Exhibit
4.1


 


TCF
FINANCIAL CORPORATION


 


 


and


 


 


WILMINGTON
TRUST COMPANY


 


 


INDENTURE


 


 


Dated as
of August 19, 2008


 


 


SUBORDINATED
DEBT SECURITIES


 


 

















 


TCF FINANCIAL
CORPORATION


 


RECONCILIATION AND
TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND 


INDENTURE


 




	
  TRUST INDENTURE

  ACT SECTION

  	
   

  	
   

  	
   

  	
  INDENTURE
  SECTION

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.10(a)(1)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  8.09

  	
   

  
	
   

  	
  3.10(a)(2)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  8.09

  	
   

  
	
   

  	
  3.10(a)(3)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  N/A

  	
   

  
	
   

  	
  3.10(a)(4)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  N/A

  	
   

  
	
   

  	
  3.10(a)(5)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  8.09

  	
   

  
	
   

  	
  3.10(b)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  8.08

  	
   

  
	
   

  	
  3.10(c)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  N/A

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.11(a)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  8.13

  	
   

  
	
   

  	
  3.11(b)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  8.13

  	
   

  
	
   

  	
  3.11(c)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  N/A

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.12(a)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  6.01(a)

  	
   

  
	
   

  	
  3.12(b)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  6.02(ii)

  	
   

  
	
   

  	
  3.12(c)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  6.02(iii)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.13(a)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  6.03(i)

  	
   

  
	
   

  	
  3.13(b)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  6.03(i)

  	
   

  
	
   

  	
  3.13(c)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  6.03(i)

  	
   

  
	
   

  	
  3.13(d)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  6.03(ii)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.14(a)(1),
  (2) and (3)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  6.04

  	
   

  
	
   

  	
  3.14(b)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  N/A

  	
   

  
	
   

  	
  3.14(c)(1)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  1.02

  	
   

  
	
   

  	
  3.14(c)(2)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  1.02

  	
   

  
	
   

  	
  3.14(c)(3)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  N/A

  	
   

  
	
   

  	
  3.14(d)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  N/A

  	
   

  
	
   

  	
  3.14(e)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  1.02

  	
   

  
	
   

  	
  3.14(f)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  N/A

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.15(a)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  8.01(i)

  	
   

  
	
   

  	
  3.15(b)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  8.02

  	
   

  
	
   

  	
  3.15(c)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  8.01(ii)

  	
   

  
	
   

  	
  3.15(d)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  8.01(iii)

  	
   

  
	
   

  	
  3.15(d)(1)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  8.01(iii)(a)

  	
   

  
	
   

  	
  3.15(d)(2)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  8.01(iii)(b)

  	
   

  
	
   

  	
  3.15(d)(3)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  8.01(iii)(c)

  	
   

  
	
   

  	
  3.15(e)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  7.14

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.16(a)(1)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  7.12

  	
   

  
	
   

  	
  3.16(a)(1)(A)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  7.12

  	
   

  
	
   

  	
  3.16(a)(1)(B)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  7.13

  	
   

  
	
   

  	
  3.16(a)(2)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  N/A

  	
   

  
	
   

  	
  3.16(b)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  7.08

  	
   

  
	
   

  	
  3.16(c)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  1.04(viii)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.17(a)(1)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  7.03

  	
   

  
	
   

  	
  3.17(a)(2)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  7.04

  	
   

  
	
   

  	
  3.17(b)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  5.03

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.18(a)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  1.08

  	
   

  
	
   

  	
  3.18(b)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  1.08

  	
   

  
	
   

  	
  3.18(c)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  1.08

  	
   

  






 


THIS RECONCILIATION AND
TIE SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE PART OF THE INDENTURE.


 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page  

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I DEFINITIONS AND OTHER
  PROVISIONS OF GENERAL 

  APPLICATION

  	
  1

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Definitions

  	
  1

  	
   

  
	
  SECTION 1.02.

  	
  Compliance Certificates and Opinions

  	
  9

  	
   

  
	
  SECTION 1.03.

  	
  Form of Documents Delivered to Trustee

  	
  10

  	
   

  
	
  SECTION 1.04.

  	
  Acts of Securityholders

  	
  11

  	
   

  
	
  SECTION 1.05.

  	
  Notices, etc., to Trustee and Company

  	
  12

  	
   

  
	
  SECTION 1.06.

  	
  Notices to Securityholders; Waiver

  	
  13

  	
   

  
	
  SECTION 1.07.

  	
  Language of Notices, Etc.

  	
  14

  	
   

  
	
  SECTION 1.08.

  	
  Conflict with Trust Indenture Act

  	
  14

  	
   

  
	
  SECTION 1.09.

  	
  Effect of Headings and Table of Contents

  	
  14

  	
   

  
	
  SECTION 1.10.

  	
  Successors and Assigns

  	
  14

  	
   

  
	
  SECTION 1.11.

  	
  Separability Clause

  	
  14

  	
   

  
	
  SECTION 1.12.

  	
  Benefits of Indenture

  	
  14

  	
   

  
	
  SECTION 1.13.

  	
  Legal Holidays

  	
  15

  	
   

  
	
  SECTION 1.14.

  	
  Governing Law

  	
  15

  	
   

  
	
  SECTION 1.15.

  	
  Judgment Currency; Payment to be in Proper Currency

  	
  15

  	
   

  
	
  SECTION 1.16.

  	
  Moneys of Different Currencies to be Segregated

  	
  16

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II SECURITY FORMS

  	
  16

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  Forms Generally

  	
  16

  	
   

  
	
  SECTION 2.02.

  	
  Form of Securities

  	
  17

  	
   

  
	
  SECTION 2.03.

  	
  Form of Trustee’s Certificate of Authentication

  	
  17

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III THE SECURITIES

  	
  18

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
  Title and Terms

  	
  18

  	
   

  
	
  SECTION 3.02.

  	
  Denominations

  	
  21

  	
   

  
	
  SECTION 3.03.

  	
  Execution, Authentication, Delivery and Dating

  	
  21

  	
   

  
	
  SECTION 3.04.

  	
  Temporary Securities

  	
  22

  	
   

  
	
  SECTION 3.05.

  	
  Registration, Registration of Transfer and Exchange

  	
  25

  	
   

  
	
  SECTION 3.06.

  	
  Mutilated, Destroyed, Lost and Stolen Securities

  	
  28

  	
   

  
	
  SECTION 3.07.

  	
  Payment of Interest; Interest Rights Preserved

  	
  28

  	
   

  
	
  SECTION 3.08.

  	
  Persons Deemed Owners

  	
  30

  	
   

  
	
  SECTION 3.09.

  	
  Cancellation

  	
  31

  	
   

  
	
  SECTION 3.10.

  	
  Computation of Interest

  	
  31

  	
   

  
	
  SECTION 3.11.

  	
  Forms of Certification

  	
  31

  	
   

  
	
  SECTION 3.12.

  	
  Payment in Currencies

  	
  32

  	
   

  
	
  SECTION 3.13.

  	
  CUSIP Numbers

  	
  34

  	
   

  



 


 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page  

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV REDEMPTION OF SECURITIES

  	
  34

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  Applicability of Article

  	
  34

  	
   

  
	
  SECTION 4.02.

  	
  Election to Redeem; Notice to Trustee

  	
  34

  	
   

  
	
  SECTION 4.03.

  	
  Selection by Trustee of Securities to be Redeemed

  	
  34

  	
   

  
	
  SECTION 4.04.

  	
  Notice of Redemption

  	
  35

  	
   

  
	
  SECTION 4.05.

  	
  Deposit of Redemption Price

  	
  35

  	
   

  
	
  SECTION 4.06.

  	
  Securities Payable on Redemption Date

  	
  36

  	
   

  
	
  SECTION 4.07.

  	
  Redemption Suspended During Event of Default

  	
  37

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V COVENANTS

  	
  37

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  Payment of Principal, Premium, if any, Maturity 

  Consideration and Interest

  	
  37

  	
   

  
	
  SECTION 5.02.

  	
  Maintenance of Office or Agency

  	
  37

  	
   

  
	
  SECTION 5.03.

  	
  Money or Other Property for Security Payments and 

  Deliveries to be Held in Trust

  	
  39

  	
   

  
	
  SECTION 5.04.

  	
  Additional Amounts

  	
  40

  	
   

  
	
  SECTION 5.05.

  	
  Corporate Existence

  	
  41

  	
   

  
	
  SECTION 5.06.

  	
  Statement as to Compliance

  	
  41

  	
   

  
	
  SECTION 5.07.

  	
  Waiver of Certain Covenants

  	
  42

  	
   

  
	
  SECTION 5.08.

  	
  Calculation of Original Issue Discount

  	
  42

  	
   

  
	
  SECTION 5.09.

  	
  Statement by Officers as to Default

  	
  42

  	
   

  
	
  SECTION 5.10.

  	
  Payment of Trust Costs and Expenses

  	
  42

  	
   

  
	
  SECTION 5.11.

  	
  Additional Covenants Related to any Trust

  	
  43

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI HOLDERS’ LISTS AND
  REPORTS BY TRUSTEE AND COMPANY

  	
  43

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
  Company to Furnish Trustee Names and Addresses of 

  Holders

  	
  43

  	
   

  
	
  SECTION 6.02.

  	
  Preservation of Information; Communications to
  Holders

  	
  43

  	
   

  
	
  SECTION 6.03.

  	
  Reports by Trustee

  	
  45

  	
   

  
	
  SECTION 6.04.

  	
  Reports by the Company

  	
  45

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII REMEDIES

  	
  46

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
  Events of Default

  	
  46

  	
   

  
	
  SECTION 7.02.

  	
  Acceleration of Maturity; Rescission and Annulment

  	
  47

  	
   

  
	
  SECTION 7.03.

  	
  Collection of Indebtedness and Suits for Enforcement
  by 

  Trustee

  	
  48

  	
   

  
	
  SECTION 7.04.

  	
  Trustee May File Proofs of Claim

  	
  48

  	
   

  
	
  SECTION 7.05.

  	
  Trustee May Enforce Claims Without Possession
  of 

  Securities

  	
  49

  	
   

  
	
  SECTION 7.06.

  	
  Application of Money or Other Property Collected

  	
  49

  	
   

  



 


 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page  

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.07.

  	
  Limitation on Suits

  	
  50

  	
   

  
	
  SECTION 7.08.

  	
  Unconditional Right of Securityholders to Receive 

  Principal, Premium, Maturity Consideration and Interest

  	
  51

  	
   

  
	
  SECTION 7.09.

  	
  Restoration of Rights and Remedies

  	
  52

  	
   

  
	
  SECTION 7.10.

  	
  Rights and Remedies Cumulative

  	
  52

  	
   

  
	
  SECTION 7.11.

  	
  Delay or Omission Not Waiver

  	
  52

  	
   

  
	
  SECTION 7.12.

  	
  Control by Securityholders

  	
  52

  	
   

  
	
  SECTION 7.13.

  	
  Waiver of Past Defaults

  	
  53

  	
   

  
	
  SECTION 7.14.

  	
  Undertaking for Costs

  	
  53

  	
   

  
	
  SECTION 7.15.

  	
  Waiver of Stay or Extension Laws

  	
  54

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII THE TRUSTEE

  	
  54

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.01.

  	
  Certain Duties and Responsibilities

  	
  54

  	
   

  
	
  SECTION 8.02.

  	
  Notice of Default

  	
  55

  	
   

  
	
  SECTION 8.03.

  	
  Certain Rights of Trustee

  	
  56

  	
   

  
	
  SECTION 8.04.

  	
  Not Responsible for Recitals or Issuance of
  Securities

  	
  57

  	
   

  
	
  SECTION 8.05.

  	
  May Hold Securities

  	
  58

  	
   

  
	
  SECTION 8.06.

  	
  Money or Other Property Held in Trust

  	
  58

  	
   

  
	
  SECTION 8.07.

  	
  Compensation and Reimbursement

  	
  58

  	
   

  
	
  SECTION 8.08.

  	
  Disqualification; Conflicting Interests

  	
  59

  	
   

  
	
  SECTION 8.09.

  	
  Corporate Trustee Required; Eligibility

  	
  59

  	
   

  
	
  SECTION 8.10.

  	
  Resignation and Removal; Appointment of Successor

  	
  60

  	
   

  
	
  SECTION 8.11.

  	
  Acceptance of Appointment by Successor

  	
  61

  	
   

  
	
  SECTION 8.12.

  	
  Merger, Conversion, Consolidation or Succession to 

  Business of Trustee

  	
  63

  	
   

  
	
  SECTION 8.13.

  	
  Preferential Collection of Claims against Company

  	
  63

  	
   

  
	
  SECTION 8.14.

  	
  Appointment of Authenticating Agent

  	
  63

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX SUPPLEMENTAL INDENTURES

  	
  65

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
  Supplemental Indentures Without Consent of 

  Securityholders

  	
  65

  	
   

  
	
  SECTION 9.02.

  	
  Supplemental Indentures With Consent of
  Securityholders

  	
  66

  	
   

  
	
  SECTION 9.03.

  	
  Execution of Supplemental Indentures

  	
  68

  	
   

  
	
  SECTION 9.04.

  	
  Effect of Supplemental Indentures

  	
  68

  	
   

  
	
  SECTION 9.05.

  	
  Conformity with Trust Indenture Act

  	
  68

  	
   

  
	
  SECTION 9.06.

  	
  Reference in Securities to Supplemental Indentures

  	
  69

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X CONSOLIDATION, MERGER, CONVEYANCE
  OR TRANSFER

  	
  69

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.01.

  	
  Company May Consolidate, etc., Only on Certain
  Terms

  	
  69

  	
   

  
	
  SECTION 10.02.

  	
  Successor Corporation Substituted

  	
  69

  	
   

  



 


 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page  

  	
   

  
	
  ARTICLE XI SATISFACTION AND
  DISCHARGE

  	
  70

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.01.

  	
  Satisfaction and Discharge of Indenture

  	
  70

  	
   

  
	
  SECTION 11.02.

  	
  Application of Trust Money or Property

  	
  72

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII IMMUNITY OF
  INCORPORATORS, STOCKHOLDERS,  OFFICERS 

  AND DIRECTORS

  	
  72

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12.01.

  	
  Exemption from Individual Liability

  	
  72

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII SINKING FUNDS

  	
  73

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 13.01.

  	
  Applicability of Article

  	
  73

  	
   

  
	
  SECTION 13.02.

  	
  Satisfaction of Sinking Fund Payments with
  Securities

  	
  73

  	
   

  
	
  SECTION 13.03.

  	
  Redemption of Securities for Sinking Fund

  	
  73

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIV SUBORDINATION

  	
  74

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 14.01.

  	
  Agreement to Subordinate

  	
  74

  	
   

  
	
  SECTION 14.02.

  	
  Distribution on Dissolution, Liquidation and 

  Reorganization; Subrogation of Securities

  	
  74

  	
   

  
	
  SECTION 14.03.

  	
  Payments on Securities Prohibited During Event of
  Default 

  Under Senior Indebtedness

  	
  77

  	
   

  
	
  SECTION 14.04.

  	
  Reserved

  	
  77

  	
   

  
	
  SECTION 14.05.

  	
  Authorization of Holders to Trustee to Effect
  Subordination

  	
  77

  	
   

  
	
  SECTION 14.06.

  	
  Notice to Trustee

  	
  77

  	
   

  
	
  SECTION 14.07.

  	
  Right of Trustee to Hold Senior Indebtedness

  	
  78

  	
   

  
	
  SECTION 14.08.

  	
  Article Fourteen Not to Prevent Defaults or
  Events of 

  Default

  	
  78

  	
   

  
	
  SECTION 14.09.

  	
  Trustee Compensation, Etc. Not Prejudiced

  	
  78

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XV MISCELLANEOUS

  	
  78

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 15.01.

  	
  Counterparts

  	
  78

  	
   

  



 


 


iv

















 


	
  EXHIBIT A

  	
  Form of Certificate to be Given by Person Entitled to 

  Receive Bearer Note Certificate

  	
   

  	
   

  
	
  EXHIBIT B

  	
  Form of Certificate to be Given by Euroclear and 

  Clearstream in Connection with the Exchange of a Portion 

  of a Temporary Global Note Certificate

  	
   

  	
   

  
	
  EXHIBIT C

  	
  Form of Certificate to be Given by Euroclear and 

  Clearstream to Obtain Interest Prior to an Exchange Date 

  Certificate

  	
   

  	
   

  
	
  EXHIBIT D

  	
  Form of Certificate to be Given by Beneficial Owners to 

  Obtain Interest Prior to an Exchange Date Certificate

  	
   

  	
   

  
	
  EXHIBIT E

  	
  Additional Provisions Relating to Book-Entry Securities 

  and Transfers in Certain Situations

  	
   

  	
   

  



 


 


v






 












 


THIS INDENTURE is dated as
of August 19, 2008 between TCF FINANCIAL CORPORATION, a corporation duly
organized and existing under the laws of the State of Delaware (hereinafter
called the “Company”), having its principal executive office at 200 Lake Street
East, Wayzata, Minnesota 55391-1693 and Wilmington Trust Company, a Delaware
banking corporation (hereinafter called the “Trustee”).


 


RECITALS OF THE COMPANY


The Company deems it
necessary from time to time to issue its unsecured subordinated debentures, notes
or other evidence of indebtedness to be issued in one or more series
(hereinafter called the “Securities”) as hereinafter set forth, including,
without limitation, Securities issued to evidence loans made to the Company of
the proceeds from the issuance from time to time by one or more business trusts
(each a “Trust,” and, collectively, the “Trusts”) of capital interests in such
Trusts (the “Capital Securities”) and common interests in such Trusts (the “Common
Securities” and, collectively with the Capital Securities, the “Trust
Securities”), and to provide therefor the Company has duly authorized the
execution and delivery of this Indenture;


 


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


 


NOW, THEREFORE, THIS
INDENTURE WITNESSETH:


 


For and in consideration of
the premises and the purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed by the Company and the Trustee, for the equal
and proportionate benefit of all Holders of the Securities or of any series
thereof, as follows:


 


ARTICLE I



DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION


 


SECTION 1.01.              Definitions.


 


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


 


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


 


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


 


(3)           all
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles and, except as
otherwise herein expressly provided, the term “generally accepted accounting
principles” with respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally accepted at the date of
such computation; and


 

















 


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


 


Certain terms, used
principally in Article Eight, are defined in that Article.


 


“Act”, when used with
respect to any Holder, has the meaning specified in Section 1.04.


 


“Affiliate” means, with
respect to a specified Person, any Person directly or indirectly controlling,
controlled by, or under common control with the specified Person; provided, however, no
Trust to which Securities have been issued shall be deemed to be an Affiliate
of the Company.


 


“Authenticating Agent” means any
Person authorized to act on behalf of the Trustee to authenticate Securities
pursuant to Section 8.14.


 


“Authorized Newspaper” means a
newspaper, in an official language of the country of publication or in the
English language, customarily published on each Business Day whether or not
published on Saturdays, Sundays or holidays, and of general circulation in the
place in connection with which the term is used or in the financial community
of such place. Where successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same or
in different newspapers in the same city meeting the foregoing requirements and
in each case on any Business Day.


 


“Authorized Officer” means the
Chairman of the Board, the Chief Executive Officer, the President, any Vice
Chairman of the Board, the Chief Financial Officer, any Vice President, the
Treasurer, the Secretary, the Controller, any Assistant Controller, any
Assistant Treasurer or any Assistant Secretary of the Company.


 


“Bearer Security” means any
Security in the form established pursuant to Section 2.01 which is payable
to bearer.


 


“Board of Directors” means the
board of directors of the Company, any duly authorized committee of that board,
the Chairman, any Vice Chairman, the President or any Vice President of the
Company duly authorized by the Board of Directors of the Company to take a
specified action or make a specified determination.


 


“Board Resolution” means a
resolution duly adopted by the Board of Directors.


 


“Business Day” means any day,
other than a Saturday, Sunday or other day on which banking institutions
in The City of New York are authorized or required by law or executive
order to remain closed or a day on which the Corporate Trust Office of the
Trustee is closed for business or, with respect to Securities denominated in a
Foreign Currency, in the city specified in the Board Resolution pursuant to Section 3.01.


 


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


 


 


2

















 


“Commission” means the
Securities and Exchange Commission as from time to time constituted, created
under the Securities Exchange Act of 1934, as amended, or if any time after the
execution and delivery of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.


