exv4w19






Exhibit 4.19




ALLIANCE CAPITAL PARTNERS, LP




as Issuer



INDENTURE




Dated as of July 16, 2001



THE BANK OF NEW YORK




as Trustee



JUNIOR SUBORDINATED DEBT SECURITIES








 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I
	 	 	 	 
	DEFINITIONS
	 	 	 	 
	 
	 	 	 	 
	Section 1.01 Definitions
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	DEBT SECURITIES
	 	 	 	 
	 
	 	 	 	 
	Section 2.01 Authentication and Dating
	 	 	9	 
	Section 2.02 Form of Trustee’s Certificate of Authentication
	 	 	10	 
	Section 2.03 Form and Denomination of Debt Securities
	 	 	10	 
	Section 2.04 Execution of Debt Securities
	 	 	10	 
	Section 2.05 Exchange and Registration of Transfer of Debt Securities
	 	 	11	 
	Section 2.06 Mutilated, Destroyed, Lost or Stolen Debt Securities
	 	 	14	 
	Section 2.07 Temporary Debt Securities
	 	 	15	 
	Section 2.08 Payment of Interest
	 	 	15	 
	Section 2.09 Cancellation of Debt Securities Paid, etc.
	 	 	16	 
	Section 2.10 Computation of Interest
	 	 	17	 
	Section 2.11 Extension of Interest Payment Period
	 	 	17	 
	Section 2.12 CUSIP Numbers
	 	 	18	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	PARTICULAR COVENANTS OF THE COMPANY
	 	 	 	 
	 
	 	 	 	 
	Section 3.01 Payment of Principal, Premium and Interest; Agreed Treatment of the
Debt Securities
	 	 	18	 
	Section 3.02 Offices for Notices and Payments, etc.
	 	 	19	 
	Section 3.03 Appointments to Fill Vacancies in Trustee’s Office
	 	 	19	 
	Section 3.04 Provision as to Paying Agent
	 	 	19	 
	Section 3.05 Certificate to Trustee
	 	 	20	 
	Section 3.06 Additional Interest
	 	 	21	 
	Section 3.07 Compliance with Consolidation Provisions
	 	 	21	 
	Section 3.08 Limitation on Dividends and Distributions
	 	 	21	 
	Section 3.09 Covenants as to the Trust
	 	 	22	 






(i)









 





	 	 	 	 	 

	ARTICLE IV
	 	 	 	 
	LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	Section 4.01 Securityholders’ Lists
	 	 	23	 
	Section 4.02 Preservation and Disclosure of Lists
	 	 	23	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF
DEFAULT
	 	 	 	 
	 
	 	 	 	 
	Section 5.01 Events of Default
	 	 	25	 
	Section 5.02 Payment of Debt Securities on Default; Suit Therefor
	 	 	27	 
	Section 5.03 Application of Moneys Collected by Trustee
	 	 	28	 
	Section 5.04 Proceedings by Securityholders
	 	 	29	 
	Section 5.05 Proceedings by Trustee
	 	 	29	 
	Section 5.06 Remedies Cumulative and Continuing
	 	 	29	 
	Section 5.07 Direction of Proceedings and Waiver of Defaults by Majority of
Securityholders
	 	 	30	 
	Section 5.08 Notice of Defaults
	 	 	30	 
	Section 5.09 Undertaking to Pay Costs
	 	 	31	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	CONCERNING THE TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	Section 6.01 Duties and Responsibilities of Trustee
	 	 	31	 
	Section 6.02 Reliance on Documents, Opinions, etc.
	 	 	32	 
	Section 6.03 No Responsibility for Recitals, etc.
	 	 	34	 
	Section 6.04 Trustee, Authenticating Agent, Paying Agents, Transfer Agents or
Registrar May Own Debt Securities
	 	 	34	 
	Section 6.05 Moneys to be Held in Trust
	 	 	34	 
	Section 6.06 Compensation and Expenses of Trustee
	 	 	34	 
	Section 6.07 Officers’ Certificate as Evidence
	 	 	35	 
	Section 6.08 Eligibility of Trustee
	 	 	35	 
	Section 6.09 Resignation or Removal of Trustee
	 	 	36	 
	Section 6.10 Acceptance by Successor Trustee
	 	 	37	 
	Section 6.11 Succession by Merger, etc.
	 	 	38	 
	Section 6.12 Authenticating Agents
	 	 	39	 






(ii)









 





	 	 	 	 	 

	ARTICLE VII
	 	 	 	 
	CONCERNING THE SECURITYHOLDERS
	 	 	 	 
	 
	 	 	 	 
	Section 7.01 Action by Securityholders
	 	 	40	 
	Section 7.02 Proof of Execution by Securityholders
	 	 	41	 
	Section 7.03 Who Are Deemed Absolute Owners
	 	 	41	 
	Section 7.04 Debt Securities Owned by Company Deemed Not Outstanding
	 	 	41	 
	Section 7.05 Revocation of Consents; Future Holders Bound
	 	 	42	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	SECURITYHOLDERS’ MEETINGS
	 	 	 	 
	 
	 	 	 	 
	Section 8.01 Purposes of Meetings
	 	 	42	 
	Section 8.02 Call of Meetings by Trustee
	 	 	43	 
	Section 8.03 Call of Meetings by Company or Securityholders
	 	 	43	 
	Section 8.04 Qualifications for Voting
	 	 	43	 
	Section 8.05 Regulations
	 	 	43	 
	Section 8.06 Voting
	 	 	44	 
	Section 8.07 Quorum; Actions
	 	 	44	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	SUPPLEMENTAL INDENTURES
	 	 	 	 
	 
	 	 	 	 
	Section 9.01 Supplemental Indentures without Consent of Securityholders
	 	 	45	 
	Section 9.02 Supplemental Indentures with Consent of Securityholders
	 	 	47	 
	Section 9.03 Effect of Supplemental Indentures
	 	 	48	 
	Section 9.04 Notation on Debt Securities
	 	 	48	 
	Section 9.05 Evidence of Compliance of Supplemental Indenture to be Furnished to
Trustee
	 	 	48	 
	 
	 	 	 	 
	ARTICLE X
	 	 	 	 
	REDEMPTION OF SECURITIES
	 	 	 	 
	 
	 	 	 	 
	Section 10.01 Optional Redemption
	 	 	48	 
	Section 10.02 Special Event Redemption
	 	 	49	 
	Section 10.03 Notice of Redemption; Selection of Debt Securities
	 	 	49	 
	Section 10.04 Payment of Debt Securities Called for Redemption
	 	 	50	 






(iii)









 





	 	 	 	 	 

	ARTICLE XI
	 	 	 	 
	CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
	 	 	 	 
	 
	 	 	 	 
	Section 11.01 Company May Consolidate, etc., on Certain Terms
	 	 	50	 
	Section 11.02 Successor Entity to be Substituted
	 	 	51	 
	Section 11.03 Opinion of Counsel to be Given to Trustee
	 	 	51	 
	 
	 	 	 	 
	ARTICLE XII
	 	 	 	 
	SATISFACTION AND DISCHARGE OF INDENTURE
	 	 	 	 
	 
	 	 	 	 
	Section 12.01 Discharge of Indenture
	 	 	52	 
	Section 12.02 Deposited Moneys to be Held in Trust by Trustee
	 	 	52	 
	Section 12.03 Paying Agent to Repay Moneys Held
	 	 	53	 
	Section 12.04 Return of Unclaimed Moneys
	 	 	53	 
	 
	 	 	 	 
	ARTICLE XIII
	 	 	 	 
	IMMUNITY OF INCORPORATORS, STOCKHOLDERS, PARTNERS, OFFICERS AND
DIRECTORS
	 	 	 	 
	 
	 	 	 	 
	Section 13.01 Indenture and Debt Securities Solely Company Obligations
	 	 	53	 
	 
	 	 	 	 
	ARTICLE XIV
	 	 	 	 
	MISCELLANEOUS PROVISIONS
	 	 	 	 
	 
	 	 	 	 
	Section 14.01 Successors
	 	 	53	 
	Section 14.02 Official Acts by Successor Entity
	 	 	54	 
	Section 14.03 Surrender of Company Powers
	 	 	54	 
	Section 14.04 Addresses for Notices, etc.
	 	 	54	 
	Section 14.05 Governing Law
	 	 	54	 
	Section 14.06 Evidence of Compliance with Conditions Precedent
	 	 	54	 
	Section 14.07 Non-Business Days
	 	 	55	 
	Section 14.08 Table of Contents, Headings, etc.
	 	 	55	 
	Section 14.09 Execution in Counterparts
	 	 	55	 
	Section 14.10 Separability
	 	 	55	 
	Section 14.11 Assignment
	 	 	55	 
	Section 14.12 Acknowledgment of Rights
	 	 	56	 
	 
	 	 	 	 
	ARTICLE XV
	 	 	 	 
	SUBORDINATION OF DEBT SECURITIES
	 	 	 	 
	 
	 	 	 	 
	Section 15.01 Agreement to Subordinate
	 	 	56	 
	Section 15.02 Default on Senior Indebtedness
	 	 	57	 






(iv)









 





	 	 	 	 	 

	Section 15.03 Liquidation; Dissolution; Bankruptcy
	 	 	57	 
	Section 15.04 Subrogation
	 	 	58	 
	Section 15.05 Trustee to Effectuate Subordination
	 	 	59	 
	Section 15.06 Notice by the Company
	 	 	59	 
	Section 15.07 Rights of the Trustee; Holders of Senior Indebtedness
	 	 	60	 
	Section 15.08 Subordination May Not Be Impaired
	 	 	61	 






EXHIBITS




EXHIBIT A FORM OF DEBT SECURITY




(v)









 





          THIS INDENTURE, dated as of July 16, 2001, between Alliance Capital Partners, LP, a
Delaware limited partnership (hereinafter sometimes called the “Company”), and The Bank of New
York as trustee (hereinafter sometimes called the “Trustee”).




