Exhibit 10.42


 


JUNIOR SUBORDINATED INDENTURE


 


 


Between


 


 


GAINSCO, INC.


(as Company)


 


and


 


 


WILMINGTON TRUST COMPANY


(as Trustee)


 


 


dated as of January 13, 2006


 


1





















 


GAINSCO CAPITAL TRUST I


Certain Sections
of this Junior Subordinated Indenture relating


to Sections 310
through 318 of the


Trust Indenture
Act of 1939:


 


	
  Trust Indenture

  	
   

  	
   

  	
   

  	
  Junior
  Subordinated

  
	
  Act Section

  	
   

  	
   

  	
   

  	
  Indenture
  Section

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 310

  	
   

  	
  (a)(1)

  	
   

  	
  6.9

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  6.9

  
	
   

  	
   

  	
  (a)(3)

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
  (a)(4)

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
  (a)(5)

  	
   

  	
  6.9

  
	
   

  	
   

  	
  (b)

  	
   

  	
  6.8, 6.10

  
	
  Section 311

  	
   

  	
  (a)

  	
   

  	
  6.13

  
	
   

  	
   

  	
  (b)

  	
   

  	
  6.13

  
	
   

  	
   

  	
  (b)(2)

  	
   

  	
  7.3(a)

  
	
  Section 312

  	
   

  	
  (a)

  	
   

  	
  7.1, 7.2(a)

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.2(b)

  
	
   

  	
   

  	
  (c)

  	
   

  	
  7.2(c)

  
	
  Section 313

  	
   

  	
  (a)

  	
   

  	
  7.3(a)

  
	
   

  	
   

  	
  (a)(4)

  	
   

  	
  7.3(a)

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.3(b)

  
	
   

  	
   

  	
  (c)

  	
   

  	
  7.3(a)

  
	
   

  	
   

  	
  (d)

  	
   

  	
  7.3(c)

  
	
  Section 314

  	
   

  	
  (a)

  	
   

  	
  7.4

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.4

  
	
   

  	
   

  	
  (c)(1)

  	
   

  	
  1.2

  
	
   

  	
   

  	
  (c)(2)

  	
   

  	
  1.2

  
	
   

  	
   

  	
  (c)(3)

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
  (e)

  	
   

  	
  1.2

  
	
  Section 315

  	
   

  	
  (a)

  	
   

  	
  6.1(a)

  
	
   

  	
   

  	
  (b)

  	
   

  	
  6.2, 7.3

  
	
   

  	
   

  	
  (c)

  	
   

  	
  6.1(b)

  
	
   

  	
   

  	
  (d)

  	
   

  	
  6.1(c)

  
	
   

  	
   

  	
  (e)

  	
   

  	
  5.14

  
	
  Section 316

  	
   

  	
  (a)

  	
   

  	
  5.12

  
	
   

  	
   

  	
  (a)(1)(A)

  	
   

  	
  5.12

  
	
   

  	
   

  	
  (a)(1)(B)

  	
   

  	
  5.13

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
  (b)

  	
   

  	
  5.8

  
	
   

  	
   

  	
  (c)

  	
   

  	
  1.4(f)

  
	
  Section 317

  	
   

  	
  (a)(1)

  	
   

  	
  5.3

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  5.4

  



 


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  (b)

  	
   

  	
  10.3

  
	
  Section 318

  	
   

  	
  (a)

  	
   

  	
  1.7

  



 


	
  Note:

  	
   

  	
  This
  reconciliation and tie shall not, for any purpose, be deemed to be a part of
  the Indenture.

  



 


ii





















 


TABLE OF
CONTENTS


 


	
  ARTICLE I

  	
   

  	
  DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.1.

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
  SECTION 1.2.

  	
   

  	
  Compliance Certificate and Opinions

  	
   

  	
  11

  
	
  SECTION 1.3.

  	
   

  	
  Forms of Documents Delivered to Trustee

  	
   

  	
  11

  
	
  SECTION 1.4.

  	
   

  	
  Acts of Holders

  	
   

  	
  11

  
	
  SECTION 1.5.

  	
   

  	
  Notices, Etc. to Trustee and Company

  	
   

  	
  14

  
	
  SECTION 1.6.

  	
   

  	
  Notice to Holders; Waiver

  	
   

  	
  14

  
	
  SECTION 1.7.

  	
   

  	
  Conflict with Trust Indenture Act

  	
   

  	
  15

  
	
  SECTION 1.8.

  	
   

  	
  Effect of Headings and Table of Contents

  	
   

  	
  15

  
	
  SECTION 1.9.

  	
   

  	
  Successors and Assigns

  	
   

  	
  15

  
	
  SECTION 1.10.

  	
   

  	
  Separability Clause

  	
   

  	
  15

  
	
  SECTION 1.11.

  	
   

  	
  Benefits of Indenture

  	
   

  	
  15

  
	
  SECTION 1.12.

  	
   

  	
  Governing Law

  	
   

  	
  15

  
	
  SECTION 1.13.

  	
   

  	
  Non-Business Days

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  	
  SECURITY FORMS

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.1.

  	
   

  	
  Forms Generally

  	
   

  	
  16

  
	
  SECTION 2.2.

  	
   

  	
  Form of Face of Security

  	
   

  	
  17

  
	
  SECTION 2.3.

  	
   

  	
  Additional Provisions Required in Global Security

  	
   

  	
  17

  
	
  SECTION 2.4.

  	
   

  	
  Form of Trustee’s Certificate of Authentication

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  	
  THE SECURITIES

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.1.

  	
   

  	
  Title and Terms

  	
   

  	
  18

  
	
  SECTION 3.2.

  	
   

  	
  Denominations

  	
   

  	
  21

  
	
  SECTION 3.3.

  	
   

  	
  Execution, Authentication, Delivery and Dating

  	
   

  	
  21

  
	
  SECTION 3.4.

  	
   

  	
  Temporary Securities

  	
   

  	
  22

  
	
  SECTION 3.5.

  	
   

  	
  Global Securities

  	
   

  	
  23

  
	
  SECTION 3.6.

  	
   

  	
  Registration, Transfer and Exchange Generally; Certain
  Transfers and Exchanges

  	
   

  	
  24

  
	
  SECTION 3.7.

  	
   

  	
  Mutilated, Lost and Stolen Securities

  	
   

  	
  26

  
	
  SECTION 3.8.

  	
   

  	
  Payment of Interest and Additional Interest; Interest
  Rights Preserved

  	
   

  	
  27

  
	
  SECTION 3.9.

  	
   

  	
  Persons Deemed Owners

  	
   

  	
  28

  
	
  SECTION 3.10.

  	
   

  	
  Cancellation

  	
   

  	
  29

  
	
  SECTION 3.11.

  	
   

  	
  Computation of Interest

  	
   

  	
  29

  
	
  SECTION 3.12.

  	
   

  	
  Deferrals of Interest Payment Dates

  	
   

  	
  29

  
	
  SECTION 3.13.

  	
   

  	
  Right of Set-Off

  	
   

  	
  31

  
	
  SECTION 3.14.

  	
   

  	
  Agreed Tax Treatment

  	
   

  	
  31

  
	
  SECTION 3.15.

  	
   

  	
  Shortening or Extension of Stated Maturity

  	
   

  	
  31

  
	
  SECTION 3.16.

  	
   

  	
  CUSIP Numbers

  	
   

  	
  31

  



 


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  ARTICLE IV

  	
   

  	
  SATISFACTION AND DISCHARGE

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.1.

  	
   

  	
  Satisfaction and Discharge of Indenture

  	
   

  	
  31

  
	
  SECTION 4.2

  	
   

  	
  Application of Trust Money

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  	
  REMEDIES

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.1.

  	
   

  	
  Events of Default

  	
   

  	
  33

  
	
  SECTION 5.2.

  	
   

  	
  Acceleration of Maturity; Rescission and Annulment

  	
   

  	
  34

  
	
  SECTION 5.3.

  	
   

  	
  Collection of Indebtedness and Suits for Enforcement
  by Trustee

  	
   

  	
  36

  
	
  SECTION 5.4.

  	
   

  	
  Trustee May File Proofs of Claim

  	
   

  	
  36

  
	
  SECTION 5.5.

  	
   

  	
  Trustee May Enforce Claim Without Possession of
  Securities

  	
   

  	
  37

  
	
  SECTION 5.6

  	
   

  	
  Application of Money Collected

  	
   

  	
  37

  
	
  SECTION 5.7

  	
   

  	
  Limitation on Suits

  	
   

  	
  38

  
	
  SECTION 5.8.

  	
   

  	
  Unconditional Right of Holders to Receive Principal,
  Premium and Interest; Direct Action by Holders of Capital Securities

  	
   

  	
  39

  
	
  SECTION 5.9.

  	
   

  	
  Restoration of Rights and Remedies

  	
   

  	
  39

  
	
  SECTION 5.10.

  	
   

  	
  Rights and Remedies Cumulative

  	
   

  	
  39

  
	
  SECTION 5.11.

  	
   

  	
  Delay or Omission Not Waiver

  	
   

  	
  39

  
	
  SECTION 5.12.

  	
   

  	
  Control by Holders

  	
   

  	
  40

  
	
  SECTION 5.13.

  	
   

  	
  Waiver of Past Defaults

  	
   

  	
  40

  
	
  SECTION 5.14.

  	
   

  	
  Undertaking for Costs

  	
   

  	
  41

  
	
  SECTION 5.15.

  	
   

  	
  Waiver of Usury, Stay or Extension Laws

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  	
  THE TRUSTEE

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.1.

  	
   

  	
  Certain Duties and Responsibilities

  	
   

  	
  42

  
	
  SECTION 6.2.

  	
   

  	
  Notice of Defaults

  	
   

  	
  43

  
	
  SECTION 6.3.

  	
   

  	
  Certain Rights of Trustee

  	
   

  	
  43

  
	
  SECTION 6.4.

  	
   

  	
  Not Responsible for Recitals or Issuance of
  Securities

  	
   

  	
  44

  
	
  SECTION 6.5.

  	
   

  	
  May Hold Securities

  	
   

  	
  44

  
	
  SECTION 6.6.

  	
   

  	
  Money Held in Trust

  	
   

  	
  44

  
	
  SECTION 6.7.

  	
   

  	
  Compensation and Reimbursement

  	
   

  	
  44

  
	
  SECTION 6.8.

  	
   

  	
  Disqualification; Conflicting Interests

  	
   

  	
  45

  
	
  SECTION 6.9.

  	
   

  	
  Corporate Trustee Required; Eligibility

  	
   

  	
  46

  
	
  SECTION 6.10.

  	
   

  	
  Resignation and Removal; Appointment of Successor

  	
   

  	
  46

  
	
  SECTION 6.11.

  	
   

  	
  Acceptance of Appointment by Successor

  	
   

  	
  48

  
	
  SECTION 6.12.

  	
   

  	
  Merger, Conversion, Consolidation or Succession to
  Business

  	
   

  	
  49

  
	
  SECTION 6.13.

  	
   

  	
  Preferential Collection of Claims Against Company

  	
   

  	
  49

  
	
  SECTION 6.14.

  	
   

  	
  Appointment of Authenticating Agent

  	
   

  	
  49

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  	
  HOLDER’S LISTS AND REPORTS BY TRUSTEE,
  PAYING AGENT AND COMPANY

  	
   

  	
  51

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.1.

  	
   

  	
  Company to Furnish Trustee Names and Addresses of
  Holders

  	
   

  	
  51

  
	
  SECTION 7.2.

  	
   

  	
  Preservation of Information; Communications to
  Holders

  	
   

  	
  51

  



 


iv





















 


	
  SECTION 7.3.

  	
   

  	
  Reports by Trustee and Paying Agent

  	
   

  	
  52

  
	
  SECTION 7.4.

  	
   

  	
  Reports by Company

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  	
  CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER
  OR LEASE

  	
   

  	
  53

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.1.

  	
   

  	
  Company May Consolidate, Etc., Only on Certain Terms

  	
   

  	
  53

  
	
  SECTION 8.2.

  	
   

  	
  Successor Company Substituted

  	
   

  	
  53

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
   

  	
  SUPPLEMENTAL INDENTURES

  	
   

  	
  54

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.1.

  	
   

  	
  Supplemental Indentures Without Consent of Holders

  	
   

  	
  54

  
	
  SECTION 9.2.

  	
   

  	
  Supplemental Indentures with Consent of Holders

  	
   

  	
  55

  
	
  SECTION 9.3.

  	
   

  	
  Execution of Supplemental Indentures

  	
   

  	
  57

  
	
  SECTION 9.4.

  	
   

  	
  Effect of Supplemental Indentures

  	
   

  	
  57

  
	
  SECTION 9.5.

  	
   

  	
  Conformity with Trust Indenture Act

  	
   

  	
  57

  
	
  SECTION 9.6.

  	
   

  	
  Reference in Securities to Supplemental Indentures

  	
   

  	
  57

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
   

  	
  COVENANTS

  	
   

  	
  57

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.1.

  	
   

  	
  Payment of Principal, Premium and Interest

  	
   

  	
  57

  
	
  SECTION 10.2.

  	
   

  	
  Maintenance of Office or Agency

  	
   

  	
  58

  
	
  SECTION 10.3.

  	
   

  	
  Money for Security Payments to be Held in Trust

  	
   

  	
  58

  
	
  SECTION 10.4.

  	
   

  	
  Statement as to Compliance

  	
   

  	
  59

  
	
  SECTION 10.5.

  	
   

  	
  Waiver of Certain Covenants

  	
   

  	
  60

  
	
  SECTION 10.6.

  	
   

  	
  Additional Sums

  	
   

  	
  60

  
	
  SECTION 10.7.

  	
   

  	
  Additional Covenants

  	
   

  	
  60

  
	
  SECTION 10.8.

  	
   

  	
  Furnishing Annual Information

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
   

  	
  REDEMPTION OF SECURITIES

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.1.

  	
   

  	
  Applicability of This Article

  	
   

  	
  62

  
	
  SECTION 11.2.

  	
   

  	
  Election to Redeem; Notice to Trustee

  	
   

  	
  62

  
	
  SECTION 11.3.

  	
   

  	
  Selection of Securities to be Redeemed

  	
   

  	
  62

  
	
  SECTION 11.4.

  	
   

  	
  Notice of Redemption

  	
   

  	
  63

  
	
  SECTION 11.5.

  	
   

  	
  Deposit of Redemption Price

  	
   

  	
  64

  
	
  SECTION 11.6.

  	
   

  	
  Payment of Securities Called for Redemption

  	
   

  	
  64

  
	
  SECTION 11.7.

  	
   

  	
  Right of Redemption of Securities Initially Issued
  to an Issuer Trust

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
   

  	
  SINKING FUNDS

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
   

  	
  SUBORDINATION OF SECURITIES

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 13.1.

  	
   

  	
  Securities Subordinate to Senior Indebtedness

  	
   

  	
  66

  
	
  SECTION 13.2.

  	
   

  	
  No Payment When Senior Indebtedness in Default;
  Payment Over of Proceeds Upon Dissolution, Etc.

  	
   

  	
  66

  



 


v





















 


	
  SECTION 13.3.

  	
   

  	
  Payment Permitted If No Default

  	
   

  	
  68

  
	
  SECTION 13.4.

  	
   

  	
  Subrogation to Rights of Holders of Senior Indebtedness;
  Etc.

  	
   

  	
  68

  
	
  SECTION 13.5.

  	
   

  	
  Provisions Solely to Define Relative Rights

  	
   

  	
  69

  
	
  SECTION 13.6.

  	
   

  	
  Trustee to Effectuate Subordination

  	
   

  	
  69

  
	
  SECTION 13.7.

  	
   

  	
  No Waiver of Subordination Provisions

  	
   

  	
  69

  
	
  SECTION 13.8.

  	
   

  	
  Notice to Trustee

  	
   

  	
  70

  
	
  SECTION 13.9.

  	
   

  	
  Reliance on Judicial Order or Certificate of Liquidating
  Agent

  	
   

  	
  71

  
	
  SECTION 13.10.

  	
   

  	
  Trustee Not Fiduciary for Holders of Senior Indebtedness

  	
   

  	
  71

  
	
  SECTION 13.11.

  	
   

  	
  Rights of Trustee as Holder of Senior Indebtedness;
  Preservation of Trustee’s Rights

  	
   

  	
  71

  
	
  SECTION 13.12.

  	
   

  	
  Article Applicable to Paying Agents

  	
   

  	
  71

  
	
  SECTION 13.13.

  	
   

  	
  Certain Conversions or Exchanges Deemed Payment

  	
   

  	
  72

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT A.

  	
   

  	
  FORM OF DEBENTURE

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT B.

  	
   

  	
  FORM OF RESTRICTED SECURITIES CERTIFICATE

  	
   

  	
  1

  



 


vi





















 


JUNIOR SUBORDINATED INDENTURE


 


THIS JUNIOR SUBORDINATED INDENTURE, dated as of
January 13, 2006, is between GAINSCO, INC., a Texas corporation, having its
principal office at 3333 Lee Parkway, Suite 1200, Dallas, Texas 75219, and
WILMINGTON TRUST COMPANY, as Trustee, having its principal office at 1100 North
Market Street, Rodney Square North, Wilmington, Delaware 19890-0001 (the “Trustee”).


 


RECITALS OF THE COMPANY


 


The Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of its unsecured junior subordinated debt securities
in one or more series (hereinafter called the “Securities”) of
substantially the tenor hereinafter provided, including Securities issued to
evidence loans made to the Company from the proceeds from the issuance from
time to time by one or more statutory trusts (each an “Issuer Trust”) of
undivided preferred beneficial interests in the assets of such Issuer Trusts
(the “Capital Securities”) and undivided common interests in the assets
of such Issuer Trusts (the “Common Securities” and, collectively with
the Capital Securities, the “Trust Securities”), and to provide the
terms and conditions upon which the Securities are to be authenticated, issued
and delivered; and


 


All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.


 


NOW THEREFORE, THIS INDENTURE WITNESSETH:


 


For and in consideration of the premises and the
purchase of the Securities by the Holders (as such term is defined in Section
1.1 hereof) thereof, the parties hereto, intending to be legally bound,
mutually covenant and agree, for the equal and proportionate benefit of all
Holders of the Securities or of any series thereof, as follows:


 


ARTICLE I


DEFINITIONS AND OTHER PROVISIONS


OF GENERAL APPLICATION


 


SECTION 1.1.                      Definitions.


 


For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:


 


(1)           The terms
defined in this Article have the meanings assigned to them in this Article, and
include the plural as well as the singular;


 


(2)           All other
terms used herein that are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to them therein;


 


1





















 


(3)           The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without
limitation”;


 


(4)           All
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles as in effect
at the time of determination;


 


(5)           Whenever
the context may require, any gender shall be deemed to include the other;


 


(6)           Unless the
context otherwise requires, any reference to an “Article” or a “Section” refers
to an Article or a Section, as the case may be, of this Indenture; and


 


(7)           The words “hereby,”
“herein,” “hereof” and “hereunder” and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision.


 


“Act” when used
with respect to any Holder has the meaning specified in Section 1.4(a).


 


“Additional Interest”
means the interest, if any, that shall accrue on any interest on the Securities
of any series the payment of which has not been made on the applicable Interest
Payment Date and which shall accrue at the rate per annum specified or
determined as specified in such Security, to the extent permitted by applicable
law.


 


“Additional Sums”
has the meaning specified in Section 10.6.


 


“Additional Taxes”
means any additional taxes, duties and other governmental charges to which an
Issuer Trust has become subject from time to time as a result of a Tax Event.


 


“Administrator”
means, in respect of any Issuer Trust, each Person appointed in accordance with
the related Trust Agreement, solely in such Person’s capacity as Administrator
of such Issuer Trust and not in such Person’s individual capacity, or any
successor Administrator appointed as therein provided.


 


“Affiliate” of
any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified
Person.  For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.


 


“Agent Member”
means any member of, or participant in, the Depositary.


 


“Applicable Procedures”
means, with respect to any transfer or transaction involving a Global Security
or beneficial interest therein, the rules and procedures of the Depositary for
such


 


2





















 


Global Security, in each case to the extent applicable to such
transaction and as in effect from time to time.


 


“Authenticating Agent”
means any Person authorized by the Trustee pursuant to Section 6.14 to act on
behalf of the Trustee to authenticate Securities of one or more series.


 


“Bankruptcy Code”
means the United States Bankruptcy Code, 11 U.S.C. 101, et seq.,
and any successor provisions thereto, in each case as may be amended from time
to time.


