule 144A(d)(4)
under the Securities Act. Notwithstanding the foregoing, so long as a Holder of the Debt
Securities is the Purchaser or an entity that holds a pool of trust preferred securities
and/or debt securities as collateral for its securities or a trustee thereof, and the Company is (i) a
Private Entity that, on the date of original issuance of the Debt Securities, is required to provide
audited consolidated financial statements to its primary regulatory authority, (ii) a Private Entity
that, on the date of original issuance of the Debt Securities, is not required to provide audited
consolidated financial statements to its primary regulatory authority but subsequently becomes
subject to the audited consolidated financial statement reporting requirements of that
regulatory authority or (iii) subject to Section 13 or 15(d) of the Exchange Act on the date of original
issuance of the Debt Securities or becomes so subject after the date hereof but subsequently
becomes a Private Entity, then, within 90 days after the end of each fiscal year, beginning
with the fiscal year in which the Debt Securities were originally issued if the Company was then
subject to (x) Section 13 or 15(d) of the Exchange Act or (y) audited consolidated financial
statement reporting requirements of its primary regulatory authority or, otherwise, the
earliest fiscal year in which the Company becomes subject to (1) Section 13 or 15(d) of the Exchange
Act or (2) the audited consolidated financial statement reporting requirements of its primary
regulatory authority, the Company shall deliver, by hardcopy or electronic transmission, to
each Securityholder, unless otherwise provided pursuant to the preceding sentence, (A) a copy of
the Company’s audited consolidated financial statements (including balance sheet and income
statement) covering the related annual period and (B) the report of the independent
accountants with respect to such financial statements. In addition to the foregoing, the Company shall
deliver to each Securityholder within 30 days after the end of the fiscal year of the Company, Form
1099 or such other annual U.S. federal income tax information statement required by the Code
containing such information with regard to the Debt Securities held by such holder as is
required by the Code and the income tax regulations of the U.S. Treasury thereunder.



     (b) If and so long as the Holder of the Debt Securities is the Purchaser or an
entity that holds a pool of trust preferred securities and/or debt securities or a trustee
thereof, the Company will cause copies of its reports on Form FR Y-9C to be delivered to such Holder
promptly following their filing with the Federal Reserve.



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ARTICLE V

REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS




               Section 5.01 Events of Default.



               The following events shall be “Events of Default” with respect to Debt Securities:



               (a) the Company defaults in the payment of any interest upon any Debt
Security when it becomes due and payable, and continuance of such default for a period of 30
days; for the avoidance of doubt, an extension of any interest payment period by the Company
in accordance with Section 2.11 of this Indenture shall not constitute a default under this
clause 5.01(a); or



               (b) the Company defaults in the payment of any interest upon any Debt
Security, including any Additional Amounts in respect thereof, following the nonpayment of any
such interest for twenty or more consecutive Interest Periods; or



               (c) the Company defaults in the payment of all or any part of the principal of
(or premium, if any, on) any Debt Securities as and when the same shall become due and
payable, whether at maturity, upon redemption, by acceleration of maturity pursuant to Section
5.01 of this Indenture or otherwise; or



               (d) the Company defaults in the performance of, or breaches, any of its
covenants or agreements in Sections 3.06, 3.07, 3.08 or 3.09 of this Indenture (other than a
covenant or agreement a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified mail, to the Company by the Trustee or
to the Company and the Trustee by the holders of not less than 25% in aggregate principal amount
of the outstanding Debt Securities, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder;
or



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



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



29









 





               (g) a court or administrative or governmental agency or body shall enter a decree or order for
the appointment of a receiver of a Major Depository Institution Subsidiary or all or substantially
all of its property in any liquidation, insolvency or similar proceeding with respect to such Major
Depository Institution Subsidiary or all or substantially all of its property; or



               (h) a Major Depository Institution Subsidiary shall consent to the appointment of a receiver
for it or all or substantially all of its property in any liquidation, insolvency or similar
proceeding with respect to it or all or substantially all of its property; or



               (i) the Trust shall have voluntarily or involuntarily liquidated, dissolved, wound-up its
business or otherwise terminated its existence except in connection with (1) the distribution of
the Debt Securities to holders of the Trust Securities in liquidation of their interests in the
Trust, (2) the redemption of all of the outstanding Trust Securities or (3) mergers,
consolidations or amalgamations, each as permitted by the Declaration.



               If an Event of Default specified under clause (b) of this Section 5.01 occurs and is
continuing with respect to the Debt Securities, then, in each and every such case, either the
Trustee or the holders of not less than 25% in aggregate principal amount of the Debt Securities
then outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal of the Debt Securities and any premium and
interest accrued, but unpaid, thereon to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable. If an Event of Default specified
under clause (e), (f), (g), (h) or (i) of this Section 5.01 occurs, then, in each and every such
case, the entire principal amount of the Debt Securities and any premium and interest accrued, but
unpaid, thereon shall ipso facto become immediately due and payable without
further action.



               The foregoing provisions, however, are subject to the condition that if, at any time after
the principal of the Debt Securities shall have become due by acceleration, and before any
judgment or decree for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, (i) the Company shall pay or shall deposit with the Trustee a sum sufficient
to pay all matured installments of interest upon all the Debt Securities and all payments on the
Debt Securities which shall have become due otherwise than by acceleration (with interest upon all
such payments and Deferred Interest, to the extent permitted by law) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and all other amounts due to the Trustee pursuant to
Section 6.06, if any, and (ii) all Events of Default under this Indenture, other than the
non-payment of the payments in respect of Debt Securities which shall have become due by
acceleration, shall have been cured, waived or otherwise remedied as provided herein, then, in
each and every such case, the holders of a majority in aggregate principal amount of the Debt
Securities then outstanding, by written notice to the Company and to the Trustee, may waive all
defaults and rescind and annul such acceleration 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; provided, however, that if the Debt Securities are
held by the Trust or a trustee of the Trust, such waiver or rescission and annulment shall not be
effective until the



30









 







holders of a majority in aggregate liquidation amount of the outstanding Capital Securities of the
Trust shall have consented to such waiver or rescission and annulment.



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



               Section 5.02 Payment of Debt Securities on Default; Suit Therefor.



               The Company covenants that upon the occurrence of an Event of Default pursuant to clause (b)
of Section 5.01 and upon demand of the Trustee, the Company will pay to the Trustee, for the
benefit of the holders of the Debt Securities, the whole amount that then shall have become due
and payable on all Debt Securities, including Deferred Interest accrued on the Debt Securities;
and, in addition thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including a reasonable compensation to the Trustee, its agents, attorneys
and counsel, and any other amounts due to the Trustee under Section 6.06. In case the Company
shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to institute any actions or
proceedings at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on such Debt Securities and
collect in the manner provided by law out of the property of the Company or any other obligor on
such Debt Securities wherever situated the moneys adjudged or decreed to be payable.



               In case there shall be pending proceedings for the bankruptcy or for the reorganization of the
Company or any other obligor on the Debt Securities under Bankruptcy Law, or in case a receiver or
trustee shall have been appointed for the property of the Company or such other obligor, or in the
case of any other similar judicial proceedings relative to the Company or other obligor upon the
Debt Securities, or to the creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Debt Securities shall then be due and payable as
therein expressed or by acceleration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section 5.02, shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims
for the whole amount of principal and interest owing and unpaid in respect of the Debt Securities
and, in case of any judicial proceedings, to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the Trustee (including
any claim for reasonable compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all other amounts due to the
Trustee under Section 6.06) and of the Securityholders allowed in such judicial proceedings
relative to the Company or any other obligor on the Debt Securities, or to the creditors or
property of the Company or such other obligor, unless prohibited by applicable law and regulations,
to vote on behalf of the holders of the Debt Securities in any election of a trustee or a standby
trustee in arrangement,



31









 







reorganization, liquidation or other bankruptcy or insolvency proceedings or Person performing
similar functions in comparable proceedings, and to collect and receive any moneys or other
property payable or deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses; and any receiver, assignee or trustee in bankruptcy or reorganization
is hereby authorized by each of the Securityholders to make such payments to the Trustee, and, in
the event that the Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor Trustee and their respective agents, attorneys and
counsel, and all other amounts due to the Trustee under Section 6.06.



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



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



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



               Section 5.03 Application of Moneys Collected by Trustee.



               Any moneys collected by the Trustee shall be applied in the following order, at the date or
dates fixed by the Trustee for the distribution of such moneys, upon presentation of the several
Debt Securities in respect of which moneys have been collected, and stamping thereon the payment,
if only partially paid, and upon surrender thereof if fully paid:



               First: To the payment of costs and expenses incurred by, and reasonable fees of, the Trustee,
its agents, attorneys and counsel, and of all other amounts due to the Trustee under Section 6.06;



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



               Third: To the payment of the amounts then due and unpaid upon Debt Securities, in respect of
which or for the benefit of which money has been collected, ratably, without preference or
priority of any kind, according to the amounts due upon such Debt Securities; and



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



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               Section 5.04 Proceedings by Securityholders.



