EX-4.1



 





Exhibit 4.1




 





JUNIOR SUBORDINATED INDENTURE




Between




M&T BANK CORPORATION




and




THE BANK OF NEW YORK

(as Trustee)




dated as of




January 31, 2008




 





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Certain Sections of this Junior Subordinated Indenture relating

to Sections 310 through 318 of the

Trust Indenture Act of 1939:




	 	 	 	 	 
	Trust Indenture	 	 	 	Junior Subordinated
	Act Section  	 	 	 	Indenture Section 
	Section 310
	 	(a)(1)
	 	6.9 

	 	 	(a)(2)
	 	6.9 

	 	 	(a)(3)
	 	Not Applicable

	 	 	(a)(4)
	 	Not Applicable

	 	 	(a)(5)
	 	6.9 

	 	 	(b)
	 	6.8, 6.10

	Section 311
	 	(a)
	 	6.13

	 	 	(b)
	 	6.13

	 	 	(b)(2)
	 	7.3(a)

	Section 312
	 	(a)
	 	7.1, 7.2(a)

	 	 	(b)
	 	7.2(b)

	 	 	(c)
	 	7.2(c)

	Section 313
	 	(a)
	 	7.3(a)

	 	 	(a)(4)
	 	7.3(a)

	 	 	(b)
	 	7.3(b)

	 	 	(c)
	 	7.3(a)

	 	 	(d)
	 	7.3(c)

	Section 314
	 	(a)
	 	7.4

	 	 	(b)
	 	7.4

	 	 	(c)(1)
	 	1.2

	 	 	(c)(2)
	 	1.2

	 	 	(c)(3)
	 	Not Applicable

	 	 	(e)
	 	1.2

	Section 315
	 	(a)
	 	6.1(a)

	 	 	(b)
	 	6.2, 7.3

	 	 	(c)
	 	6.1(b)

	 	 	(d)
	 	6.1(c)

	 	 	(e)
	 	5.14

	Section 316
	 	(a)
	 	5.12

	 	 	(a)(1)(A)
	 	5.12

	 	 	(a)(1)(B)
	 	5.13

	 	 	(a)(2)
	 	Not Applicable

	 	 	(b)
	 	5.8

	 	 	(c)
	 	1.4(f)

	Section 317
	 	(a)(1)
	 	5.3

	 	 	(a)(2)
	 	5.4

	 	 	(b)
	 	10.3

	Section 318
	 	(a)
	 	1.7






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





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TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page	 
	ARTICLE I.	 	DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION	 	 	 	 
	 
	 	Section 1.1.	 	 	 	Definitions 	 	 	1	 
	 
	 	Section 1.2.	 	 	 	Compliance Certificate and Opinions 	 	 	11	 
	 
	 	Section 1.3.	 	 	 	Forms of Documents Delivered to Trustee 	 	 	12	 
	 
	 	Section 1.4.	 	 	 	Acts of Holders 	 	 	12	 
	 
	 	Section 1.5.	 	 	 	Notices, Etc. to Trustee and Company 	 	 	14	 
	 
	 	Section 1.6.	 	 	 	Notice to Holders; Waiver 	 	 	15	 
	 
	 	Section 1.7.	 	 	 	Conflict with Trust Indenture Act 	 	 	15	 
	 
	 	Section 1.8.	 	 	 	Effect of Headings and Table of Contents 	 	 	15	 
	 
	 	Section 1.9.	 	 	 	Successors and Assigns 	 	 	16	 
	 
	 	Section 1.10.	 	 	 	Separability Clause 	 	 	16	 
	 
	 	Section 1.11.	 	 	 	Benefits of Indenture 	 	 	16	 
	 
	 	Section 1.12.	 	 	 	Governing Law 	 	 	16	 
	 
	 	Section 1.13.	 	 	 	Non–Business Days 	 	 	16	 
	 
	 	Section 1.14.	 	 	 	Waiver of Jury Trial 	 	 	16	 
	 
	 	Section 1.15.	 	 	 	Force Majeure 	 	 	16	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE II.	 	SECURITY FORMS	 	 	 	 
	 
	 	Section 2.1.	 	 	 	Generally 	 	 	16	 
	 
	 	Section 2.2.	 	 	 	Form of Face of Security 	 	 	17	 
	 
	 	Section 2.3.	 	 	 	Form of Reverse of Security 	 	 	21	 
	 
	 	Section 2.4.	 	 	 	Additional Provisions Required in Global Security 	 	 	25	 
	 
	 	Section 2.5.	 	 	 	Form of Trustee’s Certificate of Authentication 	 	 	25	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE III.	 	THE SECURITIES	 	 	 	 
	 
	 	Section 3.1.	 	 	 	Title and Terms 	 	 	26	 
	 
	 	Section 3.2.	 	 	 	Denominations 	 	 	29	 
	 
	 	Section 3.3.	 	 	 	Execution, Authentication, Delivery and Dating 	 	 	29	 
	 
	 	Section 3.4.	 	 	 	Temporary Securities 	 	 	30	 
	 
	 	Section 3.5.	 	 	 	Global Securities 	 	 	31	 
	 
	 	Section 3.6.	 	 	 	Registration, Transfer and Exchange Generally; Certain Transfers and Exchanges; Securities Act Legends 	 	 	32	 
	 
	 	Section 3.7.	 	 	 	Mutilated, Lost and Stolen Securities 	 	 	35	 
	 
	 	Section 3.8.	 	 	 	Payment of Interest and Additional Interest; Interest Rights Preserved	 	 	35	 
	 
	 	Section 3.9.	 	 	 	Persons Deemed Owners 	 	 	37	 
	 
	 	Section 3.10.	 	 	 	Cancellation 	 	 	37	 
	 
	 	Section 3.11.	 	 	 	Computation of Interest 	 	 	38	 
	 
	 	Section 3.12.	 	 	 	Deferrals of Interest Payment Dates 	 	 	38	 
	 
	 	Section 3.13.	 	 	 	Right of Set–Off 	 	 	39	 
	 
	 	Section 3.14.	 	 	 	Agreed Tax Treatment 	 	 	39	 






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	 	 	 	 	 	 	 	 	Page	 
	 
	 	Section 3.15.	 	 	 	Shortening or Extending of Stated Maturity 	 	 	39	 
	 
	 	Section 3.16.	 	 	 	CUSIP Numbers 	 	 	40	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE IV.	 	SATISFACTION AND DISCHARGE	 	 	 	 
	 
	 	Section 4.1.	 	 	 	Satisfaction and Discharge of Indenture 	 	 	40	 
	 
	 	Section 4.2.	 	 	 	Application of Trust Money 	 	 	41	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE V.	 	REMEDIES	 	 	 	 
	 
	 	Section 5.1.	 	 	 	Events of Default 	 	 	41	 
	 
	 	Section 5.2.	 	 	 	Acceleration of Maturity; Rescission and Annulment 	 	 	42	 
	 
	 	Section 5.3.	 	 	 	Collection of Indebtedness and Suits for Enforcement by Trustee 	 	 	44	 
	 
	 	Section 5.4.	 	 	 	Trustee May File Proofs of Claim 	 	 	44	 
	 
	 	Section 5.5.	 	 	 	Trustee May Enforce Claim Without Possession of Securities 	 	 	45	 
	 
	 	Section 5.6.	 	 	 	Application of Money Collected 	 	 	45	 
	 
	 	Section 5.7.	 	 	 	Limitation on Suits 	 	 	46	 
	 
	 	Section 5.8.	 	 	 	Unconditional Right of Holders to Receive Principal, Premium and Interest; Direct Action by Holders of Capital Securities 	 	 	46	 
	 
	 	Section 5.9.	 	 	 	Restoration of Rights and Remedies 	 	 	47	 
	 
	 	Section 5.10.	 	 	 	Rights and Remedies Cumulative 	 	 	47	 
	 
	 	Section 5.11.	 	 	 	Delay or Omission Not Waiver 	 	 	47	 
	 
	 	Section 5.12.	 	 	 	Control by Holders 	 	 	48	 
	 
	 	Section 5.13.	 	 	 	Waiver of Past Defaults 	 	 	48	 
	 
	 	Section 5.14.	 	 	 	Undertaking for Costs 	 	 	49	 
	 
	 	Section 5.15.	 	 	 	Waiver of Usury, Stay or Extension Laws 	 	 	49	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE VI.	 	THE TRUSTEE	 	 	 	 
	 
	 	Section 6.1.	 	 	 	Certain Duties and Responsibilities 	 	 	49	 
	 
	 	Section 6.2.	 	 	 	Notice of Defaults 	 	 	50	 
	 
	 	Section 6.3.	 	 	 	Certain Rights of Trustee 	 	 	50	 
	 
	 	Section 6.4.	 	 	 	Not Responsible for Recitals or Issuance of Securities 	 	 	52	 
	 
	 	Section 6.5.	 	 	 	May Hold Securities 	 	 	52	 
	 
	 	Section 6.6.	 	 	 	Money Held in Trust 	 	 	52	 
	 
	 	Section 6.7.	 	 	 	Compensation and Reimbursements 	 	 	52	 
	 
	 	Section 6.8.	 	 	 	Disqualification; Conflicting Interests 	 	 	53	 
	 
	 	Section 6.9.	 	 	 	Corporate Trustee Required; Eligibility 	 	 	53	 
	 
	 	Section 6.10.	 	 	 	Resignation and Removal; Appointment of Successor 	 	 	54	 
	 
	 	Section 6.11.	 	 	 	Acceptance of Appointment by Successor 	 	 	55	 
	 
	 	Section 6.12.	 	 	 	Merger, Conversion, Consolidation or Succession to Business 	 	 	56	 
	 
	 	Section 6.13.	 	 	 	Preferential Collection of Claims Against Company 	 	 	56	 
	 
	 	Section 6.14.	 	 	 	Appointment of Authenticating Agent 	 	 	57	 






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	 	 	 	 	 	 	 	 	Page	 
	ARTICLE VII.	 	HOLDER’S LISTS AND REPORTS BY TRUSTEE, PAYING AGENT AND COMPANY	 	 	 	 
	 
	 	Section 7.1.	 	 	 	Company to Furnish Trustee Names and Addresses of Holders 	 	 	58	 
	 
	 	Section 7.2.	 	 	 	Preservation of Information, Communications to Holders 	 	 	58	 
	 