 


“Board of Directors”
means the board of directors of the Company or the Executive Committee of the
board of directors of the Company (or any other committee of the board of
directors of the Company performing similar functions) or, for purposes of this
Indenture, a committee designated by the board of directors of the Company (or
such committee), comprised of two or more members of the board of directors of
the Company or officers of the Company, or both.


 


“Board Resolution”
means a copy of a resolution certified by the Secretary or any Assistant
Secretary of the Company to have been duly adopted by the Board of Directors,
or such committee of the Board of Directors or officers of the Company to which
authority to act on behalf of the Board of Directors has been delegated, and to
be in full force and effect on the date of such certification, and delivered to
the Trustee.


 


“Business Day”
means any day other than (i) a Saturday or Sunday, (ii) a day on which banking
institutions in the City of New York, New York or the City of Wilmington,
Delaware are authorized or required by law or executive order to remain closed,
or (iii) a day on which the Corporate Trust Office of the Trustee, or, with
respect to the Securities of a series initially issued to an Issuer Trust, the “Corporate
Trust Office” (as defined in the related Trust Agreement) of the Property
Trustee or the Delaware Trustee under the related Trust Agreement, is closed
for business.


 


“Capital Securities”
has the meaning specified in the first recital of this Indenture.


 


“Clearing Agency”
means an organization registered as a “clearing agency” pursuant to Section 17A
of the Exchange Act.


 


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


 


“Commission”
means the United States Securities and Exchange Commission, or any successor
thereto.


 


“Common Securities”
has the meaning specified in the first recital of this Indenture.


 


“Common Stock”
means the Company’s common stock, $0.01 par value per share.


 


3





















 


“Company” means
the Person named as the “Company” in the
first paragraph of this instrument until a successor entity shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor entity.


 


“Company Request”
and “Company Order” mean, respectively, the
written request or order signed in the name of the Company by its Chairman of
the Board of Directors, any Vice Chairman of the Board of Directors, its
President, Chief Executive Officer or a Senior Vice President or Vice
President, and by its Chief Financial Officer, its Treasurer or an Assistant
Treasurer, or its Secretary or an Assistant Secretary, and delivered to the
Trustee.


 


“Corporate Trust Office”
means the principal office of the Trustee at which at any particular time its
corporate trust business shall be administered.


 


“Creditor” has
the meaning specified in Section 6.7(c).


 


“Defaulted Interest”
has the meaning specified in Section 3.8.


 


“Delaware Trustee”
means, with respect to any Issuer Trust, the Person identified as the “Delaware
Trustee” in the related Trust Agreement, solely in its capacity as Delaware
Trustee of such Issuer Trust under such Trust Agreement and not in its
individual capacity, or its successor in interest in such capacity, or any
successor Delaware trustee appointed as therein provided.


 


“Depositary”
means, with respect to the Securities of any series issuable or issued in whole
or in part in the form of one or more Global Securities, the Person designated
as Depositary by the Company pursuant to Section 3.1 with respect to such
series (or any successor thereto).


 


“Depositor”
means GAINSCO, INC., a Texas corporation.


 


“Discount Security”
means any security that provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.2.


 


“Dollar” or “$” means the currency of the United States of America that,
as at the time of payment, is legal tender for the payment of public and
private debts.


 


“Entity”
includes a bank, corporation, partnership, association, company, limited
liability company, joint-stock company or business trust.


 


“Event of Default,”
unless otherwise specified in the supplemental indenture creating a series of
Securities, has the meaning specified in Article V.


 


“Exchange Act”
means the Securities Exchange Act of 1934 and any statute successor thereto, in
each case as amended from time to time.


 


“Expiration Date”
has the meaning specified in Section 1.4(f).


 


4





















 


“Extension Period”
has the meaning specified in Section 3.12.


 


“Global Security”
means a Security in the form prescribed in Article II evidencing all or part of
a series of Securities, issued to the Depositary or its nominee for such
series, and registered in the name of such Depositary or its nominee.


 


“Guarantee”
means, with respect to any Issuer Trust, the obligations of the Company under
the Guarantee Agreement.


 


“Guarantee Agreement”
means any Guarantee Agreement executed by the Company for the benefit of the
Holders of the Capital Securities issued by each Issuer Trust, as modified,
amended or supplemented from time to time.


 


“Holder” means a
Person in whose name a Security is registered in the Securities Register.


 


“Indenture”
means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms
of each particular series of Securities established as contemplated by Section
3.1.


 


“Interest Payment Date”
means, as to each series of Securities, the Stated Maturity of an installment
of interest on such Securities.


 


“Investment Company Act”
means the Investment Company Act of 1940 and any statute successor thereto, in
each case as amended from time to time.


 


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


 


“Issuer Trust”
has the meaning specified in the first recital of this Indenture.


 


“Liquidation Amount”
shall have the meaning assigned in the applicable related Trust Agreement.


 


“Maturity” when
used with respect to any Security means the date on which the principal of such
Security becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.


 


5





















 


“Notice of Default”
means a written notice of the kind specified in Section 5.1(3).


 


“Officers’ Certificate”
means a certificate signed by the Chairman of the Board of Directors, Vice
Chairman of the Board of Directors, Chief Executive Officer, the President or
any Vice President, and by the Chief Financial Officer, the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the party provided herein. 
Any Officers’ Certificate delivered with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
certificates provided pursuant to Section 10.4) shall include:


 


(a)           a
statement by each officer signing the Officers’ Certificate that such officer
has read the covenant or condition and the definitions relating thereto;


 


(b)           a brief
statement of the nature and scope of the examination or investigation
undertaken by such officer in rendering the Officers’ Certificate;


 


(c)           a
statement that such officer has made such examination or investigation as, in
such officer’s opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and


 


(d)           a
statement as to whether, in the opinion of each such officer, such condition or
covenant has been complied with.


 


“Opinion of Counsel”
means a written opinion of counsel, who may be counsel for or an employee of
the Company or any Affiliate of the Company.


 


“Original Issue Date”
means the date of issuance specified as such in each Security.


 


“Outstanding”
means, when used in reference to any Securities, as of the date of
determination, all Securities theretofore authenticated and delivered under
this Indenture, except:


 


(i)            Securities
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;


 


(ii)           Securities
for whose payment money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent in trust for the Holders of such
Securities; and


 


(iii)          Securities
in substitution for or in lieu of which other Securities have been
authenticated and delivered or that have been paid pursuant to Section 3.6,
unless proof satisfactory to the Trustee is presented that any such Securities
are held by Holders in whose hands such Securities are valid, binding and legal
obligations of the Company; provided, however,
in determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request,


 


6





















 


demand, authorization, direction, notice, consent or
waiver hereunder, Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor (other than
the Issuer Trust to which Securities of the applicable series were initially
issued) shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities that the Trustee knows to be so owned shall be so disregarded.  Securities so owned that have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon
the Securities or any Affiliate of the Company or such other obligor (other
than such Issuer Trust).  Upon the
written request of the Trustee, the Company shall furnish to the Trustee
promptly an Officers’ Certificate listing and identifying all Securities, if
any, known by the Company to be owned or held by or for the account of the
Company, or any other obligor on the Securities or any Affiliate of the Company
or such obligor (other than, for the avoidance of doubt, such Issuer Trust),
and, subject to the provisions of Section 6.1, the Trustee shall be entitled to
accept such Officers’ Certificate as conclusive evidence of the facts therein
set forth and of the fact that all Securities not listed therein are
Outstanding for the purpose of any such determination.


 


“Paying Agent”
means the Trustee or any Person authorized by the Company to pay the principal
of (or premium, if any) or interest on, or other amounts in respect of any
Securities on behalf of the Company.


 


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


 


“Place of Payment”
means, with respect to the Securities of any series, the place or places where
the principal of (and premium, if any) and interest on the Securities of such
series are payable pursuant to Section 3.1.


 


“Predecessor Security”
of any particular Security means every previous Security evidencing all or a
portion of the same debt as that evidenced by such particular Security.  For the purposes of this definition, any
security authenticated and delivered under Section 3.7 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.


 


“Principal Subsidiary”
means (i) either of (A) General Agents Insurance Company of America, Inc., an
Oklahoma insurance company, and (B) MGA Insurance Company, Inc., a Texas
insurance company, (ii) any other subsidiary of the Company the
consolidated assets of which constitute 20% or more of the consolidated assets
of the Company and its consolidated subsidiaries, (iii) any other
subsidiary designated as a Principal Subsidiary pursuant to a Board Resolution
and set forth in an Officers’ Certificate delivered to the Trustee, and
(iv) any


 


7





















 


subsidiary of the Company that owns, directly or indirectly, any voting
securities, or options, warrants or rights to subscribe for or purchase voting
securities, of any Principal Subsidiary under clause (i), (ii), (iii) or (iv),
and in the case of clause (i), (ii), (iii), (iv) or (v), their respective
successors (whether by consolidation, merger, conversion, transfer of substantially
all their assets and business or otherwise) so long as any such successor is a
banking subsidiary (in the case of clause (i), (ii), (iii) or (iv) or a
subsidiary (in the case of clause (v)) of the Company.


 


“Proceeding” has
the meaning specified in Section 13.2.


 


“Property Trustee”
means, with respect to any Issuer Trust, the Person identified as the “Property
Trustee” in the related Trust Agreement, solely in its capacity as Property
Trustee of such Issuer Trust under such Trust Agreement and not in its
individual capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as therein provided.


 


“Redemption Date,”
when used with respect to any Security to be redeemed, means the date fixed for
such redemption by or pursuant to this Indenture or the terms of such Security.


 


“Redemption Price,”
when used with respect to any Security to be redeemed, means the price at which
it is to be redeemed pursuant to this Indenture or the terms of such Security.


 


“Regular Record Date”
for the interest payable on any Interest Payment Date with respect to the
Securities of a series means, unless otherwise provided pursuant to
Section 3.1 with respect to Securities of such series, the close of
business on the fifteenth day of the month in which such Interest Payment Date
occurs (whether or not a Business Day).


 


“Responsible Officer,”
when used with respect to the Trustee means any officer assigned to the
Corporate Trust Office, including any managing director, vice president, principal,
assistant vice president, assistant treasurer, assistant secretary or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and having direct
responsibility for the administration of this Indenture, and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer’s knowledge of and familiarity with the particular
subject.


 


“Restricted Security”
means all Securities including those represented by the debenture attached
hereto as Exhibit A or those represented by the Restricted Securities
Certificate attached hereto as Exhibit B.


 


“Restricted Securities
Certificate” means a certificate substantially in the form set forth
in Exhibit B.


 


“Rights Plan”
means any plan of the Company providing for the issuance by the Company to all
holders of its Common Stock, of rights entitling the holders thereof to
subscribe for or purchase shares of any class or series of capital stock of the
Company which rights (i) are deemed to be transferred with such shares of such
Common Stock, (ii) are not exercisable, and (iii) are also issued in
respect of future issuances of such Common Stock, in each case until the
occurrence of a specified event or events.


 


8





















 


“Securities” or “Security” means any debt securities or debt security, as the
case may be, authenticated and delivered under this Indenture.


 


“Securities Act”
means the Securities Act of 1933 and any successor statute thereto, in each
case as modified, amended or supplemented from time to time.


 


“Securities Register”
and “Securities Registrar” have the
respective meanings specified in Section 3.6(a).


 


“Senior Indebtedness”
means, whether recourse is to all or a portion of the assets of the Company and
whether or not contingent: (i) every obligation of the Company for borrowed
money; (ii) every obligation of the Company evidenced by bonds, debentures,
notes and related credit agreements or other similar instruments, including
obligations incurred in connection with the acquisition of property, assets or
businesses; (iii) every reimbursement obligation of the Company with respect to
letters of credit, bankers’ acceptances or similar facilities issued for the
account of the Company; (iv) every obligation of the Company issued or assumed
as the deferred purchase price of property or services (but excluding trade
accounts payable or accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of the Company; (vi) every
obligation of the Company for claims (as defined in Section 101(4) of the
Bankruptcy Code) in respect of derivative products such as interest and foreign
exchange rate contracts, commodity contracts, swaps, options, caps, collars and
similar arrangements; (vii) every obligation of the type referred to in clauses
(i) through (vi) of another Person the payment of which the Company has
guaranteed or is responsible or liable, directly or indirectly, as obligor or
otherwise.  “Senior Indebtedness”
excludes (i) any obligations which, by their terms, are expressly stated to
rank pari passu in right of payment with, or
to not be superior in right of payment to, the Securities, (ii) any
indebtedness of the Company which when incurred and without respect to any
election under Section 1111(b) of the Bankruptcy Code was without recourse to
the Company, (iii) any indebtedness of the Company to any of its subsidiaries,
(iv) indebtedness to any executive officer or director of the Company for funds
borrowed pursuant to any bond, debenture, note or other similar instrument, or
(v) any indebtedness in respect of debt securities issued to any trust, or a
trustee of such trust, partnership or other entity affiliated with the Company
that is a financing entity of the Company in connection with the issuance of
such financing entity of securities that are similar to the Capital Securities.


 


“Special Record Date”
for the payment of any Defaulted Interest means a date fixed by the Trustee
pursuant to Section 3.8.


 


“Stated Maturity,”
when used with respect to any Security or any installment of principal thereof
or interest thereon, means the date specified pursuant to the terms of such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable, as such date may, in
the case of such principal, be shortened or extended as provided pursuant to
the terms of such Security and this Indenture.


 


“Subsidiary”
means an entity more than 50% of the outstanding voting stock of which is
owned, directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the


 


9





















 


Company and one or more other Subsidiaries.  For purposes of this definition, “voting
stock” means stock that ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of stock has
such voting power by reason of any contingency.


 


“Successor Security”
of any particular Security means every Security issued after, and evidencing
all or a portion of the same debt as that evidenced by, such particular
Security; and, for the purposes of this definition, any Security authenticated
and delivered under Section 3.7 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.


 


“Tax Event”
means the receipt by an Issuer Trust of an Opinion of Counsel (as defined in
the relevant Trust Agreement) experienced in such matters to the effect that,
as a result of any amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or as a result of
any official or administrative pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement or decision is announced on or after the date
of issuance of the Capital Securities of such Issuer Trust (including, without
limitation, any of the foregoing arising with respect to, or resulting from,
any proposal, proceeding or other action commencing on or before such date),
there is more than an insubstantial risk that (i) such Issuer Trust is, or
will be within 90 days of the delivery of such Opinion of Counsel, subject to
United States Federal income tax with respect to income received or accrued on
the corresponding series of Securities issued by the Company to such Issuer
Trust, (ii) interest payable by the Company on such corresponding series of
Securities is not, or within 90 days of the delivery of such Opinion of Counsel
will not be, deductible by the Company, in whole or in part, for United States
Federal income tax purposes, or (iii) such Issuer Trust is, or will be
within 90 days of the delivery of such Opinion of Counsel, subject to more than
a de minimis amount of other taxes, duties or other governmental charges.


 


“Trust Agreement”
means, with respect to any Issuer Trust, the trust agreement or other governing
instrument of such Issuer Trust, as amended from time to time.


 


“Trustee” means
the Person named as the “Trustee” in the first paragraph of this Indenture,
solely in its capacity as such and not in its individual capacity, until a
successor Trustee shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Trustee” shall mean or include each Person
who is then a Trustee hereunder and, if at any time there is more than one such
Person, “Trustee” as used with respect to the Securities of any series shall
mean the Trustee with respect to Securities of that series.


 


“Trust Indenture Act”
means the Trust Indenture Act of 1939 and any successor statute thereto, in
each case as modified, amended or supplemented from time to time.


 


“Trust Securities”
has the meaning specified in the first recital of this Indenture.


 


10





















 


“Vice President,”
when used with respect to the Company, means any duly appointed vice president,
whether or not designated by a number or a word or words added before or after
the title “vice president.”


 


SECTION 1.2.                      Compliance
Certificate and Opinions.


 


Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee an Officers’ Certificate stating that all
conditions precedent (including covenants, the compliance with which
constitutes a condition precedent), if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent (including covenants compliance with which constitutes a condition
precedent), if any, have been complied with, except that in the case of any
such application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.


 


Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture (other
than the certificates provided pursuant to Section 10.4) shall include:


 


(1)           a
statement by each individual signing such certificate or opinion that such
individual has read such covenant or condition and the definitions herein
relating thereto;


 


(2)           a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions of such individual contained in such
certificate or opinion are based;


 


(3)           a
statement that, in the opinion of such individual, he or she has made such
examination or investigation as is necessary to enable him or her to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and


 


(4)           a
statement as to whether, in the opinion of such individual, such condition or
covenant has been complied with.


 


SECTION 1.3.                      Forms
of Documents Delivered to Trustee.


 


In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents.


 


11





















 


Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to matters upon which his or her
certificate or opinion is based are erroneous. 
Any such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless
such counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.


 


Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates, statements,
opinions, or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.


 


SECTION 1.4.                      Acts
of Holders.


 


(a)           Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given to or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments is or are delivered to the
Trustee, and, where it is hereby expressly required, to the Company.  Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as an “Act” of the Holders signing such
instrument or instruments.  Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to
Section 6.1) conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section.


 


(b)           The fact
and date of the execution by any Person of any such instrument or writing may
be proved by the affidavit of a witness of such execution or by the certificate
of any notary public or other officer authorized by law to take acknowledgments
of deeds, certifying that the individual signing such instrument or writing
acknowledged to him or her the execution thereof.  Where such execution is by a Person acting in
other than his or her individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his or her authority.


 


(c)           The fact
and date of the execution by any Person of any such instrument or writing, or
the authority of the Person executing the same, may also be proved in any other
manner that the Trustee deems sufficient and in accordance with such reasonable
rules as the Trustee may determine.


 


(d)           The
ownership of Securities shall be proved conclusively by the Securities
Register.


 


(e)           Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Security shall bind every future Holder of the same
Security and the Holder of every Security issued upon the transfer thereof or
in exchange therefor or in lieu


 


12





















 


thereof in respect of anything done or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.


 


(f)            The
Company may set any day as a record date for the purpose of determining the
Holders of Outstanding Securities of any series entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Securities of such series, provided that the Company may not set a
record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the next succeeding paragraph.  If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities of the relevant series on such
record date, and no other Holders, shall be entitled to take the relevant action,
whether or not such Holders remain Holders after such record date, provided
that no such action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date (as defined below) by Holders of the requisite
principal amount of Outstanding Securities of such series on such record
date.  Nothing in this paragraph shall be
construed to prevent the Company from setting a new record date for any action
for which a record date previously has been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no
action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant series
on the date such action is taken. 
Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to
the Trustee in writing and to each Holder of Securities of the relevant series
in the manner set forth in Section 1.6.


 


The Trustee may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities of any series entitled
to join in the giving or making of (i) any Notice of Default, (ii) any
declaration of acceleration referred to in Section 5.2, (iii) any request to
institute proceedings referred to in Section 5.7(3), or (iv) any direction
referred to in Section 5.12, in each case with respect to Securities of such
series.  If any record date is set
pursuant to this paragraph, the Holders of Outstanding Securities of such
series on such record date, and no other Holders, shall be entitled to join in
such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date, provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date.  Nothing in
this paragraph shall be construed to prevent the Trustee from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect)
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken.  Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.6.


 


13





















 


With respect to any record date set pursuant to this
Section, the party hereto that sets such record date may designate any day as
the “Expiration Date” and from time to time may change the Expiration
Date to any earlier or later day, provided that no
such change shall be effective unless notice of the proposed new Expiration
Date is given to the other party hereto in writing, and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.6 on or
prior to the existing Expiration Date. 
If an Expiration Date is not designated with respect to any record date
set pursuant to this Section, the party hereto that set such record date shall
be deemed to have initially designated the 180th day after such record date as
the Expiration Date with respect thereto, subject to its right to change the
Expiration Date as provided in this paragraph. 
Notwithstanding the foregoing, no Expiration Date shall be later than
the 180th day after the applicable record date.


 


(g)           Without
limiting the foregoing, a Holder entitled hereunder to take any action
hereunder with regard to any particular Security may do so with regard to all
or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with regard
to all or any part of such principal amount.


 


SECTION 1.5.                      Notices,
Etc. to Trustee and Company.