W I T N E S S E T H:




          WHEREAS, for its lawful purposes, the Company has duly authorized the issuance of its 10.25%
Junior Subordinated Deferrable Interest Debentures due July 25, 2031 (the “Debt Securities”) under
this Indenture and to provide, among other things, for the execution and authentication, delivery
and administration thereof, the Company has duly authorized the execution of this Indenture; and




          WHEREAS, all acts and things necessary to make this Indenture a valid agreement according to
its terms, have been done and performed;




          NOW, THEREFORE, This Indenture Witnesseth:




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




ARTICLE I

DEFINITIONS




          Section 1.01 Definitions.




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




          “Additional Interest” shall have the meaning set forth in Section 3.06.




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




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




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








 









 








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




          “Business Day” means any day other than a Saturday, Sunday or any other day on which banking
institutions in New York City or Jacksonville, Florida are permitted or required by any applicable
law to close.




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




          “Capital Securities Guarantee” means the guarantee that the Company will enter into with The
Bank of New York or other Persons that operates directly or indirectly for the benefit of holders
of Capital Securities of the Trust.




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




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




          “Common Securities” means undivided beneficial interests in the assets of the Trust which
rank pari passu with Capital Securities issued by the Trust; provided, however, that if an Event
of Default (as defined in the Declaration) has occurred and is continuing, the rights of








2









 







holders of such Common Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights of holders of such Capital
Securities.




          “Company” means Alliance Capital Partners, LP, a Delaware limited partnership, and, subject
to the provisions of Article XI, shall include its successors and assigns.




          “Comparable Treasury Issue” means with respect to any Special Redemption Date, the United
States Treasury security selected by the Quotation Agent as having a maturity comparable to the
Remaining Life that would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of debt securities of comparable maturity to the
Remaining Life. If no United States Treasury security has a maturity which is within a period from
three months before to three months after July 25, 2006, the two most closely corresponding United
States Treasury securities shall be used as the Comparable Treasury Issue, and the Treasury Rate
shall be interpolated or extrapolated on a straight-line basis, rounding to the nearest month
using such securities.




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




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




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




          “Declaration” means the Amended and Restated Declaration of Trust of the Trust, as amended or
supplemented from time to time.




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




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




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




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




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




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








3









 








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




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




          “Interest Payment Date” means January 25th and July 25th of each year,
commencing on January 25, 2002, during the term of this Indenture.




          “Interest Rate” means 10.25% per annum.




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




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




          “Maturity Date” means July 25, 2031.




          “OTS” means the Office of Thrift Supervision.




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




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




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




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








4









 








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




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




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




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




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




          “Principal Office of the Trustee,” or other similar term, means the office of the Trustee, at
which at any particular time its corporate trust business shall be principally administered, which
at all times shall be located within the United States and at the time of the execution of this
Indenture shall be 101 Barclay Street, Floor 21 West, New York, NY 10286.




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




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




          “Redemption Price” means the price set forth in the following table for any Redemption Date
or Special Redemption Date that occurs within the twelve-month period beginning in the relevant
date indicated below, expressed in percentage of the principal amount of the Debt Securities being
redeemed:












5









 








	 	 	 
	Year	 	Percentage
	July 25, 2006

	 	107.6875%
	July 25, 2007
	 	106.1500%
	July 25, 2008
	 	104.6125%
	July 25, 2009
	 	103.0750%
	July 25, 2010
	 	101.5375%
	July 25, 2011 and after
	 	100.0000%






          plus accrued and unpaid interest on such Debt Securities to the Redemption Date
or, in the case of a redemption due to the occurrence of a Special Event, to the Special
Redemption Date.




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




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




          “Remaining Life” means, with respect to any Debt Security, the period from the Special
Redemption Date for such Debt Security to July 25, 2006.




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




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




          “Senior Indebtedness” means, with respect to the Company, (i) the principal,
premium, if any, and interest in respect of (A) indebtedness of the Company for money borrowed
and (B) indebtedness evidenced by securities, debentures, notes, bonds or other similar
instruments issued by the Company; (ii) all capital lease obligations of the Company; (iii) all








6









 







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




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




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




          “Special Redemption Price” means (1) if the Special Redemption Date is before July 25, 2006,
the greater of (a) 100% of the principal amount of the Debt Securities being redeemed pursuant to
Section 10.02 or (b) as determined by a Quotation Agent, the sum of the present values of the
principal amount and the premium payable as part of the Redemption Price with respect to a
redemption as of July 25, 2006 together with the present value of scheduled payments of interest
over the Remaining Life of such Debt Securities, discounted to the Special Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 0.50%, plus, in the case of either (a) or (b), accrued and unpaid interest on such Debt
Securities to the Special Redemption Date and (2) if the Special Redemption Date is on or after
July 25, 2006, the Redemption Price for such Special Redemption Date.




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








7









 







shares, interests, participations or other equivalents having such power only by reason of
the occurrence of a contingency.




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




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




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




          “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.








8









 








          “Trust Securities” means Common Securities and Capital Securities of First Alliance Capital
Trust I.




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




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




          “U.S. Person” has the meaning given to United States Person as set forth in Section
7701(a)(30) of the Internal Revenue Code of 1986, as amended.




ARTICLE II

DEBT SECURITIES




          Section 2.01 Authentication and Dating.




          Upon the execution and delivery of this Indenture, or from time to time thereafter, Debt
Securities in an aggregate principal amount not in excess of $15,464,000 may be executed and
delivered by the Company to the Trustee for authentication, and the Trustee shall thereupon
authenticate and make available for delivery said Debt Securities to or upon the written order of
the Company, signed by the Chairman of the Board of Directors, Vice Chairman, President, Chief
Financial Officer or any Vice President and by the Secretary, any Assistant Secretary, Treasurer or
any Assistant Treasurer of the general partner of the Company, if the Company is a limited
partnership, or of the Company, if the Company is a corporation, without any further action by the
Company hereunder. In authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities, the Trustee shall be
entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon:




          (a) a copy of any Board Resolution or Board Resolutions relating thereto and, if applicable,
an appropriate record of any action taken pursuant to such resolution, in each case certified by
the Secretary or an Assistant Secretary of the Company as the case may be; and




          (b) an Opinion of Counsel prepared in accordance with Section 14.06 which shall also state:





     (1) that such Debt Securities, when authenticated and delivered by the Trustee
and issued by the Company in each case in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company; and




     (2) that all laws and requirements in respect of the execution and delivery by
the Company of the Debt Securities, have been complied with and that authentication
and delivery of the Debt Securities by the Trustee will not violate the terms of
this Indenture.



9









 





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




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




          Section 2.02 Form of Trustee’s Certificate of Authentication.




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




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




          
                   
                   
                   
                   
    , as Trustee




          By                                                            




               Authorized Officer




          Section 2.03 Form and Denomination of Debt Securities.




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




          Section 2.04 Execution of Debt Securities.




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







10









 








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




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




          Section 2.05 Exchange and Registration of Transfer of Debt Securities.




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




          Debt Securities to be exchanged may be surrendered at the Principal Office of the Trustee or
at any office or agency to be maintained by the Company for such purpose as provided in Section
3.02, and the Company shall execute, the Company or the Trustee shall register and the Trustee or
the Authenticating Agent shall authenticate and make available for delivery in exchange therefor
the Debt Security or Debt Securities which the Securityholder making the exchange shall be entitled
to receive. Upon due presentment for registration of transfer of any Debt Security at the principal
corporate trust office of the Trustee or at any office or agency of the Company maintained for such
purpose as provided in Section 3.02, the Company shall execute, the Company or the Trustee shall
register and the Trustee or the Authenticating Agent shall authenticate and make available for
delivery in the name of the transferee or transferees a new Debt Security for a like aggregate
principal amount. Registration or registration of transfer of any Debt Security by the Trustee or
by any agent of the Company appointed pursuant to Section 3.02, and delivery of such Debt Security,
shall be deemed to complete the registration or registration of transfer of such Debt Security.