	 	Section 7.3.	 	 	 	Reports by Trustee and Paying Agent 	 	 	59	 
	 
	 	Section 7.4.	 	 	 	Reports by Company 	 	 	59	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE VIII.	 	CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE	 	 	 	 
	 
	 	Section 8.1.	 	 	 	Company May Consolidate, Etc., Only on Certain Terms 	 	 	60	 
	 
	 	Section 8.2.	 	 	 	Successor Company Substituted 	 	 	61	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE IX.	 	SUPPLEMENTAL INDENTURES	 	 	 	 
	 
	 	Section 9.1.	 	 	 	Supplemental Indentures Without Consent of Holders 	 	 	61	 
	 
	 	Section 9.2.	 	 	 	Supplemental Indentures With Consent of Holders 	 	 	62	 
	 
	 	Section 9.3.	 	 	 	Execution of Supplemental Indentures 	 	 	64	 
	 
	 	Section 9.4.	 	 	 	Effect of Supplemental Indentures 	 	 	64	 
	 
	 	Section 9.5.	 	 	 	Conformity with Trust Indenture Act 	 	 	64	 
	 
	 	Section 9.6.	 	 	 	Reference in Securities to Supplemental Indentures 	 	 	64	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE X.	 	COVENANTS	 	 	 	 
	 
	 	Section 10.1.	 	 	 	Payment of Principal, Premium and Interest 	 	 	65	 
	 
	 	Section 10.2.	 	 	 	Maintenance of Office or Agency 	 	 	65	 
	 
	 	Section 10.3.	 	 	 	Money for Security Payments to be Held in Trust 	 	 	65	 
	 
	 	Section 10.4.	 	 	 	Statement as to Compliance 	 	 	67	 
	 
	 	Section 10.5.	 	 	 	Waiver of Certain Covenants 	 	 	67	 
	 
	 	Section 10.6.	 	 	 	Additional Sums 	 	 	67	 
	 
	 	Section 10.7.	 	 	 	Additional Covenants 	 	 	68	 
	 
	 	Section 10.8.	 	 	 	Federal Tax Reports 	 	 	69	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE XI.	 	REDEMPTION OF SECURITIES	 	 	 	 
	 
	 	Section 11.1.	 	 	 	Applicability of This Article 	 	 	69	 
	 
	 	Section 11.2.	 	 	 	Election to Redeem; Notice to Trustee 	 	 	69	 
	 
	 	Section 11.3.	 	 	 	Selection of Securities to be Redeemed 	 	 	70	 
	 
	 	Section 11.4.	 	 	 	Notice of Redemption 	 	 	70	 
	 
	 	Section 11.5.	 	 	 	Deposit of Redemption Price 	 	 	71	 
	 
	 	Section 11.6.	 	 	 	Payment of Securities Called for Redemption 	 	 	71	 
	 
	 	Section 11.7.	 	 	 	Right of Redemption of Securities Initially Issued to an Issuer Trust	 	 	72	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE XII.	 	SINKING FUNDS	 	 	 	 
	 
	 	 	 	 	 	Sinking Funds 	 	 	72	 






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	 	 	 	 	 	 	 	 	Page	 
	ARTICLE XIII.	 	SUBORDINATION OF SECURITIES	 	 	 	 
	 
	 	Section 13.1.	 	 	 	Securities Subordinate to Senior Indebtedness 	 	 	72	 
	 
	 	Section 13.2.	 	 	 	No Payment When Senior Indebtedness in Default; Payment Over of Proceeds Upon Dissolution, Etc	 	 	73	 
	 
	 	Section 13.3	 	 	 	Payment Permitted If No Default 	 	 	74	 
	 
	 	Section 13.4.	 	 	 	Subrogation to Rights of Holders of Senior Indebtedness 	 	 	74	 
	 
	 	Section 13.5.	 	 	 	Provisions Solely to Define Relative Rights 	 	 	75	 
	 
	 	Section 13.6.	 	 	 	Trustee to Effectuate Subordination 	 	 	75	 
	 
	 	Section 13.7.	 	 	 	No Waiver of Subordination Provisions 	 	 	75	 
	 
	 	Section 13.8.	 	 	 	Notice to Trustee 	 	 	76	 
	 
	 	Section 13.9.	 	 	 	Reliance on Judicial Order or Certificate of Liquidating Agent 	 	 	77	 
	 
	 	Section 13.10.	 	 	 	Trustee Not Fiduciary for Holders of Senior Indebtedness 	 	 	77	 
	 
	 	Section 13.11.	 	 	 	Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee’s Rights 	 	 	77	 
	 
	 	Section 13.12.	 	 	 	Article Applicable to Paying Agents 	 	 	77	 
	 
	 	Section 13.13.	 	 	 	Certain Conversions or Exchanges Deemed Payment 	 	 	77	 






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JUNIOR SUBORDINATED INDENTURE




     THIS JUNIOR SUBORDINATED INDENTURE, dated as of January 31, 2008
between M&T BANK CORPORATION, a New York corporation (the “Company”), having its principal office
at One M&T Plaza, Buffalo, New York 14203, and THE BANK OF NEW YORK, as Trustee, having its
principal office at 101 Barclay Street, Floor 8W, New York, NY 10286, (the “Trustee”).



RECITALS OF THE COMPANY




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



     WHEREAS, all things necessary to make this Indenture a valid and legally binding agreement of
the Company, in accordance with its terms, have been done.



     NOW THEREFORE, THIS INDENTURE WITNESSETH:



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



ARTICLE I




DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION




Section 1.1. Definitions.




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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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




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



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



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



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



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



     “Capital Treatment Event” means, in respect of any Issuer Trust, the reasonable determination
by the Company that, as a result of the occurrence of any amendment to, or change (including any
announced prospective change) in, the laws (or any rules or regulations thereunder) of the United
States or any political subdivision thereof or therein, or as a result of any official or
administrative pronouncement or action or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or such pronouncement, action or decision is
announced on or after the date of the issuance of the Capital Securities of such Issuer Trust,
there is more than an insubstantial risk that the Company will not be entitled to treat an amount
equal to the Liquidation Amount (as such term is defined in the related Trust Agreement) of such
Capital Securities as “Tier 1 Capital” (or the then equivalent thereof), for purposes of the
risk-based capital adequacy guidelines of the Board of Governors of the Federal Reserve System or
the New York Banking Department, as then in effect and applicable to the Company.



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



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



     “Common Stock” means the common stock, $0.50 par value per share, of the Company.



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



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



     “Corporate Trust Office” means the principal office of the Trustee at which at any time its
corporate trust business shall be administered, which office at the date hereof is located at 101
Barclay Street, Floor 8 West, New York, New York 10286, Attention: Corporate Trust Administration,
or such other address as the Trustee may designate from time to time by notice to the Holders and
the Company, or the principal corporate trust office of any successor Trustee (or such other
address as such successor trustee may designate from time to time by notice to the Holders and the
Company).



     “Creditor” has the meaning specified in Section 6.7.



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



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



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



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



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



     The term “entity” includes a bank, corporation, association, company, limited liability
company, joint–stock company or business trust.



4









 





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



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



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



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



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



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



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



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



     “Institutional Accredited Investor” means an institutional accredited investor within the
meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act.



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



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



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



5









 





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



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



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



     “Officers’ Certificate” means, with respect to any Person, a certificate signed by the
Chairman of the Board, Chief Executive Officer, President or a Vice President, and by the Chief
Financial Officer, Treasurer, an Associate Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of such Person, and delivered to the Trustee. Any Officers’ Certificate
delivered with respect to compliance with a condition or covenant provided for in this Indenture
shall include:



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



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



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



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



provided, however, that the Officers’ Certificate delivered pursuant to the provisions of
Section 10.4 hereof shall comply with the provisions of Section 314 of the Trust Indenture Act.



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



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



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



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



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



6









 





     (c) Securities in substitution for or in lieu of other Securities which have been
authenticated and delivered or that have been paid pursuant to Section 3.6, unless proof
satisfactory to the Trustee is presented that any such Securities are held by Holders in whose
hands such Securities are valid, binding and legal obligations of the Company;


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




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



     “Person” means any individual, partnership, trust, unincorporated organization or entity (as
defined herein) or government or any agency or political subdivision thereof.



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



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



     “Principal Subsidiary Bank” means each of (a) Manufacturers and Traders Trust Company, (b) any
other banking subsidiary of the Company the consolidated assets of which constitute 50% or more of
the consolidated assets of the Company and its consolidated



7









 




subsidiaries, (c) any other banking subsidiary designated as a Principal Subsidiary Bank pursuant
to a Board Resolution and set forth in an Officers’ Certificate delivered to the Trustee, and
(d) any subsidiary of the Company that owns, directly or indirectly, any voting securities, or
options, warrants or rights to subscribe for or purchase voting securities, of any Principal
Subsidiary Bank under clause (a), (b) or (c), and in the case of clause (a), (b), (c) or (d) their
respective successors (whether by consolidation, merger, conversion, transfer of substantially all
their assets and business or otherwise) so long as any such successor is a banking subsidiary (in
the case of clause (a), (b) or (c)) or a subsidiary (in the case of clause (d)) of the Company.




     “Proceeding” has the meaning specified in Section 13.2.



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



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



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



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



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



     “Restricted Security” means each Security required pursuant to Section 3.6(c) to bear a
Restricted Securities Legend.



     “Restricted Securities Certificate” means a certificate substantially in the form set forth in
Annex A.



     “Restricted Securities Legend” means a legend substantially in the form of the legend required
in the form of Security set forth in Section 2.2 to be placed upon a Restricted Security.



8









 





     “Rights Plan” means any plan of the Company providing for the issuance by the Company to all
holders of its Common Stock, $0.50 par value per share, of rights entitling the holders thereof to
subscribe for or purchase shares of any class or series of capital stock of the Company which
rights (a) are deemed to be transferred with such shares of such Common Stock, (b) are not
exercisable, and (c) are also issued in respect of future issuances of such Common Stock, in each
case until the occurrence of a specified event or events.