 


“Common Depository” has the
meaning specified in Section 3.04.


 


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


 


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


 


“Company Request” or “Company Order” mean, respectively, a written request or
order signed in the name of the Company by any two Authorized Officers and
delivered to the Trustee.


 


“Components”, with respect
to a composite currency means the currency amounts that are components of such
composite currency on the conversion date with respect to such composite
currency. After such conversion date if the official unit of any component
currency is altered by way of combination or subdivision, the number of units
of such currency in the Component shall be proportionately divided or
multiplied. After such conversion date if two or more component currencies are
consolidated into a single currency, the amounts of those currencies as
Components shall be replaced by an amount in such single currency equal to the
sum of the amounts of such consolidated component currencies expressed in such
single currency, and such amount shall thereafter be a Component. If after such
conversion date any component currency shall be divided into two or more
currencies, the amount of such currency as a Component shall be replaced by
amounts of such two or more currencies, each of which shall be equal to the
amount of such former component currency divided by the number of currencies
into which such component currency was divided, and such amounts shall
thereafter be Components.


 


“Corporate Trust Office” means the
designated corporate trust office of the Trustee, at which at any particular
time its corporate trust business shall be administered, which office, at the
date of execution of this Agreement, is located at Rodney Square North, 1100
North Market Street, Wilmington, Delaware 19809-1600.


 


“Corporation” includes
corporations, associations, companies and business trusts.


 


“Coupon” means any
interest coupon appertaining to a Bearer Security.


 


“Default” has the
meaning specified in Section 7.07.


 


“Defaulted Interest” has the
meaning specified in Section 3.07.


 


“Euro” means the
single currency of participating member states which was introduced on January 1,
1999 at the commencement of the third stage of European economic and monetary 


 


 


3

















 


union
pursuant to the Treaty establishing the European Communities as amended by the
Treaty on European Union.


 


“Event of Default” has the
meaning specified in Section 7.01.


 


“Exchange Date” has the
meaning specified in Section 3.04.


 


“Exchange Rate” means (a) if
pursuant to Section 3.12(i) payment is to be made in U.S. dollars
with respect to a Security denominated in a Foreign Currency, the highest firm
bid quotation for U.S. dollars received by the Exchange Rate Agent at
approximately 11:00 A.M., New York City time on the second Business Day
preceding the applicable payment date (or, if no such rates are quoted on such date,
the last date on which such rates were quoted), from three recognized foreign
exchange dealers in The City of New York selected by the Exchange Rate Agent
and approved by the Company (one of which may be the Exchange Rate Agent) for
the purchase by the quoting dealer, for settlement on such payment date, of the
aggregate amount of the Foreign Currency payable on such payment date in
respect of all Securities denominated in such Foreign Currency and (b) if
an Exchange Rate is to be computed for purposes of any provisions other than Section 3.l2(i),
the rate determined pursuant to the foregoing clause (a) on such date and
at such time as may be specified in the relevant provision.


 


In the case of clause (a) above,
if no such bid quotations are available, payments pursuant to Section 3.12(i) will
be made in the applicable Foreign Currency, unless such Foreign Currency is
unavailable due to the imposition of exchange controls (or, in the case of a
composite currency, such currency ceases to be used for the purposes for which
it was established as provided in Section 3.12(iv)) or other circumstances
beyond the control of the Company, in which case the Company will be entitled
to make payments in U.S. dollars on the basis of the Market Exchange Rate for
such Foreign Currency.


 


If for any reason any of the
foregoing rates are not available with respect to one or more Foreign
Currencies for which an Exchange Rate is required, the Company shall use the
most recently available quotation of the Federal Reserve Bank of New York, or
quotations from one or more commercial banks in The City of New York or in the
country of issue of the Foreign Currency in question, or such other quotations
as the Company, in each case, shall deem appropriate; provided,
however, that if there is more than one market for dealing in any
Foreign Currency by reason of foreign exchange regulations or otherwise, the
market to be used for such quotations shall be the largest market upon which a
nonresident issuer of securities designated in such Foreign Currency would
purchase such Foreign Currency in order to make payments in respect of such
securities.


 


“Exchange Rate Agent” means the New
York clearing house bank designated by the Company to act as such for any
series of Securities for that series (with notice to the Trustee for that
series), or any successor thereto.


 


“Exchange Rate Officer’s
Certificate”, with respect to any date for the payment of
principal of (and premium, if any) and interest on any series of Securities,
means a certificate signed by an officer of the Exchange Rate Agent and
delivered to the Company and to the Trustee, setting forth (i) the
applicable Market Exchange Rate or Exchange Rate and (ii) the U.S. 


 


4

















 


dollar
or Foreign Currency amount of principal (and premium, if any) and interest
payable with respect to a Security of any series on the basis of the Market
Exchange Rate or Exchange Rate, as the case may be (on an aggregate basis and
on the basis of a Security having the lowest denomination principal amount
pursuant to Section 3.02 in the relevant currency).


 


“Foreign Currency” means a
currency issued by the government of any country (other than a currency of the
United States of America) or any composite currency based on the aggregate
value of currencies of any group of countries.


 


“Holder”, when used
with respect to any Security, means a Securityholder.


 


 “Indenture” means with respect to each
series of Securities for which a Person is acting as Trustee, this instrument
as originally executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered into pursuant to
the applicable provisions hereof and shall include the terms of any particular
series of Securities for which such Person is Trustee established as
contemplated by Section 3.01 exclusive, however, of any provisions or
terms which relate solely to other series of Securities for which such Person
is not Trustee, regardless of when such terms or provisions were adopted, and
exclusive of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.


 


“Interest”, when used with
respect to an Original Issue Discount Security which by its terms bears
interest only after Maturity, means interest payable after Maturity.


 


“Interest Payment Date”, when used with
respect to any series of Securities, means the Stated Maturity of an
installment of interest on such Security.


 


“Judgment Currency” has the
meaning specified in Section 1.15.


 


“Market Exchange Rate” means (a) if
pursuant to Section 3.12(iv) payment is to be made in U.S. dollars
with respect to a Security denominated in a Foreign Currency (other than a
composite currency), the noon buying rate in The City of New York for cable
transfers of such Foreign Currency as certified by the Federal Reserve Bank of
New York on the second Business Day preceding the applicable payment date and (b) if
pursuant to Section 3.12(iv) payment is to be made in U.S. dollars
with respect to a Security denominated in a composite currency, for each
Component of such composite currency, the Market Exchange Rate determined
pursuant to the foregoing clause (a) on the second Business Day preceding
the applicable payment date.


 


In the event a Market
Exchange Rate as described in clause (a) or (b) above is not
available, the Company will be entitled to make payments in U.S. dollars
pursuant to Section 3.12(iv) on the basis of the most recently
available Market Exchange Rate for such Foreign Currency or each Component of
such composite currency, as the case may be.


 


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


 


5

















 


“Maturity Consideration” means
securities, which may be issued by the Company or another Person, or a
combination of cash, such securities and/or other property that may be
delivered to Holders of Securities of any series to satisfy the Company’s
obligations with regard to payment upon Maturity, or upon any redemption or
required repurchase or in connection with any exchange provisions, or any
interest payment.


 


“New York Banking Day” has the
meaning specified in Section 1.15.


 


“Officers’ Certificate” means a
certificate signed by two Authorized Officers and delivered to the Trustee.
Each such certificate shall contain the statements set forth in Section 1.02.


 


“Opinion of Counsel” means a
written opinion of counsel, who may (except as otherwise expressly provided in
this Indenture) be an employee of the Company, and who shall be acceptable to
the Trustee.


 


“Original Issue Discount
Security” means any Security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 7.02.


 


“Outstanding”, when used with
respect to a Security or Securities of any series, means, as of the date of determination,
all such Securities theretofore authenticated and delivered under this
Indenture, except:


 


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


 


(2)           such
Securities for whose payment or redemption money in the necessary amount has
been theretofore deposited with the Trustee for such series or any Paying Agent
in trust for the Holders of such Securities, provided
that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and


 


(3)           such
Securities which have been paid pursuant to Section 3.06 or in exchange
for or in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a protected purchaser (within the meaning of Article 8
of the Uniform Commercial Code) in whose hands such Securities are valid
obligations of the Company;


 


provided, however, that in
determining whether the Holders of the requisite principal amount of such
Securities Outstanding have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of
Original Issue Discount Securities that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to Section 7.02, and
Securities owned by the 


 


6

















 


Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which are registered in the Security Register in the name of the
Company, any obligor stated to be so obligated on such Securities or any
Affiliate of the Company or such obligor which is listed as such on an Officers’
Certificate delivered to the Trustee for that Series shall be disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee’s right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor. The Trustee shall be entitled to
conclusively rely upon an Officers’ Certificate as conclusive evidence
regarding the ownership or pledge of Securities by the Company or any Affiliate
of the Company.


 


“Paying Agent” means, with
respect to any series of Securities, any Person authorized by the Company to
pay or deliver the principal of (and premium, if any), Maturity Consideration
or interest on, any Securities of that series on behalf of the Company.


 


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


 


“Place of Payment”, when used with
respect to the Securities of any series, means the place or places where,
subject to the provisions of Section 5.02, the principal of (and premium, if
any), Maturity Consideration and interest on the Securities of that series are
payable or deliverable as specified in accordance with Section 3.01.


 


“Predecessor Security” of any
particular Security means every previous Security evidencing all or a portion
of the same debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and delivered under Section 3.06
in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.


 


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


 


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


 


“Registered Security” means any
Security in the form established pursuant to Section 2.01 which is
registered in the Security Register.


 


“Regular Record Date” for the
interest payable on any Security on any Interest Payment Date means the date,
if any, specified in such Security as the “Regular Record Date”.


 


“Required Currency” means the
currency in which principal of (and premium, if any), Maturity Consideration
and interest on a Security is payable pursuant to Section 3.12.


 


 


7

















 


“Responsible Officer”, means, when
used with respect to the Trustee, an officer within the corporate trust
department, who has direct responsibility for the administration of this
Indenture and any other officer of the Trustee to whom corporate trust matters
are referred because of his knowledge and familiarity with the particular
subject.


 


“Securities” has the
meaning stated in the first recital of this Indenture and more particularly
means any Securities authenticated and delivered under this Indenture.


 


“Securityholder” means, in the
case of a Registered Security, the Person in whose name the Security is
registered in the Security Register and, in the case of a Bearer Security (or
any temporary global Security in bearer form), the bearer thereof and, when
used with respect to any coupon, the bearer thereof.


 


“Security Register” has the
meaning specified in Section 3.05.


 


“Security Registrar” and “Co-Security Registrar” have the meanings specified in Section 3.05.


 


“Senior Indebtedness” means all
obligations of the Company, whether outstanding on the date of the execution of
this Indenture or thereafter created, assumed or incurred, to make payment or
delivery pursuant to the terms of (i) the Company’s indebtedness for money
borrowed (as defined herein), other than (a) the Securities and (b) any
indebtedness which, pursuant to the instrument creating that indebtedness, is
not superior in right of payment to the Securities, or other indebtedness that
has the same rank as or ranking junior to the Securities, (ii) the Company’s
indebtedness for borrowed money from time to time outstanding under that
certain amended and restated credit agreement dated March 27, 2008 by and
among LaSalle Bank, N.A., as agent and the financial institutions party
thereto, as lenders, and the Company, (iii) financial instruments such as (a) securities
contracts and foreign currency exchange contracts, (b) derivative
instruments, such as swap agreements (including interest rate and foreign
exchange rate swap agreements), cap agreements, floor agreements, interest rate
agreements, commodity contracts or options, and (c) in the case of (ii)(a) and
(ii)(b) above, similar financial instruments, and (iv) any deferrals,
renewals or extensions of any such Senior Indebtedness. The term “indebtedness
for money borrowed” as used in the foregoing sentence shall include, without
limitation, any obligation of the Company, or any obligation guaranteed by the
Company, for the repayment of borrowed money, whether or not evidenced by
bonds, debentures, notes or other written instruments, and any deferred
obligation of the Company for the payment of the purchase price of property or
assets (excluding trade accounts payable or accrued liabilities in the ordinary
course of business). Senior Indebtedness may also include other obligations of
the Company to the extent specifically provided in the terms of a series of
Securities established pursuant to Section 3.01.


 


“Special Record Date” for the
payment of any Defaulted Interest (as defined in Section 3.07) means the
date fixed by the Trustee pursuant to Section 3.07.


 


“Specified Currency” means the
currency in which the Securities of any series are denominated.


 


 


8

















 


“Stated Maturity”, when used with
respect to any Security, or any installment of principal, Maturity
Consideration thereof or interest thereon, means the date specified in such
Security or a coupon representing such installment of interest as the fixed
date on which the principal or Maturity Consideration of such Security, or such
installment of principal, Maturity Consideration or interest, is due and
payable or deliverable.


 


“Subsidiary”, means a
Corporation more than 50% of the Voting Stock of which is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries or by the Company
and one or more other Subsidiaries.


 


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


 


“Trustee” means the
Person named as the “Trustee” in the first paragraph of this instrument until a
successor Trustee shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Trustee” shall mean or include each Person
who is then a Trustee hereunder, and if at any time there is more than one such
Person, “Trustee” as used with respect to the Securities of any series shall
mean the Trustee with respect to securities of that series.


 


“Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990, as in force at the date as of which
this instrument was executed, except as provided in Section 9.05.


 


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


 


“United States” means the
United States of America (including the States and the District of Columbia),
its territories, its possessions and other areas subject to its jurisdiction.


 


“United States Alien” means any
Person who, for United States federal income tax purposes, is a foreign
corporation, a non-resident alien individual, a non-resident alien subsidiary
of a foreign estate or trust, or a foreign partnership one or more of the
members of which is, for United States federal income tax purposes, a foreign
corporation, a non-resident alien individual or a non-resident alien fiduciary
of a foreign estate or trust.


 


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


 


“Voting Stock” means stock of
the class or classes having general voting power under ordinary circumstances
to elect at least a majority of the Board of Directors, managers or trustees of
such Corporation (irrespective of whether or not at the time stock of any other
class or classes shall have or might have voting power by reason of the
happening of any contingency).


 


SECTION 1.02.              Compliance Certificates and
Opinions.


 


Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers’
Certificate stating that all conditions precedent (including any covenants,
compliance with which constitutes 


 


9

















 


 


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


 


Every certificate or opinion
with respect to compliance with a condition or covenant provided for in this
Indenture (other than annual certificates provided pursuant to Section 5.10)
shall include:


 


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


 


(ii)           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;


 


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


 


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


 


SECTION 1.03.              Form of Documents
Delivered to Trustee.


 


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


 


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


 


10

















 


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


 


SECTION 1.04.              Acts of Securityholders.


 


(i)            Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Securityholders of any series may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Securityholders
in person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the “Act” of the Securityholders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to Section 8.01)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.


 


(ii)           The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by or on behalf of any legal entity other than an individual,
such certificate or affidavit shall also constitute proof of the authority of the
Person executing the same. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be provided in any other manner which the Trustee deems sufficient.


 


(iii)          The ownership of Registered Securities shall be proved by
the Security Register.


 


(iv)          The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may be proved
by the production of such Bearer Securities or by a certificate executed, as
depository, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit of the
Person holding such Bearer Security, if such certificate or affidavit is deemed
by the Trustee to be satisfactory. The Trustee and the Company may assume that
such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other Person, or (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer
Security is no longer Outstanding.


 


11

















 


(v)           The fact and date of execution of any such instrument or
writing, the authority of the Person executing the same and the principal
amount and serial numbers of Bearer Securities held by the Person so executing
such instrument or writing and the date of holding the same may also be proved
in any other manner which the Trustee deems sufficient; and the Trustee may in
any instance require further proof with respect to any of the matters referred
to in this Section.


 


(vi)          Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
or the Holder of any Predecessor Security, in respect of any action taken,
suffered or omitted by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.


 


(vii)         For purposes of determining the principal amount of
Outstanding Securities of any series, or if such Outstanding Securities are not
payable at Maturity for a fixed principal amount, the issue price of
Outstanding Securities of any series, the Securityholders of which are
required, requested or permitted to give any request, demand, authorization,
direction, notice, consent, waiver or take any other Act under the Indenture,
each Security denominated in a Foreign Currency shall be deemed to have a
principal amount or issue price determined by converting the principal amount or
issue price of such Security in the currency or currencies in which such
Security is denominated into U.S. dollars at the Exchange Rate(s) as of
9:00 A.M. New York City time as determined by an Exchange Rate Agent (as
evidenced by a certificate of such Exchange Rate Agent) on the date such Act is
delivered to the Trustee pursuant to Section 1.04(i). Any such
determination by the Company or an Exchange Rate Agent shall be conclusive and
binding on the Holders and the Trustee for such series, and neither the Company
nor such Exchange Rate Agent shall be liable therefor in the absence of bad
faith.


 


(viii)        The Company may, but shall not be
obligated to, set a record date for purposes of determining the identity of
Holders entitled to vote or consent to any action by vote or consent authorized
or permitted under this Indenture.  If a
record date is fixed, those persons who were Holders of Securities at such
record date (or their duly designated proxies), and only those persons, shall
be entitled to take such action by vote or consent or to revoke any vote or
consent previously given, whether or not such persons continue to be Holders
after such record date. No such vote or consent shall be valid or effective for
more than 120 days after such record date.


 


SECTION 1.05.              Notices, etc., to Trustee and
Company.


 


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


 


 


12

















 


(i)            the Trustee by any Securityholder or by the Company shall
be sufficient for every purpose hereunder if made, delivered or filed in
writing to or with the Trustee and received at its Corporate Trust Office; or


 


(ii)           the Company by any Securityholder or by the Trustee shall
be sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class, postage prepaid, to the
Company addressed to the attention of its Secretary at the address of its
principal office specified in the first paragraph of this Indenture, or at any
other address previously furnished in writing to the Trustee by an Authorized
Officer of the Company.


 


SECTION 1.06.              Notices to Securityholders;
Waiver.


 


Where this Indenture or any
Security provides for notice to Holders of any series of Securities of any
event:


 


(1)           Such
notice shall be sufficiently given (unless otherwise herein, or in such
Security, expressly provided) if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such event, at his
address as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice.


 


(2)           Such
notice shall be sufficiently given to Holders of Bearer Securities if published
in an Authorized Newspaper in The City of New York and, if the Securities of
such series are then listed on The International Stock Exchange of the United
Kingdom and the Republic of Ireland Limited and such stock exchange shall so
require, in London and, if the Security of such series are then listed on the
Luxembourg Stock Exchange and such stock exchange shall so require, in
Luxembourg and, if the Security of such series are then listed on any other
stock exchange and such stock exchange shall so require, in any other required
city outside the United States or, if not practicable, elsewhere in Europe on a
Business Day at least twice, the first such publication to be not earlier than
the earliest date, and not later than the latest date, prescribed for the
giving of such notice; it being understood that the Company shall notify the
Trustee of any of the foregoing requirements a reasonable amount of time prior
to the date on which such notice must be given (but in no event less than five
Business Days).


 


In case by reason of the
suspension of regular mail service in the applicable country or countries or by
reason of any other case it shall be impracticable to give such notice to
Holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder. In any case where notice to Holders
of Registered Securities is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder of a
Registered Security shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice by
publication to Holders of Bearer Securities given as provided above.


 


13

















 


In case by reason of the
suspension of publication of any Authorized Newspaper or Authorized Newspapers
or by reason of any other cause it shall be impracticable to publish any notice
to Holders of Bearer Securities as provided above, then such notification to
Holders of Bearer Securities as shall be given with the approval of the Trustee
shall constitute sufficient notice to such Holders for every purpose hereunder.
Neither the failure to give notice by publication to Holders of Bearer
Securities as provided above, nor any defect in any notice so published, shall
affect the sufficiency of any notice mailed to Holders of Registered Securities
as provided above.


 


Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Such waivers of notice by
Securityholders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.


 


SECTION 1.07.              Language of Notices, Etc.


 


Any request, demand,
authorization, direction, notice, consent, or waiver required or permitted
under this Indenture shall be in the English language, except that any
published notice may be in an official language of the country of publication,
as may be specified in a form of Security or, in the absence of such
specification, as directed in writing by the Company.


 


SECTION 1.08.              Conflict with Trust Indenture
Act.


 


If and to the extent that
any provision hereof limits, qualifies or conflicts with the duties imposed by
any of Sections 310 to 317, inclusive, of the Trust Indenture Act through
operation of Section 318(c) thereof, such imposed duties shall
control.