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





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




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




          Notwithstanding the foregoing, Debt Securities may not be transferred except in compliance
with the restricted securities legend set forth below (the “Restrictive Securities Legend”),
unless otherwise determined by the Company in accordance with applicable law:




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








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




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




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









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




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




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




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




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









14









 








          Section 2.07 Temporary Debt Securities.




          Pending the preparation of definitive Debt Securities, the Company may execute and the Trustee
shall authenticate and make available for delivery temporary Debt Securities that are typed,
printed or lithographed. Temporary Debt Securities shall be issuable in any authorized
denomination, and substantially in the form of the definitive Debt Securities but with such
omissions, insertions and variations as may be appropriate for temporary Debt Securities, all as
may be determined by the Company. Every such temporary Debt Security shall be executed by the
Company and be authenticated by the Trustee upon the same conditions and in substantially the same
manner, and with the same effect, as the definitive Debt Securities. Without unreasonable delay the
Company will execute and deliver to the Trustee or the Authenticating Agent definitive Debt
Securities and thereupon any or all temporary Debt Securities may be surrendered in exchange
therefor, at the principal corporate trust office of the Trustee or at any office or agency
maintained by the Company for such purpose as provided in Section 3.02, and the Trustee or the
Authenticating Agent shall authenticate and make available for delivery in exchange for such
temporary Debt Securities a like aggregate principal amount of such definitive Debt Securities.
Such exchange shall be made by the Company at its own expense and without any charge therefor
except that in case of any such exchange involving a registration of transfer the Company may
require payment of a sum sufficient to cover any tax, fee or other governmental charge that may be
imposed in relation thereto. Until so exchanged, the temporary Debt Securities shall in all
respects be entitled to the same benefits under this Indenture as definitive Debt Securities
authenticated and delivered hereunder.




          Section 2.08 Payment of Interest.




          Each Debt Security will bear interest at the Interest Rate from and including the original
date of issuance of such Debt Security until the Maturity Date on the principal thereof, on any
overdue principal and (to the extent that payment of such interest is enforceable under applicable
law) on Deferred Interest on any overdue installment of interest (including Defaulted Interest),
payable (subject to the provisions of Article XII) on each Interest Payment Date commencing on
January 25, 2002. Interest and any Deferred Interest on any Debt Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name said Debt Security (or one or more Predecessor Securities) is registered at the close
of business on the regular record date for such interest installment, except that interest and any
Deferred Interest payable on the Maturity Date shall be paid to the Person to whom principal is
paid. In the event that any Debt Security or portion thereof is called for redemption and the
redemption date is subsequent to a regular record date with respect to any Interest Payment Date
and prior to such Interest Payment Date, interest on such Debt Security will be paid upon
presentation and surrender of such Debt Security.




          Any interest on any Debt Security, other than Deferred Interest, that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the registered holder on the relevant regular
record date by virtue of having been such holder, and such Defaulted Interest shall be









15









 





paid by the Company to the Persons in whose names such Debt Securities (or their respective
Predecessor Securities) are registered at the close of business on a special record date for the
payment of such Defaulted Interest, which shall be fixed in the following manner: the Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such
Debt Security and the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a special record date for the payment of such Defaulted Interest which shall
not be more than fifteen nor less than ten days prior to the date of the proposed payment and not
less than ten days after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such special record date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and
the special record date therefor to be mailed, first class postage prepaid, to each Securityholder
at his or her address as it appears in the Debt Security Register, not less than ten days prior to
such special record date. Notice of the proposed payment of such Defaulted Interest and the special
record date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Debt Securities (or their respective Predecessor Securities) are
registered on such special record date and thereafter the Company shall have no further payment
obligation in respect of the Defaulted Interest.




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




          The term “regular record date” as used in this Section shall mean the tenth day of the month
in which an Interest Payment shall occur, whether or not such date is a Business Day.




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




          Section 2.09 Cancellation of Debt Securities Paid, etc.




          All Debt Securities surrendered for the purpose of payment, redemption, exchange or
registration of transfer, shall, if surrendered to the Company or any paying agent, be surrendered
to the Trustee and promptly canceled by it, or, if surrendered to the Trustee or any
Authenticating Agent, shall be promptly canceled by it, and no Debt Securities shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this Indenture. All Debt
Securities canceled by any Authenticating Agent shall be delivered to the Trustee. The
Trustee shall destroy all canceled Debt Securities unless the Company otherwise directs the
Trustee in









16









 







writing. If the Company shall acquire any of the Debt Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by such Debt
Securities unless and until the same are surrendered to the Trustee for cancellation.




          Section 2.10 Computation of Interest.




          The amount of interest payable for any period will be computed on the basis of a 360 day year
of twelve 30-day months.




          Section 2.11 Extension of Interest Payment Period.




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









17









 








          Section 2.12 CUSIP Numbers.




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




ARTICLE III

PARTICULAR COVENANTS OF THE COMPANY



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




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




          (b) The Company will treat the Debt Securities as indebtedness, and the amounts payable in
respect of the principal amount of such Debt Securities as interest, for all U.S. federal income
tax purposes. All payments in respect of such Debt Securities will be made free and clear of U.S.
withholding tax to any beneficial owner thereof that has provided an Internal Revenue Service Form
W8 BEN (or any substitute or successor form) establishing its non-US status for U.S. federal
income tax purposes.




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




          (d) As of the date of this Indenture, the Company believes that the likelihood that it would
exercise its right under Section 2.11 to defer payments of interest on the Debt Securities by
commencing an Extension Period at any time during which the Debt Securities are outstanding is
remote because of the restrictions that would be imposed on the Company’s ability to declare or
pay dividends or distributions on, or to redeem, purchase or make a liquidation payment with
respect to, any of its outstanding equity or partnership or similar interests, as the case may be,
and on the Company’s ability to make any payments of principal of or interest on,









18









 







or
repurchase or redeem, any of its debt securities that rank pari passu in all respects with
(or junior in interest to) the Debt Securities.




          Section 3.02  Offices for Notices and Payments, etc.




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




          In addition to any such office or agency, the Company may from time to time designate one or
more offices or agencies outside Jacksonville, Florida, where the Debt Securities may be presented
for registration of transfer and for exchange in the manner provided in this Indenture, and the
Company may from time to time rescind such designation, as the Company may deem desirable or
expedient; provided, however, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain any such office or agency in
Jacksonville, Florida, for the purposes above mentioned. The Company will give to the Trustee
prompt written notice of any such designation or rescission thereof.




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




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




          Section 3.04
 Provision as to Paying Agent.




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





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








19









 









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




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



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




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




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




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




          Section 3.05 Certificate to Trustee.




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









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          Section 3.06 Additional Interest.




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




          Section 3.07 Compliance with Consolidation Provisions.




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




          Section 3.08 Limitation on Dividends and Distributions.




          If Debt Securities are initially issued to the Trust or a trustee of such trust in connection
with the issuance of Trust Securities by the Trust (regardless of whether Debt Securities continue
to be held by such trust) and (i) there shall have occurred and be continuing an Event of Default,
(ii) the Company shall be in default with respect to its payment of any obligations under the
Capital Securities Guarantee or (iii) the Company shall have given notice of its election to defer
payments of interest on the Debt Securities by extending the interest payment period as provided
herein and such period, or any extension thereof, shall have commenced and be continuing, then (1)
if the Company is a partnership, it may not (A) declare or pay any distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of the partnership interests
of the Company or (B) make any payment of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company that rank
pari passu in all respects with
or junior in interest to the Debt Securities (other than (a) repurchases, redemptions or other
acquisitions of the partnership interests of the Company in connection with any employment
contract, benefit plan or other similar arrangement with or for the benefit of one or more
employees, officers or consultants, in connection with a equity reinvestment or equity purchase
plan or in connection with the issuance of the partnership interests of the Company (or securities
convertible into or exercisable for such partnership interests) as consideration in an acquisition
transaction entered into prior to the occurrence of any