               No holder of any Debt Security shall have any right to institute any suit, action or
proceeding for any remedy hereunder, unless such holder previously shall have given to the Trustee
written notice of an Event of Default with respect to the Debt Securities and unless the holders
of not less than 25% in aggregate principal amount of the Debt Securities then outstanding shall
have given the Trustee a written request to institute such action, suit or proceeding and shall
have offered to the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred thereby, and the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to institute any such action, suit
or proceeding; provided, that no holder of Debt Securities shall have any right to
prejudice the rights of any other holder of Debt Securities, obtain priority or preference over
any other such holder or enforce any right under this Indenture except in the manner herein
provided and for the equal, ratable and common benefit of all holders of Debt Securities.



               Notwithstanding any other provisions in this Indenture, the right of any holder of any Debt
Security to receive payment of the principal of and premium, if any, and interest on such Debt
Security when due, or to institute suit for the enforcement of any such payment, shall not be
impaired or affected without the consent of such holder. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.



               Section 5.05 Proceedings by Trustee.



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



               Section 5.06 Remedies Cumulative and Continuing.



               Except as otherwise provided in Section 2.06, all powers and remedies given by this Article V
to the Trustee or to the Securityholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any other powers and remedies available to the Trustee or the
holders of the Debt Securities, by judicial proceedings or otherwise, to enforce the performance
or observance of the covenants and agreements contained in this Indenture or otherwise established
with respect to the Debt Securities, and no delay or omission of the Trustee or of any holder of
any of the Debt Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power, or shall be construed
to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of
Section 5.04, every power and remedy given by this Article V or by law to the Trustee or to the
Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by
the Trustee or by the Securityholders.




33










 






          Section 5.07 Direction of Proceedings and Waiver of Defaults by Majority of
Securityholders.




          The holders of a majority in aggregate principal amount of the Debt Securities affected at the
time outstanding and, if the Debt Securities are held by the Trust or a trustee of the Trust, the
holders of a majority in aggregate liquidation amount of the outstanding Capital Securities of the
Trust shall have the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee with
respect to such Debt Securities; provided, however, that if the Debt Securities are
held by the Trust or a trustee of the Trust, such time, method and place or such exercise, as the
case may be, may not be so directed until the holders of a majority in aggregate liquidation amount
of the outstanding Capital Securities of the Trust shall have directed such time, method and place
or such exercise, as the case may be; provided, further, that (subject to the
provisions of Section 6.01) the Trustee shall have the right to decline to follow any such
direction if the Trustee shall determine that the action so directed would be unjustly prejudicial
to the holders not taking part in such direction or if the Trustee being advised by counsel
determines that the action or proceeding so directed may not lawfully be taken or if a Responsible
Officer of the Trustee shall determine that the action or proceedings so directed would involve the
Trustee in personal liability. Prior to any declaration of acceleration, or ipso
facto acceleration, of the maturity of the Debt Securities, the holders of a majority in
aggregate principal amount of the Debt Securities at the time outstanding may on behalf of the
holders of all of the Debt Securities waive (or modify any previously granted waiver of) any past
Default or Event of Default and its consequences, except a default (a) in the payment of principal
of or premium, if any, or interest on any of the Debt Securities, (b) in respect of covenants or
provisions hereof which cannot be modified or amended without the consent of the holder of each
Debt Security affected, or (c) in respect of the covenants contained in Section 3.09;
provided, however, that if the Debt Securities are held by the Trust or a trustee
of the Trust, such waiver or modification to such waiver shall not be effective until the holders
of a majority in aggregate liquidation amount of the outstanding Capital 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 Debt Security is required,
such waiver or modification to such waiver shall not be effective until each holder of the
outstanding Capital Securities of the Trust shall have consented to such waiver or modification to
such waiver. Upon any such waiver or modification to such waiver, the Default or Event of Default
covered thereby shall be deemed to be cured for all purposes of this Indenture and the Company, the
Trustee and the holders of the Debt Securities shall be restored to their former positions and
rights hereunder, respectively; but no such waiver or modification to 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 Debt Securities and this
Indenture be deemed to have been cured and to be not continuing.




          Section 5.08 Notice of Defaults.




          The Trustee shall, within 90 days after a Responsible Officer of the Trustee shall have
actual knowledge or received written notice of the occurrence of a default with respect to the
Debt Securities, mail to all Securityholders, as the names and addresses of such holders appear
upon the Debt Security Register, notice of all defaults with respect to the Debt Securities




34









 








known to the Trustee, unless such defaults shall have been cured before the giving of such notice
(the term “default” for the purpose of this Section is hereby defined to be any event specified in
Section 5.01, not including periods of grace, if any, provided for therein); provided,
that, except in the case of default in the payment of the principal of or premium, if any,
or interest on any of the Debt Securities, the Trustee shall be protected in withholding such
notice if and so long as a Responsible Officer of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders.




          Section 5.09 Undertaking to Pay Costs.




          All parties to this Indenture agree, and each holder of any Debt Security by such holder’s
acceptance thereof shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against
any party litigant in such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 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 outstanding
Debt Securities (or, if such Debt Securities are held by the Trust or a trustee of the Trust, more
than 10% in liquidation amount of the outstanding Capital Securities), to any suit instituted by
any Securityholder for the enforcement of the payment of the principal of or premium, if any, or
interest on any Debt Security against the Company on or after the same shall have become due and
payable or to any suit instituted in accordance with Section 14.12.




ARTICLE VI

CONCERNING THE TRUSTEE




          Section 6.01 Duties and Responsibilities of Trustee.




          With respect to the holders of Debt Securities issued hereunder, the Trustee, prior to the
occurrence of an Event of Default with respect to the Debt Securities and after the curing or
waiving of all Events of Default which may have occurred, with respect to the Debt Securities,
undertakes to perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default with respect to the Debt Securities has occurred (which has
not been cured or waived), the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the conduct of such person’s own affairs.




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




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




35









 









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




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



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




          (c) the Trustee shall not be liable with respect to any action taken or omitted
to be taken by it in good faith, in accordance with the direction of the Securityholders
pursuant to
Section 5.07, relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture; and




          (d) the Trustee shall not be charged with knowledge of any Default or Event
of Default with respect to the Debt Securities unless either (1) a Responsible Officer shall
have
actual knowledge of such Default or Event of Default or (2) written notice of such Default or
Event of Default shall have been given to the Trustee by the Company or any other obligor on
the Debt Securities or by any holder of the Debt Securities, except that the Trustee shall be
deemed to have knowledge of any Event of Default pursuant to Sections 5.01(a), 5.01(b) or
5.01(c) hereof (other than an Event of Default resulting from the default in the payment of
Additional Amounts if the Trustee does not have actual knowledge or written notice that such
payment is due and payable) .




          None of the provisions contained in this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers.




          Section 6.02 Reliance on Documents, Opinions, etc. 




          Except as otherwise provided in Section 6.01:




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




36









 








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




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




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




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




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




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




          Section 6.03 No Responsibility for Recitals, etc.




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




37









 







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




          Section 6.04
Trustee, Authenticating Agent, Paying Agents, Transfer Agents or Registrar
May Own Debt Securities.




          The Trustee, any Authenticating Agent, any Paying Agent, any transfer agent or any Debt
Security registrar, in its individual or any other capacity, may become the owner or pledgee of
Debt Securities with the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, transfer agent or Debt Security registrar.




          Section 6.05 Moneys to be Held in Trust.




          Subject to the provisions of Section 12.04, all moneys received by the Trustee or any Paying
Agent shall, until used or applied as herein provided, be held in trust for the purpose for which
they were received, but need not be segregated from other funds except to the extent required by
law. The Trustee and any Paying Agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company. So long as no
Event of Default shall have occurred and be continuing, all interest allowed on any such moneys, if
any, shall be paid from time to time to the Company upon the written order of the Company, signed
by the Chairman of the Board of Directors, the President, the Chief Operating Officer, a Vice
President, the Treasurer or an Assistant Treasurer of the Company.




          Section 6.06 Compensation and Expenses of Trustee.




          The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as shall be agreed to in writing between the Company and
the Trustee (which shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), and the Company will pay or reimburse the Trustee upon its written
request for all documented reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including the reasonable
compensation and the reasonable expenses and disbursements of its counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advance that arises from its
negligence, willful misconduct or bad faith. The Company also covenants to indemnify each of the
Trustee (including in its individual capacity) and any predecessor Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any and all loss, damage,
claim, liability or expense including taxes (other than taxes based on the income of the Trustee),
except to the extent such loss, damage, claim, liability or expense results from the negligence,
willful misconduct or bad faith of such indemnitee, arising out of or in connection with the
acceptance or administration of this trust, including the costs and expenses of defending itself
against any claim or liability in the premises. The obligations of the Company under this Section
to compensate and indemnify the Trustee and to pay or reimburse the Trustee for documented
expenses, disbursements and advances shall constitute additional indebtedness hereunder. Such
additional indebtedness shall be secured by a lien prior to that of the Debt Securities upon all
property and funds held or collected by the




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Trustee as such, except funds held in trust for the benefit of the holders of particular Debt
Securities.




          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
clause (e), (f), (g), (h) or (i) of Section 5.01, the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy, insolvency or other
similar law.




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




          Notwithstanding anything in this Indenture or any Debt Security 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 Debt Securities or otherwise advance funds to or on behalf of
the Company.




          Section 6.07 Officers’ Certificate as Evidence.




