exv4w4






EXHIBIT 4.4




CITIZENS REPUBLIC BANCORP, INC.

as Issuer to




[                    ]

as Trustee




 






INDENTURE




 






JUNIOR SUBORDINATED DEBENTURES




Dated as of [                    ], 20[     ]





 









 








CITIZENS REPUBLIC BANCORP, INC.




     Reconciliation and tie between the Trust Indenture Act of 1939 (including cross-references to
provisions of Sections 310 to and including 318(a) of the Trust Indenture Act of 1939.



	 	 	 
	TRUST INDENTURE ACT SECTION	 	SECTION
	 
	 	 
	Section 310 (a)(1), (2) and (5)
	 	6.9
	(a)(3)
	 	Not Applicable
	(a)(4)
	 	Not Applicable
	(b)
	 	6.8, 6.10
	(c)
	 	Not Applicable
	Section 311 (a)
	 	6.13
	(b)
	 	5.6, 6.13
	(c)
	 	Not Applicable
	Section 312 (a)
	 	7.1, 7.2(a)
	(b)
	 	7.2(b)
	(c)
	 	7.2(c)
	Section 313 (a)
	 	7.3(a), 7.3(b)
	(b)
	 	7.3(a)
	(c)
	 	7.3(a), 7.3(b)
	(d)
	 	7.3(c)
	Section 314 (a)(1), (2) and (3)
	 	7.4
	(a)(4)
	 	10.4
	(b)
	 	Not Applicable
	(c)(1)
	 	1.2
	(c)(2)
	 	1.2
	(c)(3)
	 	Not Applicable
	(d)
	 	Not Applicable
	(e)
	 	1.2
	(f)
	 	Not Applicable
	Section 315 (a)
	 	6.1(a)
	(b)
	 	6.2, 7.3(a)
	(c)
	 	6.1(b)
	(d)
	 	6.1(c)
	(d)(1)
	 	6.1(a) (1)
	(d)(2)
	 	6.1(c) (2)
	(d)(3)
	 	6.1(c) (3)
	(e)
	 	5.14
	Section 316 (a)(1)(A)
	 	5.12
	(a)(1) (B)
	 	5.13
	(a)(2)
	 	Not Applicable
	(b)
	 	5.8
	(c)
	 	1.4(f)






 









 






	 	 	 
	TRUST INDENTURE ACT SECTION	 	SECTION
	 
	 	 
	Section 317 (a)(1)
	 	5.3
	(a)(2)
	 	5.4
	(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.




 









 










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	 	 	10	 
	Section 1.3
	 	Forms of Documents Delivered to Trustee	 	 	10	 
	Section 1.4
	 	Acts of Holders	 	 	11	 
	Section 1.5
	 	Notices, Etc. to Trustee and Company	 	 	13	 
	Section 1.6
	 	Notice to Holders; Waiver	 	 	13	 
	Section 1.7
	 	Conflict with Trust Indenture Act	 	 	13	 
	Section 1.8
	 	Effect of Headings and Table of Contents	 	 	13	 
	Section 1.9
	 	Successors and Assigns	 	 	14	 
	Section 1.10
	 	Separability Clause	 	 	14	 
	Section 1.11
	 	Benefits of Indenture	 	 	14	 
	Section 1.12
	 	Governing Law	 	 	14	 
	Section 1.13
	 	Non-Business Days	 	 	14	 
	Section 1.14
	 	Treatment of Securities as Debt	 	 	14	 
	Section 1.15
	 	Waiver of Jury Trial	 	 	14	 
	Section 1.16
	 	Force Majeure	 	 	14	 
	 
	 	 	 	 	 	 
	ARTICLE II
	 	SECURITY FORMS	 	 	15	 
	Section 2.1
	 	Forms Generally	 	 	15	 
	Section 2.2
	 	Form of Face of Security	 	 	15	 
	Section 2.3
	 	Form of Reverse of Security	 	 	19	 
	Section 2.4
	 	Additional Provisions Required in Global Security	 	 	22	 
	Section 2.5
	 	Form of Trustee’s Certificate of Authentication	 	 	22	 
	 
	 	 	 	 	 	 
	ARTICLE III
	 	THE SECURITIES	 	 	22	 
	Section 3.1
	 	Title and Terms	 	 	22	 
	Section 3.2
	 	Denominations	 	 	25	 
	Section 3.3
	 	Execution, Authentication, Delivery and Dating	 	 	25	 
	Section 3.4
	 	Temporary Securities	 	 	26	 
	Section 3.5
	 	Global Securities	 	 	27	 
	Section 3.6
	 	Registration, Transfer and Exchange Generally, Certain Transfers and Exchanges; Securities Act Legends	 	 	28	 
	Section 3.7
	 	Mutilated, Destroyed, Lost and Stolen Securities	 	 	30	 
	Section 3.8
	 	Payment of Interest; Interest Rights Preserved	 	 	31	 
	Section 3.9
	 	Persons Deemed Owners	 	 	32	 
	Section 3.10
	 	Cancellation	 	 	32	 
	Section 3.11
	 	Computation of Interest	 	 	32	 
	Section 3.12
	 	Deferrals of Interest Payment Dates	 	 	33	 
	Section 3.13
	 	Right of Set-Off	 	 	34	 
	Section 3.14
	 	Agreed Tax Treatment	 	 	34	 






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	Section 3.15
	 	CUSIP Numbers	 	 	34	 
	 
	 	 	 	 	 	 
	ARTICLE IV
	 	SATISFACTION AND DISCHARGE	 	 	35	 
	Section 4.1
	 	Satisfaction and Discharge of Indenture	 	 	35	 
	Section 4.2
	 	Defeasance and Discharge	 	 	36	 
	Section 4.3
	 	Covenant Defeasance	 	 	36	 
	Section 4.4
	 	Conditions to Defeasance or Covenant Defeasance	 	 	37	 
	Section 4.5
	 	Application of Trust Money	 	 	37	 
	Section 4.6
	 	Indemnity for U.S. Government Obligations	 	 	38	 
	Section 4.7
	 	Reinstatement	 	 	38	 
	 
	 	 	 	 	 	 
	ARTICLE V
	 	REMEDIES	 	 	38	 
	Section 5.1
	 	Events of Default	 	 	38	 
	Section 5.2
	 	Acceleration of Maturity; Rescission and Annulment	 	 	39	 
	Section 5.3
	 	Collection of Indebtedness and Suits for Enforcement by Trustee	 	 	40	 
	Section 5.4
	 	Trustee May File Proofs of Claim	 	 	40	 
	Section 5.5
	 	Trustee May Enforce Claim Without Possession of Securities	 	 	41	 
	Section 5.6
	 	Application of Money Collected	 	 	41	 
	Section 5.7
	 	Limitation on Suits	 	 	42	 
	Section 5.8
	 	Unconditional Right of Holders to Receive Principal, Premium and Interest; Direct Action by Holders of Capital Securities	 	 	42	 
	Section 5.9
	 	Restoration of Rights and Remedies	 	 	43	 
	Section 5.10
	 	Rights and Remedies Cumulative	 	 	43	 
	Section 5.11
	 	Delay or Omission Not Waiver	 	 	43	 
	Section 5.12
	 	Control by Holders	 	 	43	 
	Section 5.13
	 	Waiver of Past Defaults	 	 	44	 
	Section 5.14
	 	Undertaking for Costs	 	 	44	 
	Section 5.15
	 	Waiver of Usury, Stay or Extension Laws	 	 	44	 
	 
	 	 	 	 	 	 
	ARTICLE VI
	 	THE TRUSTEE	 	 	45	 
	Section 6.1
	 	Certain Duties and Responsibilities	 	 	45	 
	Section 6.2
	 	Notice of Defaults	 	 	46	 
	Section 6.3
	 	Certain Rights of Trustee	 	 	46	 
	Section 6.4
	 	Not Responsible for Recitals or Issuance of Securities	 	 	47	 
	Section 6.5
	 	May Hold Securities	 	 	48	 
	Section 6.6
	 	Money Held in Trust	 	 	48	 
	Section 6.7
	 	Compensation and Reimbursement	 	 	48	 
	Section 6.8
	 	Disqualification; Conflicting Interests	 	 	49	 
	Section 6.9
	 	Corporate Trustee Required; Eligibility	 	 	49	 
	Section 6.10
	 	Resignation and Removal; Appointment of Successor	 	 	49	 
	Section 6.11
	 	Acceptance of Appointment by Successor	 	 	50	 
	Section 6.12
	 	Merger, Conversion, Consolidation or Succession to Business	 	 	51	 
	Section 6.13
	 	Preferential Collection of Claims Against Company	 	 	52	 
	Section 6.14
	 	Appointment of Authenticating Agent	 	 	52	 






ii









 






	 	 	 	 	 	 	 
	ARTICLE VII
	 	HOLDER’S LISTS AND REPORTS BY TRUSTEE AND COMPANY	 	 	53	 
	Section 7.1
	 	Company to Furnish Trustee Names and Addresses of Holders	 	 	53	 
	Section 7.2
	 	Preservation of Information, Communications to Holders	 	 	53	 
	Section 7.3
	 	Reports by Trustee	 	 	54	 
	Section 7.4
	 	Reports by Company	 	 	54	 
	 
	 	 	 	 	 	 
	ARTICLE VIII
	 	CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE	 	 	55	 
	Section 8.1
	 	Company May Consolidate, Etc., Only on Certain Terms	 	 	55	 
	Section 8.2
	 	Successor Corporation Substituted	 	 	55	 
	 
	 	 	 	 	 	 
	ARTICLE IX
	 	SUPPLEMENTAL INDENTURES	 	 	56	 
	Section 9.1
	 	Supplemental Indentures without Consent of Holders	 	 	56	 
	Section 9.2
	 	Supplemental Indentures with Consent of Holders	 	 	57	 
	Section 9.3
	 	Execution of Supplemental Indentures	 	 	58	 
	Section 9.4
	 	Effect of Supplemental Indentures	 	 	58	 
	Section 9.5
	 	Conformity with Trust Indenture Act	 	 	58	 
	Section 9.6
	 	Reference in Securities to Supplemental Indentures	 	 	59	 
	 
