Exhibit 4.8


 


SCBT FINANCIAL CORPORATION


 


Issuer


 


to


 


 






 


 


[WILMINGTON TRUST COMPANY]


Trustee


 


 






 


 


SUBORDINATED INDENTURE


 


 


Dated as of
                 ,
2009


 


 


Subordinated Debt Securities


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE ONE

  	
  DEFINITIONS AND OTHER PROVISIONS OF GENERAL
  APPLICATION

  	
   

  	
  2

  
	
  Section 101.

  	
  Definitions

  	
   

  	
  2

  
	
  Section 102.

  	
  Compliance Certificates and Opinions

  	
   

  	
  8

  
	
  Section 103.

  	
  Form of Documents Delivered to Trustee

  	
   

  	
  9

  
	
  Section 104.

  	
  Acts of Holders

  	
   

  	
  9

  
	
  Section 105.

  	
  Notices, Etc., to Trustee and Company

  	
   

  	
  11

  
	
  Section 106.

  	
  Notice to Holders

  	
   

  	
  11

  
	
  Section 107.

  	
  Language of Notices

  	
   

  	
  12

  
	
  Section 108.

  	
  Conflict With Trust Indenture Act

  	
   

  	
  12

  
	
  Section 109.

  	
  Effect of Headings and Table of Contents

  	
   

  	
  12

  
	
  Section 110.

  	
  Successors and Assigns

  	
   

  	
  12

  
	
  Section 111.

  	
  Separability Clause

  	
   

  	
  12

  
	
  Section 112.

  	
  Benefits Of Indenture

  	
   

  	
  12

  
	
  Section 113.

  	
  Governing Law

  	
   

  	
  12

  
	
  Section 114.

  	
  Legal Holidays

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE TWO

  	
  SECURITIES FORMS

  	
   

  	
  13

  
	
  Section 201.

  	
  Forms Generally

  	
   

  	
  13

  
	
  Section 202.

  	
  Form of Trustee’s Certificate of
  Authentication

  	
   

  	
  13

  
	
  Section 203.

  	
  Securities in Global Form

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE THREE

  	
  THE SECURITIES

  	
   

  	
  14

  
	
  Section 301.

  	
  Amount Unlimited, Issuable in Series

  	
   

  	
  14

  
	
  Section 302.

  	
  Denominations

  	
   

  	
  17

  
	
  Section 303.

  	
  Securities in Foreign Countries

  	
   

  	
  17

  
	
  Section 304.

  	
  Execution, Authentication, Delivery and
  Dating

  	
   

  	
  17

  
	
  Section 305.

  	
  Temporary Securities

  	
   

  	
  19

  
	
  Section 306.

  	
  Registration, Transfer and Exchange

  	
   

  	
  19

  
	
  Section 307.

  	
  Mutilated, Destroyed, Lost and Stolen
  Securities

  	
   

  	
  22

  
	
  Section 308.

  	
  Payment of Interest; Interest Rights Preserved

  	
   

  	
  22

  
	
  Section 309.

  	
  Persons Deemed Owners

  	
   

  	
  23

  
	
  Section 310.

  	
  Cancellation

  	
   

  	
  24

  
	
  Section 311.

  	
  Computation of Interest

  	
   

  	
  24

  
	
  Section 312.

  	
  Cusip Numbers

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE FOUR

  	
  SATISFACTION AND DISCHARGE

  	
   

  	
  24

  
	
  Section 401.

  	
  Satisfaction and Discharge of Indenture

  	
   

  	
  24

  
	
  Section 402.

  	
  Application of Trust Money

  	
   

  	
  26

  
	
  Section 403.

  	
  Satisfaction, Discharge and Defeasance of
  Securities of Any Series

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE FIVE

  	
  REMEDIES

  	
   

  	
  27

  
	
  Section 501.

  	
  Events of Default

  	
   

  	
  27

  
	
  Section 502.

  	
  Acceleration of Maturity; Rescission and
  Annulment

  	
   

  	
  28

  
	
  Section 503.

  	
  Collection of Indebtedness and Suits For
  Enforcement By Trustee

  	
   

  	
  29

  
	
  Section 504.