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



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



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



     “Senior Indebtedness” means, whether recourse is to all or a portion of the assets of the
Company and whether or not contingent, (a) every obligation of the Company for money borrowed;
(b) every obligation of the Company evidenced by bonds, debentures, notes or other similar
instruments, including obligations incurred in connection with the acquisition of property, assets
or businesses; (c) every reimbursement obligation of the Company with respect to letters of credit,
bankers’ acceptances or similar facilities issued for the account of the Company; (d) every
obligation of the Company issued or assumed as the deferred purchase price of property or services
(but excluding trade accounts payable or accrued liabilities arising in the ordinary course of
business); (e) every capital lease obligation of the Company; (f) every obligation of the Company
for claims (as defined in Section 101(4) of the United States Bankruptcy Code of 1978, as amended)
in respect of derivative products such as interest and foreign exchange rate contracts, commodity
contracts and similar arrangements; and (g) every obligation of the type referred to in clauses
(a) through (f) of another person and all dividends of another person the payment of which, in
either case, the Company has guaranteed or is responsible or liable, directly or indirectly, as
obligor or otherwise. Senior Indebtedness shall not include (a) any obligations which, by their
terms, are expressly stated to rank pari passu in right of payment with, or to not be superior in
right of payment to, the Junior Subordinated Debentures, (b) any Senior Indebtedness of the Company
which when incurred and without respect to any election under Section 1111(b) of the United States
Bankruptcy Code of 1978, as amended, was without recourse to the Company, (c) any Senior
Indebtedness of the Company to any of its subsidiaries, (d) Senior Indebtedness to any executive
officer or director of the Company, or (e) any indebtedness in respect of debt securities issued to
any trust, or a trustee of such trust, partnership or other entity affiliated with the Company that
is a financing entity of the Company in connection with the issuance of such financing entity of
securities that are similar to the Capital Securities.



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



9









 





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



     “Subsidiary” means an entity more than 50% of the outstanding voting stock of which is owned,
directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and
one or more other Subsidiaries. For purposes of this definition, “voting stock” means stock that
ordinarily has voting power for the election of directors, whether at all times or only so long as
no senior class of stock has such voting power by reason of any contingency.



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



     “Tax Event” means the receipt by the Issuer Trust (or, if the Securities are no longer held by
the Issuer Trust, by the Company) of an Opinion of Counsel experienced in such matters, to the
following effect, that as a result of any amendment to or change, including any announced
prospective change, in the laws or any regulations under the laws of the United States or any
political subdivision or taxing authority of or in the United States, if the amendment or change is
enacted, promulgated or announced on or after the date the Capital Securities are issued, or as a
result of any official administrative pronouncement, including any private letter ruling,
technical advice memorandum, field service advice, regulatory procedure, notice or announcement,
including any notice or announcement of intent to adopt any procedures or regulations, or any
judicial decision interpreting or applying such laws or regulations, whether or not the
pronouncement or decision is issued to or in connection with a proceeding involving the Depositor
or the Issuer Trust or is subject to review or appeal, if the pronouncement or decision is enacted,
promulgated or announced on or after the date of issuance of the Capital Securities, there is more
than an insubstantial risk that (a) the Issuer Trust is, or will be within 90 days of the delivery
of such Opinion of Counsel, subject to United States federal income tax with respect to income
received or accrued on the Securities, (b) interest payable by the Depositor on the Securities is
not, or within 90 days of the delivery of such Opinion of Counsel will not be, deductible by the
Depositor, in whole or in part, for United States federal income tax purposes, or (c) the Issuer
Trust is, or will be within 90 days of the delivery of such Opinion of Counsel, subject to more
than a de minimis amount of other taxes, duties or other governmental charges.



     “Trust Agreement” means, with respect to any Issuer Trust, the trust agreement or other
governing instrument of such Issuer Trust, as amended, modified or supplemented from time to time,
among the trustees of such Issuer Trust named therein, the Company, as depositor, and the holders
from time to time of undivided beneficial ownership interests in the assets of such Issuer Trust.



     “Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture,
solely in its capacity as such and not in its individual capacity, until a successor



10









 




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




     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended by the Trust Indenture
Reform Act of 1990, or any successor statute, in each case as amended from time to time, except as
provided in Section 9.5.



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



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



Section 1.2. Compliance Certificate and Opinions.




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



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



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



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



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



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



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Section 1.3. Forms of Documents Delivered to Trustee.




     (a) 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.



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



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



Section 1.4. Acts of Holders.




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



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



12









 





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



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



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



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



     The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in Section 5.2, (iii) any request to
institute proceedings referred to in Section 5.7(b), or (iv) any direction referred to in
Section 5.12, in each case with respect to Securities of such series. If any record date is set
pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record
date, and no other Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date, provided, however
that no such action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee



13









 




from setting a new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect) and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause
notice of such record date, the proposed action by Holders and the applicable Expiration Date to be
given to the Company in writing and to each Holder of Securities of the relevant series in the
manner set forth in Section 1.6.




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



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



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




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



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



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



14









 





Section 1.6. Notice to Holders; Waiver.




     Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first
class postage prepaid, to each Holder affected by such event, at the address of such Holder as it
appears in the Securities Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. If, by reason of the suspension of or
irregularities in regular mail services or for any other reason, it shall be impossible or
impracticable to mail notice of any event to Holders when said notice is required to be given
pursuant to any provision of this Indenture or of the relevant Securities, then any manner of
giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient
giving of such notice. In any case where notice to Holders is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such waiver.



Section 1.7. Conflict with Trust Indenture Act.




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



Section 1.8. Effect of Headings and Table of Contents.




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



Section 1.9. Successors and Assigns.




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



Section 1.10. Separability Clause.




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



15









 





Section 1.11. Benefits of Indenture.




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



Section 1.12. Governing Law.




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



Section 1.13. Non–Business Days.




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



Section 1.14. Waiver of Jury Trial.



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



Section 1.15. Force Majeure.



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



16









 





ARTICLE II




SECURITY FORMS




Section 2.1. Generally.




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



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



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



Section 2.2. Form of Face of Security.




M&T BANK CORPORATION




Junior Subordinated Deferrable Interest Debentures due [       ] [  ], [     ]




     [If the Security is a Restricted Security, insert – THE SECURITIES EVIDENCED HEREBY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND MAY NOT BE
OFFERED, SOLD, PLEDGED



17









 




OR OTHERWISE TRANSFERRED EXCEPT (A) BY ANY INITIAL INVESTOR THAT IS NOT A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT, (I) TO A PERSON WHO THE TRANSFEROR
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(II) IN AN OFFSHORE TRANSACTION COMPLYING WITH THE PROVISIONS OF RULE 903 OR RULE 904 OF REGULATION
S UNDER THE SECURITIES ACT, OR (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (B) BY AN INITIAL INVESTOR THAT
IS A QUALIFIED INSTITUTIONAL BUYER OR BY ANY SUBSEQUENT INVESTOR, AS SET FORTH IN (A) ABOVE AND, IN
ADDITION, TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, AND, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF THE STATES AND OTHER JURISDICTIONS OF THE UNITED STATES. THE HOLDER OF THIS SECURITY
AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS. SECURITIES OWNED BY AN INITIAL
INVESTOR THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER MAY NOT BE HELD IN GLOBAL FORM AND MAY NOT BE
TRANSFERRED WITHOUT CERTIFICATION THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS, AS
PROVIDED IN THE INDENTURE REFERRED TO BELOW. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY
OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALES OF THE SECURITIES.]




			
	 
	No.
	 	$[          ]






     M&T Bank Corporation, a New York corporation (hereinafter called the “Company”, which term
includes any successor Person under the Indenture hereinafter referred to), for value received,
hereby promises to pay to M&T Capital Trust [IV] [V] [VI], or registered assigns, the principal sum
of [          ] Dollars on [       ] [  ], [     ], [if the Security is a Global Security, then if
applicable, insert – or such other principal amount represented hereby as may be set forth in the
records of the Securities Registrar hereinafter referred to in accordance with the Indenture,] [if
applicable, insert – provided (a) that the Company may shorten the Stated Maturity of the principal
of this Security [one time] [one more times] as permitted under the Indenture to a date not earlier
than [       ] [  ], [     ], and (b) extend the Stated Maturity of the principal of this Security at
any time on one or more occasions, subject to certain conditions specified in Section 3.15 of the
Indenture, but in no event to a date later than [       ] [  ], [     ].] The Company further
promises to pay interest on said principal from [       ] [  ], [     ], or from the most recent
Interest Payment Date to which interest has been paid or duly provided for, [monthly] [quarterly]
[semi–annually] [if applicable, insert – (subject to deferral as set forth herein)] in arrears on
[insert applicable Payment Dates] of each year commencing [       ] [  ], [     ] at the rate of [          
]% per annum, [if applicable, insert – together with Additional Sums, if any, as provided in
Section 10.6 of the Indenture,] until the principal hereof is paid or duly provided for or made
available for payment; [if applicable, insert – provided that any overdue principal, premium or
Additional Sums and any overdue installment of interest shall bear Additional Interest at the rate
of [     ]% per annum (to the extent that the payment of such interest shall be legally enforceable),



18









 




compounded [monthly] [quarterly] [semi–annually] from the dates such amounts are due until they are
paid or made available for payment, and such interest shall be payable on demand.] The amount of
interest payable for any period less than a full interest period shall be computed on the basis of
a 360–day year of twelve 30–day months and the actual days elapsed in a partial month in such
period. The amount of interest payable for any full interest period shall be computed by dividing
the applicable rate per annum by [twelve/four/two]. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to
the Person in whose name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest installment, [if applicable,
insert – which shall be the [insert record dates] (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date.] Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.




