exhibit43seniorindenture







50011.0001-55071v12   FIRST NBC BANK HOLDING COMPANY   as Issuer,    and   [                            ]    as Trustee    SENIOR DEBT INDENTURE    Dated as of [                 ]      Exhibit 4.3    





 







   i   TABLE OF CONTENTS   ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE ......................................................... 1   Section 101 Definitions. .............................................................................................................................. 1   Section 102 Compliance Certificates and Opinions. ................................................................................... 5   Section 103 Form of Documents Delivered to Trustee. .............................................................................. 5   Section 104 Acts of Holders. ....................................................................................................................... 6   Section 105 Required Notices or Demands. ................................................................................................ 7   Section 106 Language of Notices. ............................................................................................................... 8   Section 107 Incorporation by Reference of Trust Indenture Act; Conflicts. ............................................... 8   Section 108 Effect of Headings and Table of Contents. .............................................................................. 8   Section 109 Successors and Assigns. .......................................................................................................... 8   Section 110 Severability. ............................................................................................................................. 9   Section 111 Benefits of Indenture. .............................................................................................................. 9   Section 112 Governing Law. ....................................................................................................................... 9   Section 113 Legal Holidays. ....................................................................................................................... 9   Section 114 Counterparts; Electronic Transmission. ................................................................................... 9   Section 115 Immunity of Certain Persons. .................................................................................................. 9   Section 116 Waiver of Jury Trial. ............................................................................................................... 9   Section 117 Force Majeure. ....................................................................................................................... 10   Section 118 USA Patriot Act. .................................................................................................................... 10   Section 119 No Sinking Fund.................................................................................................................... 10   Section 120 Rules of Construction. ........................................................................................................... 10   ARTICLE II. THE SENIOR NOTES ...................................................................................................................... 10   Section 201 Forms Generally. ................................................................................................................... 10   Section 202 Form of Trustee’s Certificate of Authentication. ................................................................... 11   Section 203 Senior Notes in Global Form. ................................................................................................ 11   Section 204 Amount Unlimited; Issuable in Series. .................................................................................. 12   Section 205 Execution and Authentication. .............................................................................................. 15   Section 206 Currency; Denominations. ..................................................................................................... 16   Section 207 Temporary Senior Notes. ....................................................................................................... 16   Section 208 Registrar and Paying Agent. .................................................................................................. 16   Section 209 Registration of Transfer and Exchange. ................................................................................ 17   Section 210 Mutilated, Destroyed, Lost and Stolen Senior Notes. ............................................................ 18   Section 211 Payment of Interest; Rights to Interest Preserved. ................................................................. 19   Section 212 Persons Deemed Owners. ...................................................................................................... 20   Section 213 Cancellation. .......................................................................................................................... 20   Section 214 Computation of Interest. ........................................................................................................ 21   Section 215 CUSIP Numbers. ................................................................................................................... 21   ARTICLE III. SATISFACTION AND DISCHARGE OF INDENTURE ............................................................ 21   Section 301 Satisfaction and Discharge. ................................................................................................... 21   Section 302 Defeasance and Covenant Defeasance. ................................................................................. 22   Section 303 Application of Trust Money. ................................................................................................. 24   Section 304 Reinstatement. ....................................................................................................................... 24   ARTICLE IV. REMEDIES ...................................................................................................................................... 24   Section 401 Events of Default; Acceleration. ........................................................................................... 24   Section 402 Collection of Indebtedness and Suits for Enforcement by Trustee. ....................................... 26   Section 403 Trustee May File Proofs of Claim. ........................................................................................ 26   Section 404 Trustee May Enforce Claims Without Possession of Senior Notes. ...................................... 27   Section 405 Application of Money Collected. .......................................................................................... 27   Section 406 Limitation on Suits. ............................................................................................................... 27   Section 407 Unconditional Right of Holders to Payments. ....................................................................... 28   Section 408 Restoration of Rights and Remedies. ..................................................................................... 28   Section 409 Rights and Remedies Cumulative. ......................................................................................... 28     





 







   ii   Section 410 Delay or Omission Not Waiver. ............................................................................................ 28   Section 411 Control by Holders. ............................................................................................................... 28   Section 412 Waiver of Past Defaults. ........................................................................................................ 29   Section 413 Undertaking for Costs. ........................................................................................................... 29   ARTICLE V. THE TRUSTEE ................................................................................................................................. 29   Section 501 Duties of Trustee. .................................................................................................................. 29   Section 502 Certain Rights of Trustee. ...................................................................................................... 30   Section 503 Notice of Defaults. ................................................................................................................. 31   Section 504 Not Responsible for Recitals or Issuance of Senior Notes. ................................................... 31   Section 505 May Hold Senior Notes. ........................................................................................................ 32   Section 506 Money Held in Trust. ............................................................................................................ 32   Section 507 Compensation and Reimbursement. ...................................................................................... 32   Section 508 Corporate Trustee Required; Eligibility. ............................................................................... 33   Section 509 Resignation and Removal; Appointment of Successor. ......................................................... 33   Section 510 Acceptance of Appointment by Successor. ........................................................................... 34   Section 511 Merger, Conversion, Consolidation or Succession to Business............................................. 35   Section 512 Appointment of Authenticating Agent. ................................................................................. 35   Section 513 Preferred Collection of Claims against Company. ................................................................ 36   ARTICLE VI. HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY ..................................... 36   Section 601 Holder Lists. .......................................................................................................................... 36   Section 602 Preservation of Information; Communications to Holders. ................................................... 36   Section 603 Reports by Trustee. ................................................................................................................ 37   Section 604 Reports by Company. ............................................................................................................ 37   ARTICLE VII. SUCCESSORS ................................................................................................................................ 38   Section 701 Merger, Consolidation or Sale of All or Substantially All Assets. ........................................ 38   Section 702 Successor Person Substituted for Company. ......................................................................... 38   ARTICLE VIII. SUPPLEMENTAL INDENTURES ............................................................................................. 39   Section 801 Supplemental Indentures without Consent of Holders. ......................................................... 39   Section 802 Supplemental Indentures with Consent of Holders. .............................................................. 40   Section 803 Execution of Supplemental Indentures. ................................................................................. 41   Section 804 Effect of Supplemental Indentures. ....................................................................................... 41   Section 805 Reference in Senior Notes to Supplemental Indentures. ....................................................... 41   Section 806 Conformity with Trust Indenture Act. ................................................................................... 41   ARTICLE IX. COVENANTS ................................................................................................................................... 41   Section 901 Payment of Principal, Premium and Interest. ........................................................................ 41   Section 902 Maintenance of Office. .......................................................................................................... 41   Section 903 Money for Senior Notes Payments to Be Held in Trust. ....................................................... 42   Section 904 Corporate Existence. .............................................................................................................. 43   Section 905 Maintenance of Properties. .................................................................................................... 43   Section 906 Waiver of Certain Covenants. ............................................................................................... 43   Section 907 Company Statement as to Compliance. ................................................................................. 43   ARTICLE X. REDEMPTION .................................................................................................................................. 44   Section 1001 Applicability of Article. ......................................................................................................... 44   Section 1002 Election to Redeem; Notice to Trustee. ................................................................................. 44   Section 1003 Selection by Trustee of Senior Notes to be Redeemed. ......................................................... 44   Section 1004 Notice of Redemption. ........................................................................................................... 45   Section 1005 Deposit of Redemption Price. ................................................................................................ 46   Section 1006 Senior Notes Payable on Redemption Date. .......................................................................... 46   Section 1007 Senior Notes Redeemed in Part. ............................................................................................ 46           





 







   iii   CROSS-REFERENCE TABLE   Trust Indenture Act Section       Indenture Section   §310 (a)(1)            508   (a)(2)          508           (a)(5)          508           (b)          509   §311 (a)          505            (b)          505           §312 (a)          601            (b)          602           (c)          602   §313 (a)          603           (b)(2)          603           (c)          603           (d)          603   §314 (a)          604   (a)(4)          907   (c)(1)          102   (c)(2)          102   (e)          102   §315 (a)          501, 502            (b)          503    (c)          501            (d)          501, 502   (e)          413   §316 (a) (last sentence)         101           (a)(1)(A)         402, 411          (a)(1)(B)           411, 412   (b)            407   (c)            104   §317 (a)(1)            402            (a)(2)            403            (b)           903   §318 (a)          107   (b)          107   (c)          107         Note: This Cross-Reference table will not, for any purpose, be deemed part of this Indenture.    





 







   1   This SENIOR DEBT INDENTURE dated as of [                               ] is between First NBC Bank Holding   Company, a Louisiana corporation (the “Company”), and [                                       ], as trustee (the “Trustee”).    RECITALS   WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to provide for the   issuance from time to time of its senior unsecured debentures, notes, bonds or other evidences of indebtedness to be   issued in one or more series unlimited as to principal amount, to bear such rates of interest, to mature at such time or   times, to be issued in one or more series and to have such other provisions as will be fixed as hereinafter provided;   and    WHEREAS, this Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, and   the rules and regulations of the Commission promulgated thereunder that are required to be part of this Indenture and,   to the extent applicable, will be governed by such provisions.     NOW, THEREFORE, in order to declare the terms and conditions upon which the Senior Notes are   authenticated, issued and delivered, and in consideration of the premises, and of the purchase and acceptance of the   Senior Notes by the holders thereof, the Company and the Trustee agree as follows for the benefit of each other and   for the benefit of the respective Holders from time to time of the Senior Notes or any series thereof.    ARTICLE I.   DEFINITIONS AND INCORPORATION BY REFERENCE    Section 101 Definitions.   Except as otherwise expressly provided in this Indenture or unless the context otherwise requires, the terms   defined in this Section for all purposes of this Indenture, any Company Order, any Board Resolution, and any indenture   supplemental hereto will have the respective meanings specified in this Section.     “Act,” when used with respect to any Holders, is defined in Section 104.   “Affiliate” means, with respect to any specified Person, 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.   “Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any   global Senior Note, the rules and procedures of the Depositary that apply to such transfer or exchange.   “Authenticating Agent” means any Person authorized by the Trustee in accordance with Section 512 to act   on behalf of the Trustee to authenticate Senior Notes of one or more Series.   “Authorized Newspaper” means a newspaper, in an official language of the place of publication or in the   English language, customarily published on each day that is a Business Day in the place of publication, whether or   not published on days that are not Business Days in the place of publication, and of general circulation in each place   in connection with which the term is used or in the financial community of each such place.  Where successive   publications are required to be made in Authorized Newspapers, the successive publications may be made in the same   or in different newspapers in the same place meeting the foregoing requirements and in each case on any day that is a   Business Day in the place of publication.   “Authorized Officer” means each of the Chairman of the Board, the Chief Executive Officer, the President,   any Senior Executive Vice President and the Chief Financial Officer of the Company.     





 







   2   “Bankruptcy Laws” mean Title 11, United States Code (11 U.S.C. §§101 et seq.) or any similar federal or   state law for the relief of debtors.   “Board of Directors” means, as to any Person, the board of directors, or similar governing body, of such   Person or any duly authorized committee thereof.   “Board Resolution” means one or more resolutions, certified by the Secretary or an Assistant Secretary of   the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such   certification, delivered to the Trustee.    “Business Day” means any day other than a Saturday, Sunday or other day on which banking institutions in   the City of [                      ] are authorized or obligated by law, regulation or executive order to close.   “Commission” means the U.S. Securities and Exchange Commission, as from time to time constituted, or, if   at any time after the execution of this Indenture such Commission is not existing and performing the duties now   assigned to it under the Trust Indenture Act, then the body performing such duties at such time.   “Common Stock” means any and all shares of the common stock, par value $1.00 per share, of the Company,   whether outstanding on the date of this Indenture or issued thereafter, and includes, without limitation all series and   classes of such common stock.   “Company” is defined in the preamble to this Indenture.   “Company Request” and “Company Order” mean, respectively, a written request or order, as the case may   be, signed on behalf of the Company by an Authorized Officer and delivered to the Trustee.   “Corporate Trust Office” means the address of the Trustee specified in Section 105 or such other address as   the Trustee may designate from time to time by notice to the Holders and the Company, or the designated address of   any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to   the Holders and the Company).   “Covenant Defeasance” is defined in Section 302(3).   “Defaulted Interest” is defined in Section 211.   “Depositary” means, with respect to any Senior Note issuable or issued in whole or in part in global form,   the Person designated as depositary by the Company in accordance with this Indenture, and any and all successors   thereto appointed as Depositary under this Indenture.   “Dollars” or “$” means a dollar or other equivalent unit of legal tender for payment of public or private debts   in the United States of America.   “Equivalent Terms” is defined in Section 1002.   “Event of Default” is defined in Section 401.   “Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute thereto.   “GAAP” means generally accepted accounting principles in the United States set forth in the opinions and   pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants, the   statements and pronouncements of the Financial Accounting Standards Board and such other statements by such other   entities (including the Commission) as have been accepted by a significant segment of the accounting profession,   which are applicable at the date of this Indenture.     





 







   3   “Government Obligations” means securities which are direct obligations of the United States of America in   each case where the payment or payments thereunder are supported by the full faith and credit of the United States of   America.   “Holder” means the Person in whose name the Senior Note is registered in the Senior Note 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,   with respect to any Senior Note, by the terms and provisions of such Senior Note established in accordance with   Section 204 (as such terms and provisions may be amended in accordance with the applicable provisions hereof).   “Interest Payment Date,” with respect to any Senior Note, means the date on which an installment of interest   is due on such Senior Note.   “Legal Defeasance” is defined in Section 302(2).   “Maturity” means the date on which the principal of a Senior Note or an installment of principal becomes   due and payable as provided in or under this Indenture or such Senior Note, whether at the Stated Maturity or by an   acceleration of the maturity of such Senior Note in accordance with the terms of such Senior Note, upon redemption   at the option of the Company, upon repurchase or repayment or otherwise, and includes a Redemption Date for such   Senior Note and a date fixed for the repurchase or repayment of such Senior Note at the option of the Holder.   “Officer” means, with respect to any Person, the chairman of the board, vice chairman of the board, the chief   executive officer, the president, the chief operating officer, the chief financial officer, the treasurer, any assistant   treasurer, the controller, the secretary or any Vice President of such Person.   “Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers of the Company,   one of whom must be the principal executive officer, the principal financial officer or the principal accounting officer   of the Company, that complies with the requirements of Section 102 and is delivered to the Trustee.   “Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the   Trustee, which opinion meets the requirements of Section 102.  The counsel may be an employee of or counsel to the   Company or any Subsidiary of the Company   “Outstanding,” when used with respect to any Senior Notes, means, as of the date of determination, all such   Senior Notes theretofore authenticated and delivered under this Indenture, except (1) any such Senior Note theretofore   cancelled by the Trustee or the Registrar or delivered to the Trustee or the Registrar for cancellation;  (2) any such   Senior Note for whose payment at the Maturity thereof money in the necessary amount has been theretofore deposited   in accordance with this Indenture (other than in accordance with Section 302) with the Trustee or any Paying Agent   (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company will act as its   own Paying Agent) for the Holders of such Senior Notes, provided that, if such Senior Notes are to be redeemed,   notice of such redemption has been duly given in accordance with this Indenture or provision therefor satisfactory to   the Trustee has been made;  (3) any such Senior Note with respect to which the Company has effected Legal   Defeasance or Covenant Defeasance in accordance with Section 302, except to the extent provided in Section 302; (4)   any such Senior Note that has been paid in accordance with Section 210 or in exchange for or in lieu of which other   Senior Notes have been authenticated and delivered under this Indenture, unless there will have been presented to the   Trustee proof satisfactory to the Trustee that such Senior Note is held by a bona fide purchaser in whose hands such   Senior Note is a valid obligation of the Company; and (5) any such Senior Note converted or exchanged as   contemplated by this Indenture into Common Stock or other securities or property, if the terms of such Senior Note   provide for such conversion or exchange in accordance with Section 204;  provided, however, in all cases, that in   determining whether the Holders of the requisite principal amount of Outstanding Senior Notes have given any   request, demand, authorization, direction, notice, consent or waiver hereunder, Senior Notes owned by the Company   or any other obligor upon the Senior Notes or any Affiliate of the Company or such other obligor will be disregarded   and deemed not to be Outstanding, except that, in determining whether the Trustee will be protected in making any   such determination or relying upon any such request, demand, authorization, direction, notice, consent or waiver, only     





 







   4   Senior Notes that a Responsible Officer of the Trustee actually knows to be so owned will be so disregarded.  Senior   Notes so owned that will 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 Senior Notes and that the pledgee is   not the Company or any other obligor upon the Senior Notes or an Affiliate (other than a Trust) of the Company or   such other obligor.   “Paying Agent” is defined in Section 208.   “Person” mean any individual, corporation, partnership, association, limited liability company, other   company, statutory trust, business trust, joint venture, joint-stock company, trust, unincorporated organization or   government or any agency or political subdivision thereof.   “Place of Payment,” with respect to any Senior Note, means the place or places where the principal of, or   any premium or interest on, such Senior Note are payable as provided in or under this Indenture or such Senior Note.   “Redemption Date,” with respect to any Senior Note or portion thereof to be redeemed, means the date fixed   for such redemption by or under this Indenture or such Senior Note.   “Redemption Price,” with respect to any Senior Note or portion thereof to be redeemed, means the price at   which it is to be redeemed as determined by or under this Indenture or such Senior Note.   “Registrar” is defined in Section 208.   “Regular Record Date,” with respect to any Interest Payment Date, means the date specified in or under the   Indenture or such Senior Note as the record date for the payment of such interest.   “Responsible Officer” means, when used with respect to the Trustee, any officer within the corporate trust   department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer,   trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the   Persons who at the time will be such officers, respectively, or to whom any corporate trust matter is referred because   of such Person’s knowledge of and familiarity with the particular subject and who will have direct responsibility for   the administration of this Indenture.   “Securities Act” means the Securities Act of 1933, as amended, or any successor statute thereto.   “Series” means a series of Senior Notes designated or established in accordance with Section 204, all of   which Senior Notes in such Series will have like terms and conditions (other than the principal amount thereof).   “Significant Subsidiary” means any Subsidiary of the Company that is a “significant subsidiary” as defined   in Rule 1-02 of Regulation S-X promulgated by the Commission (as such rule is in effect on the date of this Indenture).   “Special Record Date” for the payment of any Defaulted Interest on any Senior Note means a date fixed in   accordance with Section 211.   “Stated Maturity” with respect to any Senior Note or any installment of principal thereof or interest thereon,   means the date established by or under this Indenture or such Senior Note as the fixed date on which the principal of   such Senior Note or such installment of principal or interest is due and payable.   “Senior Note” or “Senior Notes” means any note or notes, bond or bonds, debenture or debentures, or any   other evidence or evidences of indebtedness, as the case may be, authenticated and delivered under this Indenture.   “Senior Note Register” is defined in Section 208.   “Subsidiary” means a corporation, a partnership, business or statutory trust or a limited liability company, a   majority of the outstanding voting equity securities or a majority of the voting membership or partnership interests, as     