 


SECTION 1.09.              Effect of Headings and Table of
Contents.


 


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


 


SECTION 1.10.              Successors and Assigns.


 


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


 


SECTION 1.11.              Separability Clause.


 


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


 


SECTION 1.12.              Benefits of Indenture.


 


Nothing in this Indenture or
in the Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, the Holders and, to the 


 


14

















 


extent
provided in Article Fourteen hereof, the holders of Senior Indebtedness,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.


 


SECTION 1.13.              Legal Holidays.


 


In any case where any
Interest Payment Date, Stated Maturity or Redemption Date of any Security or
any date on which any Defaulted Interest is proposed to be paid or delivered
shall not be a Business Day at any Place of Payment, then (notwithstanding any
other provisions of the Securities or this Indenture) payment or delivery of
the principal of (and premium, if any), Maturity Consideration or interest on
any Securities need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day or such other Business Day as may
be specified in an Officers’ Certificate, or established in one or more
indentures supplemental hereto, delivered to the appropriate Trustee pursuant
to Section 3.01 hereof, at such Place of Payment with the same force and
effect as if made on the Interest Payment Date, Stated Maturity or Redemption
Date or on the date on which Defaulted Interest is proposed to be paid or
delivered, and, if such payment or delivery is made, no interest shall accrue on
such payment or delivery for the period from and after any such Interest
Payment Date, Stated Maturity, Redemption Date or on the date on which
Defaulted Interest is proposed to be paid or delivered, as the case may be.


 


SECTION 1.14.              Governing Law.


 


This Indenture and the
Securities shall be construed in accordance with and governed by the laws of
the State of New York.


 


SECTION 1.15.              Judgment Currency; Payment to
be in Proper Currency.


 


Each reference in any
Security to any currency shall be of the essence. Subject to Section 3.12(iv),
the Company agrees, to the fullest extent that it may effectively do so under
applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum or amount of Maturity Consideration
due or payable in respect of the principal of (and premium, if any), Maturity
Consideration or interest on the Securities of any series in a Specified
Currency into a currency in which a judgment will be rendered (the “Judgment
Currency”), the rate of exchange used shall be the Exchange Rate (as determined
by the Exchange Rate Agent) as of 11:00 A.M. New York City time on the New
York Banking Day immediately preceding that on which final unappealable
judgment is given and (b) its obligations to make any payment or delivery
of principal of (and premium, if any), Maturity Consideration and interest on
any Security (i) shall not be discharged or satisfied by any tender by the
Company, or recovery by the Trustee, either pursuant to any judgment (whether or
not entered in accordance with subsection (a) above) or otherwise, in any
currency other than the Required Currency except to the extent that such tender
or recovery shall result in the Trustee timely holding the full amount of the
Required Currency then due and payable in respect of such payments, (ii) shall
be enforceable as an alternative or additional cause of action for the purpose
of recovering, in the Required Currency, the amount, if any, by which such
timely holding shall fall short of the full amount of the Required Currency so
expressed to be then due and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, “New York Banking Day” means any day except a Saturday, Sunday or a
legal holiday in The City of 


 


15

















 


New
York or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to close. Except as permitted
under Section 3.12(iv), if any such tender or recovery is in a currency
other than the Required Currency, the Trustee may take such actions as it
considers appropriate to exchange such currency for the Required Currency; provided, however, the Trustee shall have no obligation to
make any payment in any currency tendered to or recovered by such Trustee. The
costs and risks of any such exchange, including without limitation the risks of
delay and exchange rate fluctuation, shall be borne by the Company, and the
Company shall remain fully liable for any shortfall or delinquency in the full
amount of the Required Currency then due and payable, and in no circumstances
shall the Trustee be liable therefor. The Company hereby waives any defense of
payment based upon any such tender or recovery which is not in the Required
Currency, or which, when exchanged for the Required Currency by the Trustee, is
less than the full amount of the Required Currency then due and payable.


 


SECTION 1.16.              Moneys of Different Currencies
to be Segregated.


 


The Trustee shall, to the
extent required by law, segregate all moneys, funds and accounts held by the
Trustee hereunder in one currency from any money, funds or accounts in any
other currencies, notwithstanding any provision herein which would otherwise
permit the Trustee to commingle such moneys, funds and accounts.


 


ARTICLE II



SECURITY FORMS


 


SECTION 2.01.              Forms Generally.


 


The Securities of each
series shall be in substantially the form set forth in this Article, or in such
other form as shall be established by or pursuant to a Board Resolution or in
one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If the form of Securities of
any series is established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of such action shall be delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 3.03
for the authentication and delivery of such Securities.  If temporary Securities of any series are
issued in global form as permitted by Section 3.04, the form thereof also
shall be established as provided in the preceding sentence.


 


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


 


Unless otherwise provided as
contemplated by Section 3.01 with respect to any series of Securities, the
Securities of each series shall be issuable in registered form without coupons.
If so provided as contemplated by Section 3.01, the Securities of a series
shall be issuable solely in 


 


16

















 


bearer
form, or in both registered and bearer form. Unless otherwise specified as
contemplated by Section 3.01, Securities in bearer form shall have
interest coupons attached.


 


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


 


SECTION 2.02.              Form of Securities.


 


Each Security shall be in
one of the forms approved from time to time by or pursuant to a Board
Resolution. Upon or prior to the delivery of a Security in any such form to the
Trustee for authentication, the Company shall deliver to the Trustee the following:


 


(i)            the Officers’ Certificate required by Section 3.01
of this Indenture;


 


(ii)           the Company Order required by Section 3.03 of this
Indenture; and


 


(iii)          the Opinion of Counsel required by Section 3.03 of
this Indenture.


 


SECTION 2.03.              Form of Trustee’s
Certificate of Authentication.


 


TRUSTEE’S
CERTIFICATE OF AUTHENTICATION


 


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


 




	
   

  	
   

  	
  [                  ],

  as Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Authorized Officer

  
					






 


 


17






 












 


ARTICLE III


 


THE SECURITIES


 


SECTION 3.01.              Title and Terms.


 


The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued up to
the aggregate principal amount of Securities from time to time authorized by or
pursuant to a Board Resolution.


 


The Securities may be issued
in one or more series. All Securities of each series issued under this
Indenture shall in all respects be equally and ratably entitled to the benefits
hereof with respect to such series without preference, priority or distinction
on account of the actual time or times of the authentication and delivery or
Maturity of the Securities of such series. There shall be established in or
pursuant to a Board Resolution, and set forth in an Officers’ Certificate
reasonably acceptable to the Trustee, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,


 


(i)            the title of the Securities, including CUSIP numbers, of
the series (which shall distinguish the Securities of the series from all other
Securities);


 


(ii)           the Trustee for the Securities of the series (which
Trustee shall be the Trustee named herein or a successor Trustee appointed in
accordance with the terms of this Indenture);


 


(iii)          any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of that
series pursuant to this Article Three or Sections 4.07 or 9.06);


 


(iv)          the date or dates on which the principal or Maturity
Consideration of the Securities of the series is payable or deliverable;


 


(v)           the rate or rates, or the method to be used in
ascertaining the rate or rates, at which the Securities of the series shall
bear interest, if any, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be payable or
deliverable, the Regular Record Date for the interest payable or deliverable on
any Interest Payment Date and the terms, if any, of any option to defer payment
of interest;


 


(vi)          the place or places where, subject to the provisions of Section 5.02,
the principal of (and premium, if any), Maturity Consideration and interest, if
any, on Securities of the series shall be payable or deliverable;


 


(vii)         the office or offices or agency where the Registered
Securities may be presented for registration of transfer or exchange and the
place or places where notices 


 


18

















 


 


and demands to or upon the Company in respect
of the Securities of such series may be made;


 


(viii)        the period or periods within which, the
price, prices or Maturity Consideration at which and the terms and conditions
upon which Securities of the series may be redeemed, in whole or in part, at
the option of the Company;


 


(ix)           the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions upon
which, Securities of such series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;


 


(x)            the denominations in which Securities of the series shall
be issuable;


 


(xi)           (A) the currency of denomination of the Securities of
the series, which may be in U.S. dollars or any Foreign Currency, (B) if
such currency of denomination of such series is a composite currency other than
the Euro, the agency or organization, if any, responsible for overseeing such
composite currency and (C) if such Securities are denominated in a Foreign
Currency, the financial center relative to such Foreign Currency;


 


(xii)          the designation of the currency or currencies in which
payment of the principal of (and premium, if any) and interest on the
Securities of the series will be made (which shall be either U.S. dollars or
the Foreign Currency in which such Security is denominated), and if in U.S.
dollars on a Security denominated in a Foreign Currency, whether the Holders
thereof may elect to have such payments made in such Foreign Currency;


 


(xiii)         if the Securities of the series are to
be denominated in a Foreign Currency, the designation of an Exchange Rate Agent
for purposes of determining the amounts payable or deliverable with respect to
such Securities in U.S. dollars or a Foreign Currency and exchanging a Foreign
Currency into U.S. dollars or U.S. dollars into a Foreign Currency, as the case
may be;


 


(xiv)        if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable or
deliverable upon declaration of acceleration of the Maturity thereof pursuant
to Section 7.02;


 


(xv)         if the amount of payments of principal of (and premium, if
any), Maturity Consideration or interest, if any, on Securities of the series
may be determined with reference to an index based on a coin or currency other
than that in which the Securities are to be payable or deliverable, the method
or methods by which such amounts shall be determined;


 


19

















 


 


(xvi)        the extent to which any of the Securities will be issuable in
temporary or permanent global form, and the manner in which any interest  payable or deliverable on a temporary or
permanent global Security shall be paid or delivered;


 


(xvii)       any addition to or modification or
deletion of any Event of Default, Default or covenants of the Company with
respect to the Securities of the series, whether or not such Events of Default
or covenants are consistent with the Events of Default or covenants set forth herein;


 


(xviii)      any covenants solely for the benefit of
the Securities of the series;


 


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


 


(xx)          whether, and the terms and conditions relating to when the
Company may satisfy all or part of its obligations with regard to payment or
delivery upon Maturity, or any redemption or required repurchase or in
connection with any exchange provisions, or any interest payment, by paying or
delivering Maturity Consideration to the Holders of the Securities;


 


(xxi)         any restrictions on transfer of the Securities of the
series;


 


(xxii)        any additional obligation of the Company
to be included as Senior Indebtedness;


 


(xxiii)       any other terms of the series (which
shall not be inconsistent with the provisions of this Indenture);


 


(xxiv)       any legends to be placed on the
Securities of the series;


 


(xxv)        whether the Securities of the series may be issued in
registered form, bearer form or a combination;


 


(xxvi)       whether Securities shall vote and consent
together with other Securities as a single class and/or shall constitute a
single series with other Securities; and


 


(xxvii)      whether the Securities are subject to the
additional provisions relating to book-entry securities and transfers in
certain situations set forth in Exhibit E attached hereto; and


 


(xxviii)     the relative degree, if any, to which the
Securities of the series shall be senior to or be subordinated to other series
of Securities in right of payment, whether such other series of Securities are
Outstanding or not..


 


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


 


20

















 


All Securities shall be
subordinate and junior in right of payment to the obligations of the Company to
holders of Senior Indebtedness of the Company as provided in Article Fourteen.


 


At the option of the
Company, interest on the Securities of any series that bear interest may be
paid by mailing a check to the address of the Person entitled thereto as such
address shall appear in the Security Register.


 


SECTION 3.02.              Denominations.


 


The Securities of each
series shall be issuable in such form and denominations as shall be specified
as contemplated by Section 3.01. In the absence of any specification with
respect to the Securities of any series, the Registered Securities of each
series shall be issuable only as Securities without coupons in minimum
denominations of $25 and any integral multiple of $25 in excess thereof and the
Bearer Securities of each series, if any, shall be issuable with coupons and in
denominations of $10,000 and $50,000.


 


SECTION 3.03.              Execution, Authentication,
Delivery and Dating.


 


The Securities shall be
executed on behalf of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, one of its Vice Chairmen or one of its Vice
Presidents.  The signatures of any or all
of these officers on the Securities may be manual or facsimile. Coupons shall
bear the facsimile signature of the Company’s Chairman of the Board, its Chief
Executive Officer, its President, a Vice Chairman of the Board, its Chief
Financial Officer, one of its Executive Vice Presidents or the Treasurer.


 


Securities and coupons
bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.


 


At any time and from time to
time after the execution and delivery of this Indenture, the Company may
deliver Securities of any series, together with any coupons appertaining
thereto, executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Securities and
such other documents as the Trustee may reasonably request, and the Trustee
shall, upon receipt of the Company Order, authenticate and deliver such
Securities as provided in this Indenture and not otherwise; provided, however, that, in connection with its original
issuance, no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and provided, further,
that a definitive Bearer Security may be delivered in connection with its
original issuance only if the Person entitled to receive such Bearer Security
shall have delivered to the Trustee, or such other Person as shall be specified
in a temporary global Security delivered pursuant to Section 3.04, a
certificate in the form required by Section 3.11(i).


 


In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and (subject
to Section 8.01) shall be fully protected in relying upon, an Opinion of
Counsel complying with Section 1.02 and stating that,


 


21

















 


(i)            the form of such Securities has been established in
conformity with the provisions of this Indenture;


 


(ii)           the terms of such Securities have been established in
conformity with the provisions of this Indenture;


 


(iii)          all conditions precedent to the authentication and delivery
of such Securities have been complied with and that such Securities, when
authenticated and delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general applicability relating to or affecting the
enforcement of creditors’ rights and to general principles of equity; and


 


(iv)          such other matters as the Trustee may reasonably request.


 


The Trustee shall not be
required to authenticate such Securities if the issue thereof will adversely
affect the Trustee’s own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee. Notwithstanding the generality of the foregoing, the Trustee will
not be required to authenticate Securities denominated in a Foreign Currency if
the Trustee reasonably believes that it would be unable to perform its duties
with respect to such Securities.


 


Each Registered Security
shall be dated the date of its authentication; and unless otherwise specified
as contemplated by Section 3.01, each Bearer Security and any temporary
global Security referred to in Section 3.04 shall be dated as of the date
of issuance of such Security.


 


No Security or coupon shall
be entitled to any benefit under this Indenture or be valid or obligatory for
any purpose, unless there appears on such Security a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits under
this Indenture. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.09 together with a written statement (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of
Counsel but upon which the Trustee may conclusively rely and shall be protected
in acting upon in accordance with Section 8.03 hereof) stating that such
Security has never been issued or sold by the Company, for all purposes of this
Indenture, such Security shall be deemed never to have been authenticated and
delivered under this Indenture and shall never be entitled to the benefits of
this Indenture.


 


SECTION 3.04.              Temporary Securities.


 


Pending the preparation of
definitive Securities of any series, the Company may execute, and upon delivery
of a Company Order, the Trustee of such series shall authenticate and deliver, 


 


22

















 


temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denominations, substantially of the tenor
of the definitive Securities in lieu of which they are issued in registered
form or, if authorized, in bearer form with one or more coupons or without
coupons and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities. In the case of any series
which may be issuable as Bearer Securities, such temporary Securities may be in
global form, representing such of the Outstanding Securities of such series as
shall be specified therein.


 


Except in the case of
temporary Securities in global form, each of which shall be exchanged in
accordance with the provisions of the following paragraph, if temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series upon surrender
of the temporary Securities of such series at the office or agency of the
Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal amount of definitive Securities of such
series of authorized denominations provided, however,
that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided, further,
that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in Section 3.03.
Until so exchanged the, temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.


 


If temporary Securities of
any series are issued in global form, any such temporary global Security shall,
unless otherwise provided in such temporary global Security, be delivered to
the London office of a depository or common depository (the “Common Depository”),
as directed by the Company, for the benefit of the operator of the Euroclear
System (“Euroclear”) and Clearstream Banking, societe anonyme (“Clearstream”),
for credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct). Upon receipt of a
Company Order, the Trustee or any Authenticating Agent shall authenticate such
temporary global Security and make such indication to reflect the initial
principal amount, or an increase in the principal amount, of Outstanding
Securities represented thereby. Until such initial authentication, such
temporary global Security shall not evidence any obligation of the Company.
Such temporary global Security shall at any time represent the aggregate
principal amount of Outstanding Securities theretofore indicated thereon as
provided above, subject to reduction to reflect exchanges as described below.


 


Unless otherwise specified
in such temporary global Security, and subject to the second proviso in the
following paragraph, the interest of a beneficial owner of Securities in a
series in a temporary global Security shall be exchanged for definitive
Securities of such series and of like tenor following the Exchange Date when
the account holder instructs Euroclear or Clearstream, as the case may be, to
request such exchange on his behalf and delivers to Euroclear or Clearstream,
as the case may be, a certificate in the form required by Section 3.11(i),
dated no earlier than fifteen days prior the Exchange Date, copies of which
certificate shall be available from the offices of Euroclear and Clearstream,
the Trustee, any Authenticating Agent appointed 


 


 


23

















 


for
such series of Securities and each Paying Agent. Unless otherwise specified in
such temporary global Security, any such exchange shall be made free of charge
to the beneficial owners of such temporary global Security, except that the
Company may charge any Person receiving definitive Securities for the cost of
insurance, postage, transportation and the like in the event that such Person
does not take delivery of such definitive Securities in person at the offices
of Euroclear or Clearstream.


 


Without unnecessary delay
but in any event not later than five Business Days prior to the date specified
in, or determined pursuant to the terms of, any such temporary global Security
as the “Exchange Date” (the “Exchange Date”), the Company shall deliver to the
Trustee, or, if the Trustee appoints an Authenticating Agent pursuant to Section 8.14,
to any such Authenticating Agent, definitive Securities in aggregate principal
amount equal to the principal amount of such temporary global Security,
executed by the Company. Unless otherwise specified as contemplated by Section 3.01,
such definitive Securities shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as may be specified by the
Company to the Trustee or any such Authenticating Agent, as may be appropriate.
On or after the Exchange Date, such temporary global Security shall be
surrendered by the Common Depository to the Trustee or any such Authenticating
Agent, as the Company’s agent for such purpose, to be exchanged, in whole or
from time to time in part, for definitive Securities without charge to the
Common Depository and the Trustee or any such Authenticating Agent shall
authenticate and deliver, in exchange for each portion of such temporary global
Securities, an equal aggregate principal amount of definitive Securities of the
same series, of authorized denominations and of like tenor as the portion of
such temporary global Security to be exchanged, which, except as otherwise
specified as contemplated by Section 3.01, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however,
that, unless otherwise specified in such temporary global Security, upon such
presentation by the Common Depository, such temporary global Security is
accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security held
for its account then to be exchanged and a certificate dated the Exchange Date
or a subsequent date and signed by Clearstream, as to the portion of such
temporary global Security held for its account then to be exchanged, each in
the form required by Section 3.11(ii); and provided,
further, that a definitive Bearer Security shall be delivered in
exchange for a portion of a temporary global Security only in compliance with
the conditions set forth in Section 3.03.


 


Upon any exchange of a
portion of any such temporary global Security, the Trustee or any such
Authenticating Agent or the Common Depository, as the case may be, shall
indicate upon such temporary global Security, the amount of such exchange to
reflect the reduction of the principal amount evidenced thereby, whereupon its
remaining principal amount shall be reduced for all purposes by the amount so
exchanged. Until so exchanged in full, such temporary global Security shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of such series authenticated and delivered hereunder, except that,
unless otherwise specified as contemplated by Section 3.01, interest
payable on such temporary global Security on an Interest Payment Date for
Securities of such series occurring prior to the applicable Exchange Date shall
be payable, without interest, to Euroclear and Clearstream on or after such
Interest Payment Date upon delivery by Euroclear and Clearstream to the Trustee
or such Authenticating Agent, as the case may be, of a certificate or
certificates in the form required by Section 3.11(iii), 


 


24

















 


for
credit on or after such Interest Payment Date to the respective accounts of the
Persons who are the beneficial owners of such temporary global Security on such
Interest Payment Date and who have each delivered to Euroclear or Clearstream,
as the case may be, a certificate in the form required by Section 3.11(iv).


 


SECTION 3.05.              Registration, Registration of
Transfer and Exchange.


 


With respect to Registered
Securities, the Company shall keep or cause to be kept at the office of the
Security Registrar designated pursuant to this Section 3.05 or Section 5.02
a register (being the combined register of the Security Registrar and all
Co-Security Registrars and herein sometimes collectively referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and the
registration of transfers of Securities and the Company shall appoint a
Security Registrar, and any Co-Security Registrar as may be appropriate, to
keep the Security Register. The Trustee is hereby initially appointed Security
Registrar with respect to the series of Securities for which it is acting as
Trustee.  Such Security Register shall be
in written form or in any other form capable of being converted into written
form within a reasonable time. At all reasonable times the information
contained in such Security Register shall be available for inspection by the
Trustee at the office of the Security Registrar. In the event that any
Registered Securities issued hereunder have The City of New York as a Place of
Payment, the Company shall appoint either a Security Registrar or Co-Security
Registrar located in The City of New York.


 


Upon surrender for
registration of transfer by the Securityholder of any Registered Security of
any series at the office or agency of the Company in a Place of Payment, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series of any authorized denominations and of a like aggregate
principal amount and Stated Maturity.


 


At the option of the Holder,
Registered Securities of any series may be exchanged for other Registered
Securities of the same series, of any authorized denominations and of like
aggregate principal amount and Stated Maturity, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Securityholder making
the exchange is entitled to receive.


 


Registered Securities may
not be exchanged for Bearer Securities. Bearer Securities may not be exchanged
for Bearer Securities of other authorized denominations.


 


At the option of the Holder,
Bearer Securities of any series may be exchanged for Registered Securities of
the same series of any authorized denominations and of a like aggregate
principal amount and tenor, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default appertaining thereto. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company in an
amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon 


 


25

















 


or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and
any Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to any Paying Agent any such missing coupon in respect of which such
a payment shall have been made, such Holder shall be entitled to receive the
amount of such payment from the Company; provided, however,
that interest represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency of a Paying Agent located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in exchange
for a Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date or proposed date for payment, as
the case may be.


 


Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange
is entitled to receive.


 


Notwithstanding the foregoing,
except as otherwise provided in or pursuant to this Indenture, any global
Security shall be exchangeable for definitive Securities only if (i) the
depositary notifies the Company that it is unwilling, unable or ineligible to
continue as depositary and a successor depositary is not appointed by the
Company within 90 days of the date the Company is so informed in writing, (ii) the
depository ceases to be a “clearing agency” under the Securities Exchange Act
of 1934, as amended, (iii) the Company, at its option, executes and
delivers to the Trustee a Company Order to the effect that such global Security
shall be so exchangeable into definitive securities, or (iv) an Event of
Default has occurred and is continuing with respect to the Securities. If the
beneficial owners of interests in a global Security are entitled to exchange
such interests for definitive Securities, then without unnecessary delay but in
any event not later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee definitive Securities in
such form and denominations as are required by or pursuant to this Indenture,
and of the same series, containing identical terms and in aggregate principal
amount equal to the principal amount of such global Security, executed by the
Company. On or after the earliest date on which such interests may be so
exchanged, such global Security shall be surrendered from time to time by the
depositary as shall be specified in the Company Order with respect thereto, and
in accordance with instructions given to the Trustee and the depositary (which
instructions shall be in writing, but need not be contained in or accompanied
by an Officers’ Certificate or be accompanied by an Opinion of Counsel but upon
which the Trustee may conclusively rely and shall be protected in acting upon
in accordance with Section 8.03 hereof), as shall be specified in the
Company Order with respect thereto to the Trustee, as the Company’s agent for
such purpose, to be exchanged, in whole or in part, for definitive Securities
as described above without charge. The Trustee shall authenticate and make
available for delivery, in exchange for each portion of such surrendered global
Security, a like aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of
such global Security to be exchanged; provided, however, that no such exchanges
may occur during a period beginning at the opening of business 15 days before
any selection of Securities of the same series to be redeemed and ending on the



 


26

















 


relevant
Redemption Date; and provided, further, that (unless otherwise provided in or
pursuant to this Indenture) no Bearer Security delivered in exchange for a
portion of a global Security shall be mailed or otherwise delivered to any
location in the United States. Promptly following any such exchange in part,
such global Security shall be returned by the Trustee to the depositary in accordance
with the instructions of the Company referred to above. If a Registered
Security is issued in exchange for any portion of a global Security after the
close of business at the office or agency of such global Security where such
exchange occurs on or after (i) any Regular Record Date for such Security
and before the opening of business at such office or agency on the next
Interest Payment Date, or (ii) any Special Record Date for such Security
and before the opening of business at such office or agency on the related
proposed date for payment of interest or Default Interest, as the case may be,
interest shall not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such Registered Security, but shall
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, only to the Person to whom interest in respect of such portion of
such global Security shall be payable in accordance with the provisions of this
Indenture.


 


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


 


Every Security presented or
surrendered for registration of transfer or exchange shall (if so required by
the Company, the Security Registrar or the Co-Security Registrar for the
Series) be duly endorsed or be accompanied by a written instrument of transfer
in form satisfactory to the Company, the Security Registrar or the Co-Security
Registrar for the series duly executed, by the Holder thereof or his attorney
duly authorized in writing.


 


Unless otherwise provided in
the Securities to be transferred or exchanged, no service charge shall be made
to the Holder for any registration of transfer or exchange of Securities, but
the Company may (unless otherwise provided in such Securities) require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.04, 4.07, or 9.06
not involving any transfer.


 


None of the Company, the
Security Registrar or any Co-Security Registrar shall be required (i) to
issue, register the transfer of or exchange any Securities of any series during
a period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Securities that series selected for
redemption under Section 4.03 and ending at the close of business on (A) if
Securities of the series are issuable only as Registered Securities, the day of
the mailing of the relevant notice of redemption of Registered Securities of
such series so selected for redemption, or (B) if Securities of the series
are issuable as Bearer Securities, the day of the first publication of the
relevant notice of redemption or, if Securities of the series are also issuable
as Registered Securities and there is no publication, the mailing of the
relevant notice of redemption, or (ii) to register the transfer or
exchange of any Securities so selected for redemption in whole or in part.


 


27

















 


SECTION 3.06.              Mutilated, Destroyed, Lost and
Stolen Securities.


 


If (i) any mutilated
Security or Security with a mutilated coupon, surrendered to the Trustee or the
Security Registrar, or if the Company, the Trustee and the Security Registrar
receive evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (ii) there is delivered to the Company, the
Trustee and the Security Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company, the Trustee or the Security Registrar that such Security has
been acquired by a protected purchaser (within the meaning of Article 8 of
the Uniform Commercial Code), the Company shall execute and upon its request
the Trustee shall authenticate and deliver, in lieu of any such mutilated,
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and Stated
Maturity and of like tenor and principal amount, bearing a number not
contemporaneously outstanding and, if applicable, with coupons corresponding to
the coupons appertaining thereto.


 


In case any such mutilated,
destroyed, lost or stolen Security or coupon has become or is about to become
due and payable, the Company in its discretion may, instead of issuing a new
Security, pay such Security or deliver the Maturity Consideration deliverable
thereon; provided, however, that payment of
principal of (and premium, if any), Maturity Consideration and any interest on
Bearer Securities shall be payable only at an office or agency located outside
the United States, and, in the case of interest, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of the
coupons appertaining thereto.


 


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


 


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


 


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


 


SECTION 3.07.              Payment of Interest; Interest
Rights Preserved.


 


Unless otherwise provided,
as contemplated by Section 3.01, interest on any Registered Security which
is payable or deliverable, and is punctually paid, delivered or duly provided
for, on any Interest Payment Date shall unless otherwise provided in such
Security be paid or delivered to the Person in whose name that Security (or one
or more Predecessor Securities) is 


 


28

















 


registered
at the close of business on the Regular Record Date for such interest; provided, however, that in the case of a Registered Security
originally issued between a Regular Record Date and the Interest Payment Date
or on an Interest Payment Date relating to such Regular Record Date, interest
for the period beginning on the date of issue and ending on such Interest
Payment Date shall be paid or delivered on the next succeeding Interest Payment
Date to the Person in whose name such Registered Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date with respect to such succeeding Interest Payment Date. Unless
otherwise specified as contemplated by Section 3.01, in case a Bearer
Security of any series is surrendered in exchange for a Registered Security of
such series after the close of business (at an office or agency referred to in Section 3.05)
on any Regular Record Date and before the opening of business (at such office
or agency) on the next succeeding Interest Payment Date, such Bearer Security
shall be surrendered without the coupon relating to such Interest Payment Date
and interest will not be payable or deliverable on such Interest Payment Date
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable or deliverable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture.


 


Any interest on any
Registered Security which is payable or deliverable, but is not punctually
paid, delivered or duly provided for, on any Interest Payment Date (herein
called “Defaulted Interest”) shall forthwith cease to be payable or deliverable
to the Holder on the relevant Regular Record Date by virtue of his having been
such Holder, and such Defaulted Interest may be paid or delivered by the
Company, at its election in each case, as provided in clause (i) or clause
(ii) below.


 


(i)            The Company may elect to make payment or delivery of any
Defaulted Interest to the Persons in whose names any such Registered Securities
of such series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment or delivery 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 or delivered on each Registered Security of such series and
the date of the proposed payment or delivery, and at the same time the Company
shall deposit with the Trustee an amount of money or other property equal to
the aggregate amount proposed to be paid or delivered in respect to such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment or delivery, such money
or other property when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as provided in this clause (i).
Thereupon the Trustee shall fix a Special Record Date for the payment or
delivery of such Defaulted Interest which shall be not more than 15 nor less
than 10 days prior to the date of the proposed payment or delivery and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment or delivery. 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 or delivery of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class, postage prepaid, to
each Holder of Securities of such series at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment or delivery of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be 


 


29

















 


paid or delivered to the Persons in whose
names such Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable or deliverable pursuant to the
following clause (ii). In case a Bearer Security of any series is surrendered
at the office or agency in a Place of Payment for such series in exchange for a
Registered Security of such series after the close of business at such office
or agency on any Special Record Date and before the opening of business at such
office or agency on the related proposed date of payment or delivery of
Defaulted Interest, such Bearer Security shall be surrendered without the
coupon relating to such proposed date for payment or delivery and Defaulted
Interest will not be payable or deliverable on such proposed date for payment
or delivery in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such coupon when due
in accordance with the provisions of this Indenture.


 


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


 


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


 


SECTION 3.08.              Persons Deemed Owners.


 


Title to any Bearer
Security, any coupons appertaining thereto and any temporary global Security in
bearer form shall pass by delivery.


 


Prior to due presentment of
a Security of any series for registration of transfer of any Registered
Security, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment or delivery of principal of
(and premium, if any), Maturity Consideration in respect of, and (subject to Section 3.07)
interest on such Security, and for all purposes whatsoever, whether or not such
Security is overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.


 


The Company, the Trustee and
any agent of the Company or the Trustee may treat the bearer of any Bearer
Security and the bearer of any coupon, as the case may be, as the absolute
owner of such Security or coupon for the purpose of receiving payment thereof
or on account thereof and for all other purposes whatsoever, whether or not
such Security or coupon be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.


 


30

















 


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


 


SECTION 3.09.              Cancellation.


 


All Securities and coupons
surrendered for payment, registration of transfer, exchange, repayment,
redemption or for credit against any sinking fund payment shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee. All
Securities so delivered or surrendered directly to the Trustee for any such
purpose shall be promptly canceled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture or such Securities. All canceled Securities or coupons held
by the Trustee shall be disposed of by the Trustee in accordance with its
customary procedures and the Trustee shall deliver a certificate of such
disposition to the Company, if requested by the Company in writing.


 


SECTION 3.10.              Computation of Interest.


 


Except as otherwise
specified as contemplated by Section 3.01 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a
360-day year consisting of twelve 30-day months.


 


SECTION 3.11.              Forms of Certification.


 


(i)            Whenever any provision of this Indenture or the forms of
Securities contemplate that certifications be given by a Person entitled to
receive a Bearer Security, such certification shall be provided to the Company
and the Trustee substantially in the form of Exhibit A hereto, with only
such changes as shall be approved by the Company.


 


(ii)           Whenever any provision of this Indenture or the forms of
Securities contemplate that certification be given by Euroclear and Clearstream
in connection with the exchange of a portion of a temporary global Security,
such certification shall be provided substantially in the form of Exhibit B
hereto, with only such changes as shall be approved by the Company.


 


(iii)          Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by Euroclear and Clearstream
in connection with payment of interest with respect to a temporary global
Security prior to the related 


 


 


31

















 


Exchange Date, such certification shall be
provided substantially in the form of Exhibit C hereto, with only such
changes as shall be approved by the Company.


 


(iv)          Whenever any provision of the Indenture or the forms of
securities contemplate that certification be given by a beneficial owner of a
portion of a temporary global Security in connection with payment or delivery
of interest in respect to a temporary global Security prior to the related
Exchange Date, such certification shall be provided to the Company and the
Trustee substantially in the form of Exhibit D hereto, with only such
changes as shall be approved by the Company.


 


SECTION 3.12.              Payment in Currencies.


 


(i)            Unless otherwise provided in Section 3.01 hereof,
subject to Subsection (ii) hereof, payment of the principal of (and
premium, if any), Maturity Consideration if the Maturity Consideration is to be
satisfied by a cash payment, and interest on the Securities of any series,
whether or not denominated in a Foreign Currency pursuant to Section 3.01
shall be made in U.S. dollars. If a series of Securities is denominated in a
Foreign Currency, the amount receivable in U.S. dollars by the Holders of such
series shall be determined as provided in Section 3.12(iii).


 


(ii)           If authorized pursuant to Section 3.01, any Holder of
a Security of a series of Securities denominated in a Foreign Currency may
elect to receive payments in the Foreign Currency in which such Security is
denominated pursuant to Section 3.01. A Holder may make such election by
delivering to the Trustee a written notice thereof, in such form as may be
acceptable to the Trustee, not later than the close of business on the Regular
Record Date or Special Record Date, as the case may be, immediately preceding
the applicable Interest Payment Date or the fifteenth day immediately preceding
the Maturity of an installment of principal, as the case may be. Such election
shall remain in effect with respect to such Holder until such Holder delivers
to the Trustee a written notice rescinding such election; provided,
however, that any such notice must be delivered to such Trustee not
later than the close of business on the Regular Record Date or Special Record
Date, as the case may be, immediately preceding the next Interest Payment Date
or the fifteenth day immediately preceding the Maturity of an installment of
principal, as the case may be, in order to be effective for the payment to be
made thereon; and provided, further, that no such
rescission may be made with respect to payments to be made on any Security with
respect to which notice of redemption has been given by the Company pursuant to
Article Four. The Trustee will advise the Company in writing of the
aggregate amount payable in a Foreign Currency pursuant to an election under
this subsection (ii); in so doing, the Trustee is entitled to conclusively rely
on the Exchange Rate Officer’s Certificate.


 


(iii)          For each series of Securities denominated in a Foreign
Currency, the Exchange Rate Agent shall deliver to the Company and to the
Trustee, by personal delivery, telecopy or other means reasonably acceptable to
such Trustee and the Company, not later than the close of business on the
second Business Day prior to the date each payment is required to be made with
respect to the Securities of such series, a copy of the Exchange Rate Officer’s
Certificate relating to each such Foreign Currency. 


 


32

















 


Payments in U.S. dollars pursuant to Section 3.12(i) shall
be equal to the sum obtained by converting the specified Foreign Currency,
which is to be paid in U.S. dollars pursuant to Section 3.12(i), at the
applicable Exchange Rate or Market Exchange Rate set forth in such Exchange
Rate Officer’s Certificate.


 


(iv)          If the Foreign Currency, other than a composite currency,
in which a series of Securities is denominated is not available to the Company
for making payment thereof due to the imposition of exchange controls or other
circumstances beyond the control of the Company, then with respect to each date
for the payment of principal of (and premium, if any) and interest on such
series of Securities occurring after the last date on which the Foreign
Currency was so used, all payments with respect to the Securities of any such
series shall be made in U.S. dollars. If payment is to be made in U.S. dollars
to the Holders of any such series of Securities pursuant to the provisions of
the preceding sentence, then the amount to be paid in U.S. dollars on a payment
date by the Company to the Trustee for the series and by such Trustee or any Paying
Agent to Holders of Securities of such series shall be determined by an
Exchange Rate Agent and shall be equal to the sum obtained by converting the
specified Foreign Currency into U.S. dollars at the applicable Market Exchange
Rate set forth in an Exchange Rate Officer’s Certificate.


 


(v)           All decisions and determinations of the Company or an
Exchange Rate Agent regarding the Exchange Rate, Market Exchange Rate or
conversion of Foreign Currency into U.S. dollars pursuant to Section 1.04(vii) or
this Subsection shall, in the absence of manifest error, be conclusive for all
purposes and irrevocably binding upon the Company (in the case of a
determination by an Exchange Rate Agent), the Trustee for the series, any
Paying Agent and all Holders of the Securities of such series. If a Foreign
Currency (other than a composite currency) in which payment of a series of
Securities may be made, pursuant to Subsection (i) above, is not available
to the Company for making payments thereof due to the imposition of exchange
controls or other circumstances beyond the control of the Company, the Company,
after learning thereof, will give notice thereof to the Trustee promptly (and
the Trustee promptly thereafter will give notice to the Holders of such series
denominated in a Foreign Currency in the manner provided in Section 1.06)
specifying the last date on which such Foreign Currency was used for the
payment of principal of (and premium, if any) or interest on such series of
Securities. In the event any composite currency in which a Security is
denominated or payable ceases to be used for the purposes for which it was
established or is not available due to circumstances beyond the control of the
Company, the Company, after learning thereof, will give notice thereof to the Trustee
for such series promptly (and such Trustee thereafter will give notice to the
Holders of such series of Securities denominated in a Foreign Currency in the
manner provided in Section 1.06). In the event of any subsequent change in
any Component of any composite currency in which a series of securities is
denominated or payable, the Company, after learning thereof, will give notice
to the Trustee for the series similarly (and such Trustee promptly thereafter
will give notice to the Holders in the manner provided in Section 1.06).
The Trustee for such series shall be fully justified and protected in
reasonably relying and acting upon the information so received by it from the
Company and from any Exchange Rate Agent and shall not otherwise have any duty
or obligation to determine such 


 


33

















 


information independently. The Company agrees
to appoint and maintain an Exchange Rate Agent as is necessary for the
performance of the obligations of the Exchange Rate Agent specified herein.


 


SECTION 3.13.              CUSIP Numbers.


 


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


 


ARTICLE IV



REDEMPTION OF SECURITIES


 


SECTION 4.01.              Applicability of Article.


 


Securities of any series
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and, except as otherwise specified as contemplated
by Section 3.01 for Securities of any series, in accordance with this
Article.


 


SECTION 4.02.              Election to Redeem; Notice to
Trustee.


 


The election of the Company
to redeem any Securities redeemable at the option of the Company shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal
amount or amount of Maturity Consideration of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers’ Certificate evidencing compliance with such restriction.


 


SECTION 4.03.              Selection by Trustee of
Securities to be Redeemed.


 


If less than all the
Securities of any series are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 60 days nor less than 30 days prior to
the Redemption Date by the Trustee from the Outstanding Securities of such
series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal amount or issue price of Securities of
such series or a denomination equal to or larger than the minimum authorized
denomination for Securities of such series.


 


 


34






 


 












 


The Trustee shall promptly notify the Company and the
Co-Security Registrar, if any, in writing of the Securities selected for
redemption and, in the case of any Security selected for partial redemption,
the principal amount or Maturity Consideration thereof to be redeemed.


 


For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal or Maturity Consideration of such
Security which has been or is to be redeemed.


 


SECTION 4.04.              Notice of Redemption.


 


Notice of redemption shall be given by first-class
mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to
the Redemption Date, to each Holder of Securities to be redeemed at his address
appearing in the Security Register.


 


All notices of redemption shall identify the
Securities to be redeemed (including CUSIP numbers, if any) and shall state:


 


(i)            the
Redemption Date;


 


(ii)           the
Redemption Price;


 


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


 


(iv)          that
on the Redemption Date the Redemption Price will become due and payable upon
each such Security to be redeemed, and that interest, if any, thereon shall
cease to accrue on and after said date;


 


(v)           the
place or places where such Securities, together in the case of Bearer
Securities with all remaining coupons appertaining thereto, if any, maturing
after the Redemption Date, are to be surrendered for payment of the Redemption
Price; and


 


(vi)          that
the redemption is for a sinking fund, if such is the case.


 


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


 


SECTION 4.05.              Deposit of Redemption Price.


 


Prior to 10:00 A.M., New York City time, on any
Redemption Date, the Company shall deposit or cause to be deposited with the
Trustee or with a Paying Agent (or, if the Company is 


 


 


35

















 


acting as its own Paying
Agent, segregate and hold in trust as provided in Section 5.03) an amount
of money sufficient to pay the Redemption Price of all the Securities which are
to be redeemed on that date.


 


SECTION 4.06.              Securities Payable on
Redemption Date.


 


Notice of redemption having been given as aforesaid,
the Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified and from and after such date
(unless the Company shall default in the payment of the Redemption Price) such
Securities shall cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Securities for
redemption in accordance with said notice, such Securities shall be paid by the
Company at the Redemption Price; provided, however,
that installments of interest on Bearer Securities whose Stated Maturity is on
or prior to the Redemption Date shall be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of
coupons for such interest. Installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such on the close of business on the relevant Regular Record
Dates according to their terms and the provisions of Section 3.07.


 


If any Bearer Security surrendered for redemption
shall not be accompanied by all appurtenant coupons maturing after the
Redemption Date, such Security may be paid after deducting from the Redemption
Price an amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and
the Trustee if there be furnished to them such security or indemnity as they
may required to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Bearer Security shall surrender to the Trustee or any Paying
Agent any such missing coupon in respect of which a deduction shall have been
made from the Redemption Price, such Holder shall be entitled to receive the
amount so deducted from the Company; provided, however,
that interest represented by coupons shall be payable only at an office or
agency located outside the United States and, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of
those coupons.


 


If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate borne by
such Security, or as otherwise provided in such Security.


 


Any Security which is to be redeemed only in part
shall be surrendered at a Place of Payment therefor (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder of such Security or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to
the Holder of such Security without service charge to the Holder, a new
Security or Securities of the same series and Stated Maturity of any authorized
denominations as requested by such Holder, in aggregate principal 


 


 


36

















 


amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.


 


SECTION 4.07.              Redemption Suspended During
Event of Default.


 


The Trustee shall not redeem any Securities (unless
all Securities then Outstanding are to be redeemed) or commence the giving of
any notice of redemption of Securities during the continuance of any Event of
Default known to the Trustee, except that where the giving of notice of
redemption of any Securities shall theretofore have been made, the Trustee
shall, subject to the provisions of Section 14.04, redeem such Securities,
provided funds are deposited with it for such purpose. Subject to the rights of
the holders of Senior Indebtedness, except as aforesaid, any moneys theretofore
or thereafter received by the Trustee shall, during the continuance of such
Event of Default, be held in trust for the benefit of the Securityholders and
applied in the manner set forth in Section 7.06; provided,
however, that in case such Event of Default shall have been waived
as provided herein or otherwise cured, such moneys shall thereafter be held and
applied in accordance with the provisions of this Article.


 


ARTICLE V



COVENANTS


 


SECTION 5.01.              Payment of Principal, Premium,
if any, Maturity Consideration and Interest.


 


The Company covenants and agrees for the benefit of
each series of Securities that it will duly and punctually pay or deliver the
principal of (and premium, if any), Maturity Consideration and interest (if
any) on the Securities of such series and any additional amounts described in Section 5.04
in accordance with the terms of the Securities of such series, any coupons
appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 3.01 with respect to any series of Securities, any
interest due on Bearer Securities on or before Maturity shall be payable or
deliverable only outside the United States upon presentation and surrender of
the several coupons for such interest installments as are evidenced thereby as
they severally mature. Any payment by the Company to a Paying Agent hereunder
shall be made in the applicable currency or currencies in which the respective
payments are required to be made.


 


SECTION 5.02.              Maintenance of Office or Agency.


 


If Securities of a series are issuable only as
Registered Securities, the Company will maintain in each Place of Payment for
any such series of Securities an office or agency where Securities of that
series may be presented or surrendered for payment or delivered for Maturity
Consideration, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served. If Securities of a series may be issuable as Bearer Securities, the
Company will maintain an office or agency where any Securities of that series
may be presented or surrendered for payment (A) in the Borough of
Manhattan, The City of New York, (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities of that 


 


 


37

















 


series and related
coupons may be presented and surrendered for payment (including payment of any
additional amounts payable on Securities of that series pursuant to Section 5.04);
provided, however, that if the
Securities of that series are listed on The International Stock Exchange of the
United Kingdom and the Republic of Ireland Limited or the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and such
stock exchange shall so require, the Company will maintain a Paying Agent for
the Securities of that series in London or Luxembourg or any other required
city located outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange, and (C) subject to
any laws or regulations applicable thereto, in a Place of Payment for such
series located outside the United States an office or agency where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of any such office or agency. If at any time the Company shall fail to maintain
any such required office or agency in respect of any series of Securities or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that the Bearer Securities of that series and the
related coupons may be presented and surrendered for payment (including payment
of any additional amounts payable on Bearer Securities of that series pursuant
to Section 5.04) at the place specified for the purpose as contemplated by
Section 3.01, and the Company hereby appoints the Trustee as its agent to
receive such respective presentations, surrenders, notices and demands.
Notwithstanding any other provisions, to the contrary, the Company at its
option may make payment of principal (and premium if any), Maturity Consideration
and interest with respect to Registered Securities by check mailed to the
address of the Person entitled thereto, as such address appears on the registry
books of the Company.


 


No payment or delivery of principal, premium, Maturity
Consideration or interest on Bearer Securities shall be made at any office or
agency of the Company in the United States or by check mailed to any address in
the United States or by transfer to an account maintained with a bank located
in the United States.


 


The Company may also from time to time designate one
or more other offices or agencies where the Securities of one or more series
may be presented or surrendered for any or all of such purposes specified above
in this Section and may from time to time rescind such designations; provided, however, that no such designation, appointment or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee for such series of any such designation or rescission and of any change
in the location of any such other office or agency. Unless and until the
Company rescinds such appointment, the Company hereby appoints the Trustee,
acting through its Corporate Trust Office, as its Paying Agent with respect to
all series of Securities.


 


 


38

















 


SECTION 5.03.              Money or Other Property for
Security Payments and Deliveries to be Held in Trust.


 


If the Company shall at any time act as its own Paying
Agent for any series of Securities, it will, on or before each due date of the
principal of (and premium, if any), Maturity Consideration or interest on any
of the Securities of such series, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum or other property sufficient to pay or
deliver the principal (and premium, if any), Maturity Consideration or interest
so becoming due until such sums or other property shall be paid or delivered to
such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act. If the Company chooses
to act as its own Paying Agent, the Company shall notify the Trustee 15 Business
Days prior to such action.


 


Whenever the Company shall have one or more Paying
Agents for any series of Securities, it will, prior to the opening of business
on each due date of the principal of (and premium, if any), Maturity
Consideration or interest on any Securities of such series, deposit with a
Paying Agent a sum or other property sufficient to pay or deliver the principal
(and premium, if any), Maturity Consideration or interest so becoming due, such
sum or other property to be held in trust for the benefit of the Persons
entitled to such principal (and premium, if any), Maturity Consideration or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.


 


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


 


(i)            hold
all sums or other property held by it for the payment of or delivery of the
principal (and premium, if any), Maturity Consideration or interest on
Securities of such series in trust for the benefit of the Persons entitled
thereto until such sums or other property shall be paid or delivered to such
Persons or otherwise disposed of as herein provided;


 


(ii)           give
the Trustee notice of any default by the Company (or any other obligor upon the
Securities of such series) in the making of any payment or delivery of
principal (and premium, if any), Maturity Consideration or interest on the
Securities of such series; and


 


(iii)          at
any time during the continuance of any such Default, upon the written request
of the Trustee, forthwith pay or deliver to the Trustee all sums or other
property so held in trust by such Paying Agent.


 


The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, pay or deliver, or by Company Order direct any Paying Agent to pay or
deliver, to the Trustee all sums or other property held in trust by the Company
or such Paying Agent, such sums or other property to be held by the Trustee
upon the same trusts as those upon which such sums or other property were held by
the Company or such Paying Agent; and upon such payment or delivery by any
Paying Agent to the Trustee, such 


 


 


39

















 


Paying Agent shall be
released from all further liability with respect to such money or other
property.


 


Any money or other property deposited with the Trustee
or any Paying Agent, or then held by the Company, in trust for the payment or
delivery of the principal of (and premium, if any), Maturity Consideration or
interest on any Security of any series and remaining unclaimed for two years
after such principal (and premium, if any), Maturity Consideration or interest
has become due and payable or deliverable shall be paid or delivered to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment or
delivery thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money or other property, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment or delivery, may at the expense of the Company cause to be published
once, in an Authorized Newspaper in each Place of Payment, notice that such
money or other property remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money or other property then remaining will be
repaid or delivered to the Company.


 


SECTION 5.04.              Additional Amounts.


 


If the Securities of a series provide for the payment
of additional amounts, the Company will pay to the Holder of any Security of
any series or any coupon appertaining thereto additional amounts as provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of (or premium, if any) or interest on, or in respect
to, any Security of any series or payment of any related coupon or the net
proceeds received on the sale or exchange of any Securities of any series, such
mention shall be deemed to include mention of the payment of additional amounts
provided for in this Section to the extent that, in such context,
additional amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section 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.


 


If the Securities of a series provided for the payment
of additional amounts, at least 15 days prior to the first Interest Payment
Date with respect to that series of Securities (or if the Securities of that
series will not bear interest prior to Maturity, the first day on which a
payment or delivery of principal (and premium, if any) or Maturity
Consideration is made), and at least 15 days prior to each date of payment or
delivery of principal of (and premium, if any) or Maturity Consideration or
interest if there has been any change with respect to the matters set forth in
the below-mentioned Officers’ Certificate, the Company will furnish the Trustee
and the Company’s principal Paying Agent or Paying Agents, if other than the
Trustee, with an Officers’ Certificate instructing the Trustee and such Paying
Agent or Paying Agents whether such payment or delivery of principal of (and premium,
if any) or Maturity Consideration or interest on the Securities of that series
shall be made to Holders of Securities of that series or any related coupons
who are United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of that
series. If any such withholding shall be required, then such Officers’
Certificate shall specify by country the 


 


 


40

















 


amount, if any, required
to be withheld on such payments or deliveries to such Holders of Securities or
coupons and the Company will pay to the Trustee or such Paying Agent the
additional amounts required by this Section. The Company covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against any
loss, liability or expense reasonably incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by
any of them in reliance on any Officers’ Certificate furnished pursuant to this
Section.


 


SECTION 5.05.              Corporate Existence.


 


Subject to Article Ten, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the rights (charter and statutory) and
franchises of the Company; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries
considered as a whole and that the loss thereof is not disadvantageous in any
material respect to the Holders of Securities.


 


SECTION 5.06.              Statement as to Compliance.


 


The Company will deliver
to the Trustee, within 120 days after the end of each fiscal year, commencing
with the first calendar year following the issuance of securities of any series
under this Indenture, a brief certificate, which need not comply with Section 1.02,
signed by the principal executive officer, the chief financial officer,
treasurer or the controller of the Company, covering the period from the date
of issuance of such Securities to the end of the calendar year in which such
Securities were issued in the case of the first such certificate, and covering
the preceding calendar year, in the case of each subsequent certificate,
stating, as to each signer thereof, that


 


(1)           a review of the
activities of the Company during such year and of performance under this
Indenture has been made under his supervision, and


 


(2)           to the best of his
knowledge, based on such review, (a) the Company has complied with all
conditions and covenants on its part contained in this Indenture throughout
such year, or, if there has been a Default by the Company in the performance,
observance or fulfillment of any such condition or covenant, specifying each
such Default known to him and the nature and status thereof, and (b) no
event has occurred and is continuing which is, or after notice or lapse of time
or both would become, an Event of Default, or, if such an event has occurred
and is continuing, specifying each such event known to him and the nature and
status thereof.


 


For the purpose of this Section 5.06, compliance
shall be determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.


 


 


41

















 


SECTION 5.07.              Waiver of Certain Covenants.


 


The Company may omit in any particular instance to
comply with any term, provision or condition set forth in Section 5.05
with respect to the Securities of any series if before the time for such
compliance the Holders of at least 50% in principal amount, or if such
Securities are not payable at Maturity for a fixed principal amount, 50% of the
aggregate issue price, of the Outstanding Securities of such series shall, by
Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee for such series in
respect of any such term, provision or condition shall remain in full force and
effect.


 


SECTION 5.08.              Calculation of Original Issue
Discount.


 


To the extent applicable to the Securities of any
series, the Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities of such series as of the end of such year and (ii) such other
specific information relating to such original issue discount as may then be
relevant under the Internal Revenue Code of 1986, as amended from time to time.


 


SECTION 5.09.              Statement by Officers as to
Default.


 


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


 


SECTION 5.10.              Payment of Trust Costs and
Expenses.


 


Since, in the case of the Securities of a series held
by a Trust, such Trust is being formed solely to facilitate an investment in the
Securities of such series, the Company, in its capacity as the issuer of the
Securities of such series, hereby covenants to pay all debts and obligations
(other than with respect to the Capital Securities and Common Securities issued
by such Trust) and all costs and expenses of such Trust (including, but not
limited to, all costs and expenses relating to the organization of such Trust,
the fees and expenses of the trustees thereof, all costs and expenses relating
to the operation of such Trust and any costs, expenses or liabilities of such
Trust that are required by applicable law to be satisfied in connection with
the termination of such Trust) and to pay any and all taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed on such Trust by the United States, or any other taxing
authority (including Additional Taxes), so that the net amounts received and
retained by such Trust and/or any trustee thereof after paying such expenses
will be equal to the amounts such Trust and the trustee would have received had
no such costs or expenses been incurred by or imposed on such Trust.  The obligations of the Company to pay all
debts, obligations, costs and expenses of each such Trust (other than with
respect to the Capital 


 


 


42

















 


Securities and Common
Securities issued by such Trust) shall constitute additional indebtedness
hereunder and shall survive the satisfaction and discharge of this Indenture.


 


SECTION 5.11.              Additional Covenants Related to
any Trust.


 


The Company also covenants with each Holder of
Securities of a series issued to a Trust (i) to maintain directly or
indirectly 100% ownership of the Common Securities of such Trust; provided, however, that
any permitted successor of the Company hereunder may succeed to the Company’s
ownership of such Common Securities, (ii) not to voluntarily terminate,
wind-up or liquidate such Trust, except (a) in connection with a
distribution of the Securities of such series to the holders of the Trust
Securities of such Trust in liquidation of such Trust or (b) in connection
with any mergers, consolidations or amalgamations permitted by the related
trust agreement or other organizational documents of such Trust and (iii) to
use its reasonable efforts, consistent with the terms and provisions of such
trust agreement or organizational documents, to cause such Trust to remain
classified as a grantor trust and not an association taxable as a corporation
for United States federal income tax purposes.


 


ARTICLE VI



HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY


 


SECTION 6.01.              Company to Furnish Trustee
Names and Addresses of Holders.


 


The Company will furnish or cause to be furnished to
the Trustee for each series


 


(a)           semiannually, not
more than 15 days after each Regular Record Date, a list, in such form as the
Trustee may reasonably require, containing the names and addresses of the
Holders of Registered Securities as of such Regular Record Date, and


 


(b)           at such other times
as the Trustee may request in writing, within 30 days after 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 requested to be furnished,


 


except that no such lists need to be furnished so long
as the Trustee is in possession thereof by reason of its acting as Security
Registrar for such series.


 


SECTION 6.02.              Preservation of Information;
Communications to Holders.


 


(i)            The
Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders contained in the most recent list furnished to
the Trustee as provided in Section 6.01 and the names and addresses of
Holders of Securities received by the Trustee in its capacity as the Security Registrar
or Co-Security Registrar, if so acting. The Trustee may destroy any list
furnished to it as provided in Section 6.01 upon receipt of a new list so
furnished.


 


 


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(ii)           If
three or more Holders of Securities of any series (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 Security of such series 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
Securities of such series or with the Holders of all Securities with respect to
their rights under this Indenture or under such 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


 


(a)           afford such
applicants access to the information preserved at the time by the Trustee in
accordance with Section 6.02(i), or


 


(b)           inform such
applicants as to the approximate number of Holders of Securities of such series
or all Securities, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section 6.02(i),
and as to the approximate cost of mailing such Holders 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 at the Company’s expense, to each Holder of a
Security of such series or all Holders of Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 6.02(i), 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 at the
Company’s expense, to such applicants and file with the Commission, 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 Securities of such series or all 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 the Commission, 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, the 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 Holders of Securities 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.


 


(iii)          Every
Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any agent
of either of them shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Holders of Securities in
accordance with Section 6.02(ii), regardless of the source from which such
information was derived, 


 


 


44

















 


and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 6.02(ii).


 


SECTION 6.03.              Reports by Trustee.


 


(i)            The term “reporting
date”, as used in this Section, shall be May 15 of each year, commencing
with the later of May 15, 2008 or the first May 15 after the first
issuance of Securities of a series for which the Trustee is acting as Trustee
pursuant to this Indenture. Within 60 days after the reporting date in each
year, the Trustee shall transmit by mail to all Holders of Registered
Securities as provided in Section 313(c) of the Trust Indenture Act,
as their names and addresses appear in the Security Register, a brief report
dated as of such reporting date if required by Section 313(a) or 313(b) of
the Trust Indenture Act.


 


(ii)           A copy of each such
report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange, if any, upon which the Securities are listed,
with the Commission and with the Company. The Company will promptly notify the
Trustee when the Securities are listed on any stock exchange and of any
delisting thereof.


 


SECTION 6.04.              Reports by the Company.


 


The Company shall:


 


(i)            file with the
Trustee, within 15 days after the Company has filed the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which
the Company may be required to file with the Commission pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934, as amended,
or, if the Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the Trustee and
the Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934, as amended, in respect of securities
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;


 


(ii)           file
with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from
time to time by such rules and regulations; and


 


(iii)          transmit
by mail to Holders of Securities, as their names and addresses appear in the
Security Register, within 30 days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be filed 


 


 


45

















 


by the Company pursuant to Paragraphs (i) and (ii) of this Section as
may be required by rules and regulations prescribed from time to time by
the Commission.


 


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


 


ARTICLE VII



REMEDIES


 


SECTION 7.01.              Events of Default.


 


“Event of Default”, with respect to any series of
Securities, wherever used herein, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body), unless it is either inapplicable to a
particular series or it is specifically deleted or modified in the supplemental
indenture under which such series of Securities is issued or in the form of
Security for such series:


 


(i)            the
entry of a decree or order by a court having jurisdiction in the premises
granting relief in respect of the Company in an involuntary case under the
Federal Bankruptcy Code, adjudging the Company a bankrupt, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under the Federal Bankruptcy Code
or any other applicable federal or state bankruptcy, insolvency or other
similar law, or appointing a receiver, liquidator, custodian, assignee,
trustee, sequestrator (or other similar official) of the Company or of
substantially all of its properties, or ordering the winding up or liquidation
of its affairs under any such law, and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days; or


 


(ii)           the
institution by the Company of proceedings to be adjudicated a bankrupt, or the
consent by the Company to the institution of bankruptcy proceedings against it,
or the filing by the Company of a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy Code or any other
applicable federal or state bankruptcy, insolvency or other similar law, or the
consent by the Company to the filing of any such petitioner to the appointment
of a receiver, liquidator, custodian, assignee, trustee, sequestrator (or other
similar official) of the Company, or of substantially all of its respective
properties, under any such law; or


 


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


 


 


 


46
















 


SECTION 7.02.              Acceleration of Maturity;
Rescission and Annulment.


 


If an
Event of Default specified in Sections 7.01(i) or 7.01(ii) with
respect to Securities of any series then Outstanding shall have occurred and be
continuing, then, in each and every such case, the principal amount and
interest, if any, on all of the Securities of all series then Outstanding shall
become immediately due and payable without any declaration or other act on the
part of the Trustee or any Holders.