     [If applicable, insert – So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time during the term of this Security, from time to time to
defer the payment of interest on this Security for up to [ ] consecutive [monthly] [quarterly]
[semi–annual] interest payment periods with respect to each deferral period (each an “Extension
Period”), [if applicable, insert – during which Extension Periods the Company shall have the right
to make partial payments of interest on any Interest Payment Date, and] at the end of which the
Company shall pay all interest then accrued and unpaid including Additional Interest, as provided
below; provided however, that no Extension Period shall extend beyond the Stated Maturity of the
principal of this Security, [If Stated Maturity can be shortened or extended, insert – as then in
effect,] and no such Extension Period may end on a date other than an Interest Payment Date; and
provided further, however, that during any such Extension Period, the Company shall not (a) declare
or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of the Company’s capital stock, or (b) make any payment of principal
of or interest or premium, if any, on or repay, repurchase or redeem any debt securities of the
Company that rank pari passu in all respects with or junior in interest to this Security, (other
than (i) repurchases, redemptions or other acquisitions of shares of capital stock of the Company
in connection with any employment contract, benefit plan or other similar arrangement with or for
the benefit of any one or more employees, officers, directors or consultants, in connection with a
dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of
capital stock of the Company (or securities convertible into or exercisable for such capital stock)
as consideration in an acquisition transaction entered into prior to the applicable Extension
Period, (ii) as a result of an exchange or conversion of any class or series of the Company’s
capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the
Company’s capital stock or of any class or series of the Company’s indebtedness for any class or
series of the Company’s capital stock,



19









 





(iii) the purchase of fractional interests in shares of the Company’s capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being converted or
exchanged, (iv) any declaration of a dividend in connection with any Rights Plan, or the issuance
of rights, stock or other property under any Rights Plan, or the redemption or repurchase of rights
pursuant thereto, or (v) any dividend in the form of stock, warrants, options or other rights where
the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is
the same stock as that on which the dividend is being paid or ranks pari passu with or junior to
such stock). Prior to the termination of any such Extension Period, the Company may further defer
the payment of interest, provided that no Extension Period shall exceed [ ] consecutive [monthly]
[quarterly] [semi–annual] interest payment periods, extend beyond the Stated Maturity of the
principal of this Security or end on a date other than an Interest Payment Date. Upon the
termination of any such Extension Period and upon the payment of all accrued and unpaid interest
and any Additional Interest then due on any Interest Payment Date, the Company may elect to begin a
new Extension Period, subject to the above conditions. No interest shall be due and payable during
an Extension Period, except at the end thereof, but each installment of interest that would
otherwise have been due and payable during such Extension Period shall bear Additional Interest (to
the extent that the payment of such interest shall be legally enforceable) at the rate of [ ]%
per annum, compounded [monthly] [quarterly] [semi–annual] and calculated as set forth in the first
paragraph of this Security, from the date on which such amounts would otherwise have been due and
payable until paid or made available for payment. The Company shall give the Holder of this
Security and the Trustee notice of its election to begin any Extension Period at least one Business
Day prior to the next succeeding Interest Payment Date on which interest on this Security would be
payable but for such deferral [if applicable, insert – or so long as such securities are held by
M&T Capital Trust [IV] [V] [VI], at least one Business Day prior to the earlier of (a) the next
succeeding date on which Distributions on the Capital Securities of such Issuer Trust would be
payable but for such deferral, and (b) the date on which the Property Trustee of such Issuer Trust
is required to give notice to holders of such Capital Securities of the record date or the date
such Distributions are payable, but in any event not less than one Business Day prior to such
record date.]



     Payment of the principal of (and premium, if any) and interest on this Security will be made
at the office or agency of the Company maintained for that purpose in the United States, in such
coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts; [if applicable, insert – provided however, that at the option
of the Company payment of interest may be made (a) by check mailed to the address of the Person
entitled thereto as such address shall appear in the Securities Register, or (b) if to a Holder of
$1,000,000 or more in aggregate principal amount of this Security, by wire transfer in immediately
available funds upon written request to the Trustee not later than 15 calendar days prior to the
date on which the interest is payable.]



     The indebtedness evidenced by this Security is, to the extent provided in the Indenture,
subordinate and subject in right of payments to the prior payment in full of all Senior
Indebtedness, and this Security is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his or her behalf to take such actions
as may be necessary or appropriate to effectuate the subordination so provided, and (c) appoints
the




20











 




Trustee his or her attorney–in–fact for any and all such purposes. Each Holder hereof, by his or
her acceptance hereof, waives all notice of the acceptance of the subordination provisions
contained herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon said provisions.




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



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



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



	 	 	 	 	 	 	 
	 	 	M&T BANK CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:	 	 

	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





	 	 	 
	Attest:
	 	 
	
 


	 	 
	Secretary or Assistant Secretary
	 	 






Section 2.3. Form of Reverse of Security.




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



     All terms used in this Security that are defined in the Indenture [if applicable, insert – or
if not defined in the Indenture in the [Name of Trust Agreement] dated as of [ ] [ ], [ ]
(as modified, amended or supplemented from time to time the “Trust Agreement”), relating to M&T
Capital Trust [IV] [V] [VI] (the “Issuer Trust”) among the Company, as Depositor, the Trustees



21









 




named therein and the Holders from time to time of the Trust Securities issued pursuant thereto]
shall have the meanings assigned to them in the Indenture [if applicable, insert – or the Trust
Agreement, as the case may be.]




     [If applicable, insert – The Company has the right to redeem this Security (a) on or after [
] [ ], [ ] in whole at any time or in part from time to time, or (b) in whole (but not in
part), at any time within 90 days following the occurrence and during the continuation of a Tax
Event, Investment Company Event, or Capital Treatment Event, in each case at the Redemption Price
described in the next succeeding [three] paragraph[s], and subject to possible regulatory
approval.]



     [If applicable, insert – The Redemption Price shall equal 100% of the principal amount hereof
being redeemed, together with accrued interest to but excluding the date fixed for redemption.]



     [If applicable, insert – In the case of a redemption on or after [ ] [ ], [ ] the
Redemption Price shall equal the following prices, expressed in percentages of the principal amount
hereof, together with accrued interest to but excluding the date fixed for redemption, if redeemed
during the 12–month period beginning [ ] [ ], [ ]:



	 	 	 
	Year

	 	Redemption


Price
	 

	 	 




and 100% on or after [ ] [ ], [ ].




     In the case of a redemption on or after [ ] [ ], [ ] following a Tax Event,
Investment Company Event or Capital Treatment Event, the Redemption Price shall equal the
Redemption Price then applicable to a redemption under the preceding paragraph.



     In the case of a redemption prior to [ ] [ ], [ ] following a Tax Event, Investment
Company Event or Capital Treatment Event in respect of the Issuer Trust, the Redemption Price shall
equal the Make–Whole Amount for a corresponding $[ ] principal amount hereof, together
with accrued interest to but excluding the date fixed for redemption, which Make–Whole Amount will
be equal to the greater of (i) 100% of the principal amount hereof, and (ii) as determined by a
Quotation Agent (as defined in the Trust Agreement), the sum of the present value of 100% of the
principal amount that would be payable with respect hereto on [ ] [ ], [ ], together with
the present values of scheduled payments of interest from the date fixed for redemption to [ ]
[ ], [ ], in each case discounted to the date fixed for redemption on a [monthly] [quarterly]
[semi–annual] basis (assuming a 360–day year consisting of 30–day months) at the Adjusted Treasury
Rate (as defined in the Trust Agreement).]



     [If the Security is subject to redemption of any kind, insert – In the event of redemption of
this Security in part only, a new Security or Securities of this series for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]



22









 





     [If applicable, insert – The Indenture contains provisions for defeasance at any time [of the
entire indebtedness of this Security] [or] [certain restrictive covenants and Events of Default
with respect to this Security] [, in each case] upon compliance by the Company with certain
conditions set forth in the Indenture.]



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



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



     [If the Security is a Discount Security, insert – As provided in and subject to the provisions
of the Indenture, if an Event of Default with respect to the Securities of this series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Outstanding Securities of this series may
declare an amount of principal of the Securities of this series to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if given by Holders), provided that, if
upon an Event of Default, the Trustee or such Holders fail to declare such principal amount of the
Outstanding Securities of this series to be immediately due and payable, the Holders of at least
25% in aggregate Liquidation Amount of the Capital Securities then outstanding shall have the right
to make such declaration by a notice in writing to the Company and the Trustee. The principal
amount payable upon such acceleration shall be equal to [insert



23









 




formula for determining the amount]. Upon any such declaration, such amount of the principal of
and the accrued interest (including any Additional Interest) on all the Securities of this series
shall become immediately due and payable, provided that the payment of such principal and interest
(including any Additional Interest) on all the Securities of this series shall remain subordinated
to the extent provided in Article XIII of the Indenture. Upon payment (a) of the amount of
principal so declared due and payable and (b) of interest on any overdue principal, premium and
interest (in each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company’s obligations in respect of the payment of the principal of and
premium and interest, if any, on this Security shall terminate.]




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



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



     The Securities of this series are issuable only in registered form without coupons in
denominations of $[ ] and integral multiple of $[ ] in excess thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering the same.



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



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



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



24









 





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



     THIS SECURITY IS A DIRECT AND UNSECURED OBLIGATION OF THE COMPANY, DOES NOT EVIDENCE DEPOSITS
AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER INSURER OR GOVERNMENT
AGENCY.



Section 2.4. Additional Provisions Required in Global Security.





     Unless otherwise specified as contemplated by Section 3.1, any Global Security issued
hereunder shall, in addition to the provisions contained in Sections 2.2 and 2.3, bear a legend in
substantially the following form:



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



Section 2.5. Form of Trustee’s Certificate of Authentication.




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



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



	 	 	 	 	 	 	 
	
     Dated:

	 	 	 	 	 	
[            
    ],
	 

	 

	 	 
	 	as Trustee






	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	Authorized Signatory

	 	 






25









 






ARTICLE III




THE SECURITIES




Section 3.1 Title and Terms.




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



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




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




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




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




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




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



26









 






     (vi) the place or places where the principal of (and premium, if any) and interest or
Additional Interest on the Securities of such series shall be payable, the place or places
where the Securities of such series may be presented for registration of transfer or
exchange, any restrictions that may be applicable to any such transfer or exchange in
addition to or in lieu of those set forth herein and the place or places where notices and
demands to or upon the Company in respect of the Securities of such series may be made;




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




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




     (ix) the denominations in which any Securities of such series shall be issuable;




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




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




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




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



27









 






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




     (xv) the additions or changes, if any, to this Indenture with respect to the Securities
of such series as shall be necessary to permit or facilitate the issuance of the Securities
of such series in bearer form, registrable or not registrable as to principal, and with or
without interest coupons;




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




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




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




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




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




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




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




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



28









 






     (xiv) any other terms of the Securities of such series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by Section 9.1(6)).



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



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



     (e) Payment of interest on the Securities of a series may be made (i) by check mailed to the
address of the Person entitled thereto as such address shall appear in the Security Register of
(ii) if to a Holder of $1,000,000 or more in aggregate principal amount of any such Security by
wire transfer in immediately available funds at such place and to such account as may be designated
by the Person entitled thereto as specified in the Security Register.



     (f) The securities shall be subordinated in right of payment to Senior Indebtedness as
provided in Article XIII.



Section 3.2. Denominations.




     The Securities of each series shall be in registered form without coupons and shall be
issuable in denominations specified as contemplated by Section 3.1(b)(ix).



Section 3.3. Execution, Authentication, Delivery and Dating.




     (a) The Securities shall be executed on behalf of the Company by its Chairman of the Board,
its Vice Chairman of the Board, its President or one of its Vice Presidents, and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.



