Contract

Exhibit
      4.2
 
 
THIS
      OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY, OR OTHERWISE PROTECTED BY,
      ANY FEDERAL AGENCY OR THE SECURITIES INVESTOR PROTECTION CORPORATION. THIS
      OBLIGATION IS SUBORDINATED TO THE SENIOR INDEBTEDNESS OF THE ISSUER AS SET
      FORTH
      HEREIN AND IS NOT SECURED.
 
JUNIOR
      SUBORDINATED DEFERRABLE INTEREST DEBENTURE
 

        

            
              REGISTERED
No.
                  1 

              REGISTERED
US$825,010,000
CUSIP:
                    00000XXX0

            

      
 

 
XXXXXX
      STANLEY
JUNIOR
      SUBORDINATED DEFERRABLE INTEREST DEBENTURE
 
Xxxxxx
      Xxxxxxx, a Delaware corporation (together with its successors and assigns,
      the
“Issuer”),
      for
      value received, hereby promises to pay to The Bank of New York, as Property
      Trustee (the “Property
      Trustee,”
which
      term includes any successor Property Trustee for Xxxxxx Xxxxxxx Capital Trust
      VIII) for Xxxxxx Xxxxxxx Capital Trust VIII, a statutory trust formed under
      the
      laws of the State of Delaware (the “Issuer
      Trust”),
      or
      registered assignees, the principal sum of US$825,010,000 (UNITED STATES DOLLARS
      EIGHT HUNDRED TWENTY-FIVE MILLION TEN THOUSAND) on January 15, 2046 (the
“Scheduled
      Redemption Date”)
      or
      thereafter out of the net proceeds from the sale of certain Replacement
      Securities, as described on the reverse hereof, or, if the Issuer is unable
      to
      raise such proceeds, on April 15, 2067 (or if this day is not a business day,
      the following business day). The Issuer further promises to pay interest on
      said
      principal sum at the annual rate of 6.45% from and including April
      26,
      2007 to
      but
      excluding the date the principal hereof is paid or duly made available for
      payment (except as provided below). Interest is payable quarterly in arrears
      on
      January 15, April 15, July 15 and October 15 of each year (each an “Interest
      Payment Date”),
      commencing July 15, 2007.
 
Interest
      on this Debenture shall accrue from and including the most recent Interest
      Payment Date on which interest has been paid or duly provided for, or, if no
      interest has been paid or duly provided for, from and including April 26, 2007
      to but excluding the date the principal hereof has been paid or duly made
      available for payment. The interest so payable, and punctually paid or duly
      provided for, on any Interest Payment Date shall, subject to certain exceptions
      described herein, be paid to the Person in whose name this Debenture (or one
      or
      more predecessor Debentures) is registered at the close of business on the
      15th
      calendar day (whether or not a Business Day) next preceding such Interest
      Payment Date (each such date a “Record
      Date”).
      “Business
      Day”
means
      any day, other than a Saturday or Sunday, that is not a day on which
      banking
 


        

        

          
        

        

institutions
      in The City of New York are authorized or required by law or executive order
      to
      remain closed. A Holder of US$1,000,000 or more in aggregate principal amount
      of
      Debentures having the same Interest Payment Date, the interest on which is
      payable in U.S. dollars, shall be entitled to receive payments of interest,
      other than interest due at maturity or on any date of redemption or repayment,
      by wire transfer of immediately available funds if appropriate wire transfer
      instructions have been received by the Paying Agent in writing not less than
      15
      calendar days prior to the applicable Interest Payment Date.
 
Reference
      is hereby made to the further provisions of this Debenture set forth on the
      reverse hereof, which further provisions shall for all purposes have the same
      effect as if set forth at this place, including, without limitation, the
      provisions relating to the subordination of this Debenture to the Issuer’s
      Senior Indebtedness, the deferral of interest during Optional Deferral Periods,
      the Alternative Payment Mechanism to be used to pay any Deferred Interest and
      the right of the Issuer to redeem the Debentures prior to the Scheduled
      Redemption Date, each as defined on the reverse hereof.
 
Unless
      the
      certificate of authentication hereon has been executed by the Trustee, this
      Debenture shall not be entitled to any benefit under the Junior Subordinated
      Indenture, as defined on the reverse hereof, or be valid or obligatory for
      any
      purpose.
 


        
2

          
        

        

IN
      WITNESS
      WHEREOF, the Issuer has caused this Debenture to be duly executed.
 
DATED:
      April 26, 2007
 

      

          
            XXXXXX
                XXXXXXX
 

          

            By:

            /s/
              Xxx Xxxxxxx 
          

             
            Name: Xxx
                Xxxxxxx

          

             
            Title: Assistant
                Treasurer

          

            
            
          

             

          

    
 

 
TRUSTEE’S
      CERTIFICATE OF AUTHENTICATION

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

DATED:
      April 26, 0000

XXX
      XXXX
      XX XXX XXXX,
as
      Trustee


By:
/s/
      Xxxxxx
      Xxxxxxx               
      
      Authorized Signatory
 
 

        
3

          
        

        

REVERSE
      OF SECURITY
 
This
      debenture is one of a duly authorized issue of 6.45% Junior Subordinated
      Debentures due April 15, 2067 (the “Final
      Maturity Date”),
      and
      redeemable on such earlier date or dates as provided herein, of the Issuer
      (the
“Debentures”).
      The
      Debentures are issuable under the Junior Subordinated Indenture, dated as of
      October 12, 2006, between Xxxxxx Xxxxxxx (the “Issuer”)
      and The
      Bank of New York, as Trustee (the “Trustee,”
which
      term includes any successor trustee under the Junior Subordinated Indenture)
      (the “Junior
      Subordinated Indenture”),
      to
      which Junior Subordinated Indenture reference is hereby made for a statement
      of
      the respective rights, limitations of rights, duties and immunities of the
      Issuer, the Trustee and holders of the Debentures and the terms upon which
      the
      Debentures are, and are to be, authenticated and delivered. The Issuer has
      appointed The Bank of New York at its corporate trust office in The City of
      New
      York as the paying agent (the “Paying
      Agent,”
which
      term includes any additional or successor Paying Agent appointed by the Issuer)
      with respect to the Debentures. To the extent not inconsistent herewith, the
      terms of the Junior Subordinated Indenture are hereby incorporated by reference
      herein. Capitalized terms not otherwise defined herein have the meaning given
      to
      such terms in the Junior Subordinated Indenture.
 
This
      Debenture shall not be subject to any sinking fund, shall not be subject to
      repayment at the option of the holder and, except as provided below, shall
      not
      be redeemable prior to the Final Maturity Date.
 
The
      Issuer
      covenants (the “Replacement
      Capital Obligation”)
      to
      redeem the Debentures on January 15, 2046 (the “Scheduled
      Redemption Date”),
      but
      only out of net proceeds raised from the sale to third party purchasers of
      one
      or more issuances of Replacement Securities in the amounts specified
      below.
 
The
      Replacement Capital Obligation is limited. Except as described below, and
      subject to the occurrence of a Market Disruption Event, the Issuer shall use
      its
      Commercially Reasonable Efforts to raise sufficient net proceeds from the sale
      of Replacement Securities to redeem the Debentures in full on the Scheduled
      Redemption Date only to the extent that it has raised sufficient net proceeds
      within the 180-day period prior to the date on which the Issuer gives its notice
      of redemption pursuant to the Junior Subordinated Indenture, which shall be
      not
      more than 30 and not less than 15 days prior to the Scheduled Redemption Date.
      If the Issuer has not raised sufficient net proceeds to permit redemption in
      full of the Debentures on the Scheduled Redemption Date at their principal
      plus
      accrued and unpaid interest thereon, it shall apply any available proceeds
      so
      raised first to pay the accrued and unpaid installments of interest in
      chronological order and second to repay all principal outstanding on the
      Debentures. Except as described below, and subject to the occurrence of a Market
      Disruption Event, the Issuer shall continue using its Commercially Reasonable
      Efforts to raise sufficient
 


        
4

          
        

        

proceeds
      to permit repayment of the balance of the amount due on the Debentures as soon
      as commercially practicable and shall use any proceeds raised on each Interest
      Payment Date following the Scheduled Redemption Date to reduce the balance
      outstanding on such Interest Payment Date until the Debentures are paid in
      full.
      The Issuer shall not otherwise redeem the Debentures on or after the Scheduled
      Redemption Date. The Replacement Capital Obligation shall continue to apply
      until (i) the Issuer has raised sufficient net proceeds from the sale of
      Replacement Securities to permit redemption in full in accordance with the
      Replacement Capital Obligation, (ii) the Debentures are otherwise paid in full
      on the Final Maturity Date or (iii) the occurrence of an Event of Default
      resulting in the acceleration of the principal amount of the Debentures.
 
The
      Issuer
      shall only have the right to modify or terminate the Replacement Capital
      Obligation with the consent of the Holders of a majority in principal amount
      of
      the Debentures; provided
      that the
      Replacement Capital Obligation may be amended or supplemented from time to
      time
      by a written instrument signed only by the Issuer (and without the consent
      of
      the Holders) if: (i) such amendment eliminates Common Stock, Mandatorily
      Convertible Preferred Stock and/or Debt Exchangeable for Equity (but only to
      the
      extent exchangeable for Common Stock) as a type of security or securities
      qualifying as Replacement Securities and the Issuer has been advised in writing
      by a nationally recognized independent accounting firm that there is more than
      an insubstantial risk that the failure to do so would result in a reduction
      in
      the Issuer’s earnings per share as calculated for financial reporting purposes
      or (ii) such amendment or supplement is not adverse to the Holders then in
      effect or imposes additional restrictions on the types of securities qualifying
      as Replacement Securities, and, in either case described in this clause (ii),
      an
      officer of the Issuer has delivered to the Holders a written certificate stating
      that, in his or her determination, such amendment or supplement is not adverse
      to the Holders. In no event, however, shall the Issuer’s failure to obtain such
      consent be an Event of Default hereunder.
 
Any
      principal amount of this Debenture remaining outstanding, together with accrued
      and unpaid interest, will be due and payable on the Final Maturity Date,
      regardless of the amount of Replacement Securities the Issuer has issued and
      sold by that time.
 
“Commercially
      Reasonable Efforts”
to
      sell
      securities in accordance with the Replacement Capital Obligation or the
      Alternative Payment Mechanism means commercially reasonable efforts by the
      Issuer to complete the offer and sale of the Issuer’s securities to third
      parties that are not Subsidiaries of the Issuer in public offerings or private
      placements. The Issuer shall not be considered to have made commercially
      reasonable efforts to effect a sale of securities if it determines to not pursue
      or complete such sale due to pricing, coupon, dividend rate or dilution
      considerations. 
 


        
5

          
        

        

The
      Issuer
      shall not be required to redeem the Debentures on the Scheduled Redemption
      Date
      or any Interest Payment Date following the Scheduled Redemption Date, as the
      case may be (each a “Required
      Repayment Date”),
      to the
      extent it provides written certification to the Trustee no more than 30 and
      no
      less than 15 days in advance of the Required Repayment Date certifying that
      (i)
      a Market Disruption Event was existing during the 180-day period preceding
      the
      date of such certificate or, in the case of any required redemption after the
      Scheduled Redemption Date, the 90-day period preceding the date of such
      certificate and (ii) either (a) the Market Disruption Event continued for the
      entire 180-day period or 90-day period, as the case may be, or (b) the Market
      Disruption Event continued for only part of such period, but the Issuer was
      unable after Commercially Reasonable Efforts to raise sufficient net proceeds
      during the rest of such period to permit redemption of the Debentures in
      full.
 
