**Exhibit10.7**

 

LANDMARK BANCORP, INC.

 

as Issuer

 

 

INDENTURE

 

Dated as ofDecember 19, 2003

 

 

WILMINGTON TRUST COMPANY

 

as Trustee

 

 

FLOATING RATE JUNIORSUBORDINATED DEBT SECURITIES DUE 2034

 

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**TABLE OF CONTENTS**

 
| ARTICLE I    | DEFINITIONS                                                                           |   |
|--------------|---------------------------------------------------------------------------------------|--------|
|         |                                                                                  |
| Section 1.01 | Definitions.                                                                          |   |
|         |                                                                                  |
| ARTICLE II   | DEBT SECURITIES                                                                       |   |
|         |                                                                                  |
| Section 2.01 | Authentication  and Dating.                                                           |   |
| Section 2.02 | Form of  Trustee’s Certificate of Authentication.                                |   |
| Section 2.03 | Form and  Denomination of Debt Securities.                                            |   |
| Section 2.04 | Execution  of Debt Securities.                                                        |   |
| Section 2.05 | Exchange  and Registration of Transfer of Debt Securities.                            |   |
| Section 2.06 | Mutilated,  Destroyed, Lost or Stolen Debt Securities.                                |   |
| Section 2.07 | Temporary  Debt Securities.                                                           |   |
| Section 2.08 | Payment of  Interest.                                                                 |   |
| Section 2.09 | Cancellation  of Debt Securities Paid, etc.                                           |   |
| Section 2.10 | Computation  of Interest.                                                             |   |
| Section 2.11 | Extension of  Interest Payment Period.                                                |   |
| Section 2.12 | CUSIP Numbers.                                                                        |   |
|         |                                                                                  |
| ARTICLE  III | PARTICULAR  COVENANTS OF THE COMPANY                                                  |   |
|         |                                                                                  |
| Section 3.01 | Payment  of Principal, Premium and Interest; Agreed Treatment of the Debt Securities. |   |
| Section 3.02 | Offices for  Notices and Payments, etc.                                               |   |
| Section 3.03 | Appointments  to Fill Vacancies in Trustee’s Office.                             |   |
| Section 3.04 | Provision  as to Paying Agent.                                                        |   |
| Section 3.05 | Certificate  to Trustee.                                                              |   |
| Section 3.06 | Additional  Amounts.                                                                  |   |
| Section 3.07 | Compliance  with Consolidation Provisions.                                            |   |
| Section 3.08 | Limitation  on Dividends.                                                             |   |
| Section 3.09 | Covenants  as to the Trust.                                                           |   |
|         |                                                                                  |
| ARTICLE IV   | LISTS                                                                                 |   |
|         |                                                                                  |
| Section 4.01 | Securityholders’  Lists.                                                         |   |
| Section 4.02 | Preservation and  Disclosure of Lists.                                                |   |
| Section 4.03 | Financial  and Other Information.                                                     |   |
|         |                                                                                  |
| ARTICLE V    | REMEDIES OF  THE TRUSTEE AND SECURITYHOLDERS                                          |   |
|         |                                                                                  |
| Section 5.01 | Events of  Default.                                                                   |   |
| Section 5.02 | Payment  of Debt Securities on Default; Suit Therefor.                                |   |
| Section 5.03 | Application  of Moneys Collected by Trustee.                                          |   |
| Section 5.04 | Proceedings  by Securityholders.                                                      |   |
|              |                                                                                       |        |  |

 

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| Section 5.05  | Proceedings  by Trustee.                                                                              |   |
|---------------|-------------------------------------------------------------------------------------------------------|--------|
| Section 5.06  | Remedies  Cumulative and Continuing.                                                                  |   |
| Section 5.07  | Direction  of Proceedings and Waiver of Defaults by Majority of Securityholders.                      |   |
| Section 5.08  | Notice of  Defaults.                                                                                  |   |
| Section 5.09  | Undertaking  to Pay Costs.                                                                            |   |
|          |                                                                                                  |
| ARTICLE VI    | CONCERNING  THE TRUSTEE                                                                               |   |
|          |                                                                                                  |
| Section 6.01  | Duties and  Responsibilities of Trustee.                                                              |   |
| Section 6.02  | Reliance on  Documents, Opinions, etc.                                                                |   |
| Section 6.03  | No Responsibility  for Recitals, etc.                                                                 |   |
| Section 6.04  | Trustee,  Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own  Debt Securities. |   |
| Section 6.05  | Moneys  to be Held in Trust.                                                                          |   |
| Section 6.06  | Compensation and  Expenses of Trustee.                                                                |   |
| Section 6.07  | Officers’  Certificate as Evidence.                                                              |   |
| Section 6.08  | Eligibility  of Trustee.                                                                              |   |
| Section 6.09  | Resignation  or Removal of Trustee.                                                                   |   |
| Section 6.10  | Acceptance  by Successor Trustee.                                                                     |   |
| Section 6.11  | Succession by Merger,  etc.                                                                           |   |
| Section 6.12  | Authenticating Agents.                                                                                |   |
|          |                                                                                                  |
| ARTICLE VII   | CONCERNING THE  SECURITYHOLDERS                                                                       |   |
|          |                                                                                                  |
| Section 7.01  | Action by  Securityholders.                                                                           |   |
| Section 7.02  | Proof of Execution by  Securityholders.                                                               |   |
| Section 7.03  | Who Are Deemed  Absolute Owners.                                                                      |   |
| Section 7.04  | Debt Securities Owned  by Company Deemed Not Outstanding.                                             |   |
| Section 7.05  | Revocation of  Consents; Future Holders Bound.                                                        |   |
|          |                                                                                                  |
| ARTICLE  VIII | SECURITYHOLDERS’  MEETINGS                                                                       |   |
|          |                                                                                                  |
| Section 8.01  | Purposes of Meetings.                                                                                 |   |
| Section 8.02  | Call of Meetings by  Trustee.                                                                         |   |
| Section 8.03  | Call of Meetings by  Company or Securityholders.                                                      |   |
| Section 8.04  | Qualifications for  Voting.                                                                           |   |
| Section 8.05  | Regulations.                                                                                          |   |
| Section 8.06  | Voting.                                                                                               |   |
| Section 8.07  | Quorum; Actions.                                                                                      |   |
|          |                                                                                                  |
| ARTICLE IX    | SUPPLEMENTAL INDENTURES                                                                               |   |
|          |                                                                                                  |
| Section 9.01  | Supplemental  Indentures without Consent of Securityholders.                                          |   |
| Section 9.02  | Supplemental  Indentures with Consent of Securityholders.                                             |   |
|               |                                                                                                       |        |  |

 

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| Section 9.03  | Effect of Supplemental  Indentures.                                           |   |
|---------------|-------------------------------------------------------------------------------|--------|
| Section 9.04  | Notation on Debt  Securities.                                                 |   |
| Section 9.05  | Evidence of Compliance  of Supplemental Indenture to be Furnished to Trustee. |   |
|          |                                                                          |
| ARTICLE X     | REDEMPTION OF SECURITIES                                                      |   |
|          |                                                                          |
| Section 10.01 | Optional Redemption.                                                          |   |
| Section 10.02 | Special Event  Redemption.                                                    |   |
| Section 10.03 | Notice of  Redemption; Selection of Debt Securities.                          |   |
| Section 10.04 | Payment of Debt  Securities Called for Redemption.                            |   |
|          |                                                                          |
| ARTICLE XI    | CONSOLIDATION, MERGER,  SALE, CONVEYANCE AND LEASE                            |   |
|          |                                                                          |
| Section 11.01 | Company May  Consolidate, etc., on Certain Terms.                             |   |
| Section 11.02 | Successor Entity to  be Substituted.                                          |   |
| Section 11.03 | Opinion of Counsel  to be Given to Trustee.                                   |   |
|          |                                                                          |
| ARTICLE XII   | SATISFACTION AND  DISCHARGE OF INDENTURE                                      |   |
|          |                                                                          |
| Section 12.01 | Discharge of  Indenture.                                                      |   |
| Section 12.02 | Deposited Moneys to  be Held in Trust by Trustee.                             |   |
| Section 12.03 | Paying Agent to  Repay Moneys Held.                                           |   |
| Section 12.04 | Return of Unclaimed  Moneys.                                                  |   |
|          |                                                                          |
| ARTICLE  XIII | IMMUNITY OF  INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS              |   |
|          |                                                                          |
| Section 13.01 | Indenture and Debt  Securities Solely Corporate Obligations.                  |   |
|          |                                                                          |
| ARTICLE XIV   | MISCELLANEOUS PROVISIONS                                                      |   |
|          |                                                                          |
| Section 14.01 | Successors.                                                                   |   |
| Section 14.02 | Official Acts by  Successor Entity.                                           |   |
| Section 14.03 | Surrender of Company  Powers.                                                 |   |
| Section 14.04 | Addresses for  Notices, etc.                                                  |   |
| Section 14.05 | Governing Law.                                                                |   |
| Section 14.06 | Evidence of  Compliance with Conditions Precedent.                            |   |
| Section 14.07 | Business Day  Convention.                                                     |   |
| Section 14.08 | Table of Contents,  Headings, etc.                                            |   |
| Section 14.09 | Execution in  Counterparts.                                                   |   |
| Section 14.10 | Separability.                                                                 |   |
| Section 14.11 | Assignment.                                                                   |   |
| Section 14.12 | Acknowledgment of  Rights.                                                    |   |
|          |                                                                          |
| ARTICLE XV    | SUBORDINATION OF DEBT  SECURITIES                                             |   |
|               |                                                                               |        |  |

 

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| Section 15.01                               | Agreement to  Subordinate.                              |   |
|---------------------------------------------|---------------------------------------------------------|--------|
| Section 15.02                               | Default on Senior  Indebtedness.                        |   |
| Section 15.03                               | Liquidation;  Dissolution; Bankruptcy.                  |   |
| Section 15.04                               | Subrogation.                                            |   |
| Section 15.05                               | Trustee to  Effectuate Subordination.                   |   |
| Section 15.06                               | Notice by the  Company.                                 |   |
| Section 15.07                               | Rights of the  Trustee; Holders of Senior Indebtedness. |   |
| Section 15.08                               | Subordination May  Not Be Impaired.                     |   |
|                                        |                                                    |   |
|                                        |                                                    |   |
| EXHIBITS                                    |                                                    |   |
| EXHIBIT  A  Form of Debt Security |                                                    |

 

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THIS INDENTURE, dated asof December 19, 2003, between Landmark Bancorp, Inc., a bank holdingcompany incorporated in Delaware (hereinafter sometimes called the “Company”),and Wilmington Trust Company, a Delaware banking corporation, as trustee(hereinafter sometimes called the “Trustee”).

 

W I T N E S S E T H :

 

WHEREAS, for its lawfulcorporate purposes, the Company has duly authorized the issuance of itsFloating Rate Junior Subordinated Debt Securities due 2034 (the “DebtSecurities”) under this Indenture and to provide, among other things, for theexecution and authentication, delivery and administration thereof, the Companyhas duly authorized the execution of this Indenture.

 

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

 

# ARTICLE IDEFINITIONS

#  

## Section 1.01           Definitions.

##  

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

 

“Additional Amounts” hasthe meaning set forth in Section 3.06.

 

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

 

“Administrative Action”has the meaning specified within the definition of “Tax Event” in this Section1.01.

 

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

 

“Bankruptcy Law” meansTitle 11, U.S. Code, or any similar federal or state law for the relief ofdebtors.

 

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

 

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

 

“Business Day” means anyday other than a Saturday, Sunday or any other day on which bankinginstitutions in Wilmington, Delaware, The City of New York or Topeka, Kansasare permitted or required by law or executive order to close.

 

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

 

“Capital Securities”means undivided beneficial interests in the assets of the Trust which aredesignated as “MMCapSSM” and rank *pari passu* with CommonSecurities issued by the Trust; provided, however, that if anEvent of Default (as defined in the Declaration) has occurred and iscontinuing, the rights of holders of such Common Securities to payment inrespect of distributions and payments upon liquidation, redemption andotherwise are subordinated to the rights of holders of such Capital Securities.

 

“Capital SecuritiesGuarantee” means the guarantee agreement that the Company will enter into withWilmington Trust Company or other Persons that operates directly or indirectlyfor the benefit of holders of Capital Securities of the Trust.

 

“Capital Treatment Event”means, if the Company is organized and existing under the laws of the UnitedStates or any state thereof or the District of Columbia, the receipt by theCompany and the Trust of an Opinion of Counsel experienced in such matters tothe effect that, as a result of any amendment to, or change in, the laws, rulesor regulations of the United States or any political subdivision thereof ortherein, or as the result of any official or administrative pronouncement oraction or decision interpreting or applying such laws, rules or regulations,which amendment or change is effective or which pronouncement, action ordecision is announced on or after the date of original issuance of the DebtSecurities, there is more than an insubstantial risk that the Company will not,within 90 days of the date of such opinion, be entitled to treat an amountequal to the aggregate Liquidation Amount of the Capital Securities as “Tier 1Capital” (or the then equivalent thereof) for purposes of the capital adequacyguidelines of the Federal Reserve (or any successor regulatory authority withjurisdiction over bank holding companies), as then in effect and applicable tothe Company; provided, however, that the distribution of the DebtSecurities in connection with the liquidation of the Trust by the Company shallnot in and of itself constitute a Capital Treatment Event unless suchliquidation shall have occurred in connection with a Tax Event or an InvestmentCompany Event.

 

“Certificate” means acertificate signed by any one of the principal executive officer, the principalfinancial officer or the principal accounting officer of the Company.

 

“Code” means the InternalRevenue Code of 1986, as amended.

 

“Common Securities” meansundivided beneficial interests in the assets of the Trust which are designatedas “Common Securities” and rank *pari passu* with Capital Securities

 

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issued by the Trust; provided, however,that if an Event of Default (as defined in the Declaration) has occurred and iscontinuing, the rights of holders of such Common Securities to payment inrespect of distributions and payments upon liquidation, redemption andotherwise are subordinated to the rights of holders of such Capital Securities.

 

“Company” means LandmarkBancorp, Inc., a bank holding company incorporated in Delaware, and, subject tothe provisions of Article XI, shall include its successors and assigns.

 

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

 

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

 

“Declaration” means theAmended and Restated Declaration of Trust of the Trust, dated as ofDecember 19, 2003, as amended or supplemented from time to time.

 

“Default” means anyevent, act or condition that with notice or lapse of time, or both, wouldconstitute an Event of Default.

 

“Defaulted Interest” hasthe meaning set forth in Section 2.08.

 

“Deferred Interest” hasthe meaning set forth in Section 2.11.

 

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

 

“Exchange Act” means theSecurities Exchange Act of 1934, as amended.

 

“Extension Period” hasthe meaning set forth in Section 2.11.

 

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

 

“Indenture” means thisIndenture as originally executed or, if amended or supplemented as hereinprovided, as so amended or supplemented, or both.

 

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

 

“Interest Payment Date”means January 23, April 23, July 23 and October 23 of eachyear, commencing on April 23, 2004, subject to Section 14.07.

 

“Interest Period” has themeaning set forth in Section 2.08.

 

“Interest Rate” means,with respect to any Interest Period, a per annum rate of interest equal toLIBOR, as determined on the LIBOR Determination Date for such Interest Period,plus, from, and including, March 18, 2004, 2.85%; provided, however, that theInterest

 

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Rate for any Interest Period may not exceed thehighest rate permitted by New York law, as the same may be modified by UnitedStates law of general application.

 

“Investment CompanyEvent” means the receipt by the Company and the Trust of an Opinion of Counselexperienced in such matters to the effect that, as a result of a change in lawor regulation or written change in interpretation or application of law orregulation by any legislative body, court, governmental agency or regulatoryauthority, there is more than an insubstantial risk that the Trust is or,within 90 days of the date of such opinion will be, considered an “investmentcompany” that is required to be registered under the Investment Company Act of1940, as amended, which change or prospective change becomes effective or wouldbecome effective, as the case may be, on or after the date of the originalissuance of the Debt Securities.

 

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

 

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

 

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

 

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

 

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

 

“Maturity Date” meansJanuary 23, 2034, subject to Section 14.07.

 

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

 

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

 

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

 

(a)           Debt Securities theretofore canceledby the Trustee or the Authenticating Agent or delivered to the Trustee forcancellation;

 

(b)           Debt Securities, or portions thereof,for the payment or redemption of which moneys in the necessary amount shallhave been deposited in trust with the Trustee or

 

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with any Paying Agent (other than the Company) orshall have been set aside and segregated in trust by the Company (if theCompany shall act as its own Paying Agent); provided, that, if such DebtSecurities, or portions thereof, are to be redeemed prior to maturity thereof,notice of such redemption shall have been given as provided in Articles X andXIV or provision satisfactory to the Trustee shall have been made for givingsuch notice; and

 

(c)           Debt Securities paid pursuant toSection 2.06 or in lieu of or in substitution for which other Debt Securitiesshall have been authenticated and delivered pursuant to the terms of Section2.06 unless proof satisfactory to the Company and the Trustee is presented thatany such Debt Securities are held by bona fide holders in due course.

 

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

 

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

 

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

 

“Person” means a legalperson, including any individual, corporation, estate, partnership, jointventure, association, joint-stock company, limited liability company, trust,unincorporated association, or government or any agency or politicalsubdivision thereof, or any other entity of whatever nature.

 

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

 

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

 

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

 

“Resale RestrictionTermination Date” means, with respect to any Debt Security, the date which isthe later of (i) two years (or such shorter period of time as permitted by Rule144(k) under the Securities Act) after the later of (y) the date of originalissuance of such Debt Security and (z) the last date on which the Company orany Affiliate (as defined in Rule 405 under the Securities Act) of the Companywas the holder of such Debt Security (or any predecessor thereto) and (ii) suchlater date, if any, as may be required by any subsequent change in applicablelaw.

 

“Responsible Officer”means, with respect to the Trustee, any officer within the Principal Office ofthe Trustee with direct responsibility for the administration of the Indenture,

 

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including any vice-president, any assistantvice-president, any secretary, any assistant secretary, the treasurer, anyassistant treasurer, any trust officer or other officer of the Principal Officeof the Trustee customarily performing functions similar to those performed byany of the above designated officers and also means, with respect to aparticular corporate trust matter, any other officer to whom such matter isreferred because of that officer’s knowledge of and familiarity with theparticular subject.

 

“Securities Act” meansthe Securities Act of 1933, as amended.

 

“Securityholder,” “holderof Debt Securities” or other similar terms, means any Person in whose name atthe time a particular Debt Security is registered on the Debt SecurityRegister.