 







   5   the case may be, of which is owned or controlled, directly or indirectly, by the Company or by one or more other   Subsidiaries of the Company. For the purposes of this definition, “voting equity securities” means securities having   voting power for the election of directors, managers, managing partners or trustees, as the case may be, whether at all   times or only so long as no senior class of stock has voting power by reason of any contingency.   “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.   “Trustee” means [                                ], as trustee, until a successor replaces it in accordance with the   provisions of this Indenture and thereafter means the successor serving hereunder.   “United States,” means the United States of America (including the states thereof and the District of   Columbia), its territories, its possessions and other areas subject to its jurisdiction; and the term “United States of   America” means the United States of America.   Section 102 Compliance Certificates and Opinions.     Except as otherwise expressly provided in or under this Indenture, upon any application or request by the   Company to the Trustee to take any action under any provision of this Indenture, the Company will furnish to the   Trustee an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee stating that, in the opinion   of the signers, 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 in form and substance reasonably satisfactory to the Trustee 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 or any of them is specifically required by any provision of this Indenture relating to such particular   application or request, no additional certificate or opinion need be furnished.   Each certificate or opinion with respect to which compliance with a condition provided for in this Indenture   (other than an Officers’ Certificate provided under Section 907) must comply with the provisions of Section 314(e)   of the Trust Indenture Act and must include:    a statement that the person making such certificate or opinion has read such covenant or   condition;    a brief statement as to the nature and scope of the examination or investigation upon which   the statements or opinions contained in such certificate or opinion are based;    a statement that, in the opinion of such person, he or she has made such examination or   investigation as is necessary to enable him or her to express an informed opinion as to whether or not such condition   has been satisfied; and    a statement as to whether or not, in the opinion of such person, such condition has been   satisfied.   Section 103 Form of Documents Delivered to Trustee.     In any case where several matters are required to be certified by, or covered by an opinion of, any specified   Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or   that they be so certified or covered by only one document, but one such Person may certify or give an opinion with   respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or   give an opinion as to such matters in one or several documents.   Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters,   upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of   reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which     





 







   6   his certificate or opinion is based is erroneous.  Any such certificate or opinion of counsel may be based, insofar as it   relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company   stating that the information with respect to such factual matters is in the possession of the Company unless such   counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations   with respect to such matters are erroneous.   Where any Person is required to make, give or execute two or more applications, requests, consents,   certificates, statements, opinions or other instruments under this Indenture or any Senior Note, they may, but need not,   be consolidated and form one instrument.   Section 104 Acts of Holders.    Any request, demand, authorization, direction, notice, consent, waiver or other action   provided by or under this Indenture to be made, given 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.  Except as herein otherwise expressly provided, such action will become effective when such instrument or   instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company.    Such instrument or instruments and any such record (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, or of the holding by any Person of a Senior Note,   will be sufficient for any purpose of this Indenture and (subject to Section 501) conclusive in favor of the Trustee and   the Company and any agent of the Trustee or the Company, if made in the manner provided in this Section.      The fact and date of the execution by any Person of any such instrument or writing may be   proved in any reasonable manner that the Trustee deems sufficient and in accordance with such reasonable rules as   the Trustee may determine, and the Trustee may in any instance require further proof with respect to any of the matters   referred to in this Section.    The ownership, principal amount and serial numbers of Senior Notes held by any Person,   and the date of the commencement and the date of the termination of holding the same, will be proved by the Senior   Note Register.    The Company may, in the circumstances permitted by the Trust Indenture Act, set a record   date for purposes of determining the identity of Holders entitled to give any request, demand, authorization, direction,   notice, consent, waiver or take any other act authorized or permitted to be given or taken by Holders. Unless otherwise   specified, if not set by the Company prior to the first solicitation of a Holder made by any Person in respect of any   such action, any such record date will be the later of 30 days prior to the first solicitation of such consent or the date   of the most recent list of Holders furnished to the Trustee prior to such solicitation.  If a record date is fixed, the   Holders on such record date, and only such Persons, will be entitled to make, give or take such request, demand,   authorization, direction, notice, consent, waiver or other action, whether or not such Holders remain Holders after   such record date.  No such request, demand, authorization, direction, notice, consent, waiver or other action will be   valid or effective if made, given or taken more than 90 days after such record date.    Any effective request, demand, authorization, direction, notice, consent, waiver or other   Act by the Holder of any Senior Note will bind every future Holder of the same Senior Note and the Holder of every   Senior Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of   anything done or suffered to be done by the Trustee, any Registrar, any Paying Agent or the Company in reliance   thereon, whether or not notation of such Act is made upon such Senior Note.    Without limiting the foregoing, a Holder entitled to take any action hereunder with regard   to any particular Senior Note may do so with regard to all or any part of the principal amount of such Senior Note or   by one or more duly appointed agents, each of which may do so in accordance with such appointment with regard to   all or any part of such principal amount. Any notice given or action taken by a Holder or its agents with regard to   different parts of such principal amount in accordance with this paragraph will have the same effect as if given or   taken by separate Holders of each such different part.     





 







   7    Without limiting the generality of this Section 104, a Holder, including a Depositary that   is a Holder of a global Senior Note, may make, give or take, by a proxy or proxies, duly appointed in writing, any   request, demand, authorization, direction, notice, consent, waiver or other Act provided in or under this Indenture or   the Senior Notes to be made, given or taken by Holders, and a Depositary that is a Holder of a global Senior Note may   provide its proxy or proxies to the beneficial owners of interests in any such global Senior Note through such   Depositary’s Applicable Procedures.  The Company may fix a record date for the purpose of determining the Persons   who are beneficial owners of interests in any global Senior Note entitled under the Applicable Procedures of such   Depositary to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization,   direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders. If   such a record date is fixed, the Holders on such record date or their duly appointed proxy or proxies, and only such   Persons, will be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver   or other action, whether or not such Holders remain Holders after such record date. No such request, demand,   authorization, direction, notice, consent, waiver or other action will be valid or effective if made, given or taken more   than 90 days after such record date.   Promptly upon any record date being set in accordance with this Section 104, the Company, at its own   expense, will cause notice of the record date, the proposed action by Holders and the expiration date to be given to the   Trustee in writing and the Holders in the manner set forth in Section 105.   Section 105 Required Notices or Demands.     Any notice or communication by the Company or the Trustee to the others is duly given if in writing and   delivered in Person or mailed by registered or certified mail (return receipt requested), facsimile or overnight air   courier guaranteeing next day delivery, to the other’s address:    If to the Company:   First NBC Bank Holding Company   210 Baronne Street   New Orleans, LA  70112   Attention:  [                    ]   Facsimile:  [                    ]          If to the Trustee:   [                               ]         The Company or the Trustee by notice to the other may designate additional or different addresses for   subsequent notices or communications.    All notices and communications will be deemed to have been duly given: at the time delivered by hand, if   personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; on the first   Business Day after being sent, if sent by facsimile and the sender receives confirmation of successful transmission;   and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day   delivery.    Any notice required or permitted to be given to a Holder under the provisions of this Indenture will be deemed   to be properly mailed by being deposited postage prepaid in a post office letter box in the United States addressed to   such Holder at the address of such Holder as shown on the Senior Note Register.  Any report in accordance with   Section 313 of the Trust Indenture Act will be transmitted in compliance with subsection (c) therein. If the Company   mails a notice or communication to Holders, the Company will mail a copy to the Trustee at the same time.   In any case where notice to Holders of Senior Notes is given by mail, neither the failure to mail such notice,   nor any defect in any notice so mailed, to any particular Holder of a Senior Note will affect the sufficiency of such   notice with respect to other Holders of Senior Notes.  Any notice that is mailed in the manner herein provided will be   conclusively presumed to have been duly given or provided.  In the case by reason of the suspension of regular mail     





 







   8   service or by reason of any other cause it will be impracticable to give such notice by mail, then such notification as   will be made with the approval of the Trustee will constitute a sufficient notification for every purpose hereunder.   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 will be the equivalent of such notice.    Waivers of notice by Holders of Senior Notes will be filed with the Trustee, but such filing will not be a condition   precedent to the validity of any action taken in reliance upon such waiver.   Notwithstanding any other provision herein, where this Indenture provides for notice to any Holder of a   global Senior Note, or of an interest therein, such notice will be sufficiently given if given to the Depositary for such   global Senior Note (or its designee) according to the applicable procedures of such Depositary prescribed for giving   such notice.   Section 106 Language of Notices.     Any request, demand, authorization, direction, notice, consent or waiver or other Act required or permitted   under this Indenture will be in the English language, except that, if the Company so elects, any published notice may   be in an official language of the country of publication.   Section 107 Incorporation by Reference of Trust Indenture Act; Conflicts.     Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is incorporated by   reference in and made a part of this Indenture.  The following Trust Indenture Act terms used in this Indenture have   the following meanings:   “indenture securities” means the Senior Notes;   “indenture security holder” means a Holder;   “indenture to be qualified” means this Indenture;   “indenture trustee” or “institutional trustee” means the Trustee; and   “obligor” on the Senior Notes means the Company and any successor obligor upon the Senior Notes.   All other terms used in this Indenture that are defined by the Trust Indenture Act, defined by Trust Indenture   Act reference to another statute or defined by Commission rule under the Trust Indenture Act have the meanings so   assigned to them as of the date of this Indenture.  If and to the extent that any provision of this Indenture limits,   qualifies or conflicts with another provision included in this Indenture that is required to be included in this Indenture   by any of Sections 310 to 317, inclusive, of the Trust Indenture Act, such required provision will control.  If any   provision of this Indenture limits, qualifies or conflicts with the duties imposed by Section 318(c) of the Trust   Indenture Act, the duties imposed by Section 318(c) of the Trust Indenture Act will 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   provisions of the Trust Indenture Act will be deemed to apply to this Indenture as so modified or will be excluded, as   the case may be.   Section 108 Effect of Headings and Table of Contents.     The Article and Section headings in this Indenture and the Table of Contents are for convenience only and   will not affect the construction of this Indenture.    Section 109 Successors and Assigns.     All the covenants, stipulations, promises and agreements in this Indenture contained by or in behalf of the   Company or the Trustee will bind its respective successors and permitted assigns, whether so expressed or not.     





 







   9   Section 110 Severability.     In case any provision in this Indenture or any Senior Note will be invalid, illegal or unenforceable, the   validity, legality and enforceability of the remaining provisions will not, to the fullest extent permitted by law, in any   way be affected or impaired thereby.     Section 111 Benefits of Indenture.     Nothing in this Indenture or any Senior Note, express or implied, will give to any Person, other than the   parties hereto, any Registrar, any Paying Agent and their respective successors hereunder and the Holders of Senior   Notes, and the holders of Senior Indebtedness with respect to such Series, any benefit or any legal or equitable right,   remedy or claim under this Indenture.    Section 112 Governing Law.     This Indenture and the Senior Notes will be governed by and construed in accordance with the laws of the   State of [     ] applicable to agreements made or instruments entered into and, in each case, performed in said State   (without reference to principles of conflicts of law).   Section 113 Legal Holidays.     Unless otherwise specified in or under this Indenture or any Senior Notes, in any case where any Interest   Payment Date, Stated Maturity or Maturity of, or any other day on which a payment is due with respect to, any Senior   Note will be a day that is not a Business Day at any Place of Payment, then (notwithstanding any other provision of   this Indenture or any Senior Note other than a provision in any Senior Note or in the Board Resolution, Officers’   Certificate or supplemental indenture establishing the terms of any Senior Note that specifically states that such   provision will apply in lieu hereof) payment need not be made at such Place of Payment on such date, but such payment   may be made on the next succeeding day that is a Business Day at such Place of Payment with the same force and   effect as if made on the Interest Payment Date, at the Stated Maturity or Maturity or on any such other payment date,   as the case may be, and no interest will accrue on the amount payable on such date or at such time for the period from   and after such Interest Payment Date, Stated Maturity, Maturity or other payment date, as the case may be, to the next   succeeding Business Day.   Section 114 Counterparts; Electronic Transmission.     This Indenture may be executed in several counterparts, each of which will be an original and all of which   will constitute but one and the same instrument.  Any facsimile or electronically transmitted copies hereof or signature   hereon will, for all purposes, be deemed originals.     Section 115 Immunity of Certain Persons.     No recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Senior   Note, or because of any indebtedness evidenced thereby, will be had against any past, present or future shareholder,   employee, officer or director, as such, of the Company or of any predecessor or successor, either directly or through   the Company or any predecessor or successor, under any rule of law, statute or constitutional provision or by the   enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly   waived and released by the acceptance of the Senior Notes by the Holders and as part of the consideration for the issue   of the Senior Notes.     Section 116 Waiver of Jury Trial.     EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY   APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY   OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SENIOR NOTES OR THE   TRANSACTIONS CONTEMPLATED HEREBY.     





 







   10   Section 117 Force Majeure.     In no event will 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 will use reasonable efforts that are consistent with   accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.    Section 118 USA Patriot Act.     The Trustee hereby notifies the Company that in accordance with the requirements of the USA Patriot Act,   it is required to obtain, verify and record information that identifies the Company, which information includes the   name and address of the Company and other information that will allow the Trustee to identify the Company in   accordance with the USA Patriot Act.   Section 119 No Sinking Fund.     The Senior Notes are not entitled to the benefit of any sinking fund.   Section 120 Rules of Construction.     Unless the context otherwise requires:     a term has the meaning assigned to it;    an accounting term not otherwise defined has the meaning assigned to it in accordance with   GAAP;    “or” is not exclusive;    words in the singular include the plural, and in the plural include the singular;    “including” means including without limitation;    “will” will be interpreted to express a command;    provisions apply to successive events and transactions;    references to sections of, or rules under, the Securities Act will be deemed to include   substitute, replacement or successor sections or rules adopted by the Commission from time to time;    unless the context otherwise requires, any reference to an “Article,” “Section” or “clause”   refers to an Article, Section or clause, as the case may be, of this Indenture; and    the words “herein,” “hereof” and “hereunder” and other words of similar import refer to   this Indenture as a whole and not any particular Article, Section, clause or other subdivision.   ARTICLE II.   THE SENIOR NOTES   Section 201 Forms Generally.   Each Senior Note and temporary or permanent global Senior Note issued under this Indenture will be in the   form established by or in accordance with a Board Resolution and set forth in an Officers’ Certificate, or established     





 







   11   in one or more indentures supplemental hereto, will have such appropriate insertions, omissions, substitutions and   other variations as are required or permitted by or under this Indenture or any indenture supplemental hereto and may   have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may,   consistently herewith, be determined by the officer of the Company executing such Senior Note as evidenced by the   execution of such Senior Note.   The Senior Note will be issuable in registered form without coupons.   Definitive Senior Notes may be printed, lithographed or engraved or produced by any combination of these   methods on a steel engraved border or steel engraved borders or may be produced in any other manner, all as   determined by the officer of the Company executing such Senior Notes, as evidenced by the execution of such Senior   Notes.   Section 202 Form of Trustee’s Certificate of Authentication.   Subject to Section 512, the Trustee’s certificate of authentication will be in substantially the following form:   This is one of the Senior Notes of the Series designated herein referred to in the within-mentioned Indenture.                            As Trustee             By:                   As Authenticating Signatory      Section 203 Senior Notes in Global Form.   Unless otherwise provided in or under this Indenture or any Senior Notes, the Senior Notes will not be   issuable in global form.  If Senior Notes of a Series will be issuable in temporary or permanent global form, any such   Senior Note may provide that it or any number of such Senior Notes will represent the aggregate amount of all   Outstanding Senior Notes of such Series (or such lesser amount as is permitted by the terms thereof) from time to time   set forth in such Senior Notes in global form, endorsed thereon or reflected on the books and records of the Trustee   and may also provide that the aggregate amount of Outstanding Senior Notes represented thereby may from time to   time be increased or reduced to reflect exchanges. Any endorsement of any Senior Note in global form to reflect the   amount, or any increase or decrease in the amount, or changes in the rights of Holders, of Outstanding Senior Notes   represented thereby will be made in such manner and by such Person or Persons as will be specified therein or in   accordance with Section 204 with respect to such Senior Note or in the Company Order to be delivered in accordance   with Section 205 or Section 207 with respect thereto.  Subject to the provisions of Section 205 and, if applicable,   Section 207, the Trustee will deliver and redeliver any Senior Note in global form in the manner and upon instructions   given by the Person or Persons specified therein or in accordance with Section 204 with respect to such Senior Note   or in the applicable Company Order.  If a Company Order under Section 205 or Section 207 has been, or   simultaneously is, delivered, any instructions by the Company with respect to a Senior Note in global form will be in   writing but need not be accompanied by or contained in an Officers’ Certificate and need not be accompanied by an   Opinion of Counsel.  Notwithstanding the foregoing provisions of this paragraph, in the event a global Senior Note is   exchangeable for definitive Senior Notes as provided in Section 209, then, unless otherwise provided in or under this   Indenture with respect to the Senior Notes of such Series, the Trustee will deliver and redeliver such global Senior   Note to the extent necessary to effect such exchanges, will endorse such global Senior Note to reflect any decrease in   the principal amount thereto resulting from such exchanges and will take such other actions, all as contemplated   by Section 209.   Notwithstanding the provisions of Section 211, unless otherwise specified in or under this Indenture or any   Senior Notes, payment of principal of, and any premium and interest on, any Senior Note in temporary or permanent   global form will be made to the Person or Persons specified therein.     