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



29









 




the Trustee shall be provided with, and (subject to Section 6.1) shall be fully protected in
relying upon, an Opinion of Counsel stating:





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




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




     (iii) 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, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles.



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



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



     (e) Each Security shall be dated the date of its authentication.



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



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Section 3.4. Temporary Securities.




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



     (b) If temporary Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for definitive Securities
upon surrender of the temporary Securities at the office or agency of the Company designated for
that purpose without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor one or more definitive securities of the same series, of any authorized
denominations having the same Original Issue Date and Stated Maturity and having the same terms as
such temporary Securities. Until so exchanged, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive Securities of such
series.



Section 3.5. Global Securities.




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



     (b) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged
in whole or in part for Securities registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (i) such Depositary advises the Trustee in writing that such
Depositary is no longer willing or able to properly discharge its responsibilities as Depositary
with respect to such Global Security, and the Company is unable to locate a qualified successor
within 90 days of receipt of such notice from the Depositary, (ii) the Company executes and
delivers to the Trustee a Company Order stating that the Company elects to terminate the book–entry
system through the Depositary, or (iii) there shall have occurred and be continuing an Event of
Default.



     (c) If any Global Security is to be exchanged for other Securities or cancelled in whole, it
shall be surrendered by or on behalf of the Depositary or its nominee to the Securities Registrar
for exchange or cancellation as provided in this Article III. If any Global Security is to be
exchanged for other Securities or cancelled in part, or if another Security is to be exchanged in
whole or in part for a beneficial interest in any Global Security, then either (i) such Global
Security shall be so surrendered for exchange or cancellation as provided in this Article III or



31









 




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




     (d) Every Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this
Article III, Section 9.6 or 11.6 or otherwise, shall be authenticated and delivered in the form of,
and shall be, a Global Security, unless such Security is registered in the name of a Person other
than the Depositary for such Global Security or a nominee thereof.



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



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




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





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



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



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



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



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



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



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



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




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



33









 






provided in Section 3.6(a) and increase the aggregate principal amount of the Global
Security by the specified principal amount as provided in Section 3.5(c).




     (ii) Non–Global Security to Non–Global Security. A Security that is not a Global
Security may be transferred, in whole or in part, to a Person who takes delivery in the form
of another Security that is not a Global Security as provided in Section 3.6(a), provided
that if the Security to be transferred in whole or in part is a Restricted Security, the
Securities Registrar shall have received a Restricted Securities Certificate duly executed
by the transferor Holder or such Holder’s attorney duly authorized in writing.




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




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



     (c) Restricted Securities Legend. Except as set forth below, all Securities shall bear a
Restricted Securities Legend:




     (i) subject to the following clauses of this Section 3.6(c), a Security or any portion
thereof that is exchanged, upon transfer or otherwise, for a Global Security or any portion
thereof shall bear the Restricted Securities Legend while represented thereby;




     (ii) subject to the following clauses of this Section 3.6(c), a new Security which is
not a Global Security and is issued in exchange for another Security (including a Global
Security) or any portion thereof, upon transfer or otherwise, shall, if such new Security is
required pursuant to Section 3.6(b)(ii) or (iii) to be issued in the form of a Restricted
Security, bear a Restricted Securities Legend;




     (iii) a new Security (other than a Global Security) that does not bear a Restricted
Security Legend may be issued in exchange for or in lieu of a Restricted Security or any
portion thereof that bears such a legend if, in the Company’s judgment, placing such a
legend upon such new Security is not necessary to ensure compliance with the registration
requirements of the Securities Act, and the Trustee, at the written direction of the Company
in the form of an Officer’s Certificate, shall authenticate and deliver such a new Security
as provided in this Article III;




     (iv) notwithstanding the foregoing provisions of this Section 3.6(c), a Successor
Security of a Security that does not bear a Restricted Securities Legend shall not bear such
form of legend unless the Company has reasonable cause to believe that



34









 






such Successor Security is a “restricted security” within the meaning of Rule 144, in which
case the Trustee, at the written direction of the Company in the form of an Officer’s
Certificate, shall authenticate and deliver a new Security bearing a Restricted Securities
Legend in exchange for such Successor Security as provided in this Article III; and




     (v) Securities distributed to a holder of Capital Securities upon dissolution of an
Issuer Trust shall bear a Restricted Securities Legend if the Capital Securities so held
bear a similar legend.



Section 3.7. Mutilated, Lost and Stolen Securities.




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



     (b) If there shall be delivered to the Company and to the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security, and (ii) such security or indemnity
as may be required by them to save each of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide purchaser or a protected
purchaser, the Company shall execute and upon its request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series,
of like tenor and aggregate principal amount and bearing the same legends as such destroyed, lost
or stolen Security, and bearing a number not contemporaneously outstanding.



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



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



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



     (f) 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.



35









 





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




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



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




     (i) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities of such series in respect of which interest is in default (or
their respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of the proposed
payment, and which shall be fixed at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon, the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest, which shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first class, postage prepaid, to each Holder of a Security of such
series at the address of such Holder as it appears in the Securities Register not less than
10 days prior to such Special Record Date. The Trustee may, in its discretion, in the name
and at the expense of the Company, cause a similar notice to be published at least once in a
newspaper, customarily published in the English language on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, but such publication shall
not be a condition precedent to the establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest



36









 






shall be paid to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered on such Special Record Date and shall no
longer be payable pursuant to the following clause (ii).




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



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



Section 3.9. Persons Deemed Owners.




     (a) The Company, the Trustee and any agent of the Company or the Trustee shall treat the
Person in whose name any Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and (subject to Section 3.8) any interest on such Security and
for all other purposes whatsoever, whether or not such Security be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be affected by notice to the
contrary.



     (b) 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 the rights of the Depositary (or its
nominee) as Holder of any Security.



Section 3.10. Cancellation.




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



37









 




canceled Securities shall be disposed of by the Trustee in its customary manner and the Trustee
shall deliver to the Company a certificate of such disposal upon its request therefor.




Section 3.11. Computation of Interest.




     Except as otherwise specified as contemplated by Section 3.1 herein, for Securities of any
series, interest on the Securities of each series for any period shall be computed on the basis of
a 360–day year of twelve 30–day months and the actual number of days elapsed in any partial month
in such period, and interest on the Securities of each series for a full period shall be computed
by dividing the rate per annum by the number of interest periods that together constitute a full
twelve months.



Section 3.12. Deferrals of Interest Payment Dates.




     (a) If specified as contemplated by Section 2.1 or Section 3.1 with respect to the Securities
of a particular series, so long as no Event of Default has occurred and is continuing, the Company
shall have the right, at any time during the term of such series, from time to time to defer the
payment of interest on such Securities for such period or periods (each an “Extension Period”) not
to exceed the number of consecutive interest periods that equal five years with respect to each
Extension Period, during which Extension Periods the Company shall, if so specified as contemplated
by Section 3.1, have the right to make partial payments of interest on any Interest Payment Date.
No Extension Period shall end on a date other than an Interest Payment Date. At the end of any
such Extension Period, the Company shall pay all interest then accrued and unpaid on the Securities
(together with Additional Interest thereon, if any, at the rate specified for the Securities of
such series to the extent permitted by applicable law); provided, however, that no Extension Period
shall extend beyond the Stated Maturity of the principal of the Securities of such series; and
provided further, however, that, during any such Extension Period, the Company shall not (i)
declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company’s capital stock, or (ii) make any payment
of principal of or interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company that rank pari passu in all respects with or junior in interest to the
Securities of such series, (other than (A) repurchases, redemptions or other acquisitions of shares
of capital stock of the Company in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more employees, officers, directors or
consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in
connection with the issuance of capital stock of the Company (or securities convertible into or
exercisable for such capital stock) as consideration in an acquisition transaction entered into
prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class
or series of the Company’s capital stock (or any capital stock of a Subsidiary of the Company) for
any class or series of the Company’s capital stock or of any class or series of the Company’s
indebtedness for any class or series of the Company’s capital stock, (C) the purchase of fractional
interests in shares of the Company’s capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged, (D) any declaration
of a dividend in connection with any Rights Plan, or the issuance of rights, stock or other
property under any Rights Plan, or the redemption or repurchase of rights pursuant thereto, or (E)
any dividend in the form of stock, warrants, options



38









 




or other rights where the dividend stock or the stock issuable upon exercise of such warrants,
options or other rights is the same stock as that on which the dividend is being paid or ranks pari
passu with or junior to such stock). Prior to the termination of any such Extension Period, the
Company may further defer the payment of interest, provided that no Event of Default has occurred
and is continuing and provided further, that no Extension Period shall exceed the period or periods
specified in such Securities, extend beyond the Stated Maturity of the principal of such Securities
or end on a date other than an Interest Payment Date. Upon the termination of any such Extension
Period and upon the payment of all accrued and unpaid interest and any Additional Interest then due
on any Interest Payment Date, the Company may elect to begin a new Extension Period, subject to the
above conditions. No deferred interest or Additional Interest shall be due and payable during an
Extension Period, except at the end thereof, but each installment of interest that would otherwise
have been due and payable during such Extension Period shall bear Additional Interest as and to the
extent as may be specified as contemplated by Section 3.1. The Company shall give the Holders of
the Securities of such series and the Trustee notice of its election to begin any such Extension
Period at least one Business Day prior to the next succeeding Interest Payment Date on which
interest on Securities of such series would be payable but for such deferral or, with respect to
any Securities of a series issued to an Issuer Trust, so long as any such Securities are held by
such Issuer Trust, at least one Business Day prior to the earlier of (x) the next succeeding date
on which Distributions (as defined in the Trust Agreement) on the Capital Securities of such Issuer
Trust would be payable but for such deferral, and (y) the date on which the Property Trustee of
such Issuer Trust is required to give notice to holders of such Capital Securities of the record
date or the date such Distributions are payable, but in any event not less than one Business Day
prior to such record date.




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



Section 3.13. Right of Set–Off.




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



Section 3.14. Agreed Tax Treatment.




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




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Section 3.15 Shortening or Extending of Stated Maturity.




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



Section 3.16. CUSIP Numbers.




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



ARTICLE IV




SATISFACTION AND DISCHARGE




Section 4.1. Satisfaction and Discharge of Indenture.




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



     (a) either




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




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



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     (A) have become due and payable,




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




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


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




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



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



Section 4.2. Application of Trust Money.