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of (i), (ii) or (iii), above, (b) as a result of any exchange or conversion of any class or
series of the partnership interests of the Company (or any equity securities of a subsidiary of the
Company) for any class or series of the partnership interests of the Company or of any class or
series of the Company’s indebtedness for any class or series of the partnership interests of the
Company, (c) the purchase of fractional interests of the partnership interests of the Company
pursuant to the conversion or exchange provisions of such partnership interests or the partnership
interests being converted or exchanged, (d) any distribution in connection with any equity rights
plan, or the issuance of rights, partnership interests or other property under any equity rights
plan, or the redemption or repurchase of rights pursuant thereto, or (e) any distribution in the
form of partnership interests, warrants, options or other rights where the distributed partnership
interests or the partnership interests issuable upon exercise of such warrants, options or other
rights are of the same class or series of partnership interests as that on which the distribution
is being made or ranks pari passu with or junior to such class or series of partnership interests)
or, (2) if the Company is a corporation, it may not (A) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any
of the Company’s capital stock, or (B) make any payment of principal of or interest or premium, if
any, on or repay, repurchase or redeem any debt securities of the
Company that rank pari passu in
all respects with or junior in interest to the Debt Securities (other than (a) repurchases,
redemptions or other acquisitions of shares of capital stock of the Company in connection with any
employment contract, benefit plan or other similar arrangement with or for the benefit of one or
more employees, officers, directors or consultants, in connection with a dividend reinvestment or
stockholder stock purchase plan or in connection with the issuance of capital stock of the Company
(or securities convertible into or exercisable for such capital stock) as consideration in an
acquisition transaction entered into prior to the occurrence of any of (i), (ii) or (iii), above,
(b) as a result of any exchange or conversion of any class or series of the Company’s capital stock
(or any capital stock of a subsidiary of the Company) for any class or series of the Company’s
capital stock or of any class or series of the Company’s indebtedness for any class or series of
the Company’s capital stock, (c) the purchase of fractional interests in shares of the Company’s
capital stock pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (d) any declaration of a dividend in connection with any
stockholder’s rights plan, or the issuance of rights, stock or other property under any
stockholder’s rights plan, or the redemption or repurchase of rights pursuant thereto, or (e) any
dividend in the form of stock, warrants, options or other rights where the dividend stock or the
stock issuable upon exercise of such warrants, options or other rights is the same stock as that on
which the dividend is being paid or ranks pari passu with or junior to such stock).




          Section 3.09 Covenants as to the Trust.




          For so long as such Trust Securities remain outstanding, the Company shall maintain 100%
ownership of the Common Securities; provided, however, that any permitted successor
of the Company under this Indenture that is a U.S. Person may succeed to the Company’s ownership of
such Common Securities. The Company, as owner of the Common Securities, shall use commercially
reasonable efforts to cause the Trust (a) to remain a statutory business trust, except in
connection with a distribution of Debt Securities to the holders of Trust









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Securities in liquidation of the Trust, the redemption of all of the Trust Securities or certain
mergers, consolidations or amalgamations, each as permitted by the Declaration, (b) to otherwise
continue to be classified as a grantor trust for United States federal income tax purposes and
(c) to cause each holder of Trust Securities to be treated as owning an undivided beneficial
interest in the Debt Securities.




ARTICLE IV

LISTS AND REPORTS

BY THE COMPANY AND THE TRUSTEE



          Section 4.01 Securityholder’s Lists.




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




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




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




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




          Section 4.02 Preservation and Disclosure of Lists.




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




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









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




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



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




          (c) Each and every holder of Debt Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any paying agent shall be
held accountable by reason of the disclosure of any such information as to the names and addresses
of the holders of Debt Securities in accordance with the provisions of subsection (b) of this
Section 4.02, regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant to a request made
under said subsection (b).








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ARTICLE V

REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS

UPON AN EVENT OF DEFAULT




          Section 5.01 Events of Default.




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




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




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




          (c) the Company defaults in the performance of, or breaches, any of its covenants or
agreements in Sections 3.06, 3.07, 3.08 and 3.09 of this Indenture (other than a covenant or
agreement a default in whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the holders of at least 25% in aggregate principal amount of the
outstanding Debt Securities, a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a “Notice of Default” hereunder; or




          (d) a court having jurisdiction in the premises shall enter a decree or order for relief in
respect of the Company in an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appoints a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or for any substantial part of its
property, or orders the winding-up or liquidation of its affairs and such decree or order shall
remain unstayed and in effect for a period of 90 consecutive days; or




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









25









 








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




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




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




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









26









 








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




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




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









27









 







compensation to the Trustee, each predecessor Trustee and their respective
agents, attorneys and counsel, and all other amounts due to the Trustee under Section
6.06.




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




          All rights of action and of asserting claims under this Indenture, or under any
of the Debt Securities, may be enforced by the Trustee without the possession of any
of the Debt Securities, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of judgment
shall be for the ratable benefit of the holders of the Debt Securities.




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




          Section 5.03 Application of Moneys Collected by Trustee.




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




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




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




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




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









28









 








          Section 5.04 Proceedings by Securityholders.




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




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




          Section 5.05 Proceedings by Trustee.




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




          Section 5.06 Remedies Cumulative and Continuing.




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









29









 







Trustee or to the Securityholders may be exercised from time to time, and as often as shall
be deemed expedient, by the Trustee or by the Securityholders.




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




          The holders of a majority in aggregate principal amount of the Debt Securities affected
(voting as one class) at the time outstanding shall have the right to direct the time, method, and
place of conducting any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee with respect to such Debt Securities; provided,
however, that (subject to the provisions of Section 6.01) the Trustee shall have the right
to decline to follow any such direction if the Trustee shall determine that the action so directed
would be unjustly prejudicial to the holders not taking part in such direction or if the Trustee
being advised by counsel determines that the action or proceeding so directed may not lawfully be
taken or if a Responsible Officer of the Trustee shall determine that the action or proceedings so
directed would involve the Trustee in personal liability. Prior to any declaration accelerating
the maturity of the Debt Securities, the holders of a majority in aggregate principal amount of
the Debt Securities at the time outstanding may on behalf of the holders of all of the Debt
Securities waive (or modify any previously granted waiver of) any past default or Event of Default
and its consequences, except a default (a) in the payment of principal of, premium, if any, or
interest on any of the Debt Securities, (b) in respect of covenants or provisions hereof which
cannot be modified or amended without the consent of the holder of each Debt Security affected, or
(c) in respect of the covenants contained in Section 3.09; provided, however, that
if the Debt Securities are held by the Trust or a trustee of such trust, such waiver or
modification to such waiver shall not be effective until the holders of a majority in liquidation
preference of Trust Securities of the Trust shall have consented to such waiver or modification to
such waiver; provided, further, that if the consent of the holder of each outstanding Debt
Security is required, such waiver shall not be effective until each holder of the Trust Securities
of the Trust shall have consented to such waiver. Upon any such waiver, the default covered
thereby shall be deemed to be cured for all purposes of this Indenture and the Company, the
Trustee and the holders of the Debt Securities shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon. Whenever any default or Event of
Default hereunder shall have been waived as permitted by this Section 5.07, said default or Event
of Default shall for all purposes of the Debt Securities and this Indenture be deemed to have been
cured and to be not continuing.




          Section 5.08 Notice of Defaults.




          The Trustee shall, within 90 days after a Responsible Officer of the Trustee shall have
received notice or obtained actual knowledge of the occurrence of a default with respect to the
Debt Securities, mail to all Securityholders, as the names and addresses of such holders appear
upon the Debt Security Register, notice of all defaults with respect to the Debt Securities known
to the Trustee, unless such defaults shall have been cured before the giving of such notice (the
term “defaults” for the purpose of this Section 5.08 being hereby defined to be the events









30









 







specified in subsections (a), (b), (c), (d) and (e) of Section 5.01, not including periods of
grace, if any, provided for therein); provided, that, except in the case of default in the
payment of the principal of, premium, if any, or interest on any of the Debt Securities, the
Trustee shall be protected in withholding such notice if and so long as a Responsible Officer of
the Trustee in good faith determines that the withholding of such notice is in the interests of the
Securityholders.




          Section 5.09 Undertaking to Pay Costs.




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




ARTICLE VI

CONCERNING THE TRUSTEE




          Section 6.01 Duties and Responsibilities of Trustee.




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




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




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









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




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



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




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




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




          Section 6.02
Reliance on Documents, Opinions, etc.




          Except as otherwise provided in Section 6.01:




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




          (b) any request, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by an Officers’ Certificate (unless other evidence
in respect thereof be herein specifically prescribed); and any Board Resolution
may be evidenced to the
Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the
Company;





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




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




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




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




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




          (h) the Trustee shall not be charged with knowledge of any Default or Event of Default with
respect to the Debt Securities unless either (1) a Responsible Officer shall have actual knowledge
of such Default or Event of Default or (2) written notice of such Default or Event of Default
shall have been given to the Trustee by the Company or any other obligor on the Debt Securities or
by any holder of the Debt Securities.




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          Section 6.03 No Responsibility for Recitals, etc.




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




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




          The Trustee or any Authenticating Agent or any paying agent or any transfer agent or any Debt
Security registrar, in its individual or any other capacity, may become the owner or pledgee of
Debt Securities with the same rights it would have if it were not Trustee, Authenticating Agent,
paying agent, transfer agent or Debt Security registrar.




          Section 6.05 Moneys to be Held in Trust.




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




          Section 6.06 Compensation and Expenses of Trustee.