 


Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,


 


(1)           the
Trustee by any Holder, any holder of Capital Securities or the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, or


 


(2)           the
Company by the Trustee, any Holder, any holder of Capital Securities or the
holder of any Senior Indebtedness shall be sufficient for every purpose (except
as otherwise provided in Section 5.1) hereunder if in writing and mailed,
first class, postage prepaid, to the Company addressed to it at the address of
its principal office specified in the first paragraph of this instrument or at
any other address previously furnished in writing to the Trustee by the
Company.


 


SECTION 1.6.                      Notice
to Holders; Waiver.


 


Where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first class postage prepaid, to
each Holder affected by such event, at the address of such Holder as it appears
in the Securities Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice.  If, by reason of the suspension of or
irregularities in regular mail services or for any other reason, it shall be
impossible or impracticable to mail notice of any event to Holders when said
notice is required to be given pursuant to any provision of this Indenture or
of the relevant Securities, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.  In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in


 


14





















 


any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders.  Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice.  Waivers
of notice by Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in reliance upon
such waiver.


 


SECTION 1.7.                      Conflict
with Trust Indenture Act.


 


If any provision hereof limits, qualifies or conflicts
with a provision of the Trust Indenture Act that is required under such Act to
be a part of and govern this Indenture, the provision of the Trust Indenture
Act shall control.  If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.


 


SECTION 1.8.                      Effect
of Headings and Table of Contents.


 


The Article and Section headings herein and the Table
of Contents are for convenience only and shall not affect the construction
hereof.


 


SECTION 1.9.                      Successors
and Assigns.


 


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


 


SECTION 1.10.                    Separability
Clause.


 


If any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.


 


SECTION 1.11.                    Benefits
of Indenture.


 


Nothing in this Indenture or in the Securities,
express or implied, shall give to any Person, other than the parties hereto and
their successors and assigns, the holders of Senior Indebtedness, the Holders
of the Securities and, to the extent expressly provided in Sections 5.2, 5.7,
5.8, 5.9, 5.11, 5.12, 5.13, 9.1 and 9.2, the holders of Capital Securities, any
benefit or any legal or equitable right, remedy or claim under this Indenture.


 


SECTION 1.12.                    Governing
Law.


 


THIS INDENTURE AND THE SECURITIES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.


 


15





















 


SECTION 1.13.                    Non-Business
Days.


 


If any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or the Securities)
payment of interest or principal (and premium, if any) or other amounts in
respect of such Security need not be made on such date, but may be made on the
next succeeding Business Day (and no interest shall accrue in respect of the
amounts whose payment is so delayed for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be, until
such next succeeding Business Day), except that, if such Business Day is in the
next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day (in each case with the same force and effect as if made
on the Interest Payment Date or Redemption Date or at the Stated Maturity).


 


ARTICLE II


SECURITY FORMS


 


SECTION 2.1.                      Forms
Generally.


 


The Securities of each series and the Trustee’s
certificate of authentication shall be in substantially the forms set forth in
this Article, or in such other form or forms as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with applicable tax
laws, banking laws, or the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such securities,
as evidenced by their execution of the Securities. If the form of Securities of
any series is established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 3.3
with respect to the authentication and delivery of such Securities.


 


The Trustee’s certificates of authentication shall be
substantially in the form set forth in this Article.


 


The definitive Securities shall be printed,
lithographed or engraved or produced by any combination of these methods, if
required by any securities exchange on which the Securities may be listed, on a
steel engraved border or steel engraved borders or may be produced in any other
manner permitted by the rules of any securities exchange, if any, on which the
Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.


 


Securities distributed to holders of Global Capital
Securities (as defined in the applicable Trust
Agreement) upon the dissolution of an Issuer Trust shall be distributed in the
form of one or more Global Securities registered in the name of a Depositary or
its nominee, and deposited with the Securities Registrar, as custodian for such
Depositary, or with such Depositary, for


 


16





















 


credit by the Depositary to the respective accounts of the beneficial
owners of the Securities represented thereby (or such other accounts as they
may direct).  Securities distributed to
holders of Capital Securities other than Global Capital Securities upon the
dissolution of an Issuer Trust shall not be issued in the form of a Global
Security or any other form intended to facilitate book-entry trading in
beneficial interests in such Securities.


 


SECTION 2.2.                      Form
of Face of Security.  The Securities
shall be generally in the form of Exhibit A hereto.


 


SECTION 2.3.                      Additional
Provisions Required in Global Security.


 


Unless otherwise specified as contemplated by
Section 3.1, any Global Security issued hereunder shall, in addition to
the provisions contained in Sections 2.1 and 2.2, bear a legend in
substantially the following form:


 


THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. 
THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.


 


SECTION 2.4.                      Form
of Trustee’s Certificate of Authentication.


 


The Trustee’s certificate of authentication shall be
in substantially the following form:


 


This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.


 


	
  Dated:

  	
   

  	
   

  	
  WILMINGTON TRUST COMPANY,

  
	
   

  	
  not in its individual capacity, but solely as
  Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized signatory

  



 


17





















 


ARTICLE III


THE SECURITIES


 


SECTION 3.1.                      Title
and Terms.


 


The aggregate principal amount of Securities that may
be authenticated and delivered under this Indenture is unlimited.


 


The Securities may be issued in one or more
series.  There shall be established in or
pursuant to a Board Resolution and, subject to Section 3.3, set forth or
determined in the manner provided, in an Officers’ Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities as a series:


 


(a)           the title
of the Securities of such series, which shall distinguish the Securities of the
series from all other Securities;


 


(b)           the limit,
if any, upon the aggregate principal amount of the Securities of such series
that may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to
Sections 3.4, 3.5, 3.6, 3.7, 9.6 or 11.6 and except for any Securities
that, pursuant to Section 3.3, are deemed never to have been authenticated
and delivered hereunder); provided, however,
the authorized aggregate principal amount of such series may be increased above
such amount by a Board Resolution to such effect;


 


(c)           the Person
to whom any interest on a Security of the series shall be payable, if other
than the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest;


 


(d)           the Stated
Maturity or Maturities on which the principal of the Securities of such series
is payable or the method of determination thereof, and any dates on which or
circumstances under which, the Company shall have the right to extend or
shorten such Stated Maturity or Maturities;


 


(e)           the rate
or rates, if any, at which the Securities of such series shall bear interest,
if any, the rate or rates and extent to which Additional Interest, if any,
shall be payable with respect to any Securities of such series, the date or
dates from which any such interest or Additional Interest shall accrue, the
Interest Payment Dates on which such interest shall be payable, the right,
pursuant to Section 3.12 or as otherwise set forth therein, of the Company
to defer or extend an Interest Payment Date, and the Regular Record Date for
the interest payable on any Interest Payment Date, or the method by which any
of the foregoing shall be determined;


 


(f)            the place
or places where the principal of (and premium, if any), interest or Additional
Interest on the Securities of such series shall be payable, the place or places
where the Securities of such series may be presented for registration of
transfer or exchange, any restrictions that may be applicable to any such
transfer or exchange in addition to or in lieu of 


 


18





















 


those set forth herein and the place or places where notices and
demands to or upon the Company in respect of the Securities of such series may
be made;


 


(g)           the period
or periods within or the date or dates on which, if any, the price or prices at
which and the terms and conditions upon which the Securities of such series may
be redeemed, in whole or in part, at the option of the Company, and if other
than by a Board Resolution, the manner in which any election by the Company to
redeem such Securities shall be evidenced;


 


(h)           the
obligation or the right, if any, of the Company to redeem, repay or purchase
the Securities of such series pursuant to any sinking fund, amortization or
analogous provisions, or at the option of a Holder thereof, and the period or
periods within which, the price or prices at which, the currency or currencies
(including currency unit or units) in which and the other terms and conditions
upon which Securities of the series shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;


 


(i)            the
denominations in which any Securities of such series shall be issuable, if
other than integral multiples of $1,000;


 


(j)            if other
than Dollars, the currency or currencies (including any currency unit or units)
in which the principal of (and premium, if any) and interest and Additional
Interest, if any, on the Securities of the series shall be payable, or in which
the Securities of the series shall be denominated and the manner of determining
the equivalent thereof in Dollars for purposes of the definition of Outstanding;


 


(k)           the
additions, modifications or deletions, if any, in the Events of Default or
covenants of the Company set forth herein with respect to the Securities of
such series;


 


(l)            if other
than the principal amount thereof, the portion of the principal amount of
Securities of such series that shall be payable upon declaration of
acceleration of the Maturity thereof;


 


(m)          if the
principal amount payable at the Stated Maturity of any Securities of the series
will not be determinable as of any one or more dates prior to the Stated
Maturity, the amount which shall be deemed to be the principal amount of such
Securities as of any such date for any purpose thereunder or hereunder,
including the principal amount thereof which shall be due and payable upon any
Maturity other than the Stated Maturity or which shall be deemed to be
Outstanding as of any date prior to the Stated Maturity (or, in any such case,
the manner in which such amount deemed to be the principal amount shall be
determined);


 


(n)           if
applicable, that the Securities of the series, in whole or in any specified
part, shall be defeasible and, if other than by a Board Resolution, the manner
in which any election by the Company to defease such Securities shall be
evidenced;


 


(o)           the
additions or changes, if any, to this Indenture with respect to the Securities
of such series as shall be necessary to permit or facilitate the issuance of
the Securities of such


 


19





















 


series in bearer form, registrable or not registrable as to principal,
and with or without interest coupons;


 


(p)           any index
or indices used to determine the amount of payments of principal of and
premium, if any, on the Securities of such series or the manner in which such
amounts will be determined;


 


(q)           if
applicable, that any Securities of the series shall be issuable in whole or in
part in the form of one or more Global Securities and, in such case, the
respective Depositaries for such Global Securities, the form of any legend or
legends that shall be borne by any such Global Security in addition to or in
lieu of that set forth in Section 2.4 and any circumstances in addition to
or in lieu of those set forth in Section 3.5 in which any such Global
Security may be exchanged in whole or in part for Securities registered, and
any transfer of such Global Security in whole or in part may be registered, in
the name or names of Persons other than the Depositary for such Global Security
or a nominee thereof;


 


(r)            the
appointment of any Paying Agent or agents for the Securities of such series;


 


(s)           the terms
of any right to convert or exchange Securities of such series into any other
securities or property of the Company, and the additions or changes, if any, to
this Indenture with respect to the Securities of such series to permit or
facilitate such conversion or exchange;


 


(t)            if such
Securities are to be issued to an Issuer Trust, the form or forms of the Trust
Agreement and Guarantee relating thereto;


 


(u)           if other
than as set forth herein, the relative degree, if any, to which the Securities
or the series shall be senior to or be subordinated to other series of
Securities in right of payment, whether such other series of Securities are
Outstanding or not;


 


(v)           any
addition to or change in the Events of Default which applies to any Securities
of the series and any change in the right of the Trustee or the requisite
Holders of such Securities to declare the principal amount thereof due and
payable pursuant to Section 5.2;


 


(w)          any
addition to or change in the covenants set forth in Article X which
applies to Securities of the series; and


 


(x)            any other
terms of the Securities of such series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by
Section 9.1(3)).


 


All Securities of any one series shall be
substantially identical except as to denomination and except as may otherwise
be provided herein or in or pursuant to such Board Resolution and set forth, or
determined in the manner provided, in such Officers’ Certificate or in any
indenture supplemental hereto.


 


20





















 


If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Officers’ Certificate setting forth the terms of the series.


 


The Securities shall be subordinated in right of
payment to Senior Indebtedness as provided in Article XIII.


 


SECTION 3.2                       Denominations.


 


The Securities of each series shall be in registered
form without coupons and shall be issuable in integral multiples of $1,000,
unless otherwise specified as contemplated by Section 3.1(i).


 


SECTION 3.3.                      Execution,
Authentication, Delivery and Dating.


 


The Securities shall be executed on behalf of the
Company by its Chairman of the Board of Directors, its Vice Chairman of the
Board of Directors, its President, its Chief Executive Officer, its Chief
Financial Officer or one of its Vice Presidents, under its corporate seal
reproduced or impressed thereon and attested by its Secretary or one of its
Assistant Secretaries.  The signature of
any of these officers on the Securities may be manual or facsimile.


 


Securities bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.  At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Securities,
and the Trustee in accordance with the Company Order shall authenticate and
deliver such Securities.  If the form or
terms of the Securities of the series have been established by or pursuant to
one or more Board Resolutions as permitted by Sections 2.1 and 3.1, in
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall be fully protected
in relying upon, an Opinion of Counsel stating,


 


(1)           if
the form of such Securities has been established by or pursuant to Board Resolution
as permitted by Section 2.1, that such form has been established in
conformity with the provisions of this Indenture;


 


(2)           if
the terms of such Securities have been established by or pursuant to Board
Resolution as permitted by Section 3.1, that such terms have been
established in conformity with the provisions of this Indenture; and


 


(3)           that
such Securities, when authenticated and delivered by the Trustee and issued by
the Company in the manner and subject to any conditions specified


 


21





















 


in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles.


 


If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee’s own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
that is not reasonably acceptable to the Trustee.


 


Notwithstanding the provisions of Section 3.1 and
the preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers’
Certificate otherwise required pursuant to Section 3.1 or the Company
Order and Opinion of Counsel otherwise required pursuant to such preceding
paragraph at or prior to the authentication of each Security of such series if
such documents are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.


 


Each Security shall be dated the date of its
authentication.


 


No Security shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose, unless there appears
on such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by the manual signature of one of
its authorized officers or signatories, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder.  Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 3.10, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.


 


SECTION 3.4.                      Temporary
Securities.


 


Pending the preparation of definitive Securities of
any series, the Company may execute, and upon receipt of a Company Order the
Trustee shall authenticate and deliver, temporary Securities that are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities of such series in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities.


 


If temporary Securities of any series are issued, the
Company will cause definitive Securities of such series to be prepared without
unreasonable delay.  After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for that purpose
without charge to the Holder.  Upon
surrender for cancellation of any one or more temporary Securities, the Company
shall execute and the Trustee shall authenticate and deliver in


 


22





















 


exchange therefor one or more definitive securities of the same series,
of any authorized denominations having the same Original Issue Date and Stated
Maturity and having the same terms as such temporary Securities. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.


 


SECTION 3.5.                      Global
Securities.


 


(a)           Each
Global Security issued under this Indenture shall be registered in the name of
the Depositary designated by the Company for such Global Security or a nominee
thereof and delivered to such Depositary or a nominee thereof or custodian
therefor, and each such Global Security shall constitute a single Security for
all purposes of this Indenture.


 


(b)           Notwithstanding
any other provision in this Indenture, no Global Security may be exchanged in
whole or in part for Securities registered, and no transfer of a Global
Security in whole or in part may be registered, in the name of any Person other
than the Depositary for such Global Security or a nominee thereof unless (i)
such Depositary advises the Trustee in writing that such Depositary is no
longer willing or able to properly discharge its responsibilities as Depositary
with respect to such Global Security, and the Company is unable to locate a
qualified successor, (ii) the Company executes and delivers to the Trustee a
Company Order stating that the Company elects to terminate the book-entry
system through the Depositary, or (iii) there shall have occurred and be
continuing an Event of Default or any event which after notice or lapse of time
or both would be an Event of Default.


 


(c)           If any
Global Security is to be exchanged for other Securities or cancelled in whole,
it shall be surrendered by or on behalf of the Depositary or its nominee to the
Securities Registrar for exchange or cancellation as provided in this
Article III.  If any Global Security
is to be exchanged for other Securities or cancelled in part, or if another
Security is to be exchanged in whole or in part for a beneficial interest in
any Global Security, then either (i) such Global Security shall be so
surrendered for exchange or cancellation as provided in this Article III
or (ii) the principal amount thereof shall be reduced, subject to
Section 3.6(b)(iii), or increased by an amount equal to the portion
thereof to be so exchanged or cancelled, or equal to the principal amount of
such other Security to be so exchanged for a beneficial interest therein, as
the case may be, by means of an appropriate adjustment made on the records of
the Securities Registrar, whereupon the Trustee, in accordance with the
Applicable Procedures, shall instruct the Depositary or its authorized
representative to make a corresponding adjustment to its records. Upon any such
surrender or adjustment of a Global Security by the Depositary, accompanied by
registration instructions, the Trustee shall, subject to Section 3.6(b)
and as otherwise provided in this Article III, authenticate and deliver
any Securities issuable in exchange for such Global Security (or any portion
thereof) in accordance with the instructions of the Depositary.  The Trustee shall not be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
fully protected in relying on, such instructions.


 


(d)           Every
Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof, whether
pursuant to this Article III, Section 9.6 or 11.6 or otherwise, shall
be authenticated and delivered in the form of,


 


23





















 


and shall be, a Global Security, unless such Security is registered in
the name of a Person other than the Depositary for such Global Security or a
nominee thereof.


 


(e)           Securities
distributed to holders of Global Capital Securities (as defined in the
applicable Trust Agreement) upon the dissolution of an Issuer Trust shall be
distributed in the form of one or more Global Securities registered in the name
of a Depository or its nominee, and deposited with the Securities Registrar, as
custodian for such Depository, or with such Depository, for credit by the
Depository to the respective accounts of the beneficial owners of the
Securities represented thereby (or such other accounts as they may
direct).  Securities distributed to
holders of Capital Securities other than Global Capital Securities upon the
dissolution of an Issuer Trust shall not be issued in the form of a Global
Security or any other form intended to facilitate book-entry trading in
beneficial interests in such Securities.


 


(f)            The
Depositary or its nominee, as the registered owner of a Global Security, shall
be the Holder of such Global Security for all purposes under this Indenture and
the Securities, and owners of beneficial interests in a Global Security shall
hold such interests pursuant to the Applicable Procedures.  Accordingly, any such owner’s beneficial
interest in a Global Security shall be shown only on, and the transfer of such
interest shall be effected only through, records maintained by the Depositary
or its nominee or agent.  Neither the
Trustee nor the Securities Registrar shall have any liability in respect of any
transfers effected by the Depositary.


 


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


 


SECTION 3.6.                      Registration,
Transfer and Exchange Generally; Certain Transfers and Exchanges.


 


(a)           The
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Securities and transfers of
Securities.  Such register is herein
sometimes referred to as the “Securities Register.”  The Trustee is hereby appointed “Securities
Registrar” for the purpose of registering Securities and transfers of
Securities as herein provided.


 


Upon surrender for registration of transfer of any
Security at the offices or agencies of the Company designated for that purpose,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Securities of the same series of any authorized denominations of like tenor and
principal amount and bearing such restrictive legends as may be required by
this Indenture.


 


At the option of the Holder, Securities may be
exchanged for other Securities of the same series in any authorized
denominations, of like tenor and aggregate principal amount and bearing such
restrictive legends as may be required by this Indenture, upon surrender of the
Securities to be exchanged at such office or agency.  Whenever any securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities that the Holder making the exchange is entitled to
receive.


 


24





















 


All Securities issued upon any transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.


 


Every Security presented or surrendered for transfer
or exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar, duly executed by the
Holder thereof or such Holder’s attorney duly authorized in writing.


 


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


 


Neither the Company nor the Trustee shall be required,
pursuant to the provisions of this Section, (i) to issue, register the
transfer of or exchange any Security of any series during a period beginning at
the opening of business 15 days before the day of selection for redemption of
Securities of that series pursuant to Article XI and ending at the close
of business on the day of mailing of the notice of redemption, or (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except, in the case of any such Security to be redeemed in
part, any portion thereof not to be redeemed.


 


(b)           Certain Transfers and Exchanges.  Notwithstanding any other provision of this
Indenture, transfers and exchanges of Securities and beneficial interests in a
Global Security shall be made only in accordance with this Section 3.6(b).


 


(i)            Restricted
Non-Global Security to Global Security. If the Holder of a Restricted Security
(other than a Global Security) wishes at any time to transfer all or any
portion of such Security to a Person who wishes to take delivery thereof in the
form of a beneficial interest in a Global Security, such transfer may be
effected only in accordance with the provisions of this clause (b)(i) and
subject to the Applicable Procedures. 
Upon receipt by the Securities Registrar of (A) such Security as
provided in Section 3.6(a) and instructions satisfactory to the Securities
Registrar directing that a beneficial interest in the Global Security in a
specified principal amount not greater than the principal amount of such
Security be credited to a specified Agent Member’s account and (B) a Restricted
Securities Certificate duly executed by such Holder or such Holder’s attorney
duly authorized in writing, then the Securities Registrar shall cancel such
Security (and issue a new Security in respect of any untransferred portion
thereof) as provided in Section 3.10 and increase the aggregate principal
amount of the Global Security by the specified principal amount as provided in
Section 3.5(c).