  	
  Trustee May File Proofs of Claim

  	
   

  	
  29

  
	
  Section 505.

  	
  Trustee May Enforce Claims Without
  Possession of Securities or Coupons

  	
   

  	
  30

  
	
  Section 506.

  	
  Application of Money Collected

  	
   

  	
  30

  
	
  Section 507.

  	
  Limitations on Suits

  	
   

  	
  31

  
	
  Section 508.

  	
  Unconditional Right of Holders to Receive
  Principal, Premium, Interest and Additional Amounts

  	
   

  	
  31

  



 


ii

















 


	
  Section 509.

  	
  Restoration of Rights and Remedies

  	
   

  	
  31

  
	
  Section 510.

  	
  Rights and Remedies Cumulative

  	
   

  	
  31

  
	
  Section 511.

  	
  Delay or Omission Not Waiver

  	
   

  	
  32

  
	
  Section 512.

  	
  Control By Holders

  	
   

  	
  32

  
	
  Section 513.

  	
  Waiver of Past Defaults

  	
   

  	
  32

  
	
  Section 514.

  	
  Waiver of Stay or Extension Laws

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE SIX

  	
  THE TRUSTEE

  	
   

  	
  33

  
	
  Section 601.

  	
  Notice of Defaults

  	
   

  	
  33

  
	
  Section 602.

  	
  Certain Rights of Trustee

  	
   

  	
  33

  
	
  Section 603.

  	
  Not Responsible for Recitals or Issuance of
  Securities

  	
   

  	
  34

  
	
  Section 604.

  	
  May Hold Securities

  	
   

  	
  34

  
	
  Section 605.

  	
  Money Held In Trust

  	
   

  	
  34

  
	
  Section 606.

  	
  Compensation and Reimbursement

  	
   

  	
  34

  
	
  Section 607.

  	
  Corporate Trustee required; Eligibility;
  Conflicting Interests

  	
   

  	
  35

  
	
  Section 608.

  	
  Resignation and Removal; Appointment of
  Successor

  	
   

  	
  35

  
	
  Section 609.

  	
  Acceptance of Appointment By Successor

  	
   

  	
  37

  
	
  Section 610.

  	
  Merger, Conversion, Consolidation or
  Succession to Business

  	
   

  	
  37

  
	
  Section 611.

  	
  Appointment of Authenticating Agent

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE SEVEN

  	
  HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND
  COMPANY

  	
   

  	
  39

  
	
  Section 701.

  	
  Company to Furnish Trustee Names and
  Addresses of Holders

  	
   

  	
  39

  
	
  Section 702.

  	
  Preservation of Information; Communications
  to Holders

  	
   

  	
  39

  
	
  Section 703.

  	
  Reports By Trustee

  	
   

  	
  40

  
	
  Section 704.

  	
  Reports By Company

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE EIGHT

  	
  CONSOLIDATION, MERGER AND SALES

  	
   

  	
  41

  
	
  Section 801.

  	
  Company May Consolidate Etc., Only on
  Certain Terms

  	
   

  	
  41

  
	
  Section 802.

  	
  Successor Corporation Substituted For
  Company

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLEL NINE

  	
  SUPPLEMENTAL INDENTURES

  	
   

  	
  42

  
	
  Section 901.

  	
  Supplemental Indentures Without Consent of
  Holders

  	
   

  	
  42

  
	
  Section 902.

  	
  Supplemental Indentures With Consent of
  Holders

  	
   

  	
  43

  
	
  Section 903.

  	
  Execution of Supplemental Indentures

  	
   

  	
  44

  
	
  Section 904.

  	
  Effect of Supplemental Indentures

  	
   

  	
  44

  
	
  Section 905.

  	
  Conformity With Trust Indenture Act

  	
   

  	
  44

  
	
  Section 906.

  	
  Reference in Securities to Supplemental
  Indentures

  	
   

  	
  44

  
	
  Section 907.

  	
  Subordination Unimpaired

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE TEN

  	
  COVENANTS

  	
   

  	
  45

  
	
  Section 1001.