          The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as shall be agreed to in writing between the Company and
the Trustee (which shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), and the Company will pay or reimburse the Trustee upon its written
request for all documented reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all Persons not regularly in
its employ) except any such expense, disbursement or advance as may arise from its negligence or
bad faith. The Company also covenants to




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indemnify each of the Trustee or any predecessor Trustee (and its officers, agents, directors and
employees) for, and to hold it harmless against, any and all loss, damage, claim, liability or
expense including taxes (other than taxes based on the income of the Trustee) incurred without
negligence or bad faith on the part of the Trustee and arising out of or in connection with the
acceptance or administration of this Trust, including the costs and expenses of defending itself
against any claim of liability in the premises. The obligations of the Company under this Section
6.06 to compensate and indemnify the Trustee and to pay or reimburse the Trustee for documented
expenses, disbursements and advances shall constitute additional indebtedness hereunder. Such
additional indebtedness shall be secured by a lien prior to that of the Debt Securities upon all
property and funds held or collected by the Trustee as such, except funds held in trust for the
benefit of the holders of particular Debt Securities.




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




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




          Section 6.07 Officers’ Certificate as Evidence.




          Except as otherwise provided in Sections 6.01 and 6.02, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence
or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an
Officers’ Certificate delivered to the Trustee, and such certificate, in the absence of negligence
or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken
or omitted by it under the provisions of this Indenture upon the faith thereof.




          Section 6.08 Eligibility of Trustee.




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




35









 




be deemed to be its combined capital and surplus as set forth in its most recent records of
condition so published.




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




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




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




          Section 6.09 Resignation or Removal of Trustee.




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




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





     (1) the Trustee shall fail to comply with the provisions of the last paragraph
of Section 6.08 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Debt Security or Debt Securities
for at least six months,




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



36









 






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



          then, in any such case, the Company may remove the Trustee and appoint a successor Trustee
by written instrument, in duplicate, executed by order of the Board of Directors, one copy of
which instrument shall be delivered to the Trustee so removed and one copy to the successor
Trustee, or, subject to the provisions of Section 5.09, any Securityholder who has been a bona
fide holder of a Debt Security or Debt Securities for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint
successor Trustee.




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




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




          Section 6.10
Acceptance by Successor Trustee.




          Any successor Trustee appointed as provided in Section 6.09 shall execute, acknowledge and
deliver to the Company and to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, duties and obligations with respect to the Debt Securities of
its predecessor hereunder, with like effect as if originally named as Trustee herein; but,
nevertheless, on the written request of the Company or of the successor Trustee, the Trustee
ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of
Section 6.06, execute and deliver an instrument transferring to such successor Trustee all the
rights and powers of the Trustee so ceasing to act and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee thereunder. Upon
request of any such successor Trustee, the Company shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor Trustee all such
rights and powers. Any Trustee ceasing to act shall, nevertheless, retain a lien upon all
property




37









 




or funds held or collected by such Trustee to secure any amounts then due it pursuant to the
provisions of Section 6.06.




          If a successor Trustee is appointed, the Company, the retiring Trustee and the successor
Trustee shall execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Debt Securities as to which the
predecessor Trustee is not retiring shall continue to be vested in the predecessor Trustee, and
shall add to or change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the Trust hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by any other such
Trustee.




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




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




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




          Section 6.11 Succession by Merger, etc.




          Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder without
the execution or filing of any paper or any further act on the part of any of the parties hereto;
provided, that such corporation shall be otherwise eligible and qualified under this
Article.




          In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture any of the Debt Securities shall have been authenticated but not delivered, any such
successor to the Trustee may adopt the certificate of authentication of any predecessor Trustee,
and deliver such Debt Securities so authenticated; and in case at that time any of the Debt
Securities shall not have been authenticated, any successor to the Trustee may authenticate




38









 




such Debt Securities either in the name of any predecessor hereunder or in the name of the
successor Trustee; and in all such cases such certificates shall have the full force which it is
anywhere in the Debt Securities or in this Indenture provided that the certificate of the Trustee
shall have; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate Debt Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.




          Section 6.12 Authenticating Agents.




          There may be one or more Authenticating Agents appointed by the Trustee upon the request of
the Company with power to act on its behalf and subject to its direction in the authentication and
delivery of Debt Securities issued upon exchange or registration of transfer thereof as fully to
all intents and purposes as though any such Authenticating Agent had been expressly authorized to
authenticate and deliver Debt Securities; provided that the Trustee shall have no liability to the
Company for any acts or omissions of the Authenticating Agent with respect to the authentication
and delivery of Debt Securities. Any such Authenticating Agent shall at all times be a corporation
organized and doing business under the laws of the United States or of any state or territory
thereof or of the District of Columbia authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of at least $50,000,000 and being subject to supervision or
examination by federal, state, territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually pursuant to law or the requirements of such
authority, then for the purposes of this Section 6.12 the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, it shall resign immediately in the
manner and with the effect herein specified in this Section.




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




          Any Authenticating Agent may at any time resign by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of any Authenticating
Agent with respect to the Debt Securities by giving written notice of termination to such
Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be eligible under this
Section 6.12, the Trustee may, and upon the request of the Company shall, promptly appoint a
successor Authenticating Agent eligible under this Section 6.12, shall give written notice of such
appointment to the Company and shall mail notice of such




39









 




appointment to all holders of Debt Securities as the names and addresses of such holders appear on
the Debt Security Register. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all rights, powers, duties and responsibilities with respect to
the Debt Securities of its predecessor hereunder, with like effect as if originally named as
Authenticating Agent herein.




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




ARTICLE VII

CONCERNING THE SECURITYHOLDERS




          Section 7.01 Action by Securityholders.




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




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




40









 





          Section 7.02 Proof of Execution by Securityholders.




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




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




          Section 7.03 Who Are Deemed Absolute Owners.




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




          Section 7.04 Debt Securities Owned by Company Deemed Not Outstanding.




          In determining whether the holders of the requisite aggregate principal amount of Debt
Securities have concurred in any direction, consent or waiver under this Indenture, Debt Securities
which are owned by the Company or any other obligor on the Debt Securities or by any Person
directly or indirectly controlling or controlled by or under direct or indirect common control with
the Company or any other obligor on the Debt Securities shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided, that for the purposes of
determining whether the Trustee shall be protected in relying on any such direction, consent or
waiver, only Debt Securities which a Responsible Officer of the Trustee actually knows are so owned
shall be so disregarded. Debt Securities so owned which have been pledged in good faith may be
regarded as outstanding for the purposes of this Section 7.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee’s right to vote such Debt Securities and that the pledgee
is not the Company or any such other obligor or Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any such other
obligor. In the case of a dispute as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee.




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          Section 7.05 Revocation of Consents; Future Holders Bound.




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




ARTICLE VIII

SECURITYHOLDERS’ MEETINGS




          Section 8.01
Purposes of Meetings.




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




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




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




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




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




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          Section 8.02 Call of Meetings by Trustee.




          The Trustee may at any time call a meeting of Securityholders to take any action specified in
Section 8.01, to be held at such time and at such place in New York, as the Trustee shall
determine. Notice of every meeting of the Securityholders, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such meeting, shall be mailed
to holders of Debt Securities affected at their addresses as they shall appear on the Debt
Securities Register. Such notice shall be mailed not less than 20 nor more than 180 days prior to
the date fixed for the meeting.




          Section 8.03 Call of Meetings by Company or Securityholders.




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




          Section 8.04 Qualifications for Voting.




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




          Section 8.05 Regulations.




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




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




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




          Section 8.06 Voting.




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




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




          Section 8.07
Quorum; Actions.




          The Persons entitled to vote a majority in principal amount of the Debt Securities shall
constitute a quorum for a meeting of Securityholders; provided, however, that if
any action is to be taken at such meeting with respect to a consent, waiver, request, demand,
notice, authorization, direction or other action which may be given by the holders of not less
than a specified percentage in principal amount of the Debt Securities, the Persons holding or
representing such specified percentage in principal amount of the Debt Securities will constitute
a quorum. In the absence of a quorum within 30 minutes of the time appointed for any such meeting,
the meeting shall, if convened at the request of Securityholders, be dissolved. In any








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other case the meeting may be adjourned for a period of not less than 10 days as determined by the
permanent chairman of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the permanent chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 8.02, except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Debt Securities which shall constitute a quorum.




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




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




ARTICLE IX

SUPPLEMENTAL INDENTURES




          Section 9.01 Supplemental Indentures without Consent of Securityholders.




