Exhibit 4.3


 


TRINITY
CAPITAL CORPORATION


as Issuer


 


 


INDENTURE


 


Dated as of May 11, 2004


 


 


WELLS
FARGO BANK, NATIONAL ASSOCIATION


as Trustee


 


FLOATING RATE
JUNIOR SUBORDINATED DEBT SECURITIES DUE 2034


 





















 


TABLE OF CONTENTS


 


	
  Parties

  	
   

  
	
  Recitals

  	
   

  
	
  Authorization of
  Indenture

  	
   

  
	
  Compliance with Legal
  Requirements

  	
   

  
	
  Purpose of and
  Consideration for Indenture

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
   

  
	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
  DEBT
  SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Authentication
  and Dating

  	
   

  
	
  Section
  2.02.

  	
  Form
  of Trustee’s Certificate of Authentication

  	
   

  
	
  Section
  2.03.

  	
  Form
  and Denomination of Debt Securities

  	
   

  
	
  Section
  2.04.

  	
  Execution
  of Debt Securities

  	
   

  
	
  Section
  2.05.

  	
  Exchange
  and Registration of Transfer of Debt Securities

  	
   

  
	
  Section
  2.06.

  	
  Mutilated,
  Destroyed, Lost or Stolen Debt Securities

  	
   

  
	
  Section 2.07.

  	
  Temporary Debt
  Securities

  	
   

  
	
  Section 2.08.

  	
  Payment of Interest

  	
   

  
	
  Section
  2.09.

  	
  Cancellation
  of Debt Securities Paid, etc

  	
   

  
	
  Section 2.10.

  	
  Computation of
  Interest

  	
   

  
	
  Section
  2.11.

  	
  Extension
  of Interest Payment Period

  	
   

  
	
  Section 2.12.

  	
  CUSIP Numbers

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
  PARTICULAR
  COVENANTS OF THE COMPANY

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  3.01.

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

  	
   

  
	
  Section
  3.02.

  	
  Offices
  for Notices and Payments, etc

  	
   

  
	
  Section
  3.03.

  	
  Appointments
  to Fill Vacancies in Trustee’s Office

  	
   

  
	
  Section
  3.04.

  	
  Provision
  as to Paying Agent

  	
   

  
	
  Section 3.05.

  	
  Certificate to
  Trustee

  	
   

  
	
  Section 3.06.

  	
  Additional Amounts

  	
   

  
	
  Section
  3.07.

  	
  Compliance
  with Consolidation Provisions

  	
   

  
	
  Section 3.08.

  	
  Limitation on
  Dividends

  	
   

  
	
  Section 3.09.

  	
  Covenants as
  to the Trust

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  
	
  LISTS
  AND REPORTS BY THE COMPANY AND THE TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Securityholders’
  Lists

  	
   

  
	
  Section
  4.02.

  	
  Preservation
  and Disclosure of Lists

  	
   

  
	
  Section
  4.03.

  	
  Financial
  and Other Information

  	
   

  



 


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  ARTICLE
  V

  	
   

  
	
  REMEDIES
  OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Events of Default

  	
   

  
	
  Section
  5.02.

  	
  Payment
  of Debt Securities on Default; Suit Therefor

  	
   

  
	
  Section
  5.03.

  	
  Application
  of Moneys Collected by Trustee

  	
   

  
	
  Section
  5.04.

  	
  Proceedings
  by Securityholders

  	
   

  
	
  Section
  5.05.

  	
  Proceedings
  by Trustee

  	
   

  
	
  Section
  5.06.

  	
  Remedies
  Cumulative and Continuing

  	
   

  
	
  Section
  5.07.

  	
  Direction
  of Proceedings and Waiver of Defaults by Majority of Securityholders

  	
   

  
	
  Section 5.08.

  	
  Notice of
  Defaults

  	
   

  
	
  Section
  5.09.

  	
  Undertaking
  to Pay Costs

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VI

  	
   

  
	
  CONCERNING THE TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  6.01.

  	
  Duties
  and Responsibilities of Trustee

  	
   

  
	
  Section 6.02.

  	
  Reliance on Documents,
  Opinions, etc

  	
   

  
	
  Section
  6.03.

  	
  No
  Responsibility for Recitals, etc

  	
   

  
	
  Section 6.04.

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

  	
   

  
	
  Section
  6.05.

  	
  Moneys
  to be Held in Trust

  	
   

  
	
  Section
  6.06.

  	
  Compensation
  and Expenses of Trustee

  	
   

  
	
  Section
  6.07.

  	
  Officers’
  Certificate as Evidence

  	
   

  
	
  Section
  6.08.

  	
  Eligibility
  of Trustee

  	
   

  
	
  Section
  6.09.

  	
  Resignation
  or Removal of Trustee

  	
   

  
	
  Section
  6.10.

  	
  Acceptance
  by Successor Trustee

  	
   

  
	
  Section 6.11.

  	
  Succession by Merger,
  etc

  	
   

  
	
  Section 6.12.

  	
  Authenticating
  Agents

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VII

  	
   

  
	
  CONCERNING THE
  SECURITYHOLDERS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  7.01.

  	
  Action by
  Securityholders

  	
   

  
	
  Section
  7.02.

  	
  Proof
  of Execution by Securityholders

  	
   

  
	
  Section
  7.03.

  	
  Who
  Are Deemed Absolute Owners

  	
   

  
	
  Section
  7.04.

  	
  Debt
  Securities Owned by Company Deemed Not Outstanding

  	
   

  
	
  Section
  7.05.

  	
  Revocation
  of Consents; Future Securityholders Bound

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII

  	
   

  
	
  SECURITYHOLDERS’ MEETINGS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Purposes of
  Meetings

  	
   

  
	
  Section
  8.02.

  	
  Call of
  Meetings by Trustee

  	
   

  
	
  Section
  8.03.

  	
  Call
  of Meetings by Company or Securityholders

  	
   

  
	
  Section
  8.04.

  	
  Qualifications
  for Voting

  	
   

  
	
  Section 8.05.

  	
  Regulations

  	
   

  
	
  Section 8.06.

  	
  Voting

  	
   

  
	
  Section 8.07.

  	
  Quorum; Actions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IX

  	
   

  
	
  SUPPLEMENTAL INDENTURES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  9.01.

  	
  Supplemental
  Indentures without Consent of Securityholders

  	
   

  
	
  Section
  9.02.

  	
  Supplemental
  Indentures with Consent of Securityholders

  	
   

  



 


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  Section
  9.03.

  	
  Effect
  of Supplemental Indentures

  	
   

  
	
  Section
  9.04.

  	
  Notation
  on Debt Securities

  	
   

  
	
  Section
  9.05.

  	
  Evidence
  of Compliance of Supplemental Indenture to be furnished to Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  X

  	
   

  
	
  REDEMPTION OF DEBT
  SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Optional
  Redemption

  	
   

  
	
  Section
  10.02.

  	
  Special
  Event Redemption

  	
   

  
	
  Section
  10.03.

  	
  Notice
  of Redemption; Selection of Debt Securities

  	
   

  
	
  Section
  10.04.

  	
  Payment
  of Debt Securities Called for Redemption

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XI

  	
   

  
	
  CONSOLIDATION, MERGER, SALE,
  CONVEYANCE AND LEASE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
  Company May Consolidate, etc., on
  Certain Terms

  	
   

  
	
  Section
  11.02.

  	
  Successor
  Entity to be Substituted

  	
   

  
	
  Section
  11.03.

  	
  Opinion
  of Counsel to be Given to Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XII

  	
   

  
	
  SATISFACTION
  AND DISCHARGE OF INDENTURE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  12.01.

  	
  Discharge
  of Indenture

  	
   

  
	
  Section
  12.02.

  	
  Deposited
  Moneys to be Held in Trust by Trustee

  	
   

  
	
  Section
  12.03.

  	
  Paying
  Agent to Repay Moneys Held

  	
   

  
	
  Section
  12.04.

  	
  Return
  of Unclaimed Moneys

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XIII

  	
   

  
	
  IMMUNITY
  OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  13.01.

  	
  Indenture
  and Debt Securities Solely Corporate Obligations

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XIV

  	
   

  
	
  MISCELLANEOUS PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 14.01.

  	
  Successors

  	
   

  
	
  Section
  14.02.

  	
  Official
  Acts by Successor Entity

  	
   

  
	
  Section
  14.03.

  	
  Surrender
  of Company Powers

  	
   

  
	
  Section 14.04.

  	
  Addresses for Notices, etc

  	
   

  
	
  Section 14.05.

  	
  Governing Law

  	
   

  
	
  Section 14.06.

  	
  Evidence of Compliance with Conditions
  Precedent

  	
   

  
	
  Section 14.07.

  	
  Non-Business Days

  	
   

  
	
  Section 14.08.

  	
  Table of Contents, Headings, etc

  	
   

  
	
  Section
  14.09.

  	
  Execution in
  Counterparts

  	
   

  
	
  Section 14.10.

  	
  Severability

  	
   

  
	
  Section 14.11.

  	
  Assignment

  	
   

  
	
  Section 14.12.

  	
  Acknowledgment
  of Rights

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV

  	
   

  
	
  SUBORDINATION OF DEBT
  SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 15.01.

  	
  Agreement to
  Subordinate

  	
   

  
	
  Section
  15.02.

  	
  Default
  on Senior Indebtedness

  	
   

  
	
  Section
  15.03.

  	
  Liquidation;
  Dissolution; Bankruptcy

  	
   

  
	
  Section 15.04.

  	
  Subrogation

  	
   

  
	
  Section
  15.05.

  	
  Trustee
  to Effectuate Subordination

  	
   

  
	
  Section 15.06.

  	
  Notice by the
  Company

  	
   

  



 


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  Section
  15.07.

  	
  Rights
  of the Trustee; Holders of Senior Indebtedness

  	
   

  
	
  Section
  15.08.

  	
  Subordination
  May Not Be Impaired

  	
   

  



 


	
  EXHIBITS

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A

  	
  FORM OF DEBT
  SECURITY

  	
   

  



 


iv





















 


THIS INDENTURE, dated as of May 11, 2004, between Trinity
Capital Corporation, a bank holding company incorporated in New Mexico (hereinafter
sometimes called the “Company”), and Wells Fargo
Bank, National Association, a national
banking association with its principal place of business in the State of
Delaware, as trustee (hereinafter sometimes called the “Trustee”).


 


W I T N E S S E T
H :


 


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


 


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


 


ARTICLE I


 


DEFINITIONS


 


SECTION 1.01.                 Definitions.


 


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


 


“Additional Amounts”: has the meaning set forth
in Section 3.06.


 


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


 


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


 


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


 


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


 


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


 


“Business Day”: means any day other than a
Saturday, Sunday or any other day on which banking institutions in Wilmington,
Delaware, New York City or Los Alamos,
New Mexico are permitted or required by any applicable law or executive
order to close.


 


1





















 


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


 


“Capital Securities”: means undivided
beneficial interests in the assets of the Trust which are designated as “TruPS®” and  rank pari passu with Common Securities issued by the Trust; provided,
however, that if an Event of Default (as defined in the Declaration) has
occurred and is continuing, the rights of holders of such Common Securities to
payment in respect of distributions and payments upon liquidation, redemption
and otherwise are subordinated to the rights of holders of such Capital
Securities.


 


“Capital Securities Guarantee”: means the
guarantee agreement that the Company will enter into with Wells Fargo Bank, National Association or other
Persons that operates directly or indirectly for the benefit of holders of
Capital Securities of the Trust.


 


“Capital Treatment Event”: means the receipt by
the Company and the Trust of an Opinion of Counsel experienced in such matters
to the effect that, as a result of any amendment to, or change in, the laws,
rules or regulations of the United States or any political subdivision thereof
or therein, or as the result of any official or administrative pronouncement or
action or decision interpreting or applying such laws, rules or regulations,
which amendment or change is effective or which pronouncement, action or decision
is announced on or after the date of original issuance of the Debt Securities,
there is more than an insubstantial risk that the Company will not, within 90
days of the date of such opinion, be entitled to treat an amount equal to the
aggregate Liquidation Amount of the Capital Securities as “Tier 1 Capital” (or
the then equivalent thereof) for purposes of the capital adequacy guidelines of
the Federal Reserve (or any successor regulatory authority with jurisdiction
over bank holding companies), as then in effect and applicable to the Company; provided,
however, that the distribution of the Debt Securities in connection with
the liquidation of the Trust by the Company shall not in and of itself
constitute a Capital Treatment Event unless such liquidation shall have
occurred in connection with a Tax Event or an Investment Company Event.


 


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


 


“Clearstream”: means Citibank, N.A., as
operator of Clearstream Banking, société anonyme.


 


“Code”: has the
meaning set forth in Section 4.03.


 


“Common Securities”: means undivided beneficial
interests in the assets of the Trust which are designated as “Common Securities”
and rank pari passu with Capital Securities
issued by the Trust; provided, however, that if an Event of
Default (as defined in the Declaration) has occurred and is continuing, the
rights of holders of such Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of such Capital Securities.


 


“Company”: means Trinity Capital Corporation, a bank holding company incorporated in
New Mexico, and, subject to the
provisions of Article XI, shall include its successors and assigns.


 


“Comparable Treasury
Issue”: means with respect to any Special Redemption Date, the United
States Treasury security selected by the Quotation Agent as having a maturity
comparable to the Remaining Life that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the Remaining Life.  If no United States Treasury security has a
maturity which is within a period from three months before to three months
after September 8, 2009, the two most
closely corresponding United States Treasury


 


2





















 


securities shall be used as the Comparable Treasury Issue, and the
Treasury Rate shall be interpolated or extrapolated on a straight-line basis,
rounding to the nearest month using such securities.


 


“Comparable Treasury Price”: means (a) the
average of five Reference Treasury Dealer Quotations for such Special
Redemption Date, after excluding the highest and lowest such Reference Treasury
Dealer Quotations, or (b) if the Quotation Agent receives fewer than five such
Reference Treasury Dealer Quotations, the average of all such Quotations.