          Except as otherwise provided in Sections 6.01 and 6.02, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence,
willful misconduct or bad faith on the part of the Trustee, be deemed to be conclusively proved
and established by an Officers’ Certificate delivered to the Trustee, and such certificate, in the
absence of negligence, willful misconduct or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken or omitted by it under the provisions of this
Indenture upon the faith thereof.




          Section 6.08 Eligibility of Trustee.




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




          The Company may not, nor may any Person directly or indirectly controlling, controlled by, or
under common control with the Company, serve as Trustee, notwithstanding that such corporation or
national association shall be otherwise eligible and qualified under this Article.




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          In case at any time the Trustee shall cease to be eligible in accordance with the provisions
of this Section, the Trustee shall resign immediately in the manner and with the effect specified
in Section 6.09.




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




          Section 6.09 Resignation or Removal of Trustee.




          (a) The Trustee, or any trustee or trustees hereafter appointed, may at any
time resign by giving written notice of such resignation to the Company and by mailing notice
thereof, at the Company’s expense, to the holders of the Debt Securities at their addresses as
they
shall appear on the Debt Security Register. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee or trustees by written instrument, in
duplicate, executed by order of its Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor Trustee. If no successor
Trustee
shall have been so appointed and have accepted appointment within 30 days after the mailing of
such notice of resignation to the affected Securityholders, the resigning Trustee may petition
any
court of competent jurisdiction for the appointment of a successor Trustee, or any
Securityholder
who has been a bona fide holder of a Debt Security or Debt Securities for at least six months
may, subject to the provisions of Section 5.09, on behalf of himself or herself and all others
similarly situated, petition any such court for the appointment of a successor Trustee. Such
court
may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a
successor Trustee.




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





          (i) the Trustee shall fail to comply with the provisions of the last paragraph of
Section 6.08 after written request therefor by the Company or by any Securityholder who has
been a bona fide holder of a Debt Security or Debt Securities for at least six months;




          (ii) the Trustee shall cease to be eligible in accordance with the provisions of
Section 6.08 and shall fail to resign after written request therefor by the Company or by
any such Securityholder; or




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


then, in any such case, the Company may remove the Trustee and appoint a successor Trustee by
written instrument, in duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the successor Trustee, or,
subject to the provisions of Section 5.09, if no successor Trustee shall have been so appointed
and have accepted appointment within 30 days of the occurrence of any of (i), (ii) or (iii) above,
any Securityholder who has been a bona fide holder of a Debt Security or Debt Securities for at




40









 







least six months may, on behalf of himself or herself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee. Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor Trustee.




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




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




          Section 6.10 Acceptance by Successor Trustee.




          Any successor Trustee appointed as provided in Section 6.09 shall execute, acknowledge and
deliver to the Company and to its predecessor Trustee an indenture supplemental hereto which shall
contain such provisions as shall be deemed necessary or desirable to confirm that all of the
rights, powers, trusts and duties of the retiring Trustee shall be vested in the successor Trustee,
and thereupon the resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, duties and obligations with respect to the Debt Securities of its predecessor
hereunder, with like effect as if originally named as Trustee herein; but, nevertheless, on the
written request of the Company or of the successor Trustee, the Trustee ceasing to act shall, upon
payment of the amounts then due it pursuant to the provisions of Section 6.06, execute and deliver
an instrument transferring to such successor Trustee all the rights and powers of the Trustee so
ceasing to act and shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder. 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 6.06.




          No successor Trustee shall accept appointment as provided in this Section unless at the time
of such acceptance such successor Trustee shall be eligible and qualified under the provisions of
Section 6.08.




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




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




          Section 6.11 Succession by Merger, etc.




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




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




          Section 6.12 Authenticating Agents.




          There may be one or more Authenticating Agents appointed by the Trustee upon the request of
the Company with power to act on its behalf and subject to its direction in the authentication and
delivery of Debt Securities issued upon exchange or registration of transfer thereof as fully to
all intents and purposes as though any such Authenticating Agent had been expressly authorized to
authenticate and deliver Debt Securities; provided, 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 Debt Securities. Any such Authenticating Agent shall
at all times be a corporation organized and doing business under the laws of the United States or
of any state thereof or of the District of Columbia authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of at least $50,000,000 and being
subject to supervision or examination by federal, state or District of Columbia authority. If such
corporation publishes reports of condition at least annually pursuant to law or the requirements
of such authority, then for the purposes of this Section 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




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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 without the execution or filing of any paper or any further act on the
part of the parties hereto or such Authenticating Agent.




          Any Authenticating Agent may at any time resign by giving written notice of resignation to
the Trustee and to the Company. The Trustee may at any time terminate the agency of any
Authenticating Agent with respect to the Debt Securities by giving written notice of termination
to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time any Authenticating Agent shall cease to be
eligible under this Section, the Trustee may, and upon the request of the Company shall, promptly
appoint a successor Authenticating Agent eligible under this Section, shall give written notice of
such appointment to the Company and shall mail notice of such appointment to all holders of Debt
Securities as the names and addresses of such holders appear on the Debt Security Register. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested
with all rights, powers, duties and responsibilities 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 7.01 Action by Securityholders.




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




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




          Section 7.02 Proof of Execution by Securityholders.




          Subject to the provisions of Sections 6.01, 6.02 and 8.05, proof of the execution of any
instrument by a Securityholder or such Securityholder’s agent or proxy shall be sufficient if made
in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in
such manner as shall be satisfactory to the Trustee. The ownership of Debt Securities shall be
proved by the Debt Security Register or by a certificate of the Debt Security registrar. The
Trustee may require such additional proof of any matter referred to in this Section as it shall
deem necessary.




          The record of any Securityholders’ meeting shall be proved in the manner provided in Section
8.06.




          Section 7.03 Who Are Deemed Absolute Owners.




          Prior to due presentment for registration of transfer of any Debt Security, the Company, the
Trustee, any Authenticating Agent, any Paying Agent, any transfer agent and any Debt Security
registrar may deem the Person in whose name such Debt Security shall be registered upon the Debt
Security Register to be, and may treat such Person as, the absolute owner of such Debt Security
(whether or not such Debt Security shall be overdue) for the purpose of receiving payment of or on
account of the principal of and premium, if any, and interest on such Debt Security and for all
other purposes; and none of the Company, the Trustee, any Authenticating Agent, any Paying Agent,
any transfer agent or any Debt Security registrar shall be affected by any notice to the contrary.
All such payments so made to any holder for the time being or upon such holder’s order shall be
valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Debt Security.




44









 








          Section 7.04 Debt Securities Owned by Company Deemed Not Outstanding.




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




          Section 7.05
Revocation of Consents; Future Holders Bound.




          At any time prior to (but not after) the evidencing to the Trustee, as provided in Section
7.01, of the taking of any action by the holders of the percentage in aggregate principal amount
of the Debt Securities specified in this Indenture in connection with such action, any holder (in
cases where no record date has been set pursuant to Section 7.01) or any holder as of an
applicable record date (in cases where a record date has been set pursuant to Section 7.01) of a
Debt Security (or any Debt Security issued in whole or in part in exchange or substitution
therefor) the serial number of which is shown by the evidence to be included in the Debt
Securities the holders of which have consented to such action may, by filing written notice with
the Trustee at the Principal Office of the Trustee and upon proof of holding as provided in
Section 7.02, revoke such action so far as concerns such Debt Security (or so far as concerns the
principal amount represented by any exchanged or substituted Debt Security). Except as aforesaid
any such action taken by the holder of any Debt Security shall be conclusive and binding upon such
holder and upon all future holders and owners of such Debt Security, and of any Debt Security
issued in exchange or substitution therefor or on registration of transfer thereof, irrespective
of whether or not any notation in regard thereto is made upon such Debt Security or any Debt
Security issued in exchange or substitution therefor.




ARTICLE VIII

SECURITYHOLDERS’ MEETINGS




          Section 8.01 Purposes of Meetings.




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




          (a) to give any notice to the Company or to the Trustee, or to give any directions to the
Trustee, or to consent to the waiving of any default hereunder and its




45









 







consequences, or to take any other action authorized to be taken by Securityholders pursuant to
any of the provisions of Article V;




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




          (c) to consent to the execution of an indenture or indentures supplemental
hereto pursuant to the provisions of Section 9.02; or




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




          Section 8.02 Call of Meetings by Trustee.




          The Trustee may at any time call a meeting of Securityholders to take any action specified in
Section 8.01, to be held at such time and at such place in The City of New York, the Borough of
Manhattan, or Wilmington, Delaware, as the Trustee shall determine. Notice of every meeting of the
Securityholders, setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be mailed to holders of Debt Securities affected
at their addresses as they shall appear on the Debt Securities Register. Such notice shall be
mailed not less than 20 nor more than 180 days prior to the date fixed for the meeting.




          Section 8.03 Call of Meetings by Company or Securityholders.




          In case at any time the Company pursuant to a Board Resolution, or the holders of at least
10% in aggregate principal amount of the Debt Securities, as the case may be, then outstanding,
shall have requested the Trustee to call a meeting of Securityholders, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall
not have mailed the notice of such meeting within 20 days after receipt of such request, then the
Company or such Securityholders may determine the time and the place in Sacramento, California for
such meeting and may call such meeting to take any action authorized in Section 8.01, by mailing
notice thereof as provided in Section 8.02.




          Section 8.04 Qualifications for Voting.