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




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




          (b) to add to the covenants of the Company such further covenants, restrictions or
conditions for the protection of the holders of Debt Securities as the Board of Directors shall
consider to be for the protection of the holders of such Debt Securities, and to make the
occurrence, or the occurrence and continuance, of a default in any of such additional covenants,
restrictions or conditions a default or an Event of Default permitting the enforcement




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of all or any of the several remedies provided in this Indenture as herein set forth;
provided, however, that in respect of any such additional covenant, restriction or
condition such supplemental indenture may provide for a particular period of grace after default
(which period may be shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit the remedies available to the
Trustee upon such default;




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




          (d) to add to, delete from, or revise the terms of Debt Securities, including, without
limitation, any terms relating to the issuance, exchange, registration or transfer of Debt
Securities, including to provide for transfer procedures and restrictions substantially similar to
those applicable to the Capital Securities as required by Section 2.05 (for purposes of assuring
that no registration of Debt Securities is required under the Securities Act of 1933, as amended);
provided that any such action shall not adversely affect the interests of the holders of the Debt
Securities then outstanding (it being understood, for purposes of this proviso, that transfer
restrictions on Debt Securities substantially similar to those that were applicable to Capital
Securities shall not be deemed to adversely affect the holders of the Debt Securities);




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




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




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




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




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




          Section 9.02 Supplemental Indentures with Consent of Securityholders.




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




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




          Promptly after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of this Section, the Trustee shall transmit by mail, first class
postage prepaid, a notice, prepared by the Company, setting forth in general terms the substance
of such supplemental indenture, to the Securityholders thereby as their names and addresses appear
upon the Debt Security Register. Any failure of the Trustee to mail




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such notice, or any defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.




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




          Section 9.03 Effect of Supplemental Indentures.




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




          Section 9.04 Notation on Debt Securities.




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




          Section 9.05 Evidence of Compliance of Supplemental Indenture to
be Furnished to Trustee.




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




ARTICLE X

REDEMPTION OF SECURITIES




          Section 10.01 Optional Redemption. At any time the Company shall have the right,
subject to the receipt by the Company of prior approval from the OTS, if then required under
applicable capital guidelines or policies of the OTS, to redeem the Debt Securities, in




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whole or in part, on any January 25th or July 25th on or after July 25,
2006 (the “Redemption Date”), at the Redemption Price.




          Section 10.02 Special Event Redemption.




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




          Section 10.03 Notice of Redemption; Selection of Debt Securities.




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




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




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




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          The Company will give the Trustee notice not less than 45 nor more than 60 days prior
to the redemption date as to the aggregate principal amount of Debt Securities to be redeemed and
the Trustee shall select, in such manner as in its sole discretion it shall deem appropriate and
fair, the Debt Securities or portions thereof (in integral multiples of $1,000) to be
redeemed.




          Section 10.04 Payment of Debt Securities Called for Redemption.




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




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




ARTICLE XI

CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE




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




          Nothing contained in this Indenture or in the Debt Securities shall prevent any consolidation
or merger of the Company with or into any other corporation or corporations (whether or not
affiliated with the Company) or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale, conveyance,
transfer or other disposition of the property, capital stock or partnership or similar interests
of the Company or its successor or successors as an entirety, or substantially as an entirety, to
any other corporation (whether or not affiliated with the Company, or its successor or successors)
authorized to acquire and operate the same; provided, however, that the Company
hereby covenants and agrees that, upon any such consolidation, merger (where the Company is not
the surviving corporation), sale, conveyance, transfer or other disposition, the due and punctual
payment of the principal of (and premium, if any) and interest on all of the Debt Securities in
accordance with their terms, according to their tenor, and the due and punctual




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performance and observance of all the covenants and conditions of this Indenture to be kept or
performed by the Company, shall be expressly assumed by supplemental indenture satisfactory in
form to the Trustee executed and delivered to the Trustee by the entity formed by such
consolidation, or into which the Company shall have been merged, or by the entity which shall have
acquired such property, capital stock or partnership or similar interests.




          Section 11.02 Successor Entity to be Substituted.




          In case of any consolidation, merger, sale, conveyance, transfer or other disposition and upon
the assumption by the successor entity, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the principal
of and premium, if any, and interest on all of the Debt Securities and the due and punctual
performance and observance of all of the covenants and conditions of this Indenture to be performed
or observed by the Company, such successor entity shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the Company, and thereupon the
predecessor entity shall be relieved of any further liability or obligation hereunder or upon the
Debt Securities. Such successor entity thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company, any or all of the Debt Securities issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the Trustee or the
Authenticating Agent; and, upon the order of such successor entity instead of the Company and
subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee or
the Authenticating Agent shall authenticate and deliver any Debt Securities which previously shall
have been signed and delivered by the officers of the Company, to the Trustee or the Authenticating
Agent for authentication, and any Debt Securities which such successor entity thereafter shall
cause to be signed and delivered to the Trustee or the Authenticating Agent for that purpose. All
the Debt Securities so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Debt Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Debt Securities had been issued at the date of the execution
hereof.




          Section 11.03 Opinion of Counsel to be Given to Trustee.




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




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ARTICLE XII

SATISFACTION AND DISCHARGE OF INDENTURE




          Section 12.01 Discharge of Indenture.




          When (a) the Company shall deliver to the Trustee for cancellation all Debt Securities
theretofore authenticated (other than any Debt Securities which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in Section 2.06) and not theretofore
canceled, or (b) all the Debt Securities not theretofore canceled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become due and payable
within one year or are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and the Company shall deposit with the
Trustee, in trust, funds, which shall be immediately due and payable, sufficient to pay at maturity
or upon redemption all of the Debt Securities (other than any Debt Securities which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.06)
not theretofore canceled or delivered to the Trustee for cancellation, including principal and
premium, if any, and interest due or to become due to such date of maturity or redemption date, as
the case may be, but excluding, however, the amount of any moneys for the payment of principal of,
and premium, if any, or interest on the Debt Securities (1) theretofore repaid to the Company in
accordance with the provisions of Section 12.04, or (2) paid to any state or to the District of
Columbia pursuant to its unclaimed property or similar laws, and if in the case of either clause
(a) or clause (b) the Company shall also pay or cause to be paid all other sums payable hereunder
by the Company, then this Indenture shall cease to be of further effect except for the provisions
of Sections 2.05, 2.06, 2.08, 3.01, 3.02, 3.04, 6.06, 6.09 and 12.04 hereof shall survive until
such Debt Securities shall mature or are redeemed, as the case may be, and are paid. Thereafter,
Sections 6.09 and 12.04 shall survive, and the Trustee, on demand of the Company accompanied by an
Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have been complied with,
and at the cost and expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture, the Company, however, hereby agreeing to reimburse
the Trustee for any costs or expenses thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Debt Securities.




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




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




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          Section 12.03
Paying Agent to Repay Moneys Held.




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




          Section 12.04 Return of Unclaimed Moneys.




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




ARTICLE XIII

IMMUNITY OF INCORPORATORS, STOCKHOLDERS, PARTNERS,

OFFICERS AND DIRECTORS




          Section 13.01 Indenture and Debt Securities Solely Company Obligations.




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




ARTICLE XIV

MISCELLANEOUS PROVISIONS




          Section 14.01 Successors.




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





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          Section 14.02 Official Acts by Successor Entity.




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




          Section 14.03 Surrender of Company Powers.




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




          Section 14.04 Addresses for Notices, etc.




          Any notice or demand which by any provision of this Indenture is required or permitted to be given
or served by the Trustee or by the Securityholders on the Company may be given or served in writing
by being deposited postage prepaid by registered or certified mail in a post office letter box
addressed (until another address is filed by the Company, with the Trustee for the purpose)
Alliance Capital Partners, LP at 8100 Nations Way, Jacksonville, Florida 32256, Attention: Stephen
B. Matheson. Any notice, direction, request or demand by any Securityholder or the Company to or
upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if
given or made in writing at the office of the Trustee, addressed to the Trustee, 101 Barclay
Street, Floor 21W, New York, NY 10286 Attention: Corporate Trust Administration.




          Section 14.05 Governing Law.




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




          Section 14.06 Evidence of Compliance with Conditions Precedent.




          Upon any application or demand by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate
stating that in the opinion of the signers all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions precedent have been complied with.




          Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture (except
certificates delivered pursuant to Section 3.05) shall include (a) a statement that the






54









 







person making such certificate or opinion has read such covenant or condition; (b) a brief
statement as to the nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based; (c) a statement that, in the
opinion of such person, he has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or condition has been complied
with; and (d) a statement as to whether or not, in the opinion of such person, such condition or
covenant has been complied with.




          Section 14.07 Non-Business Days.




          In any case where the date of payment of interest on or principal of the Debt Securities is not a
Business Day, the payment of such interest on or principal of the Debt Securities need not be made
on such date but may be made on the next succeeding Business Day, with the same force and effect as
if made on the date of payment and no interest shall accrue for the period from and after such
date, except if such Business Day is in the next succeeding calendar year, such payment will be
made on the immediately preceding Business Day.




          Section
14.08
Table of Contents, Headings, etc.




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




          Section 14.09 Execution in Counterparts.




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




          Section 14.10 Separability.




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




          Section 14.11 Assignment.