 


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


 


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


 


“Declaration”: means the Amended and Restated
Declaration of Trust of the Trust dated as of May
11, 2004, as amended or supplemented from time to time.


 


“Default”: means any event, act or condition
that with notice or lapse of time, or both, would constitute an Event of
Default.


 


“Defaulted Interest”: has the meaning set forth
in Section 2.08.


 


“Deferred Interest”: has the meaning set forth
in Section 2.11.


 


“Euroclear”: 
Euroclear Bank S.A./N.V. as operator and depository of the Euroclear
system.


 


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


 


“Exchange Act”: means the Securities Exchange
Act of 1934, as amended.


 


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


 


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


 


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


 


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


 


“Interest Payment Date”: means March 8, June 8,
September 8 and December 8 of each year, commencing on September 8, 2004, during the term of this Indenture.


 


“Interest Period”: has the meaning set forth in
Section 2.08.


 


“Interest Rate”: means subject to the
occurrence of a Reset Event, a per annum rate of interest, reset quarterly,
equal to LIBOR, as determined on the LIBOR Determination Date for such Interest
Period, plus 2.70%.  A Reset Event will occur if on any day
specified by the Initial Purchaser (as defined in the Declaration), Regional
Diversified Funding 2004-II Ltd. or another pooled trust preferred vehicle
becomes the registered owner of the Capital Securities (such day, the “Reset
Date”).  Upon the occurrence of a Reset
Event, the applicable LIBOR will be reset on the Reset Date to be equal to the
LIBOR applicable on the newly issued trust preferred capital securities with
the same LIBOR Determination Dates issued by other trust subsidiaries of bank
holding companies or thrift holding companies who issue


 


3





















 


LIBOR based 30 year floating rate trust preferred capital securities to
Regional Diversified Funding 2004-II Ltd. or another pooled trust preferred
vehicle designated by the Initial Purchaser.


 


“Investment Company Event”: means the receipt
by the Company and the Trust of an Opinion of Counsel experienced in such
matters to the effect that, as a result of a change in law or regulation or
written change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority, there is
more than an insubstantial risk that the Trust is or, within 90 days of the
date of such opinion will be, considered an “investment company” that is
required to be registered under the Investment Company Act of 1940, as amended,
which change or prospective change becomes effective or would become effective,
as the case may be, on or after the date of the original issuance of the Debt
Securities.


 


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


 


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


 


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


 


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


 


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


 


“Maturity Date”: means September 8, 2034.


 


“Officers’ Certificate”: means a certificate
signed by the Chairman of the Board, the Vice Chairman, the President or any
Vice President, and by the Chief Financial Officer, the Treasurer, an Assistant
Treasurer, the Comptroller, an Assistant Comptroller, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.  Each such certificate shall include the
statements provided for in Section 14.06 if and to the extent required by
the provisions of such Section.


 


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


 


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


 


(a)                                  Debt
Securities theretofore canceled by the Trustee or the Authenticating Agent or
delivered to the Trustee for cancellation;


 


(b)                                 Debt
Securities, or portions thereof, for the payment or redemption of which moneys
in the necessary amount shall have been deposited in trust with the Trustee or
with any Paying Agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own Paying
Agent); provided, that, if such Debt Securities, or portions thereof,
are to be redeemed prior to maturity thereof, notice of such redemption shall
have been given as provided in Articles X and XIV or provision satisfactory to
the Trustee shall have been made for giving such notice; and


 


4





















 


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


 


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


 


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


 


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


 


“Primary Treasury Dealer”: means a primary
United States Government securities dealer in New York City.


 


“Principal Office of the Trustee”: means the
office of the Trustee, at which at any particular time its corporate trust
business shall be principally administered, which at all times shall be located
within the United States and at the time of the execution of this Indenture
shall be 919 North Market Street,, Suite 700, Wilmington,
DE 19801.


 


“Quotation Agent”: means Citigroup Global
Markets Inc. and its successors; provided, however, that if the
foregoing shall cease to be a Primary Treasury Dealer, the Company shall
substitute therefor another Primary Treasury Dealer.


 


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


 


“Redemption Price”: means 100% of the principal
amount of the Debt Securities being redeemed plus accrued and unpaid interest
on such Debt Securities to the Redemption Date or, in the case of redemption at
full maturity, the Maturity Date, or, in the case of a redemption due to the
occurrence of a Special Event, to the Special Redemption Date if such Special
Redemption Date is on or after September 8, 2009.


 


“Reference Treasury Dealer”: means (i) the
Quotation Agent or (ii) any other Primary Treasury Dealer selected by the
Trustee after consultation with the Company.


 


“Reference Treasury Dealer Quotations”: means,
with respect to each Reference Treasury Dealer and any Special Redemption Date,
the average, as determined by the Quotation Agent, of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day
preceding such Special Redemption Date.


 


“Regulation S Transferee”: means a non-U.S.
Person acquiring Debt Securities in accordance with Regulation S under the
Securities Act.


 


“Remaining Life”: means, with respect to any
Debt Security, the period from the Special Redemption Date for such Debt
Security to September 8, 2009.


 


5





















 


“Reset Date”: means “Reset Date” as used in the
definition of Interest Rate.


 


“Reset Event”: means “Reset Event” as used in
the definition of Interest Rate.


 


“Responsible Officer”: means, with respect to
the Trustee, any officer within the Principal Office of the Trustee with direct
responsibility for the administration of the Indenture, including any vice-president,
any assistant vice-president, any secretary, any assistant secretary, the
treasurer, any assistant treasurer, any trust officer or other officer of the
Principal Office of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer’s knowledge of and familiarity with
the particular subject.


 


“Securities Act”: means the Securities Act of
1933, as amended.


 


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


 


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


 


“Special Event”: means any of a Tax Event, an
Investment Company Event or a Capital Treatment Event.


 


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


 


“Special Redemption Price”:
means (1) if the Special Redemption Date is before September 8, 2009, the greater of (a) 100% of the principal amount of the Debt Securities
being redeemed pursuant to Section 10.02 or (b) as determined by a Quotation
Agent, the sum of the present value of the principal amount payable as part of
the Redemption Price with respect to a redemption as of September 8, 2009, together with the present value of interest payments over the Remaining
Life of such Debt Securities calculated at a fixed per annum rate of interest
equal to 8.385%, discounted to the
Special Redemption Date on a quarterly basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate plus 0.50%,
plus, in the case of either (a) or (b), accrued and unpaid interest on such
Debt Securities to the Special Redemption Date and (2) if the Special
Redemption Date is on or after September
8, 2009, the Redemption Price for
such Special Redemption Date.


 


6





















 


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


 


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


 


“Treasury Rate”: means (i) the yield, under the
heading which represents the average for the week immediately prior to the date
of calculation, appearing in the most recently published statistical release
designated H.15 (519) or any successor publication which is published weekly by
the Federal Reserve and which establishes yields on actively traded United
States Treasury securities adjusted to constant maturity under the caption “Treasury
Constant Maturities,” for the maturity corresponding to the Remaining Life (if
no maturity is within three months before or after the Remaining Life, yields
for the two published maturities most closely corresponding to the Remaining
Life shall be determined and the Treasury Rate shall be interpolated or
extrapolated from such yields on a straight-line basis, rounding to the nearest
month) or (ii) if such release (or any successor release) is not published
during the week preceding the calculation date or does not contain such yields,
the rate per annum equal to the quarterly equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Special Redemption Date.  The Treasury Rate shall be calculated on the
third Business Day preceding the Special Redemption Date.


 


“Trust”: means Trinity
Capital Trust III, the Delaware statutory trust, or any other similar
trust created for the purpose of issuing Capital Securities in connection with
the issuance of Debt Securities under this Indenture, of which the Company is
the sponsor.


 


7





















 


“Trust Indenture Act”: means the Trust
Indenture Act of 1939, as amended from time-to-time, or any successor
legislation.


 


“Trust Securities”: means Common Securities and
Capital Securities of Trinity Capital Trust III.


 


“Trustee”: means the Person identified as “Trustee”
in the first paragraph hereof, and, subject to the provisions of
Article VI hereof, shall also include its successors and assigns as
Trustee hereunder.


 


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


 


“U.S. Person”: has the meaning given to United
States Person as set forth in Section 7701(a)(30) of the Code.


 


ARTICLE II


 


DEBT SECURITIES


 


SECTION 2.01.                 Authentication
and Dating.


 


Upon the execution and delivery of this Indenture, or
from time to time thereafter, Debt Securities in an aggregate principal amount
not in excess of $6,186,000 may be
executed and delivered by the Company to the Trustee for authentication, and
the Trustee shall thereupon authenticate and make available for delivery said
Debt Securities to or upon the written order of the Company, signed by its Chairman
of the Board of Directors, Vice Chairman, President or Chief Financial Officer
or one of its Vice Presidents, without any further action by the Company
hereunder.  In authenticating such Debt
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Debt Securities, the Trustee shall be entitled to receive,
and (subject to Section 6.01) shall be fully protected in relying upon a
copy of any Board Resolution or Board Resolutions relating thereto and, if
applicable, an appropriate record of any action taken pursuant to such
resolution, in each case certified by the Secretary or an Assistant Secretary
or other officers with appropriate delegated authority of the Company as the
case may be.


 


The Trustee shall have the right to decline to
authenticate and deliver any Debt Securities under this Section if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken
or if a Responsible Officer of the Trustee in good faith shall determine that
such action would expose the Trustee to personal liability to existing
Securityholders.


 


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


 


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


 


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


 


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


 


Wells Fargo Bank, National
Association, not in its individual capacity but solely as trustee


 


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  By

  	
   

  	
   

  
	
   

  	
  Authorized
  Officer

  	
   

  



 


SECTION 2.03.                 Form
and Denomination of Debt Securities.


 


Subject to Section 2.05, the Debt Securities shall be
substantially in the form of Exhibit A hereto. 
The Debt Securities shall be in registered, certificated form without
coupons and in minimum denominations of $100,000 and any multiple of $1,000 in
excess thereof.  The Debt Securities
shall be numbered, lettered, or otherwise distinguished in such manner or in
accordance with such plans as the officers executing the same may determine
with the approval of the Trustee as evidenced by the execution and
authentication thereof.


 


SECTION 2.04.                 Execution
of Debt Securities.


 


The Debt Securities shall be signed in the name and on
behalf of the Company by the manual or facsimile signature of its Chairman of
the Board of Directors, Vice Chairman, President or Chief Financial Officer or
one of its Executive Vice Presidents, Senior Vice Presidents or Vice
Presidents, by facsimile or otherwise, and which need not be attested.  Only such Debt Securities as shall bear
thereon a certificate of authentication substantially in the form herein before
recited, executed by the Trustee or the Authenticating Agent by the manual
signature of an authorized officer, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose.  Such certificate by the Trustee or the
Authenticating Agent upon any Debt Security executed by the Company shall be
conclusive evidence that the Debt Security so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture.


 


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


 


Every Debt Security shall be dated the date of its
authentication.


 


SECTION 2.05.                 Exchange
and Registration of Transfer of Debt Securities.


 


The Company shall cause to be kept, at the office or
agency maintained for the purpose of registration of transfer and for exchange
as provided in Section 3.02, a register (the “Debt Security Register”) for
the Debt Securities issued hereunder in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
and transfer of all Debt Securities as provided in this Article II.  Such register shall be in written form or in
any other form capable of being converted into written form within a reasonable
time.


 


Debt Securities to be exchanged may be surrendered at
the Principal Office of the Trustee or at any office or agency to be maintained
by the Company for such purpose as provided in Section 3.02, and the Company
shall execute, the Company or the Trustee shall register and the Trustee or the
Authenticating Agent shall authenticate and make available for delivery in
exchange therefor the Debt Security or Debt Securities which the Securityholder
making the exchange shall be entitled to receive.  Upon due presentment for registration of
transfer of any Debt Security at the Principal Office of the


 


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Trustee or at any office or agency of the Company maintained for such
purpose as provided in Section 3.02, the Company shall execute, the
Company or the Trustee shall register and the Trustee or the Authenticating
Agent shall authenticate and make available for delivery in the name of the
transferee or transferees a new Debt Security for a like aggregate principal
amount. Registration or registration of transfer of any Debt Security by the
Trustee or by any agent of the Company appointed pursuant to Section 3.02,
and delivery of such Debt Security, shall be deemed to complete the
registration or registration of transfer of such Debt Security.


 


All Debt Securities presented for registration of
transfer or for exchange or payment shall (if so required by the Company or the
Trustee or the Authenticating Agent) be duly endorsed by, or be accompanied by,
a written instrument or instruments of transfer in form satisfactory to the
Company and either the Trustee or the Authenticating Agent duly executed by,
the holder or such holder’s attorney duly authorized in writing.


 


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


 


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


 


Upon the request of the Initial Purchaser (as defined
in the Declaration ) the Company shall provide for the Debt Securities to be
transferred and held through the facilities of The Depository Trust Company,
the Euroclear, Clearstream or similar book-entry systems for holders and
transferees who are qualified institutional buyers for purposes of Rule 144A
under the Securities Act or Regulation S Transferees or, consistent with an
opinion of counsel, other holders or transferees.  The Company shall cause appropriate revisions
to the form of Debt Securities necessary to facilitate book-entry transfers and
holding.


 


Notwithstanding the foregoing, Debt Securities may not
be transferred except in compliance with the restricted securities legend set
forth below (subject to the preceding paragraph), unless otherwise determined
by the Company in accordance with applicable law, which legend shall be placed
on each Debt Security:


 


THIS SECURITY HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES
LAWS.  NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.  THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TO
THE COMPANY, (B) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”),
TO A PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”
AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (C) TO A “NON-U.S. PERSON” IN AN “OFFSHORE
TRANSACTION” PURSUANT TO REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE


 


10





















 


SECURITIES ACT TO AN “ACCREDITED
INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE
501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF AN “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT IN
ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE
COMPANY.  THE HOLDER OF THIS SECURITY BY
ITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.