  	
  Payment of Principal, Premium, If Any, and
  Interest

  	
   

  	
  45

  
	
  Section 1002.

  	
  Maintenance of Office or Agency

  	
   

  	
  45

  
	
  Section 1003.

  	
  Money For Securities Payments to Be Held in
  Trust

  	
   

  	
  46

  
	
  Section 1004.

  	
  Additional Amounts

  	
   

  	
  47

  
	
  Section 1005.

  	
  Statement As To Compliance; Notice of
  Certain Defaults

  	
   

  	
  47

  
	
  Section 1006.

  	
  Payment of Taxes and Other Claims

  	
   

  	
  48

  
	
  Section 1007.

  	
  Corporate Existence

  	
   

  	
  48

  
	
  Section 1008.

  	
  Waiver of Certain Covenants

  	
   

  	
  48

  
	
  Section 1009.

  	
  Calculation of Original Issue Discount

  	
   

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE ELEVEN

  	
  REDEMPTION OF SECURITIES

  	
   

  	
  48

  
	
  Section 1101.

  	
  Applicability of Article

  	
   

  	
  48

  
	
  Section 1102.

  	
  Election To Redeem; Notice To Trustee

  	
   

  	
  48

  
	
  Section 1103.

  	
  Selection By Trustee of Securities To Be
  Redeemed

  	
   

  	
  49

  



 


iii

















 


	
  Section 1104.

  	
  Notice of Redemption

  	
   

  	
  49

  
	
  Section 1105.

  	
  Deposit of Redemption Price

  	
   

  	
  50

  
	
  Section 1106.

  	
  Securities Payable on Redemption Date

  	
   

  	
  50

  
	
  Section 1107.

  	
  Securities Redeemed in Part

  	
   

  	
  51

  
	
  Section 1108.

  	
  Conversion Arrangements on Call for
  Redemption

  	
   

  	
  51

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE TWELVE

  	
  SINKING FUNDS

  	
   

  	
  52

  
	
  Section 1201.

  	
  Applicability of Article

  	
   

  	
  52

  
	
  Section 1202.

  	
  Satisfaction of Sinking Fund Payments With
  Securities

  	
   

  	
  52

  
	
  Section 1203.

  	
  Redemption of Securities For Sinking Fund

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE THIRTEEN

  	
  REPAYMENT AT THE OPTION OF HOLDERS

  	
   

  	
  53

  
	
  Section 1301.

  	
  Applicability of Article

  	
   

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE FOURTEEN

  	
  MEETINGS OF HOLDERS

  	
   

  	
  53

  
	
  Section 1401.

  	
  Purposes for Which Meetings May Be
  Called

  	
   

  	
  53

  
	
  Section 1402.

  	
  Call, Notice and Place of Meetings

  	
   

  	
  53

  
	
  Section 1403.

  	
  Persons Entitled To Vote At Meetings

  	
   

  	
  54

  
	
  Section 1404.

  	
  Quorum; Action

  	
   

  	
  54

  
	
  Section 1405.

  	
  Determination of Voting Rights; Conduct and
  Adjournment of Meetings

  	
   

  	
  54

  
	
  Section 1406.

  	
  Counting Votes and Recording Action of
  Meetings

  	
   

  	
  55

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE FIFTEEN

  	
  SUBORDINATION

  	
   

  	
  55

  
	
  Section 1501.

  	
  Securities Subordinated To Senior
  Indebtedness

  	
   

  	
  55

  
	
  Section 1502.

  	
  Subrogation

  	
   

  	
  57

  
	
  Section 1503.

  	
  Obligation Of Company Unconditional

  	
   

  	
  57

  
	
  Section 1504.

  	
  Payment On Securities Permitted

  	
   

  	
  58

  
	
  Section 1505.

  	
  Effectuation Of Subordination by Trustee

  	
   

  	
  58

  
	
  Section 1506.

  	
  Knowledge Of Trustee

  	
   

  	
  58

  
	
  Section 1507.

  	
  Trustee’s Relation To Senior Indebtedness

  	
   

  	
  58

  
	
  Section 1508.