 







   12   Notwithstanding the provisions of Section 212 and except as provided in the preceding paragraph, the   Company, the Trustee and any agent of the Company or the Trustee will treat as the Holder of such principal amount   of Outstanding Senior Notes represented by a global Senior Note, the Holder of such global Senior Note in registered   form.   Section 204 Amount Unlimited; Issuable in Series.   The aggregate principal amount of Senior Notes that may be authenticated and delivered under this Indenture   is unlimited.  The Company may issue up to the aggregate principal amount of Senior Notes of a Series from time to   time authorized by or under one or more Board Resolutions.   The Senior Notes may be issued in one or more Series.  All Senior Notes of each Series issued under this   Indenture will in all respects be equally and ratably entitled to the benefits hereof with respect to that Series without   preference, priority or distinction on account of the actual time or times of the authentication and delivery or Maturity   of the Senior Notes of such Series.  Unless expressly provided otherwise with respect to a Series, not all Senior Notes   of a Series need be issued at the same time, and, unless otherwise provided in the Senior Notes of that Series or in this   Indenture, a Series may be reopened and the aggregate principal amount of the Senior Notes of a Series may be   increased and additional Senior Notes of that Series may be issued up to a maximum aggregate principal amount   authorized for that Series, as that maximum aggregate principal amount may be increased from time to time. All Senior   Notes of a Series will rank equally among themselves and with the other existing and future unsecured, unsubordinated   indebtedness of the Company.   The Company may from time to time establish one or more Series under this Indenture.  A Series will be   established by the execution and delivery of a supplemental indenture or the adoption of a Board Resolution by the   Board of Directors establishing that Series. The specific terms and conditions of the Senior Notes of any Series   established will be determined and set either (1) by the supplemental indenture that establishes the Series, (2) if the   Series is established by a supplemental indenture, to the extent that those specific terms and conditions are not   determined and set by that supplemental indenture, by the adoption of a Board Resolution or Board Resolutions by   the Board of Directors and, to the extent that those specific terms and conditions are not determined and set by the   supplemental indenture or by the adoption of a Board Resolution or Board Resolutions by the Board of Directors or   by a combination of those means of determining and setting the specific terms and conditions of the Senior Notes of   that Series, by the action of one or more Authorized Officers in accordance with authority to determine and set the   specific terms and conditions of the Senior Notes of that Series specifically delegated by the Board of Directors to that   Authorized Officer or those Authorized Officers or (3) if the Series is established by action of the Board of Directors,   to the extent that those specific terms and conditions are not set by the adoption of a Board Resolution or Board   Resolutions by the Board of Directors, by the action of one or more Authorized Officers in accordance with authority   to determine and set the specific terms and conditions of the Senior Notes of that Series specifically delegated by the   Board of Directors to that Authorized Officer or those Authorized Officers. If the specific terms and specific conditions   of the Senior Notes of a Series are determined and set by action of the Board of Directors, that action will be evidenced   by a Board Resolution. If the specific terms and conditions of the Senior Notes of a Series established by action of the   Board of Directors are determined and set by an Authorized Officer or Authorized Officers in accordance with   authority delegated to them by the Board of Directors, that action will be evidenced by an Officers’ Certificate   executed by the Authorized Officer or Authorized Officers determining and setting those terms and conditions, which   certificate will also be attested to by the Secretary or an Assistant Secretary of the Company. If the specific terms and   conditions of the Senior Notes of a Series established by action of the Board of Directors are determined and set by   an Authorized Officer or Authorized Officers in accordance with authority delegated to them by the Board of Directors   and an Officers’ Certificate has been delivered in connection with the establishment of the terms and conditions of the   Senior Notes of a Series and the issuance of the Senior Notes of that Series, an additional Officers’ Certificate will   not be required to be delivered in connection with any subsequent issuance of additional Senior Notes of that Series.   Upon a Series being established and the specific terms and conditions of the Senior Notes of that Series being   determined and set otherwise than through a supplemental indenture, the Company will cause to be delivered to the   Trustee an Officers’ Certificate certifying that the Series has been established and the specific terms and conditions   of the Senior Notes of the Series have been determined and set and attaching to that Officers’ Certificate (1) the Board   Resolution establishing the Series, (2) the Board Resolution or Board Resolutions determining and setting the specific   terms and conditions of the Senior Notes of that Series or providing for the delegation of authority to one or more     





 







   13   Authorized Officers to determine and set the specific terms and conditions of the Senior Notes of that Series and (3) if   an Authorized Officer or Authorized Officers has determined and set the specific terms and conditions of the Senior   Notes of that Series, attaching the Certificate evidencing the action of that Authorized Officer or those Authorized   Officers. The Officers’ Certificate that is required to be delivered to the Trustee in accordance with the immediately   preceding sentence, may be provided before or at the time of the consummation of the first issuance of Senior Notes   of the Series to which the Officers’ Certificate relates.   Each Board Resolution of the Company determining and setting the specific terms and conditions of the   Senior Notes of a Series, each Officers’ Certificate evidencing the specific terms and conditions of the Senior Notes   of a Series, and each Supplemental Indenture setting forth the terms and conditions of the Senior Notes of a Series,   will set forth the following information as to the terms and conditions of that Series:    the title of the Senior Notes of such Series;    the aggregate principal amount of the Senior Notes of such Series to be initially issued and   sold by the Company and any limit upon the aggregate principal amount of Senior Notes of such Series that may be   authenticated and delivered under this Indenture (except for Senior Notes authenticated and delivered upon registration   of transfer of, or in exchange for, or in lieu of, other Senior Notes of such Series in accordance with Section 207,   Section 209, Section 210, Section 805 or Section 1007, or upon surrender in part of any Senior Note for conversion   or exchange into Common Stock or other securities or property in accordance with its terms), and if from time to time   the Company may issue additional Senior Notes of such Series or establish additional terms of the Senior Notes of   such Series;    if any of such Senior Notes of such Series are to be issuable in global form, when any of   such Senior Notes are to be issuable in global form and (i) whether such Senior Notes are to be issued in temporary   or permanent global form or both, (ii) the conditions upon which Senior Notes in definitive form will be issued to   beneficial owners of Senior Notes of Series; (iii) whether beneficial owners of interests in any such global Senior Note   may exchange such interests for Senior Notes of the same Series and of like tenor and of any authorized form and   denomination, and the circumstances under which any such exchanges may occur, if other than in the manner specified   in Section 209, (iv) the name of the Depositary with respect to any such global Senior Note and (v) if applicable and   in addition to the Persons specified in Section 209, the Person or Persons who will be entitled to make any   endorsements on any such global Senior Note and to give the instructions and take the other actions with respect to   such global Senior Note contemplated by the first paragraph of Section 203;    the date or dates, or the method or methods, if any, by which such date or dates will be   determined, on which the principal and premium, if any, of such Senior Notes is payable;    the rate or rates at which such Senior Notes will bear interest, if any, or the method or   methods, if any, by which such rate or rates are to be determined, the date or dates, if any, from which such interest   will accrue or the method or methods, if any, by which such date or dates are to be determined, the Interest Payment   Dates, if any, on which such interest will be payable and the Regular Record Date, if any, for the interest payable on   such Senior Notes on any Interest Payment Date, the notice, if any, to Holders regarding the determination of interest   on a floating rate Senior Note and the manner of giving such notice, and the basis upon which interest will be calculated   if other than that of a 360-day year of twelve 30-day months;    if in addition to or other than [       ], the place or places where the principal of, any premium   and interest on, such Senior Notes will be payable, any of such Senior Notes may be surrendered for registration of   transfer or exchange, any of such Senior Notes may be surrendered for conversion or exchange, and notices or   demands to or upon the Company in respect of such Senior Notes and this Indenture may be served;    whether any of the Senior Notes are subject to prepayment and, if so, any premium payable   in connection with any such prepayment;     





 







   14    whether any of such Senior Notes are to be redeemable at the option of the Company and,   if so, the date or dates on which, the period or periods within which, the price or prices at which and the other terms   and conditions upon which such Senior Notes may be redeemed, in whole or in part, at the option of the Company;    if the Company is obligated to redeem or purchase any of such Senior Notes at the option   of any Holder thereof and, if so, the date or dates on which, the period or periods within which, the price or prices at   which and the other terms and conditions upon which such Senior Notes will be redeemed or purchased, in whole or   in part, under such obligation, and any provisions for the remarketing of such Senior Notes so redeemed or purchased;    the denominations in which any of such Senior Notes will be issuable if other than   denominations of $1,000 and any integral multiple thereof;    whether the Senior Notes of the Series will be convertible into and/or exchangeable for   Common Stock or other securities or property, and if so, the terms and conditions upon which such Senior Notes will   be so convertible or exchangeable, and any deletions from or modifications or additions to this Indenture to permit or   to facilitate the issuance of such convertible or exchangeable Senior Notes or the administration thereof;    if other than the principal amount thereof, the portion of the principal amount of any of   such Senior Notes that will be payable upon declaration of acceleration of the Maturity thereof in accordance   with Article IV or the method by which such portion is to be determined;    if the amount of payments of principal of, or any premium or interest on, such Senior Notes   may be determined with reference to an index, formula or other method or methods (which index, formula or method   or methods may be based, without limitation, on one or more commodities, equity indices or other indices), and, if so,   the terms and conditions upon which and the manner in which such amounts will be determined and paid or payable;    any affirmative, negative or financial covenants to which the Company will be subject or   obligated to perform so long as any Senior Note of such Series is Outstanding;    any deletions from, modifications of, or additions to, the Events of Default or covenants of   the Company with respect to any of such Senior Notes (whether or not such Events of Default or covenants are   consistent with the Events of Default or covenants set forth herein), and if Section 906 will be applicable with respect   to any such additional covenants;    if any one or more of Section 301 relating to satisfaction and discharge,   Section 302(2) relating to Legal Defeasance or Section 302(3) relating to Covenant Defeasance will not be applicable   to the Senior Notes of such Series, and any covenants in addition to or other than those specified   in Section 302(3) relating to the Senior Notes of such Series that will be subject to Covenant Defeasance, and, if the   Company’s obligation to repurchase or repay such Senior Notes will be subject to satisfaction and discharge in   accordance with Section 301 or to Legal Defeasance or Covenant Defeasance in accordance with Section 302, and, if   the Holders of such Senior Notes have the right to convert or exchange such Senior Notes into Common Stock or   other securities or property, if the right to effect such conversion or exchange will be subject to satisfaction and   discharge in accordance with Section 301 or to Legal Defeasance or Covenant Defeasance in accordance   with Section 302, and any deletions from, or modifications or additions to, the provisions of Article III (including any   modification which would permit satisfaction and discharge, Legal Defeasance or Covenant Defeasance to be effected   with respect to less than all of the outstanding Senior Notes of such Series) in respect of the Senior Notes of such   Series;    if any of such Senior Notes are issuable in global form and are to be issuable in definitive   form (whether upon original issue or upon exchange of a temporary Senior Note) only upon receipt of certain   certificates or other documents or satisfaction of other conditions, then the form and terms of such certificates,   documents or conditions;    if not the Trustee, the identity of each Registrar, Paying Agent or Authenticating Agent   with respect to such Senior Notes;     





 







   15    the Person to whom any interest on any Senior Note of such Series will be payable, if other   than the Person in whose name the Senior Note is registered at the close of business on the Regular Record Date for   such interest, and the extent to which, or the manner in which, any interest payable on a temporary global Senior Note   will be paid if other than in the manner provided in this Indenture; and    any other terms of such Senior Notes and any deletions from or modifications or additions   to this Indenture in respect of such Senior Notes.   The terms of the Senior Notes of any Series may provide, without limitation, that the Senior Notes will be   authenticated and delivered by the Trustee on original issue from time to time upon telephonic or written order of   persons designated in the Board Resolution, Officers’ Certificate or supplemental indenture, as the case may be,   pertaining to such Series of Senior Notes (telephonic instructions to be promptly confirmed in writing by such person)   and that such persons are authorized to determine, consistent with such Board Resolution, Officers’ Certificate or   supplemental indenture, such terms and conditions of the Senior Notes of such Series as are specified in such Board   Resolution, Officers’ Certificate or supplemental indenture. All Senior Notes of any one Series need not be issued at   the same time and, if so provided by the Company as contemplated by this Section 204, a Series may be reopened   from time to time without the consent of any Holders for issuances of additional Senior Notes of such Series or to   establish additional terms of such Series of Senior Notes.   If any of the terms of the Senior Notes of any Series will be established by action taken by or in accordance   with a Board Resolution, the Board Resolution will be delivered to the Trustee at or prior to the delivery of the   Officers’ Certificate setting forth the terms of such Series.   Section 205 Execution and Authentication.   Senior Notes will be executed on behalf of the Company by any Authorized Officer and may (but need not)   have the Company’s corporate seal or a facsimile thereof reproduced thereon.  The signature of an Authorized Officer   on the Senior Notes may be manual or facsimile.  Senior Notes bearing the manual or facsimile signatures of   individuals who were at the time of execution Authorized Officers of the Company will, to the fullest extent permitted   by law, 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 Senior Notes or did not hold such offices at the date of such Senior Notes.   At any time and from time to time after the execution and delivery of this Indenture, the Company may   deliver Senior Notes executed by the Company, to the Trustee for authentication and, provided that the Board   Resolution and Officers’ Certificate or supplemental indenture or indentures with respect to such Senior Notes referred   to in Section 204 and a Company Order for the authentication and delivery of such Senior Notes have been delivered   to the Trustee, the Trustee in accordance with the Company Order and subject to the provisions hereof and of such   Senior Notes will authenticate and deliver such Senior Notes. In authenticating such Senior Notes, and accepting the   additional responsibilities under this Indenture in relation to such Senior Notes, the Trustee will be entitled to receive,   and (subject to Section 315(a) through Section 315(d) of the Trust Indenture Act) will be fully protected in relying   upon, an Opinion of Counsel to the following effect, which Opinion of Counsel may contain such assumptions,   qualifications and limitations as such counsel will deem appropriate: (1) the form or forms and terms of such Senior   Notes have been established in conformity with Section 201 and Section 204 of this Indenture; (2) all conditions   precedent set forth in Section 201, Section 204 and Section 305 of this Indenture to the authentication and delivery of   such Senior Notes have been complied with and that such Senior Notes, when completed by appropriate insertions (if   applicable), executed by duly authorized officers of the Company, delivered by duly authorized officers of the   Company to the Trustee for authentication under this Indenture, and 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 binding obligations of the Company, enforceable against the Company in accordance with their   terms, except as enforcement thereof may be subject to or limited by bankruptcy, insolvency, reorganization,   moratorium, arrangement, fraudulent conveyance, fraudulent transfer or other similar laws relating to or affecting   creditors’ rights generally, and subject to general principles of equity (regardless of whether enforcement is sought in   a proceeding in equity or at law).   If all of the Senior Notes of any Series are not to be issued at one time, it will not be necessary to deliver an   Opinion of Counsel at the time of issuance of each Senior Note, but such opinion, with such modifications as counsel     





 







   16   will deem appropriate, will be delivered at or before the time of issuance of the first Senior Note of such Series. After   any such first delivery, any separate request by the Company that the Trustee authenticate Senior Notes of such Series   for original issue will be deemed to be a certification by the Company that all conditions precedent provided for in   this Indenture relating to authentication and delivery of such Senior Notes continue to have been complied with.   The Trustee will not be required to authenticate or to cause an Authenticating Agent to authenticate any   Senior Notes if the issue of such Senior Notes under this Indenture will affect the Trustee’s own rights, duties or   immunities under the Senior Notes and this Indenture or otherwise in a manner that is not reasonably acceptable to   the Trustee or if the Trustee, being advised by counsel, determines that such action may not lawfully be taken.   Each Senior Note will be dated the date of its authentication.   No Senior Note will be entitled to any benefit under this Indenture or be valid or obligatory for any purpose,   unless there appears on such Senior Note a certificate of authentication substantially in the form provided for   in Section 202 or Section 512 executed by or on behalf of the Trustee or by the Authenticating Agent by the manual   signature of one of its authorized signatories. Such certificate upon any Senior Note will be conclusive evidence, and   the only evidence, that such Senior Note has been duly authenticated and delivered hereunder.   Section 206 Currency; Denominations.   The principal of, and any premium and interest on, the Senior Notes will be payable in Dollars.  Unless   otherwise provided in or under this Indenture, Senior Notes will be issuable in registered form without coupons in   denominations of $1,000 and any integral multiple thereof.   Section 207 Temporary Senior Notes.   Pending the preparation of definitive Senior Notes, the Company may execute and deliver to the Trustee and,   upon Company Order, the Trustee will authenticate and deliver, in the manner provided in Section 303, temporary   Senior Notes in lieu thereof which are printed, lithographed, typewritten, mimeographed or otherwise produced, in   any authorized denomination, substantially of the tenor of the definitive Senior Notes in lieu of which they are issued,   in registered form, without coupons, and with such appropriate insertions, omissions, substitutions and other variations   as the officers of the Company executing such Senior Notes may determine, as conclusively evidenced by their   execution of such Senior Notes.  Such temporary Senior Notes may be in global form.   Except in the case of temporary Senior Notes in global form, which will be exchanged in accordance with   the provisions set forth in this Indenture or the provisions established in accordance with Section 204, if temporary   Senior Notes are issued, the Company will cause definitive Senior Notes to be prepared without unreasonable delay.   Except as otherwise provided in or under this Indenture, after the preparation of definitive Senior Notes of the same   Series and containing terms and provisions that are identical to those of any temporary Senior Notes, such temporary   Senior Notes will be exchangeable for such definitive Senior Notes upon surrender of such temporary Senior Notes at   an office or agency for such Senior Notes, without charge to any Holder thereof. Except as otherwise provided in or   under this Indenture, upon surrender for cancellation of any one or more temporary Senior Notes, the Company will   execute and the Trustee will authenticate and deliver in exchange therefor a like principal amount of definitive Senior   Notes of authorized denominations of the same Series and containing identical terms and provisions. Unless otherwise   provided in or under this Indenture with respect to a temporary global Senior Note, until so exchanged the temporary   Senior Notes of any Series will in all respects be entitled to the same benefits under this Indenture as definitive Senior   Notes of such Series.   Section 208 Registrar and Paying Agent.   With respect to the Senior Notes of each Series, the Company will maintain an office or agency where Senior   Notes of such Series may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency   where Senior Notes of such Series may be presented for payment (“Paying Agent”).  The Registrar will keep a register   of the Senior Notes of such Series (“Senior Note Register”) and of their transfer and exchange. The registered Holder   of a Senior Note will be treated as the owner of the Senior Note for all purposes. The Company may appoint one or     