	 	 	 	 	 	 
	ARTICLE X
	 	COVENANTS	 	 	59	 
	Section 10.1
	 	Payment of Principal, Premium and Interest	 	 	59	 
	Section 10.2
	 	Maintenance of Office or Agency	 	 	59	 
	Section 10.3
	 	Money for Security Payments to be Held in Trust	 	 	59	 
	Section 10.4
	 	Statement as to Compliance; Statement by Officers as to Default	 	 	60	 
	Section 10.5
	 	Waiver of Certain Covenants	 	 	61	 
	Section 10.6
	 	Additional Sums	 	 	61	 
	Section 10.7
	 	Additional Covenants	 	 	61	 
	Section 10.8
	 	Original Issue Discount	 	 	63	 
	 
	 	 	 	 	 	 
	ARTICLE XI
	 	REDEMPTION OF SECURITIES	 	 	63	 
	Section 11.1
	 	Applicability of This Article	 	 	63	 
	Section 11.2
	 	Election to Redeem; Notice to Trustee	 	 	63	 
	Section 11.3
	 	Selection of Securities to be Redeemed	 	 	63	 
	Section 11.4
	 	Notice of Redemption	 	 	64	 
	Section 11.5
	 	Deposit of Redemption Price	 	 	64	 
	Section 11.6
	 	Payment of Securities Called for Redemption	 	 	65	 
	Section 11.7
	 	Right of Redemption of Securities Initially Issued to a Citizens Trust	 	 	65	 
	 
	 	 	 	 	 	 
	ARTICLE XII
	 	SINKING FUNDS	 	 	65	 
	Section 12.1
	 	Applicability of Article	 	 	65	 
	Section 12.2
	 	Satisfaction of Sinking Fund Payments with Securities	 	 	66	 
	Section 12.3
	 	Redemption of Securities for Sinking Fund	 	 	66	 
	 
	 	 	 	 	 	 
	ARTICLE XIII
	 	SUBORDINATION OF SECURITIES	 	 	67	 






iii









 






	 	 	 	 	 	 	 
	Section 13.1
	 	Securities Subordinate to Senior Indebtedness	 	 	67	 
	Section 13.2
	 	No Payment When Senior Indebtedness in Default; Payment Over of Proceeds Upon Dissolution, Etc.	 	 	68	 
	Section 13.3
	 	Payment Permitted If No Default	 	 	69	 
	Section 13.4
	 	Subrogation to Rights of Holders of Senior Indebtedness	 	 	69	 
	Section 13.5
	 	Provisions Solely to Define Relative Rights	 	 	70	 
	Section 13.6
	 	Trustee to Effectuate Subordination	 	 	70	 
	Section 13.7
	 	No Waiver of Subordination Provisions	 	 	70	 
	Section 13.8
	 	Notice to Trustee	 	 	71	 
	Section 13.9
	 	Reliance on Judicial Order or Certificate of Liquidating Agent	 	 	71	 
	Section 13.10
	 	Trustee Not Fiduciary for Holders of Senior Indebtedness	 	 	72	 
	Section 13.11
	 	Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee’s Rights	 	 	72	 
	Section 13.12
	 	Article Applicable to Paying Agents	 	 	72	 






ANNEX A — Form of Trust Agreement

ANNEX B — Form of Amended and Restated Trust Agreement

ANNEX C — Form of Guarantee Agreement

ANNEX D — Form of Certificate





iv









 








     INDENTURE, dated as of [                    ] [     ], 20[     ], between CITIZENS REPUBLIC BANCORP, INC., a
Michigan corporation (hereinafter called the “Company”) having its principal office at 328 South
Saginaw Street, Flint, Michigan 48502, and [                    ], a [                              ], duly organized and
existing under the laws of the United States of America, having its designated corporate trust
office at [                                        ], as Trustee (hereinafter called 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 series
(hereinafter called the “Securities”) of substantially the tenor hereinafter provided, including,
without limitation, Securities issued to evidence loans made to the Company of the proceeds from
the issuance from time to time by one or more business trusts (each a “Citizens Trust,” and,
collectively, the “Citizens Trusts”) of preferred trust interests in such Citizens Trusts (the
“Capital Securities”) and common interests in such Citizens 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.



     All things necessary to make the Securities, when executed by the Company and authenticated
and delivered hereunder and duly issued by the Company, the valid obligations of the Company, and
to make this Indenture a valid agreement of the Company, in accordance with their and 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 thereof, it is mutually covenanted and agreed, 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 which are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to them therein;



     (3) All accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles, and the term “generally accepted
accounting principles” with respect to any computation required or permitted hereunder shall mean
such accounting principles which are generally accepted at the date or time of such computation;
provided, that when two or more principles are so generally accepted, it shall mean that set of
principles consistent with those in use by the Company; and



1









 





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



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



     “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.



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



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



     “Administrator” means, in respect of any Citizens Trust, each Person identified as an
“Administrator” in the related Trust Agreement, solely in such Person’s capacity as Administrator
of such Citizens Trust under such Trust Agreement 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; provided,
however, no Citizens Trust to which Securities have been issued shall be deemed to be an Affiliate
of the Company. 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 Depository.



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



     “Board of Directors” means either the board of directors of the Company or any executive
committee or other committee of that board duly authorized to act hereunder.



     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors, 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.



2









 





     “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 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 a Citizens Trust, the designated office of the Property
Trustee under the related Trust Agreement, is closed for business.



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



     “Capital Treatment Event” means, with respect to an issue of Capital Securities under the
related Trust Agreement, the reasonable determination by the Company (as evidenced by an Officers’
Certificate delivered to the Trustee) that, as a result of the occurrence 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 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 such pronouncement, action or decision is
announced on or after the Original Issue Date of such Capital Securities, there is more than an
insubstantial risk that the Company will not be entitled to treat an amount equal to the
Liquidation Amount of such Capital Securities as “Tier 1 Capital” (or the then equivalent thereof)
for purposes of the capital adequacy guidelines of the Federal Reserve, as then in effect.



     “Certificate” means a certificate substantially in the form set forth in Annex D.



     “Citizens Guarantee” means the guarantee by the Company of distributions on the Capital
Securities of a Citizens Trust to the extent provided in the Guarantee Agreement.



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



     “Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.



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



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



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



     “Corporate Trust Office” means the designated office of the Trustee at which at any particular
time its corporate trust business shall be administered, which office as of the date of this
Indenture is located at [                                        ].



3









 





     “Corporation” includes a corporation, association, company, joint-stock company or business
trust.



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



     “Delaware Trustee” means, in respect of any Citizens Trust, the commercial bank or trust
company identified as the “Delaware Trustee” in the related Trust Agreement, solely in its capacity
as Delaware Trustee of such Citizens Trust under such Trust Agreement and not in its individual
capacity, or any successor thereto.



     “Depository” 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 Depository by the
Company pursuant to Section 3.1 with respect to such series (or any successor thereto).



     “Discount Security” means any security which 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.



     “Distributions,” with respect to the Trust Securities issued by a Citizens Trust, means
amounts payable in respect of such Trust Securities as provided in the related Trust Agreement and
referred to therein as “Distributions.”



     “Dollar” 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.



     “DTC” means The Depository Trust Company.



     “Event of Default” unless otherwise specified in the supplemental indenture or Officer’s
Certificate 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.



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



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



     “Global Security” means a Security in the form prescribed in Section 2.4 evidencing all or
part of a series of Securities, issued to the Depository or its nominee for such series, and
registered in the name of such Depository or its nominee.



     “Guarantee Agreement” means the Guarantee Agreement substantially in the form attached hereto
as Annex C, or substantially in such form as may be specified as contemplated by Section 3.1 with
respect to the Securities of any series, in each case as amended from time to time.



4









 





     “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 Event” means receipt by the Company and a Citizens Trust of an opinion of
independent counsel experienced in matters relating to investment companies (which opinion shall
not have been rescinded), to the effect that, as a result of any change (including any announced
proposed change) in law or regulation or change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory authority, that
becomes effective on or after the original issuance of the Capital Securities, the Citizens Trust
is or will be considered an investment company that is required to be registered under the
Investment Company Act of 1940.



     “Issuer Trustees” means the Delaware Trustee and the Property Trustee.



     “Junior Subordinated Debt” means any obligation of the Company to its creditors, whether now
outstanding or subsequently incurred, where the instrument creating or evidencing the obligations
pursuant to which the obligation provides that it is subordinated and junior in right of payment to
Senior Indebtedness pursuant to subordination provisions substantially similar to those set forth
in this Indenture. “Junior Subordinated Debt” includes the Securities.



     “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.



     “Moody’s” means Moody’s Investors Service, Inc.



     “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,
a Vice Chairman of the Board of Directors, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered to
the Trustee.



     “Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Company,
and who shall be acceptable to the Trustee.



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



     “Other Securities” means Securities transferred, upon exchange or otherwise, to holders of
“Other Capital Securities” as defined in the related Trust Agreement.



5









 





     “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 cancelled 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 which have been paid pursuant to Section 3.7, 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, that in determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request, 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 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 which a
Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned which 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. 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, 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 (and premium, if any) or interest on any Securities on behalf of the Company.



     “Person” means any individual, corporation, partnership, 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 Sections 3.1 and 3.8.



     “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; and, for the purposes
of this definition, any security authenticated and delivered under Section 3.7 in



6









 







lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.



     “Proceeding” has the meaning specified in Section 13.2.



     “Property Trustee” means, in respect of any Citizens Trust, the commercial bank or trust
company identified as the “Property Trustee” in the related Trust Agreement, solely in its capacity
as Property Trustee of such Citizens 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.



     “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.



     “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 a series, the date which is 15 days next preceding such Interest Payment Date
(whether or not a Business Day).



     “Responsible Officer” means when used with respect to the Trustee, any officer assigned to the
Corporate Trust Office, including any vice president, 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 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.



     “S&P” means Standard & Poor’s Ratings Services.



     “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 (or any successor statute), as it may be
amended from time to time.