  	
  Rights Of Holders Of Senior Indebtedness
  Not Impaired

  	
   

  	
  58

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE SIXTEEN

  	
  CONVERSION

  	
   

  	
  59

  
	
  Section 1601.

  	
  Conversion Privilege

  	
   

  	
  59

  
	
  Section 1602.

  	
  Manner of Exercise of Convertible Privilege

  	
   

  	
  59

  
	
  Section 1603.

  	
  Cash Adjustment Upon Conversion

  	
   

  	
  60

  
	
  Section 1604.

  	
  Conversion Price

  	
   

  	
  60

  
	
  Section 1605.

  	
  Adjustment of Conversion Price

  	
   

  	
  60

  
	
  Section 1606.

  	
  Effect of Reclassifications,
  Consolidations, Merges or Sales on Conversions

  	
   

  	
  62

  
	
  Section 1607.

  	
  Taxes on Conversions

  	
   

  	
  63

  
	
  Section 1608.

  	
  Company to Reserve Common Stock

  	
   

  	
  63

  
	
  Section 1609.

  	
  Disclaimer by Trustee of Responsibility for
  Certain Matters

  	
   

  	
  63

  
	
  Section 1610.

  	
  Company to Give Notice of Certain Events

  	
   

  	
  63

  



 


iv

















 


SCBT FINANCIAL CORPORATION


 


Reconciliation
and tie between Trust Indenture Act of 1939, as amended, and Subordinated
Indenture, dated as of       , 2009.


 


	
  Trust Indenture Act Section

  	
   

  	
  Indenture Section

  
	
   

  	
   

  	
   

  
	
  Section 310(a) (1)

  	
   

  	
  607

  
	
  (a) (2)

  	
   

  	
  607

  
	
  (a) (5)

  	
   

  	
  607

  
	
  (b)

  	
   

  	
  607

  
	
  Section 311(a)

  	
   

  	
  604

  
	
  (b)

  	
   

  	
  604

  
	
  (b) (2)

  	
   

  	
  108

  
	
  Section 312(a)

  	
   

  	
  701,
  702(a)

  
	
  (b)

  	
   

  	
  702(a)

  
	
  (c)

  	
   

  	
  702(b)

  
	
  Section 313(a)

  	
   

  	
  703(a),
  703(b)

  
	
  (b) (2)

  	
   

  	
  108

  
	
  (c)

  	
   

  	
  703(c)

  
	
  (d)

  	
   

  	
  703(c)

  
	
  Section 314(a)

  	
   

  	
  704

  
	
  (c) (1)

  	
   

  	
  102

  
	
  (c) (2)

  	
   

  	
  102

  
	
  (c) (3)

  	
   

  	
  108

  
	
  (e)

  	
   

  	
  102

  
	
  Section 315(a)

  	
   

  	
  108

  
	
  (b)

  	
   

  	
  601

  
	
  (c)

  	
   

  	
  108

  
	
  (d)

  	
   

  	
  108

  
	
  (d) (1)

  	
   

  	
  108

  
	
  (d) (2)

  	
   

  	
  108

  
	
  (d) (3)

  	
   

  	
  108

  
	
  (e)

  	
   

  	
  108

  
	
  Section 316(a)

  	
   

  	
  104

  
	
  (a) (1) (A)

  	
   

  	
  512

  
	
  (a) (1) (B)

  	
   

  	
  513

  
	
  (b)

  	
   

  	
  508

  
	
  (c)

  	
   

  	
  104

  
	
  Section 317(a) (1)

  	
   

  	
  505

  
	
  (a) (2)

  	
   

  	
  504

  
	
  (b)

  	
   

  	
  1003

  
	
  Section 318(a)

  	
   

  	
  108

  



 


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


 


1

















 


SUBORDINATED
INDENTURE, dated as of       , 2009 (the “Indenture”),
is made by and between SCBT FINANCIAL CORPORATION, a corporation duly organized
and existing under the laws of the State of South Carolina (the “Company”),
having its principal office at 520 Gervais Street, Columbia, South Carolina
29201 and [WILMINGTON TRUST COMPANY, a Delaware banking corporation], having
its principal office at [1100 N. Market Street, Wilmington, DE 19890], not in
its individual capacity but solely as Trustee (the “Trustee”).