 







   17   more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the   term “Paying Agent” includes any additional paying agent. The Company may change any Paying Agent or Registrar   without prior notice to any Holder; provided that no such removal or replacement will be effective until a successor   Paying Agent or Registrar will have been appointed by the Company and will have accepted such appointment.  The   Company will notify the Trustee in writing of the name and address of any Registrar or Paying Agent not a party to   this Indenture.  If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee   will act as such.  The Company or any of its Subsidiaries may act as Paying Agent or Registrar.     The Company initially appoints the Trustee to act as the Paying Agent and Registrar for the Senior Notes of   each Series and, in the event that any Senior Notes are issued in global form, to initially act as custodian with respect   to the global Senior Notes.  In the event that the Trustee will not be or will cease to be Registrar with respect the   Senior Notes, it will have the right to examine the Senior Note Register at all reasonable times.  There will be only   one Senior Note Register.   Section 209 Registration of Transfer and Exchange.     Except as otherwise provided in or under this Indenture, upon surrender for registration of transfer of any   Senior Note of any Series at any office or agency for such Series, the Company will execute, and the Trustee will   authenticate and deliver, in the name of the designated transferee or transferees, one or more new Senior Notes of the   same Series denominated as authorized in or under this Indenture, of a like aggregate principal amount bearing a   number not contemporaneously outstanding and containing identical terms and provisions.   Except as otherwise provided in or under this Indenture, at the option of the Holder, Senior Notes of any   Series may be exchanged for other Senior Notes of the same Series containing identical terms and provisions, in any   authorized denominations, and of a like aggregate principal amount, upon surrender of the Senior Notes to be   exchanged at any office or agency for such Series. Whenever any Senior Notes are so surrendered for exchange, the   Company will execute, and the Trustee will authenticate and deliver, the Senior Notes that the Holder making the   exchange is entitled to receive.   Notwithstanding the foregoing, except as otherwise provided in or under this Indenture, the global Senior   Notes of any Series will be exchangeable for definitive certificated Senior Notes of such Series only if (i) the   Depositary for such global Senior Notes notifies the Company that it is unwilling or unable to continue as a Depositary   for such global Senior Notes or at any time the Depositary for such global Senior Notes ceases to be a clearing agency   registered as such under the Exchange Act, if so required by applicable law or regulation, and no successor Depositary   for such Senior Notes will have been appointed within 90 days of such notification or of the Company becoming   aware of the Depositary’s ceasing to be so registered, as the case may be, (ii) the Company, in its sole discretion,   determines that the Senior Notes of such Series will no longer be represented by one or more global Senior Notes and   executes and delivers to the Trustee a Company Order to the effect that such global Senior Notes will be so   exchangeable, or (iii) an Event of Default has occurred and is continuing with respect to such Senior Notes.   If the beneficial owners of interests in a global Senior Note are entitled to exchange such interests for   definitive Senior Notes as the result of an event described in clause (i), (ii) or (iii) of the preceding paragraph, then   without unnecessary delay, but in any event not later than the earliest date on which such interests may be so   exchanged, the Company will deliver to the Trustee definitive Senior Notes in such form and denominations as are   required by or under this Indenture, and of the same Series, containing identical terms and in aggregate principal   amount equal to the principal amount of such global Senior Note, executed by the Company. On or after the earliest   date on which such interests may be so exchanged, such global Senior Note will be surrendered from time to time by   the Depositary (or its custodian) as will be specified in the Company Order with respect thereto (which the Company   agrees to deliver), and in accordance with instructions given to the Trustee and the Depositary (which instructions will   be in writing but need not be contained in or accompanied by an Officers’ Certificate or be accompanied by an Opinion   of Counsel), as will be specified in the Company Order with respect thereto to the Trustee, as the Company’s agent   for such purpose, to be exchanged, in whole or in part, for definitive Senior Notes as described above without charge.   The Trustee will authenticate and make available for delivery, in exchange for each portion of such surrendered global   Senior Note, a like aggregate principal amount of definitive Senior Notes of the same Series of authorized   denominations and of like tenor as the portion of such global Senior Note to be exchanged, which will be in the form   of registered Senior Notes, and which will be in such denominations and registered in such names, as will be specified     





 







   18   by the Depositary; provided, however, that no such exchanges may occur during a period beginning at the opening of   business 15 days before any selection of Senior Notes of the same Series to be redeemed and ending on the relevant   Redemption Date. Promptly following any such exchange in part, such global Senior Note will be returned by the   Trustee to such Depositary (or its custodian) or such other Depositary (or its custodian) referred to above in accordance   with the instructions of the Company referred to above, and the Trustee will endorse such global Senior Note to reflect   the decrease in the principal amount thereof resulting from such exchange. If a Senior Note is issued in exchange for   any portion of a global Senior Note after the close of business at the office or agency for such Senior Note where such   exchange occurs on or after (i) any Regular Record Date for such Senior Note and before the opening of business at   such Office or Agency on the next Interest Payment Date, or (ii) any Special Record Date for such Senior Note and   before the opening of business at such office or agency on the related proposed date for payment of interest or   Defaulted Interest, as the case may be, interest will not be payable on such Interest Payment Date or proposed date for   payment, as the case may be, in respect of such Senior Note, but will be payable on such Interest Payment Date or   proposed date for payment, as the case may be, only to the Person to whom interest in respect of such portion of such   global Senior Note will be payable in accordance with the provisions of this Indenture.   All Senior Notes issued upon any registration of transfer or exchange of Senior Notes will be the valid   obligations of the Company evidencing the same debt and entitling the Holders thereof to the same benefits under this   Indenture as the Senior Notes surrendered upon such registration of transfer or exchange.   Every Senior Note presented or surrendered for registration of transfer or for exchange or redemption will (if   so required by the Company or the Registrar for such Senior Note) be duly endorsed, or be accompanied by a written   instrument of transfer in form satisfactory to the Company and the Registrar for such Senior Note duly executed by   the Holder thereof or his attorney duly authorized in writing.   No service charge will be made for any registration of transfer or exchange of Senior Notes, or any   redemption or repayment of Senior Notes, or any conversion or exchange of Senior Notes for other types of securities   or property, 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 registration of transfer or exchange of Senior Notes, other than exchanges   in accordance with Section 207, Section 805 or Section 1007, upon repayment or repurchase in part of any Senior   Note in accordance with Article X, or upon surrender in part of any Senior Note for conversion or exchange into   Common Stock or other securities or property in accordance with its terms, in each case not involving any transfer.   Except as otherwise provided in or under this Indenture, the Company will not be required (i) to issue, register   the transfer of or exchange any Senior Notes during a period beginning at the opening of business 15 days before the   day of the selection for redemption of Senior Notes of like tenor and terms and of the same Series   under Section 1003 and ending at the close of business on the day of such selection, or (ii) to register the transfer of   or exchange any Senior Note, or portion thereof, so selected for redemption, except in the case of any Senior Note to   be redeemed in part, the portion thereof not to be redeemed.   The Trustee will have no obligation or duty to monitor, determine or inquire as to compliance with any   restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest   in any Senior Note (including any transfers between or among Depositary participants or beneficial owners of interests   in any global Senior Note) other than to require delivery of such certificates and other documentation or evidence as   are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine   the same to determine substantial compliance as to form with the express requirements hereof.   Neither the Trustee nor any Paying Agent will have any responsibility for any actions taken or not taken by   the Depositary.   Section 210 Mutilated, Destroyed, Lost and Stolen Senior Notes.   If any mutilated Senior Note is surrendered to the Trustee, subject to the provisions of this Section 210, the   Company will execute and the Trustee will authenticate and deliver in exchange therefor a new Senior Note of the   same Series containing identical terms and of like principal amount and bearing a number not contemporaneously   outstanding.     





 







   19   If there be delivered to the Company and to the Trustee (i) evidence to their satisfaction of the destruction,   loss or theft of any Senior Note, and (ii) such security or indemnity as may be required by them to save each of them   and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Senior   Note has been acquired by a bona fide purchaser, the Company will execute and, upon the Company’s request the   Trustee will authenticate and deliver, in exchange for or in lieu of any such destroyed, lost or stolen Senior Note, a   new Senior Note of the same Series containing identical terms and of like principal amount and bearing a number not   contemporaneously outstanding.   Notwithstanding the foregoing provisions of this Section 210, in case the outstanding principal balance of   any mutilated, destroyed, lost or stolen Senior Note has become or is about to become due and payable, the Company   in its discretion may, instead of issuing a new Senior Note, pay such Senior Note.   Upon the issuance of any new Senior Note under this Section, the Company may require the payment of a   sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other   expenses (including the fees and expenses of the Trustee) connected therewith.   Every new Senior Note issued in accordance with this Section in lieu of any destroyed, lost or stolen Senior   Note will constitute a separate obligation of the Company, whether or not the destroyed, lost or stolen Senior Note   will be at any time enforceable by anyone, and will be entitled to all the benefits of this Indenture equally and   proportionately with any and all other Senior Notes of the same Series duly issued hereunder.   The provisions of this Section, as amended or supplemented in accordance with this Indenture with respect   to particular Senior Notes or generally, will (to the extent lawful) be exclusive and will preclude (to the extent lawful)   all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Senior   Notes.   Section 211 Payment of Interest; Rights to Interest Preserved.   Unless otherwise provided in or under this Indenture, any interest on any Senior Note that will be payable,   and punctually paid or duly provided for, on any Interest Payment Date will be paid to the Person in whose name such   Senior Note is registered as of the close of business on the Regular Record Date for such interest.   Unless otherwise provided in or under this Indenture, any interest on any Senior Note that will be payable,   but will not be punctually paid or duly provided for, on any Interest Payment Date for such Senior Note (herein called   “Defaulted Interest”) will cease to be payable to the Holder thereof on the relevant Regular Record Date by virtue of   having been such Holder; and such Defaulted Interest may be paid by the Company, at its election in each case, as   provided in clause (1) or (2) below:    The Company may elect to make payment of any Defaulted Interest to the Person in whose   name such Senior Note will be registered at the close of business on a Special Record Date for the payment of such   Defaulted Interest, which will be fixed in the following manner.  The Company will notify the Trustee in writing of   the amount of Defaulted Interest proposed to be paid on such Senior Note and the date of the proposed payment, and   at the same time the Company will deposit with the Trustee an amount of money equal to the aggregate amount   proposed to be paid in respect of such Defaulted Interest or will make arrangements satisfactory to the Trustee for   such deposit on or prior to the date of the proposed payment, such money when so deposited to be held in trust for the   benefit of the Person entitled to such Defaulted Interest as in this clause provided. Thereupon, the Company will fix   or cause to be fixed a Special Record Date for the payment of such Defaulted Interest, which will 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 Company (or, upon the written request of the Company, the   Trustee in the name and at the expense of the Company), will cause notice of the proposed payment of such Defaulted   Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to the Holder of such Senior   Note at the Holder’s address as it appears in the Senior Note Register not less than 10 days prior to such Special   Record Date.  The Company 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 an Authorized Newspaper of general circulation in the [            ], but such   publication will 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     





 







   20   Defaulted Interest will be paid to the Person in whose name such Senior Note will be registered at the close of business   on such Special Record Date and will no longer be payable under the following clause (2).    The Company may make payment of any Defaulted Interest in any other lawful manner   not inconsistent with the requirements of any securities exchange on which such Senior Note may be listed, and upon   such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed   payment under this Clause, such payment will be deemed practicable by the Trustee.   Unless otherwise provided in or under this Indenture or the Senior Notes of any particular Series, at the option   of the Company, interest on Senior Notes that bear interest may be paid by mailing a check to the address of the Person   entitled thereto as such address will appear in the Senior Note Register or by transfer to an account maintained by the   payee with a bank located in the United States of America.   Subject to the foregoing provisions of this Section and Section 208, each Senior Note delivered under this   Indenture upon registration of transfer of or in exchange for or in lieu of any other Senior Note will carry the rights to   interest accrued and unpaid, and to accrue, which were carried by such other Senior Note.   Section 212 Persons Deemed Owners.   Prior to due presentment of a Senior Note for registration of transfer, the Company, the Trustee and any agent   of the Company or the Trustee may treat the Person in whose name such Senior Note is registered in the Senior Note   Register as the owner of such Senior Note for the purpose of receiving payment of principal of, and (subject to   Section 208 and Section 211) interest on, such Senior Note and for all other purposes whatsoever, whether or not any   payment with respect to such Senior Note will be overdue, and neither the Company, the Trustee or any agent of the   Company or the Trustee will be affected by notice to the contrary.   No holder of any beneficial interest in any global Senior Note held on its behalf by a Depositary will have   any rights under this Indenture with respect to such global Senior Note, 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 Senior Note for all   purposes whatsoever.  None of the Company, the Trustee, any Paying Agent or the Registrar will have any   responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership   interests of a global Senior Note or for maintaining, supervising or reviewing any records relating to such beneficial   ownership interests.   Notwithstanding the foregoing, nothing herein will prevent the Company, the Trustee, any Paying Agent or   the Registrar from giving effect to any written certification, proxy or other authorization furnished by the applicable   Depositary, as a Holder, with respect to a global Senior Note or impair, as between such Depositary and the owners   of beneficial interests in such global Senior Note, the operation of customary practices governing the exercise of the   rights of such Depositary (or its nominee) as the Holder of such global Senior Note.   Section 213 Cancellation.   All Senior Notes surrendered for payment, redemption, registration of transfer or exchange will, if   surrendered to any Person other than the Trustee, be delivered to the Trustee, and any such Senior Notes, as well as   Senior Notes surrendered directly to the Trustee for any such purpose, will be cancelled promptly by the Trustee.  The   Company may at any time deliver to the Trustee for cancellation any Senior Notes previously authenticated and   delivered hereunder which the Company may have acquired in any manner whatsoever, and all Senior Notes so   delivered will be cancelled promptly by the Trustee.  No Senior Notes will be authenticated in lieu of or in exchange   for any Senior Notes cancelled as provided in this Section, except as expressly permitted by or under this Indenture.    All cancelled Senior Notes held by the Trustee will be disposed of in accordance with its procedure for the disposition   of cancelled Senior Notes, and the Trustee upon the written request of the Company will deliver to the Company a   certificate of such disposition, or if directed by a Company Order returned to the Company.     





 







   21   Section 214 Computation of Interest.   Except as otherwise provided in or under this Indenture or in the Senior Notes of any Series, interest on the   Senior Notes will be computed on the basis of a 360-day year of twelve 30-day months and, for any period less than   a full month, on the number of days actually elapsed.   Section 215 CUSIP Numbers.    The Company may issue the Senior Notes with one or more “CUSIP” numbers (if then generally in use).  The   Company will promptly notify the Trustee of any change in the CUSIP numbers.  The Trustee may use “CUSIP”   numbers in notices (including but not limited to notices of redemption or exchange) as a convenience to Holders;   provided that any such notice may state that no representation is made as to the correctness of such numbers either as   printed on the Senior Notes or as contained in any notice (including any notice of redemption or exchange) and that   reliance may be placed only on the other identification numbers printed on the Senior Notes, and any such notice will   not be affected by any defect in or omission of such numbers.   ARTICLE III.   SATISFACTION AND DISCHARGE OF INDENTURE   Section 301 Satisfaction and Discharge.   This Indenture will cease to be of further effect with respect to any Series of Senior Notes, and the Trustee,   on receipt of a Company Order, at the expense of the Company, will execute proper instruments acknowledging   satisfaction and discharge of this Indenture as to such Series, when    either   (a) all Senior Notes of such Series theretofore authenticated and delivered (other than   (i) Senior Notes that have been destroyed, lost or stolen and which have been replaced or paid as provided in   Section 210 and (ii) Senior Notes of such Series 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 903) have been delivered to the Trustee for cancellation; or   (b) all Senior Notes of such Series that have not been delivered to the Trustee for   cancellation (i) have become due and payable, or (ii) will become due and payable at their Stated Maturity within one   year, or (iii) if redeemable at the option of the Company, 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 (i), (ii) or (iii) above, has deposited or caused to be   deposited with the Trustee as trust funds in trust for such purpose, an amount sufficient to pay and discharge the entire   indebtedness on such Senior Notes not theretofore delivered to the Trustee for cancellation, including the principal of,   and interest on, such Senior Notes, to the date of such deposit (in the case of Senior Notes which have become due   and payable) or to the Maturity thereof, as the case may be;    the Company has paid or caused to be paid all other sums payable hereunder by the   Company with respect to the Outstanding Senior Notes of such Series; and    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 as to such Series have been satisfied.   Notwithstanding the satisfaction and discharge of this Indenture with respect to any such Series of Senior   Notes, the obligations of the Company to the Trustee under Section 507 and, if money will have been deposited with   the Trustee in accordance with Section 301(1)(b), the obligations of the Company and the Trustee with respect to the   Senior Notes of such Series under Section 303 and Section 903, any rights of Holders to require the Company to     





 