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



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ARTICLE V




REMEDIES




Section 5.1. Events of Default.




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



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



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



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



     (d) the occurrence of the appointment of a receiver or other similar official in any
liquidation, insolvency or similar proceeding with respect to the Company or all or substantially
all of its property; or a court or other governmental agency shall enter a decree or order
appointing a receiver or similar official and such decree or order shall remain unstayed and
undischarged for a period of 60 days; or



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



Section 5.2. Acceleration of Maturity; Rescission and Annulment.




     (a) If an Event of Default (other than an Event of Default specified in Section 5.1(d)) with
respect to Securities of any series at the time Outstanding occurs and is continuing, then, and in
every such case, the Trustee or the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities of that series may declare the principal amount (or, if the Securities
of that series are Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of all the Securities of that series to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if given by Holders), provided, however
that, in the case of the Securities of a series issued to an Issuer Trust, if, upon an Event of
Default, the Trustee or the Holders of not less than 25% in principal amount of the



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Outstanding Securities of such series fail to declare the principal of all the Outstanding
Securities of such series to be immediately due and payable, the holders of at least 25% in
aggregate Liquidation Amount (as defined in the related Trust Agreement) of the related series of
Capital Securities issued by such Issuer Trust then outstanding shall have the right to make such
declaration by a notice in writing to the Company and the Trustee; and upon any such declaration
such principal amount (or specified portion thereof) of and the accrued interest (including any
Additional Interest) on all the Securities of such series shall become immediately due and payable.
If an Event of Default specified in Section 5.1(d) with respect to Securities of any series at the
time Outstanding occurs, the principal amount of all the Securities of such series (or, if the
Securities of such series are Discount Securities, such portion of the principal amount of such
Securities as may be specified by the terms of that series) shall automatically, and without any
declaration or other action on the part of the Trustee or any Holder, become immediately due and
payable. Payment of principal and interest (including any Additional Interest) on such Securities
shall remain subordinated to the extent provided in Article XIII notwithstanding that such amount
shall become immediately due and payable as herein provided.




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




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




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




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




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




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




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



     (c) In the case of Securities of a series initially issued to an Issuer Trust, if the Holders
of such Securities fail to annul such declaration and waive such default, the holders of a majority
in aggregate Liquidation Amount (as defined in the related Trust Agreement) of the related series
of Capital Securities issued by such Issuer Trust then outstanding shall also have the right to
rescind and annul such declaration and its consequences by written notice to the



43









 




Company and the Trustee, subject to the satisfaction of the conditions set forth in clauses (a) and
(b) above of this Section 5.2.




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



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




     (a) The Company covenants that if:




     (i) default is made in the payment of any installment of interest (including any
Additional 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 of the principal of (and premium, if any, on) any
Security at the Stated Maturity thereof,


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




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



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



Section 5.4. Trustee May File Proofs of Claim.




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



     (a) the Trustee (irrespective of whether the principal of the Securities of any series shall
then be due and payable as therein expressed or by declaration or otherwise and irrespective



44









 




of whether the Trustee shall have made any demand on the Company for the payment of overdue
principal (and premium, if any) or interest (including any Additional Interest)) shall be entitled
and empowered, by intervention in such proceeding or otherwise:





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




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



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



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



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




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



Section 5.6. Application of Money Collected.




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



45









 




of the Securities and the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:




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



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



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



Section 5.7. Limitation on Suits.




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



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



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



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



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



     (e) no direction inconsistent with such written request has been given to the Trustee during
such 60—day period by the Holders of a majority in aggregate principal amount of the Outstanding
Securities of that series; it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing itself of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other Holders of Securities, or
to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.



46









 






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





     Notwithstanding any other provision in this Indenture, the Holder of any Security of any
series shall have the right, which is absolute and unconditional, to receive payment of the
principal of (and premium, if any) and (subject to Sections 3.8 and 3.12) interest (including any
Additional Interest) on such Security on the respective Stated Maturities expressed in such
Security (or in the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired without the consent of such
Holder. In the case of Securities of a series issued to an Issuer Trust, any registered holder of
the series of Capital Securities issued by such Issuer Trust shall have the right, upon the
occurrence of an Event of Default described in Section 5.1(a) or 5.1(b), to institute a suit
directly against the Company for enforcement of payment to such holder of principal of (premium, if
any) and (subject to Sections 3.8 and 3.12) interest (including any Additional Interest) on the
Securities having a principal amount equal to the aggregate Liquidation Amount (as defined in the
related Trust Agreement) of such Capital Securities held by such holder.



Section 5.9. Restoration of Rights and Remedies.




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



Section 5.10. Rights and Remedies Cumulative.




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



Section 5.11. Delay or Omission Not Waiver.




     (a) No delay or omission of the Trustee, any Holder of any Security with respect to the
Securities of the related series or any holder of any Capital Security to exercise any right or
remedy accruing upon any Event of Default with respect to the Securities of the related series
shall impair any such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein.



47









 





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



Section 5.12. Control by Holders.




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



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



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



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



Section 5.13. Waiver of Past Defaults.




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




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




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



     (b) 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 waiver by holders of Capital Securities issued by such Issuer Trust,
by all holders of Capital Securities issued by such Issuer Trust.



48









 





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



Section 5.14. Undertaking for Costs.




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



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




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



ARTICLE VI




THE TRUSTEE




Section 6.1. Certain Duties and Responsibilities.




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




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



49









 






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



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



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




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




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




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



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



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



Section 6.2. Notice of Defaults.




     Within 90 days after actual knowledge by a Responsible Officer of the Trustee of the
occurrence of any default hereunder with respect to the Securities of any series, the Trustee shall
transmit by mail to all Holders of Securities of such series, as their names and addresses appear



50









 




in the Securities Register, notice of such default, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment of the principal of
(or premium, if any) or interest (including any Additional Interest) on any Security of such
series, the Trustee shall be protected in withholding such notice if a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of Securities of such series; and provided further, that,
in the case of any default of the character specified in Section 5.1(c), no such notice to Holders
of Securities of such series shall be given until at least 30 days after the occurrence thereof.
For the purpose of this Section, the term “default” means any event that is, or after notice or
lapse of time or both would become, an Event of Default with respect to Securities of such series.




Section 6.3. Certain Rights of Trustee.




     Subject to the provisions of Section 6.1:



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



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



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



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



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



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



51









 





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



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



     (i) 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



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



Section 6.4. Responsible for Recitals or Issuance of Securities.




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



Section 6.5. May Hold Securities.




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



Section 6.6. Money Held in Trust.




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



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Section 6.7. Compensation and Reimbursement.




     (a) The Company agrees to pay to the Trustee from time to time reasonable compensation for all
services rendered by it hereunder in such amounts as the Company and the Trustee shall agree from
time to time (which compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust).



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



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



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



     (e) When the Trustee incurs expenses or renders services after an Event of Default specified
in Section 5.1(d) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under the Bankruptcy Reform Act of 1978 or any successor
statute.



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Section 6.8. Disqualification; Conflicting Interests.




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



Section 6.9. Corporate Trustee Required; Eligibility.




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



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



     (b) an entity organized and doing business under the laws of a foreign government that is
permitted to act as Trustee pursuant to a rule, regulation or order of the Commission, authorized
under such laws to exercise corporate trust powers, and subject to supervision or examination by
authority of such foreign government or a political subdivision thereof substantially equivalent to
supervision or examination applicable to United States institutional trustees; in either case
having a combined capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority. If such entity publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then, for the purposes of this Section, the combined capital and surplus of such entity
shall be deemed to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article. Neither the Company nor any Person directly or indirectly
controlling, controlled by or under common control with the Company shall serve as Trustee for the
Securities of any series issued hereunder.



Section 6.10. Resignation and Removal; Appointment of Successor.




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



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



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



     (d) If at any time:




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




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




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


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




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



     (f) The Company shall give notice of each resignation and each removal of the Trustee with
respect to the Securities of any series and each appointment of a successor Trustee



55









 




with respect to the Securities of any series by mailing written notice of such event by
first—class mail, postage prepaid, to the Holders of Securities of such series as their names and
addresses appear in the Securities Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its Corporate Trust
Office.




Section 6.11. Acceptance of Appointment by Successor.




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



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



56









 





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



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



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




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



Section 6.13. Preferential Collection of Claims Against Company.




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



Section 6.14. Appointment of Authenticating Agent.




     (a) The Trustee may appoint an Authenticating Agent or Agents with respect to one or more
series of Securities, which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue and upon exchange, registration of transfer or
partial redemption thereof or pursuant to Section 3.6, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be an entity organized and doing business under the laws of the
United States of America, or of any state or territory thereof or of the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or examination by federal or state authority.
If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or
to the requirements of said supervising or



57









 




examining authority, then for the purposes of this Section the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time an Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.




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



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



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



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



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



	 	 	 	 	 	 	 
	Dated:

	 	 	 	[
	 	],
	 	 	 	 	as Trustee
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 	 	 	 	As Authenticating Agent
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 	 	 	 	As Authenticating Agent






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ARTICLE VII




HOLDERS LISTS AND REPORTS BY TRUSTEE,

PAYING AGENT AND COMPANY




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




     The Company will furnish or cause to be furnished to the Trustee:



     (a) not less than one day nor more than 15 days prior to every Interest Payment Date, a list,
in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of
such dates, excluding from any such list names and addresses received by the Trustee in its
capacity as Securities Registrar, and



     (b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished, excluding from any such list names and
addresses received by the Trustee in its capacity as Securities Registrar.



Section 7.2. Preservation of Information, Communications to Holders.




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



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



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



Section 7.3. Reports by Trustee and Paying Agent.




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




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     (b) Reports so required to be transmitted at stated intervals of not more than 12 months shall
be transmitted within 60 days of January 31 in each calendar year, commencing with the January 31
after the first issuance of Securities under this Indenture.



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



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


Section 7.4. Reports by Company.




     The Company shall file or cause to be filed with the Trustee and with the Commission, and
transmit to Holders, such information, documents and other reports, and such summaries thereof, as
may be required pursuant to the Trust Indenture Act at the times and in the manner provided in the
Trust Indenture Act. In the case of information, documents or reports required to be filed with
the Commission pursuant to Section 13(a) or Section 15(d) of the Exchange Act, the Company shall
file or cause the filing of such information documents or reports with the Trustee within 15 days
after the same are required to be filed with the Commission.



     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 VIII




CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE



Section 8.1. May Consolidate, Etc., Only on Certain Terms.