 

“Senior Indebtedness”means, with respect to the Company, (i) the principal, premium, if any, andinterest in respect of (A) indebtedness of the Company for money borrowed and(B) indebtedness evidenced by securities, debentures, notes, bonds or othersimilar instruments issued by the Company, (ii) all capital lease obligationsof the Company, (iii) all obligations of the Company issued or assumed as thedeferred purchase price of property, all conditional sale obligations of theCompany and all obligations of the Company under any title retention agreement(but excluding trade accounts payable arising in the ordinary course ofbusiness), (iv) all obligations of the Company for the reimbursement of anyletter of credit, any banker’s acceptance, any security purchase facility, anyrepurchase agreement or similar arrangement, any interest rate swap, any otherhedging arrangement, any obligation under options or any similar credit orother transaction, (v) all obligations of the type referred to in clauses (i)through (iv) above of other Persons for the payment of which the Company isresponsible or liable as obligor, guarantor or otherwise and (vi) allobligations of the type referred to in clauses (i) through (v) above of otherPersons secured by any lien on any property or asset of the Company (whether ornot such obligation is assumed by the Company), whether incurred on or prior tothe date of this Indenture or thereafter incurred, unless, with the priorapproval of the Federal Reserve if not otherwise generally approved, it is providedin the instrument creating or evidencing the same or pursuant to which the sameis outstanding that such obligations are not superior or are *pari passu*in right of payment to the Debt Securities; provided, however,that Senior Indebtedness shall not include (A) any debt securities issued toany trust other than the Trust (or a trustee of such trust) that is a financingvehicle of the Company (a “financing entity”), in connection with the issuanceby such financing entity of equity or other securities in transactionssubstantially similar in structure to the transactions contemplated hereunderand in the Declaration or (B) any guarantees of the Company in respect of theequity or other securities of any financing entity referred to in clause (A) above.

 

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

 

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

 

“Special RedemptionPrice” means, with respect to the redemption of any Debt Security following aSpecial Event, an amount in cash equal to 104.125% of the principal

 

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amount of Debt Securities to be redeemed prior toJanuary 23, 2005 and thereafter equal to the percentage of the principal amountof the Debt Securities that is specified below for the Special Redemption Dateplus, in each case, unpaid interest accrued thereon to the Special RedemptionDate:

 
| **Special Redemption During the  12-Month  Period Beginning January 23,** |   | **Percentage  of Principal Amount** |   |
|---------------------------------------------------------------------------|--------|-------------------------------------|--------|
| 2005                                                                      |   | 103.300                             | %      |
| 2006                                                                      |   | 102.415                             | %      |
| 2007                                                                      |   | 101.650                             | %      |
| 2008                                                                      |   | 100.825                             | %      |
| 2009 and  thereafter                                                      |   | 100.000                             | %      |
|                                                                      |   |                                |   |

 

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

 

“Tax Event” means thereceipt by the Company and the Trust of an Opinion of Counsel experienced insuch matters to the effect that, as a result of any amendment to or change(including any announced prospective change) in the laws or any regulationsthereunder of the United States or any political subdivision or taxingauthority thereof or therein, or as a result of any official administrativepronouncement (including any private letter ruling, technical advicememorandum, regulatory procedure, notice or announcement (an “AdministrativeAction”)) or judicial decision interpreting or applying such laws orregulations, regardless of whether such Administrative Action or judicialdecision is issued to or in connection with a proceeding involving the Companyor the Trust and whether or not subject to review or appeal, which amendment,clarification, change, Administrative Action or decision is enacted,promulgated or announced, in each case on or after the date of originalissuance of the Debt Securities, there is more than an insubstantial risk that:(i) the Trust is, or will be within 90 days of the date of such opinion,subject to United States federal income tax with respect to income received oraccrued on the Debt Securities; (ii) if the Company is organized and existingunder the laws of the United States or any state thereof or the District ofColumbia, interest payable by the Company on the Debt Securities is not, orwithin 90 days of the date of such opinion, will not be, deductible by

 

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the Company, in whole or in part, for United Statesfederal income tax purposes; or (iii) the Trust is, or will be within 90 daysof the date of such opinion, subject to or otherwise required to pay, orrequired to withhold from distributions to holders of Trust Securities, morethan a de minimis amount of other taxes (including withholding taxes), duties,assessments or other governmental charges.

 

“Trust” means LandmarkCapital Trust I, the Delaware statutory trust, or any other similar trustcreated for the purpose of issuing Capital Securities in connection with theissuance of Debt Securities under this Indenture, of which the Company is thesponsor.

 

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

 

“Trust Securities” meansCommon Securities and Capital Securities of the Trust.

 

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

 

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

 

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

 

# ARTICLE IIDEBT SECURITIES

#  

## Section 2.01           Authentication and Dating.

##  

Upon the execution anddelivery of this Indenture, or from time to time thereafter, Debt Securities inan aggregate principal amount not in excess of $8,248,000 may be executed anddelivered by the Company to the Trustee for authentication, and the Trusteeshall thereupon authenticate and make available for delivery said DebtSecurities to or upon the written order of the Company, signed by its Chairmanof the Board of Directors, Vice Chairman, President or Chief Financial Officeror one of its Vice Presidents, without any further action by the Companyhereunder.  In authenticating such DebtSecurities, and accepting the additional responsibilities under this Indenturein relation to such Debt Securities, the Trustee shall be entitled to receive,and (subject to Section 6.01) shall be fully protected in relying upon a copyof any Board Resolution or Board Resolutions relating thereto and, ifapplicable, an appropriate record of any action taken pursuant to suchresolution, in each case certified by the Secretary or an Assistant Secretaryor other officers with appropriate delegated authority of the Company as thecase may be.

 

The Trustee shall havethe right to decline to authenticate and deliver any Debt Securities under thisSection if the Trustee, being advised by counsel, determines that such actionmay not lawfully be taken or if a Responsible Officer of the Trustee in goodfaith shall determine that such action would expose the Trustee to personalliability to existing Securityholders.

 

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The definitive DebtSecurities shall be typed, printed, lithographed or engraved on steel engravedborders or may be produced in any other manner, all as determined by theofficers executing such Debt Securities, as evidenced by their execution ofsuch Debt Securities.

 

## Section 2.02           Form of Trustee’s Certificate ofAuthentication.

##  

The Trustee’s certificateof authentication on all Debt Securities shall be in substantially thefollowing form:

 

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

 
|   | Wilmington Trust Company,       |
|--------|---------------------------------|
|   | not in its  individual capacity |
|   | but solely as  trustee          |
|   |                            |
|   | By:                             |   |   |
|   | Authorized Officer              |

 

## Section 2.03           Form and Denomination of DebtSecurities.

##  

The Debt Securities shallbe substantially in the form of Exhibit A hereto.  The Debt Securities shall be in registered, certificated formwithout coupons and in minimum denominations of $100,000 and any multiple of$1,000 in excess thereof.  The DebtSecurities shall be numbered, lettered, or otherwise distinguished in suchmanner or in accordance with such plans as the officers executing the same maydetermine with the approval of the Trustee as evidenced by the execution andauthentication thereof.

 

## Section 2.04           Execution of Debt Securities.

##  

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

 

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

 

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as though the Person who signed such Debt Securitieshad not ceased to be such officer of the Company; and any Debt Security may besigned on behalf of the Company by such Persons as, at the actual date of theexecution of such Debt Security, shall be the proper officers of the Company,although at the date of the execution of this Indenture any such person was notsuch an officer.

 

Every Debt Security shallbe dated the date of its authentication.

 

## Section 2.05           Exchange and Registration ofTransfer of Debt Securities.

##  

The Company shall causeto be kept, at the office or agency maintained for the purpose of registrationof transfer and for exchange as provided in Section 3.02, a register (the “DebtSecurity Register”) for the Debt Securities issued hereunder in which, subjectto such reasonable regulations as it may prescribe, the Company shall providefor the registration and transfer of all Debt Securities as provided in thisArticle II.  Such register shall be inwritten form or in any other form capable of being converted into written formwithin a reasonable time.

 

Debt Securities to beexchanged may be surrendered at the Principal Office of the Trustee or at anyoffice or agency to be maintained by the Company for such purpose as providedin Section 3.02, and the Company shall execute, the Company or the Trusteeshall register and the Trustee or the Authenticating Agent shall authenticateand make available for delivery in exchange therefor, the Debt Security or DebtSecurities which the Securityholder making the exchange shall be entitled toreceive.  Upon due presentment forregistration of transfer of any Debt Security at the Principal Office of theTrustee or at any office or agency of the Company maintained for such purposeas provided in Section 3.02, the Company shall execute, the Company or theTrustee shall register and the Trustee or the Authenticating Agent shallauthenticate and make available for delivery in the name of the transferee ortransferees, a new Debt Security for a like aggregate principal amount.Registration or registration of transfer of any Debt Security by the Trustee orby any agent of the Company appointed pursuant to Section 3.02, and delivery ofsuch Debt Security, shall be deemed to complete the registration orregistration of transfer of such Debt Security.

 

All Debt Securitiespresented for registration of transfer or for exchange or payment shall (if sorequired by the Company or the Trustee or the Authenticating Agent) be dulyendorsed by, or be accompanied by, a written instrument or instruments oftransfer in form satisfactory to the Company and either the Trustee or theAuthenticating Agent duly executed by, the holder or such holder’s attorneyduly authorized in writing.

 

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

 

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

 

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Notwithstanding theforegoing, Debt Securities may not be transferred prior to the ResaleRestriction Termination Date except in compliance with the legend set forthbelow, unless otherwise determined by the Company in accordance with applicablelaw, which legend shall be placed on each Debt Security:

 

**THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIESACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS ORANY OTHER APPLICABLE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BEREOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISEDISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION ISEXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIESACT.  THE HOLDER OF THIS SECURITY OR ANYINTEREST OR PARTICIPATION HEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THECASE MAY BE, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR ANYINTEREST OR PARTICIPATION HEREIN PRIOR TO THE DATE WHICH IS THE LATER OF (i)TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THESECURITIES ACT) AFTER THE LATER OF (Y) THE DATE OF ORIGINAL ISSUANCE HEREOF AND(Z) THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE (AS DEFINED IN RULE 405UNDER THE SECURITIES ACT) OF THE COMPANY WAS THE HOLDER OF THIS SECURITY ORSUCH INTEREST OR PARTICIPATION (OR ANY PREDECESSOR THERETO) AND (ii) SUCH LATERDATE, IF ANY, AS MAY BE REQUIRED BY ANY SUBSEQUENT CHANGE IN APPLICABLE LAW,ONLY (A) TO THE COMPANY, (B) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT(“RULE 144A”), TO A PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIEDINSTITUTIONAL BUYER”, AS DEFINED IN RULE 144A, THAT PURCHASES FOR ITS OWNACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE ISGIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TOAN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO AN“ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3), (7)OR (8) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY ORSUCH INTEREST OR PARTICIPATION FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCHAN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOROFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THESECURITIES ACT, (D) PURSUANT TO OFFERS AND SALES TO NON-US PERSONS THAT OCCUROUTSIDE THE UNITED STATES PURSUANT TO REGULATION S UNDER THE SECURITIES ACT****OR (E)PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OFTHE SECURITIES ACT, SUBJECT TO THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER,SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) ABOVE TO REQUIRE THE DELIVERY OFAN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TOIT IN ACCORDANCE WITH THE**

 

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**INDENTURE,A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY.  THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATIONHEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, AGREES THAT ITWILL COMPLY WITH THE FOREGOING RESTRICTIONS.**

 

**THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATIONHEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, ALSO AGREES,REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUALRETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THEEMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), ORSECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”)(EACH A “PLAN”), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BYREASON OF ANY PLAN’S INVESTMENT IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS”OF ANY PLAN MAY ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST OR PARTICIPATIONHEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEFAVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITSPURCHASE AND HOLDING OF THIS SECURITY OR SUCH INTEREST OR PARTICIPATION IS NOTPROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TOSUCH PURCHASE OR HOLDING.  ANY PURCHASEROR HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN WILL BEDEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF OR THEREOF, ASTHE CASE MAY BE, THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THEMEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODEIS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEEBENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANYEMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASEAND HOLDING WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OFERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY ORADMINISTRATIVE EXEMPTION.**

 

**IN CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITYWILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHERINFORMATION AS MAY BE REQUIRED BY THE INDENTURE TO CONFIRM THAT THE TRANSFERCOMPLIES WITH THE FOREGOING RESTRICTIONS.**

 

**THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY INMINIMUM DENOMINATIONS OF $100,000 AND MULTIPLES OF $1,000 IN EXCESSTHEREOF.  ANY ATTEMPTED TRANSFER OF THISSECURITY IN DENOMINATIONS OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND**

 

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**OFNO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOTTO BE THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN FORANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ONTHIS SECURITY OR SUCH INTEREST OR PARTICIPATION, AND SUCH PURPORTED TRANSFEREESHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN THIS SECURITY OR ANY INTERESTOR PARTICIPATION HEREIN.**

 

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

 

## Section 2.06           Mutilated, Destroyed, Lost orStolen Debt Securities.

##  

In case any Debt Securityshall become mutilated or be destroyed, lost or stolen, the Company shallexecute, and upon its written request the Trustee shall authenticate anddeliver, a new Debt Security bearing a number not contemporaneouslyoutstanding, in exchange and substitution for the mutilated Debt Security, orin lieu of and in substitution for the Debt Security so destroyed, lost orstolen.  In every case the applicant fora substituted Debt Security shall furnish to the Company and the Trustee suchsecurity or indemnity as may be required by them to save each of them harmless,and, in every case of destruction, loss or theft, the applicant shall alsofurnish to the Company and the Trustee evidence to their satisfaction of thedestruction, loss or theft of such Debt Security and of the ownership thereof.

 

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

 

Every substituted DebtSecurity issued pursuant to the provisions of this Section 2.06 by virtue ofthe fact that any such Debt Security is destroyed, lost or stolen shallconstitute an additional contractual obligation of the Company, whether or notthe destroyed, lost or stolen Debt Security shall be found at any time, andshall be entitled to all the benefits of this Indenture equally andproportionately with any and all other Debt Securities duly issuedhereunder.  All

 

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Debt Securities shall be held and owned upon theexpress condition that, to the extent permitted by applicable law, theforegoing provisions are exclusive with respect to the replacement or paymentof mutilated, destroyed, lost or stolen Debt Securities and shall preclude anyand all other rights or remedies notwithstanding any law or statute existing orhereafter enacted to the contrary with respect to the replacement or payment ofnegotiable instruments or other securities without their surrender.

 

## Section 2.07           Temporary Debt Securities.

##  

Pending the preparationof definitive Debt Securities, the Company may execute and the Trustee shallauthenticate and make available for delivery temporary Debt Securities that aretyped, printed or lithographed. Temporary Debt Securities shall be issuable inany authorized denomination, and substantially in the form of the definitiveDebt Securities but with such omissions, insertions and variations as may beappropriate for temporary Debt Securities, all as may be determined by theCompany.  Every such temporary DebtSecurity shall be executed by the Company and be authenticated by the Trusteeupon the same conditions and in substantially the same manner, and with thesame effect, as the definitive Debt Securities.  Without unreasonable delay, the Company will execute and deliverto the Trustee or the Authenticating Agent definitive Debt Securities andthereupon any or all temporary Debt Securities may be surrendered in exchangetherefor, at the Principal Office of the Trustee or at any office or agencymaintained by the Company for such purpose as provided in Section 3.02, and theTrustee or the Authenticating Agent shall authenticate and make available fordelivery in exchange for such temporary Debt Securities a like aggregateprincipal amount of such definitive Debt Securities.  Such exchange shall be made by the Company at its own expense andwithout any charge therefor except that in case of any such exchange involvinga registration of transfer the Company may require payment of a sum sufficientto cover any tax, fee or other governmental charge that may be imposed inrelation thereto.  Until so exchanged,the temporary Debt Securities shall in all respects be entitled to the samebenefits under this Indenture as definitive Debt Securities authenticated anddelivered hereunder.

 

## Section 2.08           Payment of Interest.

##  

Each Debt Security willbear interest at the then applicable Interest Rate (i) in the case of theinitial Interest Period, for the period from, and including, the date oforiginal issuance of such Debt Security to, but excluding, the initial InterestPayment Date and (ii) thereafter, for the period from, and including, the firstday following the end of the preceding Interest Period to, but excluding, theapplicable Interest Payment Date or, in the case of the last Interest Period,the related Optional Redemption Date, Special Redemption Date or Maturity Date,as applicable (each such period, an “Interest Period”), on the principalthereof, on any overdue principal and (to the extent that payment of suchinterest is enforceable under applicable law) on Deferred Interest and on anyoverdue installment of interest (including Defaulted Interest), payable(subject to the provisions of Article XII) on each Interest Payment Date.  Interest and any Deferred Interest on anyDebt Security that is payable, and is punctually paid or duly provided for bythe Company, on any Interest Payment Date shall be paid to the Person in whosename such Debt Security (or one or more Predecessor Securities) is registeredat the close of business on the regular record date for such interestinstallment, except that interest and any Deferred

 

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Interest payable on the Maturity Date, any OptionalRedemption Date or the Special Redemption Date, as the case may be, shall bepaid to the Person to whom principal is paid. In case (i) the Maturity Date of any Debt Security or (ii) anyDebt Security or portion thereof is called for redemption and the relatedOptional Redemption Date or the Special Redemption Date, as the case may be, issubsequent to the regular record date with respect to any Interest Payment Dateand either on or prior to such Interest Payment Date, interest on such DebtSecurity will be paid upon presentation and surrender of such Debt Security.

 

Any interest on any DebtSecurity, other than Deferred Interest, that is payable, but is not punctuallypaid or duly provided for by the Company, on any Interest Payment Date (hereincalled “Defaulted Interest”) shall forthwith cease to be payable to the holderon the relevant regular record date by virtue of having been such holder, andsuch Defaulted Interest shall be paid by the Company to the Persons in whosenames such Debt Securities (or their respective Predecessor Securities) areregistered at the close of business on a special record date for the payment ofsuch Defaulted Interest, which shall be fixed in the following manner:  the Company shall notify the Trustee inwriting of the amount of Defaulted Interest proposed to be paid on each suchDebt Security and the date of the proposed payment, and at the same time theCompany shall deposit with the Trustee an amount of money equal to theaggregate amount proposed to be paid in respect of such Defaulted Interest orshall make arrangements reasonably satisfactory to the Trustee for such depositprior to the date of the proposed payment, such money when deposited to be heldin trust for the benefit of the Persons entitled to such Defaulted Interest asprovided in this paragraph.  Thereuponthe Trustee shall fix a special record date for the payment of such DefaultedInterest, which shall not be more than fifteen nor less than ten days prior tothe date of the proposed payment and not less than ten days after the receiptby the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Company of such specialrecord date and, in the name and at the expense of the Company, shall causenotice of the proposed payment of such Defaulted Interest and the specialrecord date therefor to be mailed, first class postage prepaid, to eachSecurityholder at his or her address as it appears in the Debt SecurityRegister, not less than ten days prior to such special record date.  Notice of the proposed payment of suchDefaulted Interest and the special record date therefor having been mailed asaforesaid, such Defaulted Interest shall be paid to the Persons in whose namessuch Debt Securities (or their respective Predecessor Securities) areregistered on  such special record dateand thereafter the Company shall have no further payment obligation in respectof the Defaulted Interest.