 


RECITALS


 


The
Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of its unsecured subordinated debentures,
notes or other evidences of indebtedness (the “Securities”), unlimited as to
principal amount, to bear such rates of interest, to mature at such time or
times, to be issued in one or more series and to have such other provisions as
shall be fixed as hereinafter provided.


 


The
Company has duly authorized the execution and delivery of this Indenture and
all things necessary to make this Indenture a valid agreement of the Company,
in accordance with its terms, have been done.


 


This
Indenture is subject to the provisions of the Trust Indenture Act of 1939, as
amended, that are required to be part of this Indenture and shall, to the
extent applicable, be governed by such provisions.


 


NOW, THEREFORE, THIS INDENTURE WITNESSETH:


 


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


 


ARTICLE ONE


 


DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION


 


Section 101. Definitions


 


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


 


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


 


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


 


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


 


(4)                                 the words “herein”, “hereof”, “hereto” 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;


 


(5)                                 the word “or” is not exclusive;


 


(6)                                 all words in the singular include the plural
and all words in the plural include the singular; and


 


(7)                                 the word “including” means “including without
limitations.”


 


2

















 


Certain
terms used principally in certain Articles hereof are defined in those
Articles.


 


“Act”,
when used with respect to any Holders, has the meaning specified in Section 104.


 


“Additional Amounts” means any additional amounts which are
required hereby or by any Security, under circumstances specified herein or
therein, to be paid by the Company in respect of certain taxes imposed on
Holders specified therein and which are owing to such Holders.


 


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


 


“Authenticating Agent” means any Person authorized by the
Trustee pursuant to Section 611 to act on behalf of the Trustee to
authenticate Securities of one or more series.


 


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


 


“Bank” means (i) any institution organized under the
laws of the United States, any State of the United States, the District of
Columbia, any territory of the United States, Puerto Rico, Guam, American Samoa
or the Virgin Islands which (a) accepts deposits that the depositor has a
legal right to withdraw on demand, and (b) engages in the business of
making commercial loans and (ii) any trust company organized under any of
the foregoing laws.


 


“Bearer Security” means any Security in the form established
pursuant to Section 201 which is payable to bearer.


 


“Board Of Directors” means the board of directors of the
Company or any committee of that board duly authorized to act for the Company
hereunder.


 


“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, or a duly authorized committee thereof, and
to be in full force and effect on the date of such certification, and delivered
to the Trustee.


 


“Business Day” except as may otherwise be provided herein or
in any Security, means any day, other than a Saturday or a Sunday, that is
neither a Legal Holiday nor a day on which banking institutions are authorized
or required by law, regulation or executive order to close.


 


“Called Securities” means any Convertible Security that is
called for redemption by the Company.


 


“Capital Stock” means, as to shares of a particular
corporation, outstanding shares of stock of any class whether now or hereafter
authorized, irrespective of whether such class shall be limited to a fixed sum
or percentage in respect of the rights of the holders thereof to participate in
dividends and in the distribution of assets upon the voluntary liquidation,
dissolution or winding up of such corporation.


 


“Commission” means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934 or, if at any time after the execution of this Indenture such


 


3

















 


Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.


 


“Common Stock” means all shares now or hereafter authorized
of the class of common stock of the Company presently authorized and stock of
any other class into which such shares may hereafter have been changed.


 


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


 


“Company Request” and “Company Order” mean a written request
or order, as the case may be, signed in the name of the Company by the Chairman
of the Board of Directors, a Vice Chairman, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.


 


“Subsidiary Bank” means any Subsidiary which is a Bank.


 


“Convertible Security” or “Convertible Securities” means any
Security or Securities, as the case may be, which are by their terms
convertible into Common Stock.


 


“Conversion Price” means the price per share of Common Stock
from time to time in effect at which any Convertible Security may be converted
into Common Stock as determined by or pursuant to the terms of this Indenture.