   22   repurchase or repay, and any rights of Holders to convert or exchange, and the obligations of the Company to convert   or exchange, such Senior Notes into Common Stock or other securities or property, will survive.   Section 302 Defeasance and Covenant Defeasance.    The Company may at its option and at any time, elect to have Section 302(2) or   Section 302(3) be applied to such Series of Outstanding Senior Notes upon compliance with the conditions set forth   below in this Section 302.  Legal Defeasance and Covenant Defeasance may be effected only with respect to all, and   not less than all, of the Outstanding Senior Notes of any Series.      Upon the Company’s exercise of the above option applicable to this Section 302(2), the   Company will be deemed to have been discharged from its obligations with respect to the Outstanding Senior Notes   of such Series on the date the conditions set forth in clause (4) of this Section 302 are satisfied (“Legal Defeasance”).    For this purpose, Legal Defeasance means that the Company will be deemed to have paid and discharged the entire   indebtedness represented by the Outstanding Senior Notes of such Series, which will thereafter be deemed to be   “Outstanding” only for the purposes of Section 302(5) and the other Sections of this Indenture referred to in clauses   (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under such Senior Notes and this   Indenture insofar as such Senior Notes are concerned (and the Trustee, at the expense of the Company, will execute   proper instruments acknowledging the same), except for the following which will survive until otherwise terminated   or discharged hereunder: (i) the rights of Holders of the Outstanding Senior Notes of such Series to receive, solely   from the trust fund described in Section 302(4)(a) and as more fully set forth in this Section 302 and Section 303,   payments in respect of the principal of and interest, if any, on, such Senior Notes when such payments are due, (ii) the   obligations of the Company and the Trustee with respect to the Senior Notes of such Series under Section 208,   Section 210, Section 902 and Section 903, (iii) the rights, powers, trusts, duties and immunities of the Trustee   hereunder and (iv) this Section 302 and Section 303.  The Company may exercise its option under this Section 302(2)   notwithstanding the prior exercise of its option under Section 302(3) with respect to the Senior Notes of such Series.    Upon the Company’s exercise of the above option applicable to this Section 302(3) with   respect to any Senior Notes of or within a Series, the Company will be released from its obligations under clauses (ii)   and (iii) of Section 904 and under Section 905, Section 906 and Section 907 on and after the date the conditions set   forth in Section 302(4) are satisfied (“Covenant Defeasance”), and the Senior Notes of such Series will thereafter be   deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders   (and the consequences of any thereof) in connection with any such covenant, but will continue to be deemed   “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that with respect   to the Outstanding Senior Notes of such Series, the Company may omit to comply with, and will have no liability in   respect of, any term, condition or limitation set forth in any such Section or any such other covenant, whether directly   or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of   reference in any such Section or such other covenant to any other provision herein or in any other document and such   omission to comply will not constitute a default, but, except as specified above, the remainder of this Indenture and   such Senior Notes will be unaffected thereby.    The following will be the conditions to application of Section 302(2) or Section 302(3) to   any Outstanding Senior Notes of or within a Series:   (a) The Company will irrevocably have deposited or caused to be deposited with the   Trustee (or another trustee satisfying the requirements of Section 508 who will agree to comply with the provisions   of this Section 302 applicable to it) as trust funds in trust for the purpose of making the following payments,   specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (i) an amount in Dollars,   (ii) Government Obligations that through the scheduled payment of principal and interest in respect thereof in   accordance with their terms will provide, not later than one day before the due date of any payment of principal of and   interest, if any, on such Senior Notes, money or (iii) a combination thereof, in any case, in an amount, sufficient,   without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm   of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and   discharge, and which will be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of   and interest, if any, on, such Outstanding Senior Notes on the Stated Maturity of such principal or installment of   principal or interest or the applicable Redemption Date, as the case may be.     





 







   23   (b) Such Legal Defeasance or Covenant Defeasance will not result in a breach or   violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the   Company or any Subsidiary is a party or by which it is bound.   (c) No Event of Default or event which with notice or lapse of time or both would   become an Event of Default with respect to such Senior Notes will have occurred and be continuing on the date of   such deposit, and, solely in the case of Legal Defeasance under Section 302(2), no Event of Default, or event which   with notice or lapse of time or both would become an Event of Default, under Section 401 will have occurred and be   continuing at any time during the period ending on and including the 91st day after the date of such deposit (it being   understood that this condition to Legal Defeasance under Section 302(2) will not be deemed satisfied until the   expiration of such period).   (d) In the case of Legal Defeasance, the Company will have delivered to the Trustee   an Opinion of Counsel reasonably acceptable to the Trustee stating that (i) the Company has received from, or there   has been published by, the Internal Revenue Service a ruling, or (ii) since the date of this Indenture there has been a   change in applicable federal income tax law, in either case to the effect that, and based thereon such opinion of   independent counsel will confirm that, the Holders of such Outstanding Senior Notes will not recognize income, gain   or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax   on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance   had not occurred.   (e) In the case of Covenant Defeasance, the Company will have delivered to the   Trustee an Opinion of Counsel reasonably acceptable to the Trustee to the effect that the Holders of such Outstanding   Senior Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant   Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times   as would have been the case if such Covenant Defeasance had not occurred.   (f) The Company will have delivered to the Trustee an Officers’ Certificate and an   Opinion of Counsel, each stating that all conditions precedent to the Legal Defeasance or Covenant Defeasance, as   the case may be, under this Indenture have been satisfied.   (g) If the moneys or Government Obligations or combination thereof, as the case may   be, deposited under Section 302(4)(a) above are sufficient to pay the principal of, and interest, if any, on, such Senior   Notes provided such Senior Notes are redeemed on a particular Redemption Date, the Company will have given the   Trustee irrevocable instructions to redeem such Senior Notes on such date and to provide notice of such redemption   to Holders as provided in or under this Indenture.   (h) The Trustee will have received such other documents, assurances and Opinions   of Counsel as the Trustee will have reasonably required.    Subject to the provisions of the last paragraph of Section 903, all money and Government   Obligations deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 302(5),   the “Trustee”) in accordance with Section 302(4)(a) in respect of any Outstanding Senior Notes will be held in trust   and applied by the Trustee, in accordance with the provisions of such Senior Notes and this Indenture, to the payment,   either directly or through any Paying Agent (other than the Company or any Subsidiary or Affiliate of the Company   acting as Paying Agent) as the Trustee may determine, to the Holders of all sums due and to become due thereon in   respect of principal and interest but such money and Government Obligations need not be segregated from other funds,   except to the extent required by law.   The Company will pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed   against the Government Obligations deposited in accordance with this Section 302 or the principal or interest received   in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the   Outstanding Senior Notes.     





 







   24   Section 303 Application of Trust Money.   Subject to the provisions of the last paragraph of Section 903, all money and Government Obligations   deposited with the Trustee in accordance with Section 301 or Section 302 will be held in trust and applied by the   Trustee, in accordance with the provisions of such Senior Notes subject to discharge under Section 301 or Legal   Defeasance or Covenant Defeasance under Section 302, 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 interest for whose payment such money has or Government Obligations   have been deposited with or received by the Trustee; but such money and Government Obligations need not be   segregated from other funds, except to the extent required by law.   Section 304 Reinstatement.   If the Trustee (or other qualifying trustee appointed in accordance with Section 302(4)(a)) or any Paying   Agent is unable to apply any moneys or Government Obligations deposited in accordance with Section 301(1) or   Section 302(4)(a) to pay any principal of, or interest, if any, on, the Senior Notes of any Series by reason of any legal   proceeding or any order or judgment of any court or governmental authority enjoining, restraining or otherwise   prohibiting such application, then the Company’s obligations under this Indenture and the Senior Notes of such Series   will be revived and reinstated as though no such deposit had occurred, until such time as the Trustee (or other   qualifying trustee) or Paying Agent is permitted to apply all such moneys and Government Obligations to pay the   principal of, and interest, if any, on the Senior Notes of such Series as contemplated by Section 301 or Section 302 as   the case may be; provided, however, that if the Company makes any payment of the principal of, or interest if any on,   the Senior Notes of such Series following the reinstatement of its obligations as aforesaid, the Company will be   subrogated to the rights of the Holders of such Senior Notes to receive such payment from the funds held by the   Trustee (or other qualifying trustee) or Paying Agent.   ARTICLE IV.   REMEDIES   Section 401 Events of Default; Acceleration.   “Events of Default,” wherever used in this Indenture with respect to Senior Notes of any Series, means any   one of the following events (whatever the reason for such Event of Default and whether it will be voluntary or   involuntary or be effected by operation of law or in accordance with any judgment, decree, or order of any court or   any order, rule, or regulation of any administrative or governmental body) unless such event is specifically deleted or   modified in or in accordance with the supplemental indenture, Board Resolution or Officers’ Certificate establishing   such Series of Senior Notes or the terms of the Senior Notes of such Series in accordance with this Indenture:    default in the payment of any interest on any of the Senior Notes of such Series when such   interest becomes due and payable, and continuance of such default for a period of 30 days; or    default in the payment of any principal of or premium, if any, on any of the Senior Notes   of such Series when due (whether at Maturity or otherwise and whether payable in cash or in shares of Common Stock   or other securities or property); or    default in the performance, or breach, of any covenant or warranty of the Company in this   Indenture or any Senior Note of such Series (other than a covenant or warranty for which the consequences of breach   or nonperformance are addressed elsewhere in this Section 401 or a covenant or warranty which has expressly been   included in this Indenture, whether or not by means of a supplemental indenture, solely for the benefit of Senior Notes   of a Series other than such Series), and continuance of such default or breach (without such default or breach having   been waived in accordance of the provisions of this Indenture) for a period of 90 days after there has been given, by   registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at   least 25% in principal amount of the Outstanding Senior Notes of such Series a written notice specifying such default   or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or     





 







   25    the entry of a decree or order for relief in respect of the Company by a court having   jurisdiction in the premises in an involuntary case or proceeding under any applicable bankruptcy, insolvency, or   reorganization law, now or hereafter in effect of the United States of America or any political subdivision thereof, and   such decree or order will have continued unstayed and in effect for a period of 60 consecutive days; or    the commencement by the Company of a voluntary case under any applicable bankruptcy,   insolvency or reorganization law, now or hereafter in effect of the United States of America or any political subdivision   thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding   under any such law; or    any other Event of Default provided in or under this Indenture with respect to Senior Notes   of such Series.   Unless the supplemental indenture, Board Resolution or Officers’ Certificate establishing or evidencing the   establishment of a Series of Senior Notes or the terms of the Senior Notes of a Series under this Indenture will provide   otherwise, if an Event of Default (other than an Event of Default specified in clause (4) or (5) of Section 401) with   respect to Senior Notes of any Series occurs and is continuing, then either the Trustee or the Holders of not less than   25% in aggregate principal amount of the Outstanding Senior Notes of such Series may declare the principal of all the   Senior Notes of such Series, or such lesser amount as may be provided for in the Senior Notes of such Series, and   accrued and unpaid interest, if any, thereon to be due and payable immediately, by a notice in writing to the Company   (and to the Trustee if given by the Holders), and upon any such declaration such principal or such lesser amount, as   the case may be, and such accrued and unpaid interest will become immediately due and payable. If an Event of   Default specified in clause (4) or (5) of Section 401 occurs, then the principal amount of all of the Senior Notes of   such Series Outstanding, or such lesser amount as may be provided for in the Senior Notes of such Series, and accrued   and unpaid interest, if any, on all Senior Notes of all Series Outstanding will become and be immediately due and   payable without any declaration or other act on the part of the Trustee or any Holder of the Senior Notes of such   Series.   At any time after the occurrence of an Event of Default with respect to Senior Notes of one or more Series   and before a judgment or decree for payment of the money due has been obtained by the Trustee as provided below   in this Article IV, the Holders of not less than a majority in aggregate principal amount of the Outstanding Senior   Notes of all affected Series (voting as one class), by written notice to the Company and the Trustee may waive all   defaults with respect to all affected Series, and may rescind and annul the consequences of the Event of Default, if:   (1) the Company has paid or deposited with the Trustee a sum of money sufficient to pay (or, to the extent that the   terms of the Senior Notes of such Series established in accordance with Section 204 expressly provide for payment to   be made in shares of Common Stock or other securities or property, shares of Common Stock or other securities or   property, together with cash in lieu of fractional shares or securities, sufficient to pay) (a) all overdue installments of   any interest on any Senior Notes of such Series that have become due otherwise than by such declaration of   acceleration, (b) the principal of and any premium on any Senior Notes of such Series which have become due   otherwise than by such declaration of acceleration and, to the extent permitted by applicable law, interest thereon at   the rate or respective rates, as the case may be, provided for in or with respect to such Senior Notes, or, if no such rate   or rates are so provided, at the rate or respective rates, as the case may be, of interest borne by such Senior Notes, (c)   to the extent permitted by applicable law, interest upon installments of any interest, if any, which have become due   otherwise than by such declaration of acceleration at the rate or respective rates, as the case may be, provided for in   or with respect to such Senior Notes, or, if no such rate or rates are so provided, at the rate or respective rates, as the   case may be, of interest borne by such Senior Notes, 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 all   other amounts due the Trustee under Section 406; and (2) all Events of Default with respect to Senior Notes of all   affected Series other than the nonpayment of the principal of, or any premium and interest on, Senior Notes of the   affected Series that will have become due solely by such acceleration, will have been cured or waived as provided in   Section 412.   No such rescission will affect any subsequent default or impair any right consequent thereon.     





 







   26   Section 402 Collection of Indebtedness and Suits for Enforcement by Trustee.   The Company covenants that if:    default is made in the payment of any interest on any Senior Note when such interest   becomes due and payable and such default continues for a period of 30 days,    default is made in the payment of the principal of (or premium, if any, on) any Senior Note   at its Maturity,   the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such   Senior Notes, the whole amount then due and payable with respect to such Senior Notes, with interest upon the overdue   principal, any premium and, to the extent permitted by applicable law, upon any overdue installments of interest at   the rate or respective rates, as the case may be, provided for or with respect to such Senior Notes or, if no such rate or   rates are so provided, at the rate or respective rates, as the case may be, of interest borne by such Senior Notes, subject,   however, to any limitation on such obligation of the Company to pay such amounts as will be set forth in the   supplemental indenture, Board Resolution or Officers’ Certificate establishing or evidencing the establishment of a   Series of Senior Notes or the terms of the Series of Senior Notes of which such Senior Note is a part under this   Indenture, and, in addition thereto, such further amount of money as will be sufficient to cover the costs and expenses   of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents   and counsel and all other amounts due to the Trustee under Section 507.   If the Company fails to pay the money it is required to pay the Trustee under the preceding paragraph   forthwith upon the demand of the Trustee, 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, may prosecute such proceeding to judgment or   final decree, and may enforce the same against the Company or any other obligor upon such Senior Notes and collect   the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or   any other obligor upon such Senior Notes, wherever situated.   If an Event of Default with respect to Senior Notes 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 Senior Notes of such Series   by such appropriate judicial proceedings as the Trustee will 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 in this Indenture, or to enforce any other proper remedy.   Section 403 Trustee May File Proofs of Claim.   In case of any judicial proceeding relative to the Company (or any other obligor upon the Senior Notes), its   property or its creditors, the Trustee will be entitled and empowered, by intervention in such proceeding or otherwise,   to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the   Trustee allowed in any such proceeding.  In particular, the Trustee will be authorized to    file and prove a claim for the whole amount, or such lesser amount as may be provided for   in the Senior Notes of such Series, of the principal and any premium and interest owing and unpaid in respect of such   Senior Notes and to file such other papers or documents as may be necessary or advisable in order to have the claims   of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the   Trustee, its agents or counsel) and of the Holders of such Senior Notes allowed in such judicial proceeding, and    collect and receive any moneys or other property payable or deliverable on any such claims   and to distribute the same;   and any custodian, receiver, assignee, trustee, liquidator, sequestrator, or other similar official in any such judicial   proceeding is authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee will   consent to the making of such payments directly to the Holders and to pay to the Trustee any amount due it for the     





 







   27   reasonable compensation, expenses, disbursements, and advances of the Trustee, its agents and counsel, and any other   amounts due the Trustee under Section 507.   No provision of this Indenture will be deemed to authorize the Trustee to authorize or consent to or accept or   adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment, or composition affecting the   Senior Notes or the rights of any Holder or to authorize the Trustee to vote in respect of the claim of any Holder in   any such proceeding; provided, however, the Trustee may vote on behalf of the Holders for the election of a trustee in   bankruptcy or similar official and may be a member of a creditors, or other similar committee.   Section 404 Trustee May Enforce Claims Without Possession of Senior Notes.   All rights of action and claims under this Indenture or the Senior Notes may be prosecuted and enforced by   the Trustee without the possession of any of the Senior Notes or the production of such Senior Notes in any related   proceeding, and any such proceeding instituted by the Trustee will be brought in its own name as trustee of an express   trust, and any recovery of judgment will, after provision for the payment of the reasonable compensation, expenses,   disbursements, and advances of the Trustee, its agents, and counsel, be for the ratable benefit of the Holders in respect   of which such judgment has been recovered.   Section 405 Application of Money Collected.   Any money collected by the Trustee in accordance with this Article IV or, after an Event of Default, any   money or other property distributable in respect of the Company’s obligations under this Indenture will be applied in   the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account   of principal or any interest, upon presentation of the Senior Notes and the notation on such Senior Notes of the payment   if only partially paid and upon surrender of such Senior Notes if fully paid:   FIRST: To the payment of all amounts due the Trustee (including any predecessor trustee) under Section 507;    SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and interest   on the Senior Notes 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 aggregate amounts due and payable on such Senior Notes for   principal and any premium and interest, respectively; and   THIRD: The balance, if any, to the Person or Persons entitled thereto.   Section 406 Limitation on Suits.   No Holder of any Senior Note of any Series will have any right to institute any proceeding, judicial or   otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy under   this Indenture, unless:    such Holder has previously given written notice to the Trustee of a continuing Event of   Default with respect to the Senior Notes of that Series;    the Holders of not less than 25% in aggregate principal amount of the Outstanding Senior   Notes of that Series will have made written request to the Trustee to institute proceedings in respect of such Event of   Default in its own name as Trustee under the Indenture;    such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to   the Trustee against the costs, expenses, and liabilities to be incurred in compliance with such request;    the Trustee for 60 days after its receipt of such notice, request, and offer of indemnity has   failed to institute any such proceeding; and     