Net
      proceeds that the Issuer is permitted to apply to redemption of the Debentures
      on and after the Scheduled Redemption Date shall be applied first to pay
      Deferred Interest to the extent of eligible proceeds raised under the
      Alternative Payment Mechanism, second to pay current interest that the Issuer
      is
      not paying from other sources and third to redeem the principal of the
      Debentures, subject to a minimum principal amount of US$5,000,000 to be redeemed
      on any Required Repayment Date; provided
      that if
      the Issuer is obligated to sell Replacement Securities in accordance with the
      Replacement Capital Obligation and apply the net proceeds to payments of
      principal of or interest on any outstanding securities in addition to the
      Debentures (the “Other
      Securities”),
      then
      on any date and for any period the amount of net proceeds received by the Issuer
      from such sales and available for such payments shall be applied to the
      Debentures and the Other Securities having the same scheduled repayment date
      or
      scheduled redemption date as the Debentures pro rata in accordance with their
      respective outstanding principal amounts, and none of such net proceeds shall
      be
      applied to any Other Securities having a later scheduled repayment date or
      scheduled redemption date until the principal of and all accrued and unpaid
      interest on the Debentures has been paid in full.
 
“Replacement
      Securities”
means
      securities that in the determination of the Issuer’s Board of Directors
      reasonably construing the definitions and other terms of the Replacement Capital
      Obligation meet one of the following criteria:
 

      

          
            
            
            (i)
            Common
                Stock and Rights to Acquire Common
                Stock;

          

    
 

      

          
            
            
            (ii)
            Mandatorily
                Convertible Preferred Stock;

          

    
 

      

          
            
            
            (iii)
            Debt
                Exchangeable for Equity; and

          

    
 

      

          
            
            
            (iv)
            Qualifying
                Capital Securities.

          

    
 


        
6

          
        

        

These
      terms are defined below.
 
“Common
      Stock”
means
      any equity securities of the Issuer (including equity securities held as
      treasury shares and equity securities sold pursuant to the Issuer’s dividend
      reinvestment plan and employee benefit plans) that have no preference in the
      payment of dividends or amounts payable upon the liquidation, dissolution or
      winding up of the Issuer (including a security that tracks the performance
      of,
      or relates to the results of, a business, unit or division of the Issuer),
      and
      any securities that have no preference in the payment of dividends or amounts
      payable upon the liquidation, dissolution or winding up of the Issuer and are
      issued in exchange therefor in connection with a merger, consolidation, binding
      share exchange, business combination, recapitalization or other similar
      event.
 
“Rights
      to Acquire Common Stock”
includes
      any right to acquire Common Stock, including any right to acquire Common Stock
      pursuant to a stock purchase plan or employee benefit plan.
 
“Mandatorily
      Convertible Preferred Stock”
means
      cumulative preferred stock with (i) no prepayment obligation on the part of
      the
      issuer thereof, whether at the election of the holders or otherwise, and (ii)
      a
      requirement that the preferred stock convert into Common Stock within three
      years from the date of its issuance at a conversion ratio within a range
      established at the time of issuance of the preferred stock, subject to customary
      anti-dilution adjustments.
 
“Debt
      Exchangeable for Equity”
means
      Debt Exchangeable for Common Equity or Debt Exchangeable for Preferred Equity
      (each as defined below).
 
“Qualifying
      Capital Securities”
means
      securities (other than Common Stock, Rights to Acquire Common Stock and
      securities convertible into or exchangeable for Common Stock) that in the
      determination of the Board of Directors of the Issuer, reasonably construing
      the
      definitions and other terms of the Replacement Capital Obligation, meet one
      of
      the following criteria:
 

      

          
             
            (i)

            securities
                issued by the Issuer or any of its Subsidiaries that (A) rank pari
                passu
                with or junior to the Debentures
                upon
                the liquidation, dissolution or winding up of the Issuer, (B) have
                no
                maturity or a maturity of at least 60 years and (C) (1) are Non-Cumulative
                and are subject to a Qualifying Replacement Capital Covenant or (2)
                have a
                Mandatory Trigger Provision and an Optional Deferral Provision and
                are
                subject to Intent-Based Replacement Disclosure;

          

             
             
             
          

             
            (ii)
            securities
              issued by the Issuer or any of its Subsidiaries that (A) rank pari
              passu
              with or junior to the Debentures upon the

          

    
 


        
7

          
        

        


      

          
             
            
              

            liquidation,
                dissolution or winding up of the Issuer, (B) have no maturity or
                a
                maturity of at least 40 years, (C) are subject to a Qualifying Replacement
                Capital Covenant and (D) have a Mandatory Trigger Provision and an
                Optional Deferral Provision; 

          

    
 

      

          
             
            (iii)

            Qualifying
                Preferred Stock; 

          

    
 

      

          
             
            (iv)

            Non-Cumulative
                preferred stock issued by the Issuer that ranks junior to the Debentures
                upon a liquidation, dissolution or winding up of the Issuer, and
                (A) (1)
                has no maturity or a final maturity of at least 60 years and (2)
                is
                subject to Intent-Based Replacement Disclosure; or (B) (1) has no
                maturity
                or a final maturity of at least 40 years and is subject to a Qualifying
                Replacement Covenant or (2) is subject to Intent-Based Replacement
                Disclosure and has a Mandatory Trigger Provision; or (C) (1) has
                no
                maturity or a final maturity of at least 25 years, (2) is subject
                to a
                Qualifying Replacement Covenant and (3) has a Mandatory Trigger
                Provision;

          

    
 

      

          
             
            (v)

            preferred
                stock issued by the Issuer that ranks junior to the Debentures upon
                a
                liquidation, dissolution or winding up of the Issuer, and (A) has
                no
                prepayment obligation on the part of the issuer thereof, whether
                at the
                election of the holders or otherwise, and (B)(1) has no maturity
                or a
                maturity of at least 60 years and (2) is subject to a Qualifying
                Replacement Capital Covenant;

          

    
 

      

          
             
            (vi)

            securities
                issued by the Issuer or any of its Subsidiaries that (A) rank pari
                passu
                with or junior to the Debentures upon a liquidation, dissolution
                or
                winding up of the Issuer, (B) have no maturity or a maturity of at
                least
                60 years and an Optional Deferral Provision, and (C) are subject
                to a
                Qualifying Replacement Covenant;

          

    
 

      

          
             
            (vii)

            securities
                issued by the Issuer or any of its Subsidiaries that (A) rank pari
                passu with
                or junior to the Debentures upon a liquidation, dissolution or winding
                up
                of the Issuer, (B) are Non-Cumulative, (C) have no maturity or a
                maturity
                of at least 40 years and (D) either (1) are subject to a Qualifying
                Replacement Capital Covenant or (2) have a Mandatory Trigger Provision
                and
                an Optional Deferral Provision and are subject to Intent-Based Replacement
                Disclosure;

          

    
 

      

          
             
            (viii)

            securities
                issued by the Issuer or any of its Subsidiaries that (A) rank junior
                to
                all of the senior and subordinated debt of the Issuer other
                than the Debentures and securities ranking pari
                passu with
                the Debentures, (B) have an Optional Deferral Provision and a
                

          

    
 


        
8

          
        

        

 

        

            
               
               

              Mandatory
                    Trigger Provision and (C) have no maturity or a maturity of at
                    least 60
                    years and are subject to a Qualifying Replacement Capital Covenant;
                    

            

      
 

      

          
             
            (ix)

            other
                securities issued by the Issuer or any of its Subsidiaries that (A)
                rank
                upon a liquidation, dissolution or winding-up of the Issuer pari
                passu
                with or junior to the Debentures, (B) have no maturity or a maturity
                of at
                least 25 years and (C) are subject to a Qualifying Replacement Capital
                Covenant and have a Mandatory Trigger Provision and an Optional Deferral
                Provision; 

          

    
 

      

          
             
            (x)

            cumulative
                preferred stock issued by the Issuer or any of its Subsidiaries that
                (A)
                has no maturity or a maturity of at least 60 years and (B) is subject
                to
                Intent-Based Replacement
                Disclosure;

          

    
 

      

          
             
            (xi)

            Non-Cumulative
                preferred stock issued by the Issuer or any of its Subsidiaries that
                (A)
                has no maturity or a maturity of at least 60 years and (B) is subject
                to
                Intent-Based Replacement Disclosure;

          

    
 

      

          
             
            (xii)

            securities
                issued by the Issuer or any of its Subsidiaries that (A) rank pari
                passu
                with or junior to the Debentures upon a liquidation, dissolution
                or
                winding up of the Issuer, (B) either (1) have no maturity or a maturity
                of
                at least 60 years and are subject to Intent-Based Replacement Disclosure
                or (2) have no maturity or a maturity of at least 30 years and are
                subject
                to a Qualifying Replacement Capital Covenant and (C) have an Optional
                Deferral Provision; or 

          

    
 

      

          
             
            (xiii)

            securities
                issued by the Issuer or any of its Subsidiaries that (A) rank junior
                to
                all of the senior and subordinated debt of the Issuer other than
                the
                Debentures and securities ranking pari
                passu
                with the Debentures, (B) have a Mandatory Trigger Provision and an
                Optional Deferral Provision and (C) have no maturity or a maturity
                of at
                least 30 years and are subject to Intent-Based Replacement Disclosure.
                

          

    
 
For
      purposes of the definitions of Common Stock, Rights to Acquire Common Stock,
      Mandatorily Convertible Preferred Stock, Debt Exchangeable for Equity and
      Qualifying Capital Securities, the following terms have the following
      meanings:
 
“Alternative
      Payment Mechanism”
means,
      with respect to any Qualifying Capital Securities, provisions in the related
      transaction documents that require the issuer, in its discretion, to issue
      (or
      use commercially reasonable efforts to issue) one or more types of APM
      Qualifying Securities raising eligible proceeds at least equal to the deferred
      Distributions on such Qualifying Capital Securities and apply the proceeds
      to
      pay unpaid Distributions on such Qualifying Capital 
 


        
9

          
        

        
 
Securities
        and apply the proceeds to pay unpaid Distributions on such Qualifying Capital
        Securities, commencing on the earlier of (x) the first Distribution Date
        after
        commencement of a deferral period on which the issuer pays current Distributions
        on such Qualifying Capital Securities and (y) the fifth anniversary of the
        commencement of such deferral period, and that:
 
(i) define
      “eligible
      proceeds”
to
      mean,
      for purposes of such Alternative Payment Mechanism, the net proceeds (after
      underwriters’ or placement agents’ fees, commissions or discounts and other
      expenses relating to the issuance or sale) that the issuer has received during
      the 180 days prior to the related Distribution Date from the issuance of APM
      Qualifying Securities to Persons other than the Issuer and its Subsidiaries,
      up
      to the Preferred Cap (as defined in (vi) below) in the case of APM Qualifying
      Securities that are Qualifying Preferred Stock or Mandatorily Convertible
      Preferred Stock;
 
(ii) permit
      the
      issuer to pay current Distributions on any Distribution Date out of any source
      of funds but (x) require the issuer to pay deferred Distributions only out
      of
      eligible proceeds and (y) prohibit the issuer from paying deferred Distributions
      out of any source of funds other than eligible proceeds (other than following
      an
      acceleration of such securities or the occurrence of the final maturity
      thereof), unless (if the issuer elects to so provide in the terms of such
      securities) an Applicable Governmental Authority directs otherwise;
 
(iii) if
      deferral of Distributions continues for more than one year, require the Issuer
      not to redeem or repurchase any securities that rank pari
      passu
      with or
      junior to any APM Qualifying Securities that the issuer has issued to settle
      deferred Distributions in respect to that deferral period until at least one
      year after all deferred Distributions have been paid (a “Repurchase
      Restriction”);
 