          The Company will have the right at all times to assign any of its rights or obligations under this
Indenture to a direct or indirect wholly owned Subsidiary of the Company, provided that, in the
event of any such assignment, the Company will remain liable for all such obligations. Subject to
the foregoing, this Indenture is binding upon and inures to the benefit of






55









 







the parties hereto and their respective successors and assigns. This Indenture may not otherwise be
assigned by the parties thereto.




          Section 14.12 Acknowledgment of Rights.




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




ARTICLE XV

SUBORDINATION OF DEBT SECURITIES




          Section 15.01 Agreement to Subordinate.




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




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




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






56









 








          Section 15.02
 Default on Senior Indebtedness.




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




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




          Section 15.03
Liquidation; Dissolution; Bankruptcy.




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






57









 








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




          For purposes of this Article XV, the words “cash, property or securities” shall not be deemed to
include shares of stock or partnership or similar interests of the Company as reorganized or
readjusted, or securities of the Company or any other entity provided for by a plan of
reorganization or readjustment, the payment of which is subordinated at least to the extent
provided in this Article XV with respect to the Debt Securities to the payment of all Senior
Indebtedness of the Company, that may at the time be outstanding, provided that (a) such Senior
Indebtedness is assumed by the new entity, if any, resulting from any such reorganization or
readjustment, and (b) the rights of the holders of such Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or readjustment. The consolidation of the
Company with, or the merger of the Company into, another entity or the liquidation or dissolution
of the Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another entity upon the terms and conditions provided for in
Article IX of this Indenture shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 15.03 if such other entity shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions stated in Article IX of
this Indenture. Nothing in Section 15.02 or in this Section 15.03 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.06 of this Indenture.




          Section 15.04 Subrogation.




          Subject to the payment in full of all Senior Indebtedness of the Company, the Securityholders shall
be subrogated to the rights of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company, applicable to such Senior
Indebtedness until the principal of (and premium, if any) and interest on the Debt Securities shall
be paid in full; and, for the purposes of such subrogation, no payments or distributions to the
holders of such Senior Indebtedness of any cash, property or securities to which the
Securityholders or the Trustee would be entitled except for the provisions of this Article XV, and
no payment over pursuant to the provisions of this Article XV to or for the benefit of the holders
of such Senior Indebtedness by Securityholders or the Trustee, shall, as between the Company, its
creditors other than holders of Senior Indebtedness of the Company, and the holders of the Debt
Securities be deemed to be a payment or distribution by the






58









 







Company to or on account of such Senior Indebtedness. It is understood that the provisions of this
Article XV are and are intended solely for the purposes of defining the relative rights of the
holders of the Debt Securities, on the one hand, and the holders of such Senior Indebtedness, on
the other hand.




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




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




          Section 15.05 Trustee to Effectuate Subordination.




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




          Section 15.06 Notice by the Company.




          The Company shall give prompt written notice to a Responsible Officer of the Trustee at the
Principal Office of the Trustee of any fact known to the Company that would prohibit the making of
any payment of monies to or by the Trustee in respect of the Debt Securities pursuant to the
provisions of this Article XV. Notwithstanding the provisions of this Article XV or any other
provision of this Indenture or any Additional Provisions, the Trustee






59









 







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




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




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




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




          With respect to the holders of Senior Indebtedness of the Company, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are specifically set forth in
this Article XV, and no implied covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture or any Additional Provisions against the Trustee.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of such Senior
Indebtedness and, subject to the provisions of Article VI of this Indenture, the Trustee shall not
be liable to any holder of such Senior Indebtedness if it shall pay over or deliver to






60









 







Securityholders, the Company or any other Person money or assets to which any holder of such Senior
Indebtedness shall be entitled by virtue of this Article XV or otherwise.




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




          Section 15.08 Subordination May Not Be Impaired.




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




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




          The Bank of New York in its capacity as trustee hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions herein above set forth.






61









 








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




	 	 	 	 	 	 	 

	 	 	Alliance Capital Partners, LP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Alliance Capital Partners, Inc.,	 	 
	 

	 	 	 	the sole general partner 	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Robert M. Clements
 

Robert M. Clements
	 	 
	 

	 	 	 	President and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	The Bank Of New York, 	 	 
	 

	 	 	 	as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Mary LaGumina
 

Name: Mary LaGumina
	 	 
	 

	 	 	 	Title: Vice President	 	 



















 








EXHIBIT A 




FORM OF JUNIOR SUBORDINATED DEBT SECURITY




[FORM OF FACE OF SECURITY]



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




          THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT
IS NOT AN EMPLOYEE BENEFIT,



INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (EACH A “PLAN”), OR AN ENTITY WHOSE UNDERLYING
ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT IN THE ENTITY AND NO PERSON
INVESTING “PLAN ASSETS”






Exhibit A-1









 







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




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




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




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






Exhibit A-2









 








10.25% Junior Subordinated Debt Security




of



Alliance Capital Partners, LP



          Alliance Capital Partners, LP, a Delaware limited partnership (the “Company”), for value received
promises to pay to [                             
           ] (the “Holder”) or registered assigns, the principal
sum of [                                        ] ($[                                       ]) on
July 25, 2031, and to pay interest on said principal sum from July 16, 2001, or from the most
recent interest payment date (each such date, an “Interest Payment Date”) to which interest has
been paid or duly provided for, semi-annually (subject to deferral as set forth herein) in arrears
on
January 25th and July 25th of each year commencing January 25, 2002, at a
fixed annual rate equal to 10.25% (the “Interest Rate”) until the principal hereof shall have
become due and payable, and on any overdue principal and (without duplication and to the extent
that payment of such interest is enforceable under applicable law) on any overdue installment of
interest at an annual rate equal to 10.25% compounded semi-annually. The amount of interest payable
on any Interest Payment Date shall be computed on the basis of a 360-day year of twelve 30-day
months. In the event that any date on which the principal or interest is payable on this Debt
Security is not a Business Day, then payment payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment in respect of any
such delay), except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date. The interest installment so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Debt Security (or one or more Predecessor Securities, as defined in said
Indenture) is registered at the close of business on the Record Date for such interest installment,
which shall be the close of business on the 15th day next preceding such Interest Payment Date. Any
such interest installment not punctually paid or duly provided for shall forthwith cease to be
payable to the registered holders on such Record Date and may be paid to the Person in whose name
this Debt Security (or one or more Predecessor Debt Securities) is registered at the close of
business on a special record date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the registered holders of the Debt Securities not less
than 10 days prior to such special record date, all as more fully provided in the Indenture. The
principal of and interest on this Debt Security shall be payable at the office or agency of the
Trustee (or other paying agent appointed by the Company) maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal tender for payment of
public and private debts; provided, however, that payment of interest may be made at the option of
the Company by check mailed to the registered holder at such address as shall appear in the Debt
Security Register or by wire transfer to an account appropriately designated by the holder hereof.
Notwithstanding the foregoing, so long as the holder of this Debt Security is the Institutional
Trustee, the payment of the principal of and interest on this Debt Security will be






Exhibit A-3









 







made in immediately available funds at such place and to such account as may be designated by the
Trustee.




          So long as no Event of Default has occurred and is continuing, the Company shall have the right,
from time to time, to defer payments of interest on the Debt Securities by extending the interest
payment period on the Debt Securities at any time and from time to time during the term of the Debt
Securities, for up to 10 consecutive semi-annual periods (each such extended interest payment
period, an “Extension Period”), during which Extension Period no interest shall be due and payable
(except any Additional Interest that may be due and payable). During any Extension Period, interest
will continue to accrue on the Debt Securities and interest on such accrued interest (such accrued
interest and interest thereon referred to herein as “Deferred Interest”) will accrue at the
Interest Rate, compounded semi-annually from the date such Deferred Interest would have been
payable were it not for the Extension Period, both to the extent permitted by law. No Extension
Period may end on a date other than an Interest Payment Date. At the end of any such Extension
Period the Company shall pay all Deferred Interest then accrued and unpaid on the Debt Securities;
provided however, that no Extension Period may extend beyond the Maturity Date and provided further
however, during any such Extension Period, (A) if the Company is a partnership, it may not (i)
declare or pay any distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the partnership interests of the Company or (ii) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or redeem any debt securities
of the Company that rank pari passu in all respects with or junior in interest to the Debt
Securities (other than (a) repurchases, redemptions or other acquisitions of the partnership
interests of the Company in connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of one or more employees, officers or consultants, in
connection with a equity reinvestment or equity purchase plan or in connection with the issuance of
the partnership interests of the Company (or securities convertible into or exercisable for such
partnership interests) as consideration in an acquisition transaction entered into prior to the
applicable Extension Period, (b) as a result of any exchange or conversion of any class or series
of the partnership interests of the Company (or any equity securities of a subsidiary of the
Company) for any class or series of the partnership interests of the Company or of any class or
series of the Company’s indebtedness for any class or series of the partnership interests of the
Company, (c) the purchase of fractional interests of the partnership interests of the Company
pursuant to the conversion or exchange provisions of such partnership interests or the partnership
interests being converted or exchanged, (d) any distribution in connection with any equity rights
plan, or the issuance of rights, partnership interests or other property under any equity rights
plan, or the redemption or repurchase of rights pursuant thereto, or (e) any distribution in the
form of partnership interests, warrants, options or other rights where the distributed partnership
interests or the partnership interests issuable upon exercise of such warrants, options or other
rights are of the same class or series of partnership interests as that on which the distribution
is being made or ranks pari passu with or junior to such class or series of partnership interests),
or (B) if the Company is a corporation, it may not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any
of the Company’s capital stock or (ii) make any