 







   28    no direction inconsistent with such written request has been given to the Trustee during   such 60-day period by the Holders of a majority in principal amount of the Outstanding Senior Notes of that Series;   it being understood and intended that no one or more of such Holders will have any right in any manner whatever by   virtue of, or by availing of, any provision of this Indenture to affect, disturb, or prejudice the rights of any other of   such Holders, 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 provided in this Indenture and for the equal and ratable benefit of all   of such Holders.   Section 407 Unconditional Right of Holders to Payments.   Notwithstanding any other provision in this Indenture, the Holder of any Senior Note will have the right,   which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to   Section 208 and Section 211) any interest on such Senior Note on the respective Stated Maturity or Maturities   expressed in such Senior Note (or, in the case of redemption, on the Redemption Date), and to institute suit for the   enforcement of any such payment and such rights will not be impaired without the consent of such Holder.      Section 408 Restoration of Rights and Remedies.   If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture   and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the   Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company,   the Trustee and the Holders will be restored severally and respectively to their former positions under this Indenture,   and thereafter all rights and remedies of the Trustee and the Holders will continue as though no such proceeding had   been instituted.   Section 409 Rights and Remedies Cumulative.   Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost, or   stolen Senior Notes in the last paragraph of Section 210, no right or remedy conferred in this Indenture upon or   reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and   remedy will, to the extent permitted by law, be cumulative and in addition to every other right and remedy given under   this Indenture or now or in the future existing at law or in equity or otherwise.  The assertion or employment of any   right or remedy under this Indenture, or otherwise, will not prevent the concurrent assertion or employment of any   other appropriate right or remedy.   Section 410 Delay or Omission Not Waiver.   No delay or omission of the Trustee or of any Holder of any Senior Notes to exercise any right or remedy   accruing upon any Event of Default will impair any such right or remedy or constitute a waiver of or acquiescence in   any such Event of Default.  Every right and remedy given by this Article or by law to the Trustee or to the Holders   may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as   the case may be.   Section 411 Control by Holders.   The Holders of a majority in aggregate principal amount of the Outstanding Senior Notes of any Series will   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 Senior Notes of such Series,   provided that    such direction will not violate any rule of law or this Indenture or the Senior Notes of any   Series,     





 







   29    the Trustee may take any other action deemed proper by the Trustee which is not   inconsistent with such direction, and    the Trustee will have the right to decline to follow any such direction if the Trustee in good   faith will, by a Responsible Officer or Officers of the Trustee, determine that the proceeding so directed would involve   the Trustee in personal liability.      Section 412 Waiver of Past Defaults.   The Holders of not less than a majority in aggregate principal amount of the Outstanding Senior Notes of any   Series may on behalf of the Holders of all the Senior Notes of such Series waive any past default under this Indenture   with respect to such Series and its consequences, except a default in the payment of the principal of, or any premium   or interest on, any Senior Note of such Series, or in respect of a covenant or provision of this Indenture which under   Article VIII cannot be modified or amended without the consent of the Holder of each Outstanding Senior Note of   such Series.   Upon any such waiver, such default will cease to exist, and any Event of Default arising from such default   will be deemed to have been cured, for every purpose of this Indenture; but no such waiver will extend to any   subsequent or other default or impair any consequent right.   Section 413 Undertaking for Costs.   All parties to this Indenture agree, and each Holder of any Senior Notes by his acceptance of such Senior   Notes will be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of   any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered, or omitted   by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that   such court may in its discretion assess reasonable costs, including reasonable attorney’s 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 413 will not apply to any suit instituted by the Company, to any suit   instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than   10% in principal amount of the Outstanding Senior Notes 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, if any, on any Senior Notes on or after   the Stated Maturity or Maturities expressed in such Senior Notes (or, in the case of redemption, on or after the   Redemption Date) or for the enforcement of the right, if any, to convert or exchange any Senior Note into Common   Stock or other securities in accordance with its terms).     ARTICLE V.   THE TRUSTEE   Section 501 Duties of Trustee.    If an Event of Default has occurred and is continuing, the Trustee will exercise such of the   rights and powers vested in it hereby, and use the same degree of care and skill in its exercise, as a prudent person   would exercise or use under the circumstances in the conduct of such person’s own affairs.    Except during the continuance of an Event of Default:   (a) the duties of the Trustee will be determined solely by the express provisions   hereof and the Trustee need perform only those duties that are specifically set forth herein and no others, and no   implied covenants or obligations will be read into this Indenture against the Trustee; and   (b) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the   truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished   to the Trustee and conforming to the requirements hereof; however, the Trustee will examine the certificates and     





 







   30   opinions to determine whether or not they conform to the requirements hereof (but need not confirm or investigate the   accuracy of mathematical calculations or other facts stated therein).    Whether or not therein expressly so provided, every provision hereof that in any way relates   to the Trustee is subject to paragraphs (1) and (2) of this Section 501 and to Section 502.    No provision hereof will require the Trustee to expend or risk its own funds or incur any   liability.  The Trustee will be under no obligation to exercise any of its rights and powers under this Indenture at the   request of any Holders, unless such Holder has offered to the Trustee security and indemnity reasonably satisfactory   to it against any loss, liability or expense.    The Trustee will not be liable for interest on any money received by it except as the Trustee   may agree in writing with the Company.  Money held in trust by the Trustee need not be segregated from other funds   except to the extent required by law.   Section 502 Certain Rights of Trustee.   Subject to Section 315(a) through Section 315(d) of the Trust Indenture Act:    the Trustee may conclusively rely and will be protected in acting or refraining from acting   upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond,   debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have   been signed or presented by the proper party or parties;    any request or direction of the Company mentioned herein will be sufficiently evidenced   by a Company Request or a Company Order (in each case, other than delivery of any Senior Note, to the Trustee for   authentication and delivery in accordance with Section 204 which will be sufficiently evidenced as provided therein)   and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;      whenever in the administration of this Indenture the Trustee will deem it desirable that a   matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other   evidence will be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’   Certificate or Opinion of Counsel, or both, which will comply with Section 102;    before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an   Opinion of Counsel or both.  The Trustee will not be liable for any action it takes or omits to take in good faith in   reliance on such Officers’ Certificate or Opinion of Counsel.  The Trustee may consult with counsel and the written   advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection from liability   in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.  The Trustee   may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent   appointed with due care.    the Trustee will be under no obligation to exercise any of the rights or powers vested in it   by or under this Indenture at the request or direction of any Holder(s) of Senior Notes of any Series under this   Indenture, unless such Holder(s) will have offered to the Trustee security or indemnity satisfactory to the Trustee   against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction;    the Trustee will not be bound to make any investigation into the facts or matters stated in   any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond,   debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may   make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee will determine   to make such further inquiry or investigation, it will be entitled to examine, during business hours and upon reasonable   notice, the books, records and premises of the Company, personally or by agent or attorney, at the sole cost of the   Company and will incur no liability or additional liability of any kind by reason of such inquiry or investigation;     





 







   31    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 will not be responsible for any   misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;    the Trustee will not be liable for any action taken, suffered or omitted to be taken by it in   good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon   it by this Indenture;    in no event will 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;    The Trustee will not be required to take notice or be deemed to have notice of any Event   of Default, except failure by the Company to pay or cause to be made any of the payments required to be made to the   Trustee, unless a Responsible Officer will be specifically notified by a writing of such default by the Company or by   the Holders of at least 25% in aggregate principal amount of the then Outstanding Senior Notes delivered to the   Corporate Trust Office of the Trustee and in the absence of such notice so delivered the Trustee may conclusively   assume no Event of Default exists;    the rights, privileges, protections, immunities and benefits given to the Trustee, including,   without limitation, its right to be indemnified, are extended to, and will be enforceable by, the Trustee in each of its   capacities hereunder, and each agent, custodian and other Person employed to act hereunder; and    the Trustee may request that the Company deliver a certificate setting forth the names of   individuals and/or titles of officers authorized at such time to take specified actions under this Indenture.   Section 503 Notice of Defaults.   Within 90 days after the Trustee is notified of the occurrence of any default hereunder with respect to the   Senior Notes of any Series, the Trustee will transmit by mail to all Holders of such Series entitled to receive reports   in accordance with Section 603(3), notice of such default hereunder known to the Trustee, unless such default will   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, if any, on, any Senior Note of such Series, the Trustee will be protected in withholding   such notice if and so long as the Board of Directors and/or Responsible Officers of the Trustee in good faith determine   that the withholding of such notice is in the best interest of the Holders of such Series. 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 Senior Notes of such Series.   Section 504 Not Responsible for Recitals or Issuance of Senior Notes.   The recitals contained herein and in the Senior Notes, except the Trustee’s certificate of authentication, will   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 Senior Notes, except that the Trustee represents that it is duly authorized to execute and deliver   this Indenture, authenticate the Senior Notes and perform its obligations hereunder and that the statements made by it   in any Statement of Eligibility on Form T-1 supplied to the Company are true and accurate, subject to the qualifications   set forth therein.  Neither the Trustee nor any Authenticating Agent will be accountable for the use or application by   the Company of the Senior Notes or the proceeds thereof.  The Trustee will not be responsible for and makes no   representation as to the validity or adequacy of this Indenture or the Senior Notes, it will not be accountable for the   Company’s use of the proceeds from the Senior Notes or any money paid to the Company or upon the Company’s   direction under any provision hereof, it will not be responsible for the use or application of any money received by   any Paying Agent other than the Trustee, and it will not be responsible for any statement or recital herein or any   statement in the Senior Notes or any other document in connection with the sale of the Senior Notes or under this   Indenture other than its certificate of authentication.     





 







   32   Section 505 May Hold Senior Notes.   The Trustee, any Authenticating Agent, any Paying Agent, any Registrar or any other Person that may be an   agent of the Trustee or the Company, in its individual or any other capacity, may become the owner or pledgee of   Senior Notes and, subject to Section 310(b) and Section 311 of the Trust Indenture Act, may otherwise deal with the   Company with the same rights that it would have if it were not Trustee, Authenticating Agent, Paying Agent, Registrar   or such other Person.   Section 506 Money Held in Trust.   Except as provided in Section 302(5), Section 303 and Section 903, money held by the Trustee in trust   hereunder need not be segregated from other funds except to the extent required by law and will be held uninvested.    The Trustee will be under no liability for interest on any money received by it hereunder except as otherwise agreed   in writing with the Company.   Section 507 Compensation and Reimbursement.   The Company agrees:    to pay to the Trustee from time to time reasonable compensation for all services rendered   by the Trustee hereunder (which compensation will not be limited by any provision of law in regard to the   compensation of a trustee of an express trust);    except as otherwise expressly provided herein, to reimburse the Trustee upon its request   for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any   provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents   and counsel), except any such expense, disbursement or advance as may be attributable to the Trustee’s negligence or   bad faith; and    to indemnify each of the Trustee or any predecessor Trustee and their agents for, and to   hold them harmless against, any loss, liability or expense (including, without limitation, the reasonable fees and   disbursements of the Trustee’s agents, legal counsel, accountants and experts) and including taxes (other than taxes   based upon, measured by or determined by the income of the Trustee), arising out of or in connection with the   acceptance or administration of its duties hereunder, including the costs and expenses of enforcing this Indenture   against the Company (including this Section 507) and defending itself against any claim (whether asserted by the   Company, or any Holder or any other Person) or liability in connection with the exercise or performance of any of   their powers or duties hereunder, or in connection with enforcing the provisions of this Section, except to the extent   that any such loss, liability or expense was due to the Trustee’s negligence or bad faith.   The obligations of the Company under this Section 507 will survive the satisfaction and discharge of this   Indenture.   As security for the performance of the obligations of the Company under this Section, the Trustee will have   a lien prior to the Senior Notes of any Series upon all property and funds held or collected by the Trustee as such,   except funds held in trust for the payment of principal of, or premium (if any) or interest on, Senior Notes.  Such lien   will survive the satisfaction and discharge hereof.   Any compensation or expense incurred by the Trustee after a default specified by Section 401 intended to   constitute an expense of administration under any then applicable bankruptcy or insolvency law.  “Trustee” for   purposes of this Section 507 will include any predecessor Trustee, but the negligence or bad faith of any Trustee will   not affect the rights of any other Trustee under this Section 507.  The provisions of this Section 507 will, to the extent   permitted by law, survive any termination of this Indenture (including, without limitation, termination in accordance   with any Bankruptcy Laws) and the resignation or removal of the Trustee.     





 







   33   Section 508 Corporate Trustee Required; Eligibility.    There will at all times be a Trustee hereunder that is a corporation, organized and doing   business under the laws of the United States of America, any state thereof or the District of Columbia, eligible under   Section 310(a)(1) of the Trust Indenture Act to act as trustee under an indenture qualified under the Trust Indenture   Act and that has a combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture   Act) of at least $50,000,000 subject to supervision or examination by federal or state authority.  The Trustee will also   satisfy the requirements of Section 310(a)(5) of the Trust Indenture Act.  If at any time the Trustee will cease to be   eligible in accordance with the provisions of this Section, it will resign immediately in the manner and with the effect   hereinafter specified in this Article.    The Trustee will comply with Section 310(b) of the Trust Indenture Act; provided,   however, that there will be excluded from the operation of Section 310(b)(1) of the Trust Indenture Act this Indenture   or any indenture or indentures under which other securities or certificates of interest or participation in other securities   of the Company are outstanding if the requirements for such exclusion set forth in Section 310(b)(1) of the Trust   Indenture Act are met.   Section 509 Resignation and Removal; Appointment of Successor.    No resignation or removal of the Trustee and no appointment of a successor Trustee in   accordance with this Article V will become effective until the acceptance of appointment by the successor Trustee in   accordance with Section 510.    The Trustee may resign at any time with respect to the Senior Notes of one or more Series   by giving written notice thereof to the Company.  If the instrument of acceptance by a successor Trustee required by   Section 510 will not have been delivered to the Trustee within 30 days after the giving of such notice of resignation,   the resigning Trustee may, at the Company’s expense, petition any court of competent jurisdiction for the appointment   of a successor Trustee with respect to such Series.    The Trustee may be removed at any time with respect to the Senior Notes of any Series by   Act of the Holders of a majority in principal amount of the Outstanding Senior Notes of such Series, delivered to the   Trustee and the Company.   If at any time:   (a) the Trustee will fail to comply with the obligations imposed upon it under Section   310(b) of the Trust Indenture Act with respect to Senior Notes of any Series after written request therefor by the   Company or any Holder of such Series who has been a bona fide Holder of such Series for at least six months,    (b) the Trustee will cease to be eligible under Section 508 and will fail to resign after   written request therefor by the Company or any such Holder, or   (c) the Trustee will become incapable of acting or will be adjudged a bankrupt or   insolvent or a receiver of the Trustee or of its property will be appointed or any public officer will take charge or   control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,   then, in any such case, (i) the Company, by or in accordance with a Board Resolution, may remove the Trustee with   respect to the Senior Notes of such Series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder who   has been a bona fide Holder of such Series for at least six months may, on behalf of himself and all others similarly   situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Senior Notes of   such Series and the appointment of a successor Trustee or Trustees.    If the Trustee will resign, be removed or become incapable of acting, or if a vacancy will   occur in the office of Trustee for any cause, with respect to the Senior Notes of one or more Series, the Company, by   or in accordance with a Board Resolution, will promptly appoint a successor Trustee or Trustees with respect to the     





 







   34   Senior Notes and will comply with the applicable requirements of Section 510.  If, within one year after such   resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Senior   Notes will be appointed by Act of the Holders of a majority in principal amount of the Outstanding Senior Notes   delivered to the Company and the retiring Trustee, the successor Trustee so appointed will, forthwith upon its   acceptance of such appointment in accordance with the applicable requirements of Section 510, become the successor   Trustee with respect to the Senior Notes and to that extent supersede the successor Trustee appointed by the Company.   If no successor Trustee with respect to the Senior Notes will have been so appointed by the Company or the Holders   and accepted appointment in the manner required by Section 510, any Holder who has been a bona fide Holder for at   least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction   for the appointment of a successor Trustee with respect to the Senior Notes.    The Company will give notice of each resignation and each removal of the Trustee with   respect to the Senior Notes and each appointment of a successor Trustee with respect to the Senior Notes by mailing   written notice of such event by first-class mail, postage prepaid, to the Holders as their names and addresses appear   in the Senior Note Register.  Each notice will include the name of the successor Trustee with respect to the Senior   Notes and the address of its Corporate Trust Office.   Section 510 Acceptance of Appointment by Successor.    Upon the appointment hereunder of any successor Trustee with respect to all Senior Notes,   such successor Trustee so appointed will execute, acknowledge and deliver to the Company and the retiring Trustee   an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee will   become effective and such successor Trustee, without any further act, deed or conveyance, will become vested with   all the rights, powers, trusts and duties hereunder of the retiring Trustee; but, on the request of the Company or such   successor Trustee, such retiring Trustee, upon payment of its charges, will execute and deliver an instrument   transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and, subject to   Section 903, will duly assign, transfer and deliver to such successor Trustee all property and money held by such   retiring Trustee hereunder, subject nevertheless to its claim, if any, provided for in Section 507.    Upon the appointment hereunder of any successor Trustee with respect to the Senior Notes,   the Company, the retiring Trustee and such successor Trustee will execute and deliver an indenture supplemental   hereto wherein each successor Trustee will accept such appointment and which (i) will contain such provisions as will   be necessary or desirable to transfer and confirm to, and to vest in, such successor Trustee all the rights, powers, trusts   and duties of the retiring Trustee with respect to the Senior Notes, (ii) if the retiring Trustee is not retiring with respect   to all Senior Notes, will contain such provisions as will be deemed necessary or desirable to confirm that all the rights,   powers, trusts and duties of the retiring Trustee with respect to the Senior Notes will continue to be vested in the   retiring Trustee, and (iii) will add to or change any of the provisions of this Indenture as will 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 will constitute such Trustees co-trustees of the same trust, that each such   Trustee will be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered   by any other such Trustee and that no Trustee will be responsible for any notice given to, or received by, or any act or   failure to act on the part of any other Trustee hereunder, and, upon the execution and delivery of such supplemental   indenture, the resignation or removal of the retiring Trustee will become effective to the extent provided therein, such   retiring Trustee will have no further responsibility for the exercise of rights and powers or for the performance of the   duties and obligations vested in the Trustee under this Indenture with respect to the Senior Notes other than as   hereinafter expressly set forth, and such successor Trustee, without any further act, deed or conveyance, will become   vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Senior Notes; but, on   request of the Company or such successor Trustee, such retiring Trustee, upon payment of its charges with respect to   the Senior Notes and subject to Section 903 will duly assign, transfer and deliver to such successor Trustee, to the   extent contemplated by such supplemental indenture, the property and money held by such retiring Trustee hereunder   with respect to the Senior Notes, subject to its claim, if any, provided for in Section 507.    Upon request of any Person appointed hereunder as a successor Trustee, the Company will   execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all   such rights, powers and trusts referred to in paragraph (1) or (2) of this Section, as the case may be.     