(iv) notwithstanding
      the foregoing provision, if an Applicable Governmental Authority disapproves
      the
      sale of APM Qualifying Securities, may (if the issuer elects to so provide
      in
      the terms of such securities) permit the issuer to pay deferred Distributions
      from any source without a breach of its obligations under the related
      transaction documents;
 
(v) if
      an
      Applicable Governmental Authority does not disapprove the issuance and sale
      of
      APM Qualifying Securities but disapproves the use of the proceeds thereof to
      pay
      deferred Distributions, may (if the issuer elects to so provide in the terms
      of
      such securities) permit the issuer to use such proceeds for other purposes
      and
      to continue to defer Distributions without a breach of its obligations under
      the
      related transaction documents;
 
(vi) limit
      the
      obligation of the issuer to issue (or use commercially reasonable efforts to
      issue) APM Qualifying Securities to:
 


        
10

          
        

        
 
(A) in
      the
      case of APM Qualifying Securities that are Common Stock or Qualifying Warrants,
      an amount from the issuance thereof pursuant to the Alternative Payment
      Mechanism (including at any point in time from all prior issuances thereof
      during such deferral period pursuant to the Alternative Payment Mechanism)
      with
      respect to deferred Distributions attributable to the first five years of any
      deferral period equal to 2% of the total number of issued and outstanding shares
      of Common Stock as of the date of the Issuer’s then most recent publicly
      available consolidated financial statements (the “Common
      Cap”);
      provided
      (and it
      being understood) that the Common Cap shall cease to apply to such deferral
      period by a date (as specified in the related transaction documents) which
      shall
      be not later than the ninth anniversary of the commencement of such deferral
      period; and
 
(B) in
      the
      case of APM Qualifying Securities that are Qualifying Preferred Stock or
      Mandatorily Convertible Preferred Stock, an amount from the issuance thereof
      pursuant to the related Alternative Payment Mechanism (including at any point
      in
      time from all prior issuances of Qualifying Preferred Stock and unconverted
      Mandatorily Convertible Preferred Stock pursuant to such Alternative Payment
      Mechanism) equal to 25% of the liquidation preference or principal amount of
      the
      Qualifying Capital Securities that are the subject of the related Alternative
      Payment Mechanism (the “Preferred
      Cap”);
 
(vii) in
      the
      case of Qualifying Capital Securities other than Qualifying Preferred Stock,
      include a Bankruptcy Claim Limitation Provision; and
 
(viii) permit
      the
      Issuer, at its option, to provide that if it is involved in a merger,
      consolidation, amalgamation, binding share exchange or conveyance, transfer
      or
      lease of assets substantially as an entirety to any other Person or a similar
      transaction (a “business
      combination”)
      where
      immediately after the consummation of the business combination more than 50%
      of
      the surviving or resulting entity’s voting stock is owned by the shareholders of
      the other party to the business combination, then clauses (i), (ii) and (iii)
      above will not apply to any deferral period that is terminated on the next
      Distribution Date following the date of consummation of the business
      combination;
 
provided
      (and it
      being understood) that:
 
(i) the
      Alternative Payment Mechanism may at the discretion of the Issuer include a
      share cap limiting the issuance of APM Qualifying Securities consisting of
      Common Stock and Qualifying Warrants in each case to a maximum issuance cap
      to
      be set at the discretion of the Issuer; provided
      that such
      maximum issuance cap will be subject to the Issuer’s agreement to use
      commercially reasonable efforts (A) to increase the maximum issuance cap when
      reached, if the 
 


        
11

          
        

        

Issuer
      can
      do so and still satisfy its future fixed or contingent obligations under the
      securities and derivative instruments that provide for settlement or payment
      in
      shares of Common Stock, and (B) if the Issuer cannot increase the maximum
      issuance cap as contemplated in the preceding clause, to request its Board
      of
      Directors to adopt a resolution for shareholder vote at the next occurring
      annual shareholders meeting to increase the number of shares of the Issuer’s
      authorized Common Stock for purposes of satisfying its obligations to pay
      deferred distributions;
 
(ii) the
      issuer
      shall not be obligated to issue (or use commercially reasonable efforts to
      issue) APM Qualifying Securities for so long as a Market Disruption Event has
      occurred and is continuing;
 
(iii) if,
      due to
      a Market Disruption Event or otherwise, the Issuer is able to raise and apply
      some, but not all, of the eligible proceeds necessary to pay all deferred
      Distributions on any Distribution Date, the Issuer will apply any available
      eligible proceeds to pay accrued and unpaid Distributions on the applicable
      Distribution Date in chronological order subject to the Common Cap, the
      Preferred Cap, and any maximum issuance cap referred to above, as applicable;
      and
 
(iv) if
      the
      Issuer has outstanding more than one class or series of securities under which
      it is obligated to sell a type of APM Qualifying Securities and apply some
      part
      of the proceeds to the payment of deferred Distributions, then on any date
      and
      for any period the amount of net proceeds received by the Issuer from those
      sales and available for payment of deferred Distributions on such securities
      shall be applied to such securities on a pro rata basis up to the Common Cap,
      the Preferred Cap and any maximum issuance cap referred to above, as applicable,
      in proportion to the total amounts that are due on such securities, or on such
      other basis as an Applicable Governmental Authority may approve.
 
“APM
      Qualifying Securities”
means,
      with respect to an Alternative Payment Mechanism, any Debt Exchangeable for
      Preferred Equity or any Mandatory Trigger Provision, one or more of the
      following (as designated in the transaction documents for any Qualifying Capital
      Securities that include an Alternative Payment Mechanism or a Mandatory Trigger
      Provision or for any Debt Exchangeable for Preferred Equity):
 
(i) Common
      Stock;
 
(ii) Qualifying
      Warrants;

 
(iii) Mandatorily
      Convertible Preferred Stock; and
 
(iv) Qualifying
      Preferred Stock;
 


        
12

          
        

        
 
provided
      that if
      the APM Qualifying Securities for any Alternative Payment Mechanism, any Debt
      Exchangeable for Preferred Equity or any Mandatory Trigger Provision include
      both Common Stock and Qualifying Warrants, such Alternative Payment Mechanism,
      Debt Exchangeable for Preferred Equity or Mandatory Trigger Provision may
      permit, but need not require, the issuer to issue Qualifying Warrants
or
      Qualifying Preferred Stock; provided
      further that if such Alternative Payment Mechanism, Mandatory Trigger Provision
      or Debt Exchangeable for Preferred Equity includes all of the securities
      included in (i) through (iv) above, it may allow for an amendment of the terms
      of such security to eliminate Common Stock and Qualifying Warrants as APM
      Qualifying Securities if
      the
      Issuer has been advised in writing by a nationally recognized independent
      accounting firm that there is more than an insubstantial risk that the failure
      to do so would result in a reduction in the Issuer’s earnings per share as
      calculated for financial reporting purposes.
 
“Applicable
      Government Authority”
means
      the Commission, the Federal Reserve Board, the Office of the Comptroller of
      the
      Currency, the Office of Thrift Supervision or any other federal or state
      authority with regulatory oversight over the Issuer’s
      capitalization.
 
“Bankruptcy
      Claim Limitation Provision”
means,
      with respect to any Qualifying Capital Securities that have an Alternative
      Payment Mechanism or a Mandatory Trigger Provision, provisions that, upon any
      liquidation, dissolution, winding up or reorganization or in connection with
      any
      insolvency, receivership or proceeding under any bankruptcy law with respect
      to
      the issuer, limit the claim of the holders of such Qualifying Capital Securities
      to Distributions that accumulate during (i) any deferral period, in the case
      of
      Qualifying Capital Securities that have an Alternative Payment Mechanism or
      (ii)
      any period in which the issuer fails to satisfy one or more financial tests
      set
      forth in the terms of such securities or related transaction documents, in
      the
      case of Qualifying Capital Securities having a Mandatory Trigger Provision,
      to:
 
(A) in
      the
      case of Qualifying Capital Securities having an Alternative Payment Mechanism
      or
      Mandatory Trigger Provision with respect to which the APM Qualifying Securities
      do not include Qualifying Preferred Stock, 25% of the stated or principal amount
      of such securities then outstanding; and
 
(B) in
      the
      case of any other Qualifying Capital Securities, an amount not in excess of
      the
      sum of (1) the amount of accumulated and unpaid Distributions (including
      compounded amounts) that relate to the earliest two years of the portion of
      the
      deferral period for which Distributions have not been paid and (2) an amount
      equal to the excess, if any, of the Preferred Cap over the aggregate amount
      of
      net proceeds from the sale of Qualifying Preferred Stock and unconverted
      Mandatorily 


        
13

          
        

        

Convertible
      Preferred Stock that the issuer has applied to pay such Distributions pursuant
      to the Alternative Payment Mechanism or the Mandatory Trigger Provision,
provided
      that the
      holders of such securities are deemed to agree that, to the extent the remaining
      claim exceeds the amount set forth in subclause (1), the amount they receive
      in
      respect of such excess shall not exceed the amount they would have received
      had
      the claim for such excess ranked pari
      passu
      with the
      interests of the holders, if any, of Qualifying Preferred Stock.
 
“Commission”
means
      the United States Securities and Exchange Commission.
 
“Common
      Cap”
has
      the
      meaning specified in the definition of Alternative Payment
      Mechanism.
 
“Debt
      Exchangeable for Common Equity”
means
      a
      security or combination of securities (together in this definition,
“such
      securities”)
      that:
 
(i) gives
      the
      holder a beneficial interest in (A) a fractional interest in a stock purchase
      contract for a share of Common Stock of the Issuer that will be settled in
      three
      years or less, with the number of shares of Common Stock purchasable pursuant
      to
      such stock purchase contract to be within a range established at the time of
      issuance of such debt securities, subject to customary anti-dilution adjustments
      and (B) debt securities of the Issuer that are not redeemable at the option
      of
      the Issuer or the holder thereof prior to the settlement of the stock purchase
      contracts;
 
(ii) provides
      that the investors directly or indirectly grant to the Issuer a security
      interest in such debt securities and their proceeds (including any substitute
      collateral permitted under the transaction documents) to secure the investors’
direct or indirect obligation to purchase Common Stock of the Issuer pursuant
      to
      such stock purchase contracts;
 
(iii) includes
      a
      remarketing feature pursuant to which the debt securities of the Issuer are
      remarketed to new investors commencing not later than 30 days prior to the
      settlement date of the purchase contract; and
 
(iv) provides
      for the proceeds raised in the remarketing to be used to purchase Common Stock
      of the Issuer under the stock purchase contracts and, if there has not been
      a
      successful remarketing by the settlement date of the purchase contract, provides
      that the stock purchase contracts will be settled by the Issuer acquiring
      the debt securities or other collateral directly or indirectly pledged by
      investors in the Debt Exchangeable for Common Equity. 
“Debt
        Exchangeable for Preferred Equity”
means
        a
        security or combination of securities (together in this definition,
“such
        securities”)
        that:
 
 


        
14

          
        

        

(i) gives
      the
      holder a beneficial interest in (A) subordinated debt securities of the Issuer
      that include a provision requiring the Issuer to issue (or use commercially
      reasonable efforts to issue) one or more types of APM Qualifying Securities
      raising proceeds at least equal to the deferred Distributions on such
      subordinated debt securities commencing not later than the second anniversary
      of
      the commencement of such deferral period and that are the most junior
      subordinated debt of the Issuer (or rank pari
      passu
      with the
      most junior subordinated debt of the Issuer) (in this definition, “subordinated
      debt”)
      and (B)
      a fractional interest in a stock purchase contract for a share of Qualifying
      Preferred Stock of the Issuer that ranks pari
      passu
      with or
      junior to all other preferred stock of the Issuer (in this definition,
“preferred
      stock”);
 
(ii) provides
      that the investors directly or indirectly grant to the Issuer a security
      interest in such subordinated debt securities and their proceeds (including
      any
      substitute collateral permitted under the transaction documents) to secure
      the
      investors’ direct or indirect obligation to purchase preferred stock of the
      Issuer pursuant to such stock purchase contracts;
 
(iii) includes
      a
      remarketing feature pursuant to which the subordinated debt of the Issuer is
      remarketed to new investors commencing not later than the first Distribution
      Date that is at least five years after the date of issuance of securities or
      earlier in the event of an early settlement event based on: (A) the dissolution
      of the issuer of such Debt Exchangeable for Preferred Equity or (B) one or
      more
      financial tests set forth in the terms of the instrument governing such Debt
      Exchangeable for Preferred Equity;
 
(iv) provides
      for the proceeds raised in the remarketing to be used to purchase Qualifying
      Preferred Stock under the stock purchase contracts and, if there has not been
      a
      successful remarketing by the first Distribution Date that is six years after
      the date of issuance of such securities, provides that the stock purchase
      contracts will be settled by the Issuer acquiring the subordinated debt
      securities or other collateral directly or indirectly pledged by investors
      in
      the Debt Exchangeable for Preferred Equity;
 
(v) is
      subject
      to a Qualifying Replacement Capital Covenant that will apply to such securities
      and preferred stock of the Issuer, and will not include Debt Exchangeable for
      Equity as a Replacement Capital Security; and
(vi) after
      the
      issuance of such preferred stock of the Issuer provides the holders of such
      securities with a beneficial interest in such preferred stock.
 