 

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

 

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

 

Subject to the foregoingprovisions of this Section, each Debt Security delivered under this Indentureupon registration of transfer of or in exchange for or in lieu of any otherDebt Security shall carry the rights to interest accrued and unpaid, and toaccrue, that were carried by such other Debt Security.

 

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## Section 2.09           Cancellation of Debt SecuritiesPaid, etc.

##  

All Debt Securitiessurrendered for the purpose of payment, redemption, exchange or registration oftransfer, shall, if surrendered to the Company or any Paying Agent, besurrendered to the Trustee and promptly canceled by it, or, if surrendered tothe Trustee or any Authenticating Agent, shall be promptly canceled by it, andno Debt Securities shall be issued in lieu thereof except as expresslypermitted by any of the provisions of this Indenture.  All Debt Securities canceled by any Authenticating Agent shall bedelivered to the Trustee.  The Trusteeshall destroy all canceled Debt Securities unless the Company otherwise directsthe Trustee in writing, in which case the Trustee shall dispose of such DebtSecurities as directed by the Company. If the Company shall acquire any of the Debt Securities, however, suchacquisition shall not operate as a redemption or satisfaction of theindebtedness represented by such Debt Securities unless and until the same aresurrendered to the Trustee for cancellation.

 

## Section 2.10           Computation of Interest.

##  

### (a)           The amount of interest payable forany Interest Period will be computed on the basis of a 360-day year and theactual number of days elapsed in such Interest Period.

###  

### (b)           LIBOR shall be determined by theCalculation Agent for each Interest Period in accordance with the followingprovisions:

###  

#### (i)            On the second LIBOR Business Day(provided, that on such day commercial banks are open for business (includingdealings in foreign currency deposits) in London (a “LIBOR Banking Day”), andotherwise the next preceding LIBOR Business Day that is also a LIBOR BankingDay) prior to the January 30, April 30, July 30 orOctober 30, as the case may be, immediately succeeding the commencement ofsuch Interest Period (or, in the case of the first Interest Period, prior toDecember 19, 2003) (each such day, a “LIBOR Determination Date”), LIBORshall equal the rate, as obtained by the Calculation Agent, for three-monthU.S. Dollar deposits in Europe, which appears on Telerate (as defined in theInternational Swaps and Derivatives Association, Inc. 2000 Interest Rate andCurrency Exchange Definitions) page 3750 or such other page as may replace suchpage 3750, as of 11:00 a.m. (London time) on such LIBOR Determination Date, asreported by Bloomberg Financial Markets Commodities News or any successorservice (“Telerate Page 3750”).  “LIBORBusiness Day” means any day that is not a Saturday, Sunday or other day onwhich commercial banking institutions in The City of New York or Wilmington,Delaware are authorized or obligated by law or executive order to beclosed.  If such rate is superseded onTelerate Page 3750 by a corrected rate before 12:00 noon (London time) on suchLIBOR Determination Date, the corrected rate as so substituted will be LIBORfor such LIBOR Determination Date.

####  

#### (ii)           If, on such LIBOR Determination Date,such rate does not appear on Telerate Page 3750, the Calculation Agent shalldetermine the arithmetic mean of the offered quotations of the Reference Banksto leading banks in the London interbank market for three-month U.S. Dollardeposits in Europe (in an amount determined by the Calculation Agent) byreference to requests for quotations as of approximately 11:00 a.m.

 

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

####  

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

####  

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

###  

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

###  

## Section 2.11           Extension of Interest PaymentPeriod.

##  

So long as no Event of Default has occurred and is continuing, theCompany shall have the right, from time to time and without causing an Event ofDefault, to defer payments of interest on the Debt Securities by extending theinterest payment period on the Debt Securities at any time and from time totime during the term of the Debt Securities, for up to 20 consecutive quarterlyperiods (each such extended interest payment period, together with all previousand further consecutive extensions thereof, is referred to herein as an “ExtensionPeriod”).  No Extension Period may endon a date other than an Interest Payment Date or extend beyond the MaturityDate, any Optional Redemption Date or the Special Redemption Date, as the casemay be.  During any Extension Period,interest will continue to accrue on the Debt Securities, and interest on suchaccrued interest (such accrued interest and interest thereon referred to hereinas “Deferred Interest”) will accrue at an annual rate equal to the InterestRate applicable during

 

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such Extension Period, compounded quarterly from the date such DeferredInterest would have been payable were it not for the Extension Period, to theextent permitted by applicable law.  Nointerest or Deferred Interest (except any Additional Amounts that may be dueand payable) shall be due and payable during an Extension Period, except at theend thereof.  At the end of anyExtension Period, the Company shall pay all Deferred Interest then accrued andunpaid on the Debt Securities; provided, however, that during anyExtension Period, the Company shall be subject to the restrictions set forth inSection 3.08.  Prior to the terminationof any Extension Period, the Company may further extend such Extension Period, provided,that no Extension Period (including all previous and further consecutiveextensions that are part of such Extension Period) shall exceed 20 consecutivequarterly periods.  Upon the terminationof any Extension Period and upon the payment of all Deferred Interest, theCompany may commence a new Extension Period, subject to the foregoingrequirements.  The Company must give theTrustee notice of its election to begin or extend an Extension Period at leastone Business Day prior to the regular record date applicable to the nextsucceeding Interest Payment Date.  TheTrustee shall give notice of the Company’s election to begin or extend anExtension Period to the Securityholders.

 

## Section 2.12           CUSIP Numbers.

##  

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

 

# ARTICLE IIIPARTICULAR COVENANTS OF THE COMPANY

#  

## Section 3.01           Payment of Principal, Premium andInterest; Agreed Treatment of the Debt Securities.

##  

### (a)           The Company covenants and agrees thatit will duly and punctually pay or cause to be paid all payments due in respectof the Debt Securities at the place, at the respective times and in the mannerprovided in this Indenture and the Debt Securities.  Payment of the principal of and premium, if any, and interest onthe Debt Securities due on the Maturity Date, any Optional Redemption Date orthe Special Redemption Date, as the case may be, will be made by the Company inimmediately available funds against presentation and surrender of such DebtSecurities.  At the option of theCompany, each installment of interest on the Debt Securities due on an InterestPayment Date other than the Maturity Date, any Optional Redemption Date or theSpecial Redemption Date, as the case may be, may be paid (i) by mailing checksfor such interest payable to the order of the holders of Debt Securitiesentitled thereto as they appear on the Debt Security Register or (ii) by wiretransfer of immediately available funds to any account with a bankinginstitution located in the United States designated

 

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### by such holders tothe Paying Agent no later than the related record date.  Notwithstanding anything to the contrarycontained in this Indenture or any Debt Security, if the Trust or the trusteeof the Trust is the holder of any Debt Security, then all payments in respectof such Debt Security shall be made by the Company in immediately availablefunds when due.

###  

### (b)           The Company will treat the DebtSecurities as indebtedness, and the interest payable in respect of such DebtSecurities as interest, for all U.S. federal income tax purposes.  All payments in respect of such Debt Securitieswill be made free and clear of U.S. withholding tax to any beneficial ownerthereof that has provided an Internal Revenue Service Form W-8 BEN (or anysubstitute or successor form) establishing its non-U.S. status for U.S. federalincome tax purposes.

###  

### (c)           As of the date of this Indenture, theCompany represents that it has no intention to exercise its right under Section2.11 to defer payments of interest on the Debt Securities by commencing anExtension Period.

###  

### (d)           As of the date of this Indenture, theCompany represents that the likelihood that it would exercise its right underSection 2.11 to defer payments of interest on the Debt Securities by commencingan Extension Period at any time during which the Debt Securities areoutstanding is remote because of the restrictions that would be imposed on theCompany’s ability to declare or pay dividends or distributions on, or toredeem, purchase or make a liquidation payment with respect to, any of itsoutstanding equity and on the Company’s ability to make any payments of principalof or premium, if any, or interest on, or repurchase or redeem, any of its debtsecurities that rank *pari passu* in all respects with or juniorin interest to the Debt Securities.

###  

## Section 3.02           Offices for Notices and Payments,etc.

##  

So long as any of the DebtSecurities remain outstanding, the Company will maintain in Wilmington,Delaware or in Topeka, Kansas an office or agency where the Debt Securities maybe presented for payment, an office or agency where the Debt Securities may bepresented for registration of transfer and for exchange as provided in thisIndenture and an office or agency where notices and demands to or upon theCompany in respect of the Debt Securities or of this Indenture may beserved.  The Company will give to theTrustee written notice of the location of any such office or agency and of anychange of location thereof.  Untilotherwise designated from time to time by the Company in a notice to theTrustee, or specified as contemplated by Section 2.05, such office or agencyfor all of the above purposes shall be the Principal Office of theTrustee.  In case the Company shall failto maintain any such office or agency in Wilmington, Delaware or in Topeka,Kansas, or shall fail to give such notice of the location or of any change inthe location thereof, presentations and demands may be made and notices may beserved at the Principal Office of the Trustee.

 

In addition to any suchoffice or agency, the Company may from time to time designate one or moreoffices or agencies outside Wilmington, Delaware or Topeka, Kansas where theDebt Securities may be presented for registration of transfer and for exchangein the manner provided in this Indenture, and the Company may from time to timerescind such designation, as the Company may deem desirable or expedient; provided,however, that no such

 

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designation or rescission shall in any manner relievethe Company of its obligation to maintain any such office or agency inWilmington, Delaware or in Topeka, Kansas for the purposes abovementioned.  The Company will give to theTrustee prompt written notice of any such designation or rescission thereof.

 

## Section 3.03           Appointments to Fill Vacancies inTrustee’s Office.

##  

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

 

## Section 3.04           Provision as to Paying Agent.

##  

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

###  

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

####  

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

####  

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

####  

### (b)           If the Company shall act as its ownPaying Agent, it will, on or before each due date of the payments due on theDebt Securities, set aside, segregate and hold in trust for the benefit of theholders of the Debt Securities a sum sufficient to make such payments sobecoming due and will notify the Trustee in writing of any failure to take suchaction and of any failure by the Company (or by any other obligor under theDebt Securities) to make any payment on the Debt Securities when the same shallbecome due and payable.

###  

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

 

### (c)           Anything in this Section 3.04 to thecontrary notwithstanding, the Company may, at any time, for the purpose ofobtaining a satisfaction and discharge with respect to the Debt Securities, orfor any other reason, pay, or direct any Paying Agent to pay, to the

 

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### Trustee all sumsheld in trust by the Company or any such Paying Agent, such sums to be held bythe Trustee upon the same terms and conditions herein contained.

###  

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

###  

### (e)           The Company hereby initially appointsthe Trustee to act as paying agent for the Debt Securities (the “PayingAgent”).

###  

## Section 3.05           Certificate to Trustee.

##  

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

 

## Section 3.06           Additional Amounts.

##  

If and for so long as theTrust is the holder of all Debt Securities and is subject to or otherwiserequired to pay (or is required to withhold from distributions to holders ofTrust Securities) any additional taxes (including withholding taxes), duties,assessments or other governmental charges as a result of a Tax Event, theCompany will pay such additional amounts (the “Additional Amounts”) on the DebtSecurities or the Trust Securities, as the case may be, as shall be required sothat the net amounts received and retained by the holders of Debt Securities orTrust Securities, as the case may be, after payment of all taxes (includingwithholding taxes), duties, assessments or other governmental charges, will beequal to the amounts that such holders would have received and retained had nosuch taxes (including withholding taxes), duties, assessments or othergovernmental charges been imposed.

 

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

 

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## Section 3.07           Compliance with ConsolidationProvisions.

##  

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

 

## Section 3.08           Limitation on Dividends.

##  

If (i) there shall haveoccurred and be continuing an Event of Default, (ii) the Company shall be indefault with respect to its payment of any obligations under the CapitalSecurities Guarantee or (iii) the Company shall have given notice of itselection to defer payments of interest on the Debt Securities by extending theinterest payment period as provided herein and such period, or any extensionthereof, shall have commenced and be continuing, then the Company may not (A)declare or pay any dividends or distributions on, or redeem, purchase, acquire,or make a liquidation payment with respect to, any of the Company’s capitalstock, (B) make any payment of principal of or premium, if any, or interest onor repay, repurchase or redeem any debt securities of the Company that rank *pari passu*inall respects with or junior in interest to the Debt Securities or (C) make anypayment under any guarantees of the Company that rank *pari passu*in all respectswith or junior in interest to the Capital Securities Guarantee (other than (a)repurchases, redemptions or other acquisitions of shares of capital stock ofthe Company (I) in connection with any employment contract, benefit plan orother similar arrangement with or for the benefit of one or more employees,officers, directors or consultants, (II) in connection with a dividendreinvestment or stockholder stock purchase plan or (III) in connection with theissuance of capital stock of the Company (or securities convertible into orexercisable for such capital stock) as consideration in an acquisitiontransaction entered into prior to the occurrence of (i), (ii) or (iii) above,(b) as a result of any exchange or conversion of any class or series of theCompany’s capital stock (or any capital stock of a subsidiary of the Company)for any class or series of the Company’s capital stock or of any class orseries of the Company’s indebtedness for any class or series of the Company’scapital stock, (c) the purchase of fractional interests in shares of theCompany’s capital stock pursuant to the conversion or exchange provisions ofsuch capital stock or the security being converted or exchanged, (d) anydeclaration of a dividend in connection with any stockholder’s rights plan, orthe issuance of rights, stock or other property under any stockholder’s rightsplan, or the redemption or repurchase of rights pursuant thereto or (e) anydividend in the form of stock, warrants, options or other rights where thedividend stock or the stock issuable upon exercise of such warrants, options orother rights is the same stock as that on which the dividend is being paid orranks *paripassu* with or junior in interest to such stock).

 

## Section 3.09           Covenants as to the Trust.

##  

For so long as such TrustSecurities remain outstanding, the Company shall maintain 100% ownership of theCommon Securities; provided, however, that any permittedsuccessor of the Company under this Indenture may succeed to the Company’sownership of such Common Securities.  TheCompany, as owner of the Common Securities, shall use commercially reasonableefforts to cause the Trust (a) to remain a statutory trust, except in

 

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connection with a distribution of Debt Securities tothe holders of Trust Securities in liquidation of the Trust, the redemption ofall of the Trust Securities or mergers, consolidations or amalgamations, eachas permitted by the Declaration, (b) to otherwise continue to be classified asa grantor trust for United States federal income tax purposes and (c) to causeeach holder of Trust Securities to be treated as owning an undivided beneficialinterest in the Debt Securities.

 

# ARTICLE IVLISTS

#  

## Section 4.01           Securityholders’ Lists.

##  

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

 

### (a)           on each regular record date for anInterest Payment Date, a list, in such form as the Trustee may reasonablyrequire, of the names and addresses of the Securityholders of the Debt Securitiesas of such record date; and

###  

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

###  

## Section 4.02           Preservation and Disclosure ofLists.

##  

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

###  

### (b)           In case three or more holders of DebtSecurities (hereinafter referred to as “applicants”) apply in writing to theTrustee and furnish to the Trustee reasonable proof that each such applicanthas owned a Debt Security for a period of at least six months preceding thedate of such application, and such application states that the applicantsdesire to communicate with other holders of Debt Securities with respect totheir rights under this Indenture or under such Debt Securities and isaccompanied by a copy of the form of proxy or other communication which such applicantspropose to transmit, then the Trustee shall within five Business Days after thereceipt of such application, at its election, either:

###  

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

####  

#### (ii)           inform such applicants as to theapproximate number of holders of Debt Securities whose names and addressesappear in the information preserved at the

 

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#### time by the Trustee inaccordance with the provisions of subsection (a) of this Section 4.02, and asto the approximate cost of mailing to such Securityholders the form of proxy orother communication, if any, specified in such application.

####  

If the Trustee shallelect not to afford such applicants access to such information, the Trusteeshall, upon the written request of such applicants, mail to each Securityholderof Debt Securities whose name and address appear in the information preservedat the time by the Trustee in accordance with the provisions of subsection (a)of this Section 4.02 a copy of the form of proxy or other communication whichis specified in such request with reasonable promptness after a tender to theTrustee of the material to be mailed and of payment, or provision for thepayment, of the reasonable expenses of mailing, unless within five days aftersuch tender, the Trustee shall mail to such applicants and file with theSecurities and Exchange Commission, if permitted or required by applicable law,together with a copy of the material to be mailed, a written statement to theeffect that, in the opinion of the Trustee, such mailing would be contrary tothe best interests of the holders of all Debt Securities, as the case may be, orwould be in violation of applicable law. Such written statement shall specify the basis of such opinion.  If said Commission, as permitted or requiredby applicable law, after opportunity for a hearing upon the objectionsspecified in the written statement so filed, shall enter an order refusing tosustain any of such objections or if, after the entry of an order sustainingone or more of such objections, said Commission shall find, after notice andopportunity for hearing, that all the objections so sustained have been met andshall enter an order so declaring, the Trustee shall mail copies of suchmaterial to all such Securityholders with reasonable promptness after the entryof such order and the renewal of such tender; otherwise the Trustee shall be relievedof any obligation or duty to such applicants respecting their application.

 

### (c)           Each and every holder of DebtSecurities, by receiving and holding the same, agrees with the Company and theTrustee that none of the Company, the Trustee or any Paying Agent shall be heldaccountable by reason of the disclosure of any such information as to the namesand addresses of the holders of Debt Securities in accordance with theprovisions of subsection (b) of this Section 4.02, regardless of the sourcefrom which such information was derived, and that the Trustee shall not be heldaccountable by reason of mailing any material pursuant to a request made undersaid subsection (b).

###  

## Section 4.03           Financial and Other Information.

##  

### (a)           The Company shall deliver to eachSecurityholder (1) each Report on Form 10-K and Form 10-Qprepared by the Company and filed with the Securities and Exchange Commissionin accordance with the Exchange Act within 30 days after the filing thereof,(2) if the Company is not then (y) subject to Section 13 or 15(d) ofthe Exchange Act or (z) exempt from reporting pursuant toRule 12g3-2(b) thereunder, the information required to be provided by Rule144A(d)(4) under the Securities Act and (3) within 30 days after the endof the fiscal year of the Company, Form 1099 or such other annual U.S. federalincome tax information statement required by the Code containing suchinformation with regard to the Debt Securities held by such holder as isrequired by the Code and the income tax regulations of the U.S. Treasurythereunder.