 







   35    No Person will accept its appointment hereunder as a successor Trustee unless at the time   of such acceptance such successor Person will be qualified and eligible under this Article.   Section 511 Merger, Conversion, Consolidation or Succession to Business.   Any corporation into which the Trustee may be merged or converted or with which it may be consolidated,   or any corporation resulting from any merger, conversion or consolidation to which the Trustee will be a party, or any   corporation succeeding to all or substantially all of the corporate trust business of the Trustee, will be the successor of   the Trustee hereunder (provided that such corporation will otherwise be 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   Senior Notes will have been authenticated but not delivered by the Trustee then in office, any such successor to such   authenticating Trustee may adopt such authentication and deliver the Senior Notes so authenticated with the same   effect as if such successor Trustee had itself authenticated such Senior Notes.  In case any Senior Notes will not have   been authenticated by such predecessor Trustee, any such successor Trustee may authenticate and deliver such Senior   Notes in either its own name or that of its predecessor Trustee.   Section 512 Appointment of Authenticating Agent.   The Trustee may appoint one or more Authenticating Agents acceptable to the Company with respect to the   Senior Notes which will be authorized to act on behalf of the Trustee to authenticate Senior Notes issued upon original   issue, exchange, registration of transfer, partial redemption, partial repayment, partial conversion or exchange for   Common Stock or other securities or property, or in accordance with Section 210, and Senior Notes so authenticated   will be entitled to the benefits of this Indenture and will 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 Senior Notes   by the Trustee or the Trustee’s certificate of authentication, such reference will be deemed to include authentication   and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf   of the Trustee by an Authenticating Agent.   Each Authenticating Agent will be reasonably acceptable to the Company and, except as provided in or under   this Indenture, will at all times be a corporation that would be permitted by the Trust Indenture Act to act as trustee   under an indenture qualified under the Trust Indenture Act, is authorized under applicable law and by its charter to act   as an Authenticating Agent and has a combined capital and surplus (computed in accordance with Section 310(a)(2)   of the Trust Indenture Act) of at least $50,000,000.  If at any time an Authenticating Agent will cease to be eligible in   accordance with the provisions of this Section, it will resign immediately in the manner and with the effect specified   in this Section.   Any corporation into which an Authenticating Agent may be merged or converted or with which it may be   consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating   Agent will be a party, or any corporation succeeding to all or substantially all of the corporate agency or corporate   trust business of an Authenticating Agent, will be the successor of such Authenticating Agent hereunder, provided   such corporation will be otherwise eligible under this Section, without the execution or filing of any paper or any   further act on the part of the Trustee or the Authenticating Agent.   An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and 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 the Company.  Upon receiving such a notice of resignation or upon such a   termination, or in case at any time such Authenticating Agent will cease to be eligible in accordance with the provisions   of this Section, the Trustee may appoint a successor Authenticating Agent that will be acceptable to the Company and   will mail written notice of such appointment by first-class mail, postage prepaid, to all Holders with respect to which   such Authenticating Agent will serve, as their names and addresses appear in the Senior Note Register. Any successor   Authenticating Agent, upon acceptance of its appointment hereunder, will 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 will be appointed unless eligible under the provisions of this Section 512.     





 







   36   The Company agrees to pay each Authenticating Agent from time to time reasonable compensation for its   services under this Section.  If the Trustee makes such payments, it will be entitled to be reimbursed for such payments,   subject to the provisions of Section 507.   The provisions of Section 212, Section 504 and Section 505 will be applicable to each Authenticating Agent.   If an Authenticating Agent is appointed with respect to one or more Series of Senior Notes under this Section,   the Senior Notes of such Series may have endorsed thereon, in addition to or in lieu of the Trustee’s certificate of   authentication, an alternate certificate of authentication in substantially the following form:   This is one of the Senior Notes of the Series designated herein referred to in the within-mentioned Indenture.                          As Trustee             By:                  As Authenticating Agent             By:                   As Authenticating Signatory      If all of the Senior Notes of any Series may not be originally issued at one time, and if the Trustee does not   have an office capable of authenticating Senior Notes upon original issuance located in a Place of Payment where the   Company desires to have Senior Notes of such Series authenticated upon original issuance, the Trustee, if so requested   in writing, will appoint in accordance with this Section an Authenticating Agent having an office in a Place of Payment   designated by the Company with respect to such Series of Senior Notes.   Section 513 Preferred Collection of Claims against Company.   If and when the Trustee will be or become a creditor of the Company (or any other obligor upon the Senior   Notes), the Trustee will be subject to the provisions of the Trust Indenture Act regarding the collection of claims   against the Company (or any such other obligor).   ARTICLE VI.   HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY   Section 601 Holder Lists.   The Trustee will preserve in as current a form as is reasonably practicable the most recent list available to it   of the names and addresses of the Holders.  If the Trustee is not the Registrar, the Company will cause to be furnished   to the Trustee at least semiannually on January 1 and July 1 a listing of the Holders dated within 10 days of the date   on which the list is furnished and at such other times as the Trustee may request in writing a list in such form and as   of such date as the Trustee may reasonably require of the names and addresses of the Holders.   Section 602 Preservation of Information; Communications to Holders.   The Trustee will comply with the obligations imposed upon it in accordance with Section 312 of the Trust   Indenture Act.   Every Holder of Senior Notes, by receiving and holding the same, agrees with the Company and the Trustee   that neither the Company, the Trustee, any Paying Agent or any Registrar will be held accountable by reason of the   disclosure of any such information as to the names and addresses of the Holders of Senior Notes in accordance with   Section 312(c) of the Trust Indenture Act, regardless of the source from which such information was derived, and that   the Trustee will not be held accountable by reason of mailing any material in accordance with a request made under   Section 312(b) of the Trust Indenture Act.     





 







   37   Section 603 Reports by Trustee.    Within 60 days after July 15 of each year commencing with the first July 15 following the   first issuance of Senior Notes in accordance with Section 204, if required by Section 313(a) of the Trust Indenture   Act, the Trustee will transmit, in accordance with Section 313(c) of the Trust Indenture Act, a brief report dated as of   such July 15 with respect to any of the events specified in said Section 313(a) and Section 313(b)(2) that may have   occurred since the later of the immediately preceding July 15 and the date of this Indenture.    The Trustee will transmit the reports required by Section 313(a) of the Trust Indenture Act   at the times specified therein.    Reports under this Section will be transmitted in the manner and to the Persons required   by Section 313(c) and Section 313(d) of the Trust Indenture Act.   Section 604 Reports by Company.    The Company, in accordance with Section 314(a) of the Trust Indenture Act, will:   (a) file with the Trustee, within 15 days after the Company files the same with the   Commission, copies of the annual reports and of the information, documents and other reports (or copies of such   portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) that the   Company may be required to file with the Commission in accordance with Section 13 or Section 15(d) of the Exchange   Act; or, if the Company is not required to file information, documents or reports in accordance with either of said   Sections, then it will file with the Trustee and the Commission, in accordance with rules and regulations prescribed   from time to time by the Commission, such of the supplementary and periodic information, documents and reports   that may be required in accordance with Section 13 of the Exchange Act in respect of a security listed and registered   on a national securities exchange as may be prescribed from time to time in such rules and regulations;   (b) file with the Trustee and the Commission, in accordance with rules and   regulations prescribed from time to time by the Commission, such additional certificates, information, documents and   reports with respect to compliance by the Company, with the conditions and covenants of this Indenture as may be   required from time to time by such rules and regulations; and   (c) transmit to the Holders within 30 days after the filing thereof with the Trustee, in   the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, such summaries of any information,   documents and reports required to be filed by the Company in accordance with paragraphs (1) and (2) of this Section   as may be required by rules and regulations prescribed from time to time by the Commission.  Delivery of such reports,   information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such will 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).    The Company intends to file the reports referred to in Section 604(1) with the Commission   in electronic form in accordance with Regulation S-T of the Commission using the Commission’s Electronic Data   Gathering, Analysis and Retrieval system.  Compliance with the foregoing, or any successor electronic system   approved by the Commission, will constitute delivery by the Company of such reports to the Trustee and Holders in   compliance with the provision of Section 604(1) and Trust Indenture Act Section 314(a).  Notwithstanding anything   to the contrary herein, the Trustee will have no duty to search for or obtain any electronic or other filings that the   Company makes with the Commission, regardless of whether such filings are periodic, supplemental or otherwise.    Delivery of the reports, information and documents to the Trustee in accordance with this Section 604(2) will be solely   for the purposes of compliance with this Section 604(2) and with Trust Indenture Act Section 314(a).  The Trustee’s   receipt of such reports, information and documents is for informational purposes only and the Trustee’s receipt of   such will 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).     





 







   38   ARTICLE VII.   SUCCESSORS   Section 701 Merger, Consolidation or Sale of All or Substantially All Assets.   The Company will not, in any transaction or series of related transactions, consolidate with or merge into any   Person or sell, assign, transfer, lease or otherwise convey all or substantially all its properties and assets to any Person,   unless:    either the Company will be the continuing Person (in the case of a merger), or the successor   Person (if other than the Company) formed by such consolidation or into which the Company is merged or which   acquires by sale, assignment, transfer, lease or other conveyance all or substantially all the properties and assets of the   Company will be a corporation organized and existing under the laws of the United States of America, any state   thereof or the District of Columbia and will expressly assume, by an indenture (or indentures, if at such time there is   more than one Trustee) supplemental hereto, executed by such successor corporation and delivered to the Trustee, in   form satisfactory to the Trustee, the due and punctual payment of the principal of, any premium and interest on, all   the Outstanding Senior Notes and the due and punctual performance and observance of every obligation in this   Indenture and the Outstanding Senior Notes on the part of the Company to be performed or observed, and which   supplemental indenture will provide for conversion or exchange rights in accordance with the provisions of the Senior   Notes of any Series that are convertible or exchangeable into Common Stock or other securities;    immediately after giving effect to such transaction and treating any indebtedness that   becomes an obligation of the Company or any Subsidiary as a result of that transaction as having been incurred by the   Company or any Subsidiary at the time of the transaction, no Event of Default, and no event which, after notice or   lapse of time, or both, would become an Event of Default, will have occurred and be continuing; and    either the Company or the successor Person will have delivered to the Trustee an Officers’   Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, assignment, transfer, lease   or other conveyance and, if a supplemental indenture is required in connection with such transaction, such   supplemental indenture comply with this Article VII and that all conditions precedent herein provided for relating to   such transaction have been complied with.   For purposes of the foregoing, any sale, assignment, transfer, lease or other conveyance of all or any of the   properties and assets of one or more Subsidiaries of the Company (other than to the Company or another Subsidiary),   which, if such properties and assets were owned by the Company, would constitute all or substantially all of the   Company’s properties and assets, will be deemed to be the transfer of all or substantially all of the properties and   assets of the Company.   Section 702 Successor Person Substituted for Company.   Upon any consolidation by the Company with or merger of the Company into any other Person or any sale,   assignment, transfer, lease or conveyance of all or substantially all of the properties and assets of the Company to any   Person in accordance with Section 701, the successor Person formed by such consolidation or into which the Company   is merged or to which such sale, assignment, transfer, lease or other conveyance is made will 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 thereafter, except in the case of a lease, the   predecessor Person will be released from all obligations and covenants under this Indenture and the Senior Notes.     





 







   39   ARTICLE VIII.   SUPPLEMENTAL INDENTURES   Section 801 Supplemental Indentures without Consent of Holders.   Without the consent of any Holders of Senior Notes, the Company (when authorized by or in accordance   with a Board Resolution) and the Trustee, at any time and from time to time, may enter into one or more indentures   supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:    to evidence the succession of another Person to the Company, and the assumption by any   such successor of the covenants of the Company contained herein and in the Senior Notes;     to add to the covenants of the Company for the benefit of the Holders of all or any Series   of Senior Notes (as will be specified in such supplemental indenture or indentures) or to surrender any right or power   herein conferred upon the Company with respect to all or any Series of Senior Notes issued under this Indenture (as   will be specified in such supplemental indenture or indentures);     to permit or facilitate the issuance of Senior Notes of a Series in uncertificated or global   form, provided any such action will not adversely affect the interests of the Holders of Senior Notes of any Series;     to establish any Series of Senior Notes and the form or terms of Senior Notes for any Series   as permitted by Section 201 and Section 204, including, without limitation, any conversion or exchange provisions   applicable to Senior Notes that are convertible or exchangeable for other securities or property, and any deletions from   or additions or changes to this Indenture in connection therewith (provided that such deletions, additions and changes   will not be applicable to any other Series of Senior Notes then Outstanding);    to evidence and provide for the acceptance of appointment hereunder by a successor   Trustee with respect to the Senior Notes of one or more Series and to add to or change any of the provisions of this   Indenture as will be necessary to provide for or facilitate the administration of the trusts hereunder by more than one   Trustee, in accordance with the requirements of Section 510;     to cure any ambiguity or to correct or supplement any provision herein that may be   defective or that may be inconsistent with any other provision herein;     to make any other provisions with respect to matters or questions arising under this   Indenture that will not adversely affect the interests of the Holders of Senior Notes of any Series then Outstanding;     to add any additional Events of Default with respect to all or any Series of Senior Notes   (as will be specified in such supplemental indenture);     to supplement any of the provisions of this Indenture to such extent as will be necessary to   permit or facilitate the Legal Defeasance, Covenant Defeasance and/or satisfaction and discharge of the Senior Notes   of any Series in accordance with Article III, provided that any such action will not adversely affect the interests of any   Holder of a Senior Note of such Series or any other Senior Note;     to make provisions with respect to conversion or exchange rights of Holders of Senior   Notes of any Series;    to amend, supplement or eliminate any provision contained herein or in any supplemental   indenture or in any Senior Notes (which amendment or supplement may apply to one or more Series of Senior Notes   or to one or more Senior Notes within any Series as specified in the supplemental indenture or indentures), provided   that such amendment, supplement or elimination does not apply to any Outstanding Senior Note issued prior to the   date of such supplemental indenture and entitled to the benefits of such provision;     





 







   40    in the case of any Series of Senior Notes which are convertible or exchangeable for   Common Stock or other securities or property, to safeguard or provide for the conversion or exchange rights, as the   case may be, of such Senior Notes in the event of a reclassification or change of outstanding shares of Common Stock   or any merger, consolidation, statutory share exchange or combination of the Company with or into another Person or   any sale, lease, assignment, transfer, disposition or other conveyance of all or substantially all of the properties or   assets of the Company to any other Person or other similar transactions, if expressly required by the terms of such   Series of Senior Notes established in accordance with Section 204;    to add to, delete from or revise the conditions, limitations or restrictions on issue,   authentication and delivery of Senior Note of any Series;    to conform any provision in this Indenture to the requirements of the Trust Indenture Act;   or    to make any change that does not adversely affect the legal rights under this Indenture of   any Holder of Senior Notes of any Series issued under this Indenture.   Section 802 Supplemental Indentures with Consent of Holders.   With the consent of the Holders of not less than a majority in principal amount of the Outstanding Senior   Notes of each Series affected by the supplemental indenture, by Act of said Holders delivered to the Company and   the Trustee, the Company (when authorized by or in accordance with 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 the Senior Notes of such Series or of modifying in   any manner the rights of the Holders of Senior Notes of such Series under this Indenture; provided, that no such   supplemental indenture, without the consent of the Holder of each Outstanding Senior Note affected thereby, will    reduce the rate of or change the time for payment of interest, including Defaulted Interest,   on any Senior Notes;    reduce the principal of or change the Stated Maturity of any Senior Notes, or change the   date on which any Senior Notes may be subject to redemption or reduce the Redemption Price therefore;    make any Senior Note payable in money other than Dollars;     make any change in provisions of this Indenture protecting the right of each Holder to   receive payment of principal of and interest on such Senior Note on or after the due date thereof or to bring suit to   enforce such payment,     reduce the percentage in principal amount of the Outstanding Senior Notes of any Series,   the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is   required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their   consequences) provided for in Section 412 or Section 906 of this Indenture, or    modify any of the provisions of this Section 802, Section 412 or Section 906, except to   increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived   without the consent of the Holder of each Outstanding Senior Note affected thereby.   A supplemental indenture that change or eliminates any covenant or other provision of this Indenture which   will have been included solely for the benefit of one or more particular Series of Senior Notes, or which modifies the   rights of the Holders of Senior Notes of such Series with respect to such covenant or other provision, will be deemed   not to affect the rights under this Indenture of the Holders of the Senior Notes of any other Series.   Anything in this Indenture the contrary notwithstanding, if more than one Series of Senior Notes is   Outstanding, the Company will be entitled to enter into a supplemental indenture under this Section with respect to     