 


(ii)           Non-Global
Security to Non-Global Security. A Security that is not a Global Security may
be transferred, in whole or in part, to a Person who takes delivery in the form
of another Security that is not a Global Security as provided in Section
3.6(a), provided that if the Security to be
transferred in whole or in part is a Restricted Security,


 


25





















 


the Securities
Registrar shall have received a Restricted Securities Certificate duly executed
by the transferor Holder or such Holder’s attorney duly authorized in writing
and the Securities Registrar shall only be required to register the transfer of
such Restricted Securities Certificate upon direction from the Company that
such transfer is permissible.


 


(iii)          Exchanges
Between Global Security and Non-Global Security. A beneficial interest in a
Global Security may be exchanged for a Security that is not a Global Security
as provided in Section 3.5.


 


(iv)          Certain
Initial Transfers of Non-Global Securities. In the case of Securities initially
issued other than in global form, an initial transfer or exchange of such
Securities that does not involve any change in beneficial ownership may be made
to an institutional accredited investor or investors as if such transfer or
exchange were not an initial transfer or exchange; provided
that written certification shall be provided by the transferee and
transferor of such Securities to the Securities Registrar that such transfer or
exchange does not involve a change in beneficial ownership.


 


(v)           Limitations
Relating to Principal Amount. Notwithstanding any other provision of this
Indenture and unless otherwise specified as permitted by Section 3.1;
Securities or portions thereof may be transferred or exchanged only in
principal amounts of not less than $1,000. 
To the fullest extent permitted by applicable law, any transfer,
exchange or other disposition of Securities in contravention of this Section
3.6(b)(v) shall be deemed to be void and of no legal effect whatsoever, any
such transferee shall be deemed not to be the Holder or owner of any beneficial
interest in such Securities for any purpose, including but not limited to the
receipt of interest payable on such Securities, and such transferee shall be
deemed to have no interest whatsoever in such Securities and, the Securities
Registrar shall not record any such transfer in the Securities Registrar.


 


SECTION 3.7.                      Mutilated,
Lost and Stolen Securities.


 


If any mutilated Security is surrendered to the
Trustee together with such security, or indemnity, and/or other assurance as
may be required by the Company or the Trustee, in their discretion, to save
each of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same
series, of like tenor and aggregate principal amount, bearing the same legends,
and bearing a number not contemporaneously outstanding.


 


If there shall be delivered to the Company and to the
Trustee (i) evidence to their satisfaction of the destruction, loss or theft of
any Security, and (ii) such security, indemnity and/or other assurance as may
be required by them, in their discretion, to save each of them harmless, then,
in the absence of notice to the Company or the Trustee that such Security has
been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series, of like tenor and principal amount
and bearing the same legends


 


26





















 


as such destroyed, lost or stolen Security, and bearing a number not
contemporaneously Outstanding.


 


If any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.


 


Upon the issuance of any new Security under this
Section 3.7, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith.


 


Every new Security issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of such series duly issued hereunder.


 


The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.


 


SECTION 3.8.                      Payment
of Interest and Additional Interest; Interest Rights Preserved.


 


Interest and Additional Interest on any Security of
any series that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date, shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest in respect of Securities of such
series, except that, unless otherwise provided in the Securities of such
series, interest payable on the Stated Maturity of the principal of a Security
shall be paid to the Person to whom principal is paid.  The initial payment of interest on any
Security of any series that is issued between a Regular Record Date and the
related Interest Payment Date shall be payable as provided in such Security or
in the Board Resolution pursuant to Section 3.1 with respect to the related
series of Securities.


 


Any interest on any Security that is due and payable,
but is not timely paid or duly provided for, on any Interest Payment Date for
Securities of such series (herein called “Defaulted Interest”), shall
forthwith cease to be payable to the registered Holder on the relevant Regular
Record Date by virtue of having been such Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in clause
(1) or (2) below:


 


(1)           The
Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities of such series in respect of which interest is in
default (or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest, which


 


27





















 


shall be fixed in the following manner.  The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause
provided.  Thereupon, the Trustee shall
fix a Special Record Date for the payment of such Defaulted Interest, which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. 
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first class, postage prepaid, to each Holder of a
Security of such series at the address of such Holder as it appears in the
Securities Register not less than 10 days prior to such Special Record
Date.  The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a similar
notice to be published at least once in a newspaper, customarily published in
the English language on each Business Day and of general circulation in the
Borough of Manhattan, The City of New York, New York, but such publication
shall not be a condition precedent to the establishment of such Special Record
Date.  Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective Predecessor
Securities) are registered on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).


 


(2)           The
Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Securities of the series in respect of which interest is in default may be
listed and, upon such notice as may be required by such exchange (or by the
Trustee if the Securities are not listed), if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause (2),
such payment shall be deemed practicable by the Trustee.


 


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


 


SECTION 3.9.                      Persons
Deemed Owners.


 


The Company, the Trustee and any agent of the Company
or the Trustee shall treat the Person in whose name any Security is registered
as the owner of such Security for the purpose of receiving payment of principal
of and (subject to Section 3.8) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.


 


28





















 


No holder of any beneficial interest in any Global
Security held on its behalf by a Depositary shall have any rights under this
Indenture with respect to such Global Security, and such Depositary may be
treated by the Company, the Trustee and any agent of the Company or the Trustee
as the owner of such Global Security for all purposes.  Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by a Depositary or impair, as between a Depositary and
such holders of beneficial interests, the operation of customary practices
governing the exercise of the rights of the Depositary (or its nominee) as
Holder of any Security.


 


SECTION 3.10.                    Cancellation.


 


All Securities surrendered for payment, redemption,
transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee, and any such Securities and Securities
surrendered directly to the Trustee for any such purpose shall be promptly
canceled by it.  Notwithstanding any
other provisions of this Indenture, the Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder that the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly canceled by the Trustee.  No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture.  All canceled Securities shall be destroyed by
the Trustee and the Trustee shall deliver to the Company a certificate of such
destruction.


 


SECTION 3.11.                    Computation
of Interest.


 


Except as otherwise specified as contemplated by
Section 3.1 for Securities of any series, interest on the Securities of
each series for any full quarterly period shall be computed on the basis of a
360-day year of twelve 30-day months. 
Interest on the Securities of each series for any period less than a
full quarter shall be computed on the basis of a 360-day year and the actual
number of days elapsed during that period.


 


SECTION 3.12.                    Deferrals
of Interest Payment Dates.


 


If specified as contemplated by Section 2.1 or Section
3.1 with respect to the Securities of a particular series, so long as no Event
of Default has occurred and is continuing, the Company shall have the right, at
any time during the term of such series, from time to time to defer the payment
of interest on such Securities for such period or periods (each an “Extension
Period”) not to exceed twenty consecutive quarterly periods with respect to
each Extension Period, during which Extension Periods the Company shall, if so
specified as contemplated by Section 3.1, have the right to make no
payments or partial payments of interest on any Interest Payment Date.  No Extension Period shall end on a date other
than an Interest Payment Date.  At the
end of any such Extension Period, the Company shall pay all interest then
accrued and unpaid on the Securities (together with Additional Interest
thereon, if any, at the rate specified for the Securities of such series to the
extent permitted by applicable law); provided, however,
that no Extension Period shall extend beyond the Stated Maturity of the
principal of the Securities of such series; and


 


29





















 


provided further, however, that,
during any such Extension Period, the Company shall not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company’s capital stock, or
(ii) make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the
Securities of such series (in each case, other than (a) repurchases,
redemptions or other acquisitions of shares of capital stock of the Company in
connection with any employment contract, benefit or incentive plan or other
similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants of the Company or its Subsidiaries, in
connection with a dividend reinvestment or stock purchase plan or in connection
with capital stock of the Company (or securities convertible into or
exercisable for such capital stock) issued as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as a
result of an exchange or conversion of any class or series of the Company’s
capital stock (or any capital stock of a Subsidiary of the Company) for any
class or series of the Company’s capital stock or of any class or series of the
Company’s indebtedness for any class or series of the Company’s capital stock,
(c) the purchase of fractional interests in shares of the Company’s capital
stock pursuant to the conversion or exchange provisions of such capital stock
or the security being converted or exchanged, (d) any declaration of a dividend
in connection with any Rights Plan, or the issuance of rights, stock or other
property under any Rights Plan, or the redemption or repurchase of rights
pursuant thereto, (e) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks pari passu with
or junior to such stock or (f) payments by the Company under the
Guarantee).  Prior to the termination of
any such Extension Period, the Company may further defer the payment of
interest, provided that no Event of Default has
occurred and is continuing and provided further,
that no Extension Period shall exceed the period or periods specified in such
Securities, extend beyond the Stated Maturity of the principal of such
Securities or end on a date other than an Interest Payment Date.  Upon the termination of any such Extension
Period and upon the payment of all accrued and unpaid interest and any
Additional Interest then due on any Interest Payment Date, the Company may
elect to begin a new Extension Period, subject to the above conditions.  No interest or Additional Interest shall be
due and payable during an Extension Period, except at the end thereof, but each
installment of interest that would otherwise have been due and payable during
such Extension Period and is not paid by the Company shall bear Additional
Interest as and to the extent specified by Section 3.1.  The Company shall give the Holders of the
Securities of such series and the Trustee notice of its election to begin any
such Extension Period at least one Business Day prior to the next succeeding
Interest Payment Date on which interest on Securities of such series would be
payable but for such deferral or, with respect to any Securities of a series
issued to an Issuer Trust, so long as any such Securities are held by such
Issuer Trust, at least one Business Day prior to the earlier of (i) the
next succeeding date on which Distributions on the Capital Securities of such
Issuer Trust would be payable but for such deferral, and (ii) the record date
for determining the holders of such Capital Securities entitled to such
Distributions on the Capital Securities.


 


The Trustee shall promptly give notice of the Company’s
election to begin any such Extension Period to the Holders of the Outstanding
Securities of such series.


 


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SECTION 3.13.                    Right
of Set-Off.


 


With respect to the Securities of a series initially
issued to an Issuer Trust, notwithstanding anything to the contrary herein, the
Company shall have the right to set off any payment it is otherwise required to
make in respect of any such Security to the extent the Company has theretofore
made, or is concurrently on the date of such payment making, a payment under
the Guarantee relating to such Security or to a holder of Capital Securities
pursuant to an action undertaken under Section 5.8 of this Indenture.


 


SECTION 3.14.                    Agreed
Tax Treatment.


 


Each Security issued hereunder shall provide that the
Company and, by its acceptance of a Security or a beneficial interest therein,
the Holder of, and any Person that acquires a beneficial interest in, such
Security agree that for United States Federal, state and local tax purposes it
is intended that such Security constitutes indebtedness.


 


SECTION 3.15.                    Shortening
or Extension of Stated Maturity.


 


As provided by Section 2.1 or Section 3.1 with respect
to the Securities of a particular series, the Company shall have the right to
(i) shorten the Stated Maturity of the principal of the Securities of such
series at any time to any date and (ii) extend the Stated Maturity of the
principal of the Securities of such series at any time at its election for one
or more periods, provided that, if the Company
elects to exercise its right to extend the Stated Maturity of the principal of
the Securities of such series pursuant to clause (ii) above, at the time such
election is made and at the time of extension, such conditions as may be specified
in such Securities shall have been satisfied.


 


SECTION 3.16.                    CUSIP
Numbers.


 


The Company, in issuing the Securities, may use “CUSIP”
numbers (if then generally in use or if a CUSIP number has been obtained for
the Securities), and, if so, the Trustee shall use “CUSIP” numbers in notice of
redemption and other similar or related materials as a convenience to Holders; provided that any such notice or other materials may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption or other
materials and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.


 


ARTICLE IV


SATISFACTION AND DISCHARGE


 


SECTION 4.1.                      Satisfaction
and Discharge of Indenture.


 


This Indenture shall, upon Company Request, cease to
be of further effect (except as to any surviving rights of registration of
transfer or exchange of Securities herein expressly provided for and as
otherwise provided in this Section 4.1) and the Trustee, on demand of and at


 


31





















 


the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when


 


(1)           either


 


(A)          all
Securities theretofore authenticated and delivered (other than (i) Securities
that have been destroyed, lost or stolen and that have been replaced or paid as
provided in Section 3.7 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 10.3) have been delivered to the Trustee for cancellation;
or


 


(B)           all
such Securities not theretofore delivered to the Trustee for cancellation


 


(i)            have
become due and payable, or


 


(ii)           will
become due and payable at their Stated Maturity within one year of the date of
deposit, or


 


(iii)          are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company,


 


and the Company, in the case of subclause (B)(i), (ii)
or (iii) above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the currency or currencies
in which the Securities of such series are payable sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for the principal (and premium, if any) and
interest (including Additional Interest, if any) to the date of such deposit
(in the case of Securities that have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;


 


(2)           the
Company has paid or caused to be paid all other sums payable hereunder by the
Company; and


 


(3)           the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel each stating that all conditions precedent herein provided relating to
the satisfaction and discharge of this Indenture have been complied with.


 


Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.7, the
obligations of the Trustee to any Authenticating Agent under Section 6.14 and,
if money shall have been deposited with the Trustee pursuant to subclause (B)
of clause (1) of this Section, the obligations of the Trustee under Section 4.2
and the last paragraph of Section 10.3 shall survive.


 


32





















 


Notwithstanding the foregoing, in any case where the Securities are not
due and payable and have not been called for redemption, such Securities shall
remain recourse obligations of the Company.


 


SECTION 4.2                       Application
of Trust Money.


 


Subject to the provisions of the last paragraph of Section 10.3,
all money deposited with the Trustee pursuant to Section 4.1 shall be held in
trust and applied by the Trustee, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest (including Additional Interest, if any) for the
payment of which such money or obligations have been deposited with or received
by the Trustee.


 


ARTICLE V


REMEDIES


 


SECTION 5.1.                      Events
of Default.


 


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


 


(1)           default
in the payment of any interest upon any Security of that series, including any Additional
Interest in respect thereof, when it becomes due and payable, and continuance
of such default for a period of 30 days (subject to the deferral of any due
date in the case of any Extension Period); or


 


(2)           default
in the payment of the principal of (or premium, if any, on) any Security of
that series at its Maturity, upon redemption, by declaration of acceleration or
otherwise; or


 


(3)           failure
on the part of the Company duly to observe or perform in any material respect
any other of the covenants or agreements on the part of the Company in the
Securities of that series or in this Indenture for a period of 90 days after
the date on which written notice of such failure, requiring the Company to
remedy the same, shall have been received by the Company from (i) the Trustee
by registered or certified mail or (ii) Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of that series; or


 


(4)           entry
by a court having jurisdiction in the premises of (A) a decree or order for
relief in respect of the Company in an involuntary case or proceeding under the
Bankruptcy Code, or any applicable federal or state bankruptcy, insolvency,


 


33





















 


reorganization or other similar law or (B) a decree or
order adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company under any applicable federal or state law
appointing a custodian, receiver, conservator, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of substantially all
of the property of the Company, or ordering the winding-up or liquidation of
its affairs, and in the case of (A) or (B) the continuance of any such decree
of order for relief or any such other decree or order unstayed and in effect
for a period of 60 consecutive days; or


 


(5)           (A)
the commencement by the Company of a voluntary case or proceeding under the
Bankruptcy Code, or any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or (B) the consent by the Company to the
entry of a decree of order for relief in respect of itself in an involuntary
case or proceeding under the Bankruptcy Code or any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against the
Company, or (C) the filing by the Company of a petition or answer or consent
seeking reorganization or relief under any applicable federal or state law or
(D) the consent by the Company to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, conservator,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or of all or substantially all of the property of the Company, or (E)
the making by the Company of an assignment for the benefit of creditors; or


 


(6)           any
other Event of Default provided with respect to Securities of that series.


 


SECTION 5.2.                      Acceleration
of Maturity; Rescission and Annulment.


 


If an Event of Default (other than an Event of Default
specified in Section 5.1(4) or 5.1(5)) with respect to Securities of any series
at the time Outstanding occurs and is continuing, then, and in every such case,
the Trustee or the Holders of not less than 25% in aggregate principal amount
of the Outstanding Securities of that series may declare the principal amount
(or, if the Securities of that series are Discount Securities, such portion of
the principal amount as may be specified in the terms of that series) of all
the Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), provided that, in the case of the Securities of a series
issued to an Issuer Trust, if, upon an Event of Default, the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of such series fail to declare the principal of all the Outstanding
Securities of such series to be immediately due and payable, the holders of at
least 25% in aggregate Liquidation Amount of the related series of Capital
Securities issued by such Issuer Trust then outstanding shall have the right to
make such declaration by a notice in writing to the Company and the Trustee;
and upon any such declaration such principal amount (or specified portion
thereof) of and the accrued interest (including Additional Interest, if any) on
all the Securities of such series shall become immediately due and
payable.  If an Event of Default


 


34





















 


specified in Sections 5.1(4) or 5.1(5) with respect to Securities of
any series at the time Outstanding occurs, the principal amount of all the
Securities of such series (or, if the Securities of such series are Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms of that series) shall automatically, and without any
declaration or other action on the part of the Trustee or any Holder, become
immediately due and payable.  Payment of
principal and interest (including any Additional Interest) on such Securities
shall remain subordinated to the extent provided in Article XIII
notwithstanding that such amount shall become immediately due and payable as
herein provided.


 


At any time after such a declaration of acceleration
with respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter provided in this Article, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of that series, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences and waive the Event of Default if:


 


(1)           the
Company has paid or deposited with the Trustee a sum sufficient to pay:


 


(A)          all
overdue installments of interest on all Securities of such series;


 


(B)           any
accrued Additional Interest, if any, on all Securities of such series;


 


(C)           the
principal of (and premium, if any, on) any Securities of such series that have
become due otherwise than by such declaration of acceleration and interest and
Additional Interest, if any, thereon at the rate borne by the Securities; and


 


(D)          all
sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel;
and


 


(2)           all
Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series that has become due
solely by such acceleration, have been cured or waived as provided in
Section 5.13.


 


In the case of Securities of a series initially issued
to an Issuer Trust, if the Holders of such Securities fail to annul such
declaration and waive such default, the holders of a majority in aggregate
Liquidation Amount of the related series of Capital Securities issued by such
Issuer Trust then outstanding shall also have the right to rescind and annul
such declaration and its consequences by written notice to the Company and the
Trustee, subject to the satisfaction of the conditions set forth in the
immediately preceding clauses (1) and (2) above of this Section 5.2.


 


No such rescission or waiver shall affect or apply to any subsequent
default or Event of Default or impair any right consequent thereon.


 


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SECTION 5.3.                      Collection
of Indebtedness and Suits for Enforcement by Trustee.


 


The Company covenants that if:


 


(1)           default
is made in the payment of any installment of interest (including Additional
Interest, if any) on any Security of any series when such interest becomes due
and payable and such default continues for a period of 30 days other than a
deferral of interest payments during an Extension Period, or


 


(2)           default
is made in the payment of the principal of (and premium, if any, on) any
Security at the Maturity thereof,


 


the Company will, upon demand of the Trustee, pay to
the Trustee, for the benefit of the Holders of such Securities, the whole
amount then due and payable on such Securities for principal (and premium, if
any) and interest (including Additional Interest, if any), and, in addition
thereto, all amounts owing the Trustee under Section 6.7.


 


If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums so
due and unpaid, and may prosecute such proceeding to judgment or final decree,
and may enforce the same against the Company or any other obligor upon such
Securities and collect the monies adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon the Securities, wherever situated.


 


If an Event of Default with respect to Securities of
any series occurs and is continuing, the Trustee may in its discretion proceed
to protect and enforce its rights and the rights of the Holders of Securities
of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.


 


SECTION 5.4.                      Trustee
May File Proofs of Claim.


 


In case of any receivership, conservatorship,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial or administrative proceeding relative to the
Company or any other obligor upon the Securities or the property of the Company
or of such other obligor or their creditors,


 


(a)           the
Trustee (irrespective of whether the principal of the Securities of any series
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal (and premium, if any) or
interest (including Additional Interest, if any)) shall be entitled and
empowered, by intervention in such proceeding or otherwise,


 


36





















 


(i)            to
file and prove a claim for the whole amount of principal (and premium, if any)
and interest (including Additional Interest, if any) owing and unpaid in
respect to the Securities and to file such other papers or documents as may be
necessary or advisable and to take any and all actions as are authorized under
the Trust Indenture Act in order to have the claims of the Holders, the Trustee
and any predecessor to the Trustee under Section 6.7 allowed in any such
judicial or administrative proceedings; and


 


(ii)           in
particular, the Trustee shall be authorized to collect and receive any monies
or other property payable or deliverable on any such claims and to distribute
the same in accordance with Section 5.6; and


 


(b)           any
custodian, receiver, conservator, assignee, trustee, liquidator, sequestrator,
(or other similar official) in any such judicial or administrative proceeding
is hereby authorized by each Holder to make such payments to the Trustee for
distribution in accordance with Section 5.6, and in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it and any predecessor Trustee under
Section 6.7.


 


Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding; provided, however, the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar official
and be a member of a creditors’ or other similar committee.


 


SECTION 5.5. 
Trustee May Enforce Claim Without Possession of Securities.


 


All rights of action and claims under this Indenture
or the Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, subject to Article XIII and after provision for the payment of
all the amounts owing the Trustee and any predecessor Trustee under
Section 6.7, its agents and counsel, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been recovered.


 


SECTION 5.6 
Application of Money Collected.


 


Any money or property collected or to be applied by
the Trustee with respect to a series of Securities pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money or property on account
of principal (or premium, if any) or interest (including Additional Interest,
if any), upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:


 


FIRST:                    To
the payment of all amounts due the Trustee and any predecessor Trustee under
Section 6.7;


 


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SECOND:               Subject
to Article XIII, to the payment of all amounts then due and unpaid upon
Securities of such series for principal (and premium, if any) and interest
(including Additional Interest, if any) in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority
of any kind, according to the amounts due and payable on such series of
Securities for principal (and premium, if any) and interest (including
Additional Interest, if any), respectively; and


 


THIRD:                  The
balance, if any, to the Person or Persons entitled thereto.


 


SECTION 5.7 
Limitation on Suits.


 


Subject to Section 5.8, no Holder of any
Securities of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture or for the appointment of
a receiver, conservator, assignee, trustee, liquidator, sequestrator (or other
similar official) or for any other remedy hereunder, unless:


 


(1)           an
Event of Default with respect to Securities of any series has occurred and is
continuing, and the Company has not paid or deposited with the Trustee all
amounts then payable;


 


(2)           such
Holder has previously given written notice to the Trustee of a continuing Event
of Default with respect to the Securities of that series;


 


(3)           the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;


 


(4)           such
Holder or Holders have offered to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in compliance with such request;


 


(5)           the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and


 


(6)           no
direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in aggregate principal
amount of the Outstanding Securities of that series;


 


it being understood and intended that no one or more
of such Holders shall have any right in any manner whatever by virtue of, or by
availing itself of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders of Securities, or to obtain or to
seek to obtain priority or preference over any other of such Holders or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all such Holders.


 


38





















 


SECTION 5.8.                      Unconditional
Right of Holders to Receive Principal, Premium and Interest; Direct Action by
Holders of Capital Securities.


 


Notwithstanding any other provision in this Indenture,
but subject to Article XIII, the Holder of any Security of any series shall
have the right, which is absolute and unconditional, to receive payment of the
principal of (and premium, if any) and (subject to Sections 3.8 and 3.12)
interest (including Additional Interest, if any) on such Security on the
respective Stated Maturities expressed in such Security (or in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such right shall not be impaired without the consent
of such Holder.  In the case of
Securities of a series issued to an Issuer Trust, any registered holder of
Capital Securities issued by such Issuer Trust shall, to the fullest extent
permitted by applicable law, have the right, upon the occurrence of an Event of
Default described in Sections 5.1(1) or 5.1(2) and subject to the same
terms and conditions as provided in Section 5.7 above, provided
the term “Holder” used therein shall be changed for purposes of this sentence
to “holder of Capital Securities” to institute a suit directly against the
Company for enforcement of payment to such holder of principal of (and premium,
if any) and (subject to Sections 3.8 and 3.12) interest (including Additional
Interest, if any) on the Securities having a principal amount equal to the
aggregate Liquidation Amount of such Capital Securities held by such holder.


 


SECTION 5.9.                      Restoration
of Rights and Remedies.


 


If the Trustee, any Holder or any holder of Capital
Securities issued by any Issuer Trust has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee, such Holder or such holder of Capital Securities, then, and in
every such case, the Company, the Trustee, such Holders and such holder of
Capital Securities shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee, such Holder and such holder
of Capital Securities shall continue as though no such proceeding had been
instituted.


 


SECTION 5.10.                      Rights and Remedies Cumulative.


 


Except as otherwise provided in the last paragraph of
Section 3.7, no right or remedy herein conferred upon or reserved to the
Trustee or the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.


 


SECTION 5.11.                    Delay
or Omission Not Waiver.


 


No delay or omission of the Trustee, any Holder of any
Security with respect to the Securities of the related series or any holder of
any Capital Security to exercise any right or


 


39





















 


remedy accruing upon any Event of Default with respect to the
Securities of the related series shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.


 


Every right and remedy given by this Article, or by
law to the Trustee or to the Holders and the right and remedy given to the
holders of Capital Securities by Sections 5.2 and 5.8 may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee, the
Holders or the holders of Capital Securities, as the case may be.


 


SECTION 5.12.                    Control
by Holders.


 


The Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee, with respect to the Securities of such series, provided  that:


 


(1)           such
direction shall not be in conflict with any rule of law or with this Indenture;


 


(2)           the Trustee
may take any other action deemed proper by the Trustee that is not inconsistent
with such direction; and


 


(3)           subject to
the provisions of Section 6.1, the Trustee shall have the right to decline
to follow such direction if a Responsible Officer or Officers of the Trustee
shall, in good faith, determine that the proceeding so directed would be
unjustly prejudicial to the Holders not joining in any such direction or would
involve the Trustee in personal liability.


 


SECTION 5.13.                    Waiver
of Past Defaults.


 


The Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of any series affected thereby
and, in the case of any Securities of a series initially issued to an Issuer
Trust, the holders of a majority in aggregate Liquidation Amount of the Capital
Securities issued by such Issuer Trust, may waive any past default hereunder
and its consequences with respect to such series, except a default:


 


(1)           in
the payment of the principal of (and premium, if any) or interest (including
Additional Interest, if any) on any Security of such series (unless such
default has been cured and the Company has paid to or deposited with the
Trustee a sum sufficient to pay all matured installments of interest (including
Additional Interest, if any) and all principal of (and premium, if any, on) all
Securities of that series due otherwise than by acceleration unless the Company
has deferred payments of interest during and Extension Period); or


 


(2)           in
respect of a covenant or provision hereof that under Article IX cannot be
modified or amended without the consent of each Holder of any Outstanding
Security of such series affected.


 


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Any such waiver shall be deemed to be on behalf of the
Holders of all the Securities of such series, or in the case of any Securities
of a series initially issued to an Issuer Trust, shall be deemed to be a waiver
by holders of Capital Securities issued by such Issuer Trust, by all holders of
Capital Securities issued by such Issuer Trust.


 


Upon any such waiver, such default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture, but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any right
consequent thereon.


 


SECTION 5.14.                    Undertaking
for Costs.


 


All parties to this Indenture agree, and each Holder
of any Security by his acceptance thereof shall be deemed to have agreed, that
any court may, in its discretion, require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may, in its discretion, assess reasonable costs, including
reasonable attorneys’ fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant, but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in aggregate principal amount
of the Outstanding Securities of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (and premium, if
any) or interest (including Additional Interest, if any) on any Security on or
after the respective Stated Maturities expressed in such Security, or in the
case of any redemption, on or after the Redemption Date for the enforcement of
the payment of the Redemption Price or the right to exchange such Securities
for Capital Securities, as provided herein or in the related Trust Agreement.


 


SECTION 5.15.                    Waiver
of Usury, Stay or Extension Laws.


 


The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.


 


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ARTICLE VI


THE TRUSTEE


 


SECTION 6.1.                      Certain
Duties and Responsibilities.


 


(a)           Except
during the continuance of an Event of Default,


 


(1)           the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and


 


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


 


(b)           In case an
Event of Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of his or her own affairs.


 


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


 


(1)           this
subsection shall not be construed to limit the effect of subsection (a) of
this Section;


 


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


 


(3)           the
Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of Holders pursuant
to Section 5.12 relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture with respect to the
Securities of a series.


 


(d)           No
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if
there shall be reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.


 


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(e)           Whether or
not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.


 


SECTION 6.2.                      Notice
of Defaults.


 


Within 90 days after actual knowledge by a Responsible
Officer of the Trustee of the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series, as their names and addresses appear in
the Securities Register, notice of such default, unless such default shall have
been cured or waived; provided, however, except
in the case of a default in the payment of the principal of (and premium, if
any) or interest (including Additional Interest, if any) on any Security of
such series, the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee or a trust committee
of directors and/or Responsible Officers of the Trustee in good faith
determines that the Company has properly deferred interest payments during an
Extension Period, or that the withholding of such notice is in the interests of
the Holders of Securities of such series; and provided
further, in the case of any default of the character specified in
Section 5.1(3), no such notice to Holders of Securities of such series
shall be given until at least 30 days after the occurrence thereof.  For the purpose of this Section, the term “default” means any event that is, or after notice or lapse
of time or both would become, an Event of Default with respect to Securities of
such series.


 


SECTION 6.3.                      Certain
Rights of Trustee.


 


Subject to the provisions of Section 6.1:


 


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


 


(b)           any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution;


 


(c)           whenever
in the administration of this Indenture the Trustee shall deem it desirable
that a matter be proved or established prior to taking, suffering or omitting
any action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an Officers’
Certificate;


 


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


 


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(e)           the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction;


 


(f)            the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, indenture, Security or other
paper or document, but the Trustee in its discretion may make such inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney; and


 


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


 


SECTION 6.4.                      Not
Responsible for Recitals or Issuance of Securities.


 


The recitals contained herein and in the Securities,
except the Trustee’s certificates of authentication, shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness.  The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities of any series
or of the Capital Securities.  Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of the Securities or the proceeds thereof.


 


SECTION 6.5.                      May
Hold Securities.


 


The Trustee, any Authenticating Agent, any Paying
Agent, any Securities Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 6.8 and 6.13, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Authenticating
Agent, Paying Agent, Securities Registrar or such other agent.


 


SECTION 6.6.                      Money
Held in Trust.


 


Money held by the Trustee in trust hereunder need not
be segregated from other funds except to the extent required by law.  The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed with
the Company.


 


SECTION 6.7.                      Compensation
and Reimbursement.


 


(a)           The
Company agrees to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder in such amounts as the Company and
the


 


44





















 


Trustee shall agree from time to time (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust).


 


(b)           The
Company agrees to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence, bad faith, or willful misconduct.


 


(c)           Since the
Issuer Trust is being formed solely to facilitate an investment in the Trust
Securities, the Company, as Depositor of the Issuer Trust under the Trust
Agreement, hereby covenants to pay all debts and obligations (other than with
respect to the Capital Securities and the Common Securities) and all reasonable
costs and expenses of the Issuer Trust (including without limitation all
relating to the organization and operation of the Issuer Trust (including,
without limitation, the fees and expenses of the trustees)) and any and all
taxes, duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed on the Issuer Trust by the United States, or
any taxing authority, so that the net amounts received and retained by the
Issuer Trust and the Property Trustee after paying such expenses will be equal
to the amounts the Issuer Trust and the Property Trustee would have received
had no such costs or expenses been incurred by or imposed on the Issuer
Trust.  The foregoing obligations of the
Company are for the benefit of, and shall be enforceable by, any person to whom
any such debts, obligations, costs, expenses and taxes are owed (each, a “Creditor”),
whether or not such Creditor has received notice thereof.  Any such Creditor may enforce such
obligations directly against the Company, and the Company irrevocably waives
any right or remedy to require that any such Creditor take any action against
the Issuer Trust or any other person before proceeding against the Company.  The Company shall execute such additional
agreements as may be necessary or desirable to give full effect to the
foregoing.


 


(d)           The
Company shall indemnify the Trustee for, and hold it harmless against, any
loss, liability or expense (including the reasonable compensation and the
expenses and disbursements of its agents and counsel) incurred without
negligence or bad faith, arising out of or in connection with the acceptance or
administration of this trust or the performance of its duties hereunder,
including the reasonable costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.  This
indemnification shall survive the termination of this Indenture or the
resignation or removal of the Trustee.


 


When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 5.1(4) or 5.1(5) occurs,
the expenses and the compensation for the services are intended to constitute
expenses of administration under the Bankruptcy Code.


 


SECTION 6.8.                      Disqualification;
Conflicting Interests.


 


The Trustee for the Securities of any series issued
hereunder shall be subject to the provisions of Section 310(b) of the
Trust Indenture Act.  Nothing herein
shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of


 


45





















 


said Section 310(b).  To the
extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to
have a conflicting interest with respect to Securities of any series by virtue
of being a trustee under this Indenture with respect to any other series
hereunder.  The Trust Agreement and the
Guarantee Agreement shall be deemed to be specifically described in this
Indenture for purposes of clause (i) of the first proviso contained in Section
310(b) of the Trust Indenture Act.


 


SECTION 6.9. 
Corporate Trustee Required; Eligibility.


 


There shall at all times be a Trustee hereunder which
shall be:


 


(a)           an entity
organized and doing business under the laws of the United States of America or
of any state or territory thereof or of the District of Columbia, authorized
under such laws to exercise corporate trust powers and subject to supervision
or examination by Federal, state, territorial or District of Columbia
authority; or


 


(b)           an entity
or other Person organized and doing business under the laws of a foreign
government that is permitted to act as Trustee pursuant to a rule, regulation
or order of the Commission, authorized under such laws to exercise corporate
trust powers, and subject to supervision or examination by authority of such
foreign government or a political subdivision thereof substantially equivalent
to supervision or examination applicable to United States institutional
trustees;


 


in either case having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by Federal or state
authority.  If such entity publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then, for the purposes of
this Section, the combined capital and surplus of such entity shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.  Neither the Company nor any
Person directly or indirectly controlling, controlled by or under common
control with the Company shall serve as Trustee for the Securities of any
series issued hereunder.


 


SECTION 6.10. 
Resignation and Removal; Appointment of Successor.


 


(a)           No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 6.11.


 


(b)           The
Trustee may resign at any time with respect to the Securities of one or more
series by giving written notice thereof to the Company.  If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.


 


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(c)           The
Trustee may be removed at any time with respect to the Securities of any series
by Act of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.


 


(d)           If at any
time:


 


(1)           the Trustee
shall fail to comply with Section 6.8 after written request therefor by
the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months; or


 


(2)           the
Trustee shall cease to be eligible under Section 6.9 and shall fail to
resign after written request therefor by the Company or by any such Holder; or


 


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


 


then, in any such case, (i) the Company, acting pursuant to the
authority of a Board Resolution, may remove the Trustee with respect to the
Securities of all series issued hereunder, or (ii) subject to
Section 5.14, any Holder who has been a bona fide Holder
of a Security for at least six months may, on behalf of such Holder and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to the Securities of all series issued
hereunder and the appointment of a successor Trustee or Trustees.


 


(e)           If the
Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause with respect to the
Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee with respect to the Securities of that or
those series.  If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in aggregate principal amount of
the Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to
the Securities of such series and supersede the successor Trustee appointed by
the Company.  If no successor Trustee
with respect to the Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, subject to
Section 5.14, on behalf of such Holder and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.


 


(f)            The
Company shall give notice of each resignation and each removal of the Trustee
with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities of such series as their names and addresses


 


47





















 


appear in the Securities Register. 
Each notice shall include the name of the successor Trustee with respect
to the Securities of such series and the address of its Corporate Trust Office.


 


SECTION 6.11.                    Acceptance
of Appointment by Successor.


 


(a)           In case of
the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder.


 


(b)           In case of
the appointment hereunder of a successor Trustee with respect to the Securities
of one or more (but not all) series, the Company, the retiring Trustee and each
successor Trustee with respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, (2) if the retiring
Trustee is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees or co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each removal of the
retiring Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts, and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.


 


(c)           Upon
request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all rights, powers and trusts referred to in
paragraphs (a) or (b) of this Section 6.11, as the case may be.


 


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(d)           No
successor Trustee shall accept its appointment unless, at the time of such
acceptance, such successor Trustee shall be qualified and eligible under this
Article VI.


 


SECTION 6.12.                    Merger,
Conversion, Consolidation or Succession to Business.


 


Any entity into which the Trustee may be merged or
converted or with which it may be consolidated, or any entity resulting from
any merger, conversion or consolidation to which the Trustee shall be a party,
or any entity succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder, provided such entity shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or
any further act on the part of any of the parties hereto.  In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated, and in case
any Securities shall not have been authenticated, any successor to the Trustee
may authenticate such Securities either in the name of any predecessor Trustee
or in the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee shall have.


 


SECTION 6.13.                    Preferential
Collection of Claims Against Company.


 


If and when the Trustee shall be or become a creditor
of the Company (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor).


 


SECTION 6.14.                    Appointment
of Authenticating Agent.


 


The Trustee may appoint an Authenticating Agent or
Agents with respect to one or more series of Securities, which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue and upon exchange, registration of transfer
or partial redemption thereof or pursuant to Section 3.6, and Securities
so authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder.  Wherever reference is made in
this Indenture to the authentication and delivery of Securities by the Trustee
or the Trustee’s certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent.  Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be an entity organized and doing business under the laws of the United States
of America, or of any state or territory thereof or of the District of
Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $100,000,000 and subject to
supervision or examination by Federal or state authority.  If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published.  If at
any time an Authenticating Agent shall cease to be eligible in accordance


 


49





















 


with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.


 


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


 


An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the Company.  The Trustee may at any time terminate the
agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. 
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent, which shall be acceptable to the Company and
shall give notice of such appointment in the manner provided in
Section 1.6 to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve. 
Any successor Authenticating Agent upon acceptance hereunder shall
become vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent.  No successor Authenticating Agent shall be
appointed unless eligible under the provision of this Section.


 


The Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this Section,
and the Trustee shall be entitled to be reimbursed for such payment, subject to
the provisions of Section 6.7.


 


If an appointment with respect to one or more series
is made pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee’s certificate of authentication,
an alternative certificate of authentication in the following form:


 


50





















 


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


 


 


	
  Dated: 

  	
   

  	
   

  	
  WILMINGTON TRUST
  COMPANY,

  as Trustee 

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  As Authenticating Agent
  for the Trustee 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name of Authorized
  Officer: 

  
	
   

  	
  Title:

  



 


 


ARTICLE VII


HOLDER LISTS AND REPORTS BY
TRUSTEE,


PAYING AGENT AND COMPANY


 


SECTION 7.1.                      Company
to Furnish Trustee Names and Addresses of Holders.


 


The Company will furnish or cause to be furnished to
the Trustee with respect to Securities of each series for which it acts as
Trustee hereunder:


 


(a)           quarterly,
not more than 15 days after each regular record date for each Interest Payment
Date, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of such record date; and


 


(b)           at such
other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is furnished; provided, however, no such list need be furnished, if and so
long as the Trustee is the Securities Registrar.


 


SECTION 7.2.                      Preservation
of Information; Communications to Holders.


 


(a)           The
Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders contained in the most recent list furnished to
the Trustee as provided in Section 7.1 and the names and addresses of
Holders received by the Trustee in its capacity as Securities Registrar.  The Trustee may destroy any list furnished to
it as provided in Section 7.1 upon receipt of a new list so furnished.


 


(b)           The rights
of Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and
privileges of the Trustee, shall be as provided in the Trust Indenture Act.


 


51





















 


(c)           Every
Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any agent
of either of them shall be held accountable by reason of the disclosure of
information as to the names and addresses of the Holders made pursuant to the
Trust Indenture Act.


 


SECTION 7.3.                      Reports
by Trustee and Paying Agent.


 


(a)           The
Trustee shall transmit to Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act, at the times and in the manner provided pursuant thereto.


 


(b)           Reports so
required to be transmitted at stated intervals of not more than 12 months
shall be transmitted no later than January 31 in each calendar year,
commencing with the first January 31 after the first issuance of
Securities under this Indenture.


 


(c)           A copy of
each such report shall, at the time of such transmission to Holders, be filed
by the Trustee with each securities exchange, if any, upon which any Securities
are listed, and also with the Commission, if and to the extent then required by
the Commission’s rules and regulations. 
The Company will notify the Trustee when any Securities are listed on
any securities exchange.


 


(d)           The Paying
Agent shall comply with all withholding, backup withholding, tax and
information reporting requirements under the Internal Revenue Code of 1986, as
amended, and the Treasury Regulations issued thereunder with respect to
payments on, or with respect to, the Securities.


 


SECTION 7.4.                      Reports
by Company.


 


The Company shall file or cause to be filed with the
Trustee and with the Commission, if and to the extent then required by the
Commission’s rules and regulations, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided in
the Trust Indenture Act, if this Indenture is then qualified under and subject
to the Trust Indenture Act.  In the case
of information, documents or reports required to be filed with the Commission
pursuant to Section 13(a) or Section 15(d) of the Exchange Act, the
Company shall file or cause the filing of such information documents or reports
with the Trustee within 15 days after the same are required to be filed
with the Commission. Annually, by April 30 of each year, the Company will file
with the Trustee a certificate of compliance with all conditions and covenants
applicable to the Company hereunder.


 


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ARTICLE VIII


CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE


 


SECTION 8.1.                      Company
May Consolidate, Etc., Only on Certain Terms.


 


The Company shall not consolidate with or merge into
any other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:


 


(1)           the
Person resulting from such consolidation or merger or the Person to which the
Company conveys, transfers or leases its properties and assets substantially as
an entirety shall be an entity organized and existing under the laws of the
United States of America or any state thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any), interest (including
Additional Interest, if any) and Additional Sums, if any, on all the Securities
of every series and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;


 


(2)           immediately
after giving effect to such transaction, no Event of Default, and no event that,
after notice or lapse of time, or both, would constitute an Event of Default,
shall have occurred and be continuing; and


 


(3)           the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or
lease and any such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with and met. The Trustee, subject to Section 6.1, may rely upon
such Officers’ Certificates and Opinions of Counsel as conclusive evidence that
such transaction complies with this Section 8.1.


 


SECTION 8.2.                      Successor
Company Substituted.


 


Upon any consolidation or merger by the Company with
or into any other Person, or any conveyance, transfer or lease by the Company
of its properties and assets substantially as an entirety to any Person in
accordance with Section 8.1, the successor entity formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein;
and in the event of any conveyance, transfer or lease of the Company’s
properties and assets substantially as an entirety and not as part of a merger
or consolidation, the Company shall be discharged from all obligations and
covenants under the Indenture and the Securities.


 


Such successor Person may cause to be executed, and
may issue either in its own name or in the name of the Company, any or all of
the Securities issuable hereunder that theretofore shall not have been signed
by the Company and delivered to the Trustee; and, upon the order of such


 


53





















 


successor Person
instead of the Company and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities that previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication pursuant to such
provisions and any Securities that such successor Person thereafter shall cause
to be executed and delivered to the Trustee on its behalf for the purpose
pursuant to such provisions.  All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture.


 


In case of any such consolidation, merger, sale,
conveyance or lease, such changes in phraseology and form may be made in the
Securities thereafter to be issued as may be appropriate.


 


ARTICLE IX


SUPPLEMENTAL INDENTURES


 


SECTION 9.1.                      Supplemental
Indentures Without Consent of Holders.


 


Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may amend or waive any provision of this Indenture or may enter into one
or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:


 


(1)           to
evidence the succession of another Person to the Company, and the assumption by
any such successor of the covenants of the Company herein and in the Securities
contained; or


 


(2)           to
convey, transfer, assign, mortgage or pledge any property to or with the
Trustee, or to surrender any right or power herein conferred upon the Company;
or


 


(3)           to
establish the form or terms of Securities of any series as permitted by
Sections 2.1 or 3.1; or


 


(4)           to
facilitate the issuance of Securities of any series in certificated or other
definitive form; or


 


(5)           to
add to the covenants of the Company for the benefit of the Holders of all or
any series of Securities (and if such covenants are to be for the benefit of
less than all series of Securities, stating that such covenants are expressly
being included solely for the benefit of the series specified), or to surrender
any right or power herein conferred upon the Company; or


 


(6)           to
add any additional Events of Default for the benefit of the Holders of all or
any series of Securities (and if such additional Events of Defaults are to be
for the benefit of less than all series of Securities, stating that such
additional Events of Default are expressly being included solely for the
benefit of the series specified); or


 


54





















 


(7)           to
change or eliminate any of the provisions of this Indenture, provided that any such change or elimination shall (a)
become effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture that is entitled
to the benefit of such provision or (b) not apply to any Outstanding
Securities; or


 


(8)           to
cure any ambiguity, to correct or supplement any provision herein that may be
defective or inconsistent with any other provision herein or in any Trust
Agreement establishing an Issuer Trust to which Securities have been or are to
be issued, or to make any other provisions with respect to matters or questions
arising under this Indenture, provided that such
action pursuant to this clause (8) shall not adversely affect the (i)
interests of the Holders of Securities of any series in any material respect
or, (ii) in the case of the Securities of a series issued to an Issuer Trust
and for so long as any of the corresponding series of Capital Securities issued
by such Issuer Trust shall remain outstanding, the interests of holders of such
Capital Securities; or


 


(9)           to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 6.11(b); or


 


(10)         to
comply with the requirements of the Commission in order to effect or maintain
the qualification of this Indenture under the Trust Indenture Act.


 


SECTION 9.2.                      Supplemental
Indentures with Consent of Holders.


 


With the consent of the Holders of not less than a majority
in aggregate principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security of each series affected thereby,


 


(1)           change
the Stated Maturity of the principal of, or any installment of interest
(including any Additional Interest) on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of principal of a Discount Security
that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.2, change any obligation of the
Company to pay Additional Sums pursuant to Section 10.6 hereof (except as
contemplated by Section 8.1 and permitted by Section 9.1(1)), or change the
place of payment where, or the coin or currency in which, any Security or
interest thereon or any other sum is payable, or impair the right to institute


 


55





















 


suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or


 


(2)           reduce
the percentage in aggregate principal amount of the Outstanding Securities of
any series, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or


 


(3)           modify
any of the provisions of this Section, Section 5.13 or Section 10.5,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Security affected thereby;


 


provided, further, that, in the
case of the Securities of a series issued to an Issuer Trust, so long as any of
the corresponding series of Capital Securities issued by such Issuer Trust
remains outstanding, (i) no such amendment shall be made that adversely
affects the holders of such Capital Securities in any material respect, and no
termination of this Indenture shall occur, and no waiver of any Event of
Default or compliance with any covenant under this Indenture shall be effective,
without the prior consent of the holders of at least a majority of the
aggregate Liquidation Amount of such Capital Securities then outstanding,
unless and until the principal of (and premium, if any, on) the Securities of
such series and all accrued and (subject to Section 3.8) unpaid interest
(including Additional Interest, if any) thereon have been paid in full, and
(ii) no amendment shall be made to Section 5.8 of this Indenture that
would impair the rights of the holders of Capital Securities issued by an
Issuer Trust provided therein without the prior consent of the holders of each
such Capital Security then outstanding unless and until the principal of (and
premium, if any, on) the Securities of such series and all accrued and (subject
to Section 3.8) unpaid interest (including Additional Interest, if any)
thereon have been paid in full.


 


A supplemental indenture that changes or eliminates
any covenant or other provision of this Indenture that has expressly been
included solely for the benefit of one or more particular series of Securities
or any corresponding series of Capital Securities of an Issuer Trust that holds
the Securities of any series, or that modifies the rights of the Holders of
Securities of such series or the holders of such Capital Securities of such
corresponding series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or the holders of Capital Securities of any other
such corresponding series.


 


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


 


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SECTION 9.3.                      Execution
of Supplemental Indentures.


 


In executing or accepting the additional trusts
created by any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Section 6.1) shall be fully
protected in relying upon, an Officers’ Certificate and an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture, and that all conditions precedent herein provided
for relating to such action have been complied with.  The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture that affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise.


 


SECTION 9.4.                      Effect
of Supplemental Indentures.


 


Upon the execution of any supplemental indenture under
this Article, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.


 


SECTION 9.5.                      Conformity
with Trust Indenture Act.


 


Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act as then in
effect.


 


SECTION 9.6.                      Reference
in Securities to Supplemental Indentures.


 


Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Company, bear a notation in form approved by the
Company as to any matter provided for in such supplemental indenture.  If the Company shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.


 


ARTICLE X


COVENANTS


 


SECTION 10.1.                    Payment
of Principal, Premium and Interest.


 


The Company covenants and agrees for the benefit of
each series of Securities that it will duly and punctually pay the principal of
(and premium, if any) and interest (including Additional Interest, if any) on
the Securities of that series in accordance with the terms of such Securities
and this Indenture.


 


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SECTION 10.2.                    Maintenance
of Office or Agency.


 


The Company will maintain in each Place of Payment for
any series of Securities an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities of that series
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served.  The
Company initially appoints the Trustee, acting through its Corporate Trust Office,
as its agent for said purposes.  The
Company will give prompt written notice to the Trustee of any change in the
location of any such office or agency. 
If at any time the Company shall fail to maintain such office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.


 


The Company may also from time to time designate one
or more other offices or agencies where the Securities may be presented or
surrendered for any or all of such purposes, and may from time to time rescind
such designations; provided, however,
no such designation or rescission shall in any manner relieve the Company of
its obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. 
The Company will give prompt written notice to the Trustee of any such
designation and any change in the location of any such office or agency.


 


SECTION 10.3.                    Money
for Security Payments to be Held in Trust.


 


If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or before each due
date of the principal of (and premium, if any) or interest (including
Additional Interest, if any) on any of the Securities of such series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (and premium, if any) or interest (including
Additional Interest) so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee of its failure so to act.


 


Whenever the Company shall have one or more Paying
Agents, it will, prior to 10:00 A.M. Eastern Time, on each due date of the
principal of (or premium, if any) or interest, including Additional Interest on
any Securities, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest, including Additional Interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal (and premium, if any) or interest, including
Additional Interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its failure so to act.


 


The Company will cause each Paying Agent other than
the Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:


 


(1)           hold all
sums held by it for the payment of the principal of (and premium, if any) or
interest (including Additional Interest) on the Securities of a series in trust
for the benefit of


 


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the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;


 


(2)           give the
Trustee notice of any default by the Company (or any other obligor upon such
Securities) in the making of any payment of principal (and premium, if any) or
interest (or Additional Interest) in respect of any Security of any series;


 


(3)           at any
time during the continuance of any default with respect to a series of
Securities, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent with respect to such
series; and


 


(4)           comply
with the provisions of the Trust Indenture Act applicable to it as a Paying
Agent.


 


The Company may, at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent, such sums
to be held by the Trustee upon the same terms as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.


 


Any money deposited with the Trustee or any Paying
Agent, or then held by the Company in trust for the payment of the principal of
(and premium, if any), and/or interest (including Additional Interest) on, any
Security and remaining unclaimed for two years after such principal (and
premium, if any), and/or interest (including Additional Interest) has become
due and payable shall (unless otherwise required by mandatory provision of
applicable escheat or abandoned or unclaimed property law) be paid on Company
Request to the Company, or (if then held by the Company) shall (unless
otherwise required by mandatory provision of applicable escheat or abandoned or
unclaimed property law) be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, the
Trustee or such Paying Agent, before being required to make any such repayment,
may, at the expense of the Company, cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, the City of New York
and in each Place of Payment, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.


 


SECTION 10.4.                    Statement
as to Compliance.


 


The Company shall deliver to the Trustee, within 120
days after the end of each fiscal year of the Company ending after the date
hereof, an Officers’ Certificate covering the preceding calendar year, stating
whether or not to the best knowledge of the signers thereof the Company is


 


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in default in the performance, observance or fulfillment of or
compliance with any of the terms, provisions, covenants and conditions of this
Indenture, and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.  For the purpose of this Section 10.4,
compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.


 


SECTION 10.5.                    Waiver
of Certain Covenants.


 


Subject to the rights of holders of Capital Securities
specified in Section 9.2, if any, the Company may omit in any particular
instance to comply with any covenant or condition provided pursuant to
Section 3.1 with respect to the Securities of any series, if before or
after the time for such compliance the Holders of at least a majority in
aggregate principal amount of the Outstanding Securities of such series shall,
by Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company in respect of any such covenant or condition shall
remain in full force and effect.


 


SECTION 10.6.                    Additional
Sums.


 


In the case of the Securities of a series initially
issued to an Issuer Trust, so long as no Event of Default has occurred and is
continuing and except as otherwise specified as contemplated by
Section 2.1 or Section 3.1, if (i) an Issuer Trust is the Holder
of all of the Outstanding Securities of such series, and (ii) a Tax Event
has occurred and is continuing in respect of such Issuer Trust, the Company
shall pay to such Issuer Trust (and its permitted successors or assigns under
the related Trust Agreement) for so long as such Issuer Trust (or its permitted
successors or assigns) is the registered holder of the Outstanding Securities
of such series, such additional sums as may be necessary in order that the
amount of Distributions (including any Additional Amounts (as defined in such
Trust Agreement)) then due and payable by such Issuer Trust on its Capital
Securities and Common Securities that at any time remain outstanding in
accordance with the terms thereof shall not be reduced as a result of such
Additional Taxes (the “Additional Sums”).  Whenever in this Indenture or the Securities
there is a reference in any context to the payment of principal of or interest
on the Securities, such mention shall be deemed to include mention of the
payments of the Additional Sums provided for in this paragraph to the extent
that, in such context, Additional Sums are, were or would be payable in respect
thereof pursuant to the provisions of this paragraph and express mention of the
payment of Additional Sums (if applicable) in any provisions hereof shall not
be construed as excluding Additional Sums in those provisions hereof where such
express mention is not made; provided, however, that the deferral of the
payment of interest pursuant to Section 3.12 on the Securities shall not
defer the payment of any Additional Sums that may be due and payable.


 


SECTION 10.7.                    Additional
Covenants.


 


The Company covenants and agrees with each Holder of
Securities of each series that it shall not (x) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any shares of the Company’s capital stock, or (y)


 


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make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the
Securities of such series (other than (a) repurchases, redemptions or
other acquisitions of shares of capital stock of the Company in connection with
any employment contract, benefit, or incentive plan or other similar
arrangement with or for the benefit of any one or more employees, officers,
directors or consultants of the Company or its Subsidiaries, in connection with
a dividend reinvestment or stock purchase plan or in connection with capital
stock of the Company (or securities convertible into or exercisable for such
capital stock) issued as consideration in an acquisition transaction entered
into prior to the applicable Extension Period or other event referred to below,
(b) as a result of an exchange or conversion of any class or series of the
Company’s capital stock (or any capital stock of a Subsidiary of the Company)
for any class or series of the Company’s capital stock or of any class or
series of the Company’s indebtedness for any class or series of the Company’s
capital stock, (c) the purchase of fractional interests in shares of the
Company’s capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, (d) any
declaration of a dividend in connection with any Rights Plan, or the issuance
of rights, stock or other property under any Rights Plan, or the redemption or
repurchase of rights pursuant thereto, (e) any dividend in the form of
stock, warrants, options or other rights where the dividend stock or the stock
issuable upon exercise of such warrants, options or other rights is the same
stock as that on which the dividend is being paid or ranks pari passu
with or junior to such stock or (f) payments by the Company under the
Guarantee), if at such time (i) there shall have occurred any event
(A) of which the Company has actual knowledge that with the giving of
notice or the lapse of time, or both, would constitute an Event of Default
under Sections 5.1(1), (2), (3), (4) or (5) with respect to the Securities of
such series, and (B) which the Company shall not have taken reasonable
steps to cure, (ii) if the Securities of such series are held by an Issuer
Trust, the Company shall be in default with respect to its payment of any
obligations under the Guarantee relating to the Capital Securities issued by
such Issuer Trust, (iii) the Company shall have given notice of its
election to begin an Extension Period with respect to the Securities of such
series as provided herein and shall not have rescinded such notice or shall not
have paid all interest then accrued and unpaid on the Securities (together with
Additional Interest thereon, if any), in accordance with Section 3.12, or (iv)
an Extension Period or any extension thereof shall be continuing.


 


The Company also covenants with each Holder of
Securities of a series issued to an Issuer Trust (i) to hold, directly or
indirectly, 100% of the Common Securities of such Issuer Trust, provided  that any
permitted successor of the Company as provided under Section 8.2 may succeed to
the Company’s ownership of such Common Securities, (ii) as holder of such
Common Securities, not to voluntarily terminate, wind up or liquidate such
Issuer Trust, other than (a) in connection with a distribution of the
Securities of such series to the holders of the related Capital Securities in
liquidation of such Issuer Trust, or (b) in connection with certain
mergers, consolidations or amalgamations permitted by the related Trust
Agreement, and (iii) to use its reasonable efforts, consistent with the
terms and provisions of such Trust Agreement, to cause such Issuer Trust to
continue to be taxable as a grantor trust for United States Federal income tax
purposes.


 


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SECTION 10.8.                    Furnishing
Annual Information.


 


On or before December 15 of each year during which any
Securities are outstanding, the Company shall furnish to each Paying Agent such
information as may be reasonably requested by each Paying Agent in order that
each Paying Agent may prepare the information which it is required to report
for such year on Internal Revenue Service Forms 1096 and 1099 pursuant to
Section 6049 of the Internal Revenue Code of 1986, as amended.  Such information shall include the amount of
any original issue discount includable in income for each authorized minimum
denomination of principal amount at Stated Maturity of outstanding Securities
during such year.


 


ARTICLE XI


REDEMPTION OF SECURITIES


 


SECTION 11.1.                    Applicability
of This Article.


 


Redemption of Securities of any series as permitted or
required by the terms of any form of Security issued pursuant to this Indenture
shall be made in accordance with the terms of such form of Security and this
Article; provided, however, if any provision of
any such form of Security shall conflict with any provision of this Article,
the provision of such form of Security shall govern.  Any redemption of any Security prior to its
Stated Maturity shall also be subject to prior notice, and approval of (or
notice of intent not to disapprove of) the redemption, if then required by the
capital adequacy rules or otherwise by the Texas or Oklahoma Departments of
Insurance or any other applicable regulatory authority.


 


SECTION 11.2.                    Election
to Redeem; Notice to Trustee.


 


The election of the Company to redeem any Securities
shall be evidenced by or pursuant to a Board Resolution.  In case of any redemption at the election of
the Company, the Company shall, not less than 30 nor more than 60 days prior to
the Redemption Date (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee and, in the case of Securities of a series held by
an Issuer Trust, the Property Trustee under the related Trust Agreement, of
such date and of the principal amount of Securities of the applicable series to
be redeemed and provide the additional information required to be included in
the notice or notices contemplated by Section 11.4; provided
that, in the case of any series of Securities initially issued to an
Issuer Trust, for so long as such Securities are held by such Issuer Trust,
such notice shall be given not less than 45 nor more than 75 days prior to such
Redemption Date (unless a shorter notice shall be satisfactory to the Property
Trustee under the related Trust Agreement). 
In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities,
the Company shall furnish the Trustee with an Officers’ Certificate and an
Opinion of Counsel evidencing compliance with such restriction.


 


SECTION 11.3.    Selection
of Securities to be Redeemed.


 


If less than all the Securities of any series are to
be redeemed, the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by


 


62





















 


such method as the Trustee shall deem fair and appropriate and which
may provide for the selection for redemption of a portion of the principal
amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.


 


The Trustee shall promptly notify the Company in
writing of the Securities selected for partial redemption and the principal
amount thereof to be redeemed.  For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case
of any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security that has been or is to be redeemed.


 


SECTION 11.4.                    Notice
of Redemption.


 


Notice of redemption shall be given by first-class
mail, postage prepaid, mailed not later than 30 days, and not earlier than 60
days, prior to the Redemption Date, to each Holder of Securities to be
redeemed, at the address of such Holder as it appears in the Securities
Register.


 


With respect to Securities of such series to be
redeemed, each notice of redemption shall state:


 


(a)           the
Redemption Date;


 


(b)           the
Redemption Price or, if the Redemption Price cannot be calculated prior to the
time the notice is required to be sent, the estimate of the Redemption Price
provided pursuant to the Indenture together with a statement that it is an
estimate and that the actual Redemption Price will be calculated on the third
Business Day prior to the Redemption Date (if such an estimate of the
Redemption Price is given, a subsequent notice shall be given as set forth
above setting forth the Redemption Price promptly following the calculation
thereof);


 


(c)           if less
than all Outstanding Securities of such particular series are to be redeemed,
the identification (and, in the case of partial redemption, the respective
principal amounts) of the particular Securities to be redeemed;


 


(d)           that, on
the Redemption Date, the Redemption Price will become due and payable upon each
such Security or portion thereof, and that interest thereon (including
Additional Interest, if any), if any, shall cease to accrue on and after said
date;


 


(e)           the Place
or Places of Payment where such Securities are to be surrendered for payment of
the Redemption Price;


 


(f)            such
other provisions as may be required in respect of the terms of a particular
series of Securities;


 


(g)           that the
redemption is for a sinking fund, if such is the case; and


 


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(h)           the CUSIP number,
if any.


 


Notice of redemption of Securities to be redeemed at
the election of the Company shall be given by the Company or, at the Company’s
request, by the Trustee in the name and at the expense of the Company and shall
be irrevocable.  The notice, if mailed in
the manner provided above, shall be conclusively presumed to have been duly
given, whether or not the Holder receives such notice.  In any case, a failure to give such notice by
mail or any defect in the notice to the Holder of any Security designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security.


 


SECTION 11.5.                    Deposit
of Redemption Price.


 


Prior to 10:00 A.M. Eastern Time, on the Redemption
Date specified in the notice of redemption given as provided in
Section 11.4, the Company will deposit with the Trustee or with one or
more Paying Agents (or if the Company is acting as its own Paying Agent, the
Company will segregate and hold in trust as provided in Section 10.3) an
amount of money sufficient to pay the Redemption Price of, and any accrued
interest (including Additional Interest) on, all the Securities (or portions
thereof) that are to be redeemed on that date.


 


SECTION 11.6.    Payment
of Securities Called for Redemption.


 


If any notice of redemption has been given as provided
in Section 11.4, the Securities or portion of Securities with respect to
which such notice has been given shall become due and payable on the date and
at each Place of Payment stated in such notice at the applicable Redemption
Price, together with accrued interest (including Additional Interest, if any)
to the Redemption Date.  On presentation
and surrender of such Securities duly endorsed or accompanied by written
instruments of transfer executed by the Holder or its duly authorized attorney,
in form satisfactory to the Company, the Trustee and the Securities Registrar,
at a Place of Payment in said notice specified, the said Securities or the
specified portions thereof shall be paid and redeemed by the Company at the
applicable Redemption Price, together with accrued interest (including
Additional Interest, if any) to the Redemption Date; provided,
however, unless otherwise specified as contemplated by
Section 3.1, installments of interest (including Additional Interest)
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant record dates according
to their terms and the provisions of Section 3.8.


 


Upon presentation of any Security redeemed in part
only, duly endorsed or accompanied by written instrument of transfer executed
by the Holder or its duly authorized attorney, in form satisfactory to the
Company, the Trustee and the Securities Registrar, the Company shall execute
and the Trustee shall authenticate and deliver to the Holder thereof, at the
expense of the Company, a new Security or Securities of the same series, of
authorized denominations, in an aggregate principal amount equal to the
unredeemed portion of the Security so presented and having the same Original
Issue Date, Stated Maturity and terms.


 


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Unless the Company fails to deposit or pay the
Redemption Price, together with accrued interest (including Additional
Interest, if any), upon the Redemption Date the Securities to be redeemed shall
no longer be Outstanding and no interest (including Additional Interest, if
any) shall accrue thereon, and upon receipt of any certification representing
the redeemed Securities shall be cancelled as provided in Section 3.10.  If any Security called for redemption shall
not be so paid under surrender thereof for redemption, the principal of and premium,
if any, on such Security shall, until paid, bear interest from the Redemption
Date at the rate prescribed therefor in the Security.


 


SECTION 11.7.                    Right
of Redemption of Securities Initially Issued to an Issuer Trust.


 


In the case of the Securities of a series initially
issued to an Issuer Trust, except as otherwise specified by Section 3.1,
the Company, at its option, may redeem such Securities (i) on or after the
date specified in such Security, in whole at any time or in part from time to
time, or (ii) upon the occurrence and during the continuation of a Tax
Event or an Investment Company Event, at any time within 120 days following the
occurrence and during the continuation of such Tax Event or Investment Company
Event, in whole (but not in part), in each case at a Redemption Price specified
in such Security, together with accrued interest (including Additional
Interest, if any) to the Redemption Date.


 


If less than all the Securities of any such series are
to be redeemed, the aggregate principal amount of such Securities remaining
Outstanding after giving effect to such redemption shall be sufficient to
satisfy any provisions of the Trust Agreement related to the Issuer Trust to
which such Securities were issued, including any requirement in such Trust
Agreement as to the minimum Liquidation Amount (as defined in such Trust
Agreement), if any, of Capital Securities that may be held by a holder under
such Trust Agreement.


 


Notwithstanding any provision of this Article XI or
any other provision of this Indenture, each redemption of any Security is
subject to Article XIII.


 


ARTICLE XII


SINKING FUNDS


 


Except as may be provided in any supplemental or
amended indenture, no sinking fund shall be established or maintained for the
retirement of Securities of any series.


 


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ARTICLE XIII


SUBORDINATION OF SECURITIES


 


SECTION 13.1.                    Securities
Subordinate to Senior Indebtedness.


 


The Company covenants and agrees, and each Holder of a
Security, by its acceptance thereof, likewise covenants and agrees, that, to
the extent and in the manner hereinafter set forth in this Article, the payment
of the principal of (and premium, if any) and interest (including Additional
Interest, if any) on each and all of the Securities of each and every series
are hereby expressly made subordinate and junior to and subject in right of
payment to the prior payment in full of all Senior Indebtedness, and the
Securities of each and every series issued initially to an Issuer Trust shall
be pari passu with all other Securities
issued initially hereunder to Issuer Trusts.


 


SECTION 13.2.                    No
Payment When Senior Indebtedness in Default; Payment Over of Proceeds Upon
Dissolution, Etc.


 


If the Company shall default in the payment of any
principal of (or premium, if any) or interest on any Senior Indebtedness when
the same becomes due and payable, whether at maturity or at a date fixed for
prepayment or by declaration of acceleration or otherwise, then, upon written
notice of such default to the Company by the holders of Senior Indebtedness or
any trustee therefor, unless and until such default shall have been cured or
waived or shall have ceased to exist, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) shall be made or agreed to be
made on account of the principal of (or premium, if any) or interest (including
Additional Interest, if any) on any of the Securities, or in respect of any
redemption, repayment, retirement, purchase or other acquisition of any of the
Securities.


 


In the event of (i) any insolvency, bankruptcy,
receivership, conservatorship, liquidation, reorganization, readjustment,
composition or other similar proceeding relating to the Company, its creditors
or its property, (ii) any proceeding for the liquidation, dissolution or other
winding-up of the Company, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings, (iii) any assignment by the Company for
the benefit of creditors or (iv) any other marshalling of the assets of the
Company (each such event, if any, herein sometimes referred to as a “Proceeding”),
all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full in accordance
with the terms of the agreements governing such Senior Indebtedness and all
commitments to extend or create Senior Indebtedness shall be terminated before
any payment or distribution, whether in cash, securities or other property,
shall be made to any Holder of any of the Securities on account thereof.  Any payment or distribution, whether in cash,
securities or other property (other than securities of the Company or any other
entity provided for by a plan of reorganization or readjustment, the payment of
which is subordinate, at least to the extent provided in these subordination
provisions with respect to the indebtedness evidenced by the Securities, to the
payment of all Senior Indebtedness at the time outstanding and to any
securities issued in respect thereof under any such plan of reorganization or
readjustment), which would otherwise (but for these subordination provisions)
be payable or deliverable in respect of the Securities of any series shall be
paid or delivered directly to the holders of Senior Indebtedness in accordance
with


 


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the priorities then existing among such holders until all Senior
Indebtedness (including any interest thereon accruing after the commencement of
any Proceeding) shall have been paid in full.


 


In the event of any Proceeding, after payment in full
of all sums owing with respect to Senior Indebtedness in accordance with the
terms of the agreements governing such Senior Indebtedness and the termination
of all commitments to extend or create Senior Indebtedness, the Holders of the
Securities, together with the holders of any obligations of the Company ranking
on a parity with the Securities, shall be entitled to be paid from the
remaining assets of the Company the amounts at the time due and owing on
account of unpaid principal of (and premium, if any) and interest (including
Additional Interest, if any) on the Securities and such other obligations
before any payment or other distribution, whether in cash, property or
otherwise, shall be made on account of any capital stock or any obligations of
the Company ranking junior to the Securities and such other obligations.


 


If, notwithstanding the foregoing, any payment or
distribution of any character or any security, whether in cash, securities or
other property (other than securities of the Company or any other entity
provided for by a plan of reorganization or readjustment, the payment of which
is subordinate, at least to the extent provided in these subordination
provisions with respect to the indebtedness evidenced by the Securities, to the
payment of all Senior Indebtedness at the time outstanding and to any
securities issued in respect thereof under any plan of reorganization or
readjustment), shall be received by the Trustee or any Holder in contravention
of any of the terms hereof and before all Senior Indebtedness shall have been
paid in full in accordance with the terms of the agreements governing such
Senior Indebtedness and all commitments to extend or create Senior Indebtedness
shall be terminated, such payment or distribution or security shall be received
in trust for the benefit of, and shall be paid over or delivered and
transferred to, the holders of the Senior Indebtedness at the time outstanding
in accordance with the priorities then existing among such holders for
application to the payment of all Senior Indebtedness remaining unpaid, to the
extent necessary to pay all such Senior Indebtedness in full.  In the event of the failure of the Trustee or
any Holder to endorse or assign any such payment, distribution or security,
each holder of Senior Indebtedness is hereby irrevocably authorized to endorse
or assign the same.


 


No present or future holder of any Senior Indebtedness
shall be prejudiced in the right to enforce subordination of the indebtedness
evidenced by the Securities by any act or failure to act on the part of the
Company, the Trustee or any Holder. 
Nothing contained herein shall impair, as between the Company and the
Holders of Securities of each series, the obligation of the Company to pay to
such Holders the principal of (and premium, if any) and interest (including
Additional Interest) on such Securities or prevent the Trustee or the Holder
(or to the extent expressly provided herein, the holder of any Capital Securities)
from exercising all rights, powers and remedies otherwise permitted by
applicable law or hereunder upon a default or Event of Default hereunder, all
subject to the rights of the holders of the Senior Indebtedness to receive
cash, securities or other property otherwise payable or deliverable to the
Holders.


 


Senior Indebtedness shall not be deemed to have been
paid in full unless the holders thereof shall have received cash, securities or
other property equal to the amount of such Senior


 


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Indebtedness then outstanding in accordance with the terms of the
agreements governing such Senior Indebtedness.


 


The Company, the Trustee and the Holders shall take
such action (including, without limitation, the delivery of this Indenture to
an agent for the holders of Senior Indebtedness or consent to the filing of a
financing statement with respect hereto and acts and filings with respect to
any Proceeding) as may, in the opinion of counsel designated by the holders of
a majority in principal amount of the Senior Indebtedness at the time
outstanding, be necessary or appropriate to assure the effectiveness of the
subordination effected by these provisions.


 


The provisions of this Section 13.2 shall not impair
any rights, interests, remedies or powers of any secured creditor of the
Company in respect of any security interest the creation of which is not
prohibited by the provisions of this Indenture.


 


The securing of any obligations of the Company,
otherwise ranking on a parity with the Securities or ranking junior to the
Securities shall not be deemed to prevent such obligations from constituting,
respectively, obligations ranking on a parity with the Securities or ranking
junior to the Securities.


 


SECTION 13.3.                    Payment
Permitted If No Default.


 


Nothing contained in this Article or elsewhere in this
Indenture or in any of the Securities shall prevent (a) the Company, at
any time, except during the pendency of the conditions described in the first
paragraph of Section 13.2 or of any Proceeding referred to in
Section 13.2, from making payments at any time of principal of (and
premium, if any) or interest (including Additional Interest) on the Securities,
or (b) the application by the Trustee of any monies deposited with it
hereunder to the payment of or on account of the principal of (and premium, if
any) or interest (including any Additional Interest) on the Securities or the
retention of such payment by the Holders, if, at the time of such application
by the Trustee, the Trustee did not have knowledge that such payment would have
been prohibited by the provisions of this Article.


 


SECTION 13.4.                    Subrogation
to Rights of Holders of Senior Indebtedness; Etc.


 


Upon and following the payment in full of all amounts
due or to become due on all Senior Indebtedness in accordance with the terms of
the agreements governing the Senior Indebtedness, or the provision for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to
the holders of the applicable Senior Indebtedness and the termination of all
commitments to extend or create Senior Indebtedness, the Holders of the
Securities of each series shall be subrogated to all rights of the holders of
such Senior Indebtedness (equally and ratably with the holders of all
indebtedness of the Company that by its express terms is subordinated to Senior
Indebtedness of the Company to substantially the same extent as the Securities
of such series are subordinated to the Senior Indebtedness and is entitled to
like rights of subrogation by reason of any payments or distributions made to
holders of such Senior Indebtedness) to receive any further payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness until the principal of (and premium if any) and interest
(including Additional Interest) on the Securities of such series, if any, shall
be paid in full.  No


 


68





















 


payments or distributions to the holders of the Senior Indebtedness of
any cash, property or securities to which the Holders of the Securities of each
series or the Trustee would be entitled except for the provisions of this
Article XIII, and no payments over pursuant to the provisions of this Article
XIII to or for the benefit of the holders of Senior Indebtedness by Holders of
the Securities or the Trustee, shall, as among the Company, its creditors other
than holders of Senior Indebtedness, and the Holders of the Securities, be
deemed to be a payment or distribution by the Company to or on account of the
Senior Indebtedness.


 


SECTION 13.5.                    Provisions
Solely to Define Relative Rights.


 


The provisions of this Article are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Securities on the one hand and the holders of Senior Indebtedness on the other
hand.  Nothing contained in this Article
or elsewhere in this Indenture or in the Securities is intended to or
shall:  (a) impair, as between the
Company and the Holders of the Securities, the obligations of the Company,
which are absolute and unconditional, to pay to the Holders of the Securities
the principal of (and premium, if any) and interest (including any Additional
Interest) on the Securities as and when the same shall become due and payable
in accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Securities and creditors of the Company other
than their rights in relation to the holders of Senior Indebtedness; or (c)
prevent the Trustee or the Holder of any Security (or to the extent expressly
provided herein, the holder of any Capital Security) from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, including filing and voting claims in any Proceeding, subject to the
rights, if any, under this Article of the holders of Senior Indebtedness to
receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder.


 


SECTION 13.6.                    Trustee
to Effectuate Subordination.


 


Each Holder of a Security by his or her acceptance
thereof authorizes and directs the Trustee on his or her behalf to take such
action (including any act or filing with respect to any Proceeding) as may be
necessary or appropriate to acknowledge or effectuate the subordination
provided in this Article and appoints the Trustee his or her attorney-in-fact
for any and all such purposes.


 


SECTION 13.7.                    No
Waiver of Subordination Provisions.


 


No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof that any such holder may
have or be otherwise charged with.


 


Without in any way limiting the generality of the
immediately preceding paragraph, the holders of Senior Indebtedness may, at any
time and from time to time, without the consent of or notice to the Company,
the Trustee or the Holders of the Securities of any series, without


 


69





















 


incurring responsibility to the Company, the Trustee or such Holders of
the Securities and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of the Company, the Trustee or such
Holders of the Securities to the holders of Senior Indebtedness, do any one or
more of the following:  (i) create Senior
Indebtedness, (ii) change the manner, place or terms of payment or extend
the time of payment of, or renew or alter, Senior Indebtedness, or otherwise
amend or supplement in any manner Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding, (iii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Indebtedness, (iv) release
any Person liable in any manner for the collection of Senior Indebtedness, and
(v) exercise or refrain from exercising any rights against the Company and
any other Person; and Senior Indebtedness shall continue to be Senior
Indebtedness entitled to the benefits of the subordination provisions of this
Article XIII.  The Company, the Trustee
and each Holder waive notice of each event described in the preceding sentence.


 


SECTION 13.8.                    Notice
to Trustee.


 


The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the Company that would
prohibit the making of any payment to or by the Trustee in respect of the
Securities.  Notwithstanding the
provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment to or by the Trustee in respect of the
Securities, unless and until a Responsible Officer of the Trustee shall have
received written notice thereof from the Company or a holder of Senior
Indebtedness or from any trustee, agent or representative therefor; provided, however, if the Trustee shall not have received
the notice provided for in this Section at least two Business Days prior to the
date upon which by the terms hereof any monies may become payable for any
purpose (including, the payment of the principal of (and premium, if any, on)
or interest (including any Additional Interest) on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such monies and to apply the same to
the purpose for which they were received and shall not be affected by any
notice to the contrary that may be received by it within two Business Days
prior to such date.


 


Subject to the provisions of Section 6.1, the Trustee
shall be entitled to rely on the delivery to it of a written notice by a Person
representing himself or herself to be a holder of Senior Indebtedness (or a trustee
or attorney-in-fact therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee or attorney-in-fact therefor).  The Trustee shall immediately notify the
Company by telephone of the receipt of any such notice.  In the event that the Trustee determines in
good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment
or receipt by the Trustee of


 


70





















 


information reasonably satisfactory to the Trustee evidencing the right
of such Person to receive such payment.


 


SECTION 13.9.                    Reliance
on Judicial Order or Certificate of Liquidating Agent.


 


Upon any payment or distribution of assets of the
Company referred to in this Article, the Trustee, subject to the provisions of
Section 6.1, and the Holders of the Securities shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which
such Proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, conservator, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution, delivered
to the Trustee or to the Holders of Securities, for the purpose of ascertaining
the Persons entitled to participate in such payment or distribution, the
holders of the Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article.


 


SECTION 13.10.                 Trustee
Not Fiduciary for Holders of Senior Indebtedness.


 


The Trustee, in its capacity as trustee under this
Indenture, shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if it shall in
good faith mistakenly pay over or distribute to Holders of Securities or to the
Company or to any other Person cash, property or securities to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article or
otherwise; provided that, this Section 13.10 shall
not relieve any Holder of Securities of its obligation to turn over to the
holders of Senior Indebtedness any payments made to any such Holder of
Securities in violation of this Indenture.


 


SECTION 13.11.                 Rights
of Trustee as Holder of Senior Indebtedness; Preservation of Trustee’s Rights.


 


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


 


SECTION 13.12.                 Article
Applicable to Paying Agents.


 


In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then acting hereunder,
the term “Trustee” as used in this Article shall in such case (unless the
context otherwise requires) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if
such Paying Agent were named in this Article in addition to or in place of the
Trustee.


 


71





















 


SECTION 13.13.                 Certain
Conversions or Exchanges Deemed Payment.


 


For purposes of this Article only, (a) the issuance
and delivery of junior securities upon conversion or exchange of Securities of
any series shall not be deemed to constitute a payment or distribution on
account of the principal of (or premium, if any, on) or interest (including any
Additional Interest) on such Securities or on account of the purchase or other
acquisition of such Securities, and (b) the payment, issuance or delivery of
cash, property or securities (other than junior securities) upon conversion or
exchange of a Security of any series shall be deemed to constitute payment on
account of the principal of such security. 
For the purposes of this Section, the term “junior
securities” means (i) shares of capital stock of any class of
the Company, and (ii) securities of the Company that are subordinated in
right of payment to all Senior Indebtedness that may be outstanding at the time
of issuance or delivery of such securities to substantially the same extent as,
or to a greater extent than, the Securities are so subordinated as provided in
this Article.


 


* * * *


 


This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.  The exchange of copies of this Indenture and
of signature pages by facsimile or electronic transmission shall constitute
effective execution and delivery of this Indenture as to the parties hereto,
and may be used in lieu of the original signature pages to this Indenture for
all purposes.


 


 


[Remainder of page left
intentionally blank; signatures appear on following page.]


 


72





















 


IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.