     The Company shall not consolidate with or merge into any other Person or convey, transfer or
lease its properties and assets substantially as an entirety to any Person, and no Person shall
consolidate with or merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:



     (a) if the Company shall consolidate with or merge into another Person or convey, transfer or
lease its properties and assets substantially as an entirety to any Person, the entity formed by
such consolidation or into which the Company is merged or the Person that acquires by conveyance or
transfer, or that leases, the properties and assets of the Company substantially as an entirety
shall be an entity organized and existing under the laws of the United States of



60









 




America or any state thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium, if any), and interest
(including any Additional Interest) on all the Securities of every series and the performance of
every covenant of this Indenture on the part of the Company to be performed or observed; provided,
however, that nothing herein shall be deemed to restrict or prohibit, and no supplemental indenture
shall be required in the case of, the merger of a Principal Subsidiary Bank with and into a
Principal Subsidiary Bank or the Company, the consolidation of Principal Subsidiary Banks into a
Principal Subsidiary Bank or the Company, or the sale or other disposition of all or substantially
all of the assets of any Principal Subsidiary Bank to another Principal Subsidiary Bank or the
Company, if, in any such case in which the surviving, resulting or acquiring entity is not the
Company, the Company would own, directly or indirectly, at least 80% of the voting securities of
the Principal Subsidiary Bank (and of any other Principal Subsidiary Bank any voting securities of
which are owned, directly or indirectly, by such Principal Subsidiary Bank) surviving such merger,
resulting from such consolidation or acquiring such assets;




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



     (c) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and any such
supplemental indenture comply with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with and, in the case of a transaction subject
to this Section 8.1 but not requiring a supplemental indenture under paragraph (a) of this
Section 8.1, an Officer’s Certificate or Opinion of Counsel to the effect that the surviving,
resulting or successor entity is legally bound by the Indenture and the Securities; and the
Trustee, subject to Section 6.1, may rely upon such Officers’ Certificates and Opinions of Counsel
as conclusive evidence that such transaction complies with this Section 8.1.


Section 8.2. Successor Company Substituted.




     (a) Upon any consolidation or merger by the Company with or into any other Person, or any
conveyance, transfer or lease by the Company of its properties and assets substantially as an
entirety to any Person in accordance with Section 8.1, the successor entity formed by such
consolidation or into which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person had been named as the
Company herein; and in the event of any such conveyance, transfer or lease the Company shall be
discharged from all obligations and covenants under the Indenture and the Securities.



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



61









 




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




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



ARTICLE IX




SUPPLEMENTAL INDENTURES



Section 9.1. Supplemental Indentures Without Consent of Holders.




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



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



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



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



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



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



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



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



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



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



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


Section 9.2. Supplemental Indentures with Consent of Holders.




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



     (a) change the Stated Maturity of the principal of, or any installment of interest (including
any Additional Interest) on, any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof, or reduce the amount of
principal of a Discount Security that would be due and payable upon a declaration of acceleration
of the Stated Maturity thereof pursuant to Section 5.2, or change the place of payment where, or
the coin or currency in which, any Security or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or,
in the case of redemption, on or after the Redemption Date),



     (b) reduce the percentage in aggregate principal amount of the Outstanding Securities of any
series, the consent of whose Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of compliance with certain provisions



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of this Indenture or certain defaults hereunder and their consequences) provided for in this
Indenture, or




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


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




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



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


Section 9.3. Execution of Supplemental Indentures.




     In executing or accepting the additional trusts created by any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be provided with, and (subject to Section 6.1) shall be fully protected in relying
upon, an Officers’ Certificate and an Opinion of Counsel each stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture, and that all conditions
precedent herein provided for relating to such action have been complied with. The Trustee



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may, but shall not be obligated to, enter into any such supplemental indenture that affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise.




Section 9.4. Effect of Supplemental Indentures.




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



Section 9.5. Conformity with Trust Indenture Act.




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



Section 9.6. Reference in Securities to Supplemental Indentures.




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



ARTICLE X




COVENANTS




Section 10.1. Payment of Principal, Premium and Interest.




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



Section 10.2. Maintenance of Office or Agency.




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



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the address thereof, such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.




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



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




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



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



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




     (i) hold all sums held by it for the payment of the principal of (and premium, if any)
or interest (including Additional Interest) on the Securities of a series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid 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
such Securities) in the making of any payment of principal (and premium, if any) or interest
(including Additional Interest) in respect of any Security of any series;



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




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



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



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



Section 10.4. Statement as to Compliance.




     The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company ending after the date hereof, an Officers’ Certificate covering the preceding calendar
year, stating whether or not to the best knowledge of the signers thereof the Company is in default
in the performance, observance or fulfillment of or compliance with any of the terms, provisions,
covenants and conditions of this Indenture, and if the Company shall be in default, specifying all
such defaults and the nature and status thereof of which they may have knowledge. For the purpose
of this Section 10.4, compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.



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Section 10.5. Waiver of Certain Covenants.




     Subject to the rights of holders of Capital Securities specified in Section 9.2, if any, the
Company may omit in any particular instance to comply with any covenant or condition provided
pursuant to Section 3.1, 9.1(c) or 9.1(d) with respect to the Securities of any series, if before
or after the time for such compliance the Holders of at least a majority in aggregate principal
amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with such covenant or condition, but
no such waiver shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations of the Company in
respect of any such covenant or condition shall remain in full force and effect.



Section 10.6. Additional Sums.




     In the case of the Securities of a series initially issued to an Issuer Trust, so long as no
Event of Default has occurred and is continuing and except as otherwise specified as contemplated
by Section 2.1 or Section 3.1, if: (a) the Issuer Trust is the Holder of all of the Outstanding
Securities of such series, and (b) a Tax Event described in clause (a) or (c) of the definition of
“Tax Event” in Section 1.1 hereof has occurred and is continuing in respect of such Issuer Trust,
the Company shall pay such Issuer Trust (and its permitted successors or assigns under the related
Trust Agreement) for so long as such Issuer Trust (or its permitted successor or assignee) is the
registered holder of the Outstanding Securities of such series, such additional sums as may be
necessary in order that the amount of Distributions (including any Additional Amount (as defined in
such Trust Agreement)) then due and payable by such Issuer Trust on the Capital Securities and
Common Securities that at any time remain outstanding in accordance with the terms thereof shall
not be reduced as a result of such Additional Taxes (the “Additional Sums”). Whenever in this
Indenture or the Securities there is a reference in any context to the payment of principal of or
interest on the Securities, such mention shall be deemed to include mention of the payments of the
Additional Sums provided for in this paragraph to the extent that, in such context, Additional Sums
are, were or would be payable in respect thereof pursuant to the provisions of this paragraph and
express mention of the payment of Additional Sums (if applicable) in any provisions hereof shall
not be construed as excluding Additional Sums in those provisions hereof where such express mention
is not made; provided, however, that the deferral of the payment of interest pursuant to
Section 3.12 or the Securities shall not defer the payment of any Additional Sums that may be due
and payable.



Section 10.7. Additional Covenants.




     The Company covenants and agrees with each Holder of Securities of each series that it shall
not: (a) declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any shares of the Company’s capital stock, or (b) make any
payment of principal of or interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company that rank pari passu in all respects with or junior in interest to the
Securities of such series, (other than (i) repurchases, redemptions or other acquisitions of shares
of capital stock of the Company in connection with any employment



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contract, benefit plan or other similar arrangement with or for the benefit of any one or more
employees, officers, directors or consultants, in connection with a dividend reinvestment or
stockholder stock purchase plan or in connection with the issuance of capital stock of the Company
(or securities convertible into or exercisable for such capital stock) as consideration in an
acquisition transaction entered into prior to the applicable Extension Period or other event
referred to below, (ii) as a result of an exchange or conversion of any class or series of the
Company’s capital stock (or any capital stock of a Subsidiary of the Company) for any class or
series of the Company’s capital stock or of any class or series of the Company’s indebtedness for
any class or series of the Company’s capital stock, (iii) the purchase of fractional interests in
shares of the Company’s capital stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged, (iv) any declaration of a dividend in
connection with any Rights Plan, or the issuance of rights, stock or other property under any
Rights Plan, or the redemption or repurchase of rights pursuant thereto, or (v) any dividend in the
form of stock, warrants, options or other rights where the dividend stock or the stock issuable
upon exercise of such warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks pari passu with or junior to such stock) if at such time (A) there
shall have occurred any event (x) of which the Company has actual knowledge that with the giving of
notice or the lapse of time, or both, would constitute an Event of Default with respect to the
Securities, and (y) which the Company shall not have taken reasonable steps to cure, (B) if the
Securities of such series are held by an Issuer Trust, the Company shall be in default with respect
to its payment of any obligations under the Guarantee relating to the Capital Securities issued by
an Issuer Trust, or (C) the Company shall have given notice of its election to begin an Extension
Period with respect to the Securities of such series as provided herein and shall not have
rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing.




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



Section 10.8. Federal Tax Reports.




     On or before December 15 of each year during which any Securities are outstanding, the Company
shall furnish to each Paying Agent and Trustee (if the Securities are held by the Issuer Trust)
such information as may be reasonably requested by each Paying Agent in order that each Paying
Agent may prepare the information which it is required to report for such year on Internal Revenue
Service Forms 1096 and 1099 pursuant to Section 6049 of the Internal Revenue Code of 1986, as
amended, or otherwise comply with applicable information reporting requirements.



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Such information shall include the amount of original issue discount includible in income for each
authorized minimum denomination of principal amount at Stated Maturity of outstanding Securities
during such year.




ARTICLE XI




REDEMPTION OF SECURITIES




Section 11.1. Applicability of this Article.




     Redemption of Securities of any series as permitted or required by any form of Security issued
pursuant to this Indenture shall be made in accordance with such form of Security and this Article;
provided, however, that, if any provision of any such form of Security shall conflict with any
provision of this Article, the provision of such form of Security shall govern.



Section 11.2. Election to Redeem; Notice to Trustee.




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



Section 11.3. Selection of Securities to be Redeemed.




     (a) If less than all the Securities of any series are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series not previously called for redemption,
by such method as the Trustee shall deem appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series, provided that the
unredeemed portion of the principal amount of any Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such Security.



     (b) The Trustee shall promptly notify the Company in writing of the Securities selected for
partial redemption and the principal amount thereof to be redeemed. For all purposes of this
Indenture, unless the context otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Security redeemed or to be redeemed



70









 




only in part, to the portion of the principal amount of such Security that has been or is to be
redeemed.