          To be entitled to vote at any meeting of Securityholders, a Person shall be (a) a holder of
one or more Debt Securities or (b) a Person appointed by an instrument in writing as proxy by a
holder of one or more Debt Securities. The only Persons who shall be entitled to be present or to
speak at any meeting of Securityholders shall be the Persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee and its counsel and any representatives of
the Company and its counsel.




          Section 8.05 Regulations.




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




46









 







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




          The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the Company or by Securityholders as provided in
Section 8.03, in which case the Company or the Securityholders calling the meeting, as the case may
be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote at the meeting.




          Subject to the provisions of Section 7.04, at any meeting each holder of Debt Securities with
respect to which such meeting is being held or proxy therefor shall be entitled to one vote for
each $1,000 principal amount of Debt Securities held or represented by such holder;
provided, however, that no vote shall be cast or counted at any meeting in respect
of any Debt Security challenged as not outstanding and ruled by the chairman of the meeting to be
not outstanding. The chairman of the meeting shall have no right to vote other than by virtue of
Debt Securities held by such chairman or instruments in writing as aforesaid duly designating such
chairman as the Person to vote on behalf of other Securityholders. Any meeting of Securityholders
duly called pursuant to the provisions of Section 8.02 or 8.03 may be adjourned from time to time
by a majority of those present, whether or not constituting a quorum, and the meeting may be held
as so adjourned without further notice.




          Section 8.06 Voting.




          The vote upon any resolution submitted to any meeting of holders of Debt Securities with
respect to which such meeting is being held shall be by written ballots on which shall be
subscribed the signatures of such holders or of their representatives by proxy and the serial
number or numbers of the Debt Securities held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of the meeting their
verified written reports in triplicate of all votes cast at the meeting. A record in duplicate of
the proceedings of each meeting of Securityholders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as
provided in Section 8.02. The record shall show the serial numbers of the Debt Securities voting
in favor of or against any resolution. The record shall be signed and verified by the affidavits
of the permanent chairman and secretary of the meeting and one of the duplicates shall be
delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.




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




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          Section 8.07
Quorum; Actions.




          The Persons entitled to vote a majority in aggregate principal amount of the Debt Securities
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 aggregate principal amount of the Debt Securities then
outstanding, the Persons holding or representing such specified percentage in aggregate principal
amount of the Debt Securities 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 8.02, except that
such notice need be given only once not less than five days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the aggregate principal amount of the Debt
Securities then outstanding which shall constitute a quorum.




          Except as limited by the proviso in the first paragraph of Section 9.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted by the affirmative vote of the holders of a majority in aggregate
principal amount of the Debt Securities then outstanding; provided, however, that,
except as limited by the proviso in the first paragraph of Section 9.02, any resolution with
respect to any consent, waiver, request, demand, notice, authorization, direction or other action
that this Indenture expressly provides may be given by the holders of not less than a specified
percentage in outstanding principal amount of the Debt Securities may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a quorum is present as aforesaid only by the
affirmative vote of the holders of not less than such specified percentage in aggregate principal
amount of the Debt Securities then outstanding.




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




ARTICLE IX

SUPPLEMENTAL INDENTURES




          Section 9.01 Supplemental Indentures without Consent of Securityholders.




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




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




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




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




          (d) to add to, delete from, or revise the terms of Debt Securities, including,
without limitation, any terms relating to the issuance, exchange, registration or transfer of
Debt
Securities, including to provide for transfer procedures and restrictions substantially
similar to
those applicable to the Capital Securities, as required by Section 2.05 (for purposes of
assuring
that no registration of Debt Securities is required under the Securities Act),
provided, that any
such action shall not adversely affect the interests of the holders of the Debt Securities
then
outstanding (it being understood, for purposes of this proviso, that transfer restrictions on
Debt
Securities substantially similar to those applicable to Capital Securities shall not be deemed
to
adversely affect the holders of the Debt Securities);




          (e) to evidence and provide for the acceptance of appointment hereunder by a
successor Trustee with respect to the Debt Securities and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.10;




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




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




          The Trustee is hereby authorized to join with the Company in the execution of any such
supplemental indenture, to make any further appropriate agreements and stipulations





49










 





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 may be executed by
the Company and the Trustee without the consent of the holders of any of the Debt Securities at
the time outstanding, notwithstanding any of the provisions of Section 9.02.




          Section 9.02 Supplemental Indentures with Consent of Securityholders.




          With the consent (evidenced as provided in Section 7.01) of the holders of a majority in
aggregate principal amount of the Debt Securities at the time outstanding affected by such
supplemental indenture, the Company, when authorized by a Board Resolution, and the Trustee may
from time to time and at any time enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act, then in effect, applicable to
indentures qualified thereunder) for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or
of modifying in any manner the rights of the holders of the Debt Securities; provided,
however, that no such supplemental indenture shall, without the consent of the holders of
each Debt Security then outstanding and affected thereby, (i) change the Maturity Date of any Debt
Security, or reduce the principal amount thereof or any premium thereon, or reduce the rate (or
manner of calculation of the rate) or extend the time of payment of interest thereon, or reduce
(other than as a result of the maturity or earlier redemption of any such Debt Security in
accordance with the terms of this Indenture and such Debt Security) or increase the aggregate
principal amount of Debt Securities then outstanding, or change any of the redemption provisions,
or make the principal thereof or any interest or premium thereon payable in any coin or currency
other than United States Dollars, or impair or affect the right of any Securityholder to institute
suit for payment thereof, or (ii) reduce the aforesaid percentage of Debt Securities the holders of
which are required to consent to any such supplemental indenture; and provided, further,
that if the Debt Securities are held by the Trust or the trustee of the Trust, such supplemental
indenture shall not be effective until the holders of a majority in aggregate liquidation amount of
the outstanding Capital Securities shall have consented to such supplemental indenture;
provided, further, that if the consent of the Securityholder of each outstanding
Debt Security is required, such supplemental indenture shall not be effective until each holder of
the outstanding Capital 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 (and holders of Capital Securities, if required) 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.




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




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




          Section 9.03 Effect of Supplemental Indentures.




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




          Section 9.04 Notation on Debt Securities.




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




          Section 9.05 Evidence of Compliance of Supplemental Indenture to be Furnished to Trustee.




          The Trustee, subject to the provisions of Sections 6.01 and 6.02, shall, in addition to the
documents required by Section 14.06, receive an Officers’ Certificate as conclusive evidence that
any supplemental indenture executed pursuant hereto complies with the requirements of this Article
IX. The Trustee shall also 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.





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ARTICLE X

REDEMPTION OF SECURITIES




          Section 10.01 Optional Redemption.




          The Company shall have the right, subject to the receipt by the Company of the prior approval
from the Federal Reserve, if then required under applicable capital guidelines or policies of the
Federal Reserve, to redeem the Debt Securities, in whole or (provided that all accrued and unpaid
interest has been paid on all Debt Securities for all Interest Periods terminating on or prior to
such date) from time to time in part, on any Interest Payment Date on or after November 23, 2010
(each, an “Optional Redemption Date”), at the Optional Redemption Price.




          Section 10.02 Special Event Redemption.




          If a Special Event shall occur and be continuing, the Company shall have the right, subject to
the receipt by the Company of prior approval from the Federal Reserve, if then required under
applicable capital guidelines or policies of the Federal Reserve, to redeem the Debt Securities, in
whole but not in part, at any time within 90 days following the occurrence of such Special Event
(the “Special Redemption Date”), at the Special Redemption Price.




          Section 10.03 Notice of Redemption; Selection of Debt Securities.




          In case the Company shall desire to exercise the right to redeem all, or, as the case may be,
any part of the Debt Securities, it shall fix a date for redemption and shall mail, or cause the
Trustee to mail (at the expense of the Company), a notice of such redemption at least 30 and not
more than 60 days prior to the date fixed for redemption to the holders of Debt Securities so to
be redeemed as a whole or in part at their last addresses as the same appear on the Debt Security
Register. Such mailing shall be by first class mail. The notice if mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not the holder
receives such notice. In any case, failure to give such notice by mail or any defect in the notice
to the holder of any Debt Security designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other Debt Security.




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




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          Prior to 10:00 a.m., New York City time, on the Optional Redemption Date or the Special
Redemption Date specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more Paying Agents an amount of money
sufficient to redeem on such date all the Debt Securities so called for redemption at the
applicable price therefor, together with unpaid interest accrued to such date.




          The Company will give the Trustee notice not less than 45 nor more than 75 days prior to the
date fixed for redemption as to the price at which the Debt Securities are to be redeemed and the
aggregate principal amount of Debt Securities to be redeemed and the Trustee shall select, in such
manner as in its sole discretion it shall deem appropriate and fair, the Debt Securities or
portions thereof (in integral multiples of $1,000) to be redeemed.




          Section 10.04 Payment of Debt Securities Called for Redemption.