 


 


	
   

  	
  GAINSCO, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Glenn W. Anderson 

  	
   

  
	
   

  	
  Name:  Glenn
  W. Anderson 

  
	
   

  	
  Title:  President
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  ATTEST:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/John S. Daniels

  	
   

  	
   

  
	
   

  	
   

  
	
  Secretary

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  [CORPORATE SEAL]

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WILMINGTON TRUST
  COMPANY,

  individually and as Trustee,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Janel R. Havrilla

  	
   

  
	
   

  	
  Name: Janel R. Havrilla 

  
	
   

  	
  Title: Senior Financial Services Officer

  
						



 


73





















 


EXHIBIT A


 


THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR ANY APPLICABLE STATE OR OTHER JURISDICTION’S SECURITIES OR BLUE
SKY LAWS, AND NO SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR DISPOSED OF ABSENT AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR SUCH OTHER APPLICABLE
SECURITIES OR BLUE SKY LAWS COVERING SUCH SECURITIES OR UNLESS SUCH TRANSFER IS
MADE IN ACCORDANCE WITH AN AVAILABLE EXEMPTION UNDER THE SECURITIES ACT, WHICH
MAY INCLUDE EXEMPTIONS UNDER REGULATION S, RULE 144A, RULE 144 OR ANY OTHER
AVAILABLE EXEMPTION UNDER THE SECURITIES ACT, AND ANY OTHER APPLICABLE
SECURITIES OR BLUE SKY LAWS, AND THE COMPANY RECEIVES AN OPINION OF COUNSEL
FROM THE HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE COMPANY
STATING THAT SUCH OFFER, SALE, TRANSFER, ASSIGNMENT, PLEDGE, HYPOTHECATION, OR
DISPOSITION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND ANY OTHER APPLICABLE SECURITIES OR BLUE SKY LAWS.


 


THIS
SECURITY IS NOT A DEPOSIT OR AN OBLIGATION OF ANY DEPOSITORY INSTITUTION, IS
NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
GOVERNMENT AGENCY, AND IS NOT SECURED.


 


 


GAINSCO,
INC.


 


FLOATING
RATE


JUNIOR
SUBORDINATED DEBENTURES


 


DUE MARCH
31, 2036


 


	
   

  	
   

  	
  Aggregate Principal Amount

  
	
  Certificate No. -001-

  	
   

  	
  $25,774,000

  



 


GAINSCO, INC., a
Texas corporation (the “Company,” which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to WILMINGTON TRUST COMPANY, not in its individual capacity but
solely as Property Trustee of GAINSCO CAPITAL TRUST I, a statutory trust
created under the laws of the State of Delaware, or registered assigns, the
principal sum of TWENTY-FIVE MILLION SEVEN HUNDRED SEVENTY-FOUR THOUSAND AND
NO/100 DOLLARS ($25,774,000) on March 31, 2036; provided
that the Company may shorten the Stated
Maturity of the principal of this Security to a date not earlier than March


 


A-1





















 


31, 2011, subject
to redemption by the Company as provided in Section 11.7 of the Indenture, but
in no event shall the Stated Maturity be a date later than March 31, 2036.  The Company further promises to pay interest
on said principal from the date of issuance, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, quarterly
(subject to deferral as set forth herein) in arrears on March 31, June 30,
September 30, and December 31 of each year, except that if any such date falls
on a day that is not a Business Day, the Company promises to pay interest on
the next succeeding Business Day, unless such Business Day is in the next
succeeding calendar year, in which case the Company promises to pay interest on
the immediately preceding Business Day (each, a “Distribution Date”),
commencing March 31, 2006, at the floating rate per annum, reset quarterly on
each Distribution Date for the next succeeding quarter, equal to the 3-Month
LIBOR for the last London banking day (which is any day in which dealings in
deposits in U.S. dollars are transacted in the London interbank market) of each
of March, June, September and December, as applicable (each, a “Determination
Date”), plus 3.85% (the “Floating Rate”)
on the principal amount outstanding hereunder, together with Additional Sums,
if any, as provided in Section 10.6 of the Indenture, until the principal
hereof is paid or duly provided for or made available for payment.  Any principal, premium or Additional Sums and
any overdue installment of interest not paid when due shall bear Additional
Interest at the Floating Rate (to the extent that the payment of such interest
shall be legally enforceable), compounded quarterly, from the dates such
amounts are due until they are paid or made available for payment.  The amount of interest payable for any full
quarterly period shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.  The amount of
interest payable for any period less than a full quarter shall be computed on
the basis of a 360-day year and the actual number of days elapsed during that
period.  The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Holder at the close of business on
the Regular Record Date for such interest installment.  Any such interest not so punctually paid or
duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Holder registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee (notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special
Record Date) or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange, if any, on which the
Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.


 


“3-Month LIBOR” means the London interbank offered rate for three-month, U.S. dollar
deposits determined by the Indenture Trustee, with respect to the particular
quarterly period, in the following order of priority:


 


(i) the rate (expressed as
a percentage per annum) for U.S. dollar deposits of an amount equal or
comparable to the aggregate liquidation amount of the Securities having a
three-month maturity that appears on Telerate Page 3750 as of 11:00 a.m.
(London time) on the particular Determination Date.  “Telerate Page 3750” means the display
designated as “Page 3750” on the Dow Jones Telerate Service or such other page
as may replace Page 3750 on that service or such other service or services as
may be nominated by the British Bankers’ Association as the information vendor
for the purpose of displaying London interbank offered rates for U.S. dollar
deposits;


 


(ii) if such rate cannot be
identified on the related Determination Date, the Indenture Trustee will
request the principal London offices of four leading banks in the London
interbank market to provide such banks’ offered quotations (expressed as
percentages per annum) to prime banks in the London interbank market for U.S.
dollar deposits of an amount equal or comparable to the aggregate liquidation
amount of the Securities having a three-month maturity as of 11:00 a.m. (London
time) on


 


A-2





















 


such Determination Date.  If at least two quotations are provided,
3-Month LIBOR will be the arithmetic mean of such quotations;


 


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


 


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


 


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


 


So long as no
Event of Default has occurred and is continuing, the Company shall have the
right as provided in Section 3.12 of the Indenture, at any time during the term
of this Security, from time to time to defer the payment of interest on this
Security for up to 20 consecutive quarterly interest payment periods with
respect to each deferral period (each, an “Extension Period”), during
which Extension Periods the Company shall have the right to make no payments or
partial payments of interest on any Interest Payment Date, and at the end of
which the Company shall pay all interest then accrued and unpaid including
Additional Interest, as provided below; provided, however,
that no Extension Period shall extend beyond the Stated Maturity of the
principal of this Security and no such Extension Period may end on a date other
than an Interest Payment Date; and provided, further,
however, that during any such Extension Period, the Company shall not (i)
declare or pay any dividends or distributions on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of the Company’s capital
stock, or (ii) make any payment of principal or interest or premium, if any, on
or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to
this Security (other than (a) repurchases, redemptions or other acquisitions of
shares of capital stock of the Company in connection with any employment
contract, benefit or incentive plan or other similar arrangement with or for
the benefit of any one or more employees, officers, directors or consultants of
the Company or any of its subsidiaries, in connection with a dividend
reinvestment or stock purchase plan or in connection with capital stock of the
Company (or securities convertible into or exercisable for such capital stock)
issued as consideration in an acquisition transaction entered into prior to the
applicable Extension Period, (b) as a result of an exchange or conversion of
any class or series of the Company’s capital stock (or any capital stock of a
Subsidiary of the Company) for any class or series of the Company’s capital
stock or of any class or series of the Company’s indebtedness for any class or
series of the Company’s capital stock, (c) the purchase of fractional interests
in shares of the Company’s capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged,
(d) any declaration of a dividend in connection with any Rights Plan, or the
issuance of rights, stock or other property under any Rights Plan, or the
redemption or repurchase of rights pursuant thereto, (e) any dividend in the
form of stock, warrants, options or other rights where the dividend stock or
the stock issuable upon exercise of such warrants, options or other rights is
the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock or (f)


 


A-3





















 


payments by the
Company under the Guarantee).  Prior to
the termination of any such Extension Period, the Company may further defer the
payment of interest, provided  that no Event of Default has occurred and is continuing and provided further, that no Extension Period shall exceed 20
consecutive quarterly interest payment periods, extend beyond the Stated
Maturity of the principal of this Security or end on a date other than an
Interest Payment Date.  Upon the
termination of any such Extension Period and upon the payment of all accrued
and unpaid interest and any Additional Interest then due on any Interest Payment
Date, the Company may elect to begin a new Extension Period, subject to the
above conditions.  No interest shall be
due and payable during an Extension Period, except at the end thereof, but each
installment of interest that would otherwise have been due and payable during
such Extension Period shall bear Additional Interest (to the extent that the
payment of such interest shall be legally permissible) at the Floating Rate per
annum, compounded quarterly and calculated as set forth in the first paragraph
of this Security, from the date on which such amounts would otherwise have been
due and payable until paid or made available for payment.  The Company shall give the Holders of this
Security and the Trustee notice of its election to begin any Extension Period
at least one Business Day prior to the next succeeding Interest Payment Date on
which interest on this Security would be payable but for such deferral, or so
long as Capital Securities are held by the Issuer Trust, at least one Business
Day prior to the earlier of (i) the next succeeding date on which Distributions
on the Capital Securities of such Issuer Trust would be payable but for such
deferral, and (ii) the record date for determining the holders of such Capital
Securities entitled to such Distributions on the Capital Securities.


 


Payment of the
principal of (and premium, if any) and interest on this Security will be made
at the office or agency of the Company maintained for that purpose in the
United States, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts,
which unless otherwise changed by the Company shall be the Corporate Trust
Office.


 


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


 


Reference is
hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.


 


Unless the
certificate of authentication hereon has been executed by the Trustee referred
to on the reverse hereof by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.


 


A-4





















 


IN WITNESS
WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.


 


 


	
   

  	
  GAINSCO, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title: President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attest:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Secretary

  	
   

  
	
   

  	
   

  
	
  [CORPORATE SEAL]

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  This is one of
  the Securities of the series designated therein referred to in the
  within-mentioned Indenture.

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  WILMINGTON TRUST
  COMPANY

  
	
   

  	
  not in its
  individual capacity, but solely as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  	
   

  
									



 


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Reverse
of Security


 


This Security is
one of a duly authorized issue of securities of the Company (herein called the “Securities”),
issued and to be issued in one or more series under the Junior Subordinated
Indenture, dated as of January    , 2006 (herein called the “Indenture”),
between the Company and Wilmington Trust Company, as Trustee (herein called the
“Trustee,” which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee, the
holders of Senior Indebtedness and the Holders of the Securities, and of the
terms upon which the Securities are, and are to be, authenticated and
delivered.  This Security is one of the
series designated on the face hereof, and is limited to the aggregate principal
amount of $25,774,000.


 


All terms used but
not defined in this Security, shall have the respective meanings provided in
the Indenture or in the Amended and Restated Trust Agreement, dated as of
January    , 2006 (as modified, amended or supplemented from time
to time the “Trust Agreement”), relating to Gainsco Capital Trust I (“Issuer
Trust”), among the Company, as Depositor, the Issuer Trustees named
therein, the Administrators named therein, and the Holders from time to time of
the Trust Securities issued pursuant thereto.


 


The Company has
the right to redeem this Security (i) on or after March 31, 2011 in whole at
any time or in part from time to time, or (ii) in whole (but not in part), at
any time within 120 days following the occurrence and during the continuation
of a Tax Event or Investment Company Event, in each case at the Redemption
Price described below. The redemption of Securities of any series as permitted
or required by the terms of this Certificate or the Indenture shall be made in
accordance with the terms of this Certificate and Article XI of the Indenture; provided, however, that if any provision of this Certificate
shall conflict with any provision of such Article XI, the provision of this
Certificate shall govern.  Any redemption
of any Security prior to its Stated Maturity shall also be subject to prior
notice, and approval of (or notice of intent not to disapprove) the redemption,
if then required by the capital adequacy rules or otherwise by the Texas or
Oklahoma Departments of Insurance or any other applicable regulatory agency.


 


The Redemption
Price in the case of redemption under clause (i) or (ii) in the preceding
paragraph shall mean a price equal to the Liquidation Amount of the Securities
to be redeemed, together with accumulated Distributions to, but excluding, the
Redemption Date.


 


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


 


The Indenture
permits, with certain exceptions as provided therein, the Company and the
Trustee at any time to enter into a supplemental indenture or indentures for
the purpose of modifying in any manner the rights and obligations of the Company
and of the Holders of the Securities, with the consent of the Holders of not
less than a majority in aggregate principal amount of the Outstanding
Securities of each series to be affected by such supplemental indenture.  The Indenture also contains provisions
permitting Holders of specified percentages in aggregate principal amount of
the Securities of each series at the time Outstanding, on behalf of the Holders
of all Securities of such series, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences.  Any
such consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.


 


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As provided in and
subject to the provisions of the Indenture, if an Event of Default with respect
to the Securities of this series at the time Outstanding occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities of this
series may declare the principal amount of all the Securities of this series to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), provided that,
if the Outstanding Securities have been issued to and are held by an Issuer
Trust, and if upon an Event of Default, the Trustee or such Holders fail to
declare the principal of all the Outstanding Securities of this series to be
immediately due and payable, the Holders of at least 25% in aggregate
Liquidation Amount of the related series of Capital Securities issued by the
Issuer Trust then outstanding shall have the right to make such declaration by
a notice in writing to the Company and the Trustee; and upon any such
declaration, the principal amount of and the accrued interest (including
Additional Interest, if any) on all the Securities of this series shall become
immediately due and payable, provided that the
payment of principal and interest (including any Additional Interest) on such
Securities shall remain subordinated to the extent provided in
Article XIII of the Indenture.


 


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


 


As provided in the
Indenture and subject to certain limitations set forth therein, the transfer of
this Security is registrable in the Securities Register, upon surrender of this
Security for registration of transfer at the office or agency of the Company
maintained under Section 10.2 of the Indenture for such purpose, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar duly executed by, the
Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Securities of this series, of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.


 


The Securities of
this series are issuable only in registered form without coupons in minimum
denominations of $1,000 and integral multiples of $1,000 in excess
thereof.  To the fullest extent permitted
by applicable law, any transfer, exchange or other disposition of Securities in
contravention of Section 3.6(b)(v) of the Indenture shall be deemed to be
void and of no legal effect whatsoever, any such transferee shall be deemed not
to be the Holder or owner of any beneficial interest in such Securities for any
purpose, including but not limited to the receipt of interest payable on such
Securities, and such transferee shall be deemed to have no interest whatsoever
in such Securities. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.


 


In the event of a
distribution of the Securities to holders of the Trust Securities, as provided
in Section 9.4 of the Trust Agreement, the Securities will be issued in minimum
denominations of $1,000 and integral multiples of $1,000 in excess thereof to
holders of the Common Securities issued by the Issuer Trust, and in minimum
denominations of $1,000 and integral multiples of $1,000 in excess thereof to
holders of the Capital Securities issued by the Issuer Trust.


 


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


 


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Prior to due
presentment of this Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
this Security is registered as the owner hereof for all purposes, whether or
not this Security be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.


 


The Company and,
by its acceptance of this Security or a beneficial interest therein, the Holder
of, and any Person that acquires a beneficial interest in, this Security, each
agrees that for United States Federal, state and local tax purposes it is
intended that this Security constitute indebtedness and shall be treated as
such.


 


THIS SECURITY
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS.


 


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EXHIBIT B


 


RESTRICTED SECURITIES CERTIFICATE


 


(For transfers pursuant to
§ 3.6(b) of the Indenture)


 


Wilmington Trust Company,


as Security Registrar


1100 North Market Street


Rodney Square North


Wilmington, Delaware  19890-0001


Attention:  Corporate Trust
Administration


 


Re:          Floating
Rate Junior Subordinated Debentures Due March 31, 2036 (“Junior Subordinated
Debentures”) of Gainsco, Inc. (the “Company”)


 


Reference is made to the Junior Subordinated
Indenture, dated as of January     , 2006 (the “Indenture”),
among the Company and Wilmington Trust Company, as Trustee (as defined
therein).  Terms used herein and defined
in the Junior Subordinated Indenture or in Regulation D, Rule 144A or Rule 144
under the U.S. Securities Act of 1933 (the “Securities Act”) are used
herein as so defined.


 


This certificate relates to $                                                               
aggregate Liquidation Amount of Junior Subordinated Debentures, which are
evidenced by the following certificate(s) (the “Specified Securities”):


 


CUSIP No(s).


 


CERTIFICATE No(s).                                                  


 


CURRENTLY IN BOOK-ENTRY FORM:   o  Yes   o  No (check one)


 


The person in whose name this certificate is executed below (the “Undersigned”)
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do
so.  Such beneficial owner or owners are
referred to herein collectively as the “Owner.” 
If the Specified Securities are represented by a Global Security, they
are held through the Clearing Agency or a Clearing Agency Participant in the
name of the Undersigned, as or on behalf of the Owner.  If the Specified Securities are not
represented by a Global Security, they are registered in the name of the
Undersigned, as or on behalf of the Owner.


 


The Owner has requested that the Specified Securities be
transferred to a person (the “Transferee”) who will take delivery in the
form of a Restricted Security.  In
connection with such transfer, the Owner hereby certifies that, unless such
transfer is


 


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being effected pursuant to an effective registration statement under
the Securities Act, it is being effected in accordance with Rule 144A, Rule 904
or Rule 144 under the Securities Act or other exemption from registration under
the Securities Act, and all applicable securities laws of the states of the
United States and other jurisdictions. 
Accordingly, the Owner hereby further certifies as follows:


 


1.             Rule
144A Transfers.  If the transfer is
being effected in accordance with Rule 144A:


 


(A)          the
Specified Securities are being transferred to a person that the Owner and any
person acting on its behalf reasonably believe is a “qualified institutional
buyer” within the meaning of Rule 144A, acquiring for its own account or for
the account of a qualified institutional buyer; and


 


(B)           the Owner
and any person acting on its behalf have taken reasonable steps to ensure that
the Transferee is aware that the Owner may be relying on Rule 144A in
connection with the transfer; and


 


2.             Rule
904 Transfers.  If the transfer is
being effected in accordance with Rule 904:


 


(A)          the Owner
is not a distributor of the Securities, an affiliate of the Company or the
Issuer Trust or any such distributor or a person acting on behalf of any of the
foregoing;


 


(B)           the offer
of the Specified Securities was not made to a person in the United States;


 


(C)           either:


 


(i)            at
the time the buy order was originated, the Transferee was outside the United
States or the Owner and any person acting on its behalf reasonably believed
that the Transferee was outside the United States, or


 


(ii)           the
transaction is being executed in, on or through the facilities of the Eurobond
market, as regulated by the Association of International Bond Dealers, or
another designated offshore securities market and neither the Owner nor any
person acting on its behalf knows that the transaction has been prearranged
with a buyer in the United States;


 


(D)          no directed
selling efforts within the meaning of Rule 902 of Regulation S have been made
in the United States by or on behalf of the Owner or any affiliate thereof; and


 


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(E)           the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act.


 


3.             Rule
144 Transfers.  If the transfer is
being effected pursuant to Rule 144:


 


(A)          the
transfer is occurring after a holding period of at least one year (computed in
accordance with paragraph (d) of Rule 144 or such shorter time as may be
provided therein) has elapsed since the date the Specified Securities were
acquired from the Company or the Issuer Trust or from an affiliate (as such
term is defined in Rule 144) of the Company or the Issuer Trust, with the full
amount of the purchase price paid at the date of purchase, whichever is later,
and is being effected in accordance with the applicable amount, manner of sale
and notice requirements of paragraphs (c), (e), (f) and (h) of Rule 144; or


 


(B)           the
transfer is occurring after a holding period of at least two years (or such
shorter time as may be provided in Rule 144(k) has elapsed since the date the
Specified Securities were acquired from the Company or the Issuer Trust or from
an affiliate (as such term is defined in Rule 144) of the Company or the Issuer
Trust, with the full amount of the purchase price paid at the date of purchase,
whichever is later, and the Owner is not, and during the preceding three months
has not been, an affiliate of the Company or the Issuer Trust.


 


4.             Other
Transfers.  If the Owner seeks to
make a transfer in reliance of any other exemption under the Securities Act, it
shall attach hereto a letter stating the exemption relied upon and the facts
under which such exemption is available for the requested transfer, and shall
attach an opinion of counsel satisfactory to the Company stating that such
exemption is available and is being properly used.


 


This certificate and the statements contained herein
are made for your benefit and the benefit of the Company, the Issuer Trust and
the Holders.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Print the name of the Undersigned, as such term is
  defined in the second paragraph of this certificate.)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
  Name: 

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (If the Undersigned is a corporation, partnership,
  fiduciary or entity, the correct name of the entity, and the name and title
  of the person signing on behalf of the Undersigned must be stated.)

  
							



 


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