“Distribution
      Date”
means,
      as to any securities or combination of securities, the dates on which periodic
      Distributions on such securities are scheduled to be made.
 
 


        
15

          
        

        
 
 
“Distribution
      Period”
means,
      as to any securities or combination of securities, each period from and
      including a Distribution Date for such securities to but not including the
      next
      succeeding Distribution Date for such securities.
 
“Distributions”
means,
      as to a security or combination of securities, dividends, interest payments
      or
      other income distributions to the holders thereof that are not Subsidiaries
      of
      the Issuer.
 
“Exchange
      Act”
means
      the Securities Exchange Act of 1934 or any statute successor thereto, in each
      case as amended from time to time.
 
“Intent-Based
      Replacement Disclosure”
means,
      as to any security or combination of securities, that the Issuer has publicly
      stated its intention, either in the prospectus or other offering document under
      which such securities were initially offered for sale or in filings with the
      Commission made by the Issuer under the Exchange Act prior to or
      contemporaneously with the issuance of such securities, that the Issuer will
      redeem or purchase such securities only with the proceeds of replacement capital
      securities that have terms and provisions at the time of redemption or purchase
      that receive as much or more equity-like credit than the securities then being
      redeemed or purchased, raised within 180 days of the applicable redemption
      or
      purchase date.
 
“Mandatory
      Trigger Provision”
means,
      as to any Qualifying Capital Securities, provisions in the terms thereof or
      of
      the related transaction documents that:
 
(i) require,
      or at its option in the case of Qualifying Preferred Stock permit, the issuer
      of
      such Qualifying Capital Securities to make payment of Distributions on such
      securities only pursuant to the issue and sale of APM Qualifying Securities,
      within two years of a failure of the issuer to satisfy one or more financial
      tests set forth in the terms of such Qualifying Capital Securities or related
      transaction agreements, in an amount such that the net proceeds of such sale
      are
      at least equal to the amount of unpaid Distributions on such Qualifying Capital
      Securities (including without limitation all deferred and accumulated amounts),
      and in either case require the application of the net proceeds of such sale
      to
      pay such unpaid Distributions, provided
      that (A)
      such Mandatory Trigger Provision shall limit the issuance and sale of Common
      Stock and Qualifying Warrants the proceeds of which may be applied to pay such
      Distributions pursuant
      to such provision to the Common Cap, unless the Mandatory Trigger Provision
      requires such issuance and sale within one year of such failure, and (B) the
      amount of Qualifying Preferred Stock the net proceeds of which the issuer may
      apply to pay such Distributions pursuant to such provision may not exceed the
      Preferred Cap;

            
16

              
            

            
 
(ii) other
      than
      in the case of Qualifying Preferred Stock, if the provisions described in clause
      (i) do not require such issuance and sale within one year of such failure,
      prohibit the issuer from repurchasing any securities that are pari
      passu
      with or
      junior to its APM Qualifying Securities, the proceeds of which were used to
      pay
      deferred Distributions since such failure before the date six months after
      the
      Issuer applies the net proceeds of the sales described in clause (i) to pay
      such
      unpaid Distributions in full; and
 
(iii) other
      than
      in the case of Qualifying Preferred Stock, include a Bankruptcy Claim Limitation
      Provision;
 
provided
      (and it
      being understood) that:
 
(i) the
      Issuer
      will not be obligated to issue (or use commercially reasonably efforts to issue)
      any such APM Qualifying Securities for so long as a Market Disruption Event
      has
      occurred and is continuing;
 
(ii) if,
      due to
      a Market Disruption Event or otherwise, the Issuer is able to raise and apply
      some, but not all, of the eligible proceeds necessary to pay all deferred
      Distributions on any Distribution Date, the Issuer will apply any available
      eligible proceeds to pay accrued and unpaid Distributions on the applicable
      Distribution Date in chronological order subject to the Common Cap, the
      Preferred Cap and any maximum issuance cap, as applicable; and
 
(iii) if
      the
      Issuer has outstanding more than one class or series of securities under which
      it is obligated to sell a type of any such APM Qualifying Securities and applies
      some part of the proceeds to the payment of deferred Distributions, then on
      any
      date and for any period the amount of net proceeds received by the Issuer from
      those sales and available for payment of deferred Distributions on such
      securities shall be applied to such securities on a pro
      rata
      basis up
      to the Common Cap, the Preferred Cap, and any maximum issuance cap, as
      applicable, in proportion to the total amounts that are due on such
      securities.
 
No
      remedy
      other than Permitted Remedies will arise by the terms of such securities or
      related transaction agreements in favor of the holders of such securities as
      a
      result of the Issuer’s failure to pay Distributions because of the Mandatory
      Trigger Provision until Distributions have been deferred for one or more
      Distribution Periods that total together at least ten years.
 
“Non-Cumulative”
means,
      with respect to any securities, that the Issuer thereof may elect not to make
      any number of periodic Distributions without any remedy arising under the terms
      of the securities or related agreements in favor of the holders, other than
      one
      or more Permitted Remedies.


        
17

          
        

        

“Optional
      Deferral Provision”
means,
      as to any security or combination of securities, a provision in the terms
      thereof or of the related transaction agreements to the effect that
      either:
 
(i) (A)
      the
      issuer of such securities may, in its sole discretion, defer in whole or in
      part
      payment of Distributions on such securities for one or more consecutive
      Distribution Periods of up to five years or, if a Market Disruption Event is
      continuing, ten years, without any remedy other than Permitted Remedies and
      (B)
      such securities are subject to an Alternative Payment Mechanism (provided
      that such
      Alternative Payment Mechanism need not apply during the first five years of
      any
      deferral period and need not include a Common Cap, Preferred Cap, Bankruptcy
      Claim Limitation Provision or Repurchase Restriction); or
 
(ii) the
      issuer
      of such securities may, in its sole discretion, defer in whole or in part
      payment of Distributions on such securities for one or more consecutive
      Distribution Periods up to at least ten years, without any remedy other than
      Permitted Remedies.
 
“Permitted
      Remedies”
means,
      with respect to any securities, one or more of the following
      remedies:
 
(i) rights
      in
      favor of the holders of such securities permitting such holders to elect one
      or
      more directors of the Issuer (including any such rights required by the listing
      requirements of any stock or securities exchange on which such securities may
      be
      listed or traded), or
 
(ii) complete
      or partial prohibitions on the issuer paying Distributions on or repurchasing
      Common Stock or other securities that rank pari
      passu
      with or
      junior as to Distributions to such securities for so long as Distributions
      on
      such securities, including unpaid Distributions, remain unpaid.
 
“Person”
means
      any individual, corporation, partnership, joint venture, trust, limited
      liability company or corporation, unincorporated organization or government
      or
      any agency or political subdivision thereof.
 
“Preferred
      Cap”
has
      the
      meaning specified in the definition of Alternative Payment
      Mechanism.
 
“Qualifying
      Preferred Stock”
means
      non-cumulative perpetual preferred stock issued by the Issuer or its
      Subsidiaries that (i) ranks pari
      passu with
      or
      junior to all other preferred stock of the Issuer, and contains no remedies
      other than Permitted Remedies and (ii) either (A) is subject to Intent-Based
      Replacement Disclosure and has a provision that prohibits the issuer from paying
      any dividends thereon upon its failure to satisfy one or more financial tests
      set forth therein or (B) is subject to a Qualifying Replacement Capital
      Covenant.
 


        
18

          
        

        
 
“Qualifying
      Replacement Capital Covenant”
means
      (i) a replacement capital covenant substantially similar to the Replacement
      Capital Covenant or (ii) a replacement capital covenant, as identified by the
      Board of Directors of the Issuer, acting in good faith and in its reasonable
      discretion and reasonably construing the definitions and other terms of the
      Replacement Capital Covenant, (a) entered into by an issuer that at the time
      it
      enters into such replacement capital covenant is a reporting company under
      the
      Exchange Act and (b) that restricts the issuer from redeeming or purchasing
      identified securities except to the extent of the applicable percentage of
      the
      net proceeds of specified Replacement Securities that have terms and provisions
      at the time of redemption, repurchase, defeasance or purchase that receive
      as
      much or more equity-like credit than the securities then being redeemed,
      repurchased or purchased, raised within the six-month period prior to the
      applicable redemption, repurchase, defeasance or purchase date.
 
“Qualifying
      Warrants”
means
      net share settled warrants to purchase Common Stock that have an exercise price
      greater than the Current Stock Market Price of the Issuer’s Common Stock as of
      their date of issuance, that do not entitle the Issuer to redeem for cash and
      the holders of such warrants are not entitled to require the Issuer to
      repurchase for cash in any circumstance.
 
“Replacement
      Capital Covenant”
means
      the replacement capital covenant dated the date hereof by the Issuer in favor
      of, and for the benefit of, each Covered Debtholder (as defined therein), a
      copy
      of which will be filed by the Issuer with the Commission as an exhibit to the
      registration statement pertaining to the offering of securities (the
“Capital
      Securities”)
      by the
      Issuer Trust to the public.
 
“Repurchase
      Restriction”
has
      the
      meaning specified in the definition of Alternative Payment
      Mechanism.
 
“Subsidiary”
of
      the
      Issuer means, at any time, any Person the shares of stock or other ownership
      interests of which having ordinary voting power to elect a majority of the
      board
      of directors or other managers of such Person are at the time owned, or the
      management or policies of which are otherwise at the time controlled, directly
      or indirectly through one or more intermediaries (including other Subsidiaries)
      or both, by the Issuer.

 
This
      Debenture may be redeemed at the option of the Issuer (i) on or after July
      15,
      2012, in whole at any time or in part from time to time, (ii) prior to July
      15,
      2012, (a) in whole (but not in part) at any time within 90 days following the
      occurrence and continuation of a Tax Event or an Investment Company Event (the
      “90-Day
      Period”)
      or (b)
      in whole or in part at any time following
      the occurrence of a Regulatory Capital Event for as long as such event is
      continuing.
      In each
      case, the Debentures shall be redeemed at a redemption price equal to the
      accrued
 


        
19

          
        

        
 
 
and
      unpaid
      interest on the Debentures so redeemed to but excluding the date fixed for
      redemption, plus 100% of the principal amount thereof (the “Redemption
      Price”).
      