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



     “Senior Indebtedness” with respect to the Company means the principal, premium (if any) and
interest (including interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company, whether or not such claim for post-petition interest is
allowed in such proceeding) on and of all indebtedness and obligations (other than the Securities,
but including any debentures, notes or other evidence of indebtedness issued under the Senior
Indenture or Senior Subordinated Indenture) of, or guaranteed or assumed by, the Company that (i)
are for borrowed money (ii) are evidenced by bonds, debentures, notes or other similar instruments,
(iii) represent obligations to policyholders of insurance or investment



7









 







contracts, (iv) represent a reimbursement obligation with respect to a letter of credit,
banker’s acceptance or similar facility, or (v) represent the deferred purchase price of property
or services, in each case, whether outstanding on the Issue Date or thereafter created, incurred,
assumed or guaranteed, and all amendments, renewals, extensions, modifications and refundings of
such indebtedness and obligations, unless in any such case the instrument by which such
indebtedness or obligations are created, incurred, assumed or guaranteed by the Company, or are
otherwise evidenced, provides that they are subordinated, or are not superior, in right of payment
to the Securities; provided, however, that Senior Indebtedness shall not include, as applicable:



     (1) any obligation of the Company to any Subsidiary of the Company,



     (2) any liability for federal, state, local or other taxes owed or owing by the Company or any
Subsidiary of the Company,



     (3) any accounts payable or other liability to trade creditors (including guarantees thereof
or instruments evidencing such liabilities),



     (4) any obligations with respect to any capital stock of the Company, or



     (5) any indebtedness which by its terms is expressly made equal in rank and payment with or
subordinated to the Securities.


Provided further, that if any Senior Indebtedness is disallowed, avoided or subordinated pursuant
to the provisions of Section 548 of Title 11 of the United States Code or any applicable state
fraudulent conveyance law, such Senior Indebtedness nevertheless will constitute Senior
Indebtedness.




     “Senior Indenture” means an Indenture (for the avoidance of doubt, including the word “senior”
in its title), dated as of [                    ], 20[     ], between the Company and [                    ], as trustee,
as the same may be amended from time to time.



     “Senior Subordinated Indenture” means an Indenture (for the avoidance of doubt, including the
words “senior subordinated” in its title), dated as of [                    ], 20[     ], between the Company
and [                    ], as trustee, as the same may be amended from time to time.



     “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
date on which the principal of such Security or such installment of interest is due and payable, in
the case of such principal, as such date may be shortened or extended as provided pursuant to the
terms of such Security and this Indenture.



     “Subsidiary” means a corporation 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
Company and one or more other Subsidiaries.



8









 





     For purposes of this definition, “voting stock” means stock which 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 a Citizens Trust of an Opinion of Counsel (as defined in the
relevant Trust Agreement) experienced in such matters (which opinion shall not have been
rescinded), to the effect that, as a result of any amendment to, or change in, the laws (or any
regulations thereunder) of the United States or any political subdivision or taxing authority
thereof or therein that is enacted or becomes effective after the initial issuance of the Capital
Securities; proposed change in those laws (or any regulations under those laws) that is announced
after the initial issuance of the Capital Securities; official interpretation or application of
those laws or regulations by any court, governmental agency or regulatory authority that is
announced after the initial issuance of the Capital Securities; or threatened challenge asserted in
connection with an audit of the Company, the Trust or Company subsidiaries or a threatened
challenge asserted in writing against any other taxpayer that has raised capital through the
issuance of securities that are substantially similar to the Debentures or the Capital Securities;
there is more than an insubstantial risk that (i) the Trust is or will be subject to United States
federal income tax with respect to income received or accrued on the Debentures; (ii) interest
payable by the Company on the Debentures is not or will not be deductible, in whole or in part, by
the Company, for United States federal income tax purposes; or (iii) the Trust is or will be
subject to more than a de minimis amount of other taxes, duties or other governmental charges.



     “Trust Agreement” means the Trust Agreement substantially in the form attached hereto as Annex
A, as amended by the form of Amended and Restated Trust Agreement substantially in the form
attached hereto as Annex B, or substantially in such form as may be specified as contemplated by
Section 3.1 with respect to the Securities of any series, in each case as amended from time to
time.



     “Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument
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 (15 U.S.C. Sections 77aaa-77bbb),
as amended and as in effect on the date as of this Indenture, except as provided in Section 9.5.



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



9









 





     “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, 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 constitute 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 that each individual signing such certificate or opinion 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 contained in such certificate or opinion are based;



     (3) a statement that, in the opinion of each such individual, he has made such examination or
investigation as is necessary to enable him 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 each 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.




     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 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.



10









 





     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 the “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 the execution thereof. Where such execution
is by a Person acting in other than his individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his 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 which the
Trustee deems sufficient and in accordance with such reasonable rules as the Trustee may determine.



     (d) The ownership of Securities shall be proved 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 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 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



11









 







record date, provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date (as hereinafter in this Section 1.4(f) provided) 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 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 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(2) 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.



     With respect to any record date set pursuant to this Section, the party hereto which sets such
record dates 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 which 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.



12









 





     (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 (including
telecopy) to or with the Trustee at its Corporate Trust office, or (2) the Company by the Trustee,
any Holder or any holder of Capital Securities shall be sufficient for every purpose (except as
otherwise provided in Section 5.2) 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. In any case
where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect
in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. In case, by reason of the suspension of or irregularities in regular mail
service 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. 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. The Trust Indenture Act shall apply as a
matter of contract to this Indenture for purposes of interpretation, construction and defining the
rights and obligations hereunder. If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture Act
through operation of Section 318(c) thereof, such imposed duties shall control. If any provision
of this Indenture limits, qualifies or conflicts with the duties imposed by any of Sections 310 to
317, inclusive, of the Trust Indenture Act through operation of Section 318(c) thereof and the
immediately preceding paragraph, such imposed duties shall control.



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.




13









 







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. In case 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, 5.8, 5.9, 5.11, 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 without regard to conflicts of laws
principles thereof.



Section 1.13 Non-Business Days. In any case where 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) need not be made on such date, but may be made on the next succeeding Business Day (and no
interest shall accrue 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).



Section 1.14 Treatment of Securities as Debt. This Security is intended to constitute
indebtedness for United States federal, state and local tax purposes, and the Indenture and the
Security shall be interpreted to further this intention.



Section 1.15 Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE
TRANSACTION CONTEMPLATED HEREBY.



Section 1.16 Force Majeure. In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.




14









 








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 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 certificate 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 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 Book-Entry Capital Securities, as such term is defined in
the Trust Agreement, upon the dissolution of a Citizens 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 held by 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 Book-Entry Capital Securities upon the dissolution of a Citizens
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. NO EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO TITLE I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) (EACH, A “PLAN”), NO ENTITY WHOSE
UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT IN THE ENTITY (A “PLAN
ASSET ENTITY”), AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN, MAY ACQUIRE OR HOLD THIS
SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE
RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”)
96-23, 95-60, 91-38,



15









 





90-1 OR 84-14 WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS
SECURITY OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING
THEREOF THAT IT EITHER (A) IS NOT A PLAN OR A PLAN ASSET ENTITY AND IS NOT PURCHASING THIS SECURITY
ON BEHALF OF OR WITH “PLAN ASSETS” OF ANY PLAN OR (B) IS ELIGIBLE FOR THE EXEMPTIVE RELIEF
AVAILABLE UNDER PTCE 96-23, 95-60, 91- 38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION WITH
RESPECT TO SUCH PURCHASE OR HOLDING.



CITIZENS REPUBLIC BANCORP, INC.

(TITLE OF SECURITY)




			
	 	 	 
	No.
	 	$                    






     CITIZENS REPUBLIC BANCORP, INC., a corporation organized and existing under the laws of
Michigan (hereinafter called the “Company”, which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay to           , or
registered assigns, the principal sum of            Dollars [if the Security is a Global Security,
then insert, if applicable—, or such other principal amount as may be set forth in the records of
the Securities Registrar hereinafter referred to in accordance with the Indenture,] on                     ,      .
The Company further promises to pay interest on said principal sum from                     ,       or from the
most recent interest payment date (each such date, an “Interest Payment Date”) on which interest
has been paid or duly provided for, [monthly] [quarterly] [semi-annually] [if applicable, insert —
(subject to deferral as set forth herein)] in arrears on [insert applicable Interest Payment Dates]
of each year, commencing                     ,           , at the rate of           % per annum, together with
Additional Sums, if any, as provided in Section 10.6 of the Indenture, until the principal hereof
shall have become due and payable, [if applicable, insert — plus Additional Interest, if any,]
until the principal hereof is paid or duly provided for or made available for payment [if
applicable, insert — and on any overdue principal and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any overdue installment of
interest at the rate of           % per annum, compounded [monthly] [quarterly] [semi-annually]]. The
amount of interest payable for any period less than a full interest period shall be computed on the
basis of twelve 30-day months and a 360-day year and the actual number of days elapsed in a partial
month in a period. The amount of interest payable for any full interest period shall be computed by
dividing the rate per annum by [twelve][four][two]. In the event that any date on which interest is
payable on this Security is not a Business Day, then a payment of the interest payable on such date
will be made on the next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), 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 date the payment was originally payable. A
“Business Day” shall mean any day other than (i) a Saturday or Sunday, (ii) a day on which banking
institutions in The City of New York 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 [if applicable, insert—,
or the designated office of the Property Trustee under the Trust Agreement hereinafter referred to
for [insert name of related Citizens Trust           ,]] is closed for business. The interest installment
so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Security (or one or



16









 







more Predecessor Securities) is registered at the close of business on the Regular Record Date
for such interest installment, which shall be the [insert definition of Regular Record Dates]. Any
such interest installment 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 Person in whose
name this Security (or one or more Predecessor Securities) is 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 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.



     [If applicable, insert—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 this Security to defer payment of
interest on this Security, at any time or from time to time, for up to                 consecutive [monthly]
[quarterly] [semi-annual] 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
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 (together with Additional Interest thereon to the
extent permitted by applicable law); provided, however, that no Extension Period shall extend
beyond the Stated Maturity of the principal of this Security; provided, further, that during any
such Extension Period, the Company shall not, and shall not permit any Subsidiary of the Company
to, (i) declare or pay any dividends or distributions 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 security of
the Company that ranks pari passu with or junior in interest to this Security or make any guarantee
payments with respect to any guarantee by the Company of the debt securities of any Subsidiaries of
the Company if such guarantee ranks 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 plan or other similar
arrangement with or for the benefit of any one or more employees, officers, directors or
consultants, in connection with a dividend reinvestment or shareholder stock purchase plan or in
connection with the issuance of capital stock of the Company (or securities convertible into or
exercisable for such stock) as consideration in an acquisition transaction entered into prior to
the Extension Period, (b) as a result of an exchange or conversion of any class or series of the
Company’s capital stock for any other 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 the implementation or amendment of
the Company shareholders’ rights plan (or any successor thereto), or the issuance of rights, stock
or other property under any such rights plan, or the redemption or repurchase of rights pursuant
hereto, or (e) any dividend in the form of stock, warrants, options or other rights where the
dividend stock or the stock issuable upon exercise of such warrants options or other rights is the
same stock as that on which the dividend is being paid or ranks pari passu with or junior to such
stock). Prior to the termination of any such Extension Period, the Company may further extend the
interest payment period, provided



17









 







that no Extension Period shall exceed consecutive [months] [quarters] [semi-annual periods] or
extend beyond the Stated Maturity of the principal of this Security.