          If notice of redemption has been given as provided in Section 10.03, the Debt Securities or
portions of Debt Securities with respect to which such notice has been given shall become due and
payable on the related Optional Redemption Date or Special Redemption Date (as the case may be)
and at the place or places stated in such notice at the applicable price therefor, together with
unpaid interest accrued thereon to said Optional Redemption Date or the Special Redemption Date
(as the case may be), and on and after said Optional Redemption Date or the Special Redemption
Date (as the case may be) (unless the Company shall default in the payment of such Debt Securities
at the redemption price, together with unpaid interest accrued thereon to said date) interest on
the Debt Securities or portions of Debt Securities so called for redemption shall cease to accrue.
On presentation and surrender of such Debt Securities at a place of payment specified in said
notice, such Debt Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable price therefor, together with unpaid interest, if any, accrued thereon
to said Optional Redemption Date or the Special Redemption Date (as the case may be);
provided, however, that interest payable on any Interest Payment Date on or prior
to said Optional Redemption Date or the Special Redemption Date will be paid to the holders on the
relevant regular record date.




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




ARTICLE XI

CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE




          Section 11.01 Company May Consolidate, etc., on Certain Terms.




          Nothing contained in this Indenture or in the Debt Securities shall prevent any consolidation
or merger of the Company with or into any other corporation or corporations (whether or not
affiliated with the Company) or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale, conveyance,
transfer or other disposition of all or substantially all of the property or capital stock




53









 







of the Company or its successor or successors to any other corporation (whether or not affiliated
with the Company or its successor or successors) authorized to acquire and operate the same;
provided, however, that the Company hereby covenants and agrees that (i) upon any such
consolidation, merger (where the Company is not the surviving corporation), sale, conveyance,
transfer or other disposition, the successor entity shall be a corporation organized and existing
under the laws of the United States or any state thereof or the District of Columbia (unless such
corporation has (1) agreed to make all payments due in respect of the Debt Securities or, if
outstanding, the Trust Securities and the Capital Securities Guarantee without withholding or
deduction for, or on account of, any taxes, duties, assessments or other governmental charges under
the laws or regulations of the jurisdiction of organization or residence (for tax purposes) of such
corporation or any political subdivision or taxing authority thereof or therein unless required by
applicable law, in which case such corporation shall have agreed to pay such additional amounts as
shall be required so that the net amounts received and retained by the holders of such Debt
Securities or Trust Securities, as the case may be, after payment of all taxes (including
withholding taxes), duties, assessments or other governmental charges, will be equal to the amounts
that such holders would have received and retained had no such taxes (including withholding taxes),
duties, assessments or other governmental charges been imposed, (2) irrevocably and unconditionally
consented and submitted to the jurisdiction of any United States federal court or New York state
court, in each case located in the Borough of Manhattan, The City of New York, in respect of any
action, suit or proceeding against it arising out of or in connection with this Indenture, the Debt
Securities, the Capital Securities Guarantee or the Declaration and irrevocably and unconditionally
waived, to the fullest extent permitted by law, any objection to the laying of venue in any such
court or that any such action, suit or proceeding has been brought in an inconvenient forum and (3)
irrevocably appointed an agent in The City of New York for service of process in any action, suit
or proceeding referred to in clause (2) above) and such corporation expressly assumes all of the
obligations of the Company under the Debt Securities, this Indenture, the Capital Securities
Guarantee and the Declaration and (ii) after giving effect to any such consolidation, merger, sale,
conveyance, transfer or other disposition, no Default or Event of Default shall have occurred and
be continuing.




          Section 11.02 Successor Entity to be Substituted.




          In case of any such consolidation, merger, sale, conveyance, transfer or other disposition
contemplated in Section 11.01 and upon the assumption by the successor corporation, by
supplemental indenture, executed and delivered to the Trustee and reasonably satisfactory in form
to the Trustee, of the due and punctual payment of the principal of and premium, if any, and
interest on all of the Debt Securities and the due and punctual performance and observance of all
of the covenants and conditions of this Indenture to be performed or observed by the Company, such
successor corporation shall succeed to and be substituted for the Company, with the same effect as
if it had been named herein as the Company, and thereupon the predecessor entity shall be relieved
of any further liability or obligation hereunder or upon the Debt Securities. Such successor
corporation thereupon may cause to be signed, and may issue either in its own name or in the name
of the Company, any or all of the Debt Securities issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee or the Authenticating Agent; and,
upon the order of such successor corporation instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee or the Authenticating Agent
shall authenticate and deliver any Debt




54









 







Securities which previously shall have been signed and delivered by the officers of the Company to
the Trustee or the Authenticating Agent for authentication, and any Debt Securities which such
successor corporation thereafter shall cause to be signed and delivered to the Trustee or the
Authenticating Agent for that purpose. All the Debt Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Debt Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all of such Debt
Securities had been issued at the date of the execution hereof.




          Section 11.03 Opinion of Counsel to be Given to Trustee.




          The Trustee, subject to the provisions of Sections 6.01 and 6.02, shall receive, in addition
to the Opinion of Counsel required by Section 9.05, an Opinion of Counsel as conclusive evidence
that any consolidation, merger, sale, conveyance, transfer or other disposition, and any
assumption, permitted or required by the terms of this Article XI complies with the provisions of
this Article XI.




ARTICLE XII

SATISFACTION AND DISCHARGE OF INDENTURE




          Section 12.01 Discharge of Indenture.




          When (a) the Company shall deliver to the Trustee for cancellation all Debt Securities
theretofore authenticated (other than any Debt Securities which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in Section 2.06) and not theretofore
canceled, or (b) all the Debt Securities not theretofore canceled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become due and payable
within one year or are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and the Company shall deposit with the
Trustee, in trust, funds, which shall be immediately due and payable, sufficient to pay at maturity
or upon redemption all of the Debt Securities (other than any Debt Securities which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.06)
not theretofore canceled or delivered to the Trustee for cancellation, including principal and
premium, if any, and interest due or to become due to the Maturity Date, any Optional Redemption
Date or the Special Redemption Date, as the case may be, but excluding, however, the amount of any
moneys for the payment of principal of and premium, if any, or interest on the Debt Securities (1)
theretofore repaid to the Company in accordance with the provisions of Section 12.04, or (2) paid
to any state or to the District of Columbia pursuant to its unclaimed property or similar laws, and
if in the case of either clause (a) or (b) above the Company shall also pay or cause to be paid all
other sums payable hereunder by the Company, then this Indenture shall cease to be of further
effect except for the provisions of Sections 2.05, 2.06, 3.01, 3.02, 3.04, 6.06, 6.09 and 12.04
hereof, which shall survive until such Debt Securities shall mature or are redeemed, as the case
may be, and are paid in full. Thereafter, Sections 6.06, 6.09 and 12.04 shall survive, and the
Trustee, on demand of the Company accompanied by an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with, and at the cost and expense
of the Company, shall execute proper instruments acknowledging satisfaction of and discharging this
Indenture, the Company,




55









 







however, hereby agreeing to reimburse the Trustee for any costs or expenses thereafter reasonably
and properly incurred by the Trustee in connection with this Indenture or the Debt Securities.




          Section 12.02 Deposited Moneys to be Held in Trust by Trustee.




          Subject to the provisions of Section 12.04, all moneys deposited with the Trustee pursuant to
Section 12.01 shall be held in trust and applied by it to the payment, either directly or through
any Paying Agent (including the Company if acting as its own Paying Agent), to the holders of the
particular Debt Securities for the payment of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal, premium, if any, and interest.




          Section 12.03 Paying Agent to Repay Moneys Held.




          Upon the satisfaction and discharge of this Indenture, all moneys then held by any Paying
Agent of the Debt Securities (other than the Trustee) shall, upon demand of the Company, be repaid
to the Company or paid to the Trustee, and thereupon such Paying Agent shall be released from all
further liability with respect to such moneys.




          Section 12.04 Return of Unclaimed Moneys.




          Any moneys deposited with or paid to the Trustee or any Paying Agent for payment of the
principal of and premium, if any, or interest on Debt Securities and not applied but remaining
unclaimed by the holders of Debt Securities for two years after the date upon which the principal
of and premium, if any, or interest on such Debt Securities, as the case may be, shall have become
due and payable, shall be repaid to the Company by the Trustee or such Paying Agent on written
demand; and the holder of any of the Debt Securities shall thereafter look only to the Company for
any payment which such holder may be entitled to collect and all liability of the Trustee or such
Paying Agent with respect to such moneys shall thereupon cease.




ARTICLE XIII

IMMUNITY OF INCORPORATORS, STOCKHOLDERS,

OFFICERS AND DIRECTORS




          Section 13.01 Indenture and Debt Securities Solely Corporate
Obligations.




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





56










 






ARTICLE XIV

MISCELLANEOUS PROVISIONS




          Section 14.01 Successors.



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



          Section 14.02 Official Acts by Successor Entity.



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



          Section 14.03 Surrender of Company Powers.



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



          Section 14.04 Addresses for Notices, etc.



          Any notice or demand which by any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the Securityholders on the Company may be given or served in
writing by being deposited postage prepaid by registered or certified mail in a post office letter
box addressed (until another address is filed by the Company with the Trustee for such purpose) to
the Company at 555 Montgomery Street, San Francisco, California 94111, Attention: Jonas B. Miller.
Any notice, direction, request or demand by any Securityholder or the Company to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or
made in writing at the office of Wilmington Trust Company at Rodney Square North, 1100 North
Market Street, Wilmington, DE 19890-0001, Attention: Corporate Capital Markets.



          Section 14.05 Governing Law.