 
In
      addition, subject to obtaining any then required regulatory approval, the Issuer
      may redeem Debentures at the Early Redemption Price on any date (such date,
      the
“Early
      Redemption Date”)
      before
      July 15, 2012, in whole or in part, following the occurrence of a Rating Agency
      Event for as long as such event is continuing (such right to redeem, the
“Rating
      Agency Call”).
 
“Early
      Redemption Price”
means,
      with respect to any Debentures to be redeemed in accordance with the Rating
      Agency Call, the greater of (1) 100% of the principal amount of the Debentures
      to be redeemed, and (2) the sum of the present values of the remaining scheduled
      payments of principal (discounted from July 15, 2012) and interest that would
      have been payable to and including July 15, 2012 (discounted from their
      respective Interest Payment Dates) on the Debentures to be redeemed (not
      including any portion of such payments of interest accrued to the Early
      Redemption Date) to the Early Redemption Date on a semiannual basis (assuming
      a
      360-day year consisting of twelve 30-day months) at the Treasury Rate, plus
      50
      basis points, as calculated by the Premium Calculation Agent; plus, in either
      case (1) or (2), accrued and unpaid interest on the principal amount being
      redeemed to the Early Redemption Date.
 
“Treasury
      Rate”
means,
      with respect to any date of redemption, the yield, under the heading that
      represents the average for the immediately preceding week, appearing in the
      most
      recently published statistical release designated H.15(519) or any successor
      publication that is published weekly by the Board of Governors of the Federal
      Reserve System and that establishes yields on actively traded U.S. Treasury
      securities adjusted to constant maturity under the caption Treasury Constant
      Maturities, for the maturity corresponding to the comparable treasury issue
      (if
      no maturity is within three months before or after the Remaining Term, yields
      for the two published maturities most closely corresponding to the Comparable
      Treasury Issue will be determined and the Treasury Rate will be interpolated
      or
      extrapolated from such yields on a straight line basis, rounding to the nearest
      month); or if such release (or any successor release) is not published during
      the week preceding the calculation date or does not contain such yields, the
      rate per annum equal to the semiannual equivalent yield to maturity of the
      Comparable Treasury Issue, calculated using a price for the Comparable Treasury
      Issue
      (expressed as a percentage of its principal amount) equal to the Comparable
      Treasury Price for such date of redemption. 
The
        Treasury Rate will be calculated on the third Business Day preceding the
        Early
        Redemption Date.
 

        
20

          
        

        

    
“Premium
      Calculation Agent”
means
      Xxxxxx Xxxxxxx & Co. Incorporated, or if that firm is unwilling or unable to
      select the Comparable Treasury Issue, an investment banking institution of
      national standing appointed by the Trustee after consultation with the
      Issuer.
 
“Comparable
      Treasury Issue”
means
      the U.S. Treasury security selected by the Premium Calculation Agent as having
      a
      maturity comparable to the term remaining from the Early Redemption Date to
      July
      15, 2012 (the “Remaining
      Term”)
      that
      would be utilized, at the time of selection and in accordance with customary
      financial practice, in pricing new issues of corporate debt securities of
      comparable term.
 
“Comparable
      Treasury Price”
means,
      with respect to an Early Redemption Date (i) the average of five Reference
      Treasury Dealer Quotations for such Early Redemption Date, after excluding
      the
      highest and lowest Reference Treasury Dealer Quotations, or (ii) if the Premium
      Calculation Agent obtains fewer than five such Reference Treasury Dealer
      Quotations, the average of all such quotations.
 
“Reference
      Treasury Dealer”
means
      (i) Xxxxxx Xxxxxxx & Co. Incorporated and its successors, provided, however,
      that if the foregoing shall cease to be a primary U.S. government securities
      dealer in New York City (a “Primary
      Treasury Dealer”)
      Xxxxxx
      Xxxxxxx will substitute therefor another Primary Treasury Dealer and (ii) any
      other Primary Treasury Dealers selected by the Premium Calculation Agent after
      consultation with the Issuer. 
 
“Reference
      Treasury Dealer Quotations”
means,
      with respect to each Reference Treasury Dealer and any Early Redemption Date,
      the average, as determined by the Premium Calculation Agent, of the bid and
      asked prices for the Comparable Treasury Issue (expressed in each case as a
      percentage of its principal amount) quoted in writing to the Premium Calculation
      Agent at 5:00 p.m., New York City time, on the third Business Day preceding
      such
      redemption date.
 
The
      Issuer
      will notify the Issuer Trust of the Redemption Price or Early Redemption Price
      promptly after the calculation thereof and the Issuer Trust shall have no
      responsibility for calculating the Redemption Price or Early Redemption
      Price.

 
Notice
      of
      redemption shall be mailed to the registered Holders of the Debentures
      designated for redemption at their addresses as the same shall appear on the
      Debenture register not less than 15 nor more than 30 days prior to the date
      fixed for redemption (the “Redemption
      Notice Period”),
      subject to all the conditions and provisions of the Junior Subordinated
      Indenture. In the event of redemption of this Debenture in part only, a new
      Debenture or Debentures for the 
 


        
21

          
        

        
 
amount
      of
      the unredeemed portion hereof shall be issued in the name of the holder hereof
      upon the cancellation hereof.
 
The
      Issuer’s right to redeem the Debentures prior to July 15, 2012 as a consequence
      of a Tax Event or an Investment Company Event shall be subject to the condition
      that if at the time there is available to the Issuer or the Issuer Trust
      established pursuant to the Amended and Restated Trust Agreement dated as of
      April 26, 2007, among the Issuer, as depositor, The Bank of New York, as
      Property Trustee, The Bank of New York (Delaware), as Delaware Trustee, the
      Administrators and the several Holders party thereto (the “Trust
      Agreement”),
      the
      opportunity to eliminate, within the 90-Day Period, the Tax Event or Investment
      Company Event by taking some ministerial action (“Ministerial
      Action”),
      such
      as filing a form or making an election, or pursuing some other similar
      reasonable measure that shall have no adverse effect on the Issuer, the Issuer
      Trust or the holders of the Capital Securities and shall involve no material
      cost, the Issuer shall pursue such measures in lieu of redemption; provided
      further, that the Issuer shall have no right to redeem the Debentures while
      either it or the Issuer Trust is pursuing any Ministerial Action pursuant to
      the
      Trust Agreement. For the avoidance of doubt, the 90-Day Period shall not run
      during the undertaking of any such Ministerial Action by the Issuer or the
      Issuer Trust. 
 
The
      Redemption Price or Early Redemption Price, as the case may be, shall be paid
      prior to 12:00 noon, New York time, on the date of such redemption or such
      earlier time as the Issuer determines; provided, that the Issuer shall deposit
      with the Trustee an amount sufficient to pay the Redemption Price prior to
      the
      redemption date or the Early Redemption Price prior to the Early Redemption
      Date, as the case may be.
 
The
      term
“Tax
      Event”
means
      the receipt by the Issuer of an opinion of counsel to the Issuer experienced
      in
      such matters, who shall not be an officer or employee of the Issuer or any
      of
      its affiliates, 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 or administrative
      pronouncement or action or judicial decision interpreting or applying such
      laws
      or regulations, which amendment or change is effective or which pronouncement,
      action or decision is announced on or after April 19, 2007, there is more than
      an insubstantial risk that (i) the Issuer Trust is, or will be within 90 days
      of
      the delivery of such opinion, subject to United States federal income tax with
      respect to income received or accrued on the Debentures, (ii) interest
      payable by the Issuer to the Issuer Trust on the Debentures is not, or within
      90
      days of the delivery of such opinion will not be, deductible by the Issuer,
      in
      whole or in part, for United States federal income tax purposes or (iii) the
      Issuer Trust is, or shall be within 90 days of the delivery of the opinion,
      subject to more than a de
      minimis
      amount of
      other taxes, duties or other governmental charges.


        
22

          
        

        
 
“Investment
      Company Event”
means
      the receipt by the Issuer of an opinion of counsel to the Issuer experienced
      in
      such matters, who shall not be an officer or employee of the Issuer or any
      of
      its affiliates, to the effect that, as a result of the occurrence of a change
      in
      law or regulation or a written change (including any announced prospective
      change) in interpretation or application of law or regulation by any legislative
      body, court, governmental agency or regulatory authority, there is more than
      an
      insubstantial risk that the Issuer Trust is or 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 April 19, 2007.
 
“Regulatory
      Capital Event”
means
      the determination by the Issuer, based on the opinion of counsel experienced
      in
      such matters, who may be an employee of the Issuer or any of its affiliates,
      that as a result of: (i) any amendment to, clarification of or change (including
      any announced prospective change) in applicable laws or regulations or official
      interpretations thereof or policies with respect thereto or (ii) any official
      administrative pronouncement or judicial decision interpreting or applying
      such
      laws or regulations, which amendment, clarification, change, pronouncement
      or
      decision is effective or announced on or after April 19, 2007, there is more
      than an insubstantial risk that the Capital Securities shall no longer
      constitute tier 1 (or its equivalent) capital of the Issuer or any holding
      company of which the Issuer is a subsidiary for the purposes of the capital
      adequacy guidelines or policies of the SEC or any applicable regulatory body
      or
      governmental authority. 
 
“Rating
      Agency Event” means
      the
      determination by the Issuer that a change by any nationally recognized
      statistical rating organization within the meaning of Rule 15c3-1 under the
      Exchange Act that currently publishes a rating for Xxxxxx Xxxxxxx (a
“Rating
      Agency”)
      in the
      equity credit criteria for securities such as the Capital Securities or the
      Debentures has occurred, resulting in a lower equity credit to the Issuer than
      the equity credit assigned by such Rating Agency to the Capital Securities
      or
      the Debentures on April 19, 2007.
 
Interest
      payments on this Debenture shall include interest accrued to but excluding
      the
      Interest Payment Dates or the Final Maturity Date (or any earlier redemption
      or
      repayment date), as the case may be. Interest payments for this Debenture shall
      be computed and paid on the basis of a 360-day year of twelve 30-day months
      and the actual days elapsed in a partial month in such period. Accrued interest
      that is not paid on the applicable Interest Payment Date shall bear additional
      interest on the amount thereof at the rate per annum of 6.45% (the “Coupon
      Rate”),
      compounded quarterly and computed on the basis of a 360-day year of twelve
      30-day months and the actual days elapsed in a partial month in such period.
      The
      amount of any interest payable for any full interest period shall be computed
      by
      dividing the rate per annum by four. The term “interest” as used
 


        
23

          
        

        

herein
      includes quarterly interest payments, interest on quarterly interest payments
      not paid on the applicable Interest Payment Date and Additional Sums, as
      applicable.
 
If
      any
      Interest Payment Date or the Final Maturity Date (or any redemption date) does
      not fall on a Business Day, payment of interest, premium, if any, or principal
      otherwise payable on such date need not be made on such date, but may be made
      on
      the next succeeding Business Day with the same force and effect as if made
      on
      the Interest Payment Date or on the Final Maturity Date (or any redemption
      date), and no interest on such payment shall accrue for the period from and
      after the Interest Payment Date or the Final Maturity Date (or any redemption
      date) to such next succeeding Business Day.
 