 







   41   any one or more Series of Outstanding Senior Notes without entering a supplemental indenture with respect to any   other Series of Outstanding Senior Notes.   It will not be necessary for any Act of Holders under this Section 802 to approve the particular form of any   proposed supplemental indenture, but it will be sufficient if such Act will approve the substance thereof.   Section 803 Execution of Supplemental Indentures.   As a condition to executing, or accepting the additional trusts created by, any supplemental indenture   permitted by this Article VIII or the modifications thereby of the trust created by this Indenture, the Trustee will be   entitled to receive, and (subject to Section 501) will be fully protected in relying upon, an Officers’ Certificate and an   Opinion of Counsel to the effect that the execution of such supplemental indenture is authorized or permitted by this   Indenture and that such supplemental indenture has been duly authorized, executed and delivered by, and is a valid,   binding and enforceable obligation of, the Company, subject to customary exceptions. The Trustee may, but will not   be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or   immunities under this Indenture or otherwise.   Section 804 Effect of Supplemental Indentures.   Upon the execution of any supplemental indenture under this Article VIII, this Indenture will be modified in   accordance therewith, and such supplemental indenture will form a part of this Indenture for all purposes; and every   Holder theretofore or thereafter authenticated and delivered hereunder.   Section 805 Reference in Senior Notes to Supplemental Indentures.   Senior Notes of any Series authenticated and delivered after the execution of any supplemental indenture in   accordance with this Article VIII may, and will 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 will so determine, new Senior   Notes 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 Senior Notes of such Series.   Section 806 Conformity with Trust Indenture Act.   Every supplemental indenture executed in accordance with this Article will conform to the requirements of   the Trust Indenture Act as then in effect.   ARTICLE IX.   COVENANTS   Section 901 Payment of Principal, Premium and Interest.   The Company covenants and agrees for the benefit of the Holders of the Senior Notes of each Series that it   will duly and punctually pay the principal of, any premium and interest on, the Senior Notes of such Series, in   accordance with the terms thereof and this Indenture.  Principal, premium (if any) and interest will be considered paid   on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 11:00 a.m., [                  ] time, on any Interest Payment Date, an amount in immediately available funds provided by the Company that is   designated for and sufficient to pay all principal and interest then due.     Section 902 Maintenance of Office.   The Company will maintain an office or agency in each Place of Payment for any Series of Senior Notes an   office or agency (which may be an office of the Trustee or an Affiliate of the Trustee or Registrar) where Senior Notes   of such Series may be surrendered for registration of transfer or for exchange, where Senior Notes of such Series that   are convertible or exchangeable may be surrendered for conversion or for exchange, and where notices and demands     





 







   42   to or upon the Company in respect of the Senior Notes of such Series and this Indenture may be served.  The Company   will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency.    If at any time the Company fails to maintain any such required office or agency or fails to furnish the Trustee with the   address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust   Office of the Trustee.   The Company may also from time to time designate one or more other offices or agencies where the Senior   Notes of one or more Series may be presented or surrendered for any or all such purposes and may from time to time   rescind such designations; provided that no such designation or rescission will in any manner relieve the Company of   its obligation to maintain an office or agency in each Place of Payment for Senior Notes of any Series for such purpose.    The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change   in the location of any such other office or agency.   Unless otherwise provided in or under this Indenture, the Company hereby designates the Corporate Trust   Office of the Trustee in [           ] as one such office or agency of the Company for each Series of Senior Notes in   accordance with Section 902.   Section 903 Money for Senior Notes Payments to Be Held in Trust.   If the Company will at any time act as its own Paying Agent with respect to any Series of Senior Notes, it   will, on or before each due date of the principal of, any premium or interest on, any of the Senior Notes of such Series,   segregate and hold in trust for the benefit of the Persons entitled thereto a sum in Dollars sufficient to pay the principal,   any premium and interest, as the case may be, so becoming due until such sums will be paid to such Persons or   otherwise disposed of as herein provided, and will promptly notify the Trustee of its action or failure so to act.   Whenever the Company will have one or more Paying Agents for any Series of Senior Notes, it will, on or   prior to each due date of the principal of, or any premium or interest on, any Senior Notes of such Series, deposit with   any Paying Agent a sum in Dollars sufficient to pay the principal, any premium and interest, as the case may be, so   becoming due, such sum to be held in trust for the benefit of the Persons entitled thereto, and (unless such Paying   Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.   The Company will cause each Paying Agent for any Series of Senior Notes other than the Trustee to execute   and deliver to the Trustee an instrument in which such Paying Agent will agree with the Trustee, subject to the   provisions of this Section that such Paying Agent will:    hold all sums held by it for the payment of the principal of, any premium or interest on, the   Senior Notes of such Series in trust for the benefit of the Persons entitled thereto until such sums will be paid to such   Persons or otherwise disposed of as provided in or under this Indenture;    give the Trustee notice of any default by the Company (or any other obligor upon the Senior   Notes of such Series) in the making of any payment of principal, any premium or interest on, the Senior Notes of such   Series; and    at any time during the continuance of any such default, upon the written request of the   Trustee, pay to the Trustee all sums so held in trust by such Paying Agent.   The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture   or for any other purpose, pay, or 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 will be released from all further liability with respect to such sums.   Except as otherwise provided in or under this Indenture, 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, any premium or interest on, any   Senior Note of any Series and remaining unclaimed for two years after such principal or interest will have become     





 







   43   due and payable will be paid to the Company upon a Company Request, or (if then held by the Company) will be   discharged from such trust; and the Holder of such Senior Note will 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, will thereupon cease; provided, however, that the   Trustee or such Paying Agent, before being required to make any such repayment, may, not later than 30 days after   the Company’s request for such repayment, at the expense of the Company cause to be published once, in an   Authorized Newspaper in each Place of Payment for such Series or to be mailed to the Holders of Senior Notes of   such Series, or both, notice that such money remains unclaimed and that, after a date specified therein, which will not   be less than 30 days from the date of such publication or mailing nor will it be earlier than two years after such   principal and or interest will have become due and payable, any unclaimed balance of such money then remaining   will be repaid to the Company.   Section 904 Corporate Existence.   Subject to Article VII, the Company will do or cause to be done all things necessary to preserve and keep in   full force and effect (i) the corporate existence of the Company, (ii) the existence (corporate or other) of each   Significant Subsidiary and (iii) the rights (charter and statutory), licenses and franchises of the Company and each of   its Significant Subsidiaries; provided, however, that the Company will not be required to preserve the existence   (corporate or other) of any of its Significant Subsidiaries or any such right, license or franchise of the Company or   any of its Significant Subsidiaries if the Board of Directors of the Company determines that the preservation thereof   is no longer desirable in the conduct of the business of the Company and its Significant Subsidiaries taken as a whole   and that the loss thereof will not be disadvantageous in any material respect to the Holders.   Section 905 Maintenance of Properties.   The Company will, and will cause each Significant Subsidiary to, cause all its properties used or useful in   the conduct of its business to be maintained and kept in good condition, repair and working order and supplied with   all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and   improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in   connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in   this Section will prevent the Company or any Significant Subsidiary from discontinuing the operation and maintenance   of any of their respective properties if such discontinuance is, in the judgment of the Board of Directors of the   Company or of any Significant Subsidiary, as the case may be, desirable in the conduct of its business.   Section 906 Waiver of Certain Covenants.   The Company may omit in any particular instance to comply with any term, provision or condition set forth   in Section 902 to Section 905, inclusive, with respect to the Senior Notes of any Series if before the time for such   compliance the Holders of at least a majority in principal amount of the Outstanding Senior Notes of such Series, by   Act of such Holders, either will waive such compliance in such instance or generally will have waived compliance   with such term, provision or condition, but no such waiver will extend to or affect such term, provision or condition   except to the extent so expressly waived, and, until such waiver will become effective, the obligations of the Company   and the duties of the Trustee in respect of any such term, provision or condition will remain in full force and effect.   Section 907 Company Statement as to Compliance.   The Company will deliver to the Trustee, within 120 days after the end of each fiscal year, an Officers’   Certificate covering the preceding calendar year, stating whether or not, to the best of his or her knowledge, the   Company is in default in the performance and observance of any of the terms, provisions and conditions of this   Indenture (without regard to notice requirements or periods of grace) and if the Company will be in default, specifying   all such defaults and the nature and status thereof of which he or she may have knowledge.     





 







   44   ARTICLE X.   REDEMPTION   Section 1001 Applicability of Article.   Redemption of Senior Notes of any Series at the option of the Company as permitted or required by the terms   of such Senior Notes will be made in accordance with the terms of such Senior Notes and (except as otherwise provided   in or under this Indenture) this Article.   Section 1002 Election to Redeem; Notice to Trustee.   The election of the Company to redeem any Senior Notes will be evidenced by a Company Order.  In case   of any redemption of less than all of the Senior Notes of any Series, the Company will, at least 60 days prior to the   Redemption Date fixed by the Company (unless a shorter notice will be satisfactory to the Trustee, but in any event   not less than 45 days prior to the Redemption Date), notify the Trustee, of such Redemption Date and of the principal   amount of Senior Notes of such Series to be redeemed and, in the event that the Company will determine that the   Senior Notes of any Series to be redeemed will be selected from Senior Notes of such Series having the same issue,   date, interest rate or interest rate formula, Stated Maturity and other terms (the “Equivalent Terms”), the Company   will notify the Trustee of the Equivalent Terms.   In the case of any redemption of Senior Notes (i) prior to the expiration of any restriction on such redemption   provided in the terms of such Senior Notes or elsewhere in this Indenture or (ii) in accordance with an election of the   Company that is subject to a condition specified in the terms of such Senior Notes or elsewhere in this Indenture, the   Company will furnish to the Trustee an Officers’ Certificate evidencing compliance with such restriction or condition.   Section 1003 Selection by Trustee of Senior Notes to be Redeemed.   If less than all of the Senior Notes of any Series are to be redeemed or if less than all of the Senior Notes of   any Series with Equivalent Terms are to be redeemed, the particular Senior Notes to be redeemed will be selected not   more than 45 days prior to the Redemption Date by the Trustee from the Outstanding Senior Notes of such Series or   from the Outstanding Senior Notes of such Series with Equivalent Terms, as the case may be, not previously called   for redemption unless otherwise required by law or applicable depositary requirements, by lot or such method as the   Trustee will deem fair and appropriate and which may provide for the selection for redemption of portions of the   principal amount of Senior Notes of such Series; provided, however, that no such partial redemption will reduce the   portion of the principal amount of a Senior Note of such Series not redeemed to less than the minimum denomination   for a Senior Note of such Series established in or under this Indenture.   The Trustee will promptly notify the Company and the Registrar (if other than itself) in writing of the Senior   Notes selected for redemption and, in the case of any Senior Notes selected for partial redemption, 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 Senior Notes will relate, in the case of any Senior Notes redeemed or to be redeemed only in part, to   the portion of the principal of such Senior Notes which has been or is to be redeemed.   Unless otherwise specified in or under this Indenture or the Senior Notes of any Series, if any Senior Note   selected for partial redemption is converted or exchanged for Common Stock or other securities or property in part   before termination of the conversion or exchange right with respect to the portion of the Senior Note so selected, the   converted or exchange portion of such Senior Note will be deemed (so far as may be) to be the portion selected for   redemption.  Senior Notes which have been converted or exchanged during a selection of Senior Notes to be redeemed   will be treated by the Trustee as Outstanding for the purpose of such selection.     





 







   45   Section 1004 Notice of Redemption.   Notice of redemption will be given in the manner provided in Section 105, not less than 30 nor more than 60   days prior to the Redemption Date, unless a shorter period is specified in the Senior Notes to be redeemed, to the   Holders of Senior Notes to be redeemed.  Failure to give notice by mailing in the manner herein provided to the Holder   of any Senior Notes designated for redemption as a whole or in part, or any defect in the notice to any such Holder,   will not affect the validity of the proceedings for the redemption of any other Senior Notes or portions thereof.   Any notice that is mailed to the Holder of any Senior Notes in the manner herein provided will be   conclusively presumed to have been duly given, whether or not such Holder receives the notice.   All notices of redemption will state:    the Redemption Date,    the Redemption Price,    if less than all Outstanding Senior Notes of any Series are to be redeemed, the identification   (and, in the case of partial redemption, the principal amount) of the particular Senior Note or Senior Notes to be   redeemed,    that, in case any Senior Note is to be redeemed in part only, on and after the Redemption   Date, upon surrender of such Senior Note, the Holder of such Senior Note will receive, without charge, a new Senior   Note or Senior Notes of authorized denominations for the principal amount thereof remaining unredeemed,    that, on the Redemption Date, the Redemption Price will become due and payable upon   each such Senior Note or portion thereof to be redeemed, together (if applicable) with accrued and unpaid interest, if   any, thereon (subject, if applicable, to the provisos to the first paragraph of Section 1006), and, if applicable, that   interest thereon will cease to accrue on and after said date,     the place or places where such Senior Notes are to be surrendered for payment of the   Redemption Price and any accrued interest pertaining thereto,     in the case of Senior Notes of any Series that are convertible or exchangeable into Common   Stock or other securities or property, the then current conversion or exchange price or rate, the date or dates on which   the right to convert or exchange the principal of the Senior Notes of such Series to be redeemed will commence or   terminate, as applicable, and the place or places where and the Persons to whom such Senior Notes may be surrendered   for conversion or exchange,     if the Redemption Price or any portion thereof will be payable, at the option of the   Company of any Holders, in cash or in Common Stock or other securities or property (or a combination thereof), a   statement as to whether the Company has elected to pay the Redemption Price in cash or in Common Stock or other   securities or property or a combination thereof and, if applicable, the portion of the Redemption Price that is to be   paid in cash or in Common Stock or other securities or property, and    the authority for such redemption.   The notice of redemption may include the CUSIP number reference numbers of such Senior Notes, if any (or   any other numbers used by a Depositary to identify such Senior Notes).   Notice of redemption of Senior Notes to be redeemed at the election of the Company will be given by the   Company or, at the Company’s request delivered at least 10 days before the date such notice is to be given (unless a   shorter period will be acceptable to the Trustee), by the Trustee in the name and at the expense of the Company.     





 







   46   Section 1005 Deposit of Redemption Price.   On or prior to 11:00 a.m., [                 ] time, on any Redemption Date, the Company will deposit, with respect   to the Senior Notes of any Series called for redemption in accordance with Section 1004, with the Trustee or with a   Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in   Section 903) an amount sufficient to pay the Redemption Price of, and (except if the Redemption Date will be an   Interest Payment Date, unless otherwise specified in accordance with Section 204 for or in the Senior Notes of such   Series) any accrued interest on, all such Senior Notes or portions thereof which are to be redeemed on that date, except   that, if the Senior Notes of such Series are convertible or exchangeable into Common Stock or other securities or   property, no such deposit will be required with respect to any such Senior Notes (or portions thereof) which have been   converted or exchanged prior to such Redemption Date.   Section 1006  Senior Notes Payable on Redemption Date.   Notice of redemption having been given as provided above, the Senior Notes so to be redeemed (except, in   the case of Senior Notes which are convertible or exchangeable into Common Stock or other securities or property,   any such Senior Notes which no such will have so converted or exchanged prior to the applicable Redemption Date)   will, on the Redemption Date, become due and payable at the Redemption Price therein specified, together with (unless   otherwise provided with respect to Senior Notes of such Series in accordance with Section 204) accrued and unpaid   interest, if any, thereon and from and after such date (unless the Company will default in the payment of the   Redemption Price and accrued interest, if any) such Senior Notes will cease to bear interest. Upon surrender of any   such Senior Note for redemption in accordance with said notice, such Senior Note will be paid by the Company at the   Redemption Price, together with, unless otherwise provided in or under this Indenture, any accrued and unpaid interest   thereon to but excluding the Redemption Date; provided, however, that, except as otherwise specified in or under this   Indenture or the Senior Notes of such Series, installments of interest on Senior Notes whose Stated Maturity is on or   prior to the Redemption Date will be payable to the Holders of such Senior Notes registered as such at the close of   business on the Regular Record Dates therefor according to their terms and the provisions of Section 211.   If any Senior Note called for redemption will not be so paid upon surrender thereof for redemption, the   principal and any premium, until paid, will bear interest from the Redemption Date at the rate prescribed therefor in   the Senior Note or, if no rate is prescribed therefor in the Senior Note, at the rate of interest, if any, borne by such   Senior Note.   Section 1007  Senior Notes Redeemed in Part.   Any Senior Note which is to be redeemed only in part will be surrendered at any office or agency for such   Senior Note (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer   in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly   authorized in writing) and the Company will execute and the Trustee will authenticate and deliver to the Holder of   such Senior Note without service charge, a new Senior Note or Senior Notes of the same Series, containing identical   terms and provisions, of any authorized denomination as requested by such Holder in aggregate principal amount   equal to and in exchange for the unredeemed portion of the principal of the Senior Note so surrendered. If a Senior   Note in global form is so surrendered, the Company will execute, and the Trustee will authenticate and deliver to the   Depositary for such Senior Note in global form as will be specified in the Company Order with respect thereto to the   Trustee, without service charge, a new Senior Note in global form in a denomination equal to and in exchange for the   unredeemed portion of the principal of the Senior Note in global form so surrendered.   Upon surrender of a Senior Note that is redeemed in part, the Company will issue and the Trustee will   authenticate for the Holder at the expense of the Company a new Senior Note equal in principal amount to the   unredeemed portion of the Note surrendered representing the same indebtedness to the extent not redeemed.    Notwithstanding anything in this Indenture to the contrary, only a Company Order and not an Opinion of Counsel or   an Officers’ Certificate of the Company is required for the Trustee to authenticate such new Senior Note.    





 







   47   The Trustee hereby accepts the trusts in this Indenture upon the terms and conditions set forth herein.    IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly signed as of the date first   written above.    FIRST NBC BANK HOLDING COMPANY            By:    Name:    Title:                  [                        ],   As Trustee         By:    Name:    Title: