Exhibit 10.1


 


THE
BANK HOLDINGS,

as Company




 


INDENTURE

Dated as of November 3, 2005





U.S. BANK NATIONAL ASSOCIATION,

As Trustee





JUNIOR SUBORDINATED DEBT SECURITIES 


 


Due December 15, 2035


 





















 


TABLE
CONTENTS


 


	
  ARTICLE I

  
	
  DEFINITIONS

  
	
   

  	
   

  
	
  SECTION 1.01.

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Additional
  Interest

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Additional
  Provisions

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Authenticating
  Agent

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Bankruptcy
  Law

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Board
  of Directors

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Board
  Resolution

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Business
  Day

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Calculation
  Agent

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Capital
  Securities

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Capital
  Securities Guarantee

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Capital
  Treatment Event

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Certificate

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Common
  Securities

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Company

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Debt
  Security

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Debt
  Security Register

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Declaration

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Default

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Defaulted
  Interest

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Deferred
  Interest

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Event of
  Default

  	
   

  
				



 


i





















 


	
   

  	
  Extension
  Period

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Federal
  Reserve

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Indenture

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Initial
  Purchaser

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Institutional
  Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Interest
  Payment Date

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Interest
  Rate

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Investment
  Company Event

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LIBOR

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LIBOR Banking Day

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LIBOR
  Business Day

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LIBOR
  Determination Date

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Liquidation
  Amount

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Maturity
  Date

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Notice

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Officers’
  Certificate

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Opinion
  of Counsel

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  OTS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Outstanding

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Paying
  Agent

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Person

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Predecessor
  Security

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Principal
  Office of the Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Redemption
  Date

  	
   

  



 


ii





















 


	
   

  	
  Redemption
  Price

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Responsible
  Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Securityholder

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Senior
  Indebtedness

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Special
  Event

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Special
  Redemption Date

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Subsidiary

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Tax Event

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Trust

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Trust
  Indenture Act

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Trust
  Securities

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  United
  States

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  U.S. Person

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
  DEBT SECURITIES

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  Authentication
  and Dating

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.02.

  	
  Form of
  Trustee’s Certificate of Authentication

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.03.

  	
  Form and
  Denomination of Debt Securities

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.04.

  	
  Execution
  of Debt Securities

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.05.

  	
  Exchange
  and Registration of Transfer of Debt Securities

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.06.

  	
  Mutilated,
  Destroyed, Lost or Stolen Debt Securities

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.07.

  	
  Temporary
  Debt Securities

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.08.

  	
  Payment of
  Interest

  	
   

  
				



 


iii





















 


	
  SECTION 2.09.

  	
  Cancellation
  of Debt Securities Paid, etc

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.10.

  	
  Computation
  of Interest

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.11.

  	
  Extension
  of Interest Payment Period

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.12.

  	
  CUSIP
  Numbers

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
  PARTICULAR COVENANTS OF THE COMPANY

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01.

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

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.02.

  	
  Offices for Notices and Payments, etc

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.03.

  	
  Appointments to Fill Vacancies in Trustee’s Office

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.04.

  	
  Provision as to Paying Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.05.

  	
  Certificate to Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.06.

  	
  Additional Interest

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.07.

  	
  Compliance with Consolidation Provisions

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.08.

  	
  Limitation on Dividends

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.09.

  	
  Covenants as to the Trust

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
  LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  Securityholders’ Lists

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.02.

  	
  Preservation and Disclosure of Lists

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
  REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  Events of Default

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.02.

  	
  Payment of Debt Securities on Default; Suit Therefor

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.03.

  	
  Application of Moneys Collected by Trustee

  	
   

  



 


iv





















 


	
  SECTION 5.04.

  	
  Proceedings by Securityholders

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.05.

  	
  Proceedings by Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.06.

  	
  Remedies Cumulative and Continuing

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.07.

  	
  Direction of Proceedings and Waiver of Defaults by Majority of
  Securityholders

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.08.

  	
  Notice of Defaults

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.09.

  	
  Undertaking to Pay Costs

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
  CONCERNING THE TRUSTEE

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
  Duties and Responsibilities of Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.02.

  	
  Reliance on Documents, Opinions, etc

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.03.

  	
  No Responsibility for Recitals, etc

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.04.

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

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.05.

  	
  Moneys to be Held in Trust

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.06.

  	
  Compensation and Expenses of Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.07.

  	
  Officers’ Certificate as Evidence

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.08.

  	
  Eligibility of Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.09.

  	
  Resignation or Removal of Trustee, Calculation Agent, Paying Agent or
  Debt Security Registrar

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.10.

  	
  Acceptance by Successor

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.11.

  	
  Succession by Merger, etc

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.12.

  	
  Authenticating Agents

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
  CONCERNING THE SECURITYHOLDERS

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
  Action by Securityholders

  	
   

  



 


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  SECTION 7.02.

  	
  Proof of Execution by Securityholders

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.03.

  	
  Who Are Deemed Absolute Owners

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.04.

  	
  Debt Securities Owned by Company Deemed Not Outstanding

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.05.

  	
  Revocation of Consents; Future Securityholders Bound

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  
	
  SECURITYHOLDERS’ MEETINGS

  
	
   

  	
   

  	
   

  
	
  SECTION 8.01.

  	
  Purposes of Meetings

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.02.

  	
  Call of Meetings by Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.03.

  	
  Call of Meetings by Company or Securityholders

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.04.

  	
  Qualifications for Voting

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.05.

  	
  Regulations

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.06.

  	
  Voting

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.07.

  	
  Quorum; Actions

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.08.

  	
  Written Consent Without a Meeting

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  
	
  SUPPLEMENTAL INDENTURES

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
  Supplemental Indentures without Consent of Securityholders

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.02.

  	
  Supplemental Indentures with Consent of Securityholders

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.03.

  	
  Effect of Supplemental Indentures

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.04.

  	
  Notation on Debt Securities

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.05.

  	
  Evidence of Compliance of Supplemental Indenture to be furnished to
  Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  
	
  REDEMPTION OF SECURITIES

  
	
   

  	
   

  	
   

  
	
  SECTION 10.01.

  	
  Optional Redemption

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.02.

  	
  Special Event Redemption

  	
   

  



 


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  SECTION 10.03.

  	
  Notice of Redemption; Selection of Debt Securities

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.04.

  	
  Payment of Debt Securities Called for Redemption

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  
	
  CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE

  
	
   

  	
   

  	
   

  
	
  SECTION 11.01.

  	
  Company May Consolidate, etc., on Certain Terms

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.02.

  	
  Successor Entity to be Substituted

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.03.

  	
  Opinion of Counsel to be Given to Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  
	
  SATISFACTION AND DISCHARGE OF INDENTURE

  
	
   

  	
   

  	
   

  
	
  SECTION 12.01.

  	
  Discharge of Indenture

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 12.02.

  	
  Deposited Moneys to be Held in Trust by Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 12.03.

  	
  Paying Agent to Repay Moneys Held

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 12.04.

  	
  Return of Unclaimed Moneys

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  
	
  IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

  
	
   

  	
   

  	
   

  
	
  SECTION 13.01.

  	
  Indenture and Debt Securities Solely Corporate Obligations

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  
	
  MISCELLANEOUS PROVISIONS

  
	
   

  	
   

  	
   

  
	
  SECTION 14.01.

  	
  Successors

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14.02.

  	
  Official Acts by Successor Entity

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14.03.

  	
  Surrender of Company Powers

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14.04.

  	
  Addresses for Notices, etc

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14.05.

  	
  Governing Law

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14.06.

  	
  Evidence of Compliance with Conditions Precedent

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14.07.

  	
  Non-Business Days

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14.08.

  	
  Table of Contents, Headings, etc

  	
   

  



 


vii





















 


	
  SECTION 14.09.

  	
  Execution in Counterparts

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14.10.

  	
  Severability

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14.11.

  	
  Assignment

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14.12.

  	
  Acknowledgment of Rights

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV

  
	
  SUBORDINATION OF DEBT SECURITIES

  
	
   

  	
   

  	
   

  
	
  SECTION 15.01.

  	
  Agreement to Subordinate

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 15.02.

  	
  Default on Senior Indebtedness

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 15.03.

  	
  Liquidation; Dissolution; Bankruptcy

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 15.04.

  	
  Subrogation

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 15.05.

  	
  Trustee to Effectuate Subordination

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 15.06.

  	
  Notice by the Company

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 15.07.

  	
  Rights of the Trustee, Holders of Senior Indebtedness

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 15.08.

  	
  Subordination May Not Be Impaired

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A

  	
  FORM OF DEBT SECURITY

  	
   

  



 


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THIS INDENTURE, dated as of November 3,
2005, between The Bank Holdings, a
bank holding company incorporated in Nevada
(hereinafter sometimes called the “Company”), and U.S. Bank National
Association as trustee (hereinafter sometimes called the “Trustee”).


 


W I T N E S S E T H:


 


WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issuance of its Junior Subordinated Debt Securities due December 15, 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 Interest“ shall
have the meaning set forth in Section 3.06.


 


“Additional Provisions“ shall
have the meaning set forth in Section 15.01.


 


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


 


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


 


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


 





















 


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


 


“Business Day“ means any day other
than a Saturday, Sunday or any other day on which banking institutions in
Boston, Massachusetts, New York City or the city of the Principal Office of the
Trustee or the Company are permitted or required by any applicable law or
executive order to close.


 


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


 


“Capital Securities“ means
undivided beneficial interests in the assets of the Trust which are designated
as “TP Securities” 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 U.S. Bank
National Association or other Persons that operates directly or indirectly for
the benefit of holders of Capital Securities of the Trust.


 


“Capital Treatment Event“ means, 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 (a) any amendment to, or change in, the laws, rules or
regulations of the United States or any political subdivision thereof or
therein, or any rules, guidelines or policies of any applicable regulatory
authority for the Company or (b) 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, within 90
days of the receipt of such opinion, the aggregate Liquidation Amount of the
Capital Securities will not be eligible to be treated by the Company 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 or financial holding companies), as then in effect and
applicable to the Company (or if the Company is not a bank holding company,
such guidelines applied to the Company as if the Company were subject to such
guidelines); provided, however, that the inability of the Company to treat all
or any portion of the 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 cumulative preferred
stock, minority interests in consolidated subsidiaries, or any other class of
security or interest which the Federal Reserve or OTS, as applicable, may now
or hereafter accord Tier 1 Capital treatment in excess of the amount which
may now or hereafter qualify for treatment as Tier 1 Capital under
applicable capital adequacy guidelines; provided further, however, that the
distribution of the Debt Securities in connection with the liquidation of


 


2





















 


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.


 


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


 


“Common Securities“ means undivided
beneficial interests in the assets of the Trust which 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 The Bank Holdings, a bank holding company incorporated in Nevada, 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 November 3, 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.


 


“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.


 


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


 


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



 


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


 


“Initial
Purchaser“ means the initial purchaser of the Capital Securities.


 


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


 


“Interest Payment Date“ means March 15, June 15,
September 15 and December 15 of each year, commencing on December 15, 2005, during the term of this
Indenture.


 


3





















 


“Interest Payment Period” means the period
from and including an Interest Payment Date, or in the case of the first
Interest Payment Period, the original date of issuance of the Debt Securities,
to, but excluding, the next succeeding Interest Payment Date or, in the case of
the last Interest Payment Period, the Redemption Date, Special Redemption Date
or Maturity Date, as the case may be.


 


“Interest Rate“ means, with respect to
any Interest Period, a per annum rate of interest, equal to LIBOR, as
determined on the LIBOR Determination Date for such Interest Payment Date, plus
1.42%; provided, however, that the
Interest Rate for any Interest Payment Period 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 or prospective change becomes effective or would
become effective, as the case may be, on or after the date of the original
issuance of the Debt Securities.


 


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


 


“LIBOR Banking Day“ has the meaning set forth
in Section 2.10(b)(1).


 


“LIBOR Business Day“ has the meaning
set forth in Section 2.10(b)(1).


 


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


 


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


 


“Maturity Date“ means December 15, 2035.


 


“Notice“ has the meaning set forth in Section 2.11.


 


“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.


 


4





















 


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


 


“Outstanding“ means, when used with
reference to Debt Securities, subject to the provisions of Section 7.04,
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.


 


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


 


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


 


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


 


“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 One Federal Street, 3rd Floor, Boston,
Massachusetts 02110.


 


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


 


“Redemption Price“ means 100% of
the principal amount of the Debt Securities being redeemed plus accrued and
unpaid interest on such Debt Securities to the Redemption Date.


 


“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,


 


5





















 


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.


 


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


 


“Senior Indebtedness“ means, with
respect to the Company, (i) the principal, premium, if any, and interest
in respect of (A) indebtedness of the Company for money borrowed and (B) indebtedness
evidenced by securities, debentures, notes, bonds or other similar instruments
issued by the Company; (ii) all capital lease obligations of the Company; (iii) all
obligations of the Company issued or assumed as the deferred purchase price of
property, all conditional sale obligations of the Company and all obligations
of the Company under any title retention agreement (but excluding trade
accounts payable arising in the ordinary course of business); (iv) all
obligations of the Company for the reimbursement of any letter of credit, any
banker’s acceptance, any security purchase facility, any repurchase agreement
or similar arrangement, any interest rate swap, any other hedging arrangement,
any obligation under options or any similar credit or other transaction; (v) all
obligations of the type referred to in clauses (i) through (iv) above
of other Persons for the payment of which the Company is responsible or liable
as obligor, guarantor or otherwise; and (vi) all obligations of the type
referred to in clauses (i) through (v) above of other Persons secured
by any lien on any property or asset of the Company (whether or not such
obligation is assumed by the Company), whether incurred on or prior to the date
of this Indenture or thereafter incurred, 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, (B) any
guarantees of the Company in respect of the equity or other securities of any
financing entity referred to in clause (A) above or (C) any other
instruments classified as subordinated or pari passu to
the Debt Securities by the Federal Reserve.


 


“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 103.525% of the principal
amount of Debt Securities to be redeemed prior to December 15, 2006 and thereafter equal to the


 


6





















 


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:


 




	
  Special
  Redemption During the

  12-Month Period Beginning December 15

  	
   

  	
  Percentage of Principal Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2006

  	
   

  	
  103.140

  	
  %

  
	
  2007

  	
   

  	
  102.355

  	
  %

  
	
  2008

  	
   

  	
  101.570

  	
  %

  
	
  2009

  	
   

  	
  100.785

  	
  %

  
	
  2010 and
  thereafter

  	
   

  	
  100.000

  	
  %

  






 


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


 


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


 


7





















 


“Trust“ means The
Bank Holdings Statutory Trust I, the Connecticut 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 Bank
Holdings Statutory Trust I.


 


“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 Internal
Revenue Code of 1986, as amended.


 


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 $15,464,000 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.  The Trustee shall also
be entitled to receive an opinion of counsel to the effect that (1) all
conditions precedent to the execution, delivery and authentication of the
Securities have been complied with; (2) the Securities are not required to
be registered under the Securities Act; and (3) the Indenture is not
required to be qualified under the Trust Indenture Act.


 


8





















 


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


 


SECTION 2.02.  Form of Trustee’s Certificate of
Authentication.


 


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


 


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


 


U.S. Bank National Association, not in its individual capacity but
solely as Trustee


 


	
   

  	
  By

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  
					



 


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


 


SECTION 2.04.  Execution of Debt Securities.


 


The Debt Securities shall be signed in the name and on behalf of the
Company by the manual or facsimile signature of any 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
signature of an authorized officer, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee or the Authenticating Agent upon any Debt Security executed by the
Company shall be conclusive evidence that the Debt Security so authenticated
has been duly authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.


 


In case any officer of the Company who shall have signed any of the
Debt Securities shall cease to be such officer before the Debt Securities so
signed shall have been authenticated and delivered by the Trustee or the
Authenticating Agent, or disposed of by the Company, such Debt Securities
nevertheless may be authenticated and delivered or disposed of as though the
Person who signed such Debt Securities had not ceased to be such officer of the
Company; and any Debt Security may be signed on behalf of the Company by such
Persons as, at the actual date of the execution of such Debt Security, shall be
the proper officers of the


 


9





















 


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.


 


Neither the Trustee nor the Debt Security Registrar shall be
responsible for ascertaining whether any transfer hereunder complies with the
registration provisions of or any exemptions from the Securities Act (under and
as defined in the Declaration), applicable state securities laws or the
applicable laws of any other jurisdiction, ERISA, the United States Internal
Revenue Code of 1986, as amended, or the Investment Company Act (under and as
defined in the Declaration).


 


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.


 


10





















 


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
except in compliance with the restricted securities 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 BY
ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY
ONLY (A) TO THE COMPANY, (B) PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT (“RULE 144A”) TO A PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO A “NON
U.S. PERSON” IN AN “OFFSHORE TRANSACTION” PURSUANT TO REGULATION S UNDER THE
SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT TO AN “ACCREDITED INVESTOR” WITHIN THE
MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501
UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR
FOR THE ACCOUNT OF 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, OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH
THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY. THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY
WITH THE FOREGOING RESTRICTIONS.


 


THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS
AND WARRANTS THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THIS
SECURITY UNLESS SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT.


 


11





















 


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


 


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


 


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


 


THIS OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED
STATES OR ANY AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL
DEPOSIT INSURANCE CORPORATION. THIS OBLIGATION IS SUBORDINATED TO THE CLAIMS OF
DEPOSITORS AND THE CLAIMS OF GENERAL AND SECURED CREDITORS OF THE COMPANY, IS
INELIGIBLE AS COLLATERAL


 


12





















 


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 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


 


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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 from and including each Interest Payment Date or, in the case of the first
Interest Payment Period, the original date of issuance of such Debt Security
to, but excluding, the next succeeding Interest Payment Date or, in the case of
the last Interest Payment Period, the Redemption Date, Special Redemption Date
or Maturity Date, as applicable, 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 XII)
on each Interest Payment Date commencing on December 15,
2005. Interest and any Deferred Interest on any Debt Security that is
payable, and is punctually paid or duly provided for by the Company, on any
Interest Payment Date shall be paid to the Person in whose name said Debt
Security (or one or more Predecessor Securities) is registered at the close of
business on the regular record date for such interest installment, except that
interest and any Deferred Interest payable on the Maturity Date shall be paid
to the Person to whom principal is paid. In the event that any Debt Security or
portion thereof is called for redemption and the redemption date is subsequent
to a regular record date with respect to any Interest Payment Date and either
on or 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 registered holder on the relevant regular record
date by virtue of having been such holder, and such Defaulted Interest shall be
paid by the Company to the Persons in whose names such Debt Securities (or
their respective Predecessor Securities) are registered at the close of
business on a special record date for the payment of such Defaulted Interest,
which shall be fixed in the following manner: the Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each such Debt Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements reasonably


 


14





















 


satisfactory
to the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a special record date for the payment of such Defaulted
Interest which shall not be more than fifteen nor less than ten days prior to
the date of the proposed payment and not less than ten days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed, first
class postage prepaid, to each Securityholder at his or her address as it
appears in the Debt Security Register, not less than ten days prior to such
special record date. Notice of the proposed payment of such Defaulted Interest
and the special record date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names such Debt
Securities (or their respective Predecessor Securities) are registered on such
special record date and thereafter the Company shall have no further payment
obligation in respect of the Defaulted Interest.


 


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


 


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


 


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


 


SECTION 2.09.  Cancellation of Debt Securities Paid, etc.


 


All Debt Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer, shall, if surrendered to the Company or
any Paying Agent, be surrendered to the Trustee and promptly canceled by it,
or, if surrendered to the Trustee, 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. The Trustee shall dispose of all
canceled Debt Securities in accordance with its customary practices, 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 for any Interest Payment Period will be computed on the basis of a
360-day year and the actual number of days elapsed in the relevant interest
period; provided, however, that upon the occurrence of a Special
Event Redemption


 


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pursuant to Section 10.02 the amounts payable
pursuant to this Indenture shall be calculated as set forth in the definition
of Special Redemption Price.


 


(b)           LIBOR, for any Interest
Payment Period, shall be determined by the Calculation Agent in accordance with
the following provisions:


 


(1)           On
the second LIBOR Business Day (provided, that on such day commercial banks are
open for business (including dealings in foreign currency deposits) in London
(a “LIBOR Banking Day”), and otherwise the next preceding LIBOR Business Day
that is also a LIBOR Banking Day) prior to March 15, June 15, September 15
and December 15 (or, with respect to the first Interest Payment Period, on
November 1, 2005) (each such day, a “LIBOR
Determination Date” for the following Interest Payment Period), the Calculation
Agent shall obtain the rate for three-month U.S. Dollar deposits in Europe,
which appears on Telerate Page 3750 (as defined in the International Swaps
and Derivatives Association, Inc. 2000 Interest Rate and Currency Exchange
Definitions) or such other page as may replace such Telerate Page 3750
on the Moneyline Telerate, Inc. service (or such other service or services
as may be nominated by the British Banker’s Association as the information
vendor for the purpose of displaying London Interbank offered rates for U.S.
dollar deposits), as of 11:00 a.m. (London time) on such LIBOR
Determination Date, and the rate so obtained shall be LIBOR for such Interest
Payment Period.  “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 Boston, Massachusetts are
authorized or obligated by law or executive order to be closed. If such rate is
superseded on Telerate Page 3750 by a corrected rate before 12:00 noon
(London time) on the same LIBOR Determination Date, the corrected rate as so
substituted will be LIBOR for that Interest Payment Period.


 


(2)           If,
on any LIBOR Determination Date, such rate does not appear on Telerate Page 3750
or such other page as may replace such Telerate Page 3750 on the
Moneyline Telerate, Inc. service (or such other service or services as may
be nominated by the British Banker’s Association as the information vendor for
the purpose of displaying London Interbank offered rates for U.S. dollar
deposits), the Calculation Agent shall determine the arithmetic mean of the
offered quotations of the Reference Banks (as defined below) to leading banks
in the London Interbank market for three-month U.S. Dollar deposits in Europe
(in an amount determined by the Calculation Agent) by reference to requests for
quotations as of approximately 11:00 a.m. (London time) on the LIBOR
Determination Date made by the Calculation Agent to the Reference Banks. If, on
any LIBOR Determination Date, at least two of the Reference Banks provide such
quotations, LIBOR shall equal the arithmetic mean of such quotations. If, on
any LIBOR Determination Date, only one or none of the Reference Banks 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 the relevant LIBOR
Determination Date for three-month U.S. Dollar deposits in Europe at
approximately 11:00 a.m. (London


 


16





















 


time) (in an amount
determined by the Calculation Agent). As used herein, “Reference Banks” means
four major banks in the London Interbank market selected by the Calculation
Agent.


 


(3)           If
the Calculation Agent is required but is unable to determine a rate in
accordance with at least one of the procedures provided above, LIBOR for the
applicable Interest Payment Period shall be LIBOR in effect for the immediately
preceding Interest Payment 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)           As soon as practicable
following each LIBOR Determination Date, but in no event later than the 30th
day following such LIBOR Determination Date, the Calculation Agent shall
notify, in writing, the Company, the Institutional Trustee and the Paying Agent
of the applicable Interest Rate in effect for the related Interest Payment
Period. The Calculation Agent shall, upon the request of the holder of any Debt
Securities, provide the Interest Rate then in effect. All calculations made by
the Calculation Agent in the absence of manifest error shall be conclusive for
all purposes and binding on the Company and the Holders of the Debt Securities.  Any error in a calculation of the Coupon Rate
by the Calculation Agent may be corrected at any time by the delivery of notice
of such corrected Coupon Rate as provided above.  The Paying Agent shall be entitled to rely on
information received from the Calculation Agent or the Company as to the
Interest Rate. The Company shall, from time to time, provide any necessary
information to the Paying Agent relating to any original issue discount and
interest on the Debt Securities that is included in any payment and reportable
for taxable income calculation purposes. 
Failure to notify the Company, the Institutional Trustee or the Paying
Agent of the applicable Coupon Rate shall not affect the obligation of the
Company to make payment on Debentures at such Coupon Rate. 


 


SECTION 2.11.  Extension of Interest Payment Period.


 


As long as it is acting in good faith, and so long as no Event of
Default pursuant to paragraphs (c), (e) or (f) of Section 5.01
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
distribution period on the Debt Securities at any time and from time to time
during the term of the Debt Securities, for up to twenty consecutive quarterly
periods (each such extended interest distribution period, an “Extension Period”),
during which Extension Period no interest shall be due and payable (except any
Additional Interest that may be due and payable). No Extension Period may end
on a date other than an Interest Payment Date or extend beyond the Maturity
Date, any Redemption Date or any 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


 


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from the date
such Deferred Interest would have been payable were it not for the Extension
Period, to the extent permitted by law. No interest or Deferred Interest shall
be due and payable during an Extension Period, except at the end thereof. At
the end of any such Extension Period the Company shall pay all Deferred
Interest then accrued and unpaid on the Debt Securities; provided, however,
that no Extension Period may extend beyond the Maturity Date; and provided
further, however, that during any such Extension Period, the
Company shall be subject to the restrictions set forth in Section 3.08 of
this Indenture. Prior to the termination of any Extension Period, the Company
may further extend such period, provided, that such period together with
all such previous and further consecutive extensions thereof shall not exceed
twenty consecutive quarterly periods, or extend beyond the Maturity Date. Upon
the termination of any Extension Period and upon the payment of all Deferred
Interest, the Company may commence a new Extension Period, subject to the
foregoing requirements. The Company must give the Trustee notice of its
election to begin any Extension Period (“Notice”) not later than the related regular
record date for the relevant Interest Payment Date.  The Notice shall describe why the Company has
elected to begin an Extension Period. 
The Notice shall acknowledge and affirm the Company’s understanding that
it is prohibited from issuing dividends and other distributions during the
Extension Period.  Upon receipt of the
Notice, an Initial Purchaser shall have the right, at its sole discretion, to
disclose the name of the Company, the fact that the Company has elected to
begin an Extension Period and other information that such Initial Purchaser, at
its sole discretion, deems relevant to the Company’s election to begin an
Extension Period.  The Trustee shall give
notice of the Company’s election to begin a new Extension Period to the
Securityholders.


 


SECTION 2.12.  CUSIP Numbers.


 


The Company in issuing the 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.  Income Tax
Certification.  


 


As a condition to the payment of any principal of or interest on the
Debt Securities without the imposition of withholding tax, the Trustee shall
require the previous delivery of properly completed and signed applicable U.S.
federal income tax certifications (generally, an Internal Revenue Service Form W-9
(or applicable successor form) in the case of a person that is a “United States
person” within the meaning of Section 7701 (a)(30) of the Code (under and
as defined in the Declaration) or an Internal Revenue Service Form W-8 (or
applicable successor form) in the case of a person that is not a “United States
person” within the meaning of Section 7701(a)(30) of the Code, and any
other certification acceptable to it to enable the Trustee or any Paying Agent
to determine their respective duties and liabilities with respect to any taxes
or other charges that they may be required to pay, deduct or withhold in
respect of such Debt Securities.


 


18










 













 


ARTICLE III



PARTICULAR COVENANTS OF THE COMPANY


 


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


 


(a)           The Company covenants
and agrees that it will duly and punctually pay or cause to be paid all payments
due on the Debt Securities at the place, at the respective times and in the
manner provided in this Indenture and the Debt Securities. At the option of the
Company, each installment of interest on the Debt Securities may be paid (i) by
mailing checks for such interest payable to the order of the holders of Debt
Securities entitled thereto as they appear on the Debt Security Register or (ii) by
wire transfer to any account with a banking institution located in the United
States designated by such holders to the Paying Agent no later than the related
record date. 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 as interest, for all U.S. federal income tax purposes. As
a condition to the payment of any principal of or interest on any Debt Security
without the imposition of withholding tax, the Company shall require the
previous delivery of properly completed and signed applicable U.S. federal
income tax certifications (generally, an Internal Revenue Service Form W-9
(or applicable successor form) in the case of a Person that is a U.S. Person or
an Internal Revenue Service Form W-8 (or applicable successor form) in the
case of a Person that is not a U.S. Person and any other certification
acceptable to it to enable the Company and the Trustee to determine their
respective duties and liabilities with respect to any taxes or other charges
that they may be required to pay or withhold in respect of such Debt Security
or the holder of such Debt Security under any present or future law or
regulation of the United States or any political subdivision thereof or taxing
authority therein or to comply with any reporting or other requirements under
any such law or regulation.


 


(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.


 


SECTION 3.02.  Offices for Notices and Payments, etc.


 


So long as any of the Debt Securities remain outstanding, the Company
will maintain in New York, New York 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 hereby appoints the Trustee at U.S. Bank National
Association, 100 Wall Street, 19th Floor, New York, New York 10005,
Attention: Corporate Trust Services – The Bank
Holdings Statutory Trust I as
such office or agency.  In case the


 


19





















 


Company shall
fail to maintain any such office or agency in New York, New York 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 other offices or agencies 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 New York, New York
for the purposes above mentioned. The Company will give to the Trustee prompt
written notice of any such designation or rescission thereof.


 


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


 


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


 


SECTION 3.04.  Provision as to Paying Agent.


 


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


 


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


 


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


 


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


 


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


 


Whenever the Company shall have one or more Paying Agents for the Debt
Securities, it will, on or prior to each due date of the payments on the Debt
Securities, deposit with a Paying Agent a sum sufficient to pay all payments so
becoming due, such sum to be held


 


20





















 


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 (the “Paying Agent”).


 


SECTION 3.05.  Certificate to Trustee.


 


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


 


SECTION 3.06.  Additional Interest.


 


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
Interest”) on the Debt Securities as shall be required so that the net amounts
received and retained by the Trust for distribution to holders of Trust
Securities after paying all taxes (including withholding taxes), duties,
assessments or other governmental charges will be equal to the amounts the
Trust would have received and retained for distribution to holders of Trust
Securities after paying all taxes (including withholding taxes on distributions
to holders of Trust Securities), duties, assessments or other governmental
charges if no such additional taxes, duties, assessments or other governmental
charges had been imposed. Whenever in this Indenture or the Debt Securities
there is a reference in any context to the payment of principal of or premium,
if any, or interest on the Debt Securities, such mention shall be deemed to
include mention of payments of the Additional Interest provided for in this
paragraph to the extent that, in such context, Additional Interest is, was or
would be payable in respect thereof pursuant to the provisions of this
paragraph and express mention of the payment of Additional Interest (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Interest 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


 


21





















 


deferral of
the payment of interest during an Extension Period pursuant to Section 2.11
shall not defer the payment of any Additional Interest 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 Debt Securities are initially issued to the Trust or a trustee of
such Trust in connection with the issuance of Trust Securities by the Trust
(regardless of whether Debt Securities continue to be held by such Trust) and (i) there
shall have occurred and be continuing an Event of Default, (ii) the
Company shall be in default with respect to its payment of any obligations
under the Capital Securities Guarantee or (iii) the Company shall have
given notice of its election to defer payments of interest on the Debt
Securities by extending the interest distribution period as provided herein and
such period, or any extension thereof, shall have commenced and be continuing,
then the Company may not (A) declare or pay any dividends or distributions
on, or redeem, purchase, acquire, or make a liquidation payment with respect
to, any of the Company’s capital stock or (B) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or redeem
any debt securities of the Company that rank pari passu
in all respects with or junior in interest to the Debt Securities 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
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, reclassification, combination 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).


 


22





















 


SECTION 3.09.  Covenants as to the Trust.


 


For so long as such Trust Securities remain outstanding, the Company
shall maintain 100% ownership of the Common Securities; provided, however,
that any permitted successor of the Company under this Indenture that is a U.S.
Person may succeed to the Company’s ownership of such Common Securities. The
Company, as owner of the Common Securities, shall use commercially reasonable
efforts 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 certain 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 AND REPORTS BY THE COMPANY AND THE TRUSTEE


 


SECTION 4.01.  Securityholders’ Lists.


 


The Company covenants and agrees that it will furnish or cause to be
furnished to the Trustee:


 


(a)           on each regular record
date for an Interest Payment Date, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Securityholders of the
Debt Securities as of such record date; and


 


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


 


SECTION 4.02.  Preservation and Disclosure of Lists.


 


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


 


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


 


23





















 


which such applicants propose to transmit, then the
Trustee shall within five Business Days after the receipt of such application,
at the election of the Company, either:


 


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


 


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


 


If the Company 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 of the Company to the effect that 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.


 


(c)           Each and every holder
of Debt Securities, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee nor any Paying Agent
shall be held accountable by reason of the disclosure of any such information
as to the names and addresses of the holders of Debt Securities in accordance
with the provisions of subsection (b) of this Section 4.02,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under said subsection (b).


 


24





















 


ARTICLE V



REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT


 


SECTION 5.01.  Events of Default.


 


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


 


(a)           the Company defaults in
the payment of any interest upon any Debt Security when it becomes due and
payable (unless the Company has elected and may defer interest payments
pursuant to Section 2.11), and continuance of such default for a period of
30 days; for the avoidance of doubt, an extension of any interest distribution
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 all or any part of the principal of (or premium, if any, on) any
Debt Securities as and when the same shall become due and payable either at
maturity, upon redemption, by declaration of acceleration pursuant to Section 5.01
of this Indenture or otherwise; or


 


(c)           the Company defaults in
the payment of any interest upon any Debt Security when it becomes due and
payable following the nonpayment of any such interest as a result of Extension
Period for 20 or more consecutive quarterly periods; 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 similar
official) of the Company or for any substantial part of its property, or orders
the winding-up or liquidation of its affairs and such decree or order shall
remain unstayed and in effect for a period of 90 consecutive days; or


 


(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


 


25





















 


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


 


If an Event of Default specified under clause (c) of this Section 5.01
occurs and is continuing with respect to the Debt Securities, then, and in each
and every such case, unless the principal of the Debt Securities shall have
already become due and payable, either the Trustee or the holders of not less
than 25% in aggregate principal amount of the Debt Securities then outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal of the Debt Securities and
any premium and interest accrued, but unpaid, thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable.  If an Event
of Default specified under clause (e) or (f) 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. 
Notwithstanding anything to the contrary in this Section 5.01, if
at any time during the period in which this Indenture remains in force and
effect, the Company ceases or elects to cease to be subject to the supervision
and regulations of the Federal Reserve, OTS, OCC or similar regulatory
authority overseeing bank, thrift, savings and loan or financial holding
companies or similar institutions requiring specifications for the treatment of
capital similar in nature to the capital adequacy guidelines under the Federal
Reserve rules and regulations, then the first sentence of this paragraph
shall be deemed to include clauses (a), (b) and (d) under this Section 5.01
as an Event of Default resulting in an acceleration of payment of the Debt
Securities to the same extent as provided herein for clause (c).


 


With respect to clause (d) of this Section 5.01, the Company
agrees that in the event of a breach by the Company of its covenants or
agreements mentioned therein, any remedy at law or in damages may prove
inadequate and therefore the Company agrees that the Trustee shall be entitled to
injunctive relief against the Company in the event of any breach or threatened
breach by the Company, in addition to any other relief (including damages)
available to the Trustee under this Indenture or under law.


 


The foregoing provisions, however, are subject to the condition that
if, at any time after the principal of the Debt Securities shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, (i) the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Debt Securities and all payments
on the Debt Securities which shall have become due otherwise than by
acceleration (with interest upon all such payments and Deferred Interest, to
the extent permitted by law) and such amount as shall be sufficient to cover
reasonable compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and all other amounts due to the
Trustee pursuant to Section 6.06, if any, and (ii) all Events of
Default under this Indenture, other than the non-payment of the payments on
Debt Securities which shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein, and in each and every such
case the holders of a majority in aggregate principal amount of the Debt


 


26





















 


Securities
then outstanding, by written notice to the Company and to the Trustee, may
waive all defaults and rescind and annul such declaration and its consequences,
but no such waiver or rescission and annulment shall extend to or shall affect
any subsequent default or shall impair any right consequent thereon; 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
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 5.01(a), 5.01(b) or 5.01(c), 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
declaration of acceleration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this Section 5.02,
shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Debt Securities and,
in case of any judicial proceedings, to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for reasonable compensation to the
Trustee and each predecessor Trustee, and their respective agents, attorneys


 


27





















 


and counsel,
and for reimbursement of all other amounts due to the Trustee under Section 6.06)
and of the Securityholders allowed in such judicial proceedings relative to the
Company or any other obligor on the Debt Securities, or to the creditors or
property of the Company or such other obligor, unless prohibited by applicable
law and regulations, to vote on behalf of the holders of the Debt Securities in
any election of a trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or Person performing
similar functions in comparable proceedings, and to collect and receive any
moneys or other property payable or deliverable on any such claims, and to
distribute the same after the deduction of its charges and expenses; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the Securityholders to make such payments to the Trustee,
and, in the event that the Trustee shall consent to the making of such payments
directly to the Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, each predecessor
Trustee and their respective agents, attorneys and counsel, and all other
amounts due to the Trustee under Section 6.06.


 


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;


 


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


 


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


 


SECTION 5.04.  Proceedings by Securityholders.


 


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


 


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


 


SECTION 5.05.  Proceedings by Trustee.


 


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


 


SECTION 5.06.  Remedies Cumulative and Continuing.


 


Except as otherwise provided in Section 2.06, all powers and
remedies given by this Article V to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive
of any other powers and remedies available to the Trustee or the holders of the
Debt Securities, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to the Debt Securities, and no
delay or omission of the Trustee or of any holder of any of the Debt Securities
to exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power, or


 


29





















 


shall be
construed to be a waiver of any such default or an acquiescence therein; and,
subject to the provisions of Section 5.04, every power and remedy given by
this Article V or by law to the Trustee or to the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders.


 


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


 


The holders of a majority in aggregate principal amount of the Debt
Securities affected (voting as one class) 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 being advised by counsel 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, 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 Liquidation Amount of the Trust Securities of the Trust shall
have consented to such waiver or modification to such waiver; provided, further,
that if the consent of the holder of each outstanding 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 5.07,
said Default or Event of Default shall for all purposes of the Debt Securities
and this Indenture be deemed to have been cured and to be not continuing.


 


30





















 


SECTION 5.08.  Notice of Defaults.


 


The Trustee shall, within 90 days after a Responsible Officer of the
Trustee shall have actual knowledge or received written notice of the
occurrence of a Default with respect to the Debt Securities, mail to all Securityholders,
as the names and addresses of such holders appear upon the Debt Security
Register, notice of all Defaults with respect to the Debt Securities known to
the Trustee, unless such defaults shall have been cured before the giving of
such notice (the term “defaults” for the purpose of this Section 5.08
being hereby defined to be the events specified in subsections (a), (b), (c),
(d), (e) and (f) of Section 5.01, not including periods of
grace, if any, provided for therein); provided, that, except in the case
of default in the payment of the principal of, premium, if any, or interest on
any of the Debt Securities, the Trustee shall be protected in withholding such
notice if and so long as a Responsible Officer of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Securityholders.


 


SECTION 5.09.  Undertaking to Pay Costs.


 


All parties to this Indenture agree, and each holder of any Debt
Security by such holder’s acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section 5.09 shall not apply to
any suit instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding in the aggregate more than
10% in principal amount of the Debt Securities (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


 


31





















 


person would
exercise or use under the circumstances in the conduct of such person’s own
affairs.


 


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


 


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


 


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


 


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


 


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


 


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


 


(d)           the Trustee shall not
be charged with knowledge of any Default or Event of Default with respect to
the Debt Securities unless either (1) a Responsible Officer shall have actual
knowledge of such Default or Event of Default or (2) written notice of
such Default or Event of Default shall have been given to the Trustee by the
Company or any other obligor on the Debt Securities or by any holder of the
Debt Securities, except with respect to an Event of Default pursuant to
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 Interest or
premium, if any, if the Trustee does not have actual knowledge or written
notice that such payment is due and payable), of which the Trustee shall be
deemed to have knowledge; and


 


(e)           in
the absence of bad faith on the part of the Trustee, the Trustee may seek and
rely on reasonable instructions from the Company.


 


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


 


SECTION 6.02.  Reliance on Documents, Opinions, etc.


 


Except as otherwise provided in Section 6.01:


 


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


 


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


 


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


 


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


 


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


 


(f)            the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, debenture, coupon or other paper or
document, unless requested in writing to do so by the holders of not less than
a majority in 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


 


33





















 


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


 


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


 


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


 


SECTION 6.05.  Moneys to be Held in Trust.


 


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


 


SECTION 6.06.  Compensation and Expenses of Trustee.


 


Other than as provided in the Fee Agreement of even date herewith
between Cohen Bros. & Company, the Trustee, and the Company (as
defined in the Declaration), 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


 


34





















 


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 6.06
to compensate and indemnify the Trustee and to pay or reimburse the Trustee for
documented expenses, disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be secured by (and
the Company hereby grants and pledges to the Trustee) a lien prior to that of
the Debt Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the holders of
particular Debt Securities.


 


Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in subsections (e), (f) or (g) of
Section 5.01, the expenses (including the reasonable charges and expenses
of its counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable federal or state
bankruptcy, insolvency or other similar law.


 


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


 


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


 


35





















 


laws to
exercise corporate trust powers, having a combined capital and surplus of at
least fifty million U.S. dollars ($50,000,000) and subject to supervision or
examination by federal, state, or District of Columbia authority. If such
corporation or national association publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section 6.08 the
combined capital and surplus of such corporation or national association shall
be deemed to be its combined capital and surplus as set forth in its most
recent records of condition so published.


 


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


 


In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.08, the Trustee shall
resign immediately in the manner and with the effect specified in Section 6.09.


 


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


 


SECTION 6.09.  Resignation or Removal of Trustee,
Calculation Agent, Paying Agent or Debt Security Registrar.


 


(a)           The Trustee, or any
trustee or trustees hereafter appointed, the Calculation Agent, the Paying
Agent and any Debt Security Registrar 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 or successors by
written instrument, in duplicate, executed by order of its Board of Directors,
one copy of which instrument shall be delivered to the resigning party and one
copy to the successor. If no successor 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 party may petition
any court of competent jurisdiction for the appointment of a successor, 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. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a successor.


 


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


 


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


 


36





















 


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


 


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


 


then, in any such case, the Company may remove the Trustee and appoint
a successor Trustee by written instrument, in duplicate, executed by order of
the Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor Trustee, or, subject to the
provisions of Section 5.09, if no successor Trustee shall have been so
appointed and have accepted appointment within 30 days of the occurrence of any
of (1), (2) or (3) above, any Securityholder who has been a bona fide
holder of a Debt Security or Debt Securities for at least six months may, on
behalf of himself or herself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor Trustee.


 


(c)           Upon prior written
notice to the Company and the Trustee, the holders of a majority in aggregate
principal amount of the Debt Securities at the time outstanding may at any time
remove the Trustee and nominate a successor Trustee, which shall be deemed
appointed as successor Trustee unless within ten Business Days after such
nomination the Company objects thereto, in which case or in the case of a
failure by such holders to nominate a successor Trustee, the Trustee so removed
or any Securityholder, upon the terms and conditions and otherwise as in subsection (a) of
this Section 6.09 provided, may petition any court of competent
jurisdiction for an appointment of a successor.


 


(d)           Any resignation or
removal of the Trustee, the Calculation Agent, the Paying Agent and any Debt
Security Registrar and appointment of a successor pursuant to any of the
provisions of this Section 6.09 shall become effective upon acceptance of
appointment by the successor as provided in Section 6.10.


 


SECTION 6.10.  Acceptance by Successor.


 


Any successor Trustee, Calculation Agent, Paying Agent or Debt Security
Registrar appointed as provided in Section 6.09 shall execute, acknowledge
and deliver to the Company and to its predecessor an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the retiring
party shall become effective and such successor, 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 herein; but, nevertheless, on the
written request of the Company or of the successor, the party 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 all the rights
and powers of the party so ceasing to act and shall duly assign, transfer and
deliver to such successor all property and money held by such retiring party


 


37





















 


hereunder.
Upon reasonable request of any such successor, the Company shall execute any
and all instruments in writing for more fully and certainly vesting in and
confirming to such successor all such rights and powers. Any party ceasing to
act shall, nevertheless, retain a lien upon all property or funds held or
collected to secure any amounts then due it pursuant to the provisions of Section 6.06.


 


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


 


No successor Trustee shall accept appointment as provided in this Section 6.10
unless at the time of such acceptance such successor Trustee shall be eligible
and qualified under the provisions of Section 6.08.


 


In no event shall a retiring Trustee, Calculation Agent, Paying Agent
or Debt Security Registrar be liable for the acts or omissions of any successor
hereunder.


 


Upon acceptance of appointment by a successor Trustee, Calculation Agent,
Paying Agent or Debt Security Registrar as provided in this Section 6.10,
the Company shall mail notice of the succession 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, the successor shall cause
such notice to be mailed at the expense of the Company.


 


SECTION 6.11.  Succession by Merger, etc.


 


Any Person into which the Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Person succeeding to 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 Person 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


 


38





















 


successor
Trustee; and in all such cases such certificates shall have the full force
which it is anywhere in the Debt Securities or in this Indenture provided that
the certificate of the Trustee shall have; provided, however,
that the right to adopt the certificate of authentication of any predecessor
Trustee or authenticate Debt Securities in the name of any predecessor Trustee
shall apply only to its successor or successors by merger, conversion or
consolidation.


 


SECTION 6.12.  Authenticating Agents.


 


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


 


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


 


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


 


39





















 


Other than as provided in the Fee Agreement of even date herewith
between Cohen Bros. & Company, the Company, and the Trustee (as
defined in the Declaration), 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 and shall
receive such reasonable indemnity as it may require against the costs, expenses
and liabilities incurred in furtherance of its duties under this Section 6.12.


 


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.


 


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.


 


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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, premium, if any, and
interest on such Debt Security and for all other purposes; and neither the
Company nor the Trustee nor any Authenticating Agent nor any Paying Agent nor
any transfer agent nor any Debt Security registrar shall be affected by any
notice to the contrary. All such payments so made to any holder for the time
being or upon such holder’s order shall be valid, and, to the extent of the sum
or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Debt Security.


 


SECTION 7.04.  Debt Securities Owned by Company Deemed
Not Outstanding.


 


In determining whether the holders of the requisite aggregate principal
amount of Debt Securities have concurred in any direction, consent or waiver
under this Indenture, Debt Securities which are owned by the Company or any
other obligor on the Debt Securities or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company (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 7.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee’s right to vote such Debt Securities
and that the pledgee is not the Company or any such other obligor or Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any such other obligor. In the case of a
dispute as to such right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee.


 


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SECTION 7.05.  Revocation of Consents; Future
Securityholders Bound.


 


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


 


ARTICLE VIII



SECURITYHOLDERS’ MEETINGS


 


SECTION 8.01.  Purposes of Meetings.


 


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


 


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


 


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


 


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


 


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


 


SECTION 8.02.  Call of Meetings by Trustee.


 


The Trustee may at any time call a meeting of Securityholders to take
any action specified in Section 8.01, to be held at such time and at such
place in The City of New York, the Borough of Manhattan, or Boston,
Massachusetts, as the Trustee shall determine. Notice of every


 


42





















 


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 for such meeting and may call such meeting to take any action
authorized in Section 8.01, by mailing notice thereof as provided in Section 8.02.


 


SECTION 8.04.  Qualifications for Voting.


 


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


 


SECTION 8.05.  Regulations.


 


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


 


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


 


Subject to the provisions of Section 7.04, at any meeting each
holder of Debt Securities with respect to which such meeting is being held or
proxy therefor shall be entitled to one vote for each $1,000 principal amount
of Debt Securities held or represented by such holder; provided, however,
that no vote shall be cast or counted at any meeting in respect of any Debt
Security challenged as not outstanding and ruled by the chairman of the meeting
to be not outstanding. The chairman of the meeting shall have no right to vote
other than by virtue of Debt


 


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Securities
held by such chairman or instruments in writing as aforesaid duly designating
such chairman as the Person to vote on behalf of other Securityholders. Any
meeting of Securityholders duly called pursuant to the provisions of Section 8.02
or 8.03 may be adjourned from time to time by a majority of those present,
whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.


 


SECTION 8.06.  Voting.


 


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


 


SECTION 8.07.  Quorum; Actions.


 


The Persons entitled to vote a majority in outstanding principal amount
of the Debt Securities shall constitute a quorum for a meeting of
Securityholders; provided, however, that if any action is to be
taken at such meeting with respect to a consent, waiver, request, demand,
notice, authorization, direction or other action which may be given by the
holders of not less than a specified percentage in outstanding principal amount
of the Debt Securities, the Persons holding or representing such specified
percentage in outstanding principal amount of the Debt Securities will
constitute a quorum. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the request
of Securityholders, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the permanent
chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for a period of not less than 10 days as determined by the
permanent chairman of the meeting prior to the adjournment of such adjourned
meeting. Notice of the reconvening of any adjourned meeting shall be given as
provided in Section 8.02, except that such notice need be given only once
not less than five days prior to the date on which the meeting is scheduled to
be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the outstanding principal
amount of the Debt Securities which shall constitute a quorum.


 


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


 


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


 


SECTION 8.08.  Written Consent Without a Meeting.


 


Whenever under this Indenture, Securityholders are required or
permitted to take any action by vote, such action may be taken without a
meeting on written consent, setting forth the action so taken, signed by the
Securityholders of all outstanding Debt Securities entitled to vote thereon.  No consent shall be effective to take the
action referred to therein unless, within sixty days of the earliest dated
consent delivered in the manner required by this paragraph to the Trustee,
written consents signed by a sufficient number of Securityholders to take
action are delivered to the Trustee at its Principal Office.  Delivery made to the Trustee at its Principal
Office, shall be by hand or by certificated or registered mail, return receipt
requested.  Written consent thus given by
the Securityholders of such number of Debt Securities as is required hereunder,
shall have the same effect as a valid vote of Securityholders of such number of
Debt Securities.


 


ARTICLE IX



SUPPLEMENTAL INDENTURES


 


SECTION 9.01.  Supplemental Indentures without Consent of
Securityholders.


 


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


 


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


 


(b)           to add to the covenants
of the Company such further covenants, restrictions or conditions for the
protection of the holders of 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


 


45





















 


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 or
amend such other provisions in regard to matters or questions arising under
this Indenture; provided, that any such action shall not adversely
affect the interests of the holders of the Debt Securities;


 


(d)           to add to, delete from,
or revise the terms of Debt Securities, including, without limitation, any terms
relating to the issuance, exchange, registration or transfer of Debt
Securities, including to provide for transfer procedures and restrictions
substantially similar to those applicable to the Capital Securities, as
required by Section 2.05 (for purposes of assuring that no registration of
Debt Securities is required under the Securities Act of 1933, as amended);
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 paragraph) that does not adversely
affect the rights of any Securityholder in any material respect; or


 


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


 


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


 


Any supplemental indenture authorized by the provisions of this Section 9.01
may be executed by the Company and the Trustee without the consent of the
holders of any of the Debt Securities at the time outstanding, notwithstanding
any of the provisions of Section 9.02.


 


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SECTION 9.02.  Supplemental Indentures with Consent of
Securityholders.


 


With the consent (evidenced as provided in Section 7.01) of the
holders of not less than a majority in aggregate principal amount of the Debt
Securities at the time outstanding affected by such supplemental indenture, the
Company, when authorized by a Board Resolution, and the Trustee may from time
to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act, then
in effect, applicable to indentures qualified thereunder) for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying
in any manner the rights of the holders of the Debt Securities; provided,
however, that no such supplemental indenture shall without such consent
of the holders of each Debt Security then outstanding and affected thereby (i) 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 impair the right of repayment, if any, at the option of
the holder, or (ii) reduce the aforesaid percentage of Debt Securities the
holders of which are required to consent to any such supplemental indenture;
and provided, further, that if the Debt Securities are held by
the Trust or a trustee of such trust, such supplemental indenture shall not be
effective until the holders of a majority in Liquidation 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.


 


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.


 


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It shall not be necessary for the consent of the Securityholders under
this Section 9.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall
approve the substance thereof.


 


SECTION 9.03.  Effect of Supplemental Indentures.


 


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


 


SECTION 9.04.  Notation on Debt Securities.


 


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


 


SECTION 9.05.  Evidence of Compliance of Supplemental
Indenture to be furnished to Trustee.


 


The Trustee, subject to the provisions of Sections 6.01 and 6.02,
shall, in addition to the documents required by Section 14.06, receive an
Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant hereto complies with the requirements
of this Article IX. The Trustee shall receive an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this Article IX
is authorized or permitted by, and conforms to, the terms of this Article IX
and that it is proper for the Trustee under the provisions of this Article IX
to join in the execution thereof.


 


ARTICLE X



REDEMPTION OF SECURITIES


 


SECTION 10.01.  Optional Redemption.


 


At any time the Company shall have the right, subject to the receipt by
the Company of prior approval from any regulatory authority with jurisdiction
over the Company if such approval is then required under applicable capital
guidelines or policies of such regulatory authority, 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


 


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such date)
from time to time in part, on any March 15,
June 15, September 15 or December 15
on or after December 15, 2010 (the “Redemption
Date”), at the Redemption Price.


 


SECTION 10.02.  Special Event Redemption.


 


If a Special Event shall occur and be continuing, the Company shall
have the right, subject to the receipt by the Company of prior approval from
any regulatory authority with jurisdiction over the Company if such approval is
then required under applicable capital guidelines or policies of such
regulatory authority, to redeem the Debt Securities, in whole or 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
redemption 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.


 


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


 


The Company will give the Trustee notice not less than 45 nor more than
60 days prior to the Redemption Date as to the Redemption Price at which the
Debt Securities are to be redeemed and the aggregate principal amount of Debt
Securities to be redeemed and the Trustee


 


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shall select,
in such manner as in its sole discretion it shall deem appropriate and fair,
the Debt Securities or portions thereof (in integral multiples of $1,000) to be
redeemed.


 


SECTION 10.04.  Payment of Debt Securities Called for
Redemption.


 


If notice of redemption has been given as provided in Section 10.03,
the Debt Securities or portions of Debt Securities with respect to which such
notice has been given shall become due and payable on the Redemption Date or
the Special Redemption Date (as the case may be) and at the place or places
stated in such notice at the applicable redemption price, together with
interest accrued to the date fixed for redemption, and on and after said
Redemption Date or the Special Redemption Date (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 redemption price, together with unpaid interest accrued thereon to
the Redemption Date or the Special Redemption Date (as the case may be).


 


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


 


ARTICLE XI



CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE


 


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


 


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


 


50





















 


additional
amounts as shall be required so that the net amounts received and retained by
the holders of such Debt Securities or Capital 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 City
of New York, Borough of Manhattan, 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 entity, by supplemental indenture, executed and delivered to
the Trustee and reasonably satisfactory in form to the Trustee, of the due and
punctual payment of the principal of and premium, if any, and interest on all
of the Debt Securities and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed or
observed by the Company, such successor entity shall succeed to and be substituted
for the Company, with the same effect as if it had been named herein as the
Company, and thereupon the predecessor entity shall be relieved of any further
liability or obligation hereunder or upon the Debt Securities. Such successor
entity thereupon may cause to be signed, and may issue either in its own name
or in the name of the Company, any or all of the Debt Securities issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee or the Authenticating Agent; and, upon the order of
such successor entity instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee or the
Authenticating Agent shall authenticate and deliver any Debt Securities which
previously shall have been signed and delivered by the officers of the Company,
to the Trustee or the Authenticating Agent for authentication, and any Debt
Securities which such successor entity thereafter shall cause to be signed and
delivered to the Trustee or the Authenticating Agent for that purpose. All the
Debt Securities so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Debt Securities theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of such
Debt Securities had been issued at the date of the execution hereof.


 


SECTION 11.03.  Opinion of Counsel to be Given to Trustee.


 


The Trustee, subject to the provisions of Sections 6.01 and 6.02, shall
receive, in addition to the Opinion of Counsel required by Section 9.05,
an Opinion of Counsel as


 


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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
such date of maturity or redemption date, as the case may be, but excluding,
however, the amount of any moneys for the payment of principal of, and premium,
if any, or interest on the Debt Securities (1) theretofore repaid to the
Company in accordance with the provisions of Section 12.04, or (2) paid
to any state or to the District of Columbia pursuant to its unclaimed property
or similar laws, and if in the case of either clause (a) or clause (b) the
Company shall also pay or cause to be paid all other sums payable hereunder by
the Company, then this Indenture shall cease to be of further effect except for
the provisions of Sections 2.05, 2.06, 3.01, 3.02, 3.04, 6.06, 6.09 and 12.04
hereof, which shall survive until such Debt Securities shall mature or are
redeemed, as the case may be, and are paid in full. Thereafter, Sections 6.06,
6.09 and 12.04 shall survive, and the Trustee, on demand of the Company
accompanied by an Officers’ Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with, and at the cost and
expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture, the Company, however, hereby
agreeing to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred by the Trustee in connection with this
Indenture or the Debt Securities.


 


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


 


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


 


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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.


 


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.


 


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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, duly signed by the party giving
such notice, and shall be delivered, telecopied (which telecopy shall be
followed by notice delivered or mailed by first class mail) or mailed by first
class mail to the Company at:


 


The Bank Holdings


9990 Double R Boulevard


Reno, Nevada 89521


Attention:  Jack Buchold


 


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 U.S.
Bank National Association at:


 


One Federal Street, 3rd
Floor

Boston, Massachusetts 02110

Attn: Corporate Trust Services – The Bank
Holdings Statutory Trust I


 


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


 


54





















 


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


 


Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (except certificates delivered pursuant to Section 3.05)
shall include (a) a statement that the person making such certificate or
opinion has read such covenant or condition 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.  Non-Business Days.


 


Notwithstanding anything to the contrary contained herein, if any
Interest Payment Date, other than on the Maturity Date, any 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 the Maturity Date, any 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.  Severability.


 


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


 


55





















 


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


 


ARTICLE XV



SUBORDINATION OF DEBT SECURITIES


 


SECTION 15.01.  Agreement to Subordinate.


 


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


 


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.


 


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


 


SECTION 15.02.  Default on Senior Indebtedness.


 


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


 


In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 15.02, such payment shall, subject to Section 15.06,
be held in trust for the benefit of, and shall be paid over or delivered to,
the holders of Senior Indebtedness or their respective representatives, or to
the trustee or trustees under any indenture pursuant to which any of such
Senior Indebtedness may have been issued, as their respective interests may
appear, but only to the extent that the holders of the Senior Indebtedness (or
their representative or representatives or a trustee) notify the Trustee in
writing within 90 days of such payment of the amounts then due and owing on the
Senior Indebtedness and only the amounts specified in such notice to the
Trustee shall be paid to the holders of Senior Indebtedness.


 


SECTION 15.03.  Liquidation; Dissolution; Bankruptcy.


 


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


 


57





















 


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


 


For purposes of this Article XV, the words “cash, property or
securities” shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this Article XV
with respect to the Debt Securities to the payment of all Senior Indebtedness
of the Company, that may at the time be outstanding, provided, that (a) such
Senior Indebtedness is assumed by the new corporation, if any, resulting from
any such reorganization or readjustment, and (b) the rights of the holders
of such Senior Indebtedness are not, without the consent of such holders,
altered by such reorganization or readjustment. The consolidation of the
Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance, 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 15.03 if such other
corporation shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article XI of this
Indenture. Nothing in Section 15.02 or in this Section 15.03 shall
apply to claims of, or payments to, the Trustee under or pursuant to Section 6.06
of this Indenture.


 


SECTION 15.04.  Subrogation.


 


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


 


58





















 


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, shall be entitled in all
respects to assume that no such facts exist; provided, however,
that if the Trustee shall not have received the notice provided for in this Section 15.06
at least two Business Days prior to the date upon which by the terms hereof any
money may become payable for any


 


59





















 


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 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,


 


60





















 


provisions and
covenants of this Indenture, regardless of any knowledge thereof that any such
holder may have or otherwise be charged with.


 


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


 


U.S. Bank National Association, in its capacity as Trustee, hereby
accepts the trusts in this Indenture declared and provided, upon the terms and
conditions herein above set forth.


 


61





















 


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.


 


	
   

  	
  The Bank Holdings

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hal Giomi

  
	
   

  	
  Name:

  	
   

  	
  Hal
  Giomi

  
	
   

  	
  Title:

  	
   

  	
  CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S.
  Bank National Association, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul D. Allen

  
	
   

  	
  Name:

  	
  Paul D. Allen

  
	
   

  	
  Title:

  	
  Vice President

  
								



 


62





















 


EXHIBIT A


 


FORM OF
JUNIOR SUBORDINATED DEBT SECURITY

DUE 2035


 


[FORM OF
FACE OF SECURITY]


 


THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER
APPLICABLE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY
ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY
ONLY (A) TO THE COMPANY, (B) PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT (“RULE 144A”), TO A PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO A “NON
U.S. PERSON” IN AN “OFFSHORE TRANSACTION” PURSUANT TO REGULATION S UNDER THE
SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT TO AN “ACCREDITED INVESTOR” WITHIN THE
MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501
UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR
FOR THE ACCOUNT OF 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, OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH
THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY. THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY
WITH THE FOREGOING RESTRICTIONS.


 


THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS
AND WARRANTS THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THIS
SECURITY UNLESS SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT.


 


THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES,
REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT,


 


A-1





















 


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


 


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


 


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


 


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


 


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 Form of Junior Subordinated Debt Security
due 2035


 


of


 


The
Bank Holdings


 


The Bank Holdings, a bank
holding company incorporated in Nevada
(the “Company”), for value received promises to pay to U.S. Bank National
Association, not in its individual capacity but solely as Institutional Trustee
for The Bank Holdings Statutory Trust I,
a Connecticut statutory trust (the “Holder”), or registered assigns, the principal
sum of Fifteen Million Four Hundred Sixty Four
Thousand Dollars on December 15,
2035 and to pay interest on said principal sum from November 3, 2005, or from the most recent
interest payment date (each such date, an “Interest Payment Date”) to which interest
has been paid or duly provided for, quarterly (subject to deferral as set forth
herein) in arrears on March 15, June 15, September 15
and December 15 of each year
commencing December 15, 2005, at a
variable per annum rate equal to LIBOR (as defined in the Indenture) plus 1.42% (the “Interest Rate”) (provided, however,
that the Interest Rate for any Interest Payment Period may not exceed the
highest rate permitted by New York law, as the same may be modified by United
States law of general applicability) until the principal hereof shall have
become due and payable, and on any overdue principal and (without duplication
and to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at an annual rate equal to the
Interest Rate in effect for each such Extension Period compounded quarterly.
The amount of interest payable on any Interest Payment Date shall be computed
on the basis of a 360-day year and the actual number of days elapsed in the relevant
interest period.  Notwithstanding
anything to the contrary contained herein, if any Interest Payment Date, other
than on the Maturity Date, any 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 the Maturity Date, any 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. 
The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Debt Security (or one or more
Predecessor Securities, as defined in said Indenture) is registered at the
close of business on the regular record date for such interest installment,
except that interest and any Deferred Interest payable on the Maturity Date
shall be paid to the Person to whom principal is paid. Any such interest
installment not punctually paid or duly provided for shall forthwith cease to
be payable to the registered holders on such regular record date and may be
paid to the Person in whose name this Debt Security (or one or more Predecessor
Debt Securities) is registered at the close of business on a special record
date to be fixed by the Trustee for the payment of such defaulted interest,
notice whereof shall be given to the registered holders of the Debt Securities
not less than 10 days prior to such special record date, all as more fully
provided in the Indenture. The principal of and interest on this Debt Security
shall be payable at the office or agency of the Trustee (or other Paying Agent
appointed by the Company) maintained for that purpose in any coin or currency
of the United States of America that at the time of payment is legal tender for
payment of public and private debts; provided, however, that


 


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payment of
interest may be made at the option of the Company by check mailed to the
registered holder at such address as shall appear in the Debt Security Register
or by wire transfer or 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.


 


Upon submission of Notice (as defined in the Indenture) and so long as
it is acting in good faith, and so long as no Event of Default pursuant to
paragraphs (c), (e) or (f) of Section 5.01 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 distribution 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 distribution period, an “Extension Period”), during which Extension
Period no interest shall be due and payable (except any Additional Interest
that may be due and payable). During any Extension Period, interest will
continue to accrue on the Debt Securities, and interest on such accrued
interest (such accrued interest and interest thereon referred to herein as “Deferred
Interest”) will accrue at an annual rate equal to the Interest Rate 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 law. No Extension Period may end on a date other than an
Interest Payment Date. At the end of any such Extension Period the Company
shall pay all Deferred Interest then accrued and unpaid on the Debt Securities;
provided, however, that no Extension Period may extend beyond the
Maturity Date; and provided, further, however, during any such
Extension Period, the Company may not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company’s capital stock or (ii) make any
payment 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 (other than (a) repurchases, redemptions
or other acquisitions of shares of capital stock of the Company (A) in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of one or more employees, officers,
directors or consultants, (B) in connection with a dividend reinvestment
or stockholder stock purchase plan or (C) in connection with the issuance
of capital stock of the Company (or securities convertible into or exercisable
for such capital stock), as consideration in an acquisition transaction entered
into prior to the applicable Extension Period, (b) as a result of any
exchange, reclassification, combination 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


 


A-4





















 


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, or extend beyond the Maturity Date. Upon the termination of
any Extension Period and upon the payment of all Deferred Interest, the Company
may commence a new Extension Period, subject to the foregoing requirements. The
Company must give the Trustee notice of its election to begin any Extension
Period (“Notice”) not later than the related regular record date for the
relevant Interest Payment Date.  The
Notice shall describe why the Company has elected to begin an Extension
Period.  The Notice shall acknowledge and
affirm the Company’s understanding that it is prohibited from issuing dividends
and other distributions during the Extension Period.  Upon receipt of the Notice, an Initial
Purchaser shall have the right, at its sole discretion, to disclose the name of
the Company, the fact that the Company has elected to begin an Extension Period
and other information that such Initial Purchaser, at its sole discretion,
deems relevant to the Company’s election to begin an Extension Period.  The Trustee shall give notice of the Company’s
election to begin a new Extension Period to the Securityholders.


 


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


 


The Company waives 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.


 


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.


 


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


 


	
   

  	
  The Bank Holdings

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
  , 2005

  	
   

  
							



 


CERTIFICATE OF
AUTHENTICATION


 


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


 


	
   

  	
  U.S. Bank National
  Association, not in its

  individual capacity but solely as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
  , 2005

  	
   

  
					



 


A-6





















 


[FORM OF
REVERSE OF SECURITY]


 


This Debt Security is one of a duly authorized series of Debt
Securities of the Company, all issued or to be issued pursuant to an Indenture
(the “Indenture”), dated as of November 3,
2005, duly executed and delivered between the Company and U.S. Bank
National Association, as Trustee (the “Trustee”), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the holders of the Debt Securities
(referred to herein as the “Debt Securities”) of which this Debt Security is a
part. The summary of the terms of this Debt Security contained herein does not
purport to be complete and is qualified by reference to the Indenture.


 


Upon the occurrence and continuation of a Tax Event, an Investment
Company Event or a Capital Treatment Event (each a “Special Event”), this Debt
Security may become due and payable, in whole or in part, at any time, within
90 days following the occurrence of such Tax Event, Investment Company Event or
Capital Treatment Event (the “Special Redemption Date”), as the case may be, at
the Special Redemption Price.


 


The Company shall also have the right to redeem this Debt Security at
the option of the Company, in whole or in part, on any March 15, June 15, September 15 or December 15 on or after December 15,
2010 (a “Redemption Date”), at the Redemption Price.


 


Any redemption pursuant to the preceding paragraph will be made,
subject to the receipt by the Company of prior approval from any regulatory
authority with jurisdiction over the Company if such approval is then required
under applicable capital guidelines or policies of such regulatory authority,
upon not less than 30 days’ nor more than 60 days’ notice. If the Debt
Securities are only partially redeemed by the Company, the Debt Securities will
be redeemed pro rata or by lot or by any other method utilized by the
Trustee.


 


“Redemption Price” means 100% of the principal amount of the Debt
Securities being redeemed plus accrued and unpaid interest on such Debt
Securities to the Redemption Date.


 


“Special Redemption Price” means, with respect to the redemption of any
Debt Security following a Special Event, an amount in cash equal to 103.525% of
the principal amount of Debt Securities to be redeemed prior to December 15, 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:


 




	
  Special
  Redemption During the

  12-Month Period Beginning December 15

  	
   

  	
  Percentage of Principal Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2006

  	
   

  	
  103.140

  	
  %

  
	
  2007

  	
   

  	
  102.355

  	
  %

  
	
  2008

  	
   

  	
  101.570

  	
  %

  
	
  2009

  	
   

  	
  100.785

  	
  %

  
	
  2010 and
  thereafter

  	
   

  	
  100.000

  	
  %

  






 


A-7





















 


In the event of redemption of this Debt Security in part only, a new
Debt Security or Debt Securities for the unredeemed portion hereof will be
issued in the name of the holder hereof upon the cancellation hereof.


 


In certain cases where 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 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 not less than a majority in
aggregate principal amount of the Debt Securities at the time outstanding
affected thereby, as specified in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Debt Securities; provided, however, that no such
supplemental indenture shall, among other things, without the consent of the
holders of each Debt Security then outstanding and affected thereby (i) 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 of Debt Securities to
institute suit for the payment thereof, or (ii) reduce the aforesaid
percentage of Debt Securities, the holders of which are required to consent to
any such supplemental indenture. The Indenture also contains provisions
permitting the holders of a majority in aggregate principal amount of the Debt
Securities at the time outstanding, on behalf of all of the holders of the Debt
Securities, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the Indenture,
and its consequences, except (a) 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 registered holder of this Debt Security (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
holder and upon all future holders and owners of this Debt Security and of any
Debt Security issued in exchange herefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debt Security.


 


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


 


A-8





















 


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


 


Prior to due presentment for registration of transfer of this Debt Security,
the Company, the Trustee, any Authenticating Agent, any Paying Agent, any
transfer agent and the Debt Security registrar may deem and treat the
registered holder hereof as the absolute owner hereof (whether or not this Debt
Security shall be overdue and notwithstanding any notice of ownership or
writing hereon) for the purpose of receiving payment of the principal of and
premium, if any, and interest on this Debt Security and for all other purposes,
and neither the Company nor the Trustee nor any Authenticating Agent nor any
Paying Agent nor any transfer agent nor any Debt Security registrar shall be
affected by any notice to the contrary.


 


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


 


The Debt Securities are issuable only in registered certificated form
without coupons. As provided in the Indenture and subject to certain
limitations herein and therein set forth, Debt Securities are exchangeable for
a like aggregate principal amount of Debt Securities of a different authorized
denomination, as requested by the holder surrendering the same.


 


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


 


THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THE
DEBT SECURITIES, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).


 


A-9