     Upon the termination of any such Extension Period and upon the payment of all accrued and
unpaid interest and any Additional Interest then due, 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. The Company shall give the Issuer Trustees 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 [if
applicable, insert — or, with respect to the Securities issued to a Citizens Trust, so long as
such Securities are held by such Citizens Trust, prior to the earlier of (i) the next succeeding
date on which Distributions on the Capital Securities would be payable but for such deferral or
(ii) the date the Property Trustee is required to give notice to any securities exchange or other
applicable self-regulatory organization or to holders of such Capital Securities of the record date
or the date such Distributions are payable, but in any event not less than one Business Day prior
to such record date. The Property Trustee will give notice of the Company’s election to begin a new
Extension Period to the holders of the Capital Securities. For purposes hereof, the Company’s
Senior Indebtedness shall not be deemed to be pari passu with this Security.



     Payment of the principal of (and premium, if any) and interest (including Additional 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 [if applicable, insert-; provided,
however, that at the option of the Company payment of interest may be made (i) by check mailed to
the address of the Person entitled thereto as such address shall appear in the Securities Register
or (ii) by wire transfer in immediately available funds at such place and to such account as may be
designated by the Person entitled thereto as specified in the Securities Register].



     The indebtedness evidenced by this Security is, to the extent provided in the Indenture,
subordinate and junior 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 behalf to take such actions as may
be necessary or appropriate to effectuate the subordination so provided and (c) appoints the
Trustee his attorney-in-fact for any and all such purposes. Each Holder hereof, by his 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.



18









 





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



	 	 	 	 	 
	 	CITIZENS REPUBLIC BANCORP, INC.

 	 
	 	By:  	 	 
	 	 	[President or Vice President] 	 



	 	 	 	 	 
	Attest:

 	 
	
 	 
	[Secretary or Assistant Secretary] 	 


Section 2.3 Form of 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 an Indenture, dated as of [                    ], 20[        ] (herein called the “Indenture”),
between the Company and [                    ], 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 Trustee, the Company 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 [, limited in aggregate principal
amount to $                    ].





     All terms used in this Security that are defined in the Indenture [if applicable, insert—or
in the Amended and Restated Trust Agreement, dated as of                     ,         , as amended (the “Trust
Agreement”), for [insert name of related Citizens Trust ,] among CITIZENS REPUBLIC BANCORP, INC.,
as Depositor, and the Trustees named therein, shall have the meanings assigned to them in the
Indenture [if applicable, insert—or the Trust Agreement, as the case may be].



     [If applicable, insert—The Company may at any time, at its option, on or after                     ,
        , and subject to the terms and conditions of Article XI of the Indenture, redeem this Security
in whole at any time or in part from time to time, without premium or penalty, at a redemption
price equal to 100% of the principal amount thereof plus accrued and unpaid interest [if
applicable, insert — including Additional Interest, if any] to the Redemption Date.]



     [If applicable, insert—The Company may at any time, at its option, on or after                     ,
        , and subject to the terms and conditions of Article XI of the Indenture, redeem this Security
in whole at any time or in part from time to time, at the following Redemption Prices (expressed as
percentages of the principal amount) together with accrued interest to but excluding the date fixed
for redemption. If redeemed during the 12-month period beginning                     ,



	 	 	 
	YEAR
	 	REDEMPTION PRICE





and at 100% on or after                     ,         , together in the case of any such redemption with accrued
interest to but excluding the date fixed for redemption.]




19









 





     [If applicable, insert—Upon the occurrence and during the continuation of a Tax Event,
Capital Treatment Event or Investment Company Event in respect of a Citizens Trust, the Company
may, at its option, [at any time][before                     ,            and] within 90 days of the occurrence of
such Tax Event, Capital Treatment Event or Investment Company Event redeem this Security, in whole
but not in part, subject to the provisions of Section 11.7 and the other provisions of Article XI
of the Indenture, at a redemption price equal to [describe formulation].]



     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 contains provisions for satisfaction and discharge of the entire indebtedness of
this Security upon compliance by the Company with certain conditions set forth in the Indenture.



     The Indenture permits, with certain exceptions as therein provided, 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 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 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.



     [If the Security is not a Discount Security, insert—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 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, in the case of the Securities of this series issued to a Citizens 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 this series fails to declare the principal of all the Securities of
this series to be immediately due and payable, the holders of at least 25% in aggregate Liquidation
Amount of the Capital Securities of such Citizens Trust then outstanding shall have such right 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 any Additional Interest) 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.]



20









 





     [If the Security is a Discount Security, insert—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 such portion of the principal amount as may be specified in the terms of this series may
declare an amount of principal of 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, in
the case of the Securities of this series issued to a Citizens 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 this series fails to declare the principal of all the Securities of this series to be
immediately due and payable, the holders of at least 25% in aggregate Liquidation Amount of the
Capital Securities of such Citizens Trust then outstanding shall have such right by a notice in
writing to the Company and the Trustee. Such amount shall be calculated by the Company and shall be
equal to—insert formula for determining the amount. Upon any such declaration, such amount of the
principal of and the accrued interest (including any Additional Interest) 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. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal and overdue interest (in
each case to the extent that the payment of such interest shall be legally enforceable), all of the
Company’s obligations in respect of the payment of the principal of and interest, if any, on this
Security shall terminate.]



     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 any 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 therein set forth, 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 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 his attorney duly authorized in writing, and thereupon one or more new Securities of this
series, of authorized denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees. 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.



     Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee shall 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 Securities of this series are issuable only in registered form without coupons in minimum
denominations of $100,000 and any integral multiples of $1,000 in excess thereof. As provided in
the Indenture and subject to certain limitations therein set forth, Securities of this



21









 







series are exchangeable for a like aggregate principal amount of Securities of such series of
a different authorized denomination, as requested by the Holder surrendering the same.



     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 agree that for
United States federal, state and local tax purposes it is intended that this Security constitute
indebtedness, and the Indenture and the Security shall be interpreted to further this intention.



     THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.


Section 2.4 Additional Provisions Required in Global Security. Any Global Security issued
hereunder shall, in addition to the provisions contained in Sections 2.2 and 2.3, 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 DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY.”



Section 2.5 Form of Trustee’s Certificate of Authentication. This is one of the Securities
referred to in the within mentioned Indenture.




Dated:                               




	 	 	 	 	 
	 	[                    ],

as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 



ARTICLE III

THE SECURITIES



Section 3.1 Title and Terms. The aggregate principal amount of Securities which 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 set forth in an Officers’ Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of a series:



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



22









 





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



     (c) the Stated Maturity or Maturities on which the principal of the Securities of such series
is payable or the method of determination thereof;



     (d) 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 in respect
of any Securities of such series, the Interest Payment Dates on which such interest shall be
payable, the right, pursuant to Section 3.11 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;



     (e) the place or places where the principal of (and premium, if any) and 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, 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;



     (f) 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;



     (g) 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;



     (h) the denominations in which any Securities of such series shall be issuable, if other than
denominations of $100,000 and any integral multiple of $1,000 in excess thereof;



     (i) if other than Dollars, the currency or currencies (including currency unit or units) in
which the principal of (and premium, if any) and 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;



     (j) 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;



23









 





     (k) 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;



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



     (m) 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;



     (n) whether the Securities of the series, or any portion thereof, shall initially be issuable
in the form of a temporary Global Security representing all or such portion of the Securities of
such series and provisions for the exchange of such temporary Global Security for definitive
Securities of such series;



     (o) 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 Depositories for such
Global Securities, the form of any legend or legends which 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 Depository
for such Global Security or a nominee thereof;



     (p) the appointment of any Paying Agent or Agents for the Securities of such series;



     (q) 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;



     (r) the form or forms of the Trust Agreement, Amended and Restated Trust Agreement and
Guarantee Agreement, if different from the forms attached hereto as Annexes A, B and C,
respectively;



     (s) the relative degree, if any, to which the Securities of 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; and



     (t) any other terms of the Securities of such series (which terms shall not be inconsistent
with the provisions of this Indenture).



     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 in such Officers’ Certificate or in any such indenture supplemental hereto.



24









 





     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.



     Unless otherwise provided with respect to the Securities of any series, at the option of the
Company, interest on the Securities of any series that bears interest may be paid (i) by mailing a
check to the address of the person entitled thereto as such address shall appear in the Security
Register or (ii) by wire transfer in immediately available funds at such place and to such account
as may be designated by the person entitled thereto as specified in the Security Register.


Section 3.2 Denominations. The Securities of each series shall be in registered form
without coupons and shall be issuable in denominations of $100,000 and any integral multiple of
$1,000 in excess thereof, unless otherwise specified as contemplated by Section 3.1.



Section 3.3 Execution, Authentication, Delivery and Dating. The Securities shall be
executed on behalf of the Company by its President 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 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 in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company enforceable in



25









 







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 which is not reasonably acceptable to the Trustee.



     Notwithstanding the provisions of Section 3.1 and of 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 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 Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any 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 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



26









 







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
Depository designated for such Global Security or a nominee thereof and delivered to such
Depository 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 Depository for such Global
Security or a nominee thereof unless (a) such Depository advises the Trustee in writing that such
Depository is no longer willing or able to properly discharge its responsibilities as Depository
with respect to such Global Security, and the Company is unable to locate a qualified successor,
(b) the Company executes and delivers to the Trustee a Company Order stating that the Company
elects to terminate the book-entry system through the Depository, (c) there shall have occurred and
be continuing an Event of Default or (d) pursuant to the following sentence. All or any portion of
a Global Security may be exchanged for a Security that has a like aggregate principal amount and is
not a Global Security upon 20 days’ prior request made by the Depository or its Agent Member to the
Securities Registrar.



     (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 Depository 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)(v), 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 Depository
or its authorized representative to make a corresponding adjustment to its records. Upon any such
surrender or adjustment of a Global Security by the Depository, accompanied by registration
instructions, the Trustee shall, subject to Section 3.5(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 Depository. 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 conclusively 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,
and shall be, a Global Security, unless such Security is registered in the name of a Person other
than the Depository for such Global Security or a nominee thereof.



27









 





     (e) The Depository or its nominee, as 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 Depository or its nominee or its Agent Members. Neither the Trustee nor the Securities
Registrar shall have any liability in respect of any transfers effected, or for any other actions
taken or not taken, by the Depository.



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


Section 3.6 Registration, Transfer and Exchange Generally, Certain Transfers and Exchanges;
Securities Act Legends.




     (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 of 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 office or agency 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 a like aggregate principal amount, of the same
Original Issue Date and Stated Maturity and having the same terms 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 of any authorized denominations, of a like aggregate principal amount, of the same Original
Issue Date and Stated Maturity and having the same terms 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 which the Holder making the exchange is
entitled to receive.



     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 Securities Registrar) 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 his 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



28









 







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, (a) to issue, transfer or exchange any Security of any series during a period beginning at
the opening of business 15 days before the day of mailing notice of redemption of Securities
pursuant to Article XI and ending at the close of business on the day of such mailing or (b) to
transfer or exchange any Security so selected for redemption in whole or in part, except, in the
case of any Security to be redeemed in part, any portion thereof not to be redeemed.



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




	 	(i)	 	Non-Global Security to Global Security. If the Holder of a
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 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, then the
Securities Registrar shall cancel such Security (and issue a new Security in
respect of any untransferred portion thereof) as provided in Section 3.6(a) 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).
	 
	 	(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)	 	Intentionally Omitted.
	 
	 	(v)	 	Limitations Relating to Principal Amount. Notwithstanding any
provision of this Indenture and unless otherwise specified as permitted by
Section 3.1, Securities or portions thereof may be held, transferred or
exchanged only in principal amounts of not less than $100,000. 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,




29









 






	 	 	 	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.





     The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Indenture or under applicable law with respect
to any transfer of any interest in any Security (including any transfers between or among Agent
Members or beneficial owners of interests in any Global Security) other than to require delivery of
such certificates and other documentation or evidence as are expressly required by, and to do so if
and when expressly required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.


Section 3.7 Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security is
surrendered to the Trustee together with such security or indemnity as may be required by the
Company or the Trustee 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 issue and series of
like tenor and principal amount, having the same Original Issue Date and Stated Maturity, 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 or indemnity
as may be required by them 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 written request the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security, a new Security of the same issue and series of like
tenor and principal amount, having the same Original Issue Date and Stated Maturity as such
destroyed, lost or stolen Security, and bearing a number not contemporaneously outstanding.



     In case 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, 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 duly issued hereunder.



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     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; Interest Rights Preserved. Interest on any Security of
any series which 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 which 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 which is 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 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, 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



31









 







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, 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, which 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 may 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.




     No holder of any beneficial interest in any Global Security held on its behalf by a Depository
shall have any rights under this Indenture with respect to such Global Security, and such
Depository 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 whatsoever. 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
Depository or impair, as between a Depository and such holders of beneficial interests, the
operation of customary practices governing the exercise of the rights of the Depository (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. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder which 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 disposed of by the Trustee in accordance with its customary procedures.



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 partial
period shall be computed on the basis of a 360-day year of twelve 30-day months and the actual days
elapsed in a partial month in such period, and interest on the Securities of each series for a


32









 






full period shall be computed by dividing the rate per annum by the number of interest periods that
together constitute a full twelve months.



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 as may be specified as contemplated by Section 3.1 (each, an “Extension Period”)
during which Extension Periods the Company shall have the right to make 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; provided, further, that during any such Extension
Period and until all accrued but unpaid interest is paid in full, the Company shall not, and shall
not permit any Subsidiary to, (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of the 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 security of the Company that ranks pari passu in all respects with or
junior in interest to the Securities of such series or make any guarantee payments with respect to
any guarantee by the Company of the debt securities of any Subsidiary of the Company if such
guarantee ranks 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 plan or other similar arrangement
with or for the benefit of any one or more employees, officers, directors or consultants, in
connection with a dividend reinvestment or shareholder stock purchase plan or in connection with
the issuance of capital stock of the Company (or securities convertible into or exercisable for
such stock) as consideration in an acquisition transaction entered into prior to the Extension
Period, (b) repurchases, redemptions or other acquisitions of shares of capital stock of the
Company 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 other 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 the
implementation or amendment of the Company shareholders’ rights plan (or any successor thereto), or
the issuance of rights, stock or other property under any such rights plan, or the redemption or
repurchase of rights pursuant thereto, (e) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock issuable upon exercise of such warrants, options
or other rights is the same stock as that on which the dividend is being paid or ranks pari passu
with or junior to such stock, (f) any payment of current or deferred interest on pari passu
securities that is made pro rata to the amount due on such pari passu securities (including the
Securities); or (g) any payment of principal on pari passu securities necessary to avoid a breach
of the instrument governing such pari passu securities). Prior to the termination of any such
Extension Period, the Company may further extend the interest payment period, provided that no
Extension Period shall exceed the period or periods specified in such


33









 






Securities or extend beyond the Stated Maturity of the principal of such Securities. Upon
termination of any 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. The Company shall give the Issuer Trustees 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 the Securities of a series issued to a Citizens Trust, so
long as such Securities are held by such Citizens Trust, prior to the earlier of (i) the next
succeeding date on which Distributions on the Capital Securities of such Citizens Trust would be
payable but for such deferral or (ii) the date the Property Trustee of such Citizens Trust is
required to give notice to any securities exchange or other applicable self-regulatory organization
or to holders of such Capital Securities of the record date or the date such Distributions are
payable, but in any event not less than one Business Day prior to such record date. For purposes
hereof, the Company’s Senior Indebtedness shall not be deemed to be pari passu with the Securities.




     The Trustee, at the expense of the Company, 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.


Section 3.13 Right of Set-Off. With respect to the Securities of a series issued to a
Citizens Trust, notwithstanding anything to the contrary herein, the Company shall have the right
to set-off any payment it is otherwise required to make thereunder 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 Citizens Guarantee relating to such Security or under Section 5.8
hereof.



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 CUSIP Numbers. The Company in issuing the Securities may use “CUSIP” numbers
(if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of
redemption or other related material as a convenience to Holders; provided that any such notice or
other related material 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
related material 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. The Company shall promptly notify the Trustee of any change in the CUSIP number(s).




34









 








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 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 which have been destroyed, lost or stolen and which 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 by the Trustee in the name, and at the expense, of the Company,






and the Company, in the case of Clause (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 cash, direct obligations of the United States
of America backed by its full faith and credit (“U.S. Government
Obligations”), or a combination thereof in each case sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and premium, if
any) and interest (including any Additional Interest) to the date of such
deposit (in the case of Securities which 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 for relating to the satisfaction
and discharge of this Indenture have been complied with.



     Notwithstanding the satisfaction and discharge of this Indenture, or the earlier resignation
or removal of the Trustee or any Authenticating Agent, the obligations of the Company to the



35









 







Trustee under Section 6.7, the obligations of the Company 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 4.5 and the last paragraph
of Section 10.3 shall survive.


Section 4.2 Defeasance and Discharge. The following provisions shall apply to the
Securities of each series unless specifically otherwise provided in a Board Resolution, Officers’
Certificate or indenture supplemental hereto provided pursuant to Section 3.1. In addition to
discharge of this Indenture pursuant to Sections 4.1 and 4.3, the Company shall be deemed to have
paid and discharged the entire indebtedness on all the Securities of such a series as provided in
this Section on and after the date the conditions set forth in Section 4.4 are satisfied, and the
provisions of this Indenture with respect to the Securities of such series shall no longer be in
effect (except as to (i) rights of registration of transfer and exchange of Securities of such
series, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities of such
series, (iii) rights of Holders of Securities of such series to receive, solely from the trust fund
described in subparagraph (a) of Section 4.4, payments of principal thereof and interest, if any,
thereon upon the original stated due dates therefor (but not upon acceleration), and remaining
rights of the Holders of Securities of such series to receive mandatory sinking fund payments, if
any, (iv) the rights, obligations, duties and immunities of the Trustee hereunder, (v) this Section
4.2, (vi) the rights of the Holders of Securities of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of them and (vii) the
Company’s obligation to pay the expenses of any Citizens Trust under Section 6.7) (hereinafter
called “Defeasance”), and the Trustee at the cost and expense of the Company, shall execute proper
instruments acknowledging the same.



Section 4.3 Covenant Defeasance. (i) The Company shall be released from its obligations
under any covenants specified in or pursuant to this Indenture (except as to (A) rights of
registration of transfer and exchange of Securities of such series, (B) substitution of mutilated,
defaced, destroyed, lost or stolen Securities of such series, (C) rights of Holders of Securities
of such series to receive, from the Company pursuant to Section 10.1, payments of principal thereof
and interest, if any, thereon upon the original stated due dates therefor (but not upon
acceleration), the Holders of Securities of such series to receive mandatory sinking fund payments,
if any, (D) the rights, obligations, duties and immunities of the Trustee hereunder, (E) the rights
of the Holders of Securities of such series as beneficiaries hereof with respect to the property so
deposited with the Trustee payable to all or any of them and (F) the Company’s obligation to pay
the expenses of any Citizens Trust under Section 10.6), and (ii) any default related to released
covenants shall be deemed not to be or result in an Event of Default with respect to the
Outstanding Securities of such series as provided in this Section on and after the date the
conditions set forth in Section 4.4 are satisfied (hereinafter called “Covenant Defeasance”), and
the Trustee, at the cost and expense of the Company, shall execute proper instruments acknowledging
the same. For this purpose, such Covenant Defeasance means that the Company may omit to comply
with and shall have no liability in respect of any term, condition or limitation set forth in any
such covenant, whether directly or indirectly by reason of any reference elsewhere herein to any
such covenant or by reason of any reference in any such covenant to any other provision herein or
in any other document, but the remainder of this Indenture and the Securities of such series shall
be unaffected thereby.




36









 







Section 4.4 Conditions to Defeasance or Covenant Defeasance. The following shall be the
conditions to application of either Section 4.2 or 4.3 to the Outstanding Securities:




          (1) with reference to Section 4.2 or 4.3, the Company has irrevocably deposited or caused to
be irrevocably deposited with the Trustee as funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of Securities of such series (i) cash in an
amount, or (ii) U.S. Government Obligations, maturing as to principal and interest, if any, at such
times and in such amounts as will insure the availability of cash, or (iii) a combination thereof,
in each case sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee, to pay and
discharge (A) the principal of and interest, if any, on all Securities of such series on each date
that such principal or interest, if any, is due and payable, and (B) any mandatory sinking fund
payments on the dates on which such payments are due and payable in accordance with the terms of
this Indenture and the Securities of such series;



          (2) in the case of Defeasance under Section 4.2, the Company has delivered to the Trustee an
Opinion of Counsel based on the fact that (x) the Company has received from the Internal Revenue
Service a ruling or (y), since the date hereof, there has been a change in the applicable United
States federal income tax law, in either case to the effect that, and such opinion shall confirm
that, the Holders of the Securities of such series will not recognize income, gain or loss for
United States federal income tax purposes as a result of such deposit, Defeasance and discharge and
will be subject to United States federal income tax on the same amount and in the same manner and
at the same times, as would have been the case if such deposit, Defeasance and discharge had not
occurred;



          (3) in the case of Covenant Defeasance under Section 4.3, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that, and such opinion shall confirm that, the Holders
of the Securities of such series will not recognize income, gain or loss for United States federal
income tax purposes as a result of such deposit and Covenant Defeasance and will be subject to
United States federal income tax on the same amount and in the same manner and at the same times,
as would have been the case if such deposit and Covenant Defeasance had not occurred;



          (4) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent contemplated by this provision have been
complied with.


Section 4.5 Application of Trust Money. Subject to the provisions of the last paragraph of
Section 10.3, all money and U.S. Government Obligations deposited with the Trustee pursuant to
Section 4.4 shall be held in trust, and such money and all money from such U.S. Government
Obligations shall be applied by it, 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 for whose payment such money and U.S. Government
Obligations has been deposited with the Trustee.




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Section 4.6 Indemnity for U.S. Government Obligations. The Company shall pay and indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 4.4 or the principal or interest received in respect of
such obligations other than any such tax, fee or other charge that by law is for the account of the
Holders of Outstanding Securities.



Section 4.7 Reinstatement. If the Trustee is unable to apply any money or Government
Obligations in accordance with Section 4.4 by reason of any legal preceding or by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company’s obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to Section 4.4, until
such time as the Trustee or Paying Agent is permitted to apply all such money or Government
Obligations in accordance with Section 4.4; provided that, if the Company has made any payment of
principal or interest on the Securities of any series because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money or Government Obligations held by the Trustee or Paying Agent.




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 an
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; or



          (3) default in the performance, or breach, in any material respect, of any covenant of the
Company in this Indenture (other than a covenant a default in the performance of which or the
breach of which is elsewhere in this Section specifically dealt with), and continuance of such
default or breach for a period of 90 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that series a written notice specifying
such default or breach and requiring it to be remedied; or



          (4) the entry of a decree or order for relief in respect of the Company by a court having
jurisdiction in the premises in an involuntary case under Federal or State bankruptcy laws, as now
or hereafter constituted, and the continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days; or



38









 





          (5) the commencement by the Company of a voluntary case under Federal or State bankruptcy
laws, as now or hereafter constituted, or the consent by the Company to the entry of a decree or
order for relief in an involuntary case under any such laws; 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 a Citizens 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 that
series fail to declare the principal of all the Securities of that series to be immediately due and
payable, the holders of at least 25% in aggregate Liquidation Amount (as defined in the related
Trust Agreement) of the corresponding series of Capital Securities then Outstanding shall have such
right 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 any
Additional Interest) on all the Securities of such series shall 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. If 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, the
principal amount of all the Securities of that series (or, if the Securities of that 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.




     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 in this Article provided, the Holders of a majority in 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 if:



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





(A) all overdue installments of interest (including any Additional Interest)
on all Securities of that series,




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



39









 






(C) 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 which 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 issued to a Citizens Trust, the holders of a majority in
aggregate Liquidation Amount (as defined in the Trust Agreement under which such Citizens Trust is
formed) of the related series of Capital Securities issued by such Citizens Trust 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 Clauses (1) and
(2) above of this Section 5.2.



     No such rescission shall affect any subsequent default or impair any right consequent thereon.


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 any Additional
Interest) on any Security when such interest becomes due and payable and such default continues for
a period of 30 days, 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, including any sinking fund payment or analogous obligations (and premium, if any)
and interest (including any Additional Interest); 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 the 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 the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or


40









 






other judicial 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 any Additional Interest)) shall be entitled and
empowered, by intervention in such proceeding or otherwise,




	 	(i)	 	to file and prove a claim for the whole amount of principal
(and premium, if any) and interest (including any Additional Interest) 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 and any predecessor to the Trustee under Section 6.7 allowed in any
such judicial 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, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial 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
or 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,
that 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, 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


41









 






distribution of such money or property on account of principal (or premium, if any) or interest
(including any Additional Interest), 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;



     SECOND: Subject to Article XIII, to the payment of the amounts then due and unpaid upon such
series of Securities for principal (and premium, if any) and interest (including any Additional
Interest), 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 any Additional Interest),
respectively; and



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


Section 5.7 Limitation on Suits. 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, assignee, trustee, liquidator, sequestrator (or other similar official)
or for any other remedy hereunder, unless:




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



          (2) 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;



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



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



          (5) 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 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 (it being understood that the Trustee does not have an affirmative duty
to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).


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, the Holder of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to Section 3.8) interest




42









 







(including any Additional Interest) 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 a Citizens Trust, any holder of the
corresponding series of Capital Securities issued by such Citizens Trust shall have the right, upon
the occurrence of an Event of Default described in Section 5.1(1) or 5.1(2), to institute a suit
directly against the Company for enforcement of payment to such holder of principal of (premium, if
any) and (subject to Section 3.8) interest (including any Additional Interest) on the Securities
having a principal amount equal to the aggregate Liquidation Amount (as defined in the Trust
Agreement under which such Citizens Trust is formed) of such Capital Securities of the
corresponding series held by such holder.



Section 5.9 Restoration of Rights and Remedies. If the Trustee, any Holder or any holder
of Capital Securities 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, the 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, the Holders and
the holders 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 to
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 or any holder of any Capital Security to exercise any right or remedy accruing upon
any Event of Default 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 Section 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 a majority in 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,



43









 





          (2) the Trustee may take any other action deemed proper by the Trustee which 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 principal
amount of the Outstanding Securities of any series and, in the case of any Securities of a series
issued to a Citizens Trust, the holders of Capital Securities issued by such Citizens 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 (or premium, if any) or interest (including any
Additional Interest) on any Security of such series, or



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



     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 a waiver by holders of Capital Securities issued by such Citizens Trust,
by all holders of Capital Securities issued by such Citizens 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 impair any right consequent thereon.


Section 5.14 Undertaking for Costs. 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 and expenses,
against any party litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this Section shall not apply
to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in 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 (or premium, if any) or interest (including any Additional Interest) on any Security on or after
the respective Stated Maturities expressed in such Security.



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


44









 






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.




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 which 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 (but need
not confirm or investigate the accuracy of mathematical calculations or other facts stated
therein).



     (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 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 such 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,



45









 







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.



     (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, that, except in the case of a default
in the payment of the principal of (or premium, if any) or interest (including any Additional
Interest) 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 withholding of such
notice is in the interests of the Holders of Securities of such series; and provided, further,
that, 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 which 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 conclusively 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, conclusively rely upon an Officers’ Certificate;



     (d) the Trustee may consult with counsel of its selection 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;



     (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 security or indemnity



46









 







satisfactory to it against the costs, expenses and liabilities which 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 at the
sole cost of the Company and shall incur no liability or additional liability of any kind by reason
of such inquiry or investigation;



     (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;



     (h) the Trustee shall not be under any obligation to take any action that is discretionary
under the provisions of this Indenture;



     (i) the Trustee shall not be charged with knowledge of any Event of Default unless either (i)
a Responsible Officer of the Trustee shall have actual knowledge thereof or (ii) the Trustee shall
have received notice thereof in accordance with Section 1.5(1) hereof from the Company or a Holder;



     (j) no permissive power or authority available to the Trustee shall be construed as a duty;



     (k) in no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action;



     (l) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder; and



     (m) the Trustee may request that the Company deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified actions pursuant to
this Indenture.


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. Neither the Trustee nor any Authenticating


47









 






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 in writing
with the Company.



Section 6.7 Compensation and Reimbursement. The Company agrees




          (1) to pay to the Trustee from time to time such compensation as shall be agreed in writing
between the Company and the Trustee for all services rendered by it hereunder in such amounts as
the Company and the 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);



          (2) 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
or bad faith; and



          (3) to indemnify each of the Trustee or any predecessor Trustee and their agents for, and to
hold them harmless against, any and all loss, liability, damage, claims 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 costs and
expenses of defending itself against any claim (whether asserted by the Company, or any Holder or
any other person) or liability in connection with the exercise or performance of any of its powers
or duties hereunder.



     The obligations of the Company under this Section 6.7 shall survive the termination of the
Indenture or the earlier resignation or removal of the Trustee.



     To secure the Company’s payment obligations in this Section, the Company and the Holders agree
that the Trustee shall have a lien prior to the Securities on all money or property held or
collected by the Trustee. Such lien shall survive the satisfaction and discharge of this Indenture.



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



48









 







to constitute expenses of administration under the Bankruptcy Reform Act of 1978 or any
successor statute.


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 as a matter of contract. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the second to last paragraph of said Section 310(b).



Section 6.9 Corporate Trustee Required; Eligibility. There shall at all times be a Trustee
hereunder which shall be




     (a) a corporation organized and doing business under the laws of the United States of America
or of any State or Territory or 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) a corporation 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
$50,000,000, subject to supervision or examination by federal or state authority. If such
corporation publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then, for the purposes of this
Section, the combined capital and surplus of such corporation 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, at the expense of the Company, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of
such series.



     (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 principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.



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     (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 of the Trustee or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (i) the Company, acting pursuant to the
authority of a Board Resolution, may remove the Trustee with respect to all Securities, 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 himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities 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 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 for at least six
months may, subject to Section 5.14, on behalf of himself 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 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



50









 







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 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 instrument in writing or 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 instrument in writing or
supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each
such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon the execution and delivery of
such instrument in writing or supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each 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 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 paragraph (a) or (b) of this Section, as the case may be.



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


Section 6.12 Merger, Conversion, Consolidation or Succession to Business. Any corporation
into which the Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the corporate trust business of
the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be


51









 






otherwise 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 3.7, 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 a
corporation organized and doing business under the laws of the United States of America, or of any
State or Territory or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 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 with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this Section.




     Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation 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



52









 







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 of its appointment 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.