 

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### (b)           If and so long as a Holder of theDebt Securities is ALESCO Preferred Funding II, Ltd. or a trustee thereof, theCompany will cause copies of its reports on Form FR  Y-9C and Form FR Y-9LP to be delivered to the Holder promptlyfollowing their filing with the Federal Reserve.

###  

# ARTICLE VREMEDIES OF THE TRUSTEE AND SECURITYHOLDERS

#  

## Section 5.01           Events of Default.

##  

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

 

### (a)           the Company defaults in the paymentof any interest upon any Debt Security when it becomes due and payable, andcontinuance of such default for a period of 30 days; for the avoidance ofdoubt, an extension of any interest payment period by the Company in accordancewith Section 2.11 of this Indenture shall not constitute a default under thisclause 5.01(a); or

###  

### (b)           the Company defaults in the paymentof all or any part of the principal of (or premium, if any, on) any Debt Securitiesas and when the same shall become due and payable, whether at maturity, uponredemption, by acceleration of maturity pursuant to Section 5.01 of thisIndenture or otherwise; or

###  

### (c)           the Company defaults in theperformance of, or breaches, any of its covenants or agreements in Sections3.06, 3.07, 3.08 or 3.09 of this Indenture (other than a covenant or agreementa default in whose performance or whose breach is elsewhere in this Sectionspecifically dealt with), and continuance of such default or breach for aperiod of 90 days after there has been given, by registered or certified mail,to the Company by the Trustee or to the Company and the Trustee by the holdersof not less than 25% in aggregate principal amount of the outstanding DebtSecurities, a written notice specifying such default or breach and requiring itto be remedied and stating that such notice is a “Notice of Default” hereunder;or

 

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

###  

### (e)           the Company shall commence avoluntary case under any applicable bankruptcy, insolvency or other similar lawnow or hereafter in effect, shall consent to the entry of an order for reliefin an involuntary case under any such law, or shall consent to the appointmentof or taking possession by a receiver, liquidator, assignee, trustee,custodian, sequestrator or other similar official of the Company or of anysubstantial part of its property, or shall make any general assignment for thebenefit of creditors, or shall fail generally to pay its debts as they becomedue; or

 

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### (f)            the Trust shall have voluntarily orinvoluntarily liquidated, dissolved, wound-up its business or otherwiseterminated its existence except in connection with (1) the distribution of theDebt Securities to holders of the Trust Securities in liquidation of theirinterests in the Trust, (2) the redemption of all of the outstanding TrustSecurities or (3) mergers, consolidations or amalgamations, each as permittedby the Declaration.

###  

If an Event of Defaultspecified under clause (a), (b) or (c) of this Section 5.01 occurs and iscontinuing with respect to the Debt Securities, then, in each and every suchcase, either the Trustee or the holders of not less than 25% in aggregateprincipal amount of the Debt Securities then outstanding hereunder, by noticein writing to the Company (and to the Trustee if given by Securityholders), maydeclare the entire principal of the Debt Securities and any premium andinterest accrued, but unpaid, thereon to be due and payable immediately, andupon any such declaration the same shall become immediately due andpayable.  If an Event of Defaultspecified under clause (d), (e) or (f) of this Section 5.01 occurs, then, ineach and every such case, the entire principal amount of the Debt Securitiesand any premium and interest accrued, but unpaid, thereon shall ipsofactobecome immediately due and payable without further action.

 

The foregoing provisions,however, are subject to the condition that if, at any time after the principalof the Debt Securities shall have become due by acceleration, and before anyjudgment or decree for the payment of the moneys due shall have been obtainedor entered as hereinafter provided, (i) the Company shall pay or shall depositwith the Trustee a sum sufficient to pay all matured installments of interestupon all the Debt Securities and all payments on the Debt Securities whichshall have become due otherwise than by acceleration (with interest upon allsuch payments and Deferred Interest, to the extent permitted by law) and suchamount as shall be sufficient to cover reasonable compensation to the Trusteeand each predecessor Trustee, their respective agents, attorneys and counsel,and all other amounts due to the Trustee pursuant to Section 6.06, if any, and(ii) all Events of Default under this Indenture, other than the non-payment ofthe payments in respect of Debt Securities which shall have become due byacceleration, shall have been cured, waived or otherwise remedied as providedherein, then, in each and every such case, the holders of a majority inaggregate principal amount of the Debt Securities then outstanding, by writtennotice to the Company and to the Trustee, may waive all defaults and rescindand annul such acceleration and its consequences, but no such waiver orrescission and annulment shall extend to or shall affect any subsequent defaultor shall impair any right consequent thereon; provided, however,that if the Debt Securities are held by the Trust or a trustee of the Trust,such waiver or rescission and annulment shall not be effective until theholders of a majority in aggregate liquidation amount of the outstandingCapital Securities of the Trust shall have consented to such waiver orrescission and annulment.

 

In case the Trustee shallhave proceeded to enforce any right under this Indenture and such proceedingsshall have been discontinued or abandoned because of such rescission orannulment or for any other reason or shall have been determined adversely tothe Trustee, then and in every such case the Company, the Trustee and theholders of the Debt Securities shall be restored respectively to their severalpositions and rights hereunder, and all rights, remedies and powers of theCompany, the Trustee and the holders of the Debt Securities shall continue asthough no such proceeding had been taken.

 

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## Section 5.02           Payment of Debt Securities onDefault; Suit Therefor.

##  

The Company covenantsthat upon the occurrence of an Event of Default pursuant to clause (a) or (b)of Section 5.01 and upon demand of the Trustee, the Company will pay to theTrustee, for the benefit of the holders of the Debt Securities, the wholeamount that then shall have become due and payable on all Debt Securities,including Deferred Interest accrued on the Debt Securities; and, in additionthereto, such further amount as shall be sufficient to cover the costs andexpenses of collection, including a reasonable compensation to the Trustee, itsagents, attorneys and counsel, and any other amounts due to the Trustee underSection 6.06.  In case the Company shallfail forthwith to pay such amounts upon such demand, the Trustee, in its ownname and as trustee of an express trust, shall be entitled and empowered toinstitute any actions or proceedings at law or in equity for the collection ofthe sums so due and unpaid, and may prosecute any such action or proceeding tojudgment or final decree, and may enforce any such judgment or final decree againstthe Company or any other obligor on such Debt Securities and collect in themanner provided by law out of the property of the Company or any other obligoron such Debt Securities wherever situated the moneys adjudged or decreed to bepayable.

 

In case there shall bepending proceedings for the bankruptcy or for the reorganization of the Companyor any other obligor on the Debt Securities under Bankruptcy Law, or in case areceiver or trustee shall have been appointed for the property of the Company orsuch other obligor, or in the case of any other similar judicial proceedingsrelative to the Company or other obligor upon the Debt Securities, or to thecreditors or property of the Company or such other obligor, the Trustee,irrespective of whether the principal of the Debt Securities shall then be dueand payable as therein expressed or by acceleration or otherwise andirrespective of whether the Trustee shall have made any demand pursuant to theprovisions of this Section 5.02, shall be entitled and empowered, byintervention in such proceedings or otherwise, to file and prove a claim orclaims for the whole amount of principal and interest owing and unpaid inrespect of the Debt Securities and, in case of any judicial proceedings, tofile such proofs of claim and other papers or documents as may be necessary oradvisable in order to have the claims of the Trustee (including any claim forreasonable compensation to the Trustee and each predecessor Trustee, and theirrespective agents, attorneys and counsel, and for reimbursement of all otheramounts due to the Trustee under Section 6.06) and of the Securityholdersallowed in such judicial proceedings relative to the Company or any otherobligor on the Debt Securities, or to the creditors or property of the Companyor such other obligor, unless prohibited by applicable law and regulations, tovote on behalf of the holders of the Debt Securities in any election of atrustee or a standby trustee in arrangement, reorganization, liquidation orother bankruptcy or insolvency proceedings or Person performing similarfunctions in comparable proceedings, and to collect and receive any moneys orother property payable or deliverable on any such claims, and to distribute thesame after the deduction of its charges and expenses; and any receiver,assignee or trustee in bankruptcy or reorganization is hereby authorized byeach of the Securityholders to make such payments to the Trustee, and, in theevent that the Trustee shall consent to the making of such payments directly tothe Securityholders, to pay to the Trustee such amounts as shall be sufficientto cover reasonable compensation to the Trustee, each predecessor Trustee andtheir respective agents, attorneys and counsel, and all other amounts due tothe Trustee under Section 6.06.

 

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

 

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

 

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

 

## Section 5.03           Application of Moneys Collected byTrustee.

##  

Any moneys collected bythe Trustee shall be applied in the following order, at the date or dates fixedby the Trustee for the distribution of such moneys, upon presentation of theseveral Debt Securities in respect of which moneys have been collected, andstamping thereon the payment, if only partially paid, and upon surrenderthereof if fully paid:

 

First: To the payment ofcosts and expenses incurred by, and reasonable fees of, the Trustee, itsagents, attorneys and counsel, and of all other amounts due to the Trusteeunder Section 6.06;

 

Second: To the payment ofall Senior Indebtedness of the Company if and to the extent required by ArticleXV;

 

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

 

Fourth: The balance, ifany, to the Company.

 

## Section 5.04           Proceedings by Securityholders.

##  

No holder of any DebtSecurity shall have any right to institute any suit, action or proceeding forany remedy hereunder, unless such holder previously shall have given to theTrustee written notice of an Event of Default with respect to the DebtSecurities and unless the holders of not less than 25% in aggregate principalamount of the Debt Securities then outstanding shall have given the Trustee awritten request to institute such action, suit or proceeding and shall haveoffered to the Trustee such reasonable indemnity as it may require against thecosts, expenses and liabilities to be incurred thereby, and the Trustee for 60days after

 

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its receipt of such notice, request and offer ofindemnity shall have failed to institute any such action, suit or proceeding; provided,that no holder of Debt Securities shall have any right to prejudice the rightsof any other holder of Debt Securities, obtain priority or preference over anyother such holder or enforce any right under this Indenture except in themanner herein provided and for the equal, ratable and common benefit of allholders of Debt Securities.

 

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

 

## Section 5.05           Proceedings by Trustee.

##  

In case of an Event ofDefault, the Trustee may in its discretion proceed to protect and enforce therights vested in it by this Indenture by such appropriate judicial proceedingsas the Trustee shall deem most effectual to protect and enforce any of suchrights, either by suit in equity or by action at law or by proceeding inbankruptcy or otherwise, whether for the specific enforcement of any covenantor agreement contained in this Indenture or in aid of the exercise of any powergranted in this Indenture, or to enforce any other legal or equitable rightvested in the Trustee by this Indenture or by law.

 

## Section 5.06           Remedies Cumulative and Continuing.

##  

Except as otherwiseprovided in Section 2.06, all powers and remedies given by this Article V tothe Trustee or to the Securityholders shall, to the extent permitted by law, bedeemed cumulative and not exclusive of any other powers and remedies availableto the Trustee or the holders of the Debt Securities, by judicial proceedingsor otherwise, to enforce the performance or observance of the covenants andagreements contained in this Indenture or otherwise established with respect tothe Debt Securities, and no delay or omission of the Trustee or of any holderof any of the Debt Securities to exercise any right or power accruing upon anyEvent of Default occurring and continuing as aforesaid shall impair any suchright or power, or shall be construed to be a waiver of any such default or anacquiescence therein; and, subject to the provisions of Section 5.04, everypower and remedy given by this Article V or by law to the Trustee or to theSecurityholders may be exercised from time to time, and as often as shall bedeemed expedient, by the Trustee or by the Securityholders.

 

## Section 5.07           Direction of Proceedings andWaiver of Defaults by Majority of Securityholders.

##  

The holders of a majorityin aggregate principal amount of the Debt Securities affected at the timeoutstanding and, if the Debt Securities are held by the Trust or a trustee ofthe Trust, the holders of a majority in aggregate liquidation amount of theoutstanding Capital Securities of the Trust shall have the right to direct thetime, method and place of conducting any proceeding for any remedy available tothe Trustee, or exercising any trust or power conferred on the Trustee withrespect to such Debt Securities; provided, however, that if theDebt Securities

 

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are held by the Trust or a trustee of the Trust, suchtime, method and place or such exercise, as the case may be, may not be sodirected until the holders of a majority in aggregate liquidation amount of theoutstanding Capital Securities of the Trust shall have directed such time,method and place or such exercise, as the case may be; provided, further,that (subject to the provisions of Section 6.01) the Trustee shall have theright to decline to follow any such direction if the Trustee shall determinethat the action so directed would be unjustly prejudicial to the holders nottaking part in such direction or if the Trustee being advised by counseldetermines that the action or proceeding so directed may not lawfully be takenor if a Responsible Officer of the Trustee shall determine that the action orproceedings so directed would involve the Trustee in personal liability.  Prior to any declaration of acceleration, oripsofacto acceleration, of the maturity of the Debt Securities,the holders of a majority in aggregate principal amount of the Debt Securitiesat the time outstanding may on behalf of the holders of all of the DebtSecurities waive (or modify any previously granted waiver of) any past Defaultor Event of Default and its consequences, except a default (a) in the paymentof principal of or premium, if any, or interest on any of the Debt Securities,(b) in respect of covenants or provisions hereof which cannot be modified oramended without the consent of the holder of each Debt Security affected, or(c)  in respect of the covenantscontained in Section 3.09; provided, however, that if the DebtSecurities are held by the Trust or a trustee of the Trust, such waiver ormodification to such waiver shall not be effective until the holders of amajority in aggregate liquidation amount of the outstanding Capital Securitiesof the Trust shall have consented to such waiver or modification to suchwaiver; provided, further, that if the consent of the holder ofeach outstanding Debt Security is required, such waiver or modification to suchwaiver shall not be effective until each holder of the outstanding CapitalSecurities of the Trust shall have consented to such waiver or modification tosuch waiver.  Upon any such waiver ormodification to such waiver, the Default or Event of Default covered thereby shallbe deemed to be cured for all purposes of this Indenture and the Company, theTrustee and the holders of the Debt Securities shall be restored to theirformer positions and rights hereunder, respectively; but no such waiver ormodification to such waiver shall extend to any subsequent or other Default orEvent of Default or impair any right consequent thereon.  Whenever any Default or Event of Defaulthereunder shall have been waived as permitted by this Section, said Default orEvent of Default shall for all purposes of the Debt Securities and thisIndenture be deemed to have been cured and to be not continuing.

 

## Section 5.08           Notice of Defaults.

##  

The Trustee shall, within90 days after a Responsible Officer of the Trustee shall have actual knowledgeor received written notice of the occurrence of a default with respect to theDebt Securities, mail to all Securityholders, as the names and addresses ofsuch holders appear upon the Debt Security Register, notice of all defaultswith respect to the Debt Securities known to the Trustee, unless such defaultsshall have been cured before the giving of such notice (the term “default” forthe purpose of this Section is hereby defined to be any event specified inSection 5.01, not including periods of grace, if any, provided for therein); provided,that, except in the case of default in the payment of the principal ofor premium, if any, or interest on any of the Debt Securities, the Trusteeshall be protected in withholding such notice if and so long as a ResponsibleOfficer of the Trustee in good faith determines that the withholding of suchnotice is in the interests of the Securityholders.

 

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## Section 5.09           Undertaking to Pay Costs.

##  

All parties to thisIndenture agree, and each holder of any Debt Security by such holder’sacceptance thereof shall be deemed to have agreed, that any court may in itsdiscretion require, in any suit for the enforcement of any right or remedyunder this Indenture, or in any suit against the Trustee for any action takenor omitted by it as Trustee, the filing by any party litigant in such suit ofan undertaking to pay the costs of such suit, and that such court may in itsdiscretion assess reasonable costs, including reasonable attorneys’ fees andexpenses, against any party litigant in such suit, having due regard to themerits and good faith of the claims or defenses made by such party litigant;but the provisions of this Section shall not apply to any suit instituted bythe Trustee, to any suit instituted by any Securityholder, or group ofSecurityholders, holding in the aggregate more than 10% in principal amount ofthe outstanding Debt Securities (or, if such Debt Securities are held by theTrust or a trustee of the Trust, more than 10% in liquidation amount of theoutstanding Capital Securities),to any suit instituted by any Securityholderfor the enforcement of the payment of the principal of or premium, if any, orinterest on any Debt Security against the Company on or after the same shallhave become due and payable or to any suit instituted in accordance withSection 14.12.

 

# ARTICLE VICONCERNING THE TRUSTEE

#  

## Section 6.01           Duties and Responsibilities ofTrustee.

##  

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

 

No provision of thisIndenture shall be construed to relieve the Trustee from liability for its ownnegligent action, its own negligent failure to act or its own willfulmisconduct or bad faith, except that:

 

### (a)           prior to the occurrence of an Eventof Default and after the curing or waiving of all Events of Default which mayhave occurred:

###  

#### (i)            the duties and obligations of theTrustee with respect to the Debt Securities shall be determined solely by theexpress provisions of this Indenture, and the Trustee shall not be liableexcept for the performance of such duties and obligations with respect to theDebt Securities as are specifically set forth in this Indenture, and no impliedcovenants or obligations shall be read into this Indenture against the Trustee;and

 

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#### (ii)           in the absence of bad faith on thepart of the Trustee, the Trustee may conclusively rely, as to the truth of thestatements and the correctness of the opinions expressed therein, upon anycertificates or opinions furnished to the Trustee and conforming to the requirementsof this Indenture; but, in the case of any such certificates or opinions whichby any provision hereof are specifically required to be furnished to theTrustee, the Trustee shall be under a duty to examine the same to determinewhether or not they conform on their face to the requirements of thisIndenture;

####  

### (b)           the Trustee shall not be liable forany error of judgment made in good faith by a Responsible Officer or Officersof the Trustee, unless it shall be proved that the Trustee was negligent inascertaining the pertinent facts;

###  

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

###  

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

###  

None of the provisionscontained in this Indenture shall require the Trustee to expend or risk its ownfunds or otherwise incur personal financial liability in the performance of anyof its duties or in the exercise of any of its rights or powers.

 

## Section 6.02           Reliance on Documents, Opinions,etc.

##  

Except as otherwiseprovided in Section 6.01:

 

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

###  

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

 

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

###  

### (d)           the Trustee shall be under noobligation to exercise any of the rights or powers vested in it by thisIndenture at the request, order or direction of any of the Securityholders,pursuant to the provisions of this Indenture, unless such Securityholders shallhave offered to the Trustee reasonable security or indemnity against the costs,expenses and liabilities which may be incurred therein or thereby;

###  

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

###  

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

###  

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

###  

## Section 6.03           No Responsibility for Recitals,etc.

##  

The recitals containedherein and in the Debt Securities (except in the certificate of authenticationof the Trustee or the Authenticating Agent) shall be taken as the statements ofthe Company, and the Trustee and the Authenticating Agent assume noresponsibility for the correctness of the same.  The Trustee and the Authenticating Agent make no representationsas to the validity or sufficiency of this Indenture or of the Debt Securities.  The Trustee and the Authenticating Agentshall not be accountable for the use or application by the Company of any DebtSecurities or the proceeds of any Debt Securities authenticated and deliveredby the Trustee or the Authenticating Agent in conformity with the provisions ofthis Indenture.