Section 11.4. Notice of Redemption.




     Notice of redemption shall be given by first-class mail, postage prepaid, mailed not later
than the thirtieth day, and not earlier than the sixtieth day, prior to the Redemption Date, to
each Holder of Securities to be redeemed, at the address of such Holder as it appears in the
Securities Register; provided however if the Trustee is asked to give the Notice it shall be given
at least 15 days prior written notice of such request.



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



     (a) the Redemption Date;



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



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



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



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



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



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



     (h) the applicable CUSIP number.


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




71









 







of any Security designated for redemption as a whole or in part shall not affect the validity of
the proceedings for the redemption of any other Security.




Section 11.5. Deposit of Redemption Price.




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



Section 11.6. Payment of Securities Called for Redemption.




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



     (b) Upon presentation of any Security redeemed in part only, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new
Security or Securities of the same series, of authorized denominations, in aggregate principal
amount equal to the unredeemed portion of the Security so presented and having the same Original
Issue Date, Stated Maturity and terms.



     (c) If any Security called for redemption shall not be so paid under surrender thereof for
redemption, the principal of and premium, if any, on such Security shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the Security.



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




     (a) In the case of the Securities of a series initially issued to an Issuer Trust, except as
otherwise specified as contemplated by Section 3.1, the Company, at its option, may redeem such
Securities (i) on or after the date specified in such Security, in whole at any time or in part
from time to time, or (ii) upon the occurrence and during the continuation of a Tax Event, an
Investment Company Event or a Capital Treatment Event, at any time within 90 days following the
occurrence and during the continuation of such Tax Event, Investment Company Event or



72









 




Capital Treatment Event, in whole (but not in part), in each case at a Redemption Price specified
in such Security, together with accrued interest (including Additional Interest) to the Redemption
Date.




     (b) If less than all the Securities of any series are to be redeemed, the aggregate principal
amount of such Securities remaining Outstanding after giving effect to such redemption shall be
sufficient to satisfy any provisions of the Trust Agreement related to the Issuer Trust to which
such Securities were issued.



ARTICLE XII




SINKING FUNDS




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



ARTICLE XIII




SUBORDINATION OF SECURITIES




Section 13.1. Securities Subordinate to Senior Indebtedness.




     The Company covenants and agrees, and each Holder of a Security, by its acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this
Article, the payment of the principal of (and premium, if any) and interest (including any
Additional Interest) on each and all of the Securities of each and every series are hereby
expressly made subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness.




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





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



     (b) In the event of (i) any insolvency, bankruptcy, receivership, liquidation, reorganization,
readjustment, composition or other similar proceeding relating to the Company, its creditors or its
property, (ii) any proceeding for the liquidation, dissolution or other winding up of the Company,
voluntary or involuntary, whether or not involving insolvency or bankruptcy



73









 




proceedings, (iii) any assignment by the Company for the benefit of creditors or (iv) any other
marshalling of the assets of the Company (each such event, if any, herein sometimes referred to as
a “Proceeding”), all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any payment or
distribution, whether in cash, securities or other property, shall be made to any Holder on account
thereof. Any payment or distribution, whether in cash, securities or other property (other than
securities of the Company or any other entity provided for by a plan of reorganization or
readjustment, the payment of which is subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness evidenced by the Securities, to the
payment of all Senior Indebtedness at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), which would otherwise (but for
these subordination provisions) be payable or deliverable in respect of the Securities of any
series shall be paid or delivered directly to the holders of Senior Indebtedness in accordance with
the priorities then existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any Proceeding) shall have been paid in full.




     (c) In the event of any Proceeding, after payment in full of all sums owing with respect to
Senior Indebtedness, the Holders of the Securities, together with the holders of any obligations of
the Company ranking on a parity with the Securities, shall be entitled to be paid from the
remaining assets of the Company the amounts at the time due and owing on account of unpaid
principal of (and premium, if any) and interest on the Securities and such other obligations before
any payment or other distribution, whether in cash, property or otherwise, shall be made on account
of any capital stock or any obligations of the Company ranking junior to the Securities, and such
other obligations. If, notwithstanding the foregoing, any payment or distribution of any character
or any security, whether in cash, securities or other property (other than securities of the
Company or any other entity provided for by a plan of reorganization or readjustment the payment of
which is subordinate, at least to the extent provided in these subordination provisions with
respect to the indebtedness evidenced by the Securities, to the payment of all Senior Indebtedness
at the time outstanding and to any securities issued in respect thereof under any plan of
reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of
any of the terms hereof and before all Senior Indebtedness shall have been paid in full, such
payment or distribution or security shall be received in trust for the benefit of, and shall be
paid over or delivered and transferred to, the holders of the Senior Indebtedness at the time
outstanding in accordance with the priorities then existing among such holders for application to
the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all such
Senior Indebtedness in full. In the event of the failure of the Trustee or any Holder to endorse
or assign any such payment, distribution or security, each holder of Senior Indebtedness is hereby
irrevocably authorized to endorse or assign the same.



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



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



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



Section 13.3. Payment Permitted if No Default.




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



Section 13.4. Subrogation to Rights of Holders of Senior Indebtedness.




     Subject to the payment in full of all amounts due or to become due on all Senior Indebtedness,
or the provision for such payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Indebtedness, the Holders of the Securities shall be subrogated to the
extent of the payments or distributions made to the holders of such Senior Indebtedness pursuant to
the provisions of this Article (equally and ratably with the holders of all indebtedness of the
Company that by its express terms is subordinated to Senior Indebtedness of the Company to
substantially the same extent as the Securities are subordinated to the Senior Indebtedness and is
entitled to like rights of subrogation by reason of any payments or distributions made to holders
of such Senior Indebtedness) to the rights of the holders of such Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable to the Senior Indebtedness
until the principal of (and premium if any) and interest (including Additional Interest) on the
Securities shall be paid in full. For purposes of such subrogation, no payments or distributions
to the holders of the Senior Indebtedness of any cash, property or securities to which the Holders
of the Securities or the Trustee would be entitled except for the provisions of this Article, and
no payments pursuant to the provisions of this Article to the holders of Senior Indebtedness by
Holders of the Securities or the Trustee, shall, as among the Company, its creditors other than
holders of Senior Indebtedness, and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.



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Section 13.5. Provisions Solely to Define Relative Rights.




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



Section 13.6. Trustee to Effectuate Subordination.




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



Section 13.7 No Waiver of Subordination Provisions.




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



     (b) Without in any way limiting the generality of the immediately preceding paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without the consent of or
notice to the Trustee or the Holders of the Securities of any series, without incurring
responsibility to such Holders of the Securities and without impairing or releasing the
subordination provided in this Article or the obligations hereunder of such Holders of the
Securities to the holders of Senior Indebtedness, do any one or more of the following: (i) change
the manner, place or terms of payment or extent the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (iii) release any Person liable in any manner for the



76









 




collection of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Company and any other Person.




Section 13.8. Notice to Trustee.




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



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



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




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



77









 





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




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




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





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



Section 13.12. Article Applicable to Paying Agents.




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



Section 13.13. Certain Conversions or Exchanges Deemed Payment.




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



78









 





* * * *




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



[SIGNATURES APPEAR ON THE FOLLOWING PAGE]




79









 





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



	 	 	 	 	 	 	 	 	 
	 	 	M&T BANK CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Ayan Das Gupta 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Ayan D. Gupta
	 

	 	 	 	 	 	Title: Group Vice President
	 
	 	 	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK, as Trustee	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Scott I. Klein 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Scott I. Klein 
	 

	 	 	 	 	 	Title: Assistant Treasurer 






80









 






ANNEX A

FORM OF RESTRICTED SECURITIES CERTIFICATE




RESTRICTED SECURITIES CERTIFICATE




(For transfers pursuant to Section 3.6(b) of

the Indenture referred to below)





[         
           ],

as Securities Registrar

[address]




	 	 	 
	Re:

	 [Title of Securities] of M&T Bank Corporation (the “Securities”)






     Reference is made to the Junior Subordinated Indenture, dated as of [     ] [  ], [     ] (the
“Indenture”), between M&T Bank Corporation a New York corporation, and [     ] Company, as Trustee.
Terms used herein and defined in the Indenture or in Regulation S, Rule 144A or Rule 144 under the
U.S. Securities Act of 1933, as amended (the “Securities Act”) are used here as so defined.



     This certificate relates to $[     ] aggregate principal amount of Securities, which are
evidenced by the following certificate(s) (the “Specified Securities”):



     CUSIP No(s).



     CERTIFICATE No(s).



     CURRENTLY IN GLOBAL FORM: Yes       No       (check one)



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



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



81









 




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




     (a) Rule 144A Transfers. If the transfer is being effected in accordance with Rule 144A:




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




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



     (b) Rule 904 Transfers. If the transfer is being effected in accordance with Rule 904:




     (i) the Owner is not a distributor of the Securities, an affiliate of the Company or
any such distributor or a person acting in behalf of any of the foregoing;




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




     (iii) either;




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




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




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




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



     (c) Rule 144 Transfers. If the transfer is being effected pursuant to Rule 144:



82









 






     (i) the transfer is occurring after a holding period of at least two years (computed in
accordance with paragraph (d) of Rule 144) has elapsed since the date the Specified Securities
were acquired from the Company or from an affiliate (as such term is defined in Rule 144) of the
Company, whichever is later, and is being effected in accordance with the applicable amount,
manner of sale and notice requirements of paragraphs (e), (f) and (h) of Rule 144;




     (ii) the transfer is occurring after a holding period by the Owner of at least three years
has elapsed since the date the Specified Securities were acquired from the Company or from an
affiliate (as such term is defined in Rule 144) of the Company, whichever is later, and the
Owner is not, and during the preceding three months has not been, an affiliate of the Company;
or




     (iii) the Owner is a Qualified Institutional Buyer under Rule 144A or has acquired the
Securities otherwise in accordance with Sections (1), (2) or (3) hereof and is transferring the
Securities to an institutional accredited investor in a transaction exempt from the requirements
of the Securities Act.



     This certificate and the statements contained herein are made for your benefit and the benefit
of the Company and the Initial Purchasers (as defined in the Trust Agreement relating to the Issuer
Trust to which the Securities were initially issued).




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



	 	 	 	 	 	 	 
	
Dated:             
        

	 	By:     
	 	 	 	  
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 





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




83