     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:



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



Dated:                               




	 	 	 	 	 
	 	[                    ]



As Trustee

 

	 
	 	By:  	 	 
	 	 	 	 
	 	As Authenticating Agent


 	 
	 	By:  	 	 
	 	 	Authorized Officer 	 
	 	 	 	 
	 



ARTICLE VII

HOLDER’S LISTS AND REPORTS BY TRUSTEE 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:





     (a) semi-annually, not more than 15 days after each Regular Record Date in each year, a list,
in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of
such Regular 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, excluding from any such list names and
addresses received by the Trustee in its capacity as Securities Registrar.



Section 7.2 Preservation of Information, Communications to Holders.




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     (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.



     (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.




     (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 60 days after May 15 in each calendar year, commencing with the first
May 15 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 upon which any Securities are listed and also with the
Commission. The Company will promptly notify the Trustee in writing when any Securities are listed
or delisted on any securities exchange.


Section 7.4 Reports by Company. The Company shall file with the Trustee and with the
Commission, 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; provided that any such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the same is required to be filed
with the Commission. Notwithstanding that the Company may not be required to remain subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall continue to
file with the Commission and provide the Trustee with the annual reports and the information,
documents and other reports which are specified in Sections 13 and 15(d) of the Exchange Act. The
Company also shall comply with the other provisions of Trust Indenture Act Section 314(a).




     Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers’ Certificates).



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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, and no Person shall consolidate with or merge
into the Company or convey, transfer or lease its properties and assets substantially as an
entirety to the Company, unless:




          (1) in case the Company shall consolidate with or merge into another Person or convey,
transfer or lease its properties and assets substantially as an entirety to any Person, the
corporation formed by such consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust organized and existing
under the laws of the United States of America or any State 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) and interest (including any Additional Interest) on all the Securities 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
which, after notice or lapse of time, or both, would become an Event of Default, shall have
happened and be continuing;



          (3) in the case of the Securities of a series issued to a Citizens Trust, such consolidation,
merger, conveyance, transfer or lease is permitted under the related Trust Agreement and Citizens
Guarantee and does not give rise to any breach or violation of the related Trust Agreement or
Citizens Guarantee; and



          (4) 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 the Trustee, subject to Section 6.1,
may rely upon such Officers’ Certificate and Opinion of Counsel as conclusive evidence that such
transaction complies with this Section 8.1.


Section 8.2 Successor Corporation 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 corporation 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 such conveyance,
transfer or lease the Company shall be discharged from all obligations and covenants under the
Indenture and the Securities and may be dissolved and liquidated.




55









 








     Such successor Person may cause to be signed, and may issue either in its own name or in the
name of the Company, any or all of the Securities issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee; and, upon the order of such 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 which
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 which such successor Person
thereafter shall cause to be signed 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 as though all of such Securities had been issued at the
date of the execution hereof.



     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 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 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 such
series) or to surrender any right or power herein conferred upon the Company; or



          (5) 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 Default 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 such series); or



          (6) to change or eliminate any of the provisions of this Indenture, provided that any such
change or elimination (a) shall become effective only when there is no Security



56









 







Outstanding of any series created prior to the execution of such supplemental indenture which
is entitled to the benefit of such provision or (b) shall not apply to any Outstanding Securities;
or



          (7) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture; provided that such action pursuant to
this Clause (7) shall not adversely affect the interest of the Holders of Securities of any series
in any material respect or, in the case of the Securities of a series issued to a Citizens Trust
and for so long as any of the corresponding series of Capital Securities issued by such Citizens
Trust shall remain outstanding, the holders of such Capital Securities; or



          (8) 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



          (9) 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 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, however,
that no such supplemental indenture shall, without the consent of the Holder of each Outstanding
Security affected thereby,




          (1) except to the extent permitted by Section 3.12 or as otherwise specified as contemplated
by Section 2.1 or Section 3.1 with respect to the deferral of the payment of interest on the
Securities of any series, 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 reduce 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, or change the place of
payment where, or the coin or currency in which, any Security or interest thereon is payable, or
impair the right to institute 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 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



57









 





          (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 a Citizens Trust, so
long as any of the corresponding series of Capital Securities issued by such Citizens 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 (and premium, if any) of
the Securities of such series and all accrued and, subject to Section 3.8, unpaid interest
(including any Additional Interest) 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 provided therein without the prior consent of the holders of each Capital Security then
outstanding unless and until the principal (and premium, if any) of the Securities of such series
and all accrued and (subject to Section 3.8) unpaid interest (including any Additional Interest)
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 Capital Securities, or which modifies the rights of the Holders of Securities or
holders of Capital Securities of such 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 or
holders of Capital Securities of any other 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.


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 receive, and (subject to Section 6.1)
shall be fully protected in conclusively 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 have been complied with. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise or that may subject it to any
liability.



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.




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Section 9.6 Reference in Securities to Supplemental Indentures. Securities 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 on the Securities of that series in accordance with the terms of
such Securities and this Indenture.



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 and an office or agency where Securities of that series may be
surrendered for 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, that 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 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 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. New
York City time on each due date of the principal of or interest on any Securities,



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deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or
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, 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 on Securities in trust for the benefit of 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 the
Securities) in the making of any payment of principal (and premium, if any) or interest;



          (3) at any time during the continuance of any such default, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent; 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 trusts 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) or interest on any Security and
remaining unclaimed for two years after such principal (and premium, if any) or interest has become
due and payable shall 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.


Section 10.4 Statement as to Compliance; Statement by Officers as to Default. 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 executed by the principal executive officer,
principal financial officer or principal accounting officer of the Company covering the preceding
calendar year, stating whether or not to the best knowledge of the signers thereof the Company is
in default in the performance, observance or fulfillment of or compliance with any of the terms,


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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 (other than an Extension Period) or requirement of notice provided pursuant to the terms of
this Indenture.




     The Company shall deliver to the Trustee, as soon as possible and in any event within five
days after the Company becomes aware of the occurrence of any Event of Default or an event which,
with notice or the lapse of time or both, would constitute an Event of Default, an Officers’
Certificate setting forth the details of such Event of Default or default and the action which the
Company proposes to take with respect thereto.


Section 10.5 Waiver of Certain Covenants. The Company may omit in any particular instance
to comply with any covenant or condition provided pursuant to Section 3.1, 9.1(3) or 9.1(4) 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 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 issued to a
Citizens 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, in the event that (i) a Citizens
Trust is the Holder of all of the Outstanding Securities of such series and (ii) a Tax Event in
respect of such Citizens Trust shall have occurred and be continuing, the Company shall pay to such
Citizens Trust (and its permitted successors or assigns under the related Trust Agreement) as
Holder of the Securities of such series for so long as such Citizens Trust (or its permitted
successor or assignee) is the registered Holder of any 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)) paid by such Citizens Trust on the related 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 any 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 or 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, and it shall not permit any Subsidiary of the Company
to, (a) declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a


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liquidation payment with respect to, any shares of the Company’s capital stock, or (b) make any
payment of principal of or interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company that rank pari passu in all respects with or junior in interest to the
Securities of such series or make any guarantee payments with respect to any guarantee by the
Company of debt securities of any Subsidiary of the Company if such guarantee ranks pari passu with
or junior in interest to the Securities (other than (a) repurchases, redemptions or other
acquisitions of shares of capital stock of the Company in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, in connection with a dividend reinvestment or shareholder stock
purchase plan or in connection with the issuance of capital stock of the Company (or securities
convertible into or exercisable for such stock) as consideration in an acquisition transaction
entered into prior to the Extension Period; (b) as a result of an exchange or conversion of any
class or series of the Company’s capital stock for any other class or series of the Company’s
capital stock or 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 the
implementation or amendment of the Company shareholders’ rights plan (or any successor thereto), or
the issuance of rights, stock or other property under any such rights plan, or the redemption or
repurchase of rights pursuant hereto; or (e) any dividend in the form of stock, warrants, options
or other rights where the dividend stock or the stock issuable upon exercise of such warrants,
options or other rights is the same stock as that on which the dividend is being paid or ranks pari
passu with or junior to such stock) if at such time (i) there shall have occurred any event of
which the Company has actual knowledge that (A) with the giving of notice or the lapse of time or
both, would constitute an Event of Default with respect to the Securities of such series and (B) in
respect of which the Company shall not have taken reasonable steps to cure, (ii) if the Securities
of such series are held by a Citizens Trust, the Company shall be in default with respect to its
payment of any obligations under the Citizens Guarantee relating to the Capital Securities issued
by such Citizens Trust or (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 such Extension Period, or any extension thereof, shall be
continuing. For purposes hereof, the Company’s Senior Indebtedness shall not be deemed to be pari
passu with the Securities.




     The Company also covenants with each Holder of Securities of a series issued to a Citizens
Trust (i) to maintain directly or indirectly 100% ownership of the Common Securities of such
Citizens Trust; provided, however, that any permitted successor of the Company hereunder may
succeed to the Company’s ownership of such Common Securities; (ii) as holder of the Common
Securities, not to voluntarily terminate, wind-up or liquidate such Citizens Trust, except upon
prior approval of the Federal Reserve, if then required under applicable capital guidelines or
policies of the Federal Reserve, and (a) in connection with a distribution of the Securities of
such series to the holders of Capital Securities in liquidation of such Citizens 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 Citizens Trust to remain classified as not an association
taxable as a corporation for United States Federal income tax purposes.



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Section 10.8 Original Issue Discount. 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 necessary 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
original issue discount includible in income for each $1,000 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
(whether by operation of a sinking fund or otherwise) as permitted or required by any form of
Security issued pursuant to this Indenture shall be made in accordance with such form of Security
and this Article; provided, however, that 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.
Except as otherwise set forth in the form of Security for such series, each Security of such series
shall be subject to partial redemption only in the amount of $1,000 or integral multiples thereof
and the principal amount of the unredeemed portion of such Security is not less than $100,000.



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 of any of the Securities of any particular series and having the
same terms, the Company shall, not less than 45 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 a Citizens Trust, the related Property Trustee of such date and
of the principal amount of Securities of that series to be redeemed and provide the additional
information required to be included in the notice or notices contemplated by Section 11.4. 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 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. If less than all the Securities of such series and of a
specified tenor are to be redeemed (unless such redemption affects only a single Security), 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 and specified tenor
not previously called for redemption in accordance with the preceding sentence.




     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



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portion of the principal amount of such Security which has been or is to be redeemed. If the
Company shall so direct, Securities registered in the name of the Company, any Affiliate or any
Subsidiary thereof shall not be included in the Securities selected for redemption.