          This Indenture and the Debt Securities shall each be governed by, and construed in accordance
with, the laws of the State of New York, without regard to conflict of laws principles of said
State other than Section 5-1401 of the New York General Obligations Law.



          Section 14.06 Evidence of Compliance with Conditions Precedent.



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



57









 




have been complied with (except that no such Opinion of Counsel is required to be furnished
to the Trustee in connection with the authentication and issuance of Debt Securities).




          Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture (except
certificates delivered pursuant to Section 3.05) shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition and the definitions
relating thereto; (b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such certificate or opinion are
based; (c) a statement that, in the opinion of such person, he or she has made such examination or
investigation as is necessary to enable him or her to express an informed opinion as to whether or
not such covenant or condition has been complied with; and (d) a statement as to whether or not,
in the opinion of such person, such condition or covenant has been complied with.



          Section 14.07 Business Day Convention.



          Notwithstanding anything to the contrary contained herein, if any Interest Payment Date after
the Interest Payment Date in November 2010, other than the Maturity Date, any Optional Redemption
Date or the Special Redemption Date, falls on a day that is not a Business Day, then any interest
payable will be paid on, and such Interest Payment Date will be moved to, the next succeeding
Business Day, and additional interest will accrue for each day that such payment is delayed as a
result thereof. If any Interest Payment Date on or prior to the Interest Payment Date in November
2010, the Maturity Date, any Optional Redemption Date or the Special Redemption Date falls on a
day that is not a Business Day, then the principal, premium, if any, and/or interest payable on
such date will be paid on the next succeeding Business Day, and no additional interest will accrue
in respect of such payment made on such next succeeding Business Day.



          Section 14.08 Table of Contents, Headings, etc.



          The table of contents and the titles and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions hereof.



          Section 14.09 Execution in Counterparts.



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



          Section 14.10 Separability.



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



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          Section 14.11 Assignment.



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



          Section 14.12 Acknowledgment of Rights.



          The Company acknowledges that, with respect to any Debt Securities held by the Trust or a
trustee of the Trust, if such trustee of the Trust fails to enforce its rights under this
Indenture as the holder of Debt Securities held as the assets of the Trust after the holders of a
majority in aggregate liquidation amount of the outstanding Capital Securities of the Trust have
so directed in writing such 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 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, on or principal of the Debt Securities on the date such interest,
premium, if any, or principal is otherwise due and payable (or, in the case of redemption, on the
related Optional Redemption Date or the Special Redemption Date (as the case may be)), the Company
acknowledges that a holder of outstanding Capital Securities of the Trust may directly institute a
proceeding against the Company for enforcement of payment to such holder directly of the principal
of or premium, if any, or interest on the Debt Securities having an aggregate principal amount
equal to the aggregate liquidation amount of the Capital Securities of such holder on or after the
respective due date (or Optional Redemption Date or Special Redemption Date (as the case may be))
specified in the Debt Securities.



ARTICLE XV

SUBORDINATION OF DEBT SECURITIES




          Section 15.01 Agreement to Subordinate.



          The Company covenants and agrees, and each holder of Debt Securities issued hereunder and
under any supplemental indenture (the “Additional Provisions”) by such holder’s acceptance thereof
likewise covenants and agrees, that all Debt Securities shall be issued subject to the provisions
of this Article XV; and each holder of a Debt Security, whether upon original issue or upon
transfer or assignment thereof, accepts and agrees to be bound by such provisions.



          The payment by the Company of the payments due on all Debt Securities issued hereunder and
under any Additional Provisions shall, to the extent and in the manner hereinafter set forth, be
subordinated and junior in right of payment to the prior payment in full of all Senior
Indebtedness of the Company, whether outstanding at the date of this Indenture or thereafter
incurred.



59









 





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



          Section 15.02 Default on Senior Indebtedness.



          In the event and during the continuation of any default by the Company in the payment of
principal, premium, interest or any other amount due on any Senior Indebtedness of the Company
following any applicable grace period, or in the event that the maturity of any Senior Indebtedness
of the Company has been accelerated because of a default, and such acceleration has not been
rescinded or canceled and such Senior Indebtedness has not been paid in full, then, in either case,
no payment shall be made by the Company with respect to the payments due on the Debt Securities.



          In the event that, notwithstanding the foregoing, any payment shall be received by the
Trustee or any Securityholder when such payment is prohibited by the preceding paragraph of this
Section, such payment shall, subject to Section 15.06, be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant to which any of such
Senior Indebtedness may have been issued, as their respective interests may appear, but only to
the extent that the holders of the Senior Indebtedness (or their representative or representatives
or trustee) notify the Trustee in writing within 90 days of such payment of the amounts then due
and owing on the Senior Indebtedness and only the amounts specified in such notice to the Trustee
shall be paid to the holders of Senior Indebtedness.



          Section 15.03 Liquidation; Dissolution; Bankruptcy.



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



60









 





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



          For purposes of this Article XV, the words “cash, property or securities” shall not be deemed
to include shares of stock of the Company as reorganized or readjusted, or securities of the
Company or any other corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this Article XV with respect
to the Debt Securities to the payment of all Senior Indebtedness of the Company, that may at the
time be outstanding, provided, that (a) such Senior Indebtedness is assumed by the new
corporation, if any, resulting from any such reorganization or readjustment, and (b) the rights of
the holders of such Senior Indebtedness are not, without the consent of such holders, altered by
such reorganization or readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the Company following the
conveyance, transfer or other disposition 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 15.02 or in this Section shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 6.06 of this Indenture.



          Section 15.04 Subrogation.



          Subject to the payment in full of all Senior Indebtedness of the Company, the Securityholders
shall be subrogated to the rights of the holders of such Senior Indebtedness to receive payments
or distributions of cash, property or securities of the Company applicable to such Senior
Indebtedness until all payments due on the Debt Securities shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to the holders of such Senior
Indebtedness of any cash, property or securities to which the Securityholders or the Trustee would
be entitled except for the provisions of this Article XV, and no payment over pursuant to the
provisions of this Article XV to or for the benefit of the holders of such Senior Indebtedness by
Securityholders or the Trustee, shall, as between the Company, its creditors other than holders of
Senior Indebtedness of the Company, and the holders of the Debt Securities be deemed to be a
payment or distribution by the Company to or on account of such Senior Indebtedness. It is
understood that the provisions of this Article XV are, and are intended, solely for the purposes
of



61









 




defining the relative rights of the holders of the Debt Securities, on the one hand, and the
holders of such Senior Indebtedness, on the other hand.




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



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



          Section 15.05 Trustee to Effectuate Subordination.



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



          Section 15.06 Notice by the Company.



          The Company shall give prompt written notice to a Responsible Officer of the Trustee at the
Principal Office of the Trustee of any fact known to the Company that would prohibit the making of
any payment of moneys to or by the Trustee in respect of the Debt Securities pursuant to the
provisions of this Article XV. Notwithstanding the provisions of this Article XV or any other
provision of this Indenture or any Additional Provisions, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any payment of moneys to
or by the Trustee in respect of the Debt Securities pursuant to the provisions of this Article XV
unless and until a Responsible Officer of the Trustee at the Principal Office of the Trustee shall
have received written notice thereof from the Company or a holder or holders of Senior Indebtedness
or from any trustee therefor; and before the receipt of any such written notice, the Trustee,
subject to the provisions of Article VI of this Indenture,



62









 




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




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



          Section 15.07
Rights of the Trustee; Holders of Senior Indebtedness.



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



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



          Nothing in this Article XV shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 6.06.



          Section 15.08 Subordination May Not Be Impaired.



          No right of any present or future holder of any Senior Indebtedness of the Company to enforce
subordination as herein provided shall at any time in any way be prejudiced



63









 




or impaired by any act or failure to act on the part of the Company, or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company, with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof that any such
holder may have or otherwise be charged with.




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



64









 





          Wilmington Trust Company, in its capacity as Trustee, hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions herein above set forth.



          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.



	 	 	 	 	 	 	 
	 	 	UCBH HOLDINGS, INC.
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Dennis Wu
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Dennis Wu
	 

	 	 	 	Title:
	 	Executive Vice President,
	 

	 	 	 	 	 	Chief Financial Officer
	 
	 	 	 	 	 	 
	 	 	WILMINGTON TRUST COMPANY,
	 	 	 	 	as Trustee
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






 









 





          Wilmington Trust Company, in its capacity as Trustee, hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions herein above set forth.



          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.



	 	 	 	 	 	 	 
	 	 	UCBH HOLDINGS, INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	WILMINGTON TRUST COMPANY,
	 	 	 	 	as Trustee
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Geoffrey J. Lewis
	 	 	 	 	 
	 

	 	 	 	Name:	 	Geoffrey J. Lewis
	 

	 	 	 	Title:
	 	Financial Services Officer
	 

	 	 	 	 	 	 







 









 








Exhibit A




Form of Debt Security




 









 





EXHIBIT A




FORM OF DEBT SECURITY




[FORM OF FACE OF SECURITY]




          [THIS SECURITY IS A GLOBAL DEBENTURE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”) OR A NOMINEE OF
DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN
DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR
BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.



          UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.]1



          THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, BY ITS
ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN PRIOR TO THE DATE WHICH IS THE LATER OF (i) TWO
YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT) AFTER
THE LATER OF (Y) THE DATE OF ORIGINAL ISSUANCE HEREOF AND (Z) THE LAST DATE ON WHICH THE COMPANY
OR ANY AFFILIATE (AS DEFINED IN RULE 405 UNDER THE SECURITIES ACT) OF THE COMPANY WAS THE HOLDER
OF THIS





 




			
	1	 	Only applicable if this Debt Security is a Global Debt Security.





A-1









 




SECURITY OR SUCH INTEREST OR PARTICIPATION (OR ANY PREDECESSOR THERETO) AND (ii) SUCH LATER
DATE, IF ANY, AS MAY BE REQUIRED BY ANY SUBSEQUENT CHANGE IN APPLICABLE LAW, ONLY (A) TO THE
COMPANY, (B) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON THE HOLDER
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”, AS DEFINED IN RULE 144A, THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF
SUBPARAGRAPH (a) (1), (2), (3), (7) OR (8) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING
THIS SECURITY OR SUCH INTEREST OR PARTICIPATION FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (D) PURSUANT TO OFFERS AND
SALES TO NON-US PERSONS THAT OCCUR OUTSIDE THE UNITED STATES PURSUANT TO REGULATION S UNDER THE
SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSE (C) OR (E) ABOVE 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 OR ANY INTEREST OR PARTICIPATION HEREIN,
BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, AGREES THAT IT WILL COMPLY WITH THE
FOREGOING RESTRICTIONS.




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



A-2









 




SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE
AND HOLDING HEREOF OR THEREOF, AS THE CASE MAY BE, 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 AND HOLDING WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR
ADMINISTRATIVE EXEMPTION.




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



          THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS OF $100,000
AND MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN
DENOMINATIONS OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF THIS SECURITY OR ANY
INTEREST OR PARTICIPATION HEREIN FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS SECURITY OR SUCH INTEREST OR PARTICIPATION, AND SUCH PURPORTED TRANSFEREE
SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN THIS SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN.



          THIS OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR
FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE CORPORATION (THE “FDIC”). THIS
OBLIGATION IS SUBORDINATED TO THE CLAIMS OF THE DEPOSITORS AND THE CLAIMS OF GENERAL AND SECURED
CREDITORS OF THE COMPANY, IS INELIGIBLE AS COLLATERAL FOR A LOAN BY THE COMPANY OR ANY OF ITS
SUBSIDIARIES AND IS NOT SECURED.



Fixed/Floating Rate Junior Subordinated Debt Security due 2035

of

UCBH Holdings, Inc.




          UCBH Holdings, Inc., a bank holding company incorporated in the State of Delaware (the
“Company”, which term includes any successor permitted under the Indenture (as defined herein)),
for value received, promises to pay to Wilmington Trust Company, not in its



A-3









 




individual capacity but solely as Institutional Trustee for UCBH Capital Trust V, a Delaware
statutory trust, or registered assigns, the principal amount of FORTY-ONE MILLION TWO HUNDRED
THIRTY-EIGHT THOUSAND Dollars ($41,238,000) on November 23, 2035 (the “Maturity Date”) (or any
Optional Redemption Date or the Special Redemption Date, each as defined herein, or any earlier
date of acceleration of the maturity of this Debt Security), and to pay interest on the
outstanding principal amount of this Debt Security from September 22, 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 February 23, May 23, August
23 and November 23 of each year, commencing on November 23, 2005 (each, an “Interest Payment
Date”), at a per annum rate (the “Interest Rate”) equal to (i) with respect to any Interest Period
(as defined in the Indenture) prior to the Interest Period commencing on the Interest Payment Date
in November 2010, 5.82% and (ii) with respect to any Interest Period commencing on or after the
Interest Payment Date in November 2010, LIBOR (as defined in the Indenture), as determined on the
LIBOR Determination Date (as defined in the Indenture) for such Interest Period plus 1.38% (the
“Interest Rate”) (provided that the Interest Rate for any Interest Period commencing on or
after the Interest Payment Date in November 2010 may not exceed the highest rate permitted by New
York law, as the same may be modified by United States law of general application) until the
principal hereof shall have been paid or duly provided for, and on any overdue principal and
(without duplication and to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at an annual rate equal to the then
applicable Interest Rate, compounded quarterly. The amount of interest payable shall be computed
with respect to any Interest Period prior to the Interest Period commencing on the Interest
Payment Date in November 2010, on the basis of a 360-day year consisting of twelve 30-day months
and (ii) with respect to any Interest Period commencing on or after the Interest Payment Date in
November 2010, on the basis of a 360-day year and the actual number of days elapsed in such
Interest Period.




          The interest installment so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Debt
Security (or one or more Predecessor Securities, as defined in the Indenture) is registered at the
close of business on the “regular record date” for such interest installment, which shall be the
fifteenth day prior to such Interest Payment Date, whether or not such day is a Business Day (as
defined herein). Any such interest installment (other than Deferred Interest (as defined herein))
not punctually paid or duly provided for shall forthwith cease to be payable to the holders on such
regular record date and may be paid to the Person in whose name this Debt Security (or one or more
Predecessor Securities) is registered at the close of business on a special record date to be fixed
by the Trustee for the payment of such defaulted interest, notice whereof shall be given to the
holders of the Debt Securities not less than 10 days prior to such special record date, all as more
fully provided in the Indenture.



          Payment of the principal of and premium, if any, and interest on this Debt Security due on
the Maturity Date, any Optional Redemption Date or the Special Redemption Date, as the case may
be, shall be made in immediately available funds against presentation and surrender of this Debt
Security at the office or agency of the Trustee maintained for that purpose in Wilmington,
Delaware, or at the office or agency of any other Paying Agent appointed by the Company maintained
for that purpose in Wilmington, Delaware or Sacramento, California. Payment of interest on this
Debt Security due on any Interest Payment Date other than the



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Maturity Date, any Optional Redemption Date or the Special Redemption Date, as the case may be,
shall be made at the option of the Company by check mailed to the holder thereof at such address as
shall appear in the Debt Security Register or by wire transfer of immediately available funds to an
account appropriately designated by the holder hereof. Notwithstanding the foregoing, so long as
the holder of this Debt Security is the Institutional Trustee, payment of the principal of and
premium, if any, and interest on this Debt Security shall be made in immediately available funds
when due at such place and to such account as may be designated by the Institutional Trustee. All
payments in respect of this Debt Security shall be payable 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.




          Notwithstanding anything to the contrary contained herein, if any Interest Payment Date after
the Interest Payment Date in November 2010, other than the Maturity Date, any Optional Redemption
Date or the Special Redemption Date, falls on a day that is not a Business Day, then any interest
payable will be paid on, and such Interest Payment Date will be moved to, the next succeeding
Business Day, and additional interest will accrue for each day that such payment is delayed as a
result thereof. If any Interest Payment Date on or prior to the Interest Payment Date in November
2010, the Maturity Date, any Optional Redemption Date or the Special Redemption Date falls on a
day that is not a Business Day, then the principal, premium, if any, and/or interest payable on
such date will be paid on the next succeeding Business Day, and no additional interest will accrue
in respect of such payment made on such next succeeding Business Day.



          So long as no Event of Default pursuant to Sections 5.01(b), (e), (f), (g), (h) or (i) of the
Indenture has occurred and is continuing, the Company shall have the right, from time to time and
without causing an Event of Default, to defer payments of interest on the Debt Securities by
extending the interest payment period on the Debt Securities at any time and from time to time
during the term of the Debt Securities, for up to 20 consecutive quarterly periods (each such
extended interest payment period, together with all previous and further consecutive extensions
thereof, is referred to herein as an “Extension Period”). No Extension Period may end on a date
other than an Interest Payment Date or extend beyond the Maturity Date, any Optional Redemption
Date or the Special Redemption Date, as the case may be. During any Extension Period, interest
will continue to accrue on the Debt Securities, and interest on such accrued interest (such
accrued interest and interest thereon referred to herein as “Deferred Interest”) will accrue at an
annual rate equal to the Interest Rate applicable during such Extension Period, compounded
quarterly from the date such Deferred Interest would have been payable were it not for the
Extension Period, to the extent permitted by applicable law. No interest or Deferred Interest
(except any Additional Amounts (as defined in the Indenture) that may be due and payable) shall be
due and payable during an Extension Period, except at the end thereof. At the end of any Extension
Period, the Company shall pay all Deferred Interest then accrued and unpaid on the Debt
Securities; provided, however, that during any Extension Period, the Company may
not (i) declare or pay any dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company’s capital stock, (ii) make any payment of
principal of or premium, if any, or interest on or repay, repurchase or redeem any debt securities
of the Company that rank pari passu in all respects with or junior in interest to the Debt
Securities or (iii) make any payment under any guarantees of the Company that rank in all respects
pari passu with or junior in respect to the Capital Securities Guarantee



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(other than (a) repurchases, redemptions or other acquisitions of shares of capital stock of the
Company (A) in connection with any employment contract, benefit plan or other similar arrangement
with or for the benefit of one or more employees, officers, directors or consultants, (B) in
connection with a dividend reinvestment or stockholder stock purchase plan or (C) in connection
with the issuance of capital stock of the Company (or securities convertible into or exercisable
for such capital stock), as consideration in an acquisition transaction entered into prior to such
Extension Period, (b) as a result of any exchange or conversion of any class or series of the
Company’s capital stock (or any capital stock of a subsidiary of the Company) for any class or
series of the Company’s capital stock or of any class or series of the Company’s indebtedness for
any class or series of the Company’s capital stock, (c) the purchase of fractional interests in
shares of the Company’s capital stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged, (d) any declaration of a dividend in
connection with any stockholder’s rights plan, or the issuance of rights, stock or other property
under any stockholder’s rights plan, or the redemption or repurchase of rights pursuant thereto or
(e) any dividend in the form of stock, warrants, options or other rights where the dividend stock
or the stock issuable upon exercise of such warrants, options or other rights is the same stock as
that on which the dividend is being paid or ranks pari passu with or junior to such stock). Prior
to the termination of any Extension Period, the Company may further extend such Extension Period,
provided, that no Extension Period (including all previous and further consecutive
extensions that are part of such Extension Period) shall exceed 20 consecutive quarterly periods.
Upon the termination of any Extension Period and upon the payment of all Deferred Interest, the
Company may commence a new Extension Period, subject to the foregoing requirements. The Company
must give the Trustee notice of its election to begin or extend an Extension Period no later than
the close of business on the fifteenth Business Day prior to the applicable Interest Payment Date.