 


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


 


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


 


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


 


THIS SECURITY WILL BE
ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A PRINCIPAL AMOUNT OF NOT
LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF.  ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A
BLOCK HAVING A


 


11





















 


PRINCIPAL AMOUNT OF LESS
THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY
SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF THIS SECURITY
FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON
THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO
INTEREST WHATSOEVER IN THIS SECURITY.


 


SECTION 2.06.                 Mutilated,
Destroyed, Lost or Stolen Debt Securities.


 


In case any Debt Security shall become mutilated or be
destroyed, lost or stolen, the Company shall execute, and upon its written
request the Trustee shall authenticate and deliver, a new Debt Security bearing
a number not contemporaneously outstanding, in exchange and substitution for
the mutilated Debt Security, or in lieu of and in substitution for the Debt
Security so destroyed, lost or stolen. 
In every case the applicant for a substituted Debt Security shall
furnish to the Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company and
the Trustee evidence to their satisfaction of the destruction, loss or theft of
such Debt Security and of the ownership thereof.


 


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


 


Every substituted Debt Security issued pursuant to the
provisions of this Section 2.06 by virtue of the fact that any such Debt
Security is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Debt Security shall be found at any time, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Debt Securities duly issued hereunder. 
All Debt Securities shall be held and owned upon the express condition
that, to the extent permitted by applicable law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Debt Securities and shall preclude any and all other rights or
remedies notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.


 


SECTION 2.07.                 Temporary
Debt Securities.


 


Pending the preparation of definitive Debt Securities,
the Company may execute and the Trustee shall authenticate and make available
for delivery temporary Debt Securities that are typed, printed or lithographed.
Temporary Debt Securities shall be issuable in any authorized denomination, and
substantially in the form of the definitive Debt Securities but with such
omissions, insertions and variations as may be appropriate for temporary Debt
Securities, all as may be determined by the Company.  Every such temporary Debt Security shall be
executed by the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Debt Securities.  Without
unreasonable delay, the Company will execute and deliver to


 


12





















 


the Trustee or the Authenticating Agent definitive Debt Securities and
thereupon any or all temporary Debt Securities may be surrendered in exchange
therefor, at the Principal Office of the Trustee or at any office or agency
maintained by the Company for such purpose as provided in Section 3.02, and the
Trustee or the Authenticating Agent shall authenticate and make available for
delivery in exchange for such temporary Debt Securities a like aggregate
principal amount of such definitive Debt Securities.  Such exchange shall be made by the Company at
its own expense and without any charge therefor except that in case of any such
exchange involving a registration of transfer the Company may require payment
of a sum sufficient to cover any tax, fee or other governmental charge that may
be imposed in relation thereto.  Until so
exchanged, the temporary Debt Securities shall in all respects be entitled to
the same benefits under this Indenture as definitive Debt Securities
authenticated and delivered hereunder.


 


SECTION 2.08.                 Payment
of Interest.


 


Each Debt Security will bear interest at the then
applicable Interest Rate, for the period from and including the immediately
preceding Interest Payment Date or, in the case of the first interest period,
the original date of issuance of such Debt Security to, but excluding, the next
applicable Interest Payment Date or, in the case of the last interest period, the
Redemption Date, Special Redemption Date or Maturity Date, as applicable (each
such period an “Interest Period”), on the principal thereof, on any overdue
principal and (to the extent that payment of such interest is enforceable under
applicable law) on Deferred Interest and on any overdue installment of interest
(including Defaulted Interest), payable (subject to the provisions of Article
XV) on each Interest Payment Date commencing on September
8, 2004.  Interest and any
Deferred Interest on any Debt Security that is payable, and is punctually paid
or duly provided for by the Company, on any Interest Payment Date shall be paid
to the Person in whose name said Debt Security (or one or more Predecessor
Securities) is registered at the close of business on the regular record date
for such interest installment, except that interest and any Deferred Interest
payable on the Maturity Date, the Redemption Date or the Special Redemption
Date, as the case may be, shall be paid to the Person to whom principal is paid.  In the event that any Debt Security or
portion thereof is called for redemption and the redemption date is subsequent
to a regular record date with respect to any Interest Payment Date and prior to
such Interest Payment Date, interest on such Debt Security will be paid upon
presentation and surrender of such Debt Security.


 


Any interest on any Debt Security, other than Deferred
Interest, that is payable, but is not punctually paid or duly provided for by
the Company, on any Interest Payment Date (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the registered holder on the relevant
regular record date by virtue of having been such holder, and such Defaulted
Interest shall be paid by the Company to the Persons in whose names such Debt
Securities (or their respective Predecessor Securities) are registered at the
close of business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner:  the Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each such
Debt Security and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements reasonably satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as
in this clause provided.  Thereupon the
Trustee shall fix a special record date for the payment of such Defaulted
Interest which shall not be more than fifteen nor less than ten days prior to
the date of the proposed payment and not less than ten days after the receipt
by the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Company
of such special record date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the
special record date therefor to be mailed, first class postage prepaid, to each
Securityholder at his or her address as it appears in the Debt Security
Register, not less than ten days prior to such special record date.  Notice of the proposed payment of such
Defaulted Interest and the special


 


13





















 


record date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names such Debt Securities (or
their respective Predecessor Securities) are registered on such special record
date and thereafter the Company shall have no further payment obligation in
respect of the Defaulted Interest.


 


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


 


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


 


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


 


SECTION 2.09.                 Cancellation
of Debt Securities Paid, etc.


 


All Debt Securities surrendered for the purpose of
payment, redemption, exchange or registration of transfer, shall, if
surrendered to the Company or any Paying Agent, be surrendered to the Trustee
and promptly canceled by it, or, if surrendered to the Trustee or any
Authenticating Agent, shall be promptly canceled by it, and no Debt Securities
shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Indenture.  All Debt
Securities canceled by any Authenticating Agent shall be delivered to the
Trustee.  The Trustee shall destroy all
canceled Debt Securities unless the Company otherwise directs the Trustee in
writing, in which case the Trustee shall dispose of such Debt Securities as
directed by the Company.  If the Company
shall acquire any of the Debt Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Debt Securities unless and until the same are surrendered to the Trustee for
cancellation.


 


SECTION 2.10.                 Computation
of Interest.


 


(a)                                  The
amount of interest payable for each Interest Period will be computed on the
basis of a 360-day year and the actual number of days elapsed in the relevant
interest period; provided, however, that upon the occurrence of a
Special Event Redemption pursuant to Section 10.02 the amounts payable pursuant
to this Indenture shall be calculated as set forth in the definition of Special
Redemption Price.


 


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


 


(1)                                  Subject to the occurrence of a Reset Event, on
the second LIBOR Business Day (provided, that on such day commercial
banks are open for business (including dealings in foreign currency deposits)
in London (a “LIBOR Banking Day”), and otherwise the next preceding LIBOR
Business Day that is also a LIBOR Banking Day) prior to March 1, June 1, September 1 and December
1), as the case may be, immediately prior to the commencement of such Interest
Period (except, with respect to the first Interest Period, LIBOR for such
Interest Period shall be determined on May 5, 2004) (each such day, a “LIBOR
Determination Date”), LIBOR shall equal the rate, as obtained by the
Calculation Agent, for three-month U.S. Dollar deposits in Europe which appears
on Telerate Page 3750 (as defined in the International Swaps and Derivatives
Association, Inc. 1991 Interest Rate and Currency Exchange Definitions) or such
other


 


14





















 


page as may replace such Telerate Page 3750, as of 11:00
a.m. (London time) on such LIBOR Determination Date, as reported by Bloomberg
Financial Markets Commodities News.  “LIBOR
Business Day” means any day that is not a Saturday, Sunday or other day on
which commercial banking institutions in New York, New York or Wilmington,
Delaware are authorized or obligated by law or executive order to be
closed.  If such rate is
superseded on Telerate Page 3750 by a corrected rate before 12:00 noon (London
time) on the same LIBOR Determination Date, the corrected rate as so
substituted will be the applicable LIBOR for that LIBOR Determination Date.


 


(2)                                  If,
on any LIBOR Determination Date, such rate does not appear on Telerate Page
3750 as reported by Bloomberg Financial Markets Commodities News or such other
page as may replace such Telerate Page 3750, the Calculation Agent shall
determine the arithmetic mean of the offered quotations of the Reference Banks
(as defined below) to leading banks in the London interbank market for
three-month U.S. Dollar deposits in Europe (in an amount determined by the
Calculation Agent) by reference to requests for quotations as of approximately
11:00 a.m. (London time) on the LIBOR Determination Date made by the
Calculation Agent to the Reference Banks. 
If, on any LIBOR Determination Date, at least two of the Reference Banks
provide such quotations, LIBOR shall equal the arithmetic mean of such
quotations.  If, on any LIBOR
Determination Date, only one or none of the Reference Banks provides such a
quotation, LIBOR shall be deemed to be the arithmetic mean of the offered
quotations that at least two leading banks in the City of New York (as selected
by the Calculation Agent) are quoting on the relevant LIBOR Determination Date
for three-month U.S. Dollar deposits in Europe at approximately 11:00 a.m.
(London time) in an amount determined by the Calculation Agent. As used herein,
“Reference Banks” means four major banks in the London interbank market
selected by the Calculation Agent.


 


(3)                                  If
the Calculation Agent is required but is unable to determine a rate in
accordance with at least one of the procedures provided above, LIBOR for such
Interest Period shall be LIBOR in effect for the immediately preceding Interest
Period.


 


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


 


(d)                                 On
each LIBOR Determination Date and the Reset Date, the Calculation Agent shall
notify, in writing, the Company and the Paying Agent of the applicable Interest
Rate in effect for the related Interest Payment Date.  The Calculation Agent shall, upon the request
of the holder of any Debt Securities, provide the Interest Rate then in
effect.  All calculations made by the
Calculation Agent in the absence of manifest error shall be conclusive for all
purposes and binding on the Company and the Holders of the Debt
Securities.  The Paying Agent shall be
entitled to rely on information received from the Calculation Agent or the
Company as to the Interest Rate.  The
Company shall, from time to time, provide any necessary information to the
Paying Agent relating to any original issue discount and interest on the Debt
Securities that is included in any payment and reportable for taxable income
calculation purposes.


 


15





















 


SECTION 2.11.                 Extension
of Interest Payment Period.


 


So long as no Event of Default has occurred and is
continuing, the Company shall have the right, from time to time and without
causing an Event of Default, to defer payments of interest on the Debt
Securities by extending the interest payment period on the Debt Securities at
any time and from time to time during the term of the Debt Securities, for up
to twenty consecutive quarterly periods (each such extended interest payment
period, an “Extension Period”), during which Extension Period no interest shall
be due and payable.  No Extension Period
may end on a date other than an Interest Payment Date.  During any Extension Period, interest will
continue to accrue on the Debt Securities, and interest on such accrued
interest (such accrued interest and interest thereon referred to herein as “Deferred
Interest”) will accrue at an annual rate equal to the Interest Rate in effect
for such Extension Period, compounded quarterly from the date such Deferred
Interest would have been payable were it not for the Extension Period, to the
extent permitted by law.  No interest or
Deferred Interest shall be due and payable during an Extension Period, except
at the end thereof.  At the end of any
such Extension Period the Company shall pay all Deferred Interest then accrued
and unpaid on the Debt Securities; provided, however, that no
Extension Period may extend beyond the Maturity Date, Redemption Date or
Special Redemption Date; and provided  further, however,
that during any such Extension Period, the Company shall be subject to the
restrictions set forth in Section 3.08 of this Indenture.  Prior to the termination of any Extension Period,
the Company may further extend such period, provided, that such period
together with all such previous and further consecutive extensions thereof
shall not exceed twenty consecutive quarterly periods, or extend beyond the
Maturity Date, Redemption Date or Special Redemption Date.  The deferral of the payment of interest
during an Extension Period shall not defer the payment of any Additional
Amounts that may be due and payable. 
Upon the termination of any Extension Period and upon the payment of all
Deferred Interest, the Company may commence a new Extension Period, subject to
the foregoing requirements.  The Company must give the Trustee notice of
its election to begin any Extension Period at least one Business Day prior to
the regular record date related to the date such interest would otherwise be
next payable.  The Company must give the
Trustee notice of its election to extend any Extension Period at least one
Business Day prior to the regular record date related to the next succeeding
date on which interest on the Debt Securities would have been payable except
for the election to extend such existing Extension Period.  The Trustee shall give notice of the
Company’s election to begin a new Extension Period to the Securityholders.


 


SECTION 2.12.                 CUSIP
Numbers.


 


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


 


16





















 


ARTICLE III


 


PARTICULAR
COVENANTS OF THE COMPANY


 


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


 


(a)                                  The
Company covenants and agrees that it will duly and punctually pay or cause to
be paid all payments due on the Debt Securities at the place, at the respective
times and in the manner provided in this Indenture and the Debt
Securities.  At the option of the
Company, each installment of interest on the Debt Securities may be paid (i) by
mailing checks for such interest payable to the order of the holders of Debt
Securities entitled thereto as they appear on the Debt Security Register or
(ii) by wire transfer to any account with a banking institution located in the
United States designated by such holders to the Paying Agent no later than the
related record date.


 


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


 


(c)                                  As
of the date of this Indenture, the Company has no intention to exercise its
right under Section 2.11 to defer payments of interest on the Debt Securities
by commencing an Extension Period.


 


(d)                                 As
of the date of this Indenture, the Company believes that the likelihood that it
would exercise its right under Section 2.11 to defer payments of interest on
the Debt Securities by commencing an Extension Period at any time during which
the Debt Securities are outstanding is remote because of the restrictions that
would be imposed on the Company’s ability to declare or pay dividends or
distributions on, or to redeem, purchase or make a liquidation payment with
respect to, any of its outstanding equity and on the Company’s ability to make any
payments of principal of or interest on, or repurchase or redeem, any of its
debt securities that rank pari passu in
all respects with (or junior in interest to) the Debt Securities.


 


SECTION 3.02.                 Offices
for Notices and Payments, etc.


 


So long as any of the
Debt Securities remain outstanding, the Company will maintain in Wilmington,
Delaware or in Los Alamos, New Mexico an
office or agency where the Debt Securities may be presented for payment, an
office or agency where the Debt Securities may be presented for registration of
transfer and for exchange as provided in this Indenture and an office or agency
where notices and demands to or upon the Company in respect of the Debt
Securities or of this Indenture may be served. 
The Company will give to the Trustee written notice of the location of
any such office or agency and of any change of location thereof.  Until otherwise designated from time to time
by the Company in a notice to the Trustee, or specified as contemplated by
Section 2.05, such office or agency for all of the above purposes shall be the
Principal Office of the Trustee.  In case
the Company shall fail to maintain any such office or agency in Wilmington,
Delaware or in Los Alamos, New Mexico or
shall fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the
Principal Office of the Trustee.


 


In addition to any such office or agency, the Company
may from time to time designate one or more offices or agencies outside
Wilmington, Delaware or Los Alamos, New Mexico
where the Debt Securities may be presented for registration of transfer and for
exchange in the manner provided in this


 


17





















 


Indenture, and the Company may from time to time rescind such
designation, as the Company may deem desirable or expedient; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain any such office or agency in Wilmington, Delaware
or in Los Alamos, New Mexico for the
purposes above mentioned.  The Company
will give to the Trustee prompt written notice of any such designation or
rescission thereof.


 


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


 


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


 


SECTION 3.04.                 Provision
as to Paying Agent.


 


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


 


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


 


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


 


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


 


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


 


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


 


(c)                                  Anything
in this Section 3.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge with respect to
the Debt Securities, or for any other reason, pay, or direct any Paying Agent
to pay to the Trustee all sums held in trust by the Company or any such Paying
Agent, such sums to be held by the Trustee upon the same terms and conditions
herein contained.


 


18





















 


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


 


(e)                                  The
Company hereby initially appoints the Trustee to act as Paying Agent (the “Paying
Agent”).


 


SECTION 3.05.                 Certificate
to Trustee.


 


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


 


SECTION 3.06.                 Additional
Amounts.


 


If and for so long as the Trust is the holder of all
Debt Securities and is subject to or otherwise required to pay, or is required
to withhold from distributions to holders of Trust Securities, any additional
taxes (including withholding taxes), duties, assessments or other governmental
charges as a result of a Tax Event, the Company will pay such additional
amounts (the “Additional Amounts”) on the Debt Securities as shall be required
so that the net amounts received and retained by the Trust for distribution to
holders of Trust Securities after paying all taxes (including withholding taxes
on distributions to holders of Trust Securities), duties, assessments or other
governmental charges will be equal to the amounts the Trust would have received
and retained for distribution to holders of Trust Securities after paying all
taxes (including withholding taxes on distributions to holders of Trust
Securities), duties, assessments or other governmental charges if no such
additional taxes, duties, assessments or other governmental charges had been
imposed.  Whenever in this Indenture or
the Debt Securities there is a reference in any context to the payment of
principal of or interest on the Debt Securities, such mention shall be deemed
to include mention of payments of the Additional Amounts provided for in this
paragraph to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to the provisions of this
paragraph and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made, provided, however, that the deferral of the payment of
interest during an Extension Period pursuant to Section 2.11 shall not defer
the payment of any Additional Amounts that may be due and payable.


 


SECTION 3.07.                 Compliance
with Consolidation Provisions.


 


The Company will not, while any of the Debt Securities
remain outstanding, consolidate with, or merge into any other Person, or merge
into itself, or sell or convey all or substantially all of its property to any
other Person unless the provisions of Article XI hereof are complied with.


 


SECTION 3.08.                 Limitation
on Dividends.


 


If Debt Securities are initially issued to the Trust
or a trustee of such Trust in connection with the issuance of Trust Securities by
the Trust (regardless of whether Debt Securities continue to be held by such
Trust) and (i) there shall have occurred and be continuing an Event of
Default, (ii) the Company shall be in default with respect to its payment
of any obligations under the Capital Securities Guarantee or (iii) the
Company shall have given notice of its election to defer payments of interest
on the Debt Securities by extending the interest payment period as provided
herein and such period, or any extension


 


19





















 


thereof, shall have commenced and be continuing, then the Company may
not (A) declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the Company’s
capital stock or (B) make any payment of principal of or interest or premium,
if any, on or repay, repurchase or redeem any debt securities of the Company
that rank pari passu in all
respects with or junior in interest to the Debt Securities (other than (a)
repurchases, redemptions or other acquisitions of shares of capital stock of
the Company (I) in connection with any employment contract, benefit plan or
other similar arrangement with or for the benefit of one or more employees,
officers, directors or consultants, (II) in connection with a dividend
reinvestment or stockholder stock purchase plan or (III) in connection with the
issuance of capital stock of the Company (or securities convertible into or
exercisable for such capital stock), as consideration in an acquisition
transaction entered into prior to the occurrence of (i), (ii) or (iii) above,
(b) as a result of any exchange or conversion of any class or series of the
Company’s capital stock (or any capital stock of a subsidiary of the Company)
for any class or series of the Company’s capital stock or of any class or
series of the Company’s indebtedness for any class or series of the Company’s
capital stock, (c) the purchase of fractional interests in shares of the
Company’s capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, (d) any declaration
of a dividend in connection with any stockholder’s rights plan, or the issuance
of rights, stock or other property under any stockholder’s rights plan, or the
redemption or repurchase of rights pursuant thereto, or (e) any dividend in the
form of stock, warrants, options or other rights where the dividend stock or
the stock issuable upon exercise of such warrants, options or other rights is
the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock).


 


SECTION 3.09.                 Covenants
as to the Trust.


 


For so long as such Trust Securities remain
outstanding, the Company shall maintain 100% ownership of the Common
Securities; provided, however, that any permitted successor of
the Company under this Indenture that is a U.S. Person may succeed to the
Company’s ownership of such Common Securities. 
The Company, as owner of the Common Securities, shall use commercially
reasonable efforts (a) to cause the Trust to remain a statutory trust,
except in connection with a distribution of Debt Securities to the holders of
Trust Securities in liquidation of the Trust, the redemption of all of the
Trust Securities or certain mergers, consolidations or amalgamations, each as
permitted by the Declaration, (b) to cause the Trust to otherwise continue
to be classified as a grantor trust for United States federal income tax
purposes and (c) to cause each holder of Trust Securities to be treated as
owning an undivided beneficial interest in the Debt Securities.


 


ARTICLE IV


 


LISTS AND REPORTS

BY THE COMPANY AND THE TRUSTEE


 


SECTION 4.01.                 Securityholders’
Lists.


 


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


 


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


 


(b)                                 at
such other times as the Trustee may request in writing, within 30 days after
the receipt by the Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is
furnished;


 


20





















 


except that no such lists need be furnished under this Section 4.01
so long as the Trustee is in possession thereof by reason of its acting as Debt
Security registrar.


 


SECTION 4.02.                 Preservation and Disclosure of
Lists.


 


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


 


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


 


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


 


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


 


If the Trustee shall elect not to afford such
applicants access to such information, the Trustee shall, upon the written
request of such applicants, mail to each Securityholder of Debt Securities
whose name and address appear in the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this Section 4.02
a copy of the form of proxy or other communication which is specified in such
request with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender, the
Trustee shall mail to such applicants and file with the Securities and Exchange
Commission, if permitted or required by applicable law, together with a copy of
the material to be mailed, a written statement to the effect that, in the
opinion of the Trustee, such mailing would be contrary to the best interests of
the holders of all Debt Securities, as the case may be, or would be in
violation of applicable law.  Such
written statement shall specify the basis of such opinion.  If said Commission, as permitted or required
by applicable law, after opportunity for a hearing upon the objections
specified in the written statement so filed, shall enter an order refusing to
sustain any of such objections or if, after the entry of an order sustaining
one or more of such objections, said Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained have been met and
shall enter an order so declaring, the Trustee shall mail copies of such
material to all such Securityholders with reasonable promptness after the entry
of such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their application.


 


(c)                                  Each
and every holder of Debt Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any Paying Agent shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the holders of Debt
Securities in accordance with the provisions of subsection (b) of
this Section 4.02,


 


21





















 


regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request
made under said subsection (b).


 


SECTION 4.03.                 Financial and Other Information.


 


If at any time the Trust ceases to exist for
whatever reason or is no longer the holder of the Debt Securities, the Company
shall:


 


(a)                                  deliver
to each Securityholder either (1) each Report on Form 10-K and Form 10-Q
prepared by the Company and filed with the Securities and Exchange Commission
in accordance with the Exchange Act within 90 days after the filing of each Form 10-K
and within 30 days after the filing of each Form 10-Q, or (2) if
the Company is at any time neither subject to Section 13 or 15(d) of
the Exchange Act nor exempt from reporting pursuant to Rule 12g3-2(b) thereunder,
the information required to be provided by Rule 144A(d)(4) under the
Securities Act; and


 


(b)                                 (1) deliver
to each Securityholder the Company’s reports on FR
Y-9C, promptly following their filing with the Federal Reserve,
and (2) prepare and deliver to each Securityholder, within 30 days after
the end of the fiscal year of the Company, Form 1099 or such other annual
U.S. federal income tax information statement required by the Internal Revenue
Code of 1986, as amended (the “Code”), containing such information with regard
to the Debt Securities held by such Securityholder as is required by the Code
and the income tax  regulations of the
U.S. Treasury thereunder.


 


ARTICLE V


 


REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS

UPON AN EVENT OF DEFAULT


 


SECTION 5.01.                 Events of Default.


 


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


 


(a)                                  the
Company defaults in the payment of any interest upon any Debt Security when it
becomes due and payable, and continuance of such default for a period of 30
days; for the avoidance of doubt, an extension of any interest payment period
by the Company in accordance with Section 2.11 of this Indenture shall not
constitute a default under this clause 5.01(a); or


 


(b)                                 the
Company defaults in the payment of all or any part of the principal of (or
premium, if any, on) any Debt Securities as and when the same shall become due
and payable either at maturity, upon redemption, by declaration of acceleration
pursuant to Section 5.01 of this Indenture or otherwise; or


 


(c)                                  the
Company defaults in the performance of, or breaches, any of its covenants or
agreements in Section 3.06, 3.07, 3.08 or 3.09 of this Indenture (other
than a covenant or agreement a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and continuance of
such default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the holders of not less than 25% in aggregate principal
amount of the outstanding Debt Securities, a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a “Notice of Default” hereunder; or


 


(d)                                 a
court having jurisdiction in the premises shall enter a decree or order for
relief in respect of the Company in an involuntary case under any applicable
bankruptcy, insolvency or other


 


22





















 


similar law now or
hereafter in effect, or appoints a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or for any
substantial part of its property, or orders the winding-up or liquidation of
its affairs and such decree or order shall remain unstayed and in effect for a
period of 90 consecutive days; or


 


(e)                                  the
Company shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, shall consent to
the entry of an order for relief in an involuntary case under any such law, or
shall consent to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other similar
official) of the Company or of any substantial part of its property, or shall
make any general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due; or


 


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


 


If an Event of Default occurs and is
continuing with respect to the Debt Securities, then, and in each and every
such case, unless the principal of the Debt Securities shall have already
become due and payable, either the Trustee or the holders of not less than 25%
in aggregate principal amount of the Debt Securities then outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by Securityholders),
may declare the entire principal of the Debt Securities and the interest
accrued, but unpaid, thereon, if any, to be due and payable immediately, and
upon any such declaration the same shall become immediately due and payable.


 


The foregoing provisions, however, are
subject to the condition that if, at any time after the principal of the Debt
Securities shall have been so declared due and payable, and before any judgment
or decree for the payment of the moneys due shall have been obtained or entered
as hereinafter provided, (i) the Company shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured installments of interest upon
all the Debt Securities and all payments on the Debt Securities which shall
have become due otherwise than by acceleration (with interest upon all such
payments and Deferred Interest, to the extent permitted by law) and such amount
as shall be sufficient to cover reasonable compensation to the Trustee and each
predecessor Trustee, their respective agents, attorneys and counsel, and all
other amounts due to the Trustee pursuant to Section 6.06, if any, and (ii) all
Events of Default under this Indenture, other than the non-payment of the
payments on Debt Securities which shall have become due by acceleration, shall
have been cured, waived or otherwise remedied as provided herein, then and in
every such case the holders of a majority in aggregate principal amount of the
Debt Securities then outstanding, by written notice to the Company and to the
Trustee, may waive all defaults and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.


 


In case the Trustee shall have proceeded to
enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the Trustee, then and in
every such case the Company, the Trustee and the holders of the Debt Securities
shall be restored respectively to their several positions and rights hereunder,
and all rights, remedies and powers of the Company, the Trustee and the holders
of the Debt Securities shall continue as though no such proceeding had been
taken.


 


23





















 


SECTION 5.02.                 Payment of Debt Securities on
Default; Suit Therefor.


 


The Company covenants that upon the
occurrence of an Event of Default pursuant to clause 5.01(a) or 5.01(b) and
upon demand of the Trustee, the Company will pay to the Trustee, for the
benefit of the holders of the Debt Securities, the whole amount that then shall
have become due and payable on all Debt Securities including Deferred Interest
accrued on the Debt Securities; and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
a reasonable compensation to the Trustee, its agents, attorneys and counsel,
and any other amounts due to the Trustee under Section 6.06.  In case the Company shall fail forthwith to
pay such amounts upon such demand, the Trustee, in its own name and as trustee
of an express trust, shall be entitled and empowered to institute any actions
or proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company
or any other obligor on such Debt Securities and collect in the manner provided
by law out of the property of the Company or any other obligor on such Debt
Securities wherever situated the moneys adjudged or decreed to be payable.


 


In case there shall be pending proceedings
for the bankruptcy or for the reorganization of the Company or any other
obligor on the Debt Securities under Bankruptcy Law, or in case a receiver or
trustee shall have been appointed for the property of the Company or such other
obligor, or in the case of any other similar judicial proceedings relative to
the Company or other obligor upon the Debt Securities, or to the creditors or
property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of the Debt Securities shall then be due and payable as
therein expressed or by declaration of acceleration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 5.02, shall be entitled and empowered, by intervention
in such proceedings or otherwise, to file and prove a claim or claims for the
whole amount of principal and interest owing and unpaid in respect of the Debt
Securities and, in case of any judicial proceedings, to file such proofs of
claim and other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of all other amounts due
to the Trustee under Section 6.06) and of the Securityholders allowed in
such judicial proceedings relative to the Company or any other obligor on the
Debt Securities, or to the creditors or property of the Company or such other
obligor, unless prohibited by applicable law and regulations, to vote on behalf
of the holders of the Debt Securities in any election of a trustee or a standby
trustee in arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings or Person performing similar functions in comparable
proceedings, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the
Securityholders to make such payments to the Trustee, and, in the event that
the Trustee shall consent to the making of such payments directly to the Securityholders,
to pay to the Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor Trustee and their respective
agents, attorneys and counsel, and all other amounts due to the Trustee under Section 6.06.


 


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


 


All rights of action and of asserting claims
under this Indenture, or under any of the Debt Securities, may be enforced by the
Trustee without the possession of any of the Debt Securities, or the production
thereof at any trial or other proceeding relative thereto, and any such suit or
proceeding


 


24





















 


instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall be for the ratable
benefit of the holders of the Debt Securities.


 


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


 


SECTION 5.03.                 Application of Moneys Collected by
Trustee.


 


Any moneys collected by the Trustee shall be
applied in the following order, at the date or dates fixed by the Trustee for
the distribution of such moneys, upon presentation of the several Debt
Securities in respect of which moneys have been collected, and stamping thereon
the payment, if only partially paid, and upon surrender thereof if fully paid:


 


First: To the payment of costs and expenses
incurred by, and reasonable fees of, the Trustee, its agents, attorneys and
counsel, and of all other amounts due to the Trustee under Section 6.06;


 


Second: To the payment of all Senior
Indebtedness of the Company if and to the extent required by Article XV;


 


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


 


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


 


SECTION 5.04.                 Proceedings by Securityholders.


 


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


 


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


 


25





















 


SECTION 5.05.                 Proceedings by Trustee.


 


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


 


SECTION 5.06.                 Remedies Cumulative and Continuing.


 


Except as otherwise provided in Section 2.06,
all powers and remedies given by this Article V to the Trustee or to the
Securityholders shall, to the extent permitted by law, be deemed cumulative and
not exclusive of any other powers and remedies available to the Trustee or the
holders of the Debt Securities, by judicial proceedings or otherwise, to
enforce the performance or observance of the covenants and agreements contained
in this Indenture or otherwise established with respect to the Debt Securities,
and no delay or omission of the Trustee or of any holder of any of the Debt
Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power, or
shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 5.04, every power and
remedy given by this Article V or by law to the Trustee or to the
Securityholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Securityholders.


 


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


 


The holders of a majority in aggregate
principal amount of the Debt Securities affected (voting as one class) at the
time outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to such
Debt Securities; provided, however, that (subject to the
provisions of Section 6.01) the Trustee shall have the right to decline to
follow any such direction if the Trustee shall determine that the action so
directed would be unjustly prejudicial to the holders not taking part in such
direction or if the Trustee being advised by counsel determines that the action
or proceeding so directed may not lawfully be taken or if a Responsible Officer
of the Trustee shall determine that the action or proceedings so directed would
involve the Trustee in personal liability. 
Prior to any declaration accelerating the maturity of the Debt
Securities, the holders of a majority in aggregate principal amount of the Debt
Securities at the time outstanding may on behalf of the holders of all of the
Debt Securities waive (or modify any previously granted waiver of) any past
default or Event of Default and its consequences, except a default (a) in
the payment of principal of, premium, if any, or interest on any of the Debt
Securities, (b) in respect of covenants or provisions hereof which cannot
be modified or amended without the consent of the holder of each Debt Security
affected, or (c)  in respect of the covenants contained in Section 3.09;
provided, however, that if the Debt Securities are held by the
Trust or a trustee of such trust, such waiver or modification to such waiver
shall not be effective until the holders of a majority in liquidation
preference of the Trust Securities of the Trust shall have consented to such
waiver or modification to such waiver; provided, further, that if
the consent of the holder of each outstanding Debt Security is required, such
waiver shall not be effective until each holder of the Trust Securities of the
Trust shall have consented to such waiver. 
Upon any such waiver, the default covered thereby shall be deemed to be cured
for all purposes of this Indenture and the Company, the Trustee and the holders
of the Debt Securities shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.  Whenever any default or Event of Default
hereunder shall have been waived as permitted by this


 


26





















 


Section 5.07, said default or Event of Default shall for all
purposes of the Debt Securities and this Indenture be deemed to have been cured
and to be not continuing.


 


SECTION 5.08.                 Notice of Defaults.


 


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


 


SECTION 5.09.                 Undertaking to Pay Costs.


 


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


 


ARTICLE VI


 


CONCERNING THE
TRUSTEE


 


SECTION 6.01.                 Duties and Responsibilities of
Trustee.


 


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


 


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


 


27





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


SECTION 6.02.                 Reliance on Documents,
Opinions, etc.


 


Except as otherwise provided in Section 6.01:


 


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


 


(b)                                 any
request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in
respect thereof be herein


 


28





















 


specifically prescribed); and any Board Resolution may be evidenced to
the Trustee by a copy thereof certified by the Secretary or an Assistant
Secretary of the Company;


 


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


 


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


 


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


 


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


 


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


 


SECTION 6.03.                 No Responsibility for Recitals, etc.


 


The recitals contained herein and in the Debt
Securities (except in the certificate of authentication of the Trustee or the
Authenticating Agent) shall be taken as the statements of the Company and the
Trustee and the Authenticating Agent assume no responsibility for the
correctness of the same.  The Trustee and
the Authenticating Agent make no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities.  The Trustee and the Authenticating Agent
shall not be accountable for the use or application by the Company of any Debt
Securities or the proceeds of any Debt Securities authenticated and delivered
by the Trustee or the Authenticating Agent in conformity with the provisions of
this Indenture.


 


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


 


The Trustee or any Authenticating Agent or
any Paying Agent or any transfer agent or any Debt Security registrar, in its
individual or any other capacity, may become the owner or pledgee of Debt


 


29





















 


Securities with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, transfer agent or Debt Security registrar.


 


SECTION 6.05.                 Moneys to be Held in Trust.


 


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


 


SECTION 6.06.                 Compensation and Expenses of
Trustee.


 


The Company covenants and agrees to pay to
the Trustee from time to time, and the Trustee shall be entitled to, such
compensation as shall be agreed to in writing between the Company and the
Trustee (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and the Company will pay or
reimburse the Trustee upon its written request for all documented reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the reasonable expenses and disbursements of its
counsel and of all Persons not regularly in its employ) except any such
expense, disbursement or advance that arises from its negligence or bad
faith.  The Company also covenants to
indemnify each of the Trustee (including in its individual capacity) and any predecessor
Trustee (and its officers, agents, directors and employees) for, and to hold it
harmless against, any and all loss, damage, claim, liability or expense
including taxes (other than taxes based on the income of the Trustee), except
to the extent such loss, damage, claim, liability or expense results from the
negligence or bad faith of such indemnitee, arising out of or in connection
with the acceptance or administration of this Trust, including the costs and
expenses of defending itself against any claim or liability in the premises.  The obligations of the Company under this Section 6.06
to compensate and indemnify the Trustee and to pay or reimburse the Trustee for
documented expenses, disbursements and advances shall constitute additional
indebtedness hereunder.  Such additional
indebtedness shall be secured by a lien prior to that of the Debt Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the holders of particular Debt
Securities.


 


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


 


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


 


SECTION 6.07.                 Officers’ Certificate as Evidence.


 


Except as otherwise provided in Sections 6.01
and 6.02, whenever in the administration of the provisions of this Indenture
the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or omitting any action hereunder, such matter
(unless other evidence in respect


 


30





















 


thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers’ Certificate delivered to
the Trustee, and such certificate, in the absence of negligence or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action
taken or omitted by it under the provisions of this Indenture upon the faith
thereof.


 


SECTION 6.08.                 Eligibility of Trustee.


 


The Trustee hereunder shall at all times be a
U.S. Person that is a banking corporation or national association organized and
doing business under the laws of the United States of America or any state
thereof or of the District of Columbia and authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least fifty
million U.S. dollars ($50,000,000) and subject to supervision or examination by
federal, state, or District of Columbia authority.  If such corporation or national association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 6.08 the combined capital and surplus of such
corporation or national association shall be deemed to be its combined capital
and surplus as set forth in its most recent records of condition so published.


 


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


 


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


 


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


 


SECTION 6.09.                 Resignation or Removal of Trustee.


 


(a)                                  The
Trustee, or any trustee or trustees hereafter appointed, may at any time resign
by giving written notice of such resignation to the Company and by mailing
notice thereof, at the Company’s expense, to the holders of the Debt Securities
at their addresses as they shall appear on the Debt Security Register.  Upon receiving such notice of resignation,
the Company shall promptly appoint a successor trustee or trustees by written
instrument, in duplicate, executed by order of its Board of Directors, one copy
of which instrument shall be delivered to the resigning Trustee and one copy to
the successor Trustee.  If no successor
Trustee shall have been so appointed and have accepted appointment within 30
days after the mailing of such notice of resignation to the affected
Securityholders, the resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee, or any Securityholder who has been
a bona fide holder of a Debt Security or Debt Securities for at least six
months may, subject to the provisions of Section 5.09, on behalf of
himself or herself and all others similarly situated, petition any such court
for the appointment of a successor Trustee. 
Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor Trustee.


 


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


 


(1)                                  the
Trustee shall fail to comply with the provisions of the last paragraph of Section 6.08
after written request therefor by the Company or by any Securityholder


 


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who has been a bona fide holder of a Debt Security or
Debt Securities for at least six months,


 


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


 


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


 


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


 


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


 


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


 


SECTION 6.10.                 Acceptance by Successor Trustee.


 


Any successor Trustee appointed as provided
in Section 6.09 shall execute, acknowledge and deliver to the Company and
to its predecessor Trustee an instrument accepting such appointment hereunder,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations with respect to the Debt Securities of its predecessor hereunder,
with like effect as if originally named as Trustee herein; but, nevertheless,
on the written request of the Company or of the successor Trustee, the Trustee
ceasing to act shall, upon payment of the amounts then due it pursuant to the
provisions of Section 6.06, execute and deliver an instrument transferring
to such successor Trustee all the rights and powers of the Trustee so ceasing
to act and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.  In addition, if a successor Trustee is appointed,
the Company, the retiring Trustee and the 
successor Trustee shall execute and deliver an indenture supplemental
hereto which shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Debt Securities as to which the
predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this


 


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Indenture as shall be necessary to provide for or facilitate the
administration of the Trust hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be Trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee.


 


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


 


In no event shall a retiring Trustee be
liable for the acts or omissions of any successor Trustee hereunder.


 


Upon acceptance of appointment by a successor
Trustee as provided in this Section 6.10, the Company shall mail notice of
the succession of such Trustee hereunder to the holders of Debt Securities at
their addresses as they shall appear on the Debt Security Register.  If the Company fails to mail such notice
within ten Business Days after the acceptance of appointment by the successor
Trustee, the successor Trustee shall cause such notice to be mailed at the
expense of the Company.


 


SECTION 6.11.                 Succession by Merger,
etc.


 


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 without the execution or filing of any paper or any further
act on the part of any of the parties hereto; provided, that such
corporation shall be otherwise eligible and qualified under this Article.


 


In case at the time such successor to the
Trustee shall succeed to the trusts created by this Indenture any of the Debt
Securities shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor
Trustee, and deliver such Debt Securities so authenticated; and in case at that
time any of the Debt Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Debt Securities either in the
name of any predecessor hereunder or in the name of the successor Trustee; and
in all such cases such certificates shall have the full force which it is
anywhere in the Debt Securities or in this Indenture provided that the
certificate of the Trustee shall have; provided, however, that
the right to adopt the certificate of authentication of any predecessor Trustee
or authenticate Debt Securities in the name of any predecessor Trustee shall
apply only to its successor or successors by merger, conversion or
consolidation.


 


SECTION 6.12.                 Authenticating Agents.


 


There may be one or more Authenticating
Agents appointed by the Trustee upon the request of the Company with power to
act on its behalf and subject to its direction in the authentication and
delivery of Debt Securities issued upon exchange or registration of transfer
thereof as fully to all intents and purposes as though any such Authenticating
Agent had been expressly authorized to authenticate and deliver Debt
Securities; provided, that the Trustee shall have no liability to the
Company for any acts or omissions of the Authenticating Agent with respect to
the authentication and delivery of Debt Securities.  Any such Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the
United States or of any state thereof or of the District of Columbia authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of at least $50,000,000 and being subject to supervision or examination
by federal, state or District of Columbia authority.  If such


 


33





















 


corporation publishes reports of condition at least annually pursuant
to law or the requirements of such authority, then for the purposes of this Section 6.12
the combined capital and surplus of such 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
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect herein specified in this Section.


 


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


 


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


 


The Company agrees to pay to any
Authenticating Agent from time to time reasonable compensation for its
services.  Any Authenticating Agent shall
have no responsibility or liability for any action taken by it as such in
accordance with the directions of the Trustee.


 


ARTICLE VII


 


CONCERNING THE
SECURITYHOLDERS


 


SECTION 7.01.                 Action by Securityholders.


 


Whenever in this Indenture it is provided
that the holders of a specified percentage in aggregate principal amount of the
Debt Securities may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action the holders of
such specified percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by such
Securityholders in person or by agent or proxy appointed in writing, or (b) by
the record of such holders of Debt Securities voting in favor thereof at any
meeting of such Securityholders duly called and held in accordance with the
provisions of Article VIII, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such
Securityholders, or (d) by any other method the Trustee deems
satisfactory.


 


If the Company shall solicit from the
Securityholders any request, demand, authorization, direction, notice, consent,
waiver or other action or revocation of the same, the Company may, at its


 


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option, as evidenced by an Officers’ Certificate, fix in advance a
record date for such Debt Securities for the determination of Securityholders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other action or revocation of the same, but the Company
shall have no obligation to do so.  If
such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other action or revocation of the same may be given
before or after the record date, but only the Securityholders of record at the
close of business on the record date shall be deemed to be Securityholders for
the purposes of determining whether Securityholders of the requisite proportion
of outstanding Debt Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
action or revocation of the same, and for that purpose the outstanding Debt
Securities shall be computed as of the record date; provided, however,
that no such authorization, agreement or consent by such Securityholders on the
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the record
date.


 


SECTION 7.02.                 Proof of Execution by
Securityholders.


 


Subject to the provisions of Sections 6.01,
6.02 and 8.05, proof of the execution of any instrument by a Securityholder or
such Securityholder’s agent or proxy shall be sufficient if made in accordance
with such reasonable rules and regulations as may be prescribed by the
Trustee or in such manner as shall be satisfactory to the Trustee.  The ownership of Debt Securities shall be
proved by the Debt Security Register or by a certificate of the Debt Security
registrar.  The Trustee may require such
additional proof of any matter referred to in this Section as it shall
deem necessary.


 


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


 


SECTION 7.03.                 Who Are Deemed Absolute Owners.


 


Prior to due presentment for registration of
transfer of any Debt Security, the Company, the Trustee, any Authenticating
Agent, any Paying Agent, any transfer agent and any Debt Security registrar may
deem the Person in whose name such Debt Security shall be registered upon the
Debt Security Register to be, and may treat such Person as, the absolute owner
of such Debt Security (whether or not such Debt Security shall be overdue) for
the purpose of receiving payment of or on account of the principal of, premium,
if any, and interest on such Debt Security and for all other purposes; and
neither the Company nor the Trustee nor any Authenticating Agent nor any Paying
Agent nor any transfer agent nor any Debt Security registrar shall be affected
by any notice to the contrary.  All such
payments so made to any holder for the time being or upon such holder’s order
shall be valid, and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for moneys payable upon any such Debt Security.


 


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


 


In determining whether the holders of the
requisite aggregate principal amount of Debt Securities have concurred in any
direction, consent or waiver under this Indenture, Debt Securities which are
owned by the Company or any other obligor on the Debt Securities or by any
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on the Debt
Securities shall be disregarded and deemed not to be outstanding for the
purpose of any such determination; provided, that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver, only Debt Securities which a Responsible Officer
of the Trustee actually knows are so owned shall be so disregarded.  Debt Securities so owned which have been
pledged in good faith may be regarded as outstanding for the purposes of this
Section 


 


35





















 


7.04 if the pledgee shall establish to the satisfaction of the Trustee
the pledgee’s right to vote such Debt Securities and that the pledgee is not
the Company or any such other obligor or Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company or any such other obligor. 
In the case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the Trustee.


 


SECTION 7.05.                 Revocation of Consents; Future
Securityholders Bound.


 


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


 


ARTICLE VIII


 


SECURITYHOLDERS’
MEETINGS


 


SECTION 8.01.                 Purposes of Meetings.


 


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


 


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


 


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


 


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


 


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


 


SECTION 8.02.                 Call of Meetings by Trustee.


 


The Trustee may at any time call a meeting of
Securityholders to take any action specified in Section 8.01, to be held
at such time and at such place in New York, New York or Wilmington, Delaware,


 


36





















 


as the Trustee shall determine. 
Notice of every meeting of the Securityholders, setting forth the time
and the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be mailed to holders of Debt Securities affected
at their addresses as they shall appear on the Debt Securities Register.  Such notice shall be mailed not less than 20
nor more than 180 days prior to the date fixed for the meeting.


 


SECTION 8.03.                 Call of Meetings by Company or
Securityholders.


 


In case at any time the Company pursuant to a
Board Resolution, or the holders of at least 10% in aggregate principal amount
of the Debt Securities, as the case may be, then outstanding, shall have
requested the Trustee to call a meeting of Securityholders, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of such meeting
within 20 days after receipt of such request, then the Company or such
Securityholders may determine the time and the place in Los Alamos, New Mexico for such meeting and may call such meeting
to take any action authorized in Section 8.01, by mailing notice thereof
as provided in Section 8.02.


 


SECTION 8.04.                 Qualifications for Voting.


 


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


 


SECTION 8.05.                 Regulations.


 


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


 


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


 


Subject to the provisions of Section 7.04,
at any meeting each holder of Debt Securities with respect to which such
meeting is being held or proxy therefor shall be entitled to one vote for each
$1,000 principal amount of Debt Securities held or represented by such holder; provided,
however, that no vote shall be cast or counted at any meeting in respect
of any Debt Security challenged as not outstanding and ruled by the chairman of
the meeting to be not outstanding.  The
chairman of the meeting shall have no right to vote other than by virtue of
Debt Securities held by such chairman or instruments in writing as aforesaid
duly designating such chairman as the Person to vote on behalf of other
Securityholders.  Any meeting of
Securityholders duly called pursuant to the provisions of Section 8.02 or
8.03 may be adjourned from time to time by a majority of those present, whether
or not constituting a quorum, and the meeting may be held as so adjourned
without further notice.


 


37





















 


SECTION 8.06.                 Voting.


 


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


 


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


 


SECTION 8.07.                 Quorum; Actions.


 


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


 


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


 


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


 


ARTICLE IX


 


SUPPLEMENTAL
INDENTURES


 


SECTION 9.01.                 Supplemental Indentures without
Consent of Securityholders.


 


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


 


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


 


(b)                                 to
add to the covenants of the Company such further covenants, restrictions or
conditions for the protection of the holders of Debt Securities as the Board of
Directors shall consider to be for the protection of the holders of such Debt
Securities, and to make the occurrence, or the occurrence and continuance, of a
default in any of such additional covenants, restrictions or conditions a
default or an Event of Default permitting the enforcement of all or any of the
several remedies provided in this Indenture as herein set forth; provided,
however, that in respect of any such additional covenant, restriction or
condition such supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee upon such
default;


 


(c)                                  to
cure any ambiguity or to correct or supplement any provision contained herein
or in any supplemental indenture which may be defective or inconsistent with
any other provision contained herein or in any supplemental indenture, or to
make such other provisions in regard to matters or questions arising under this
Indenture; provided, that any such action shall not adversely affect the
interests of the holders of the Debt Securities;


 


(d)                                 to
add to, delete from, or revise the terms of Debt Securities, including, without
limitation, any terms relating to the issuance, exchange, registration or
transfer of Debt Securities, including to provide for transfer procedures and
restrictions substantially similar to those applicable to the Capital
Securities, as required by Section 2.05 (for purposes of assuring that no
registration of Debt Securities is required under the Securities Act); provided,
that any such action shall not adversely affect the interests of the holders of
the Debt Securities then outstanding (it being understood, for purposes of this
proviso, that providing for transfer of the Debt Securities in global or
book-entry form and transfer restrictions on Debt Securities substantially
similar to those applicable to Capital Securities shall not be deemed to
adversely affect the holders of the Debt Securities);


 


(e)                                  to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Debt Securities and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 6.10;


 


39





















 


(f)                                    to
make any change (other than as elsewhere provided in this paragraph) that does
not adversely affect the rights of any Securityholder in any material respect;
or


 


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


 


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


 


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


 


SECTION 9.02.                 Supplemental Indentures with
Consent of Securityholders.


 


With the consent (evidenced as provided in Section 7.01)
of the holders of not less than a majority in aggregate principal amount of the
Debt Securities at the time outstanding affected by such supplemental indenture
(voting as a class), the Company, when authorized by a Board Resolution, and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act, then in effect, applicable to indentures qualified
thereunder) for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Debt Securities; provided, however, that no such
supplemental indenture shall without such consent of the holders of each Debt
Security then outstanding and affected thereby (i) extend the fixed
maturity of any Debt Security, or reduce the principal amount thereof or any
premium thereon, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption thereof or make the
principal thereof or any interest or premium thereon payable in any coin or
currency other than that provided in the Debt Securities, or impair or affect
the right of any Securityholder to institute suit for payment thereof or impair
the right of repayment, if any, at the option of the holder, or (ii) reduce
the aforesaid percentage of Debt Securities the holders of which are required
to consent to any such supplemental indenture; and provided, further,
that if the Debt Securities are held by the Trust or a trustee of such trust,
such supplemental indenture shall not be effective until the holders of a
majority in liquidation preference of the Trust Securities shall have consented
to such supplemental indenture; provided, further, that if the
consent of the Securityholder of each outstanding Debt Security is required,
such supplemental indenture shall not be effective until each holder of the
Trust Securities shall have consented to such supplemental indenture.


 


Upon the request of the Company accompanied
by a Board Resolution authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.


 


Promptly after the execution by the Company
and the Trustee of any supplemental indenture pursuant to the provisions of
this Section, the Trustee shall transmit by mail, first class postage prepaid,
a notice, prepared by the Company, setting forth in general terms the substance
of such supplemental


 


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indenture, to the Securityholders as their names and addresses appear
upon the Debt Security Register.  Any
failure of the Trustee to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.


 


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


 


SECTION 9.03.                 Effect of Supplemental Indentures.


 


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


 


SECTION 9.04.                 Notation on Debt Securities.


 


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


 


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


 


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


 


ARTICLE X


 


REDEMPTION OF DEBT
SECURITIES


 


SECTION 10.01.           Optional Redemption.


 


At any time the Company shall have the right,
subject to the receipt by the Company of prior approval from the Federal
Reserve, if then required under applicable capital guidelines or policies of
the Federal Reserve, to redeem the Debt Securities, in whole or in part, on any
Interest Payment Date on or after September 8, 2009 (the “Redemption Date”),
at the Redemption Price.


 


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SECTION 10.02.           Special Event Redemption.


 


If a Special Event shall occur and be
continuing, the Company shall have the right, subject to the receipt by the
Company of prior approval from the Federal Reserve if then required under
applicable capital guidelines or policies of the Federal Reserve, to redeem the
Debt Securities, in whole but not in part, at any time within 90 days following
the occurrence of such Special Event (the “Special Redemption Date”), at the
Special Redemption Price.


 


SECTION 10.03.           Notice of Redemption; Selection of Debt
Securities.


 


In case the Company shall desire to exercise
the right to redeem all, or, as the case may be, any part of the Debt
Securities, it shall fix a date for redemption and shall mail a notice of such
redemption at least 30 and not more than 60 days prior to the date fixed for
redemption to the holders of Debt Securities so to be redeemed as a whole or in
part at their last addresses as the same appear on the Debt Security Register.  Such mailing shall be by first class
mail.  The notice if mailed in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the holder receives such notice. 
In any case, failure to give such notice by mail or any defect in the
notice to the holder of any Debt Security designated for redemption as a whole
or in part shall not affect the validity of the proceedings for the redemption
of any other Debt Security.


 


Each such notice of redemption shall specify
the CUSIP number, if any, of the Debt Securities to be redeemed, the date fixed
for redemption, the redemption price at which Debt Securities are to be
redeemed (and, in the case of a redemption upon the occurrence of a Special
Event for which the Special Redemption Date will be prior to September 8, 2009, the method by which the
Special Redemption Price will be calculated), the place or places of payment,
that payment will be made upon presentation and surrender of such Debt
Securities, that interest accrued to the date fixed for redemption will be paid
as specified in said notice, and that on and after said date interest thereon
or on the portions thereof to be redeemed will cease to accrue. If less than
all the Debt Securities are to be redeemed the notice of redemption shall
specify the numbers of the Debt Securities to be redeemed.  In case the Debt Securities are to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Debt Security, a new Debt
Security or Debt Securities in principal amount equal to the unredeemed portion
thereof will be issued.


 


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


 


The Company will give the Trustee notice not
less than 45 nor more than 60 days prior to the redemption date as to the
Redemption Price or Special Redemption Price (as the case may be) at which the
Debt Securities are to be redeemed (and, in the case of a redemption upon the
occurrence of a Special Event for which the Special Redemption Date will be
prior to September 8, 2009, the
method by which the Special Redemption Price will be calculated), and the
aggregate principal amount of Debt Securities to be redeemed and the Trustee
shall select, in such manner as in its sole discretion it shall deem
appropriate and fair, the Debt Securities or portions thereof (in integral
multiples of $1,000) to be redeemed.


 


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SECTION 10.04.           Payment of Debt Securities Called for
Redemption.


 


If notice of redemption has been given as
provided in Section 10.03, the Debt Securities or portions of Debt
Securities with respect to which such notice has been given shall become due
and payable on the Redemption Date or the Special Redemption Date (as the case
may be) and at the place or places stated in such notice at the applicable
Redemption Price or Special Redemption Price (as the case may be), and on and
after said Redemption Date or the Special Redemption Date (unless the Company
shall default in the payment of the Redemption Price or Special Redemption
Price (as the case may be) for such Debt Securities) interest on the Debt
Securities or portions of Debt Securities so called for redemption shall cease
to accrue.  On presentation and surrender
of such Debt Securities at a place of payment specified in said notice, such
Debt Securities or the specified portions thereof shall be paid and redeemed by
the Company at the applicable Redemption Price or Special Redemption Price (as
the case may be).


 


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


 


ARTICLE XI


 


CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE


 


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


 


Nothing contained in this Indenture or in the
Debt Securities shall prevent any consolidation or merger of the Company with
or into any other corporation or corporations (whether or not affiliated with
the Company) or successive consolidations or mergers in which the Company or
its successor or successors shall be a party or parties, or shall prevent any
sale, conveyance, transfer or other disposition of the property or capital
stock of the Company or its successor or successors as an entirety, or
substantially as an entirety, to any other corporation (whether or not
affiliated with the Company, or its successor or successors) authorized to
acquire and operate the same; provided, however, that the Company
hereby covenants and agrees that, upon any such consolidation, merger (where
the Company is not the surviving corporation), sale, conveyance, transfer or
other disposition, the due and punctual payment of all payments due on all of
the Debt Securities in accordance with their terms, according to their tenor,
and the due and punctual performance and observance of all the covenants and
conditions of this Indenture to be kept or performed by the Company, shall be
expressly assumed by supplemental indenture reasonably satisfactory in form to
the Trustee executed and delivered to the Trustee by the entity formed by such
consolidation, or into which the Company shall have been merged, or by the
entity which shall have acquired such property or capital stock and after
giving effect to such consolidation, merger, sale, conveyance, transfer or
other disposition, no Default or Event of Default shall have occurred and be
continuing.


 


SECTION 11.02.           Successor Entity to be Substituted.


 


In case of any such consolidation, merger,
sale, conveyance, transfer or other disposition and upon the assumption by the
successor entity, by supplemental indenture, executed and delivered to the
Trustee and reasonably satisfactory in form to the Trustee, of the due and
punctual payment of the principal of and premium, if any, and interest on all
of the Debt Securities and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed or
observed by the Company, such successor entity shall succeed to and be
substituted for the Company,


 


43





















 


with the same effect as if it had been named herein as the Company, and
thereupon the predecessor entity shall be relieved of any further liability or
obligation hereunder or upon the Debt Securities.  Such successor entity thereupon may cause to
be signed, and may issue either in its own name or in the name of the Company,
any or all of the Debt Securities issuable hereunder which theretofore shall
not have been signed by the Company and delivered to the Trustee or the
Authenticating Agent; and, upon the order of such successor entity instead of the
Company and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee or the Authenticating Agent shall
authenticate and deliver any Debt Securities which previously shall have been
signed and delivered by the officers of the Company, to the Trustee or the
Authenticating Agent for authentication, and any Debt Securities which such
successor entity thereafter shall cause to be signed and delivered to the
Trustee or the Authenticating Agent for that purpose.  All the Debt Securities so issued shall in
all respects have the same legal rank and benefit under this Indenture as the
Debt Securities theretofore or thereafter issued in accordance with the terms
of this Indenture as though all of such Debt Securities had been issued at the
date of the execution hereof.


 


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


 


The Trustee, subject to the provisions of
Sections 6.01 and 6.02, shall receive, in addition to the Opinion of Counsel
required by Section 9.05, an Opinion of Counsel as conclusive evidence
that any consolidation, merger, sale, conveyance,  transfer or other disposition, and any
assumption, permitted or required by the terms of this Article XI complies
with the provisions of this Article XI.


 


ARTICLE XII


 


SATISFACTION AND DISCHARGE OF INDENTURE


 


SECTION 12.01.           Discharge of Indenture.


 


When (a) the Company shall deliver to
the Trustee for cancellation all Debt Securities theretofore authenticated
(other than any Debt Securities which shall have been destroyed, lost or stolen
and which shall have been replaced or paid as provided in Section 2.06)
and not theretofore canceled, or (b) all the Debt Securities not
theretofore canceled or delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and the
Company shall deposit with the Trustee, in trust, funds, which shall be
immediately due and payable, sufficient to pay at maturity or upon redemption
all of the Debt Securities (other than any Debt Securities which shall have
been destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 2.06) not theretofore canceled or delivered to the Trustee for
cancellation, including principal and premium, if any, and interest due or to
become due to such date of maturity or redemption date, as the case may be, but
excluding, however, the amount of any moneys for the payment of principal of,
and premium, if any, or interest on the Debt Securities (1) theretofore
repaid to the Company in accordance with the provisions of Section 12.04,
or (2) paid to any state or to the District of Columbia pursuant to its
unclaimed property or similar laws, and if in the case of either clause (a) or
clause (b) the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company, then this Indenture shall cease to be of further
effect except for the provisions of Sections 2.05, 2.06, 3.01, 3.02, 3.04,
6.06, 6.09 and 12.04 hereof, which shall survive until such Debt Securities
shall mature or are redeemed, as the case may be, and are paid in full.  Thereafter, Sections 6.06, 6.09 and 12.04
shall survive, and the Trustee, on demand of the Company accompanied by an
Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with, and at the cost and
expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture,


 


44





















 


the Company, however, hereby agreeing to reimburse the Trustee for any
costs or expenses thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Debt Securities.


 


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


 


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


 


SECTION 12.03.           Paying Agent to Repay Moneys Held.


 


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


 


SECTION 12.04.           Return of Unclaimed Moneys.


 


Any moneys deposited with or paid to the
Trustee or any Paying Agent for payment of the principal of, and premium, if
any, or interest on Debt Securities and not applied but remaining unclaimed by
the holders of Debt Securities for two years after the date upon which the
principal of, and premium, if any, or interest on such Debt Securities, as the
case may be, shall have become due and payable, shall be repaid to the Company
by the Trustee or such Paying Agent on written demand; and the holder of any of
the Debt Securities shall thereafter look only to the Company for any payment
which such holder may be entitled to collect and all liability of the Trustee
or such Paying Agent with respect to such moneys shall thereupon cease.


 


ARTICLE XIII


 


IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS


 


SECTION 13.01.           Indenture and Debt Securities Solely
Corporate Obligations.


 


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


 


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ARTICLE XIV


 


MISCELLANEOUS PROVISIONS


 


SECTION 14.01.                                                           Successors.


 


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


 


SECTION 14.02.                                                           Official
Acts by Successor Entity.


 


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


 


SECTION 14.03.                                                           Surrender
of Company Powers.


 


The Company by instrument in writing executed
by authority of 2/3 (two-thirds) of its Board of Directors and delivered to the
Trustee may surrender any of the powers reserved to the Company and thereupon
such power so surrendered shall terminate both as to the Company and as to any
permitted successor.


 


SECTION 14.04.                                                           Addresses
for Notices, etc.


 


Any notice or demand which by any provision
of this Indenture is required or permitted to be given or served by the Trustee
or by the Securityholders on the Company may be given or served in writing by
being deposited postage prepaid by registered or certified mail in a post
office letter box addressed (until another address is filed by the Company with
the Trustee for such purpose) to the Company at:


 


Trinity
Capital Corporation


1200
Trinity Drive


Los
Alamos, N.M. 87544


Attention: Heather
Boone


 


Any notice, direction, request or demand by
any Securityholder or the Company to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if given or made in
writing at the office of Wells Fargo Bank,
National Association at:


 


919 North Market
Street,


Suite 700


Wilmington, DE 19801


Attention: Corporate Trust Administration


 


SECTION 14.05.                                                           Governing
Law.


 


This Indenture and each Debt Security shall
be deemed to be a contract made under the law of the State of New York, and for
all purposes shall be governed by and construed in accordance with the law of
said State, without regard to conflict of laws principles thereof.


 


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SECTION 14.06.                                                           Evidence
of Compliance with Conditions Precedent.


 


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


 


Each certificate or opinion provided for in
this Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture (except certificates
delivered pursuant to Section 3.05) shall include (a) a statement
that the person making such certificate or opinion has read such covenant or
condition; (b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based; (c) a statement that, in the
opinion of such person, he or she has made such examination or investigation as
is necessary to enable him or her to express an informed opinion as to whether
or not such covenant or condition has been complied with; and (d) a
statement as to whether or not, in the opinion of such person, such condition
or covenant has been complied with.


 


SECTION 14.07.                                                           Non-Business
Days.


 


In any case where the date of payment of
interest on or principal of the Debt Securities is not a Business Day, the
payment of such interest on or principal of the Debt Securities need not be
made on such date but may be made on the next succeeding Business Day, with the
same force and effect as if made on the date of payment, except if such
Business Day is in the next succeeding calendar year, such payment will be made
on the immediately preceding Business Day.


 


SECTION 14.08.                                                           Table
of Contents, Headings, etc.


 


The table of contents and the titles and
headings of the articles and sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof, and
shall in no way modify or restrict any of the terms or provisions hereof.


 


SECTION 14.09.                                                           Execution
in Counterparts.


 


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


 


SECTION 14.10.                                                           Severability.


 


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


 


SECTION 14.11.                                                           Assignment.


 


Subject to Article XI, the Company will
have the right at all times to assign any of its rights or obligations under
this Indenture to a direct or indirect wholly owned Subsidiary of the Company,


 


47





















 


provided, that, in
the event of any such assignment, the Company will remain liable for all such
obligations.  Subject to the foregoing,
this Indenture is binding upon and inures to the benefit of the parties hereto
and their respective successors and assigns. 
This Indenture may not otherwise be assigned by the parties thereto.


 


SECTION 14.12.                                                           Acknowledgment
of Rights.


 


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


 


ARTICLE XV


 


SUBORDINATION OF DEBT SECURITIES


 


SECTION 15.01.                                                           Agreement
to Subordinate.


 


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


 


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


 


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


 


SECTION 15.02.                                                           Default
on Senior Indebtedness.


 


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


 


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


 


SECTION 15.03.                                                           Liquidation;
Dissolution; Bankruptcy.


 


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


 


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


 


For purposes of this Article XV, the
words “cash, property or securities” shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities of the Company
or any other corporation provided for by a plan of reorganization or
readjustment, the payment of which is subordinated at least to the extent
provided in this Article XV with respect to the Debt Securities to the
payment of all Senior Indebtedness of the Company, that may at the time be
outstanding, provided, that (a) such Senior Indebtedness is assumed
by the new corporation, if any, resulting from any such reorganization or
readjustment, and (b) the rights of the holders of such Senior
Indebtedness are not,


 


49





















 


without the consent of such holders, altered by such reorganization or
readjustment.  The consolidation of the
Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided for in Article XI of
this Indenture shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 15.03 if such other
corporation shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article XI of this
Indenture.  Nothing in Section 15.02
or in this Section 15.03 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.06 of this Indenture.


 


SECTION 15.04.                                                           Subrogation.


 


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


 


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


 


Upon any payment or distribution of assets of
the Company referred to in this Article XV, the Trustee, subject to the
provisions of Article VI of this Indenture, and the Securityholders shall
be entitled to conclusively rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Securityholders,
for the purposes of ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article XV.


 


50





















 


SECTION 15.05.                                                           Trustee
to Effectuate Subordination.


 


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


 


SECTION 15.06.                                                           Notice
by the Company.


 


The Company shall give prompt written notice
to a Responsible Officer of the Trustee at the Principal Office of the Trustee
of any fact known to the Company that would prohibit the making of any payment
of moneys to or by the Trustee in respect of the Debt Securities pursuant to
the provisions of this Article XV. 
Notwithstanding the provisions of this Article XV or any other
provision of this Indenture or any Additional Provisions, the Trustee shall not
be charged with knowledge of the existence of any facts that would prohibit the
making of any payment of moneys to or by the Trustee in respect of the Debt
Securities pursuant to the provisions of this Article XV, unless and until
a Responsible Officer of the Trustee at the Principal Office of the Trustee
shall have received written notice thereof from the Company or a holder or
holders of Senior Indebtedness or from any trustee therefor; and before the
receipt of any such written notice, the Trustee, subject to the provisions of Article VI
of this Indenture, shall be entitled in all respects to assume that no such
facts exist; provided, however, that if the Trustee shall not
have received the notice provided for in this Section 15.06 at least two
Business Days prior to the date upon which by the terms hereof any money may
become payable for any purpose (including, without limitation, the payment of
the principal of (or premium, if any) or interest on any Debt Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to
the purposes for which they were received, and shall not be affected by any
notice to the contrary that may be received by it within two Business Days
prior to such date.


 


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


 


SECTION 15.07.                                                           Rights
of the Trustee; Holders of Senior Indebtedness.


 


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


 


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


 


51





















 


be read into this Indenture or any Additional Provisions against the
Trustee.  The Trustee shall not owe or be
deemed to owe any fiduciary duty to the holders of such Senior Indebtedness
and, subject to the provisions of Article VI of this Indenture, the
Trustee shall not be liable to any holder of such Senior Indebtedness if it
shall pay over or deliver to Securityholders, the Company or any other Person
money or assets to which any holder of such Senior Indebtedness shall be
entitled by virtue of this Article XV or otherwise.


 


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


 


SECTION 15.08.                                                           Subordination
May Not Be Impaired.


 


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


 


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


 


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


 


52





















 


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


 


	
   

  	
  Trinity Capital Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Wells Fargo Bank, National
  Association, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


53





















 


EXHIBIT A


 


FORM OF
FLOATING RATE JUNIOR SUBORDINATED DEBT SECURITY DUE 2034


 


[FORM OF
FACE OF SECURITY]


 


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


 


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


 


THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT,
INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”),
OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”),
(EACH A “PLAN”), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY
REASON OF ANY PLAN’S INVESTMENT IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS”
OF ANY PLAN MAY ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST THEREIN,
UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE


 


A-1





















 


EXEMPTIVE RELIEF AVAILABLE UNDER U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60,
91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS
PURCHASE AND HOLDING OF THIS SECURITY IS NOT PROHIBITED BY SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR
HOLDING.  ANY PURCHASER OR HOLDER OF THIS
SECURITY OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS
PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT
PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975
OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS
OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH
PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE
STATUTORY OR ADMINISTRATIVE EXEMPTION.


 


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


 


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


 


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


 


A-2





















 


Floating Rate Junior
Subordinated Debt Security due 2034


 


of


 


Trinity
Capital Corporation


 


Trinity Capital
Corporation, a bank holding company incorporated in New Mexico (the “Company”), for value received
promises to pay to Wells Fargo Bank, National
Association, not in its individual capacity but solely as Institutional
Trustee for Trinity Capital Trust III, a
Delaware statutory trust (the “Holder”), or registered assigns, the principal
sum of Six Million One Hundred Eighty-Six
Thousand Dollars ($6,186,000) on September 8, 2034 and to pay interest on
said principal sum from May 11, 2004, or
from the most recent interest payment date (each such date, an “Interest
Payment Date”) to which interest has been paid or duly provided for, quarterly
(subject to deferral as set forth herein) in arrears on March 8, June 8, September 8 and December 8 of each year commencing on September 8, 2004, at a variable per annum rate equal to LIBOR
(as defined in the Indenture) plus 2.70% (the “Interest
Rate”), until the principal hereof shall have become due and payable,
and on any overdue principal and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at an annual rate equal to the Interest Rate in effect
for each such Extension Period compounded quarterly subject to the occurrence
of a Reset Event.  Upon the occurrence of
a Reset Event, the applicable LIBOR will be reset on the Reset Date to be equal
to the LIBOR applicable on the newly issued trust preferred capital securities
with the same LIBOR Determination Dates issued by other trust subsidiaries of
bank holding companies or thrift holding companies who issue LIBOR based 30
year floating rate trust preferred capital securities to Regional Diversified
Funding 2004-II Ltd. or another pooled trust preferred vehicle designated
by the Initial Purchaser (as defined in the Declaration).  The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year
and the actual number of days elapsed in the relevant interest period.  In the event that any date on which the
principal or interest is payable on this Debt Security is not a Business Day,
then payment payable on such date will be made on the next succeeding day that
is a 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 such date.  The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Debt
Security (or one or more Predecessor Securities, as defined in said Indenture)
is registered at the close of business on the regular record date for such
interest installment, except that interest and any Deferred Interest payable on
the Maturity Date shall be paid to the Person to whom principal is paid.  Any such interest installment not punctually
paid or duly provided for shall forthwith cease to be payable to the registered
holders on such regular record date and may be paid to the Person in whose name
this Debt Security (or one or more Predecessor Debt Securities) is registered
at the close of business on a special record date to be fixed by the Trustee
for the payment of such defaulted interest, notice whereof shall be given to
the registered holders of the Debt Securities not less than 10 days prior to
such special record date, all as more fully provided in the Indenture.  The principal of and interest on this Debt
Security shall be payable at the office or agency of the Trustee (or other
Paying Agent appointed by the Company) maintained for that purpose in any coin
or currency of the United States of America that at the time of payment is
legal tender for payment of public and private debts; provided, however,
that payment of interest may be made at the option of the Company by check
mailed to the registered holder at such address as shall appear in the Debt
Security Register or by wire transfer to an account appropriately designated by
the holder hereof.  Notwithstanding the
foregoing, so long as the holder of this Debt Security is the Institutional
Trustee, the payment of the principal of and interest on this Debt Security
will be made in immediately available funds at such place and to such account
as may be designated by the Trustee.


 


A-3





















 


So long as no Event of Default has occurred
and is continuing, the Company shall have the right, from time to time and
without causing an Event of Default, to defer payments of interest on the Debt
Securities by extending the interest payment period on the Debt Securities at
any time and from time to time during the term of the Debt Securities, for up
to 20 consecutive quarterly periods (each such extended interest payment
period, an “Extension Period”), during which Extension Period no interest shall
be due and payable.  During any Extension
Period, interest will continue to accrue on the Debt Securities, and interest
on such accrued interest (such accrued interest and interest thereon referred
to herein as “Deferred Interest”) will accrue at an annual rate equal to the
Interest Rate in effect for each such Extension Period, compounded quarterly
from the date such Deferred Interest would have been payable were it not for
the Extension Period, to the extent permitted by law.  No Extension Period may end on a date other
than an Interest Payment Date.  At the
end of any such Extension Period the Company shall pay all Deferred Interest
then accrued and unpaid on the Debt Securities; provided, however,
that no Extension Period may extend beyond the Maturity Date, Redemption Date
or Special Redemption Date and provided, further, however,  during any such Extension Period, the Company
may not (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of the
Company’s capital stock or (ii) make any payment on or repay, repurchase
or redeem any debt securities of the Company that rank pari passu
in all respects with or junior in interest to the Debt Securities (other than (a) repurchases,
redemptions or other acquisitions of shares of capital stock of the Company (A) in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of one or more employees, officers,
directors or consultants, (B) in connection with a dividend reinvestment
or stockholder stock purchase plan or (C) in connection with the issuance
of capital stock of the Company (or securities convertible into or exercisable
for such capital stock), as consideration in an acquisition transaction entered
into prior to the applicable Extension Period, (b) as a result of any exchange
or conversion of any class or series of the Company’s capital stock (or any
capital stock of a subsidiary of the Company) for any class or series of the
Company’s capital stock or of any class or series of the Company’s indebtedness
for any class or series of the Company’s capital stock, (c) the purchase
of fractional interests in shares of the Company’s capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, (d) any declaration of a dividend in
connection with any stockholder’s rights plan, or the issuance of rights, stock
or other property under any stockholder’s rights plan, or the redemption or
repurchase of rights pursuant thereto, or (e) any dividend in the form of
stock, warrants, options or other rights where the dividend stock or the stock
issuable upon exercise of such warrants, options or other rights is the same
stock as that on which the dividend is being paid or ranks pari passu
with or junior to such stock).  Prior to
the termination of any Extension Period, the Company may further extend such
period, provided, that such period together with all such previous and
further consecutive extensions thereof shall not exceed 20 consecutive
quarterly periods, or extend beyond the Maturity Date, Redemption Date or
Special Redemption Date.  Upon the
termination of any Extension Period and upon the payment of all Deferred
Interest, the Company may commence a new Extension Period, subject to the
foregoing requirements.  No interest or
Deferred Interest shall be due and payable during an Extension Period, except
at the end thereof, but Deferred Interest shall accrue upon each installment of
interest that would otherwise have been due and payable during such Extension
Period until such installment is paid. 
The deferral of the payment of interest during an Extension Period shall
not defer the payment of any Additional Amounts that may be due and
payable.  The Company must give the
Trustee notice of its election to begin such Extension Period at least one
Business Day prior to the earlier of (i) the next succeeding date on which
interest on the Debt Securities would have been payable except for the election
to begin such Extension Period or (ii)  the date such interest is payable,
but in any event not later than the related regular record date.


 


The indebtedness evidenced by this Debt
Security is, to the extent provided in the Indenture, subordinate and junior in
right of payment to the prior payment in full of all Senior Indebtedness, and
this Debt Security is issued subject to the provisions of the Indenture with
respect thereto.  Each holder of this


 


A-4





















 


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


 


The Company waives demand, presentment for
payment, notice of nonpayment, notice of protest, and all other notices.


 


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


 


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


 


A-5





















 


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


 


	
   

  	
  Trinity Capital Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Dated:  May 11, 2004


 


 


CERTIFICATE OF
AUTHENTICATION


 


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


 


	
   

  	
  Wells Fargo Bank, National
  Association, not in its individual capacity but solely as the
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Officer

  	
   

  



 


 


Dated: May 11, 2004


 


A-6





















 


[FORM OF
REVERSE OF SECURITY]


 


This Debt Security is one of a duly
authorized series of Debt Securities of the Company, all issued or to be issued
pursuant to an Indenture (the “Indenture”), dated as of May 11, 2004, duly executed and delivered between the Company
and Wells Fargo Bank, National Association,
as Trustee (the “Trustee”), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the holders of the Debt Securities (referred to herein as the “Debt
Securities”) of which this Debt Security is a part.  The summary of the terms of this Debt
Security contained herein does not purport to be complete and is qualified by
reference to the Indenture.


 


Upon the occurrence and continuation of a Tax
Event, an Investment Company Event or a Capital Treatment Event (each a “Special
Event”), this Debt Security may become due and payable, in whole but not in
part, at any time, within 90 days following the occurrence of such Tax Event,
Investment Company Event or Capital Treatment Event (the “Special Redemption
Date”), as the case may be, at the Special Redemption Price.  The Company shall also have the right to
redeem this Debt Security at the option of the Company, in whole or in part, on
any Interest Payment Date on or after September 8, 2009 (a “Redemption Date”),
at the Redemption Price.


 


Any redemption pursuant to the preceding
paragraph will be made, subject to the receipt by the Company of prior approval
from the Board of Governors of the Federal Reserve System (the “Federal Reserve”)
if then required under applicable capital guidelines or policies of the Federal
Reserve, upon not less than 30 days’ nor more than 60 days’ notice.  If the Debt Securities are only partially
redeemed by the Company, the Debt Securities will be redeemed pro rata or by lot or
by any other method utilized by the Trustee.


 


“Redemption Price” means 100% of the
principal amount of the Debt Securities being redeemed plus accrued and unpaid
interest on such Debt Securities to the Redemption Date or, in the case of a
redemption due to the occurrence of a Special Event, to the Special Redemption
Date if such Special Redemption Date is on or after September 8, 2009.


 


“Special
Redemption Price” means (1) if
the Special Redemption Date is before September 8,
2009, the greater of (a) 100%
of the principal amount of the Debt Securities being redeemed pursuant to Section 10.02 of the Indenture or (b) as
determined by a Quotation Agent, the sum of the present value of the principal
amount payable as part of the Redemption Price with respect to a redemption as
of September 8, 2009, together with the present value of interest
payments over the Remaining Life of such Debt Securities calculated at a fixed
per annum rate of interest equal to 8.385%,
discounted to the Special Redemption Date on a quarterly basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate plus 0.50%,
plus, in the case of either (a) or (b), accrued and unpaid interest on
such Debt Securities to the Special Redemption Date and (2) if the Special
Redemption Date is on or after September 8,
2009, the Redemption Price for such
Special Redemption Date.


 


“Comparable Treasury Issue” means with
respect to any Special Redemption Date, the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the
Remaining Life that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the Remaining Life.  If no United States Treasury security has a
maturity which is within a period from three months before to three months
after September 8, 2009, the two
most closely corresponding United States Treasury securities shall be used as
the Comparable Treasury Issue, and the Treasury Rate shall be interpolated or
extrapolated on a straight-line basis, rounding to the nearest month using such
securities.


 


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“Comparable Treasury Price” means (a) the
average of five Reference Treasury Dealer Quotations for such Special
Redemption Date, after excluding the highest and lowest such Reference Treasury
Dealer Quotations, or (b) if the Quotation Agent receives fewer than five
such Reference Treasury Dealer Quotations, the average of all such Quotations.


 


“Primary Treasury Dealer” means a primary
United States Government securities dealer in New York City.


 


“Quotation Agent” means Citigroup Global
Markets Inc. and its successors; provided, however, that if the
foregoing shall cease to be a Primary Treasury Dealer, the Company shall
substitute therefor another Primary Treasury Dealer.


 


“Reference Treasury Dealer” means (i) the
Quotation Agent or (ii) any other Primary Treasury Dealer selected by the
Trustee after consultation with the Company.


 


“Reference Treasury Dealer Quotations” means,
with respect to each Reference Treasury Dealer and any Special Redemption Date,
the average, as determined by the Quotation Agent, of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third Business
Day preceding such Special Redemption Date.


 


“Treasury Rate” means (i) the yield,
under the heading which represents the average for the week immediately prior
to the date of calculation, appearing in the most recently published
statistical release designated H.15 (519) or any successor publication which is
published weekly by the Federal Reserve and which establishes yields on
actively traded United States Treasury securities adjusted to constant maturity
under the caption “Treasury Constant Maturities,” for the maturity
corresponding to the Remaining Life (if no maturity is within three months
before or after the Remaining Life, yields for the two published maturities
most closely corresponding to the Remaining Life shall be determined and the
Treasury Rate shall be interpolated or extrapolated from such yields on a
straight-line basis, rounding to the nearest month) or (ii) if such
release (or any successor release) is not published during the week preceding
the calculation date or does not contain such yields, the rate per annum equal
to the quarterly equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such Special Redemption Date.  The
Treasury Rate shall be calculated on the third Business Day preceding the
Special Redemption Date.


 


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


 


In case an Event of Default, as defined in
the Indenture, shall have occurred and be continuing, the principal of all of
the Debt Securities may be declared due and payable, and upon such declaration
of acceleration shall become due and payable, in the manner, with the effect
and subject to the conditions provided in the Indenture.


 


The Indenture contains provisions permitting
the Company and the Trustee, with the consent of the holders of not less than a
majority in aggregate principal amount of the Debt Securities at the time
outstanding affected thereby, as specified in the Indenture, to execute
supplemental indentures for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Debt Securities; provided, however, that no such
supplemental indenture shall, among other things,


 


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without the consent of the holders of each Debt Security then
outstanding and affected thereby (i) extend the fixed maturity of the Debt
Securities, or reduce the principal amount thereof or any redemption premium
thereon, or  reduce the rate or extend
the time of payment of interest thereon, or make payments due on the Debt
Securities payable in any coin or currency other than that provided in the Debt
Securities, or impair or affect the right of any holder of Debt Securities to
institute suit for the payment thereof, or (ii) reduce the aforesaid
percentage of Debt Securities, the holders of which are required to consent to
any such supplemental indenture.  The
Indenture also contains provisions permitting the holders of a majority in
aggregate principal amount of the Debt Securities at the time outstanding, on
behalf of all of the holders of the Debt Securities, to waive any past default
in the performance of any of the covenants contained in the Indenture, or
established pursuant to the Indenture, and its consequences, except a default
in payments due on any of the Debt Securities. 
Any such consent or waiver by the registered holder of this Debt
Security (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such holder and upon all future holders and owners of this Debt
Security and of any Debt Security issued in exchange herefor or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Debt Security.


 


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


 


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


 


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


 


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


 


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


 


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


 


THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THE
DEBT SECURITIES, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.


 


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