 

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

##  

The Trustee, anyAuthenticating Agent, any Paying Agent, any transfer agent or any Debt Securityregistrar, in its individual or any other capacity, may become the owner orpledgee of Debt Securities with the same rights it would have if it were notTrustee, Authenticating Agent, Paying Agent, transfer agent or Debt Securityregistrar.

 

## Section 6.05           Moneys to be Held in Trust.

##  

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

 

## Section 6.06           Compensation and Expenses ofTrustee.

##  

The Company covenants andagrees to pay to the Trustee from time to time, and the Trustee shall beentitled to, such compensation as shall be agreed to in writing between theCompany and the Trustee (which shall not be limited by any provision of law inregard to the compensation of a trustee of an express trust), and the Companywill pay or reimburse the Trustee upon its written request for all documentedreasonable expenses, disbursements and advances incurred or made by the Trusteein accordance with any of the provisions of this Indenture (including thereasonable compensation and the reasonable expenses and disbursements of itscounsel and of all Persons not regularly in its employ) except any suchexpense, disbursement or advance that arises from its negligence, willfulmisconduct or bad faith.  The Companyalso covenants to indemnify each of the Trustee (including in its individualcapacity) and any predecessor Trustee (and its officers, agents, directors andemployees) for, and to hold it harmless against, any and all loss, damage,claim, liability or expense including taxes (other than taxes based on theincome of the Trustee), except to the extent such loss, damage, claim,liability or expense results from the negligence, willful misconduct or badfaith of such indemnitee, arising out of or in connection with the acceptanceor administration of this trust, including the costs and expenses of defendingitself against any claim or liability in the premises.  The obligations of the Company under thisSection to compensate and indemnify the Trustee and to pay or reimburse theTrustee for documented expenses, disbursements and advances shall constituteadditional indebtedness hereunder.  Suchadditional indebtedness shall be secured by a lien prior to that of the DebtSecurities upon all property and funds held or collected by the Trustee assuch, except funds held in trust for the benefit of the holders of particularDebt Securities.

 

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Without prejudice to anyother rights available to the Trustee under applicable law, when the Trusteeincurs expenses or renders services in connection with an Event of Defaultspecified in clause (d), (e) or (f) of Section 5.01, the expenses (includingthe reasonable charges and expenses of its counsel) and the compensation forthe services are intended to constitute expenses of administration under anyapplicable federal or state bankruptcy, insolvency or other similar law.

 

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

 

Notwithstanding anythingin this Indenture or any Debt Security to the contrary, the Trustee shall haveno obligation whatsoever to advance funds to pay any principal of or intereston or other amounts with respect to the Debt Securities or otherwise advancefunds to or on behalf of the Company.

 

## Section 6.07           Officers’ Certificate as Evidence.

##  

Except as otherwiseprovided in Sections 6.01 and 6.02, whenever in the administration of theprovisions of this Indenture the Trustee shall deem it necessary or desirablethat a matter be proved or established prior to taking or omitting any actionhereunder, such matter (unless other evidence in respect thereof be hereinspecifically prescribed) may, in the absence of negligence, willful misconductor bad faith on the part of the Trustee, be deemed to be conclusively provedand established by an Officers’ Certificate delivered to the Trustee, and suchcertificate, in the absence of negligence, willful misconduct or bad faith onthe part of the Trustee, shall be full warrant to the Trustee for any actiontaken or omitted by it under the provisions of this Indenture upon the faiththereof.

 

## Section 6.08           Eligibility of Trustee.

##  

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

 

The Company may not, normay any Person directly or indirectly controlling, controlled by, or undercommon control with the Company, serve as Trustee, notwithstanding that suchcorporation or national association shall be otherwise eligible and qualifiedunder this Article.

 

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

 

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

 

## Section 6.09           Resignation or Removal of Trustee.

##  

### (a)           The Trustee, or any trustee ortrustees hereafter appointed, may at any time resign by giving written noticeof such resignation to the Company and by mailing notice thereof, at theCompany’s expense, to the holders of the Debt Securities at their addresses asthey shall appear on the Debt Security Register.  Upon receiving such notice of resignation, the Company shallpromptly appoint a successor trustee or trustees by written instrument, induplicate, executed by order of its Board of Directors, one copy of whichinstrument shall be delivered to the resigning Trustee and one copy to thesuccessor Trustee.  If no successorTrustee shall have been so appointed and have accepted appointment within 30days after the mailing of such notice of resignation to the affectedSecurityholders, the resigning Trustee may petition any court of competentjurisdiction for the appointment of a successor Trustee, or any Securityholderwho has been a bona fide holder of a Debt Security or Debt Securities for atleast six months may, subject to the provisions of Section 5.09, on behalf of himselfor herself and all others similarly situated, petition any such court for theappointment of a successor Trustee. Such court may thereupon, after such notice, if any, as it may deemproper and prescribe, appoint a successor Trustee.

###  

### (b)           In case at any time any of thefollowing shall occur:

###  

#### (i)            the Trustee shall fail to complywith the provisions of the last paragraph of Section 6.08 after written requesttherefor by the Company or by any Securityholder who has been a bona fideholder of a Debt Security or Debt Securities for at least six months;

####  

#### (ii)           the Trustee shall cease to beeligible in accordance with the provisions of Section 6.08 and shall fail toresign after written request therefor by the Company or by any suchSecurityholder; or

####  

#### (iii)          the Trustee shall become incapable ofacting, or shall be adjudged bankrupt or insolvent, or a receiver of theTrustee or of its property shall be appointed, or any public officer shall takecharge or control of the Trustee or of its property or affairs for the purposeof rehabilitation, conservation or liquidation,

####  

then, in any such case,the Company may remove the Trustee and appoint a successor Trustee by writteninstrument, in duplicate, executed by order of the Board of Directors, one copyof which instrument shall be delivered to the Trustee so removed and one copyto the successor Trustee, or, subject to the provisions of Section 5.09, if nosuccessor Trustee shall have been so appointed and have accepted appointmentwithin 30 days of the occurrence of any of (i), (ii) or (iii) above,

 

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any Securityholder whohas been a bona fide holder of a Debt Security or Debt Securities for at leastsix months may, on behalf of himself or herself and all others similarlysituated, petition any court of competent jurisdiction for the removal of theTrustee and the appointment of a successor Trustee.  Such court may thereupon, after such notice, if any, as it maydeem proper and prescribe, remove the Trustee and appoint a successor Trustee.

 

### (c)           Upon prior written notice to theCompany and the Trustee, the holders of a majority in aggregate principalamount of the Debt Securities at the time outstanding may at any time removethe Trustee and nominate a successor Trustee, which shall be deemed appointedas successor Trustee unless within ten Business Days after such nomination theCompany objects thereto, in which case or in the case of a failure by suchholders to nominate a successor Trustee, the Trustee so removed or anySecurityholder, upon the terms and conditions and otherwise as in subsection(a) of this Section, may petition any court of competent jurisdiction for anappointment of a successor.

###  

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

###  

## Section 6.10           Acceptance by Successor Trustee.

##  

Any successor Trusteeappointed as provided in Section 6.09 shall execute, acknowledge and deliver tothe Company and to its predecessor Trustee an indenture supplemental heretowhich shall contain such provisions as shall be deemed necessary or desirableto confirm that all of the rights, powers, trusts and duties of the retiringTrustee shall be vested in the successor Trustee, and thereupon the resignationor removal of the retiring Trustee shall become effective and such successorTrustee, without any further act, deed or conveyance, shall become vested withall the rights, powers, duties and obligations with respect to the DebtSecurities of its predecessor hereunder, with like effect as if originallynamed as Trustee herein; but, nevertheless, on the written request of theCompany or of the successor Trustee, the Trustee ceasing to act shall, uponpayment of the amounts then due it pursuant to the provisions of Section 6.06,execute and deliver an instrument transferring to such successor Trustee allthe rights and powers of the Trustee so ceasing to act and shall duly assign,transfer and deliver to such successor Trustee all property and money held bysuch retiring Trustee hereunder.  Uponrequest of any such successor Trustee, the Company shall execute any and allinstruments in writing for more fully and certainly vesting in and confirmingto such successor Trustee all such rights and powers.  Any Trustee ceasing to act shall, nevertheless, retain a lienupon all property or funds held or collected by such Trustee to secure anyamounts then due it pursuant to the provisions of Section 6.06.

 

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

 

In no event shall aretiring Trustee be liable for the acts or omissions of any successor Trusteehereunder.

 

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

 

## Section 6.11                                Successionby Merger, etc.

##  

Any corporation into which the Trustee may be mergedor converted or with which it may be consolidated, or any corporation resultingfrom any merger, conversion or consolidation to which the Trustee shall be aparty, or any corporation succeeding to all or substantially all of thecorporate trust business of the Trustee, shall be the successor of the Trusteehereunder without the execution or filing of any paper or any further act onthe part of any of the parties hereto, provided, that such corporationshall be otherwise eligible and qualified under this Article.

 

In case at the time such successor to the Trusteeshall succeed to the trusts created by this Indenture any of the DebtSecurities shall have been authenticated but not delivered, any such successorto the Trustee may adopt the certificate of authentication of any predecessorTrustee, and deliver such Debt Securities so authenticated; and in case at thattime any of the Debt Securities shall not have been authenticated, anysuccessor to the Trustee may authenticate such Debt Securities either in thename of any predecessor hereunder or in the name of the successor Trustee; andin all such cases such certificates shall have the full force which it isanywhere in the Debt Securities or in this Indenture provided that thecertificate of the Trustee shall have; provided, however, thatthe right to adopt the certificate of authentication of any predecessor Trusteeor authenticate Debt Securities in the name of any predecessor Trustee shallapply only to its successor or successors by merger, conversion orconsolidation.

 

## Section 6.12                                AuthenticatingAgents.

##  

There may be one or more Authenticating Agentsappointed by the Trustee upon the request of the Company with power to act onits behalf and subject to its direction in the authentication and delivery ofDebt Securities issued upon exchange or registration of transfer thereof asfully to all intents and purposes as though any such Authenticating Agent hadbeen expressly authorized to authenticate and deliver Debt Securities; provided,however, that the Trustee shall have no liability to the Company for anyacts or omissions of the Authenticating Agent with respect to theauthentication and delivery of Debt Securities.  Any such Authenticating Agent shall at all times be a corporationorganized and doing business under the laws of the United States or of anystate thereof or of the District of Columbia authorized under such laws to actas Authenticating Agent, having a combined capital and surplus of at least$50,000,000 and being subject to supervision or examination by federal, stateor District of Columbia authority.  Ifsuch corporation publishes reports of condition at least annually pursuant tolaw or the requirements of such authority, then for the purposes of thisSection the combined capital and surplus of such corporation shall be deemed tobe its combined capital and surplus as set forth in its most recent report ofcondition so published.  If at any timean Authenticating

 

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Agent shall cease to be eligible in accordance withthe provisions of this Section, it shall resign immediately in the manner andwith the effect herein specified in this Section.

 

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

 

Any Authenticating Agent may at any time resign bygiving written notice of resignation to the Trustee and to the Company.  The Trustee may at any time terminate theagency of any Authenticating Agent with respect to the Debt Securities bygiving written notice of termination to such Authenticating Agent and to theCompany.  Upon receiving such a noticeof resignation or upon such a termination, or in case at any time any AuthenticatingAgent shall cease to be eligible under this Section, the Trustee may, and uponthe request of the Company shall, promptly appoint a successor AuthenticatingAgent eligible under this Section, shall give written notice of suchappointment to the Company and shall mail notice of such appointment to allholders of Debt Securities as the names and addresses of such holders appear onthe Debt Security Register.  Anysuccessor Authenticating Agent, upon acceptance of its appointment hereunder,shall become vested with all rights, powers, duties and responsibilities of itspredecessor hereunder, with like effect as if originally named asAuthenticating Agent herein.

 

The Company agrees to pay to any Authenticating Agentfrom time to time reasonable compensation for its services.  Any Authenticating Agent shall have noresponsibility or liability for any action taken by it as such in accordancewith the directions of the Trustee.

 

# ARTICLE VII

# CONCERNING THE SECURITYHOLDERS

#  

## Section 7.01                                Actionby Securityholders.

##  

Whenever in this Indenture it is provided that theholders of a specified percentage in aggregate principal amount of the DebtSecurities or aggregate liquidation amount of the Capital Securities may takeany action (including the making of any demand or request, the giving of anynotice, consent or waiver or the taking of any other action), the fact that atthe time of taking any such action the holders of such specified percentagehave joined therein may be evidenced (a) by any instrument or any number ofinstruments of similar tenor executed by such Securityholders or holders ofCapital Securities, as the case may be, in person or by agent or proxyappointed in writing, or (b) by the record of such holders of Debt Securitiesvoting in favor thereof at any meeting of such Securityholders duly called andheld in accordance with the provisions of Article VIII or of such holders ofCapital Securities duly called and held in accordance with the provisions ofthe Declaration, or (c) by a combination of such instrument or instruments andany such record of such a meeting of such Securityholders or holders of CapitalSecurities, as the case may be, or (d) by any other method the Trustee deemssatisfactory.

 

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

 

## Section 7.02                                Proofof Execution by Securityholders.

##  

Subject to the provisions of Sections 6.01, 6.02 and8.05, proof of the execution of any instrument by a Securityholder or suchSecurityholder’s agent or proxy shall be sufficient if made in accordance withsuch reasonable rules and regulations as may be prescribed by the Trustee or insuch manner as shall be satisfactory to the Trustee.  The ownership of Debt Securities shall be proved by the DebtSecurity Register or by a certificate of the Debt Security registrar.  The Trustee may require such additionalproof of any matter referred to in this Section as it shall deem necessary.

 

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

 

## Section 7.03                                WhoAre Deemed Absolute Owners.

##  

Prior to due presentment for registration of transferof any Debt Security, the Company, the Trustee, any Authenticating Agent, anyPaying Agent, any transfer agent and any Debt Security registrar may deem thePerson in whose name such Debt Security shall be registered upon the DebtSecurity Register to be, and may treat such Person as, the absolute owner ofsuch Debt Security (whether or not such Debt Security shall be overdue) for thepurpose of receiving payment of or on account of the principal of and premium,if any, and interest on such Debt Security and for all other purposes; and noneof the Company, the Trustee, any Authenticating Agent, any Paying Agent, anytransfer agent or any Debt Security registrar shall be affected by any noticeto the contrary.  All such payments somade to any holder for the time being or upon such holder’s order shall bevalid, and, to the extent of the sum or sums so paid, effectual to satisfy anddischarge the liability for moneys payable upon any such Debt Security.

 

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## Section 7.04                                DebtSecurities Owned by Company Deemed Not Outstanding.

##  

In determining whether the holders of the requisiteaggregate principal amount of Debt Securities have concurred in any direction,consent or waiver under this Indenture, Debt Securities which are owned by theCompany or any other obligor on the Debt Securities or by any Person directlyor indirectly controlling or controlled by or under direct or indirect commoncontrol with the Company (other than the Trust) or any other obligor on theDebt Securities shall be disregarded and deemed not to be outstanding for thepurpose of any such determination, provided, that for the purposes ofdetermining whether the Trustee shall be protected in relying on any suchdirection, consent or waiver, only Debt Securities which a Responsible Officerof the Trustee actually knows are so owned shall be so disregarded.  Debt Securities so owned which have beenpledged in good faith may be regarded as outstanding for the purposes of thisSection if the pledgee shall establish to the satisfaction of the Trustee thepledgee’s right to vote such Debt Securities and that the pledgee is not theCompany or any such other obligor or Person directly or indirectly controllingor controlled by or under direct or indirect common control with the Company orany such other obligor.  In the case ofa dispute as to such right, any decision by the Trustee taken upon the adviceof counsel shall be full protection to the Trustee.

 

## Section 7.05                                Revocationof Consents; Future Holders Bound.

##  

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

 

# ARTICLE VIII

# SECURITYHOLDERS’ MEETINGS

#  

## Section 8.01                                Purposesof Meetings.

##  

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

 

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

 

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

###  

### (b)                                 toremove the Trustee and nominate a successor trustee pursuant to the provisionsof Article VI;

###  

### (c)                                  toconsent to the execution of an indenture or indentures supplemental heretopursuant to the provisions of Section 9.02; or

###  

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

###  

## Section 8.02                                Callof Meetings by Trustee.

##  

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

 

## Section 8.03                                Callof Meetings by Company or Securityholders.

##  

In case at any time the Company pursuant to a BoardResolution, or the holders of at least 10% in aggregate principal amount of theDebt Securities, as the case may be, then outstanding, shall have requested theTrustee to call a meeting of Securityholders, by written request setting forthin reasonable detail the action proposed to be taken at the meeting, and theTrustee shall not have mailed the notice of such meeting within 20 days afterreceipt of such request, then the Company or such Securityholders may determinethe time and the place in Topeka, Kansas for such meeting and may call suchmeeting to take any action authorized in Section 8.01, by mailing noticethereof as provided in Section 8.02.

 

## Section 8.04                                Qualificationsfor Voting.

##  

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

 

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## Section 8.05                                Regulations.

##  

Notwithstanding any other provisions of thisIndenture, the Trustee may make such reasonable regulations as it may deemadvisable for any meeting of Securityholders, in regard to proof of the holdingof Debt Securities and of the appointment of proxies, and in regard to theappointment and duties of inspectors of votes, the submission and examinationof proxies, certificates and other evidence of the right to vote, and suchother matters concerning the conduct of the meeting as it shall deemappropriate.

 

The Trustee shall, by an instrument in writing,appoint a temporary chairman of the meeting, unless the meeting shall have beencalled by the Company or by Securityholders as provided in Section 8.03, inwhich case the Company or the Securityholders calling the meeting, as the casemay be, shall in like manner appoint a temporary chairman. A permanent chairmanand a permanent secretary of the meeting shall be elected by majority vote atthe meeting.