Section 11.4 Notice of Redemption. Notice of redemption shall be given by first-class
mail, postage prepaid, mailed not later than the 30th day, and not earlier than the 60th day, 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 each series to be redeemed, each notice of redemption shall
identify the Securities (including CUSIP number(s)) to be redeemed and 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 and having the same
terms 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, if any, shall cease to accrue on and
after said date;



     (e) the place or places where such Securities are to be surrendered for payment of the
Redemption Price;



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



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



     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 written request, by the Trustee in the name and at the
expense of the Company and shall not be irrevocable. The notice if mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not the Holder receives
such notice. In any case, 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. New York City 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


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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 which 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 the place or
places stated in such notice at the applicable Redemption Price, together with accrued interest
(including any Additional Interest) to the Redemption Date. On presentation and surrender of such
Securities 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 any Additional Interest) to the Redemption Date;
provided, however, that, unless otherwise specified as contemplated by Section 3.1, installments of
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, 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 aggregate principal
amount equal to the unredeemed portion of the Security so presented and having the same Original
Issue Date, Stated Maturity and terms. If a Global Security is so surrendered, such new Security
(subject to Section 3.5) will also be a new Global Security.



     If any Security called for redemption shall not be so paid upon 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 a Citizens Trust. In
the case of the Securities of a series initially issued to a Citizens Trust, if specified as
contemplated by Section 3.1, the Company, at its option, may redeem such Securities (i) on or after
the date 10 years after the Original Issue Date of such Securities, in whole at any time or in part
from time to time, or (ii) in whole (but not in part) at any time within 90 days following the
occurrence of a Tax Event, Capital Treatment Event or Investment Company Event in respect of such
Citizens Trust, in each case at a Redemption Price specified as contemplated by Section 3.1.




ARTICLE XII

SINKING FUNDS



Section 12.1 Applicability of Article. The provisions of this Article shall be applicable
to any sinking fund for the retirement of Securities of any series except as otherwise specified as
contemplated by Section 3.1 for such Securities.




     The minimum amount of any sinking fund payment provided for by the terms of any Securities of
any series is herein referred to as a “mandatory sinking fund payment,” and any



65









 







sinking fund payment in excess of such minimum amount which is permitted to be made by the
terms of such Securities of any series is herein referred to as an “optional sinking fund payment.”
If provided for by the terms of any Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 12.2. Each sinking fund payment shall be
applied to the redemption (or purchase by tender or otherwise) of Securities of any series as
provided for by the terms of such Securities.


Section 12.2 Satisfaction of Sinking Fund Payments with Securities. In lieu of making all
or any part of a mandatory sinking fund payment with respect to any Securities of a series in cash,
the Company may at its option, at any time no more than 16 months and no less than 45 days prior to
the date on which such sinking fund payment is due, deliver to the Trustee Securities of such
series (together with the unmatured coupons, if any, appertaining thereto) theretofore purchased or
otherwise acquired by the Company, except Securities of such series that have been redeemed through
the application of mandatory or optional sinking fund payments pursuant to the terms of the
Securities of such series, accompanied by a Company Order instructing the Trustee to credit such
obligations and stating that the Securities of such series were originally issued by the Company by
way of bona fide sale or other negotiation for value; provided that the Securities to be so
credited have not been previously so credited. The Securities to be so credited shall be received
and credited for such purpose by the Trustee at the redemption price for such Securities, as
specified in the Securities so to be redeemed, for redemption through operation of the sinking fund
and the amount of such sinking fund payment shall be reduced accordingly.



Section 12.3 Redemption of Securities for Sinking Fund. Not less than 45 days prior to
each sinking fund payment date for any series of Securities, the Company will deliver to the
Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for
such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to
be satisfied by payment of cash in the currency in which the Securities of such series are payable
(except as provided pursuant to Section 3.1) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities pursuant to Section 12.2 and will also deliver to
the Trustee any Securities to be so delivered. Such Officers’ Certificate shall be irrevocable and
upon its delivery the Company shall be obligated to make the cash payment or payments therein
referred to, if any, on or before the succeeding sinking fund payment date. In the case of the
failure of the Company to deliver such Officers’ Certificate (or, as required by this Indenture,
the Securities and coupons, if any, specified in such Officers’ Certificate) by the due date
therefor, the sinking fund payment due on the succeeding sinking fund payment date for such series
shall be paid entirely in cash and shall be sufficient to redeem the principal amount of the
Securities of such series subject to a mandatory sinking fund payment without the right to deliver
or credit securities as provided in Section 12.2 and without the right to make the optional sinking
fund payment with respect to such series at such time.




     Any sinking fund payment or payments (mandatory or optional) made in cash plus any unused
balance of any preceding sinking fund payments made with respect to the Securities of any
particular series shall be applied by the Trustee (or by the Company if the Company is acting as
its own Paying Agent) on the sinking fund payment date on which such payment is made (or, if such
payment is made before a sinking fund payment date, on the sinking fund payment date immediately
following the date of such payment) to the redemption of Securities of such series at the
Redemption Price specified in such Securities with respect to the sinking fund. Any sinking



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fund monies not so applied or allocated by the Trustee (or, if the Company is acting as its
own Paying Agent, segregated and held in trust by the Company as provided in Section 10.3) for such
series and together with such payment (or such amount so segregated) shall be applied in accordance
with the provisions of this Section 12.3. Any and all sinking fund monies with respect to the
Securities of any particular series held by the Trustee (or if the Company is acting as its own
Paying Agent, segregated and held in trust as provided in Section 10.3) on the last sinking fund
payment date with respect to Securities of such series and not held for the payment or redemption
of particular Securities of such series shall be applied by the Trustee (or by the Company if the
Company is acting as its own Paying Agent), together with other monies, if necessary, to be
deposited (or segregated) sufficient for the purpose, to the payment of the principal of the
Securities of such series at Maturity. The Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 11.3 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company in the manner
provided in Section 11.4. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Section 11.6. On or before each sinking
fund payment date, the Company shall pay to the Trustee (or, if the Company is acting as its own
Paying Agent, the Company shall segregate and hold in trust as provided in Section 10.3) in cash a
sum in the currency in which Securities of such series are payable (except as provided pursuant to
Section 3.1) equal to the principal, premium, if any, and any interest accrued to the Redemption
Date for Securities or portions thereof to be redeemed on such sinking fund payment date pursuant
to this Section 12.3.



     Neither the Trustee nor the Company shall redeem any Securities of a series with sinking fund
monies or mail any notice of redemption of Securities of such series by operation of the sinking
fund for such series during the continuance of a default in payment of interest, if any, on any
Securities of such series or of any Event of Default (other than an Event of Default occurring as a
consequence of this paragraph) with respect to the Securities of such series, except that if the
notice of redemption shall have been provided in accordance with the provisions hereof, the Trustee
(or the Company, if the Company is then acting as its own Paying Agent) shall redeem such
Securities if cash sufficient for that purpose shall be deposited with the Trustee (or segregated
by the Company) for that purpose in accordance with the terms of this Article XII. Except as
aforesaid, any monies in the sinking fund for such series at the time when any such default or
Event of Default shall occur and any monies thereafter paid into such sinking fund shall, during
the continuance of such default or Event of Default, be held as security for the payment of the
Securities and coupons, if any, of such series; provided, however, that in case such default or
Event of Default shall have been cured or waived herein, such monies shall thereafter be applied on
the next sinking fund payment date for the Securities of such series on which such monies may be
applied pursuant to the provisions of this Section 12.3.



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 any Additional Interest) on each and all


67









 






of the Securities are hereby expressly made subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness.



Section 13.2 No Payment When Senior Indebtedness in Default; Payment Over of Proceeds Upon
Dissolution, Etc. In the event that 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 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 (a) any insolvency, bankruptcy, receivership, liquidation, reorganization,
readjustment, composition or other similar proceedings relating to the Company, its creditors or
its property, (b) any proceeding for the liquidation, dissolution or other winding up of the
Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(c) any assignment by the Company for the benefit of creditors or (d) 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 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 corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent provided in this Article
XIII, as such may be modified pursuant to Section 3.1 with respect to any series of Securities 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 this Article XIII, as such may be
modified pursuant to Section 3.1 with respect to any series of Securities) 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 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, 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 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.



     In the event that, notwithstanding the foregoing, any payment or distribution of any character
or any security, whether in cash, securities or other property (other than securities of



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the Company or any other corporation 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), 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, 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.



     The Trustee and Holders will 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) 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 raking 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 conditions described in the first paragraph of Section 13.2 or the pendency
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, it 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. Subject to the
payment in full of all amounts due or to become due on all Senior Indebtedness, or the provision
for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders
of Senior Indebtedness, the Holders of the Securities shall be subrogated to the extent of the
payments or distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article (equally and ratably with the holders of all indebtedness of the


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Company which by its express terms is subordinated to Senior Indebtedness of the Company to
substantially the same extent as the Securities 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 the rights of the holders of such Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable to the Senior Indebtedness
until the principal of (and premium, if any) and interest on the Securities shall be paid in full.
For purposes of such subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article, and no payments over pursuant
to the provisions of this Article to 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 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 from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture including, without limitation, 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 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 to time, without the consent of or notice to the
Trustee or the Holders of the Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Securities to the holders of Senior



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Indebtedness, do any one or more of the following: (i) 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; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii) release
any Person liable in any manner for the collection of Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Company and any other Person.


Section 13.8 Notice to Trustee. The Company shall give prompt written notice to the
Trustee of any fact known to the Company which 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 which would prohibit the making of any payment to or by the Trustee in respect of the
Securities, unless and until 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, that if the Trustee shall not have received the notice provided for in this
Section at least two Business Days prior to the date upon which by the terms hereof any monies may
become payable for any purpose (including, without limitation, the payment of the principal of (and
premium, if any) 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 which 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 conclusively rely
on the delivery to it of a written notice by a Person representing himself 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). 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.


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
conclusively 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, 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


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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. With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article and no implied covenants or obligations with respect to
holders of Senior Indebtedness shall be read into this Indenture against the Trustee.



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 which 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. Nothing in the Article shall apply to claims of,
or payments to, the Trustee under or pursuant to Section 6.7.



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.




* * * *




     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.



     IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as
of the day and year first above written.



	 	 	 	 	 
	 	CITIZENS REPUBLIC BANCORP, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	Authorized Officer 	 
	 
	 	[                    ]

As Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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