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



          The Company waives diligence, presentment, demand for payment, notice of nonpayment, notice
of protest, and all other demands and notices.



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



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



          This Debt Security may contain more than one counterpart of the signature page and this Debt
Security may be executed and authenticated by the affixing of the signature of a proper officer of
the Company, and the signature of the Trustee providing authentication, to any of such counterpart
signature pages. All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though the Company had executed, and the Trustee had
authenticated, a single signature page.



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



	 	 	 	 	 	 	 
	 	 	UCBH HOLDINGS, INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






Dated:                                         ,                    




CERTIFICATE OF AUTHENTICATION




          This certificate represents Debt Securities referred to in the within-mentioned Indenture.



	 	 	 	 	 	 	 
	 	 	WILMINGTON TRUST COMPANY,
	 	 	    not in its individual capacity but solely as
the Trustee
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Authorized Officer	 	 






Dated:                                         ,
                    





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[FORM OF REVERSE OF SECURITY]




          This Debt Security is one of a duly authorized series of debt securities of the Company
(collectively, the “Debt Securities”), all issued or to be issued pursuant to an Indenture (the
“Indenture”), dated as of September 22, 2005, duly executed and delivered between the Company and
Wilmington Trust Company, as Trustee (the “Trustee”), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the Company and the holders
of the Debt Securities of which this Debt Security is a part.



          Upon the occurrence and continuation of a Tax Event, an Investment Company Event or a Capital
Treatment Event (each, a “Special Event”), the Company shall have the right to redeem this Debt
Security, at its option, in whole with all other Debt Securities but not in part, at any time,
within 90 days following the occurrence of such Special Event (the “Special Redemption Date”), at
the Special Redemption Price (as defined herein).



          The Company shall also have the right to redeem this Debt Security at its option, in whole or
(provided that all accrued and unpaid interest has been paid on all Debt Securities for all
Interest Periods terminating on or prior to such date) from time to time in part, on any Interest
Payment Date on or after November 23, 2010 (each, an “Optional Redemption Date”), at the Optional
Redemption Price (as defined herein).



          Any redemption pursuant to the preceding two paragraphs will be made, subject to receipt by
the Company of prior approval from the Board of Governors of the Federal Reserve System (the
“Federal Reserve”) if then required under applicable capital guidelines or policies of the Federal
Reserve, upon not less than 30 days’ nor more than 60 days’ prior written notice. If the Debt
Securities are only partially redeemed by the Company, the Debt Securities will be redeemed pro
rata or by any other method utilized by the Trustee. In the event of redemption of this Debt
Security in part only, a new Debt Security or Debt Securities for the unredeemed portion hereof
will be issued in the name of the holder hereof upon the cancellation hereof.



          “Optional Redemption Price” means an amount in cash equal to 100% of the principal amount of
this Debt Security being redeemed plus unpaid interest accrued thereon to the related Optional
Redemption Date.



          “Special Redemption Price” means, with respect to the redemption of this Debt Security
following a Special Event, an amount in cash equal to 104.00% of the principal amount of this Debt
Security to be redeemed prior to November 23, 2006 and thereafter equal to the percentage of the
principal amount of this Debt Security that is specified below for the Special Redemption Date
plus, in each case, unpaid interest accrued thereon to the Special Redemption Date:



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	Special Redemption During the 12-Month	 	 	 	 	 	 
	Period Beginning November 23,	 	 	 	 	 	Percentage of Principal Amount
	2006
	 	 	 	 	 	 	103.20	%
	 
	 	 	 	 	 	 	 	 
	2007
	 	 	 	 	 	 	102.40	%
	 
	 	 	 	 	 	 	 	 
	2008
	 	 	 	 	 	 	101.60	%
	 
	 	 	 	 	 	 	 	 
	2009
	 	 	 	 	 	 	100.80	%
	 
	 	 	 	 	 	 	 	 
	2010 and thereafter
	 	 	 	 	 	 	100.00	%






          In case an Event of Default, as defined in the Indenture, shall have occurred and be
continuing, the principal of all of the Debt Securities may be declared, and, in certain cases,
shall ipso facto become, due and payable, and upon any such declaration of acceleration
shall become due and payable, in each case, 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 a majority in aggregate principal amount of the Debt Securities at the time
outstanding affected thereby, as specified in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying in any manner the
rights of the holders of the Debt Securities; provided, however, that no such
supplemental indenture shall, among other things, without the consent of the holders of each Debt
Security then outstanding and affected thereby (i) change the Maturity Date of any Debt Security,
or reduce the principal amount thereof or any premium thereon, or reduce the rate (or manner of
calculation of the rate) or extend the time of payment of interest thereon, or reduce (other than
as a result of the maturity or earlier redemption of any such Debt Security in accordance with the
terms of the Indenture and such Debt Security) or increase the aggregate principal amount of Debt
Securities then outstanding, or change any of the redemption provisions, or make the principal
thereof or any interest or premium thereon payable in any coin or currency other than United States
Dollars, or impair or affect the right of any holder to institute suit for payment thereof, or (ii)
reduce the aforesaid percentage of Debt Securities the holders of which are required to consent to
any such supplemental indenture. The Indenture also contains provisions permitting the holders of a
majority in aggregate principal amount of the Debt Securities at the time outstanding, on behalf of
the holders of all the Debt Securities, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the Indenture, and its
consequences, except (a) a default in payments due in respect of any of the Debt Securities, (b) in
respect of covenants or provisions of the Indenture which cannot be modified or amended without the
consent of the holder of each Debt Security affected, or (c) in respect of the covenants of the
Company relating to its ownership of Common Securities of the Trust. Any such consent or waiver by
the holder of this Debt Security (unless revoked as provided in the Indenture) shall be conclusive
and binding upon such holder and upon



A-10









 




all future holders and owners of this Debt Security and of any Debt Security issued in exchange
herefor or in place hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this Debt Security.




          No reference herein to the Indenture and no provision of this Debt Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional,
to make all payments due on this Debt Security at the time and place and at the rate and in the
money herein prescribed.



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



          Prior to due presentment for registration of transfer of this Debt Security, the Company, the
Trustee, any Authenticating Agent, any Paying Agent, any transfer agent and the Debt Security
registrar may deem and treat the holder hereof as the absolute owner hereof (whether or not this
Debt Security shall be overdue and notwithstanding any notice of ownership or writing hereon) for
the purpose of receiving payment of the principal of and premium, if any, and interest on this
Debt Security and for all other purposes, and none of the Company, the Trustee, any Authenticating
Agent, any Paying Agent, any transfer agent or any Debt Security registrar shall be affected by
any notice to the contrary.



          As provided in the Indenture and subject to certain limitations herein and therein set forth,
Debt Securities are exchangeable for a like aggregate principal amount of Debt Securities of
different authorized denominations, as requested by the holder surrendering the same.



          The Debt Securities are issuable only in registered certificated form without coupons.



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



A-11









 





          All terms used but not defined in this Debt Security shall have the meanings assigned to them
in the Indenture.



          THIS DEBT SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES OF SAID STATE OTHER THAN SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.



A-12









 





Exhibit B




Form of Certificate of Officer of the Company




 









 





EXHIBIT B




FORM OF CERTIFICATE OF OFFICER OF THE COMPANY




     Pursuant to Section 3.05 of the Indenture, dated as of September 22, 2005 (as amended or
supplemented from time to time, the “Indenture”), between UCBH Holdings, Inc., as issuer (the
“Company”), and Wilmington Trust Company, as trustee, the undersigned certifies that he/she is
a [principal executive officer, principal financial officer or principal accounting officer]
of the Company and in the course of the performance by the undersigned of his/her duties as an
officer of the Company, the undersigned would normally have knowledge of any default by the
Company in the performance of any covenants contained in the Indenture, and the undersigned
hereby further certifies that he/she has no knowledge of any default for the fiscal year
ending on                                         , 20                    [, except as follows: specify each such default and the nature thereof].



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



     IN WITNESS WHEREOF, the undersigned has executed this Certificate as of



                                        , 20                    .




	 	 	 
	 

	 	 
	 

	 	Name:
	 

	 	Title:







B-1