 

Subject to the provisions of Section 7.04, at anymeeting each holder of Debt Securities with respect to which such meeting isbeing held or proxy therefor shall be entitled to one vote for each $1,000principal amount of Debt Securities held or represented by such holder; provided,however, that no vote shall be cast or counted at any meeting in respectof any Debt Security challenged as not outstanding and ruled by the chairman ofthe meeting to be not outstanding.  Thechairman of the meeting shall have no right to vote other than by virtue ofDebt Securities held by such chairman or instruments in writing as aforesaidduly designating such chairman as the Person to vote on behalf of otherSecurityholders.  Any meeting ofSecurityholders duly called pursuant to the provisions of Section 8.02 or 8.03may be adjourned from time to time by a majority of those present, whether ornot constituting a quorum, and the meeting may be held as so adjourned withoutfurther notice.

 

## Section 8.06                                Voting.

##  

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

 

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

 

## Section 8.07                                Quorum;Actions.

##  

The Persons entitled to vote a majority in aggregateprincipal amount of the Debt Securities then outstanding shall constitute aquorum for a meeting of Securityholders; provided, however, thatif any action is to be taken at such meeting with respect to a consent, waiver,request, demand, notice, authorization, direction or other action which may begiven by the holders of not less than a specified percentage in aggregateprincipal amount of the Debt Securities then outstanding, the Persons holdingor representing such specified percentage in aggregate principal amount of theDebt Securities then outstanding will constitute a quorum.  In the absence of a quorum within 30 minutesof the time appointed for any such meeting, the meeting shall, if convened atthe request of Securityholders, be dissolved. In any other case, the meeting may be adjourned for a period of not lessthan 10 days as determined by the permanent chairman of the meeting prior tothe adjournment of such meeting.  In theabsence of a quorum at any such adjourned meeting, such adjourned meeting maybe further adjourned for a period of not less than 10 days as determined by thepermanent chairman of the meeting prior to the adjournment of such adjournedmeeting.  Notice of the reconvening ofany adjourned meeting shall be given as provided in Section 8.02, except thatsuch notice need be given only once not less than five days prior to the dateon which the meeting is scheduled to be reconvened.  Notice of the reconvening of an adjourned meeting shall stateexpressly the percentage, as provided above, of the aggregate principal amountof the Debt Securities then outstanding which shall constitute a quorum.

 

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

 

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

 

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# ARTICLE IX

# SUPPLEMENTAL INDENTURES

#  

## Section 9.01                                SupplementalIndentures without Consent of Securityholders.

##  

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

 

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

###  

### (b)                                 toadd to the covenants of the Company such further covenants, restrictions orconditions for the protection of the holders of Debt Securities as the Board ofDirectors shall consider to be for the protection of the holders of such DebtSecurities, and to make the occurrence, or the occurrence and continuance, of aDefault in any of such additional covenants, restrictions or conditions aDefault or an Event of Default permitting the enforcement of all or any of theseveral remedies provided in this Indenture as herein set forth; provided,however, that in respect of any such additional covenant, restriction orcondition such supplemental indenture may provide for a particular period ofgrace after Default (which period may be shorter or longer than that allowed inthe case of other Defaults) or may provide for an immediate enforcement uponsuch Default or may limit the remedies available to the Trustee upon suchdefault;

###  

### (c)                                  tocure any ambiguity or to correct or supplement any provision contained hereinor in any supplemental indenture which may be defective or inconsistent withany other provision contained herein or in any supplemental indenture, or tomake such other provisions in regard to matters or questions arising under thisIndenture, provided, that any such action shall not adversely affect theinterests of the holders of the Debt Securities then outstanding;

###  

### (d)                                 toadd to, delete from, or revise the terms of Debt Securities, including, withoutlimitation, any terms relating to the issuance, exchange, registration ortransfer of Debt Securities, including to provide for transfer procedures andrestrictions substantially similar to those applicable to the Capital Securities,as required by Section 2.05 (for purposes of assuring that no registration ofDebt Securities is required under the Securities Act), provided, thatany such action shall not adversely affect the interests of the holders of theDebt Securities then outstanding (it being understood, for purposes of thisproviso, that transfer restrictions on Debt Securities substantially similar tothose applicable to Capital Securities shall not be deemed to adversely affectthe holders of the Debt Securities);

###  

### (e)                                  toevidence and provide for the acceptance of appointment hereunder by a successorTrustee with respect to the Debt Securities and to add to or change any of theprovisions of this Indenture as shall be necessary to provide for or facilitatethe administration of the trusts hereunder by more than one Trustee, pursuantto the requirements of Section 6.10;

 

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### (f)                                    tomake any change (other than as elsewhere provided in this Section) that doesnot adversely affect the rights of any Securityholder in any material respect;or

###  

### (g)                                 toprovide for the issuance of and establish the form and terms and conditions ofthe Debt Securities, to establish the form of any certifications required to befurnished pursuant to the terms of this Indenture or the Debt Securities, or toadd to the rights of the holders of Debt Securities.

###  

The Trustee is hereby authorized to join with theCompany in the execution of any such supplemental indenture, to make anyfurther appropriate agreements and stipulations which may be therein containedand to accept the conveyance, transfer and assignment of any propertythereunder, but the Trustee shall not be obligated to, but may in itsdiscretion, enter into any such supplemental indenture which affects theTrustee’s own rights, duties or immunities under this Indenture or otherwise.

 

Any supplemental indenture authorized by theprovisions of this Section may be executed by the Company and the Trusteewithout the consent of the holders of any of the Debt Securities at the timeoutstanding, notwithstanding any of the provisions of Section 9.02.

 

## Section 9.02                                SupplementalIndentures with Consent of Securityholders.

##  

With the consent (evidenced as provided in Section7.01) of the holders of a majority in aggregate principal amount of the DebtSecurities at the time outstanding affected by such supplemental indenture, theCompany, when authorized by a Board Resolution, and the Trustee may from timeto time and at any time enter into an indenture or indentures supplementalhereto (which shall conform to the provisions of the Trust Indenture Act, thenin effect, applicable to indentures qualified thereunder) for the purpose ofadding any provisions to or changing in any manner or eliminating any of the provisionsof this Indenture or of any supplemental indenture or of modifying in anymanner the rights of the holders of the Debt Securities; provided, however,that no such supplemental indenture shall, without the consent of the holdersof each Debt Security then outstanding and affected thereby, (i) change theMaturity Date of any Debt Security, or reduce the principal amount thereof orany premium thereon, or reduce the rate (or manner of calculation of the rate)or extend the time of payment of interest thereon, or reduce (other than as aresult of the maturity or earlier redemption of any such Debt Security inaccordance with the terms of this Indenture and such Debt Security) or increasethe aggregate principal amount of Debt Securities then outstanding, or changeany of the redemption provisions, or make the principal thereof or any interestor premium thereon payable in any coin or currency other than United StatesDollars, or impair or affect the right of any Securityholder to institute suitfor payment thereof, or (ii) reduce the aforesaid percentage of Debt Securitiesthe holders of which are required to consent to any such supplementalindenture; and provided, further, that if the Debt Securities areheld by the Trust or the trustee of the Trust, such supplemental indentureshall not be effective until the holders of a majority in aggregate liquidationamount of the outstanding Capital Securities shall have consented to suchsupplemental indenture; provided, further, that if the consent ofthe Securityholder of each outstanding Debt Security is required, suchsupplemental indenture shall not be effective until

 

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each holder of the outstanding Capital Securitiesshall have consented to such supplemental indenture.

 

Upon the request of the Company accompanied by a BoardResolution authorizing the execution of any such supplemental indenture, andupon the filing with the Trustee of evidence of the consent of Securityholders(and holders of Capital Securities, if required) as aforesaid, the Trusteeshall join with the Company in the execution of such supplemental indentureunless such supplemental indenture affects the Trustee’s own rights, duties orimmunities under this Indenture or otherwise, in which case the Trustee may inits discretion, but shall not be obligated to, enter into such supplementalindenture.

 

Promptly after the execution by the Company and theTrustee of any supplemental indenture pursuant to the provisions of thisSection, the Trustee shall transmit by mail, first class postage prepaid, anotice, prepared by the Company, setting forth in general terms the substanceof such supplemental indenture, to the Securityholders as their names andaddresses appear upon the Debt Security Register.  Any failure of the Trustee to mail such notice, or any defecttherein, shall not, however, in any way impair or affect the validity of anysuch supplemental indenture.

 

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

 

## Section 9.03                                Effectof Supplemental Indentures.

##  

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

 

## Section 9.04                                Notationon Debt Securities.

##  

Debt Securities authenticated and delivered after theexecution of any supplemental indenture pursuant to the provisions of thisArticle IX may bear a notation as to any matter provided for in suchsupplemental indenture.  If the Companyor the Trustee shall so determine, new Debt Securities so modified as toconform, in the opinion of the Board of Directors of the Company, to anymodification of this Indenture contained in any such supplemental indenture maybe prepared and executed by the Company, authenticated by the Trustee or theAuthenticating Agent and delivered in exchange for the Debt Securities thenoutstanding.

 

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## Section 9.05                                Evidenceof Compliance of Supplemental Indenture to be Furnished to Trustee.

##  

The Trustee, subject to the provisions of Sections6.01 and 6.02, shall, in addition to the documents required by Section 14.06,receive an Officers’ Certificate as conclusive evidence that any supplementalindenture executed pursuant hereto complies with the requirements of thisArticle IX.  The Trustee shall alsoreceive an Opinion of Counsel as conclusive evidence that any supplementalindenture executed pursuant to this Article IX is authorized or permitted by,and conforms to, the terms of this Article IX and that it is proper for theTrustee under the provisions of this Article IX to join in the executionthereof.

 

# ARTICLE X

# REDEMPTION OF SECURITIES

#  

## Section 10.01                          OptionalRedemption.

##  

The Company shall have the right, subject to thereceipt by the Company of the prior approval from the Federal Reserve, if thenrequired under applicable capital guidelines or policies of the FederalReserve, to redeem the Debt Securities, in whole or (provided that all accruedand unpaid interest has been paid on all Debt Securities for all InterestPeriods terminating on or prior to such date) from time to time in part, on anyInterest Payment Date on or after January 23, 2009 (each, an “OptionalRedemption Date”), at the Optional Redemption Price.

 

## Section 10.02                          SpecialEvent Redemption.

##  

If a Special Event shall occur and be continuing, theCompany shall have the right, subject to the receipt by the Company of priorapproval from the Federal Reserve, if then required under applicable capitalguidelines or policies of the Federal Reserve, to redeem the Debt Securities,in whole but not in part, at any time within 90 days following the occurrenceof such Special Event (the “Special Redemption Date”), at the SpecialRedemption Price.  In the event that theSpecial Redemption Date falls on a day prior to the LIBOR Determination Datefor any Interest Period, then the Company shall be required to pay toSecurityholders, on the Business Day following such LIBOR Determination Date,any additional amount of interest that would have been payable on the SpecialRedemption Date had the amount of interest determined on such LIBORDetermination Date been known on the first day of such Interest Period.

 

## Section 10.03                          Noticeof Redemption; Selection of Debt Securities.

##  

In case the Company shall desire to exercise the rightto redeem all, or, as the case may be, any part of the Debt Securities, it shallfix a date for redemption and shall mail, or cause the Trustee to mail (at theexpense of the Company), a notice of such redemption at least 30 and not morethan 60 days prior to the date fixed for redemption to the holders of DebtSecurities so to be redeemed as a whole or in part at their last addresses asthe same appear on the Debt Security Register. Such mailing shall be by first class mail.  The notice if mailed in the manner herein provided shall beconclusively presumed to have been duly given, whether or not the holderreceives such notice.  In any case,failure to give such notice by mail or any defect in the

 

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notice to the holder of any Debt Security designatedfor redemption as a whole or in part shall not affect the validity of theproceedings for the redemption of any other Debt Security.

 

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

 

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

 

The Company will give the Trustee notice not less than45 nor more than 75 days prior to the date fixed for redemption as to the priceat which the Debt Securities are to be redeemed and the aggregate principalamount of Debt Securities to be redeemed and the Trustee shall select, in suchmanner as in its sole discretion it shall deem appropriate and fair, the DebtSecurities or portions thereof (in integral multiples of $1,000) to beredeemed.

 

## Section 10.04                          Paymentof Debt Securities Called for Redemption.

##  

If notice of redemption has been given as provided inSection 10.03, the Debt Securities or portions of Debt Securities with respectto which such notice has been given shall become due and payable on the relatedOptional Redemption Date or Special Redemption Date (as the case may be) and atthe place or places stated in such notice at the applicable price therefor,together with unpaid interest accrued thereon to said Optional Redemption Dateor the Special Redemption Date (as the case may be), and on and after saidOptional Redemption Date or the Special Redemption Date (as the case may be)(unless the Company shall default in the payment of such Debt Securities at theredemption price, together with unpaid interest accrued thereon to said date)interest on the Debt Securities or portions of Debt Securities so called forredemption shall cease to accrue.  Onpresentation and surrender of such Debt Securities at a place of paymentspecified in said notice, such Debt Securities or the specified portionsthereof shall be paid and redeemed by the Company at the applicable pricetherefor, together with unpaid interest accrued thereon to said OptionalRedemption Date or the Special Redemption Date (as the case may be).

 

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Upon presentation of any Debt Security redeemed inpart only, the Company shall execute and the Trustee shall authenticate andmake available for delivery to the holder thereof, at the expense of theCompany, a new Debt Security or Debt Securities of authorized denominations inprincipal amount equal to the unredeemed portion of the Debt Security sopresented.

 

# ARTICLE XI

# CONSOLIDATION, MERGER, SALE, CONVEYANCEAND LEASE

#  

## Section 11.01                          CompanyMay Consolidate, etc., on Certain Terms.

##  

Nothing contained in this Indenture or in the DebtSecurities shall prevent any consolidation or merger of the Company with orinto any other corporation or corporations (whether or not affiliated with theCompany) or successive consolidations or mergers in which the Company or itssuccessor or successors shall be a party or parties, or shall prevent any sale,conveyance, transfer or other disposition of all or substantially all of theproperty or capital stock of the Company or its successor or successors to anyother corporation (whether or not affiliated with the Company or its successoror successors) authorized to acquire and operate the same; provided, however,that the Company hereby covenants and agrees that (i) upon any suchconsolidation, merger (where the Company is not the surviving corporation),sale, conveyance, transfer or other disposition, the successor entity shall bea corporation organized and existing under the laws of the United States or anystate thereof or the District of Columbia (unless such corporation has (1)agreed to make all payments due in respect of the Debt Securities or, ifoutstanding, the Trust Securities and the Capital Securities Guarantee withoutwithholding or deduction for, or on account of, any taxes, duties, assessmentsor other governmental charges under the laws or regulations of the jurisdictionof organization or residence (for tax purposes) of such corporation or anypolitical subdivision or taxing authority thereof or therein unless required byapplicable law, in which case such corporation shall have agreed to pay suchadditional amounts as shall be required so that the net amounts received andretained by the holders of such Debt Securities or Trust Securities, as thecase may be, after payment of all taxes (including withholding taxes), duties,assessments or other governmental charges, will be equal to the amounts thatsuch holders would have received and retained had no such taxes (includingwithholding taxes), duties, assessments or other governmental charges beenimposed, (2) irrevocably and unconditionally consented and submitted to thejurisdiction of any United States federal court or New York state court, ineach case located in the Borough of Manhattan, The City of New York, in respectof any action, suit or proceeding against it arising out of or in connectionwith this Indenture, the Debt Securities, the Capital Securities Guarantee orthe Declaration and irrevocably and unconditionally waived, to the fullestextent permitted by law, any objection to the laying of venue in any such courtor that any such action, suit or proceeding has been brought in an inconvenientforum and (3) irrevocably appointed an agent in The City of New York forservice of process in any action, suit or proceeding referred to in clause (2)above) and such corporation expressly assumes all of the obligations of theCompany under the Debt Securities, this Indenture, the Capital SecuritiesGuarantee and the Declaration and (ii) after giving effect to any suchconsolidation, merger, sale, conveyance, transfer or other disposition, noDefault or Event of Default shall have occurred and be continuing.

 

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## Section 11.02                          SuccessorEntity to be Substituted.

##  

In case of any such consolidation, merger, sale,conveyance, transfer or other disposition contemplated in Section 11.01 andupon the assumption by the successor corporation, by supplemental indenture, executedand delivered to the Trustee and reasonably satisfactory in form to theTrustee, of the due and punctual payment of the principal of and premium, ifany, and interest on all of the Debt Securities and the due and punctualperformance and observance of all of the covenants and conditions of thisIndenture to be performed or observed by the Company, such successorcorporation shall succeed to and be substituted for the Company, with the sameeffect as if it had been named herein as the Company, and thereupon thepredecessor entity shall be relieved of any further liability or obligationhereunder or upon the Debt Securities. Such successor corporation thereupon may cause to be signed, and mayissue either in its own name or in the name of the Company, any or all of theDebt Securities issuable hereunder which theretofore shall not have been signedby the Company and delivered to the Trustee or the Authenticating Agent; and,upon the order of such successor corporation instead of the Company and subjectto all the terms, conditions and limitations in this Indenture prescribed, theTrustee or the Authenticating Agent shall authenticate and deliver any DebtSecurities which previously shall have been signed and delivered by theofficers of the Company to the Trustee or the Authenticating Agent forauthentication, and any Debt Securities which such successor corporationthereafter shall cause to be signed and delivered to the Trustee or theAuthenticating Agent for that purpose. All the Debt Securities so issued shall in all respects have the samelegal rank and benefit under this Indenture as the Debt Securities theretoforeor thereafter issued in accordance with the terms of this Indenture as thoughall of such Debt Securities had been issued at the date of the executionhereof.

 

## Section 11.03                          Opinionof Counsel to be Given to Trustee.

##  

The Trustee, subject to the provisions of Sections6.01 and 6.02, shall receive, in addition to the Opinion of Counsel required bySection 9.05, an Opinion of Counsel as conclusive evidence that anyconsolidation, merger, sale, conveyance, transfer or other disposition, and anyassumption, permitted or required by the terms of this Article XI complies withthe provisions of this Article XI.