Exhibit A-4









 







payment of principal of or interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company that rank pari passu in all respects with or junior in interest to the
Debt Securities (other than (a) repurchases, redemptions or other acquisitions of shares of capital
stock of the Company in connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of one or more employees, officers, directors or consultants,
in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with
the issuance of capital stock of the Company (or securities convertible into or exercisable for
such capital stock) as consideration in an acquisition transaction entered into prior to the
applicable Extension Period, (b) as a result of any exchange or conversion of any class or series
of the Company’s capital stock (or any capital stock of a subsidiary of the Company) for any class
or series of the Company’s capital stock or of any class or series of the Company’s indebtedness
for any class or series of the Company’s capital stock, (c) the purchase of fractional interests in
shares of the Company’s capital stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged, (d) any declaration of a dividend in
connection with any stockholder’s rights plan, or the issuance of rights, stock or other property
under any stockholder’s rights plan, or the redemption or repurchase of rights pursuant thereto, or
(e) any dividend in the form of stock, warrants, options or other rights where the dividend stock
or the stock issuable upon exercise of such warrants, options or other rights is the same stock as
that on which the dividend is being paid or ranks pari passu with or junior to such stock). Prior
to the termination of any Extension Period, the Company may further extend such period, provided
that such period together with all such previous and further consecutive extensions thereof shall
not exceed 10 consecutive semi-annual periods, or extend beyond the Maturity Date. Upon the
termination of any Extension Period and upon the payment of all Deferred Interest, the Company may
commence a new Extension Period, subject to the foregoing requirements. No interest or Deferred
Interest shall be due and payable during an Extension Period, except at the end thereof, but each
installment of interest that would otherwise have been due and payable during such Extension Period
shall bear Deferred Interest. The Company must give the Trustee notice of its election to begin
such Extension Period at least one Business Day prior to the earlier of (i) the date interest on
the Debt Securities would have been payable except for the election to begin such Extension Period
or (ii) the date such interest is payable, but in any event not less than one Business Day prior to
such record date.




          The indebtedness evidenced by this Debt Security is, to the extent provided in the Indenture,
subordinate and junior in right of payment to the prior payment in full of all Senior Indebtedness,
and this Debt Security is issued subject to the provisions of the Indenture with respect thereto.
Each holder of this Debt Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take such action as may
be necessary or appropriate to acknowledge or effectuate the subordination so provided and (c)
appoints the Trustee his or her attorney-in-fact for any and all such purposes.
Each holder hereof, by his or her acceptance hereof, hereby waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each holder of Senior
Indebtedness, whether now outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.






Exhibit A-5









 







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




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




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






Exhibit A-6









 







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




	 	 	 	 	 	 	 

	 	 	Alliance Capital Partners, LP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Alliance Capital Partners, Inc.,	 	 
	 

	 	 	 	the sole general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 





Dated:
[                    ], [                    ]




          CERTIFICATE OF AUTHENTICATION



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




	 	 	 	 	 	 	 

	 	 	THE BANK OF NEW YORK, as the Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Authorized Officer
	 	 





Dated: [                    ],
[                    ]





Exhibit A-7









 








[FORM OF REVERSE OF SECURITY]




          This Debt Security is one of a duly authorized series of Debt Securities of the Company, all issued
or to be issued pursuant to an Indenture (the “Indenture”) dated as of July 16, 2001, duly executed
and delivered between the Company and The Bank of New York, as Trustee (the “Trustee”), to which
Indenture and all indentures supplemental thereto reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the holders of the Debt Securities (referred to herein as the “Debt Securities”) of
which this Debt Security is a part. The summary of the terms of this Debt Security contained herein
does not purport to be complete and is qualified by reference to the Indenture.




          Upon the occurrence and continuation of a Tax Event, an Investment Company Event or a Capital
Treatment Event, this Debt Security may become due and payable, in whole but not in part, at any
time, within 90 days following the occurrence of such Tax Event, Investment Company Event or
Capital Treatment Event (the “Special Redemption Date”), as the case may be, at the Special
Redemption Price. The Company shall also have the right to redeem this Debt Security at the option
of the Company, in whole or in part, on any January 25th or July 25th on or
after July 25, 2006 (a “Redemption Date”), at the Redemption Price.




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




          “Redemption Price” means the price set forth in the following table for any Redemption Date or
Special Redemption Date that occurs within the twelve-month period beginning in the relevant date
indicated below, expressed in percentage of the principal amount of the Debt Securities being
redeemed:




	 	 	 	 	 
	Year Beginning	 	 	Percentage	 
	July 25, 2006
	 	 	107.6875	%
	July 25, 2007
	 	 	106.1500	%
	July 25, 2008
	 	 	104.6125	%
	July 25, 2009
	 	 	103.0750	%
	July 25, 2010
	 	 	101.5375	%
	July 25, 2011 and after
	 	 	100.0000	%






Exhibit A-8









 






          plus accrued and unpaid interest on such Debentures to the Redemption Date or Special Redemption
Date, as the case may be.




          “Special Redemption Price” means (I) if the Special Redemption Date is before July 25, 2006, the
greater of (a) 100% of the principal amount of the Debt Securities being redeemed pursuant to
Section 10.02 or (b) as determined by a Quotation Agent, the sum of the present values of the
principal amount and the premium payable as part of the Redemption Price with respect to a
redemption as of July 25, 2006 together with the present value of scheduled payments of interest
over the Remaining Life of such Debt Securities, discounted to the Special Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate
plus 0.50%, plus, in the case of either (a) or (b), accrued and unpaid interest on such Debt
Securities to the Special Redemption Date and (2) if the Special Redemption Date is on or after
July 25, 2006, the Redemption Price for such Special Redemption Date.




          “Comparable Treasury Issue” means with respect to any Special Redemption Date the United States
Treasury security selected by the Quotation Agent as having a maturity comparable to the Remaining
Life that would be utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of debt securities of comparable maturity to the Remaining Life. If
no United States Treasury security has a maturity      which is within a period from three months
before to three months after July 25, 2006, the two most closely corresponding United States
Treasury securities shall be used as the Comparable Treasury Issue, and the Treasury Rate shall be
interpolated or extrapolated on a straight-line basis, rounding to the nearest month using such
securities.




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




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




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




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




          “Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and
any Special Redemption Date, the average, as determined by the Quotation Agent, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such Reference






Exhibit A-9









 







Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such Special
Redemption Date.




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




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




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




          The Indenture contains provisions permitting the Company and the Trustee, with the consent of the
holders of not less than a majority in aggregate principal amount of the Debt Securities at the
time outstanding affected thereby, as specified in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of the Debt Securities; provided, however, that no such
supplemental indenture shall, among other things, without the consent of the holders of each Debt
Security then outstanding and affected thereby (i) extend the fixed maturity of the Debt
Securities, or reduce the principal amount thereof or any redemption premium thereon, or reduce the
rate or extend the time of payment of interest thereon, or make the principal of, or interest or
premium on, the Debt Securities payable in any coin or currency other than that provided in the
Debt Securities, or impair or affect the right of any holder of Debt Securities to institute suit
for the payment thereof, or (ii) reduce the aforesaid percentage of Debt Securities, the holders of
which are required to consent to any such supplemental indenture. The Indenture also contains
provisions permitting the holders of a majority in aggregate principal amount of the






Exhibit A-10









 








Debt Securities at the time outstanding affected thereby as provided in the Indenture, on behalf of
all of the holders of the Debt Securities, to waive any past default in the performance of any of
the covenants contained in the Indenture, or established pursuant to the Indenture, and its
consequences, except a default in the payment of the principal of or premium, if any, or interest
on any of the Debt Securities. Any such consent or waiver by the registered holder of this Debt
Security (unless revoked as provided in the Indenture) shall be conclusive and binding upon such
holder and upon all future holders and owners of this Debt Security and of any Debt Security issued
in exchange herefor or in place hereof (whether by registration of transfer or otherwise),
irrespective of whether or not any notation of such consent or waiver is made upon this Debt
Security.




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




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




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




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






Exhibit A-11









 








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




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



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





Exhibit A-12