 


At any
time after such acceleration with respect to Securities of any series has been
made and before a judgment or decree for payment of the money or other property
due or deliverable has been obtained by the Trustee as hereinafter in this Article provided,
the Holders of a majority in principal amount or, if such Securities are not
payable at Maturity for a fixed principal amount, the aggregate issue price of
the Outstanding Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if:


 


(i)            the
Company has paid or deposited with, or delivered to, the Trustee a sum or other
property sufficient to pay


 


(a)           all overdue
installments of interest on all Securities of such series,


 


(b)           the principal of
(and premium, if any), or Maturity Consideration of any Securities of that
series which have become due otherwise than by such declaration of acceleration
and interest thereon at the rate or rates prescribed therefor by the terms of
the Securities of such series,


 


(c)           to the extent that
payment of such interest is lawful, interest upon overdue installments of
interest at the rate or rates prescribed therefor by the terms of the
Securities of such series, and


 


(d)           all sums paid or
advanced by the Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, the Security Registrar, Co-Security
Registrar, any Paying Agent, and their agents and counsel; and


 


(ii)           all
other Defaults with respect to Securities of that series, other than the
non-payment of the principal of, or non-delivery of the Maturity Consideration
of, Securities of that series which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 7.13.


 


provided that, in the case of Securities of a
series held by a Trust, if the Holders of at least a majority in principal
amount of the Outstanding Securities of that series fails to rescind and annul
such declaration and its consequences, the holders of a majority in aggregate
Liquidation Amount (as defined in the Trust Agreement under which such Trust is
formed) of the related series of Capital Securities then outstanding shall have



 


 


47

















 


such right by
written notice to the Company and the Trustee, subject to the satisfaction of
the conditions set forth in clauses (i) and (ii) above of this Section 7.02.


 


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


 


SECTION 7.03.              Collection of Indebtedness and
Suits for Enforcement by Trustee.


 


The Company covenants that if


 


(i)            default
is made in the payment of any installment of interest on any Security of any
series when such interest becomes due and payable and such default continues
for a period of 30 days, or


 


(ii)           default
is made in the payment or delivery of the principal of (or premium, if any,
on), or the delivery of the Maturity Consideration of any Security of any
series at the Maturity thereof,


 


the Company will, upon demand of the Trustee, pay or
deliver to it, for the benefit of the Holder of any such Security or coupon
appertaining thereto, if any, the whole amount or other property then due and
payable or deliverable on any such Security or coupon for principal (and premium,
if any), Maturity Consideration and interest, with interest on the overdue
principal (and premium, if any), Maturity Consideration and (to the extent that
payment of such interest shall be lawful) upon overdue installments of
interest, at the rate or rates prescribed therefor by the terms of any such
Security; and, in addition thereto, such further amount as shall be sufficient
to cover the reasonable costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee under Section 8.07.


 


If the Company fails to pay or deliver such amounts
and/or other consideration forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums or other property so due and unpaid or not
delivered, and may prosecute such proceeding to judgment or final decree, and
may enforce the same against the Company or any other obligor upon such
Securities and collect the moneys or other property adjudged or decreed to be
payable or deliverable in the manner provided by law out of the property of the
Company or any other obligor upon such Securities, wherever situated.


 


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


 


SECTION 7.04.              Trustee May File Proofs of
Claim.


 


In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, judgment,
composition or other judicial proceeding relative to the 


 


 


48

















 


Company or any other
obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
or Maturity Consideration of any Securities shall then be due and payable or
deliverable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal (and premium, if any), Maturity
Consideration or interest) shall be entitled and empowered, by intervention in
such proceeding or otherwise,


 


(i)            to
file and prove a claim for the whole amount of principal (and premium, if any),
Maturity Consideration and interest owing and unpaid or undelivered in respect
of the Securities of each series and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel and any other amounts due
the Trustee under Section 8.07) and of the Securityholders allowed in such
judicial proceeding, and


 


(ii)           to
collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same,


 


and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Securityholder to make such payments or
deliveries to the Trustee, and in the event that the Trustee shall consent to
the making of such payments or deliveries directly to the Securityholders, to
pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 8.07.


 


Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder of a Security or coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.


 


SECTION 7.05.              Trustee May Enforce Claims
Without Possession of Securities.


 


All rights of action and claims under this Indenture
or under the Securities of any series or coupons (if any) appertaining thereto,
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities of such series or coupons appertaining thereto or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee under Section 8.07,
be for the ratable benefit of the Holders of the Securities of such series and
coupons appertaining thereto in respect of which such judgment has been
recovered.


 


SECTION 7.06.              Application of Money or Other
Property Collected.


 


Subject to the rights of holders of Senior Indebtedness,
any money or other property collected by the Trustee with respect to a series
of Securities pursuant to this Article shall be 


 


 


49

















 


applied in the following
order, at the date or dates fixed by the Trustee, and, in case of the
distribution of such money or other property on account of principal (or
premium, if any), Maturity Consideration or interest upon presentation of the
Securities of such series or coupons appertaining thereto, if any, or both, as the
case may be, and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:


 


First:  To the payment of all
amounts due the Trustee under Section 8.07;


 


Second:  To the payment of the
amounts then due and unpaid upon the Securities of such series and coupons for
principal of (and premium if any), Maturity Consideration and interest,
respectively. Subject to 3.12(iv), the Holders of each series of Securities
denominated in a Foreign Currency shall be entitled to receive a ratable
portion of the amount determined by an Exchange Rate Agent by converting the
principal amount Outstanding of such series of Securities in the currency in
which such series of Securities is denominated into U.S. dollars at the
Exchange Rate (as determined by the Exchange Rate Agent) as of the date of
declaration of acceleration of the Maturity of the Securities (or, if there is
no such rate on such date for the reasons specified in Section 3.12(iv),
such rate of the date specified in such section);


 


Third:  The balance, if any, to
the persons entitled thereto.


 


SECTION 7.07.              Limitation on Suits.


 


No Holder of any Security of any series or any related
coupons shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless


 


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


 


(ii)           the
Holders of not less than a majority in principal amount or, if such Securities
are not payable at Maturity for a fixed principal amount, the aggregate issue
price of the Outstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such Default in
its own name as Trustee hereunder;


 


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


 


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


 


(v)           no
direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount 


 


 


50

















 


or, if such Securities are not payable at Maturity for a fixed
principal amount, the aggregate issue price of the Outstanding Securities of
such series;


 


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


 


The following events shall be “Defaults” with respect
to any series of Securities under this Indenture:


 


(a)           an Event of Default
with respect to such series specified in Section 7.01; or


 


(b)           default in the
payment of principal of or premium, if any, on any Securities of such series at
its Maturity; or


 


(c)           default in the
delivery or payment of Maturity Consideration when due; or


 


(d)           default in the
payment of any interest upon any Securities of such series as and when the same
shall become due and payable, and continuance of such default for a period of
30 days; or


 


(e)           failure on the part
of the Company to duly observe or perform any of the other covenants or
agreements on its part in the Securities of such series or in this Indenture
and continuance of such failure for a period of sixty days after the date on
which written notice of such failure, requiring the Company to remedy the same
and stating that such notice is a “Notice of Default” hereunder, shall have
been given by registered mail to the Company by the Trustee, or to the Company
and the Trustee by the holders of at least a majority in aggregate principal
amount or, if such Securities are not payable at Maturity for a fixed principal
amount, a majority of the aggregate issue price, of the Securities of such
series at the time Outstanding; or


 


(f)            any other Default
provided with respect to Securities of that Series.


 


SECTION 7.08.              Unconditional Right of Securityholders
to Receive Principal, Premium, Maturity Consideration and Interest.


 


Notwithstanding any other provision in this Indenture,
the Holder of any Security or coupon shall have the right, which is absolute
and unconditional, to receive payment or delivery of the principal of (and
premium, if any), Maturity Consideration and (subject to Section 3.07) 


 


 


51

















 


interest on such Security
or payment of such coupon on the respective Stated Maturity or Maturities expressed
in such Security or coupon (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of such payment or delivery,
and such rights shall not be impaired without the consent of such Holder. In
the case of Securities of a series held by a Trust, any holder of the
corresponding series of Capital Securities issued by such Trust shall have the
right to institute a suit directly against the Company for enforcement of
payment to such holder on the respective Stated Maturity or Maturities
expressed in such Securities of principal of (premium, if any), Maturity
Consideration and (subject to Section 3.07) interest on the Securities
having a principal amount equal to the aggregate liquidation amount of such
Capital Securities of the corresponding series held by such holder


 


SECTION 7.09.              Restoration of Rights and
Remedies.


 


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


 


SECTION 7.10.              Rights and Remedies Cumulative.


 


Except as otherwise provided with respect to the
replacement or payment of mutilated, lost, destroyed or stolen Securities or
coupons in the last paragraph of Section 3.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.


 


SECTION 7.11.              Delay or Omission Not Waiver.


 


No delay or omission of the Trustee or of any Holder
of any Security or coupon to exercise any right or remedy accruing upon any
Default shall impair any such right or remedy or constitute a waiver of any
such Default or an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.


 


SECTION 7.12.              Control by Securityholders.


 


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


 


 


52

















 


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


 


(ii)           such
direction is not unjustly prejudicial to the rights of Holders of such series
not taking part in such direction;


 


(iii)          subject
to the provisions of Section 8.01, the Trustee shall have the right to
decline to follow any such direction if the Trustee, in good faith, shall by a
Responsible Officer or Officers of the Trustee, determine that the proceeding
so directed would involve the Trustees in personal liability; and


 


(iv)          the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.


 


SECTION 7.13.              Waiver of Past Defaults.


 


The Holders of not less
than a majority in principal amount, or if such Securities are not payable at
Maturity for a fixed principal amount, the aggregate issue price, of the
Outstanding Securities of any series and, in the case of any Securities of a
series issued to a Trust, the holders of a majority in liquidation amount of
Capital Securities issued by such Trust, may on behalf of the Holders of all
the Securities of such series waive any past Default hereunder and its
consequences, except a Default not theretofore cured


 


(i)            in
the payment or delivery of the principal of (and premium, if any), Maturity
Consideration or interest on any Security of such series, or


 


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


 


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


 


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


 


SECTION 7.14.              Undertaking for Costs.


 


All parties to this Indenture agree and each Holder of
any Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered 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 


 


 


53

















 


made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, 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, or if such Securities are not
payable at Maturity for a fixed principal amount, the aggregate issue price of
the Outstanding Securities of any series, or to any suit instituted by any
Holder of Securities or coupons for the enforcement of the payment of the
principal of (and premium, if any), Maturity Consideration or interest on any
Security or payment of any coupon on or after the respective Stated Maturities
expressed in such Security or coupon (or, in the case of redemption, on or
after the Redemption Date).


 


SECTION 7.15.              Waiver of Stay or Extension
Laws.


 


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


 


ARTICLE VIII



THE TRUSTEE


 


SECTION 8.01.              Certain Duties and
Responsibilities.


 


(i)            Except
during the continuance of a Default with respect to any series of Securities,


 


(a)           the Trustee
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture and only with respect to any series of Securities as to
which it is Trustee, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and


 


(b)           in the absence of
bad faith on its part, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, and shall
be protected in acting or refraining from acting upon certificates, notices, requests,
directions 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 to the requirements of the Indenture.


 


 


54

















 


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


 


(iii)          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


 


(a)           this Subsection
shall not be construed to limit the effect of Subsection (i) of this Section or
Section 8.03;


 


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


 


(c)           the Trustee shall
not be liable with respect to any action taken, suffered or omitted to be taken
by it in good faith in accordance with the direction of the Holders of a
majority in principal amount, or, if such Securities are not payable at
Maturity for a fixed principal amount, the aggregate issue price of the
Outstanding Securities of any series, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture
with respect to Securities of such series; and


 


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


 


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


 


SECTION 8.02.              Notice of Default.


 


Within 90 days after the occurrence of any default
hereunder known to the Trustee with respect to Securities of any series, the
Trustee shall transmit by mail to all Holders of Securities of such series, as
their names and addresses appear in the Security Register notice of such
default hereunder, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in
the payment of the principal of (or premium, if any), Maturity Consideration or
interest on any Security of such series, or in the payment of any sinking fund
installment with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee 


 


 


55

















 


of directors and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of Securities of
such series; and provided further, that in the case of any default of the
character specified in Section 7.07(d) with respect to Securities of
such series, no such notice to Holders of Securities of such series shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term “default” with respect to Securities of any series,
means any event which is, or after notice or lapse of time, or both, would
become, a Default or Event of Default with respect to Securities of such
series.


 


SECTION 8.03.              Certain Rights of Trustee.


 


Subject to the provisions of Section 8.01:


 


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


 


(ii)           any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order;


 


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


 


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


 


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


 


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


 


 


56

















 


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


 


(viii)        the
Trustee shall not be liable for any action taken, suffered, or omitted to be
taken 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;


 


(ix)           the
Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is received
by the Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Securities and this Indenture; and


 


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


 


(xi)           except
for information provided by the Trustee concerning the Trustee, the Trustee
shall have no responsibility with respect to any information in any offering
memorandum or other disclosure material distributed with respect to the
Securities, and the Trustee shall have no responsibility for compliance with
securities laws in connection with issuance and sale of the Securities; and


 


(xii)          in
the event the Trustee shall receive inconsistent or conflicting requests and
indemnity from two or more groups of Owners, each representing less than a
majority of the aggregate principal amount of the Securities then Outstanding,
the Trustee, in its sole discretion, may determine what action, if any, shall
be taken; and


 


(xiii)         except
as otherwise expressly provided by the provisions of this Indenture, the
trustee shall not be obligated and may not be required to give or furnish any
notice, demand, report, request, reply, statement advice or opinion to the
Owner of any Securities or to the Company or any other Person, and the Trustee
shall not incur any liability for its failure or refusal to give or furnish the
same unless obligated or required to do so by express provisions hereof.


 


SECTION 8.04.              Not Responsible for Recitals or
Issuance of Securities.


 


The recitals contained herein and in the Securities,
except the Trustee’s certificates of authentication, shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating Agent
assumes responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof. The Trustee shall not be responsible for the use or
application of any monies received by any Paying Agent other than the Trustee.


 


 


57

















 


SECTION 8.05.              May Hold Securities.


 


The Trustee, any Authenticating Agent, any Paying
Agent, the Security Registrar, any Co-Security Registrar or any other agent of
the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 8.08 and 8.13, may otherwise
deal with the Company with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Security Registrar, Co-Security
Registrar or such other agent.


 


SECTION 8.06.              Money or Other Property Held in
Trust.


 


Subject to Section 1.16, money or other property
held by the Trustee or any Paying Agent in trust hereunder need not be
segregated from other funds or other property except to the extent required by
law. Neither the Trustee nor any Paying Agent shall be under any liability for
interest on any money or other property received by it hereunder except as
otherwise agreed with the Company.


 


SECTION 8.07.              Compensation and Reimbursement.


 


The Company agrees:


 


(i)            to
pay to each of the Trustee, any Co-Trustee, the Security Registrar, any
Co-Security Registrar and Paying Agent, as the case may be, from time to time
such compensation as shall be agreed in writing between the Company and the
Trustee for all services rendered by them hereunder (which compensation shall
not be limited by any provisions of law in regard to the compensation of a
trustee of an express trust);


 


(ii)           except
as otherwise expressly provided herein, to pay to or to reimburse each of the
Trustee, any Co-Trustee, the Security Registrar, any Co-Security Registrar and
any Paying Agent, as the case may be, upon their request for all reasonable
expenses, disbursements and advances incurred or made by any one of them in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of their agents and counsel),
except any such expense, disbursement or advance as may be attributable to
their negligence or bad faith; and


 


(iii)          to
indemnify each of the Trustee, any Co-Trustee, the Security Registrar, any
Co-Security Registrar and any Paying Agent, as the case may be, for, and to
hold each of them harmless against any and all loss, liability, damage, claim
or expense, including taxes (other than taxes based on the income of the
Trustee) incurred without negligence or bad faith on the part of such entity,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending
themselves against any claim (whether asserted by the Company, a Holder or any
other Person) or liability in connection with the exercise or performance of
any of its powers or duties hereunder. 
The provisions of this Section 8.07(iii) shall survive the
termination and discharge of the Indenture and the resignation or removal of
the Trustee for any reason.


 


 


58

















 


As security for the performance of the obligations of
the Company pursuant to this Section 8.07, the Trustee for the Securities
of any series shall have a lien prior to the Securities of all such series upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of (and premium, if any), or
interest, if any, on Securities of any such series. The claims of the Trustee
under this Section shall not be subject to the provisions of Article Fourteen.


 


The obligations of the Company under this Section shall
survive the resignation and removal of the Trustee and the satisfaction and
discharge of this Indenture.


 


When the Trustee incurs expenses or renders services
in connection with an Event of Default specified in Section 7.01(i) or
Section 7.01(ii), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are intended to
constitute expenses or administration under any applicable Federal or state
bankruptcy, insolvency or other similar law.


 


SECTION 8.08.              Disqualification; Conflicting
Interests.


 


The Trustee for the Securities of any series issued
hereunder shall be subject to the provisions of Section 310(b) of the
Trust Indenture Act during the period of time provided for therein. In
determining whether the Trustee has a conflicting interest as defined in Section 310(b) of
the Trust Indenture Act with respect to the Securities of any series, there
shall be excluded this Indenture with respect to Securities of any particular
series of Securities other than that series.


 


Nothing herein shall prevent the Trustee from filing
with the Securities and Exchange Commission the application referred to in the
second to last paragraph of Section 310(b) of the Trust Indenture
Act.


 


SECTION 8.09.              Corporate Trustee Required;
Eligibility.


 


There shall at all times be a Trustee with respect to
each series of Securities hereunder which shall at all times be either


 


(i)            a
Corporation or association organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by federal, state or District of Columbia authority
or


 


(ii)           a
Corporation or association organized or other Person organized and doing
business under the laws of a foreign government that is permitted to act as
Trustee pursuant to a rule, regulation or order of the Commission, authorized
under such laws to exercise corporate trust powers, and subject to supervision
or examination by authority of such foreign government or a political subdivision
thereof substantially equivalent to supervision or examination applicable to
United States institutional trustees, in either case having a combined capital
and surplus of at least $50,000,000.


 


If such Corporation or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining 


 


 


59

















 


authority, then for the
purposes of this Section, the combined capital and surplus of such Corporation
or national banking association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any person directly or indirectly controlling, controlled
by, or under common control with the Company shall serve as trustee for the
Securities of any series issued hereunder. If at any time the Trustee with
respect to any series of Securities shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.


 


SECTION 8.10.              Resignation and Removal;
Appointment of Successor.


 


(i)            No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 8.11.


 


(ii)           The
Trustee may resign with respect to any series of Securities at any time by
giving written notice thereof to the Company. If an instrument of acceptance by
a successor Trustee, required by Section 8.11, shall not have been
delivered to the resigning Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the expense of
the Company, any court of competent jurisdiction for the appointment of a
successor Trustee with respect to Securities of such series.


 


(iii)          The
Trustee may be removed with respect to any series of Securities at any time by
Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series, delivered to the Trustee and to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of removal, the
Trustee being removed may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.


 


(iv)          If
at any time:


 


(a)           the Trustee shall
fail to comply with Section 310(b) of the Trust Indenture Act with
respect to any series of Securities after written request therefor by the
Company or by any Securityholder who has been a bona fide Holder of a Security
of any series for at least six months; or


 


(b)           the Trustee shall
cease to be eligible under Section 8.09 with respect to any series of
Securities and shall fail to resign after written request therefor by the
Company or by any Holder of Securities of such series; or


 


(c)           the Trustee shall
become incapable of acting with respect to any series of Securities or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public 


 


 


60

















 


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, (1) the Company by a
Board Resolution may remove the Trustee with respect to all Securities, or (2) subject
to Section 7.14, any Securityholder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities and the appointment
of a successor Trustee or Trustees.


 


(v)           If
the Trustee shall resign, be removed or become incapable of acting with respect
to any series of Securities, or if a vacancy shall occur in the office of
Trustee with respect to any series of Securities for any cause, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one
or more or all of such series and that at any time there shall be only one
Trustee with respect to other Securities of any particular series) and shall
comply with the applicable requirements of Section 8.11. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to such series of Securities shall be
appointed by the Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee with respect to such series, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 8.11, become the successor Trustee with
respect to such series and to that extent supersede the successor Trustee
appointed by the Company with respect to such series. If no successor Trustee
with respect to such series shall have been so appointed by the Company or the
Holders of Securities of such series and accepted appointment in the manner
hereinafter provided, any Securityholder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to such series.


 


(vi)          The
Company shall give notice of each resignation and each removal of the Trustee
with respect to the Securities of any series and each appointment of a
successor trustee with respect to the Securities of any series by  mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Registered Securities of
such series as their names and addresses appear in the Security Register and,
if Securities of such series are issuable as Bearer Securities, by publishing
notice of such event once in an Authorized Newspaper in each Place of Payment
located outside the United States. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.


 


SECTION 8.11.              Acceptance of Appointment by
Successor.


 


(i)            In
the case of the appointment hereunder of a successor Trustee with respect to
any series of Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee or
Trustees 


 


 


61

















 


an instrument accepting such appointment and thereupon the resignation
or removal of the retiring Trustee or Trustees shall become effective with
respect to all or any series as to which it is resigning as Trustee, and such
successor Trustee, without any further act, deed, or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
or Trustees with respect to all or any such series; but, on request of the
Company or such successor Trustee, such retiring Trustee or Trustees shall upon
payment of its charges and all amounts owing under Section 8.07, execute
and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of such retiring Trustee or Trustees with respect to
all or any such series; and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee or
Trustees hereunder with respect to all or any such series.


 


(ii)           In
case of the appointment hereunder of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, (b) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (c) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee and that
no Trustee shall be responsible for any notice given to, or received by, or any
act or failure to act on the part of any other Trustee hereunder, and upon the
execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture, and each successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request to
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee, to the extent contemplated by
such supplemental indenture, all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.


 


 


62
















 


(iii)          Upon
request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in paragraph (i) and
(ii) of this Section, as the case may be.


 


(iv)          No
successor Trustee with respect to a series of Securities shall accept its
appointment unless at the time of such acceptance such successor Trustee shall
be qualified and eligible with respect to such series under this Article.


 


SECTION 8.12.              Merger, Conversion,
Consolidation or Succession to Business of Trustee.


 


Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation or
national banking association resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation or
national banking association succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation or national banking association shall
be otherwise qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of the parties hereto.
In case any Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.


 


SECTION 8.13.              Preferential Collection of
Claims against Company.


 


The Trustee shall comply with Section 311(a) of
the Trust Indenture Act with respect to each series of Securities for which it
is Trustee.


 


SECTION 8.14.              Appointment of Authenticating
Agent.


 


At any time when any of the Securities of any series
remain Outstanding the Trustee may appoint an Authenticating Agent or Agents
with respect to one or more series of Securities, which may include any
Affiliate of the Company. Such Authenticating Agent or Agents, at the option of
the Trustee, shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 3.06, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by a Trustee or the Trustee’s
certificate of authentication or the delivery of Securities to the Trustee for
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent, a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent and
delivery of Securities to the Authenticating Agent on behalf of the Trustee.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation or national banking association organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a 


 


 


63

















 


combined capital and
surplus as most recently reported or determined by it sufficient under the laws
of any jurisdiction under which it is organized and in which it is doing
business to conduct a trust business, and which is otherwise authorized under
such laws to conduct such business and is subject to supervision or examination
by federal or state authority. Notwithstanding the foregoing, an Authenticating
Agent located outside the United States may be appointed by the Trustee if
previously approved in writing by the Company and if such Authenticating Agent
has a combined capital and surplus as most recently reported or determined by
it sufficient under the laws of any jurisdiction under which it is organized
and in which it is doing business to conduct a trust business. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the provisions
of this Section, such Authenticating Agent shall resign immediately in the
manner and with the effect specified in this Section.


 


The Trustee shall initially act as Authenticating
Agent located within the United States for each series of Securities issued
hereunder.


 


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


 


An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the Company. The Trustee
may at any time (and upon request by the Company shall) terminate the agency of
an Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of resignation or upon
such termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall mail written notice of such appointment by first-class mail,
postage prepaid, to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, as their names and addresses appear
in the Security Register. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.


 


The Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this Section.


 


The provisions of Sections 3.08, 8.04 and 8.05 shall
be applicable to each Authenticating Agent.


 


 


64

















 


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


 


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


 




	
   

  	
  [                ],

  as Trustee

  






 


 




	
   

  	
  By:

  	
   

  






 




	
   

  	
  As Authenticating Agent

  






 


 




	
   

  	
  By:

  	
   

  






[




	
   

  	
       Authorized Officer

  






 


ARTICLE IX



SUPPLEMENTAL INDENTURES


 


SECTION 9.01.              Supplemental Indentures Without
Consent of Securityholders.


 


Without notice to or the consent of any Holder of any
Security or coupon, the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:


 


(i)            to
evidence the succession of another corporation to the Company, and the
assumption by any such successor of the covenants of the Company herein and in
the Securities in accordance with Section 10.01 hereof; or


 


(ii)           to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to one or more series of Securities and to add to or
change 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 Section 8.11; or


 


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


 


 


65

















 


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


 


(v)           to
add any additional Defaults or Events of Default with respect to all or any
series of the Securities (and, if such Default or Event of Default is
applicable to less than all series of Securities, specifying the series to
which such Default or Event of Default is applicable); or


 


(vi)          to
add to or change any of the provisions of this Indenture to provide that Bearer
Securities may be registerable as to principal, to change or eliminate any
restrictions on the payment of principal of (or premium, if any), Maturity
Consideration or any interest on Bearer Securities, to permit Bearer Securities
to be issued in exchange for Registered Securities, to permit Bearer Securities
to be issued in exchange for Bearer Securities of other authorized
denominations or to permit the issuance of Securities in uncertificated form,
provided any such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any material
respect or, in the case of the Securities of a series issued to a Trust and for
so long as any of the corresponding series of Capital Securities issued by such
Trust shall remain outstanding, the holders of such Capital Securities; or


 


(vii)         to
change or eliminate any of the provisions of this Indenture, provided that, any such change or elimination shall become
effective only when there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture which is adversely
affected in any material respect by such change in or elimination of such
provisions or, in the case of the Securities of a series issued to a Trust and
for so long as any of the corresponding series of Capital Securities issued by
such Trust shall remain outstanding, the holders of such Capital Securities; or


 


(viii)        to
establish the form or terms of a Security of any series as permitted by
Sections 2.01 and 3.01; or


 


(ix)           to
convey, transfer, assign, mortgage or pledge any property to or with the
Trustee securing any series of Security; or


 


(x)            to
provide for conversion rights of the Holders of the Securities of any series to
enable such Holders to convert such Securities into other securities of the
Company.


 


SECTION 9.02.              Supplemental Indentures With
Consent of Securityholders.


 


With the consent of the Holders of not less than a
majority in principal amount or, if such Securities are not payable at Maturity
for a fixed principal amount, a majority of the aggregate 


 


 


66

















 


issue price of the
Outstanding Securities of each series affected by such supplemental indenture
or indentures, by Act of said Holders delivered to the Company and the Trustee,
the Company, when authorized by a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto for the purposes of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of each such series and any related coupons under this
Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holders of each Outstanding
Security affected thereby:


 


(i)            change
the Stated Maturity of the principal of, or the Stated Maturity of any
installment of principal of or interest (or premium, if any) or any Maturity
Consideration on, any Outstanding Security, or reduce the principal amount or
Maturity Consideration thereof (or premium, if any, thereon) or the rate of
interest thereon, or change the obligation of the Company to pay additional
amounts pursuant to Section 5.04 (except as contemplated by Section 10.01(i) and
permitted by Section 9.01), or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable or deliverable
upon a declaration of acceleration of the Maturity thereof pursuant to Section 7.02,
or change the method of calculating interest thereon or the Place of Payment
where, or the coin or currency unit or other property in which any Outstanding
Security (or premium, if any, thereon) or the interest therefor is payable or
deliverable or impair the right to institute suit for the enforcement of any
such payment or delivery on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date); or


 


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


 


(iii)          change
any obligations of the Company to maintain an office or agency in the places
and for the purposes specified in Section 5.02; or


 


(iv)          make
any change relating to the subordination of the Securities in a manner adverse
to the Holders of such Securities; or


 


(v)           make
any change relating to the subordination of the Securities in a manner adverse
to holders of Senior Indebtedness unless the holders of such Senior
Indebtedness consent to such change under the terms of such Senior
Indebtedness; or


 


(vi)          modify
any of the provisions of this Section or Section 7.13, except to
increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the Holder
of each Outstanding Security affected thereby; provided,
however, that this clause shall not be deemed to require the consent
of any Holder with respect to changes in the references to “the Trustee” and
concomitant changes in this Section and Section 5.09 or the deletion
of this proviso, in accordance with the requirements of Sections 8.11(ii) and
9.01(ii).


 


 


67

















 


provided, further, that,
in the case of the Securities of a series issued to a Trust, so long as any of
the corresponding series of Capital Securities issued by such Trust remains
outstanding, (A) no such amendment shall be made that adversely affects
the holders of such Capital Securities in any material respect, and no
termination of this Indenture shall occur, and no waiver of any Event of
Default or compliance with any covenant under this Indenture shall be
effective, without the prior consent of the holders of at least a majority of
the aggregate liquidation amount of such Capital Securities then outstanding
unless and until the principal (and premium, if any) and Maturity Consideration
of the Securities of such series and all accrued and, subject to Section 3.07,
unpaid interest thereon have been paid in full and (B) no amendment shall
be made to Section 7.08 of this Indenture that would impair the rights of
the holders of Capital Securities provided therein without the prior consent of
the holders of each Capital Security then outstanding unless and until the
principal (and premium, if any) and Maturity Consideration of the Securities of
such series and all accrued and (subject to Section 3.07) unpaid interest
thereon have been paid in full.


 


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


 


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


 


SECTION 9.03.              Execution of Supplemental
Indentures.


 


In executing, or accepting the additional trusts
created by any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, in addition to the documents required by Section 1.02,
and (subject to Section 8.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by and complies with this Indenture and has been duly
authorized, executed and delivered and is enforceable in accordance with its
terms. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee’s own rights, liabilities,
duties or immunities under this Indenture or otherwise.


 


SECTION 9.04.              Effect of Supplemental
Indentures.


 


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


 


SECTION 9.05.              Conformity with Trust Indenture
Act.


 


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


 


 


68

















 


SECTION 9.06.              Reference in Securities to
Supplemental Indentures.


 


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


 


ARTICLE X



CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER


 


SECTION 10.01.            Company May Consolidate,
etc., Only on Certain Terms.


 


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


 


(i)            the
corporation formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer or which leases the
properties and assets of the Company substantially as an entirety shall be a
corporation organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment or
delivery of the principal of (and premium, if any), Maturity Consideration and
interest on (including all additional amounts, if any, payable pursuant to Section 5.04)
all the Securities and the performance of every covenant of this Indenture on
the part of the Company to be performed or observed;


 


(ii)           immediately
after giving effect to such transaction, no Default, and no event which, after
notice or lapse of time, or both, would become a Default, shall have happened
and be continuing; and


 


(iii)          the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel each stating that such consolidation, merger, conveyance or transfer
and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with;


 


provided, that, the provisions of this Section 10.01
may be changed as to any series of Securities if and to the extent provided in
an Officer’s Certificate delivered pursuant to Section 3.01 establishing
the terms of such series of Securities.


 


SECTION 10.02.            Successor Corporation Substituted.


 


Upon any consolidation or merger, or any conveyance or
transfer of the properties and assets of the Company substantially as an
entirety in accordance with Section 10.01, the successor corporation
formed by such consolidation or into which the Company is merged or to 


 


 


69

















 


which such conveyance or
transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor corporation had been named as the Company herein. In the
event of any such conveyance or transfer, the Company as the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and may be dissolved, wound up and liquidated at any time thereafter.


 


Such successor corporation may cause to be signed, and
may issue either in its own name or in the name of the Company, any or all of
the Securities issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee; and, upon the order of such
successor corporation instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication pursuant to such provisions and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee on its behalf for the purpose pursuant to such provisions. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities
had been issued at the date of the execution hereof.


 


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


 


ARTICLE XI



SATISFACTION AND DISCHARGE


 


SECTION 11.01.            Satisfaction and Discharge of
Indenture.


 


This Indenture shall upon Company Request cease to be
of further effect (except as to any surviving rights of registration of
transfer or exchange of Securities herein expressly provided for and rights to
receive payments thereon and any right to receive additional amounts, as
provided in Section 5.04), and each Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when


 


(i)            either


 


(a)           all Securities
theretofore authenticated and delivered (other than (1) coupons
appertaining to Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender is not required or
has not been waived as provided in Section 3.05, (2) coupons
appertaining to Bearer Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as provided in Section 4.06,
(3) Securities and coupons which have been destroyed, lost or stolen and
which have been 


 


 


70

















 


replaced or paid
as provided in Section 3.06, and (4) Securities for whose payment
money has theretofore been deposited in trust or segregated and held in trust
by the Company and thereafter repaid to the Company or discharged from such
trust, as provided in Section 5.03) have been delivered to the Trustee for
cancellation; or


 


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


 


(1)           have become due and payable, or


 


(2)           will become due and payable at their
Stated Maturity within one year, or


 


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


 


and the Company, in the
case of (b)(1), (2) or (3) above, has deposited or caused to be
deposited with the Trustee, as trust funds in trust for the purpose, an amount
(said amount to be immediately due and payable to the Holders) sufficient to
pay and discharge the entire indebtedness on such Securities and coupons of the
relevant series not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of such deposit (in
the case of Securities which have become due and payable), or to the Stated
Maturity or Redemption Date, as the case may be;


 


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


 


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


 


Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 8.07,
the obligations of the Company to any Authenticating Agent under Section 8.14
and, if money shall have been deposited with the Trustee pursuant to subclause (b) of
clause (i) of this Section, the obligations of the Trustee under Section 11.02
and the last paragraph of Section 5.03 shall survive such satisfaction and
discharge. The Trustee may give notice to the Holders of Securities Outstanding
of the immediate availability of the amount referred to in Clause (i) of
this Section 11.01. Funds held pursuant to this Section shall not be
subject to the provisions of Article Fourteen.


 


In the event there are Securities of two or more series
hereunder, the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of the Indenture only if requested to do so with
respect to Securities of all series as to which it is Trustee and if the 


 


 


71

















 


other conditions thereto
are met. The effectiveness of any such instrument shall be conditional upon
receipt of such instruments from the Trustee.


 


SECTION 11.02.            Application of Trust Money or
Property.


 


Subject to the provisions of the last paragraph of Section 5.03,
all money or property deposited with the Trustee pursuant to Section 11.01
in respect of Securities of a series shall be held in trust and applied by it,
in accordance with the provisions of such Securities, the coupons, if any, and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if any),
Maturity Consideration and interest for whose payment such money has been
deposited with the Trustee; unless otherwise specified herein, such money need
not be segregated from other funds except to the extent required by law.


 


ARTICLE XII



IMMUNITY OF INCORPORATORS, STOCKHOLDERS, 

OFFICERS AND DIRECTORS


 


SECTION 12.01.            Exemption from Individual
Liability.


 


No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Security or coupon, or for any claim
based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through 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 this Indenture and the obligations issued hereunder
are solely corporate obligations of the Company, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Company or
of any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or coupons or implied therefrom; and that any and all such personal liability,
either at common law or in equity or by constitution or statute, of, and any
and all such rights and claims against, every such incorporator, stockholder,
officer or director, as such, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or coupons or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issuance of the
Securities.


 


 


72

















 


ARTICLE XIII



SINKING FUNDS


 


SECTION 13.01.            Applicability of Article.


 


The provisions of this Article shall be
applicable to any sinking fund for the retirement of Securities of a series
except as otherwise specified as contemplated by Section 3.01 for
Securities of such series.


 


The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein referred to as
a “mandatory sinking fund payment”, and any payment in excess of such minimum
amount provided for by the terms of Securities of any series is herein referred
to as an “optional sinking fund payment”. If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may be subject
to reduction as provided in Section 13.02. Each sinking fund payment shall
be applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.


 


SECTION 13.02.            Satisfaction of Sinking Fund
Payments with Securities.


 


The Company (i) may deliver Outstanding
Securities of a series (other than any previously called for redemption),
together in the case of any Bearer Securities of such series, with all
unmatured coupons appertaining thereto and (ii) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
for the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.


 


SECTION 13.03.            Redemption of Securities for
Sinking Fund.


 


Not less than 90 days prior to each sinking fund
payment date for any series of Securities, the Company will deliver to the
Trustee and the Security Registrar an Officers’ Certificate specifying (i) the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, (ii) the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to Section 13.02
(such Security to be credited, or proof of ownership thereof by the Company
satisfactory to the Trustee, to be delivered together with the Officers’
Certificate), and (iii) that none of such Securities has theretofore been
so credited and stating the basis for such credit, and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 days before each
sinking fund payment date, the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section 4.03
and cause notice of the redemption thereof to be given in the name of and at
the expense of the 


 


 


73

















 


Company in the manner
provided in Section 4.04. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Section 4.05 and 4.06 and subject to the limitations set forth
in Section 4.07.


 


ARTICLE XIV



SUBORDINATION


 


SECTION 14.01.            Agreement to Subordinate.


 


The Company, for itself, its successors and assigns,
covenants and agrees, and each Holder of a Security by his acceptance thereof,
likewise covenants and agrees, that the payment or delivery of the principal of
and premium, if any, Maturity Consideration and interest on each and all of the
Securities is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment or delivery to the prior payment or
satisfaction in full of all Senior Indebtedness.


 


SECTION 14.02.            Distribution on Dissolution,
Liquidation and Reorganization; Subrogation of Securities.


 


(a)           In
the event of any distribution of assets of the Company upon any dissolution,
winding up, liquidation or reorganization of the Company, whether in
bankruptcy, insolvency, reorganization or receivership proceedings or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of the Company (subject to the power of a court of competent
jurisdiction to make other equitable provision reflecting the rights conferred
in this Indenture upon the Senior Indebtedness and the holders thereof with
respect to the Securities and the Holders thereof by a lawful plan of
reorganization under applicable bankruptcy law),


 


(i)            the
holders of all Senior Indebtedness shall first be entitled to receive payment
or delivery in full in accordance with the terms of such Senior Indebtedness of
the principal thereof, premium, if any, and the interest due thereon (including
interest accruing subsequent to the commencement of any proceeding for the
bankruptcy or reorganization of the Company under any applicable bankruptcy,
insolvency, or similar law now or hereafter in effect) before the Holders of
the Securities are entitled to receive any payment or delivery upon the
principal of or premium, if any, Maturity Consideration or interest on
indebtedness evidenced by the Securities;


 


(ii)           any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of the Securities
or the Trustee would be entitled except for the provisions of this Article Fourteen,
including any such payment or distribution which may be payable or deliverable
by reason of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities, shall be paid by the liquidating
trustee or agent or other person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly
to the holders of Senior Indebtedness or their representative or
representatives or to the trustee or trustees under 


 


 


74

















 


any indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, in accordance with the priorities then
existing among holders of Senior Indebtedness for payment of the aggregate
amounts remaining unpaid on account of the principal of and premium, if any,
and interest (including interest accruing subsequent to the commencement of any
proceeding for the bankruptcy or reorganization of the Company under any
applicable bankruptcy, insolvency, or similar law now or hereafter in effect)
on the Senior Indebtedness held or represented by each, to the extent necessary
to make payment in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders of such
Senior Indebtedness; it being understood that if the Holders of Securities
shall fail to file a proper claim in the form required by any proceeding
referred to in this subparagraph (ii) prior to thirty days before the
expiration of the time to file such claim or claims, then the holders of Senior
Indebtedness are hereby authorized to file an appropriate claim or claims for
and on behalf of the Holders of Securities in the form required in any such
proceeding; and


 


(iii)          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, including any such payment or distribution which may be payable or
deliverable by reason of the payment of any other indebtedness of the Company
being subordinate to the payment of the Securities, shall be received by the
Trustee or Holders of the Securities before all Senior Indebtedness is paid in
full, such payment or distribution shall be held for the benefit of and shall
be paid over to the holders of such Senior Indebtedness or their representative
or representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may have been
issued, as aforesaid, for application to the payment of all Senior Indebtedness
remaining unpaid until all such Senior Indebtedness shall have been paid in
full, after giving effect to any concurrent payment or distribution (or
provision thereof) to the holders of such Senior Indebtedness.


 


(b)           Subject
to the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the Securities
are subordinated and is entitled to like rights of subordination) to the rights
of the holders of Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company applicable to the Senior
Indebtedness until the principal of and premium, if any, Maturity Consideration
and interest on the Securities shall be paid in full and no such payments or
distributions to holders of such Senior Indebtedness to which the Holders of
the Securities would be entitled except for the provisions hereof of cash,
property or securities otherwise distributable to the Senior Indebtedness
shall, as between the Company, its creditors, other than the holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment by
the Company to or on account of the Senior Indebtedness.


 


(c)           It
is understood that the provisions of this Article Fourteen are intended
solely for the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of Senior Indebtedness, on the
other hand. Nothing contained in this 


 


 


75

















 


Article Fourteen or
elsewhere in this Indenture or in the Securities is intended to or shall (i) impair,
as between the Company, and the Holders of the Securities, the obligation of
the Company, which is unconditional and absolute (and which, subject to the
rights under this Article Fourteen of the holders of Senior Indebtedness,
is intended to rank equally with all other general obligations of the Company),
to pay to the Holders of the Securities the principal of, premium, if any,
Maturity Consideration and interest (including interest accruing subsequent to
the commencement of any proceeding for the bankruptcy or reorganization of the
Company under any applicable bankruptcy, insolvency or similar law now or
hereafter in effect) on the Securities as and when the same shall become due
and payable in accordance with their terms, (ii) affect the relative
rights of the Holders of the Securities and creditors of the Company, other
than the holders of the Senior Indebtedness, (iii) prevent the Trustee or
the Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon Default under this Indenture, subject to the rights, if
any, under this Article Fourteen of the holders of Senior Indebtedness, in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy or (iv) prevent the application by the Trustee
or any Paying Agent of any moneys deposited with it hereunder to the payment of
or on account of the principal of or premium, if any, Maturity Consideration or
interest on the Securities or prevent the receipt by the Trustee or any Paying
Agent of such moneys, if, prior to the second Business Day prior to such
deposit, the Trustee or such Paying Agent did not have written notice, in
accordance with Section 14.06 hereof, of any event prohibiting the making
of such deposit by the Company and the Trustee shall not be affected by any
notice which may be received by it on or after such second Business Day.


 


(d)           Upon
any payment or distribution of assets of the Company referred to in this Article Fourteen,
the Trustee, subject to the provisions of Section 8.01, and the Holders of
the Securities shall be entitled to rely upon any order or decree of a court of
competent jurisdiction in which such dissolution, winding up, liquidation  or reorganization proceedings are pending or
upon a certificate of the liquidating trustee or agent or other person making
any distribution to the Trustee or to the Holders of the Securities for the
purpose of ascertaining the persons entitled to participate in such distribution,
the holders of the Senior Indebtedness and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article Fourteen.
In the absence of any such liquidating trustee, agent or other person or any
certification by any such person, the Trustee shall be entitled to rely upon a
written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee or representative on behalf of such holder) as
evidence that such Person is a holder of Senior Indebtedness (or is such a
trustee or representative). In the event that the Trustee determines, in good
faith, that further evidence is required with respect to the right of any
Person, as a holder of Senior Indebtedness, to participate in any payment or
distribution pursuant to this Section, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, as to the extent to which such
Person is entitled to participation in such payment or distribution, and as to
other facts pertinent to the rights of such Person under this Section, 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.


 


 


76

















 


(e)           With
respect to the holders of Senior Indebtedness, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee, however, shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness, and
shall not be liable to any such holders if it shall mistakenly pay over or
distribute to or on behalf of Holders of Securities or the Company moneys or
assets to which any holders of Senior Indebtedness shall be entitled by virtue
of this Article Fourteen.


 


SECTION 14.03.            Payments on Securities Prohibited
During Event of Default Under Senior Indebtedness.


 


In the event and during the continuation of any
default in the payment of principal of, or premium, if any, or interest on, any
Senior Indebtedness beyond any applicable period of grace, or in the event that
any event of default with respect to any Senior Indebtedness shall have occurred
and be continuing, or would occur as a result of the payment referred to
hereinafter, permitting the holders of such Senior Indebtedness (or a trustee
on behalf of the holders thereof) to accelerate the maturity thereof, then,
unless and until such default or event of default shall have been cured or
waived or shall have ceased to exist, no payment or delivery of principal of,
or premium, Maturity Consideration or interest on the Securities, or in respect
of any redemption, retirement, purchase or other acquisition of any of the
Securities, shall be made by the Company.


 


SECTION 14.04.            Reserved.


 


SECTION 14.05.            Authorization of Holders to
Trustee to Effect Subordination.


 


Each Holder of a Security by his acceptance thereof
authorizes and directs the Trustee in his behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this Article Fourteen
and appoints the Trustee his attorney-in-fact for any and all such purposes.


 


SECTION 14.06.            Notice to Trustee.


 


Notwithstanding the provisions of this Article or
any other provisions of the Indenture, neither the Trustee nor any Paying Agent
shall be charged with knowledge of the existence of any Senior Indebtedness or
of any event which would prohibit the making of any payment of moneys to or by
the Trustee or such Paying Agent, unless and until a Responsible Officer of the
Trustee assigned to its Corporate Trust Department or such Paying Agent shall
have received written notice thereof from the Company or from the holder of any
Senior Indebtedness or from the representative of any such holder and prior to
receipt of any such written notice the Trustee shall be entitled to assume that
no such indebtedness or event exists; provided, however,
that if a Responsible Officer of the Trustee shall not have received, at least
three Business Days prior to the date upon which by the terms hereof any such
money may become payable for any purpose (including, without limitation, the
payment of the principal, issue price, accrued original issue discount,
redemption price or interest, if any, as the case may be, in respect of any
Security), the notice with respect to such money provided for in this Section 14.06,
then, anything herein 


 


 


77

















 


contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it within three Business Days prior to such date.


 


Subject to the provisions of Section 8.01, the
Trustee shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee or agent on behalf of such holder) to establish that
such notice has been given by a holder of Senior Indebtedness (or a trustee or
agent on behalf of any such holder). In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of
any Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment which it may be required to
make for the benefit of such Person pursuant to the terms of this Indenture
pending judicial determination as to the rights of such Person to receive such
payment.


 


SECTION 14.07.            Right of Trustee to Hold Senior
Indebtedness.


 


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


 


SECTION 14.08.            Article Fourteen Not to
Prevent Defaults or Events of Default.


 


The failure to make a payment pursuant to the
Securities by reason of any provision in this Article shall not be
construed as preventing the occurrence of a Default or an Event of Default.


 


SECTION 14.09.            Trustee Compensation, Etc. Not
Prejudiced.


 


Nothing in this Article shall apply to claims of,
or payments to, the Trustee pursuant to Section 8.07 or to funds held by
the Trustee pursuant to Section 11.01.


 


ARTICLE XV



MISCELLANEOUS


 


SECTION 15.01.            Counterparts.


 


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


 


 


78

















 


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


 




	
   

  	
  TCF FINANCIAL CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James S. Broucek

  
	
   

  	
   

  	
  Name:  James
  S. Broucek

  
	
   

  	
   

  	
  Title: Senior Vice President and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WILMINGTON TRUST COMPANY, as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Michael H. Wass

  
	
   

  	
   

  	
  Name:  Michael H. Wass

  
	
   

  	
   

  	
  Title:    Financial Services Officer

  






 


 


79
















 


EXHIBIT A

FORM OF CERTIFICATE TO BE GIVEN BY 

PERSON ENTITLED TO RECEIVE BEARER NOTE

CERTIFICATE


 


 


[Insert title or
sufficient description of Securities to be delivered]


 


This is to certify that the above-captioned Securities
are not being acquired by or on behalf of a United States person, or, if a
beneficial interest in the Securities is being acquired by or on behalf of a
United States person, that such United States person is a financial institution
within the meaning of Section 1.165-12(c)(1)(v) of the United States
Treasury regulations which agrees to comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the Internal Revenue Code of 1986, and the regulations
thereunder. If the undersigned is a dealer, the undersigned agrees to obtain a
similar certificate from each person entitled to delivery of any of the
above-captioned Securities in bearer form purchased from it; provided, however, that, if the undersigned has actual
knowledge that the information contained in such a certificate is false, the
undersigned will not deliver a Security in temporary or definitive bearer form
to the person who signed such certificate notwithstanding the delivery of such
certificate to the undersigned.


 


As used herein, “United States person” means any
citizen or resident of the United States, any corporation, partnership or other
entity created or organized in or under the laws of the United States and any
estate or trust the income of which is subject to United States federal income
taxation regardless of its source, and “United States” means the United States
of America (including the States and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.


 


We undertake to advise you by telex if the above
statement as to beneficial ownership is not correct on the date of delivery of
the above-captioned Securities in bearer form as to all of such Securities.


 


We understand that this certificate is required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.


 


Dated: 
                                            ,
20


 




	
   

  	
  [Name
  of Person Entitled to Receive Bearer 

  Security]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (Authorized Signatory)

  






 


 

















 


EXHIBIT B

FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND 

CLEARSTREAM IN CONNECTION WITH THE EXCHANGE OF 

A PORTION OF A TEMPORARY GLOBAL NOTE

CERTIFICATE


 


 


[Insert title or
sufficient description of Securities to be delivered]


 


This is to certify with respect to
$                          
principal amount of the above-captioned Securities (i) that we have
received from each of the persons appearing in our records as persons entitled
to a portion of such principal amount (our “Qualified Account Holders”) a
certificate with respect to such portion substantially in the form attached
hereto, and (ii) that we are not submitting herewith for exchange any
portion of the temporary global Security representing the above-captioned
Securities excepted in such certificates.


 


We further certify that as of the date hereof we have
not received any notification from any of our Qualified Account Holders to the
effect that the statements made by such Qualified Account Holders with respect
to any portion of the part submitted herewith for exchange are no longer true
and cannot be relied upon as of the date hereof.


 


Dated:                                              ,
20


[To be dated no earlier
than the Exchange Date]


 




	
   

  	
  [Euroclear
  Bank, S.A./N.V., as Operator of the 

  Euroclear System] [Clearstream Banking, S.A.]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  






 

















 


EXHIBIT C

FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND 

CLEARSTREAM TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE

CERTIFICATE


 


 


[Insert title or
sufficient description of Securities]


 


This is to certify that, as of the Interest Payment
Date on [Insert Date], the undersigned, which is a holder of an interest in the
temporary global Security representing the above Securities, is not a United
States person.


 


As used herein, “United States person” means any
citizen or resident of the United States, any corporation, partnership or other
entity created or organized in or under the laws of the United States and any
estate or trust the income of which is subject to United States Federal income
taxation regardless of its source, and “United States” means the United States
of America (including the States and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.


 


We confirm that the interest payable on such Interest
Payment Date will be paid to each of the persons appearing in our records as
being entitled to interest to be paid on the above date from whom we have
received a written certification dated not earlier than 15 days prior to such
Interest Payment date to the effect that the beneficial owner of such portion
with respect to which interest is to be paid on such date either is not a
United States person or is a United States person which is a financial
institution which has provided an Internal Revenue Service Form W-9 or is
an exempt recipient as defined in United States Treasury Regulations ss. 1.6049-4(c)(1)(ii).
We undertake to retain certificates received from our member organizations in
connection herewith for four years from the end of the calendar year in which
such certificates are received.


 


 

















 


EXHIBIT D

FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNERS TO 

OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE

CERTIFICATE


 


 


[Insert title or
sufficient description of Securities]


 


This is to certify that as of the date hereof, no
portion of the temporary global Security representing the above-captioned
Securities and held by you for our account is beneficially owned by a United
States person or, if any portion thereof held by you for our account is
beneficially owned by a United States person, such United States person is a
financial institution within the meaning of Section 1.165-12(c)(1)(v) of
the United States Treasury regulations which agrees to comply with Section 165(j)(3)(A),
(B) or (C) of the Internal Revenue Code of 1986 and the regulations
thereunder, and certifies that either it has provided an Internal Revenue
Service Form W-9 or is an exempt recipient as defined in Section 1.6049-4(c)(1)(ii) of
the United States Treasury regulations.


 


As used herein, “United States person” means any
citizen or resident of the United States, any corporation, partnership or other
entity created or organized in or under the laws of the United States and any
estate or trust the income of which is subject to United States Federal income
taxation regardless of its source, and “United States” means the United States
of America (including the States and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.


 


We undertake to advise you by telex if the above
statement as to beneficial ownership is not correct on the Interest Payment
Date on [Insert Date] as to any such portion of such temporary global Security.


 


 

















 


We understand that this certificate is required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.


 


Dated: 
                                            ,
20


[To be dated no earlier than 15 days prior to the
Exchange Date]


 




	
   

  	
  [Name
  of Person Entitled to Receive Bearer 

  Security]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  (Authorized Signatory)

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  






 


The foregoing reflects any advice received subsequent
to the date of any certificate stating that the statements contained in such
certificate are no longer correct.


 


Dated: 
                                            ,
20


[To be dated on or after the relevant Interest Payment
Date]


 




	
   

  	
  [Euroclear
  Bank, S.A./N.V., as Operator of the 

  Euroclear System] [Clearstream Banking S.A.]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  






 


We understand that this
certificate is required in connection with certain tax legislation in the
United States. If administrative or legal proceedings are commenced or
threatened in connection with which this certificate is or would be relevant,
we irrevocably authorize you to produce this certificate or a copy thereof to
any interested party in such proceedings.


 


Dated: 
                                            ,
20


[To be dated on or after the 15th day before the
relevant Interest Payment Date]


 




	
   

  	
  [Name of Account Holder]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  (Authorized Signatory)

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  






 


 


2

















 


EXHIBIT E

ADDITIONAL PROVISIONS RELATING TO BOOK-ENTRY SECURITIES AND

TRANSFERS IN CERTAIN SITUATIONS


 


The following provisions
shall only be applicable if the terms of the Securities of the series provide
for their inclusion as permitted under Section 3.03 of the Indenture:


 


SECTION 3.13.  Book-Entry Provisions.


 


(i)            Securities
offered and sold to qualified institutional buyers, as such terms is defined in
Rule 144A promulgated under the Securities Act of 1933, as amended (the “Securities
Act”) (“QIB”) in reliance on Rule 144A promulgated under the Securities
Act (“Rule 144A Notes”) shall be represented by one or more
Securities in registered, global form without interest coupons (collectively,
the “Restricted Global Note”). 
Securities offered and sold in offshore transactions in reliance on
Regulation S promulgated under the Securities Act (“Regulation S Notes”)
initially shall be represented by one or more Securities in registered, global
form without interest coupons (collectively, the “Regulation S Global Note,”
and, together with the Restricted Global Note and any other global notes
representing Notes, the “Global Notes”). 
The Global Notes initially shall (i) be registered in the name of
the Depositary Trust Company or another person designated as depositary by the
Company, which person must be a clearing agency registered under the Securities
Exchange Act of 1934, as amended (the “Depository”) or the nominee of
such Depository, in each case for credit to an account of an Agent Member (or,
in the case of the Regulation S Global Notes, of Euroclear System (“Euroclear”)
and Clearstream Banking Luxembourg (“Clearstream”)), (ii) be
delivered to the Trustee as custodian for such Depository.


 


                Members
of, or direct or indirect participants in, the Depository (“Agent Members”)
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depository, or the Trustee as its custodian, or under
the Global Notes, and the Depository may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of the Global
Note for all purposes whatsoever. 
Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by the
Depository or impair, as between the Depository and its Agent Members, the
operation of customary practices governing the exercise of the rights of a
Holder of any Note.


 


(ii)           Transfers
of Global Notes shall be limited to transfer in whole, but not in part, to the
Depository, its successors or their respective nominees.  Interests of beneficial owners in the Global
Notes may be transferred or exchanged for definitive Securities in accordance
with the rules and procedures of the Depository and the provisions of Section 3.05.  In all cases, definitive Securities delivered
in exchange for any Global Note or beneficial interests therein shall be
registered in the names, and issued in any approved denominations, requested by
or on behalf of the Depository (in accordance with its customary procedures).


 


 


3

















 


(iii)          In
connection with any transfer or exchange of a portion of the beneficial
interest in any Global Note to beneficial owners of definitive Securities
pursuant to paragraph (b), the Registrar shall reflect on its books and records
the date and a decrease in the principal amount of the Global Note in an amount
equal to the principal amount of the beneficial interest in the Global Note to
be transferred or exchanged, and the Company shall execute, and the Trustee
shall upon receipt of a written order from the Company authenticate and make
available for delivery, one or more definitive Securities of like tenor and
amount.


 


(iv)          In
connection with the transfer of Global Notes as an entirety to beneficial
owners pursuant to paragraph (b), the Global Notes shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute, and
the Trustee shall authenticate and deliver, to each beneficial owner identified
by the Depository in writing in exchange for its beneficial interest in the
Global Notes, an equal aggregate principal amount of definitive Securities of
authorized denominations


 


(v)           On
or prior to the 40th day after the later of the commencement of the offering of
the Securities represented by the Regulation S Global Note and the issue date
of such Securities (such period through and including such 40th day, the “Restricted
Period”), a beneficial interest in a Regulation S Global Note may be
transferred to a Person who takes delivery in the form of an interest in the
corresponding Restricted Global Note only upon receipt by the Trustee of a
written certification from the transferor to the effect that such transfer is
being made (i)(a) to a person that the transferor reasonably believes is a
QIB in a transaction meeting the requirements of Rule 144A or (b) pursuant
to another exemption from the registration requirements under the Securities
Act which is accompanied by an opinion of counsel regarding the availability of
such exemption and (ii) in accordance with all applicable securities laws
of any state of the United States or any other jurisdiction.


 


(vi)          Beneficial
interests in the Restricted Global Note may be transferred to a person who
takes delivery in the form of an interest in the Regulation S Global Note,
whether before or after the expiration of the Restricted Period, only if the
transferor first delivers to the Trustee a written certificate to the effect
that such transfer is being made in accordance with Regulation S or Rule 144
(if available) and that, if such transfer occurs prior to the expiration of the
Restricted Period, the interest transferred will be held immediately thereafter
through Euroclear or Clearstream.


 


(vii)         Any
beneficial interest in one of the Global Notes that is transferred to a person
who takes delivery in the form of an interest in another Global Note shall,
upon transfer, cease to be an interest in such Global Note and become an
interest in such other Global Note and, accordingly, shall thereafter be
subject to all transfer restrictions and other procedures applicable to
beneficial interests in such other Global Note for as long as it remains such
an interest.


 


(viii)        The
holder of any Global Note may grant proxies and otherwise authorize any person,
including Agent Members and persons that may hold interests 


 


 


4

















 


through Agent Members, to take any action which a Holder is entitled to
take under this Indenture or the Securities.


 


SECTION 3.15.  Special Transfer Provisions.


 


(a)   Transfers to QIBs.  The following provisions shall apply with
respect to the registration or any proposed registration of transfer of a
Security constituting a Restricted Note to a QIB (excluding transfers to
Non-U.S. Persons):


 


(i)            the
Registrar shall register the transfer if such transfer is being made by a
proposed transferor to a transferee who has advised the Company and the
Registrar in writing, that it is purchasing the Security for its own account or
an account with respect to which it exercises sole investment discretion and
that it and any such account is a QIB within the meaning of Rule 144A, and
is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as it
has requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from registration
provided by Rule 144A; and


 


(ii)           if
the proposed transferee is an Agent Member, and the Notes to be transferred
consist of definitive Securities which after transfer are to be evidenced by an
interest in the Global Note, upon receipt by the Registrar of instructions
given in accordance with the Depository’s and the Registrar’s procedures, the
Registrar shall reflect on its books and records the date and an increase in
the principal amount of the Global Note in an amount equal to the principal
amount of the definitive Securities to be transferred, and the Trustee shall
cancel the definitive Securities so transferred.


 


(ix)           Private
Placement Legend.  Upon the
registration of transfer, exchange or replacement of Notes not bearing a
private placement legend, the Registrar shall deliver Securities that do not
bear a private placement legend.  Upon
the registration of transfer, exchange or replacement of Securities bearing a
private placement legend, the Registrar shall deliver only Securities that bear
a private placement legend unless (i) there is delivered to the Registrar
an opinion of counsel reasonably satisfactory to the Company and the Trustee to
the effect that neither such legend nor the related restrictions on transfer
are required in order to maintain compliance with the provisions of the
Securities Act or (ii) such Security has been sold pursuant to an
effective registration statement under the Securities Act and the Registrar has
received an Officers’ Certificate from the Company to such effect.


 


(x)            General.  By its acceptance of any Security bearing a
private placement legend, each Holder of such Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Note only as
provided in this Indenture.


 


The Registrar shall retain for a period of two years
copies of all letters, notices and other written communications received
pursuant to this section and the previous section.  The 


 


 


5

















 


Company shall have the
right to inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable notice to
the Registrar.


 


 


6