 

# ARTICLE XII

# SATISFACTION AND DISCHARGE OFINDENTURE

#  

## Section 12.01                          Dischargeof Indenture.

##  

When (a) the Company shall deliver to the Trustee forcancellation all Debt Securities theretofore authenticated (other than any DebtSecurities which shall have been destroyed, lost or stolen and which shall havebeen replaced or paid as provided in Section 2.06) and not theretoforecanceled, or (b) all the Debt Securities not theretofore canceled or deliveredto the Trustee for cancellation shall have become due and payable, or are bytheir terms to become due and payable within one year or are to be called forredemption within one year under arrangements satisfactory to the Trustee forthe giving of notice of redemption, and the Company shall deposit with theTrustee, in trust, funds, which shall be immediately due and payable,

 

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sufficient to pay at maturity or upon redemption allof the Debt Securities (other than any Debt Securities which shall have beendestroyed, lost or stolen and which shall have been replaced or paid asprovided in Section 2.06) not theretofore canceled or delivered to the Trusteefor cancellation, including principal and premium, if any, and interest due orto become due to the Maturity Date, any Optional Redemption Date or the SpecialRedemption Date, as the case may be, but excluding, however, the amount of anymoneys for the payment of principal of and premium, if any, or interest on theDebt Securities (1) theretofore repaid to the Company in accordance with theprovisions of Section 12.04, or (2) paid to any state or to the District ofColumbia pursuant to its unclaimed property or similar laws, and if in the caseof either clause (a) or (b) above the Company shall also pay or cause to bepaid all other sums payable hereunder by the Company, then this Indenture shallcease to be of further effect except for the provisions of Sections 2.05, 2.06,3.01, 3.02, 3.04, 6.06, 6.09 and 12.04 hereof, which shall survive until suchDebt Securities shall mature or are redeemed, as the case may be, and are paidin full.  Thereafter, Sections 6.06,6.09 and 12.04 shall survive, and the Trustee, on demand of the Companyaccompanied by an Officers’ Certificate and an Opinion of Counsel, each statingthat all conditions precedent herein provided for relating to the satisfactionand discharge of this Indenture have been complied with, and at the cost andexpense of the Company, shall execute proper instruments acknowledgingsatisfaction of and discharging this Indenture, the Company, however, herebyagreeing to reimburse the Trustee for any costs or expenses thereafterreasonably and properly incurred by the Trustee in connection with thisIndenture or the Debt Securities.

 

## Section 12.02                          DepositedMoneys to be Held in Trust by Trustee.

##  

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

 

## Section 12.03                          PayingAgent to Repay Moneys Held.

##  

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

 

## Section 12.04                          Returnof Unclaimed Moneys.

##  

Any moneys deposited with or paid to the Trustee orany Paying Agent for payment of the principal of and premium, if any, orinterest on Debt Securities and not applied but remaining unclaimed by theholders of Debt Securities for two years after the date upon which theprincipal of and premium, if any, or interest on such Debt Securities, as thecase may be, shall have become due and payable, shall be repaid to the Companyby the Trustee or such Paying Agent on written demand; and the holder of any ofthe Debt Securities shall thereafter

 

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look only to the Company for any payment which suchholder may be entitled to collect and all liability of the Trustee or suchPaying Agent with respect to such moneys shall thereupon cease.

 

# ARTICLE XIII

# IMMUNITY OF INCORPORATORS,STOCKHOLDERS,OFFICERS AND DIRECTORS

#  

## Section 13.01                          Indentureand Debt Securities Solely Corporate Obligations.

##  

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

 

# ARTICLE XIV

# MISCELLANEOUS PROVISIONS

#  

## Section 14.01                          Successors.

##  

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

 

## Section 14.02                          OfficialActs by Successor Entity.

##  

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

 

## Section 14.03                          Surrenderof Company Powers.

##  

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

 

## Section 14.04                          Addressesfor Notices, etc.

##  

Any notice or demand which by any provision of thisIndenture is required or permitted to be given or served by the Trustee or bythe Securityholders on the Company may be

 

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given or served in writing by being deposited postageprepaid by registered or certified mail in a post office letter box addressed(until another address is filed by the Company with the Trustee for suchpurpose) to the Company at 800 Poyntz Avenue, Manhattan, Kansas 66502,Attention: Mark Herpich.  Any notice,direction, request or demand by any Securityholder or the Company to or uponthe Trustee shall be deemed to have been sufficiently given or made, for all purposes,if given or made in writing at the office of Wilmington Trust Company at RodneySquare North, 1100 North Market Street, Wilmington, DE 19890-0001, Attention:Corporate Trust Administration.

 

## Section 14.05                          GoverningLaw.

##  

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

 

## Section 14.06                          Evidenceof Compliance with Conditions Precedent.

##  

Upon any application or demand by the Company to theTrustee to take any action under any of the provisions of this Indenture, theCompany shall furnish to the Trustee an Officers’ Certificate stating that in theopinion of the signers all conditions precedent, if any, provided for in thisIndenture relating to the proposed action have been complied with and anOpinion of Counsel stating that, in the opinion of such counsel, all suchconditions precedent have been complied with (except that no such Opinion ofCounsel is required to be furnished to the Trustee in connection with theauthentication and issuance of Debt Securities).

 

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

 

## Section 14.07                          BusinessDay Convention.

##  

Notwithstanding anything to the contrary containedherein, if any Interest Payment Date, other than the Maturity Date, anyOptional Redemption Date or the Special Redemption Date, falls on a day that isnot a Business Day, then any interest payable will be paid on, and suchInterest Payment Date will be moved to, the next succeeding Business Day, andadditional interest will accrue for each day that such payment is delayed as aresult thereof.  If the Maturity Date,any Optional Redemption Date or the Special Redemption Date falls on a day thatis not a Business Day, then the principal, premium, if any, and/or interestpayable on such date will be paid on the next succeeding Business Day, and noadditional interest will accrue in respect of such payment made on such nextsucceeding Business Day.

 

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## Section 14.08                          Tableof Contents, Headings, etc.

##  

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

 

## Section 14.09                          Executionin Counterparts.

##  

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

 

## Section 14.10                          Separability.

##  

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

 

## Section 14.11                          Assignment.

##  

Subject to Article XI, the Company will have the rightat all times to assign any of its rights or obligations under this Indentureand the Debt Securities to a direct or indirect wholly owned Subsidiary of theCompany; provided, however, that, in the event of any suchassignment, the Company will remain liable for all such obligations. Subject tothe foregoing, this Indenture is binding upon and inures to the benefit of theparties hereto and their respective successors and assigns. This Indenture maynot otherwise be assigned by the parties thereto.

 

## Section 14.12                          Acknowledgmentof Rights.

##  

The Company acknowledges that, with respect to anyDebt Securities held by the Trust or a trustee of the Trust, if such trustee ofthe Trust fails to enforce its rights under this Indenture as the holder ofDebt Securities held as the assets of the Trust after the holders of a majorityin aggregate liquidation amount of the outstanding Capital Securities of theTrust have so directed in writing such trustee, a holder of record of suchCapital Securities may, to the fullest extent permitted by law, institute legalproceedings directly against the Company to enforce such trustee’s rights underthis Indenture without first instituting any legal proceedings against suchtrustee or any other Person. Notwithstanding the foregoing, if an Event of Default has occurred andis continuing and such event is attributable to the failure of the Company topay interest or premium, if any, on or principal of the Debt Securities on thedate such interest, premium, if any, or principal is otherwise due and payable(or, in the case of redemption, on the related Optional Redemption Date or theSpecial Redemption Date (as the case may be)), the Company acknowledges that aholder of outstanding Capital Securities of the Trust may directly institute aproceeding against the Company for enforcement of payment to such holderdirectly of the principal of or premium, if any, or interest on the DebtSecurities having an aggregate

 

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principal amount equal to the aggregate liquidationamount of the Capital Securities of such holder on or after the respective duedate (or Optional Redemption Date or Special Redemption Date (as the case maybe)) specified in the Debt Securities.

 

# ARTICLE XV

# SUBORDINATION OF DEBT SECURITIES

#  

## Section 15.01                          Agreementto Subordinate.

##  

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

 

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

 

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

 

## Section 15.02                          Defaulton Senior Indebtedness.

##  

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

 

In the event that, notwithstanding the foregoing, anypayment shall be received by the Trustee when such payment is prohibited by thepreceding paragraph of this Section, such payment shall, subject to Section15.06, be held in trust for the benefit of, and shall be paid over or deliveredto, the holders of Senior Indebtedness or their respective representatives, orto the trustee or trustees under any indenture pursuant to which any of suchSenior Indebtedness may have been issued, as their respective interests mayappear, but only to the extent that the holders of the Senior Indebtedness (ortheir representative or representatives or trustee) notify the Trustee inwriting within 90 days of such payment of the amounts then due and owing on theSenior Indebtedness and only the amounts specified in such notice to theTrustee shall be paid to the holders of Senior Indebtedness.

 

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## Section 15.03                          Liquidation;Dissolution; Bankruptcy.

##  

Upon any payment by the Company or distribution ofassets of the Company of any kind or character, whether in cash, property orsecurities, to creditors upon any dissolution, winding-up, liquidation orreorganization of the Company, whether voluntary or involuntary or inbankruptcy, insolvency, receivership or other proceedings, all amounts due uponall Senior Indebtedness of the Company shall first be paid in full, or paymentthereof provided for in money in accordance with its terms, before any paymentis made by the Company on the Debt Securities; and upon any such dissolution,winding-up, liquidation or reorganization, any payment by the Company, ordistribution of assets of the Company of any kind or character, whether incash, property or securities, to which the Securityholders or the Trustee wouldbe entitled to receive from the Company, except for the provisions of this ArticleXV, shall be paid by the Company, or by any receiver, trustee in bankruptcy,liquidating trustee, agent or other Person making such payment or distribution,or by the Securityholders or by the Trustee under this Indenture if received bythem or it, directly to the holders of Senior Indebtedness of the Company (prorata to such holders on the basis of the respective amounts of SeniorIndebtedness held by such holders, as calculated by the Company) or theirrepresentative or representatives, or to the trustee or trustees under anyindenture pursuant to which any instruments evidencing such Senior Indebtednessmay have been issued, as their respective interests may appear, to the extentnecessary to pay such Senior Indebtedness in full, in money or money’s worth,after giving effect to any concurrent payment or distribution to or for theholders of such Senior Indebtedness, before any payment or distribution is madeto the Securityholders.

 

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

 

For purposes of this Article XV, the words “cash,property or securities” shall not be deemed to include shares of stock of theCompany as reorganized or readjusted, or securities of the Company or any othercorporation provided for by a plan of reorganization or readjustment, thepayment of which is subordinated at least to the extent provided in thisArticle XV with respect to the Debt Securities to the payment of all SeniorIndebtedness of the Company, that may at the time be outstanding, provided,that (a) such Senior Indebtedness is assumed by the new corporation, if any,resulting from any such reorganization or readjustment, and (b) the rights ofthe holders of such Senior Indebtedness are not, without the consent of suchholders, altered by such reorganization or readjustment.  The consolidation of the Company with, orthe merger of the Company into, another corporation or the liquidation ordissolution of the

 

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Company following the conveyance, transfer or otherdisposition of its property as an entirety, or substantially as an entirety, toanother corporation upon the terms and conditions provided for in Article XI ofthis Indenture shall not be deemed a dissolution, winding-up, liquidation orreorganization for the purposes of this Section if such other corporationshall, as a part of such consolidation, merger, conveyance or transfer, complywith the conditions stated in Article XI of this Indenture.  Nothing in Section 15.02 or in this Sectionshall apply to claims of, or payments to, the Trustee under or pursuant toSection 6.06 of this Indenture.

 

## Section 15.04                          Subrogation.

##  

Subject to the payment in full of all SeniorIndebtedness of the Company, the Securityholders shall be subrogated to therights of the holders of such Senior Indebtedness to receive payments ordistributions of cash, property or securities of the Company applicable to suchSenior Indebtedness until all payments due on the Debt Securities shall be paidin full; and, for the purposes of such subrogation, no payments ordistributions to the holders of such Senior Indebtedness of any cash, propertyor securities to which the Securityholders or the Trustee would be entitledexcept for the provisions of this Article XV, and no payment over pursuant tothe provisions of this Article XV to or for the benefit of the holders of suchSenior Indebtedness by Securityholders or the Trustee, shall, as between theCompany, its creditors other than holders of Senior Indebtedness of theCompany, and the holders of the Debt Securities be deemed to be a payment ordistribution by the Company to or on account of such Senior Indebtedness.  It is understood that the provisions of thisArticle XV are, and are intended, solely for the purposes of defining therelative rights of the holders of the Debt Securities, on the one hand, and theholders of such Senior Indebtedness, on the other hand.

 

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

 

Upon any payment or distribution of assets of theCompany referred to in this Article XV, the Trustee, subject to the provisionsof Article VI of this Indenture, and the Securityholders shall be entitled toconclusively rely upon any order or decree made by any court of competentjurisdiction in which such dissolution, winding-up, liquidation orreorganization proceedings are pending, or a certificate of the receiver,trustee in bankruptcy, liquidation trustee, agent or other Person making suchpayment or distribution, delivered to the Trustee or to the Securityholders,for the purposes of ascertaining the Persons entitled to participate in suchdistribution, the holders of Senior Indebtedness and other indebtedness of theCompany, the

 

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amount thereof or payable thereon, the amount oramounts paid or distributed thereon and all other facts pertinent thereto or tothis Article XV.

 

## Section 15.05                          Trusteeto Effectuate Subordination.

##  

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

 

## Section 15.06                          Noticeby the Company.

##  

The Company shall give prompt written notice to aResponsible Officer of the Trustee at the Principal Office of the Trustee ofany fact known to the Company that would prohibit the making of any payment ofmoneys to or by the Trustee in respect of the Debt Securities pursuant to theprovisions of this Article XV. Notwithstanding the provisions of this Article XV or any other provisionof this Indenture or any Additional Provisions, the Trustee shall not becharged with knowledge of the existence of any facts that would prohibit themaking of any payment of moneys to or by the Trustee in respect of the DebtSecurities pursuant to the provisions of this Article XV unless and until aResponsible Officer of the Trustee at the Principal Office of the Trustee shallhave received written notice thereof from the Company or a holder or holders ofSenior Indebtedness or from any trustee therefor; and before the receipt of anysuch written notice, the Trustee, subject to the provisions of Article VI ofthis Indenture, shall be entitled in all respects to assume that no such factsexist; provided, however, that if the Trustee shall not havereceived the notice provided for in this Section at least two Business Daysprior to the date upon which by the terms hereof any money may become payablefor any purpose (including, without limitation, the payment of the principal ofor premium, if any, or interest on any Debt Security), then, anything hereincontained to the contrary notwithstanding, the Trustee shall have full powerand authority to receive such money and to apply the same to the purposes forwhich they were received, and shall not be affected by any notice to thecontrary that may be received by it within two Business Days prior to suchdate.

 

The Trustee, subject to the provisions of Article VIof this Indenture, shall be entitled to conclusively rely on the delivery to itof a written notice by a Person representing himself or herself to be a holderof Senior Indebtedness of the Company (or a trustee or representative on behalfof such holder) to establish that such notice has been given by a holder ofsuch Senior Indebtedness or a trustee or representative on behalf of any suchholder or holders.  In the event thatthe Trustee determines in good faith that further evidence is required withrespect to the right of any Person as a holder of such Senior Indebtedness toparticipate in any payment or distribution pursuant to this Article XV, theTrustee may request such Person to furnish evidence to the reasonablesatisfaction of the Trustee as to the amount of such Senior Indebtedness heldby such Person, the extent to which such Person is entitled to participate insuch payment or distribution and any other facts pertinent to the rights ofsuch Person under this Article XV, and, if such evidence is not furnished, theTrustee may defer any payment to such Person pending judicial determination asto the right of such Person to receive such payment.

 

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## Section 15.07                          Rightsof the Trustee; Holders of Senior Indebtedness.

##  

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

 

With respect to the holders of Senior Indebtedness ofthe Company, the Trustee undertakes to perform or to observe only such of itscovenants and obligations as are specifically set forth in this Article XV, andno implied covenants or obligations with respect to the holders of such SeniorIndebtedness shall be read into this Indenture or any Additional Provisionsagainst the Trustee.  The Trustee shallnot owe or be deemed to owe any fiduciary duty to the holders of such SeniorIndebtedness and, subject to the provisions of Article VI of this Indenture,the Trustee shall not be liable to any holder of such Senior Indebtedness if itshall pay over or deliver to Securityholders, the Company or any other Personmoney or assets to which any holder of such Senior Indebtedness shall be entitledby virtue of this Article XV or otherwise.

 

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

 

## Section 15.08                          SubordinationMay Not Be Impaired.

##  

No right of any present or future holder of any SeniorIndebtedness of the Company to enforce subordination as herein provided shallat any time in any way be prejudiced or impaired by any act or failure to acton the part of the Company, or by any act or failure to act, in good faith, byany such holder, or by any noncompliance by the Company, with the terms,provisions and covenants of this Indenture, regardless of any knowledge thereofthat any such holder may have or otherwise be charged with.

 

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

 

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

 

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

 
|   | LANDMARK BANCORP, INC.     |
|--------|----------------------------|
|   |                       |
|   |                       |
|   | By:                        |   |   |
|   |                       | Name: |
|   |                       | Title: |
|   |                       |
|   |                       |
|   | WILMINGTON TRUST  COMPANY, |
|   |                       | as Trustee |
|   |                       |
|   |                       |
|   | By:                        |   |   |
|   |                       | Name: |
|   |                       | Title: |
|        |                            |  |  |  |

 

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EXHIBIT A

 

FORM OF DEBTSECURITY

 

[FORM OF FACE OFSECURITY]

 

**THISSECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLESECURITIES LAWS.  NEITHER THIS SECURITYNOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OFSUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.  THE HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATIONHEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, AGREES TOOFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR ANY INTEREST ORPARTICIPATION HEREIN PRIOR TO THE DATE WHICH IS THE LATER OF (i) TWO YEARS (ORSUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE SECURITIESACT) AFTER THE LATER OF (Y) THE DATE OF ORIGINAL ISSUANCE HEREOF AND (Z) THELAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE (AS DEFINED IN RULE 405 UNDERTHE SECURITIES ACT) OF THE COMPANY WAS THE HOLDER OF THIS SECURITY OR SUCHINTEREST OR PARTICIPATION (OR ANY PREDECESSOR THERETO) AND (ii) SUCH LATERDATE, IF ANY, AS MAY BE REQUIRED BY ANY SUBSEQUENT CHANGE IN APPLICABLE LAW,ONLY (A) TO THE COMPANY, (B) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE144A”), TO A PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIEDINSTITUTIONAL BUYER”, AS DEFINED IN RULE 144A, THAT PURCHASES FOR ITS OWNACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE ISGIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TOAN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO AN“ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3), (7)OR (8) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY ORSUCH INTEREST OR PARTICIPATION FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCHAN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOROFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIESACT, (D) PURSUANT TO OFFERS AND SALES TO NON-US PERSONS THAT OCCUR OUTSIDE THEUNITED STATES PURSUANT TO REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANTTO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THESECURITIES ACT, SUBJECT TO THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE ORTRANSFER PURSUANT TO CLAUSE (C) OR (E) ABOVE TO REQUIRE THE DELIVERY OF ANOPINION OF COUNSEL, CERTIFICATION AND/OR OTHER**

 

A-1

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**INFORMATIONSATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BEOBTAINED FROM THE COMPANY.  THE HOLDEROF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, BY ITS ACCEPTANCEHEREOF OR THEREOF, AS THE CASE MAY BE, AGREES THAT IT WILL COMPLY WITH THEFOREGOING RESTRICTIONS.**

 

**THEHOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, BY ITSACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, ALSO AGREES, REPRESENTS ANDWARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OROTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOMESECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNALREVENUE CODE OF 1986, AS AMENDED (THE “CODE”) (EACH A “PLAN”), OR AN ENTITYWHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’SINVESTMENT IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAYACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, UNLESSSUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDERU.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60,91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE ANDHOLDING OF THIS SECURITY OR SUCH INTEREST OR PARTICIPATION IS NOT PROHIBITED BYSECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASEOR HOLDING.  ANY PURCHASER OR HOLDER OFTHIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN WILL BE DEEMED TO HAVEREPRESENTED BY ITS PURCHASE AND HOLDING HEREOF OR THEREOF, AS THE CASE MAY BE,THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OFSECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE ISAPPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLANOR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFITPLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE AND HOLDING WILLNOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVEEXEMPTION.**

 

**INCONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY WILL DELIVER TO THEREGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BEREQUIRED BY THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THEFOREGOING RESTRICTIONS.**

 

**THISSECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS OF$100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF.  ANY ATTEMPTED TRANSFER OF THIS SECURITY IN**

 

A-2

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**DENOMINATIONSOF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECTWHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDEROF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN FOR ANY PURPOSE,INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS SECURITY ORSUCH INTEREST OR PARTICIPATION, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMEDTO HAVE NO INTEREST WHATSOEVER IN THIS SECURITY OR ANY INTEREST ORPARTICIPATION HEREIN.**

 

**THISOBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANYAGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCECORPORATION (THE “FDIC”).  THISOBLIGATION IS SUBORDINATED TO THE CLAIMS OF THE DEPOSITORS AND THE CLAIMS OFGENERAL AND SECURED CREDITORS OF THE COMPANY, IS INELIGIBLE AS COLLATERAL FOR ALOAN BY THE COMPANY OR ANY OF ITS SUBSIDIARIES AND IS NOT SECURED.**

 

Floating RateJunior Subordinated Debt Security due 2034

of

LANDMARK BANCORP,INC.