Section
      5.01 of the Junior Subordinated Indenture provides that (i) if an Event of
      Default due to the default in payment of interest on any series of debt
      securities issued under the Junior Subordinated Indenture, including the series
      of Debentures of which this Debenture forms a part, shall have occurred and
      be
      continuing, either the Trustee or the holders of not less than 25% in principal
      amount of the debt securities of each affected series (voting as a single class)
      may then declare the principal of all debt securities of all such series and
      interest accrued thereon to be due and payable immediately and (ii) if an Event
      of Default due to certain events of bankruptcy, insolvency and reorganization
      of
      the Issuer, shall have occurred and be continuing, either the Trustee or the
      holders of not less than 25% in principal amount of all debt securities issued
      under the Junior Subordinated Indenture then outstanding (treated as one class)
      may declare the principal of all such debt securities and interest accrued
      thereon to be due and payable immediately, but upon certain conditions such
      declarations may be annulled and past Defaults may be waived (except a
      continuing Default in payment of principal or interest on such debt securities)
      by the holders of a majority in principal amount of the debt securities of
      all
      affected series then outstanding. 
 
So
      long as
      no Event of Default has occurred and is continuing, the Issuer shall have the
      right at any time, and from time to time, during the term of the Debentures
      to
      defer payments of interest for a period not exceeding 40 consecutive quarters
      (the “Optional
      Deferral Period”),
      during
      which Optional Deferral Period no interest shall be due and payable;
provided,
      that no
      Optional Deferral Period may extend beyond the Final Maturity Date or the
      acceleration of the principal of the Debentures following an Event of Default.
      Interest, the payment of which has been deferred because of an Optional Deferral
      Period, shall bear interest thereon at the Coupon Rate compounded quarterly
      for
      each quarter of the Optional Deferral Period and computed on the basis of a
      360-day year of twelve 30-day months and the actual days elapsed in a partial
      month in such period (“Additional
      Interest”).
      The
      Coupon Rate payable for any full interest period shall be computed by dividing
      the rate per annum by four. At the end of
 


        
24

          
        

        

 the
      Optional Deferral Period, all interest accrued and unpaid on this Debenture,
      including any Additional Sums and Additional Interest (together, “Deferred
      Interest”)
      shall
      become due and payable, and the Issuer shall pay such Deferred Interest to
      the
      Holders of this Debenture in whose names this Debenture is registered in the
      Securities Register on the Record Date with respect to the first Interest
      Payment Date after the end of the Optional Deferral Period. Before the
      termination of any Optional Deferral Period, the Issuer may further extend
      such
      period; provided, that such period together with all such further extensions
      thereof shall not exceed 40 consecutive quarters, or extend beyond the Final
      Maturity Date or the acceleration of the principal of the Debentures following
      an Event of Default. In the event that any Debentures are called for redemption
      on a date prior to the end of an Optional Deferral Period, with respect to
      such
      Debentures, such Optional Deferral Period shall be deemed to end on such date
      or
      an earlier date determined by the Issuer, subject to the Issuer’s compliance
      with the Alternative Payment Mechanism. Upon the termination of any Optional
      Deferral Period and upon the payment of all Deferred Interest then due, the
      Issuer may commence a new Optional Deferral Period, subject to the foregoing
      requirements. No interest shall be due and payable during an Optional Deferral
      Period, except at the end thereof, but the Issuer may prepay at any time all
      or
      any portion of the interest accrued during an Optional Deferral
      Period.
 
If
      the
      Property Trustee (as defined in the Trust Agreement) is the only Holder of
      the
      Debentures at the time the Issuer selects an Optional Deferral Period, the
      Issuer shall give written notice to the Issuer Trustees (as defined in the
      Trust
      Agreement) of its selection of such Optional Deferral Period at least
      15 Business Days prior to the date the Distributions (as defined in the
      Trust Agreement) on the Trust Securities (as defined in the Trust Agreement)
      would have been payable but for the election to begin such Optional Deferral
      Period.
 
If
      the
      Property Trustee is not the only Holder, or is not itself the Holder, of the
      Debentures at the time the Issuer selects an Optional Deferral Period, the
      Issuer shall give the Holders of the Debentures and the Trustee written notice
      of its selection of such Optional Deferral Period at least 10 Business Days
      before the earlier of the next succeeding Interest Payment Date or the date
      the
      Issuer is required to give notice of the record or payment date of such interest
      payment to Holders of the Debentures.
 
In
      the
      event of any bankruptcy, insolvency or similar proceedings described in Section
      5.01(b) or (c) of the Junior Subordinated Indenture prior to the redemption
      or
      repayment of the Debentures, Holders of the Debentures shall only have a claim
      for, or right to receive, distributions with respect to Deferred Interest,
      including accrued interest on the deferred payments, to the extent such interest
      (including accrued interest on the deferred payments) relates to the earliest
      two years of the portion of the Optional Deferral Period for which interest
      has
      not been paid.


        
25

          
        

        
 
The
      Issuer
      covenants that it shall not, nor will it permit any of its Subsidiaries to
      (i)
      declare or pay any dividends or distributions on, or redeem, purchase, acquire,
      or make a liquidation payment with respect to, any of the Issuer’s capital
      stock, (ii) make any payment of principal of, or interest or premium, if any,
      on, or repay, repurchase or redeem any debt securities of the Issuer that rank
      pari
      passu
      in all
      respects with or junior in interest to the Debentures or (iii) make any
      guarantee payments on any guarantee of debt securities of any of the Issuer’s
      Subsidiaries if the guarantee ranks equal or junior to the Debentures (other
      than (A) repurchases, redemptions or other acquisitions of shares of capital
      stock of the Issuer in connection with (1) any employment contract, benefit
      plan
      or other similar arrangement with or for the benefit of any one or more
      employees, officers, directors or consultants, (2) a dividend reinvestment
      or
      stockholder stock purchase plan or (3) the issuance of capital stock of the
      Issuer (or securities convertible into or exercisable for such capital stock)
      as
      consideration in an acquisition transaction entered into prior to the applicable
      Optional Deferral Period, (B) as a result of an exchange, redemption or
      conversion of any class or series of the Issuer’s capital stock (or any capital
      stock of a Subsidiary of the Issuer) for any class or series of the Issuer’s
      capital stock or of any class or series of the Issuer’s indebtedness for any
      class or series of the Issuer’s capital stock, (C) the purchase of fractional
      interests in shares of the Issuer’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, (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, (f) payments under the Guarantee executed and delivered
      by
      the Issuer and The Bank of New York, as trustee, for the benefit of the holders
      of any Capital Securities, as amended from time to time (the “Guarantee”)
      or (g)
      any payments, purchases or acquisitions in connection with any market-making
      transactions in the Issuer’s capital stock in the ordinary course of the
      Issuer’s or any of the Issuer’s affiliate’s business), if at such time the
      Issuer has given notice of its election of an Optional Deferral Period as
      provided in the Junior Subordinated
      Indenture and has not rescinded such notice, or such Optional Deferral Period,
      or any extension thereof, is continuing. 
If
        any
        Optional Deferral Period lasts longer than one year, unless required to do
        so by
        any Applicable Government Authority and subject to the exceptions listed
        in the
        parenthetical in the preceding paragraph, the Issuer shall not repurchase
        any of
        its Common Stock for a one-year period following the payment of all Deferred
        Interest on the Debentures pursuant to the Alternative Payment
        Mechanism.


        
26

          
        

        

    
Subject
      to
      certain conditions and the exclusion described below, if the Issuer defers
      interest on the Debentures, the Issuer shall be required, not later than (i)
      the
      Business Day immediately following the first Interest Payment Date during an
      Optional Deferral Period on which it elects to pay current interest or (ii)
      if
      earlier, the Business Day following the fifth anniversary of the commencement
      of
      an Optional Deferral Period, to use its Commercially Reasonable Efforts to
      begin
      selling to persons that are not affiliates of the Issuer Qualifying Securities
      (the “Alternative
      Payment Mechanism”).
      The
      Issuer shall be required pursuant to the Alternative Payment Mechanism, with
      respect to any subsequent Interest Payment Date during an Optional Deferral
      Period until the Deferred Interest has been paid in full, to use its
      Commercially Reasonable Efforts to sell Qualifying Securities until it has
      raised an amount of net proceeds that, together with the net proceeds of any
      sales of Qualifying Securities within the 180 days preceding such Interest
      Payment Date, is sufficient to pay the Deferred Interest (including interest
      on
      the deferred payments) on such Interest Payment Date, provided that, if, due
      to
      a Market Disruption Event or otherwise, the Issuer is able to raise some, but
      not all, of the net proceeds from the sale of Qualifying Securities necessary
      to
      pay all Deferred Interest (including interest on the deferred payments) on
      any
      Interest Payment Date, the Issuer shall apply any such available net proceeds
      on
      such Interest Payment Date to pay accrued and unpaid installments of interest
      in
      chronological order. The Issuer shall not pay Deferred Interest (including
      interest on the deferred payments) on the Debentures from any source other
      than
      the net proceeds from the sale of Qualifying Securities, unless otherwise
      required at the time by any applicable regulatory authority. In addition, such
      applicable regulatory authority may prevent the Issuer from selling Qualifying
      Securities or may prevent the Issuer from using the proceeds of any sales of
      Qualifying Securities to pay any Deferred Interest. 
 
“Qualifying
      Securities”
means
      (i) “Qualifying
      Warrants,”
which
      are net share settled warrants to purchase the Issuer’s Common Stock that have
      an exercise price greater than the Current Stock Market Price of the Issuer’s
      Common Stock as of their date of issuance, that the Issuer is not entitled
      to
      redeem for cash and that the holders of such warrants are not entitled to
      require the Issuer to repurchase for cash in any circumstance and (ii)
Qualifying
      Preferred Stock.
 
The
      “Current
      Stock Market Price”
of
      the
      Issuer’s Common Stock on any date shall be the closing sale price per share (or
      if no closing sale price is reported, the average of the bid and ask prices
      or,
      if more than one in either case, the average of the average bid and the average
      ask prices) on that date as reported in composite transactions by the New York
      Stock Exchange or, if the Issuer’s Common Stock is not then listed on the New
      York Stock Exchange, as reported by the principal U.S. securities exchange
      on
      which the Issuer’s Common Stock is traded or quoted. If the Issuer’s Common
      Stock is not either listed or quoted on any U.S. securities exchange on the
      relevant date, the “Current Stock Market 


        
27

          
        

        
 
Price”
      shall be the last quoted bid price for the Issuer’s Common Stock in the
      over-the-counter market on the relevant date as reported by the National
      Quotation Bureau or similar organization. If the Issuer’s Common Stock is not so
      quoted, the “Current Stock Market Price” shall be the average of the mid-point
      of the last bid and ask prices for the Issuer’s Common Stock on the relevant
      date from each of at least three nationally recognized independent investment
      banking firms selected by the Issuer for this purpose.
 
The
      Issuer
      shall not be required to issue Qualifying Warrants prior to the fifth
      anniversary of the commencement of any Optional Deferral Period pursuant to
      the
      Alternative Payment Mechanism to the extent that the number of shares of the
      Issuer’s Common Stock underlying any issuance of Qualifying Warrants applied to
      pay such interest, together with the shares underlying all prior issuances
      of
      Qualifying Warrants during such Optional Deferral Period so applied, would
      exceed 2% of the total number of issued and outstanding shares of the Issuer’s
      Common Stock as of the date of the Issuer’s then most recent publicly available
      consolidated financial statements (the “Warrant
      Issuance Cap”).
      In
      addition, the Issuer may not issue Perpetual Non-Cumulative Preferred Stock
      if
      the net proceeds of any issuance of Perpetual Non-Cumulative Preferred Stock
      applied to pay interest, together with the net proceeds of all prior issuances
      of Perpetual Non-Cumulative Preferred Stock so applied, would exceed 25% of
      the
      aggregate liquidation amount of the issuance of the Capital Securities (the
      “Preferred
      Stock Issuance Cap”).
      
 
Once
      the
      Issuer reaches the Warrant Issuance Cap for any Optional Deferral Period, the
      Issuer shall not be required to issue more Qualifying Warrants prior to the
      fifth anniversary of the commencement of such Optional Deferral Period even
      if
      the number of underlying shares referred to above subsequently increases because
      of a subsequent increase in the number of outstanding shares of the Issuer’s
      Common Stock. The Warrant Issuance Cap shall cease to apply following the fifth
      anniversary of the commencement of any Optional Deferral Period, at which point
      the Issuer shall have the right to pay any Deferred Interest, regardless of
      the
      time at which it was deferred, using the Alternative Payment Mechanism, subject
      to the Preferred Stock Issuance Cap, the Share Cap and any Market Disruption
      Event. For the avoidance of doubt, if the Warrant Issuance Cap has been reached
      during an Optional Deferral Period and the
      Issuer
      subsequently pays all deferred payments (including accrued interest thereon),
      the Warrant Issuance Cap shall cease to apply, and shall only apply again once
      the Issuer starts a new Optional Deferral Period. The Preferred Stock Issuance
      Cap shall apply so long as the Debentures remain outstanding. 
The
        Issuer
        shall not be required to issue Qualifying Warrants pursuant to the Alternative
        Payment Mechanism to the extent that the total number of shares of the Issuer’s
        Common Stock underlying such Qualifying Warrants, together with all prior
        issuances of Qualifying Warrants, exceeds 40 million shares (the


        
28

          
        

        

“Share
      Cap”).
      The
      Issuer shall use its commercially reasonable efforts to increase the Share
      Cap
      from time to time to a number of shares that would allow the Issuer to satisfy
      its obligations with respect to the Alternative Payment Mechanism. The Share
      Cap
      shall be adjusted proportionately for any change in the number of outstanding
      shares of the Issuer’s Common Stock by reason of any stock split, reverse stock
      split, stock dividend, reclassification, recapitalization, split-up,
      combination, exchange of shares or other similar transaction, effective upon
      the
      effective date of any such transaction.
 
If,
      due to
      a Market Disruption Event, the Warrant Issuance Cap, Preferred Stock Issuance
      Cap, Share Cap or otherwise, the Issuer was able to raise some, but not all,
      eligible proceeds necessary to pay all Deferred Interest (including compounded
      interest thereon) on any Interest Payment Date, the Issuer shall apply any
      available eligible proceeds to pay accrued and unpaid installments of interest
      on the applicable Interest Payment Date in chronological order. If the Issuer
      has outstanding securities in addition to, and that rank pari
      passu
      with, the
      Debentures under which the Issuer is obligated to sell Qualifying Securities
      and
      apply the net proceeds to the payment of deferred interest or distributions,
      then on any date and for any period the amount of net proceeds received by
      the
      Issuer from those sales and available for payment of the Deferred Interest
      and
      distributions shall be applied to the Debentures and such other securities
      on a
      pro rata basis in proportion to the total amounts that are due on the Debentures
      and such securities, or on such other basis as any regulator applicable to
      the
      Issuer may approve.
 
The
      Issuer
      shall not be required to sell Qualifying Securities in accordance with the
      Alternative Payment Mechanism during any quarterly period preceding any Interest
      Payment Date to the extent it provides written certification to the Trustee
      (which the Trustee shall promptly forward upon receipt to each holder of record
      of Capital Securities) no more than 30 and no less than 15 days in advance
      of
      such Interest Payment Date certifying that (i) a Market Disruption Event was
      existing after the immediately preceding Interest Payment Date and (ii) either
      (a) the Market Disruption Event continued for the entire period from the
      Business Day immediately following the preceding Interest Payment Date to the
      Business Day immediately preceding the date on which that certification is
      provided or (b) the Market Disruption Event continued for only part of such
      period, but the Issuer was
      unable
      after Commercially Reasonable Efforts to raise sufficient eligible proceeds
      during the rest of such period to pay all accrued and unpaid
      interest. 
If
        the
        Issuer is involved in a business combination where immediately after its
        consummation more than 50% of the surviving entity’s voting stock is owned by
        the shareholders of the other party to the business combination, then the
        Alternative Payment Mechanism shall not apply to any deferral period that
        is
        terminated on the interest payment date immediately succeeding the date of
        consummation of the business combination.


        
29

          
        

        

    
A
      “Market
      Disruption Event”
means,
      for purposes of sales of Qualifying Securities pursuant to the Alternative
      Payment Mechanism or sales of Replacement Securities pursuant to the Replacement
      Capital Obligation, as applicable (collectively, the “Permitted
      Securities”),
      the
      occurrence or existence of any of the following events or sets of circumstances:
      
 

      

          
             
            (i)

            the
                Issuer would be required to obtain the consent or approval of its
                shareholders or a regulatory body (including, without limitation,
                any
                securities exchange) or governmental authority to issue or sell the
                Permitted Securities and such consent or approval has not yet been
                obtained notwithstanding the Issuer’s commercially reasonable efforts to
                obtain such consent or approval or an Applicable Government Authority
                instructs the Issuer not to sell or offer for sale the permitted
                securities at such time;

          

    
 

      

          
             
            (ii)

            trading
                in securities generally (or shares of the Issuer’s securities
                specifically) on the New York Stock Exchange or any other national
                securities exchange or over-the-counter market on which the Issuer’s
                Common Stock and/or preferred stock is then listed or traded shall
                have
                been suspended or its settlement generally shall have been materially
                disrupted or minimum prices shall have been established on any such
                market
                or exchange by the Commission, by the relevant exchange or any other
                regulatory body or governmental authority having jurisdiction, and
                the
                establishment of such minimum prices materially disrupts or otherwise
                has
                a material adverse effect on trading in, or the issuance and sale
                of, the
                Issuer’s Common Stock and/or preferred
                stock;

          

    
 

      

          
             
            (iii)

            a
                banking moratorium shall have been declared by the federal or state
                authorities of the United States and

          

    
 

          

              
                 
                 

                such moratorium materially disrupts or
                      otherwise has a
                      material adverse effect on trading in, or the issuance and
                      sale of, the
                      Permitted Securities;

              

        
 

        

            
               
              (iv)

              a
                  material disruption shall have occurred in commercial banking or
                  securities settlement or clearance services in the United States
                  and such
                  disruption materially disrupts or otherwise has a material adverse
                  effect
                  on trading in, or the issuance and sale of, the Permitted
                  Securities;

            

      
 

        

            
               
              (v)

              the
                  United States shall have become engaged in hostilities, there shall
                  have
                  been an escalation in hostilities involving the United States,
                  there shall
                  have been a declaration of a national emergency or war by the United
                  States or there shall have occurred any other national or international
                  calamity or crisis and such event 

            

      


            
30

              
            

            
 

      

          
             
             

            materially
                disrupts or otherwise has a material adverse effect on trading in,
                or the
                issuance and sale of, the Permitted
                Securities;

          

    
 

      

          
             
            (vi)

            there
                shall have occurred such a material adverse change in general domestic
                or
                international economic, political or financial conditions, including
                without limitation as a result of terrorist activities, and such
                change
                materially disrupts or otherwise has a material adverse effect on
                trading
                in, or the issuance and sale of, the Permitted
                Securities;

          

    
 

      

          
             
            (vii)

            an
                event occurs and is continuing as a result of which the offering
                document
                for such offer and sale of the Permitted Securities would, in the
                Issuer’s
                reasonable judgment contain an untrue statement of a material fact
                or omit
                to state a material fact required to be stated therein or necessary
                to
                make the statements therein not misleading and either (A) the disclosure
                of that event at such time, in the Issuer’s reasonable judgment, is not
                otherwise required by law and would have a material adverse effect
                on the
                business of the Issuer or (B) the disclosure relates to a previously
                undisclosed proposed or pending material business transaction, the
                disclosure of which would impede the ability of the Issuer to consummate
                such transaction, provided
                that no single suspension period contemplated by this paragraph shall
                exceed 90 consecutive days and multiple suspension periods contemplated
                by
                this paragraph shall not exceed an aggregate of 180 days in any 360-day
                period; or

          

    
 

      

          
             
            (viii)

            the
                Issuer reasonably believes, for reasons other than those referred
                to in
                the paragraph
                directly
                above, that the offering document for such offer and sale of the
                Permitted
                Securities would not be in compliance with a rule or regulation of
                the SEC
                and the Issuer is unable to comply with such rule or regulation or
                such
                compliance is unduly burdensome, provided that no single suspension
                period
                contemplated by this paragraph shall exceed 90 consecutive days and
                multiple suspension periods contemplated by this paragraph shall
                not
                exceed an aggregate of 180 days in any 360-day
                period.

          

    
 
If
        an
        Event of Default or a Default attributable to (i) the failure of the Issuer
        to
        pay any amounts payable in respect of the Debentures on the date such amounts
        are otherwise payable or (ii) a breach of the Alternative Payment Mechanism
        or
        the Replacement Capital Obligation has occurred and is continuing, a registered
        holder of Capital Securities may institute a legal proceeding directly against
        the Issuer for enforcement of payment to such registered holder of an amount
        equal to the amount payable in respect of Debentures having a principal amount
        equal to the aggregate Liquidation Amount 


        
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(as
      defined in the Trust Agreement) of the Capital Securities held by such
      registered holder (a “Direct
      Action”).
      The
      Issuer shall have the right to set off any payment made to such registered
      holder of Capital Securities by the Issuer in connection with a Direct
      Action.
 
As
      long as
      any Debentures are held by the Issuer Trust, the Issuer covenants (i) to
      continue to hold, directly or indirectly, 100% of the Common Securities (as
      defined in the Trust Agreement), provided that certain successors that are
      permitted pursuant to the Junior Subordinated Indenture may succeed to the
      Issuer’s ownership of the Common Securities, (ii) as holder of the Common
      Securities, not to voluntarily dissolve, windup or liquidate the Issuer Trust,
      other than (a) in connection with a distribution of Debentures to the holders
      of
      the Capital Securities in liquidation of the Issuer Trust or (b) in connection
      with certain mergers, consolidations or amalgamations permitted by the Trust
      Agreement and (iii) to use its reasonable efforts, consistent with the terms
      and
      provisions of the Trust Agreement, to cause the Issuer Trust to continue not
      to
      be taxable as a corporation for United States federal income tax
      purposes.
 
If,
      and
      for so long as, (i) the Issuer Trust is the holder of all the Debentures and
      (ii) the Issuer Trust is required to pay any additional taxes, duties or other
      governmental charges as a result of a Tax Event, the Issuer shall pay as
      additional sums on the Debentures (“Additional
      Sums”)
      such
      amounts as may be required so that the Distributions (as defined in the Trust
      Agreement) paid by the Issuer Trust shall not be reduced as a result of any
      such
      additional taxes, duties or other governmental charges.
 
The
      Issuer, as borrower, agrees to pay all debts and other obligations (other than
      with respect to the Capital Securities issued by the Issuer Trust) and all
      costs
      and expenses of the Issuer Trust (including costs and expenses relating to
      the
      organization of the Issuer Trust, the fees and expenses of the Issuer Trustees
      (as defined in the Trust Agreement) for the Issuer Trust and the costs and
      expenses relating to the operation of the Issuer Trust) and to pay any and
      all
      taxes and all costs and expenses with respect thereto (other than United States
      withholding taxes) to which the Issuer Trust might become subject. The foregoing
      obligations of the Issuer under the Debentures owned by the Issuer Trust are
      for
      the benefit of, and shall be enforceable by, any Person to whom any such debts,
      obligations, costs, expenses and taxes are owed (a “Creditor”)
      whether
      or not such Creditor has received notice thereof. Any such Creditor may enforce
      such obligations of the Issuer directly against the Issuer, and the Issuer
      irrevocably waives any right or remedy to require that any such Creditor take
      any action against the Issuer Trust or any other Person before proceeding
      against the Issuer. The Issuer agrees to execute any additional agreements
      as
      may be necessary or desirable to give full effect to the foregoing.


        
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The
      provisions of Section 3.04 and Section 10.01 of the Junior Subordinated
      Indenture relating to discharge, defeasance and covenant defeasance are not
      applicable to this Debenture.
 
This
      Debenture and all other obligations of the Issuer hereunder shall constitute
      part of the junior subordinated debt of the Issuer, shall be issued under the
      Junior Subordinated Indenture and shall be subordinate and junior in right
      of
      payment, to the extent and in the manner set forth in the Junior Subordinated
      Indenture, to all Senior Indebtedness (as defined in the Junior Subordinated
      Indenture) of the Issuer. For the avoidance of doubt, this Debenture will rank
      pari passu with the claims of the Issuer's trade
      creditors.
 
This
      Debenture, and any Debenture or Debentures issued upon transfer or exchange
      hereof, is issuable only in fully registered form, without coupons, and is
      issuable only in denominations of US$25 and any integral multiple of US$25
      in
      excess thereof, unless otherwise indicated on the face thereof.
 
The
      Bank
      of New York has been appointed registrar for the Debentures (the “Registrar,”
which
      term includes any successor registrar appointed by the Issuer), and the
      Registrar shall maintain at its office in The City of New York a register for
      the registration and transfer of Debentures. This Debenture may be transferred
      at the aforesaid office of the Registrar by surrendering this Debenture for
      cancellation, accompanied by a written instrument of transfer in form
      satisfactory to the Registrar and duly executed by the registered holder hereof
      in person or by the holder’s attorney duly authorized in writing, and thereupon
      the Registrar shall issue in the name of the transferee or transferees, in
      exchange herefor, a new Debenture or Debentures having identical terms and
      provisions and having a like aggregate principal amount in authorized
      denominations, subject to the terms and conditions set forth herein;
provided,
      however,
      that the
      Registrar shall not be required (i) to register the transfer of or exchange
      any
      Debenture that has been called for redemption in whole or in part, except the
      unredeemed portion of Debentures being redeemed in part or (ii) to register
      the
      transfer of or exchange Debentures to the extent and during the period so
      provided in the Junior Subordinated Indenture with respect to the redemption
      of
      Debentures. Debentures are exchangeable at said office for other Debentures
      of
      other authorized denominations of equal aggregate principal amount having
      identical terms and provisions. All such exchanges and transfers of Debentures
      shall be free of charge, but the Issuer may require payment of a sum sufficient
      to cover any tax or other governmental charge in connection therewith. All
      Debentures surrendered for exchange shall be accompanied by a written instrument
      of transfer in form satisfactory to the Registrar and executed by the registered
      holder in person or by the holder’s attorney duly authorized in writing. The
      date of registration of any Debenture delivered upon any exchange or transfer
      of
      Debentures shall be such that no gain or loss of interest results from such
      exchange or transfer. 
 


        
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In
      case
      this Debenture shall at any time become mutilated, defaced or be destroyed,
      lost
      or stolen and this Debenture or evidence of the loss, theft or destruction
      thereof (together with the indemnity hereinafter referred to and such other
      documents or proof as may be required in the premises) shall be delivered to
      the
      Registrar, a new Debenture of like tenor shall be issued by the Issuer in
      exchange for this Debenture, but, if this Debenture has been destroyed, lost
      or
      stolen, only upon receipt of evidence satisfactory to the Registrar and the
      Issuer that such Debenture was destroyed or lost or stolen and, if required,
      upon receipt also of indemnity satisfactory to each of them. All expenses and
      reasonable charges associated with procuring such indemnity and with the
      preparation, authentication and delivery of a new Debenture shall be borne
      by
      the owner of the Debenture mutilated, defaced, destroyed, lost or
      stolen.
 
The
      Junior
      Subordinated Indenture permits the Issuer and the Trustee, with the consent
      of
      the holders of not less than a majority in aggregate principal amount of the
      debt securities of all series issued under the Junior Subordinated Indenture
      then outstanding and affected (voting as one class), to execute supplemental
      indentures adding any provisions to or changing in any manner the rights of
      the
      holders of each series so affected; provided
      that the
      Issuer and the Trustee may not, without the consent of the holder of each
      outstanding debt security affected thereby and the prior written consent of
      each
      registered holder of Capital Securities, to the extent that the Debentures
      are
      held by any Xxxxxx Xxxxxxx Capital Trust (including Xxxxxx Xxxxxxx Capital
      Trust
      VIII), (i) extend the final maturity of any such debt security, or reduce the
      principal amount thereof, or reduce the rate or extend the time of payment
      of
      interest thereon, except as otherwise provided herein or in the Junior
      Subordinated Indenture, or reduce any amount payable on redemption or repayment
      thereof, or change the currency of payment thereof, or impair or affect the
      rights of any holder to institute suit for the payment thereof without the
      consent of the holder of each debt security so affected or (ii) reduce the
      aforesaid percentage in principal amount of debt securities the consent of
      the
      holders of which is required for any such supplemental indenture; provided,
      however, that neither this Debenture nor the Junior Subordinated Indenture
      may
      be amended to alter the subordination provisions hereof or thereof without
      the
      written consent of each holder of Senior Indebtedness then outstanding that
      would be adversely affected thereby. In addition, so long as any of the Capital
      Securities remain outstanding, no such modification may be made that adversely
      affects the holders of such Capital Securities in any material respect, and
      no
      termination of the Junior Subordinated Indenture may occur, and no waiver of
      any
      Event of Default or Default may be effective, without the prior consent of
      the
      holders of at least a majority of the aggregate Liquidation Amount of the
      outstanding Capital Securities unless and until the principal of (and premium,
      if any, on) the Debentures and all accrued and unpaid interest thereon have
      been
      paid in full and certain other conditions are satisfied. So long as the Issuer
      acts in accordance with the terms of the Debentures, the Issuer may defer
      interest payable on the Debentures in  


        
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accordance
      with the terms hereof without the consent of the Issuer Trust or the holders
      of
      Capital Securities. However, the Issuer may not amend this Debenture or the
      Junior Subordinated Indenture to remove the rights of registered holders of
      Capital Securities to institute a Direct Action without the prior written
      consent of all the registered holders of Capital Securities of the
      Trust.
 
So
      long as
      this Debenture shall be outstanding, the Issuer shall cause to be maintained
      an
      office or agency for the payment of the principal of and premium, if any, and
      interest on this Debenture as herein provided in the Borough of Manhattan,
      The
      City of New York, and an office or agency in said Borough of Manhattan for
      the
      registration, transfer and exchange as aforesaid of the Debentures. Under
      Section 3.02 of the Junior Subordinated Indenture, the Issuer has initially
      appointed the Corporate Trust Office of the Trustee in the Borough of Manhattan,
      The City of New York, as its agency for the foregoing purposes. The Issuer
      may
      subsequently designate other agencies for the payment of said principal, premium
      and interest at such place or places (subject to applicable laws and
      regulations) as the Issuer may decide. So long as there shall be such an agency,
      the Issuer shall keep the Trustee advised of the names and locations of such
      agencies, if any are so designated other than that of the Trustee.
 
With
      respect to moneys paid by the Issuer and held by the Trustee or any Paying
      Agent
      for payment of the principal of or interest or premium, if any, on any
      Debentures that remain unclaimed at the end of two years after such principal,
      interest or premium shall have become due and payable (whether at maturity
      or
      upon call for redemption or otherwise), (i) the Trustee or such Paying Agent
      shall notify the holders of such Debentures that such moneys shall be repaid
      to
      the Issuer and any Person claiming such moneys shall thereafter look only to
      the
      Issuer for payment thereof and (ii) such moneys shall be so repaid to the
      Issuer. Upon such repayment all liability of the Trustee or such Paying Agent
      with respect to such moneys shall thereupon cease, without, however, limiting
      in
      any way any obligation that the Issuer may have to pay the principal of or
      interest or premium, if any, on this Debenture as the same shall become
      due.
 
No
      provision
      of this Debenture or of the Junior Subordinated Indenture shall alter or impair
      the obligation of the Issuer, which is absolute and unconditional, to pay the
      principal of, premium, if any, and interest on this Debenture
      at the time, place, and rate, and in the coin or currency, herein prescribed
      unless otherwise agreed between the Issuer and the registered holder of this
      Debenture.
 
Prior
        to
        due presentment of this Debenture for registration of transfer, the Issuer,
        the
        Trustee and any agent of the Issuer or the Trustee may treat the holder in
        whose
        name this Debenture is registered as the owner hereof for all purposes, whether
        or not this Debenture be overdue, and none of the Issuer, the Trustee or
        any
        such agent shall be affected by notice to the contrary.


        
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No
      recourse shall be had for the payment of the principal of, premium, if any,
      or
      the interest on this Debenture, for any claim based hereon, or otherwise in
      respect hereof, or based on or in respect of the Junior Subordinated Indenture
      or any indenture supplemental thereto, against any incorporator, shareholder,
      officer or director, as such, past, present or future, of the Issuer or of
      any
      successor corporation, either directly or through the Issuer or any 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 issue
      hereof, expressly waived and released.
 
This
      Debenture shall for all purposes be governed by, and construed in accordance
      with, the laws of the State of New York.
 


        
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ABBREVIATIONS
 
The
      following abbreviations, when used in the inscription on the face of this
      instrument, shall be construed as though they were written out in full according
      to applicable laws or regulations:
TEN
      COM - as
      tenants
      in common
TEN
      ENT - as
      tenants
      by the entireties
JT
      TEN - as
      joint
      tenants with right of survivorship and not as tenants in common


UNIF
      GIFT
      MIN ACT - Custodian
(Minor) (Cust)

Under
      Uniform Gifts to Minors Act 
(State)

Additional
      abbreviations may also be used though not in the above list.


        
37

          
        

        

FOR
      VALUE
      RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
      unto
 
                                                                                       
[PLEASE
      INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING
      NUMBER OF ASSIGNEE]
 

          
        
 

          
        
 

        
      
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
      ASSIGNEE]
 
the
      within
      Debenture and all rights thereunder, hereby irrevocably constituting and
      appointing such person attorney to transfer such Debenture on the books of
      the
      Issuer, with full power of substitution in the premises.
 
Dated:
                                                  
 
NOTICE:  
       The
      signature to this assignment must correspond with the name as written upon
      the
      face of the within Debenture in every particular without alteration or
      enlargement or any change whatsoever.

Signature
      Guaranty:                                              
 
Signatures
      must be guaranteed by an “eligible guarantor institution” meeting the
      requirements of the Registrar, which requirements include membership or
      participation in the Security Transfer Agent Medallion Program (“STAMP”) or such
      other “signature guarantee program” as may be determined by the Registrar in
      addition to, or in substitution for, STAMP, all in accordance with the Exchange
      Act.
 
38
 
Document Metadata

Table of Contents

Contract

Document Metadata

XXXXXX XXXXXXX
By:	/s/ Xxx Xxxxxxx
	Name: Xxx Xxxxxxx
	Title: Assistant Treasurer
	(i)	securities issued by the Issuer or any of its Subsidiaries that (A) rank pari passu with or junior to the Debentures upon the liquidation, dissolution or winding up of the Issuer, (B) have no maturity or a maturity of at least 60 years and (C) (1) are Non-Cumulative and are subject to a Qualifying Replacement Capital Covenant or (2) have a Mandatory Trigger Provision and an Optional Deferral Provision and are subject to Intent-Based Replacement Disclosure;

	(ii)	securities issued by the Issuer or any of its Subsidiaries that (A) rank pari passu with or junior to the Debentures upon the