 

Landmark Bancorp, Inc., a bank holding companyincorporated in Delaware (the “Company”, which term includes any successorpermitted under the Indenture (as defined herein)), for value received,promises to pay to Wilmington Trust Company, not in its individual capacity butsolely as Institutional Trustee for Landmark Capital Trust I, a Delawarestatutory trust, or registered assigns, the principal amount ofEIGHT MILLION TWO HUNDRED FORTY-EIGHT THOUSAND Dollars ($8,248,000)on January 23, 2034 (the “Maturity Date”) (or any Optional Redemption Dateor the Special Redemption Date, each as defined herein, or any earlier date ofacceleration of the maturity of this Debt Security), and to pay interest on theoutstanding principal amount of this Debt Security from December 19, 2003,or from the most recent Interest Payment Date (as defined below) to whichinterest has been paid or duly provided for, quarterly (subject to deferral asset forth herein) in arrears on January 23, April 23, July 23and October 23 of each year, commencing on April 23, 2004 (each, an“Interest Payment Date”), at a floating rate per annum, which, with respect toany Interest Period (as defined in the Indenture), will be equal to LIBOR (asdefined in the Indenture), as determined on the LIBOR Determination Date (asdefined in the Indenture) for such Interest Period, plus, from, and including,March 18, 2004, 2.85% (the “Interest Rate”) (provided that the InterestRate for any Interest Period may not exceed the highest rate permitted by NewYork law, as the same may be modified by United States law of generalapplication) until the principal hereof shall have been paid or duly providedfor, and on any overdue principal and (without duplication and to the extentthat payment of such interest is enforceable under applicable law) on anyoverdue installment of interest at an annual rate equal to the then applicableInterest Rate, compounded quarterly. The amount of interest payable for any Interest Period shall be computedon the basis of a 360-day year and the actual number of days elapsed in suchInterest Period.

 

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

 

Payment of the principal of and premium, if any, andinterest on this Debt Security due on the Maturity Date, any OptionalRedemption Date or the Special Redemption Date, as the case may be, shall bemade in immediately available funds against presentation and surrender of thisDebt Security at the office or agency of the Trustee maintained for thatpurpose in Wilmington, Delaware, or at the office or agency of any other PayingAgent appointed by the Company maintained for that purpose in Wilmington,Delaware or Topeka, Kansas.  Payment ofinterest on this Debt Security due on any Interest Payment Date other than theMaturity Date, any Optional Redemption Date or the Special Redemption Date, asthe case may be, shall be made at the option of the Company by check mailed tothe holder thereof at such address as shall appear in the Debt SecurityRegister or by wire transfer of immediately available funds to an accountappropriately designated by the holder hereof. Notwithstanding the foregoing, so long as the holder of this DebtSecurity is the Institutional Trustee, payment of the principal of and premium,if any, and interest on this Debt Security shall be made in immediatelyavailable funds when due at such place and to such account as may be designatedby the Institutional Trustee.  All paymentsin respect of this Debt Security shall be payable in any coin or currency ofthe United States of America that at the time of payment is legal tender forpayment of public and private debts.

 

Notwithstanding anything to the contrary containedherein, if any Interest Payment Date, other than the Maturity Date, anyOptional Redemption Date or the Special Redemption Date, falls on a day that isnot a Business Day, then any interest payable will be paid on, and suchInterest Payment Date will be moved to, the next succeeding Business Day, andadditional interest will accrue for each day that such payment is delayed as aresult thereof.  If the Maturity Date,any Optional Redemption Date or the Special Redemption Date falls on a day thatis not a Business Day, then the principal, premium, if any, and/or interestpayable on such date will be paid on the next succeeding Business Day, and noadditional interest will accrue in respect of such payment made on such nextsucceeding Business Day.

 

So long as no Event of Default has occurred and iscontinuing, the Company shall have the right, from time to time and withoutcausing an Event of Default, to defer payments of interest on the DebtSecurities by extending the interest payment period on the Debt Securities atany time and from time to time during the term of the Debt Securities, for upto 20 consecutive quarterly periods (each such extended interest paymentperiod, together with all previous and

 

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further consecutive extensions thereof, is referred toherein as an “Extension Period”).  NoExtension Period may end on a date other than an Interest Payment Date orextend beyond the Maturity Date, any Optional Redemption Date or the SpecialRedemption Date, as the case may be. During any Extension Period, interest will continue to accrue on theDebt Securities, and interest on such accrued interest (such accrued interestand interest thereon referred to herein as “Deferred Interest”) will accrue atan annual rate equal to the Interest Rate applicable during such ExtensionPeriod, compounded quarterly from the date such Deferred Interest would havebeen payable were it not for the Extension Period, to the extent permitted byapplicable law.  No interest or DeferredInterest (except any Additional Amounts (as defined in the Indenture) that maybe due and payable) shall be due and payable during an Extension Period, exceptat the end thereof.  At the end of anyExtension Period, the Company shall pay all Deferred Interest then accrued andunpaid on the Debt Securities; provided, however, that during anyExtension Period, the Company may not (i) declare or pay any dividends ordistributions on, or redeem, purchase, acquire, or make a liquidation paymentwith respect to, any of the Company’s capital stock, (ii) make any payment ofprincipal of or premium, if any, or interest on or repay, repurchase or redeemany debt securities of the Company that rank *pari passu* in all respectswith or junior in interest to the Debt Securities or (iii) make any paymentunder any guarantees of the Company that rank in all respects *pari passu*with or junior in respect to the Capital Securities Guarantee (other than (a)repurchases, redemptions or other acquisitions of shares of capital stock ofthe Company (A) in connection with any employment contract, benefit plan orother similar arrangement with or for the benefit of one or more employees,officers, directors or consultants, (B) in connection with a dividendreinvestment or stockholder stock purchase plan or (C) in connection with theissuance of capital stock of the Company (or securities convertible into orexercisable for such capital stock), as consideration in an acquisitiontransaction entered into prior to such Extension Period, (b) as a result of anyexchange or conversion of any class or series of the Company’s capital stock(or any capital stock of a subsidiary of the Company) for any class or seriesof the Company’s capital stock or of any class or series of the Company’s indebtednessfor any class or series of the Company’s capital stock, (c) the purchase offractional interests in shares of the Company’s capital stock pursuant to theconversion or exchange provisions of such capital stock or the security beingconverted or exchanged, (d) any declaration of a dividend in connection withany stockholder’s rights plan, or the issuance of rights, stock or otherproperty under any stockholder’s rights plan, or the redemption or repurchaseof rights pursuant thereto or (e) any dividend in the form of stock, warrants,options or other rights where the dividend stock or the stock issuable uponexercise of such warrants, options or other rights is the same stock as that onwhich the dividend is being paid or ranks *pari passu* with or junior to suchstock).  Prior to the termination of anyExtension Period, the Company may further extend such Extension Period, provided,that no Extension Period (including all previous and further consecutiveextensions that are part of such Extension Period) shall exceed 20 consecutivequarterly periods.  Upon the terminationof any Extension Period and upon the payment of all Deferred Interest, theCompany may commence a new Extension Period, subject to the foregoingrequirements.  The Company must give theTrustee notice of its election to begin or extend an Extension Period at leastone Business Day prior to the regular record date applicable to the nextsucceeding Interest Payment Date.

 

The indebtedness evidenced by this Debt Security is,to the extent provided in the Indenture, subordinate and junior in right ofpayment to the prior payment in full of all Senior

 

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Indebtedness (as defined in the Indenture), and this Debt Security isissued subject to the provisions of the Indenture with respect thereto.  Each holder of this Debt Security, byaccepting the same, (a) agrees to and shall be bound by such provisions, (b)authorizes and directs the Trustee on such holder’s behalf to take such actionas may be necessary or appropriate to acknowledge or effectuate thesubordination so provided and (c) appoints the Trustee such holder’sattorney-in-fact for any and all such purposes.  Each holder hereof, by such holder’s acceptance hereof, herebywaives all notice of the acceptance of the subordination provisions containedherein and in the Indenture by each holder of Senior Indebtedness, whether nowoutstanding or hereafter incurred, and waives reliance by each such holder uponsaid provisions.

 

The Company waives diligence, presentment, demand forpayment, notice of nonpayment, notice of protest, and all other demands andnotices.

 

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

 

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

 

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IN WITNESS WHEREOF, the Company has duly executed thiscertificate.

 
|                                                                                                                                                                                                                                                                                                                            | LANDMARK BANCORP, INC. |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------------------|
|                                                                                                                                                                                                                                                                                                                            |                   |
|                                                                                                                                                                                                                                                                                                                            |                   |
|                                                                                                                                                                                                                                                                                                                            | By:                    |   |
|                                                                                                                                                                                                                                                                                                                            |                   | Name: |
|                                                                                                                                                                                                                                                                                                                            |                   | Title: |
|                                                                                                                                                                                                                                                                                                                            |                   |
|                                                                                                                                                                                                                                                                                                                            |                   |
| Dated:                                        ,             |                   |

 

 

CERTIFICATE OFAUTHENTICATION

 

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

 
|                                                                                                                                                                                                                                                                                                                                                      | WILMINGTON TRUST  COMPANY,                    |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-----------------------------------------------|
|                                                                                                                                                                                                                                                                                                                                                      | not  in its individual capacity but solely as |
|                                                                                                                                                                                                                                                                                                                                                      | the  Trustee                                  |
|                                                                                                                                                                                                                                                                                                                                                      |                                          |
|                                                                                                                                                                                                                                                                                                                                                      |                                          |
|                                                                                                                                                                                                                                                                                                                                                      | By:                                           |   |
|                                                                                                                                                                                                                                                                                                                                                      |                                          | Authorized Officer |
|                                                                                                                                                                                                                                                                                                                                                      |                                          |
|                                                                                                                                                                                                                                                                                                                                                      |                                          |
| Dated:                                        ,                   |                                          |
|                                                                                                                                                                                                                                                                                                                                                           |                                               |  |  |

 

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[FORM OF REVERSEOF SECURITY]

 

This Debt Security is one of a duly authorized seriesof debt securities of the Company (collectively, the “Debt Securities”), allissued or to be issued pursuant to an Indenture (the “Indenture”), dated as ofDecember 19, 2003, duly executed and delivered between the Company andWilmington Trust Company, as Trustee (the “Trustee”), to which Indenture andall indentures supplemental thereto reference is hereby made for a descriptionof the rights, limitations of rights, obligations, duties and immunitiesthereunder of the Trustee, the Company and the holders of the Debt Securitiesof which this Debt Security is a part.

 

Upon the occurrence and continuation of a Tax Event,an Investment Company Event or a Capital Treatment Event (each, a “SpecialEvent”), the Company shall have the right to redeem this Debt Security, at itsoption, in whole with all other Debt Securities but not in part, at any time,within 90 days following the occurrence of such Special Event (the “SpecialRedemption Date”), at the Special Redemption Price (as defined herein).  In the event that the Special RedemptionDate falls on a day prior to the LIBOR Determination Date for any InterestPeriod, then the Company shall be required to pay to Securityholders, on theBusiness Day following such LIBOR Determination Date, any additional amount ofinterest that would have been payable on the Special Redemption Date had theamount of interest determined on such LIBOR Determination Date been known onthe first day of such Interest Period.

 

The Company shall also have the right to redeem thisDebt Security at its option, in whole or (provided that all accrued and unpaidinterest has been paid on all Debt Securities for all Interest Periodsterminating on or prior to such date) from time to time in part, on anyInterest Payment Date on or after January 23, 2009 (each, an “OptionalRedemption Date”), at the Optional Redemption Price (as defined herein).

 

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

 

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

 

“Special Redemption Price” means, with respect to theredemption of this Debt Security following a Special Event, an amount in cashequal to 104.125% of the principal amount of this Debt Security to be redeemedprior to January 23, 2005 and thereafter equal to the percentage of theprincipal amount of this Debt Security that is specified below for the SpecialRedemption Date plus, in each case, unpaid interest accrued thereon to theSpecial Redemption Date:

 

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| **Special Redemption During the 12-Month  Period Beginning January 23,** |   | **Percentage  of Principal Amount** |   |
|--------------------------------------------------------------------------|--------|-------------------------------------|--------|
| 2005                                                                     |   | 103.300                             | %      |
|                                                                     |   |                                |   |
| 2006                                                                     |   | 102.415                             | %      |
|                                                                     |   |                                |   |
| 2007                                                                     |   | 101.650                             | %      |
|                                                                     |   |                                |   |
| 2008                                                                     |   | 100.825                             | %      |
|                                                                     |   |                                |   |
| 2009 and  thereafter                                                     |   | 100.000                             | %      |

 

In case an Event of Default, as defined in theIndenture, shall have occurred and be continuing, the principal of all of theDebt Securities may be declared, and, in certain cases, shall ipsofactobecome, due and payable, and upon any such declaration of acceleration shallbecome due and payable, in each case, in the manner, with the effect andsubject to the conditions provided in the Indenture.

 

The Indenture contains provisions permitting theCompany and the Trustee, with the consent of the holders of a majority inaggregate principal amount of the Debt Securities at the time outstandingaffected thereby, as specified in the Indenture, to execute supplementalindentures for the purpose of adding any provisions to or changing in anymanner or eliminating any of the provisions of the Indenture or of anysupplemental indenture or of modifying in any manner the rights of the holdersof the Debt Securities; provided, however, that no suchsupplemental indenture shall, among other things, without the consent of theholders of each Debt Security then outstanding and affected thereby(i) change the Maturity Date of any Debt Security, or reduce the principalamount thereof or any premium thereon, or reduce the rate (or manner ofcalculation of the rate) or extend the time of payment of interest thereon, orreduce (other than as a result of the maturity or earlier redemption of anysuch Debt Security in accordance with the terms of the Indenture and such DebtSecurity) or increase the aggregate principal amount of Debt Securities thenoutstanding, or change any of the redemption provisions, or make the principalthereof or any interest or premium thereon payable in any coin or currencyother than United States Dollars, or impair or affect the right of any holderto institute suit for payment thereof, or (ii) reduce the aforesaidpercentage of Debt Securities the holders of which are required to consent toany such supplemental indenture.  TheIndenture also contains provisions permitting the holders of a majority inaggregate principal amount of the Debt Securities at the time outstanding, onbehalf of the holders of all the Debt Securities, to waive any past default inthe performance of any of the covenants contained in the Indenture, orestablished pursuant to the Indenture, and its consequences, except (a) adefault in payments due in respect of any of the Debt Securities, (b) inrespect of covenants or provisions of the Indenture which cannot be modified oramended without the consent of the holder of each Debt Security affected, or(c) in respect of the covenants of the Company relating to its ownershipof Common Securities of the Trust.  Anysuch consent or waiver by the holder of this Debt Security (unless revoked asprovided in the Indenture) shall be conclusive and binding upon such holder andupon all future holders and owners of this Debt Security and of any DebtSecurity issued in exchange

 

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herefor or in place hereof (whether by registration oftransfer or otherwise), irrespective of whether or not any notation of suchconsent or waiver is made upon this Debt Security.

 

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

 

As provided in the Indenture and subject to certainlimitations herein and therein set forth, this Debt Security is transferable bythe holder hereof on the Debt Security Register (as defined in the Indenture)of the Company, upon surrender of this Debt Security for registration oftransfer at the office or agency of the Trustee in Wilmington, Delaware, or atany other office or agency of the Company in Wilmington, Delaware or Topeka,Kansas, accompanied by a written instrument or instruments of transfer in formsatisfactory to the Company or the Trustee duly executed by the holder hereofor such holder’s attorney duly authorized in writing, and thereupon one or morenew Debt Securities of authorized denominations and for the same aggregateprincipal amount will be issued to the designated transferee or transferees.  No service charge will be made for any suchregistration of transfer, but the Company or the Trustee may require payment ofa sum sufficient to cover any tax, fee or other governmental charge payable inrelation thereto as specified in the Indenture.

 

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

 

As provided in the Indenture and subject to certainlimitations herein and therein set forth, Debt Securities are exchangeable fora like aggregate principal amount of Debt Securities of different authorizeddenominations, as requested by the holder surrendering the same.

 

The Debt Securities are issuable only in registeredcertificated form without coupons.

 

No recourse shall be had for the payment of theprincipal of or premium, if any, or interest on this Debt Security, or for anyclaim based hereon, or otherwise in respect hereof, or based on or in respectof the Indenture, against any incorporator, stockholder, officer, director,employee or agent, past, present or future, as such, of the Company or of anypredecessor or successor corporation of the Company, whether by virtue of anyconstitution, statute or rule of law, or by the enforcement of any assessmentor penalty or otherwise, all such liability being, by the acceptance hereof andas part of the consideration for the issuance hereof, expressly waived andreleased.

 

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

 

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

 

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