 


“Corporate Trust Office” means, the principal office of the
Trustee, at which at any particular time its corporate trust business shall be
administered, which office at the date of original execution of this Indenture
is located at [Rodney Square North, 1100 N. Market Street, Wilmington, DE
19890, Attention: Corporate Trust Administration].


 


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


 


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


 


“Date of Conversion” with respect to any Convertible Security
or portion thereof to be converted, means the date on which such Convertible
Security shall be surrendered for conversion and notice given in accordance
with the provisions of Article Sixteen.


 


“Defaulted Interest” has the meaning specified in Section 308.


 


“Dollars” or “$” means a dollar or other equivalent unit in
the currency of the United States, except as may otherwise be provided herein
or in any Security.


 


“Event Of Default” has the meaning specified in Section 501.


 


“Government Obligations”, with respect to any Securities
unless otherwise specified herein or therein, means (i) direct obligations
of the United States of America or the government or governments which issued
the currency, currency unit or composite currency in which any Securities are
payable, for the payment of which its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government or
governments which issued the currency, currency unit or composite currency in
which such Securities are payable, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America or such other government or governments, which, in either case, are not
callable or redeemable at the option of the issuer or issuers thereof, and
shall also include a depository receipt issued by a bank or trust company as
custodian with


 


4

















 


respect to any such Government Obligation or
a specific payment of interest on or principal of any such Government
Obligation held by such custodian for the account of the holder of a depository
receipt, PROVIDED that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or principal of
the Government Obligation evidenced by such depository receipt.


 


“Holder”, in the case of any Registered Security, means the
Person in whose name such Security is registered in the Security Register and,
in the case of any Bearer Security, means the bearer thereof and, in the case
of any Coupon, means the bearer thereof.


 


“Indenture” means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, and with respect to any Security shall include the terms of
such Securities established as contemplated by Section 301; PROVIDED,
HOWEVER, that, if at any time more than one Person is acting as Trustee under
this instrument, “INDENTURE” shall mean, with respect to any one or more series
of Securities for which such Person is Trustee, this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of the or those particular series
of Securities for which such Person is Trustee established as contemplated by Section 301,
exclusive, however, of any provisions or terms which relate solely to other
series of Securities for which such Person is Trustee, regardless of when such
terms or provisions were adopted, and exclusive of any provisions or terms
adopted by means of one or more indentures supplemental hereto executed and
delivered after such Person had become such Trustee but to which such Person,
as such Trustee, was not a party.


 


“Independent Public Accountants” means accountants or a firm
of accountants that are independent public accountants with respect to the
Company within the meaning of the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder who may be the independent
public accountants regularly retained by the Company or who may be other
independent public accountants. Such accountants or firm shall be entitled to
rely upon any Opinion of Counsel as to the interpretation of any legal matters
relating to the Indenture or certificates required to be provided hereunder.


 


“Interest”, with respect to any Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity and, with respect to any Security which provides for the
payment of Additional Amounts pursuant to Section 1004, includes such
Additional Amounts.


 


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


 


“Legal Holiday”, except as otherwise may be provided herein
or in any Securities, with respect to any Place of Payment or other location,
means a Saturday, a Sunday or a day on which banking institutions or trust
companies in such Place of Payment or other location are not authorized or
obligated to be open.


 


“Maturity”, with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.


 


“Officers’ Certificate” means a certificate signed by the
Chairman of the Board, a Vice Chairman, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.


 


“Opinion Of Counsel,” except as otherwise provided herein or
in any Security, means a written Opinion of Counsel, who may be an employee of
or counsel for the Company or other counsel.


 


5














 


“Original Issue Discount Security” means
a Security issued pursuant to this Indenture which provides for declaration of
an amount less than the principal thereof to be due and payable upon
acceleration pursuant to Section 502.


 


“Outstanding”, with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:


 


(i)            Securities theretofore cancelled by
the Trustee or the Security Registrar or delivered to the Trustee or the Security
Registrar for cancellation;


 


(ii)           Securities, or portions thereof for
whose payment or redemption or repayment at the option of the Holder money in
the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities and any Coupons appertaining thereto, PROVIDED that,
if such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;


 


(iii)          Securities, except to the extent
provided in Section 403, with respect to which the Company has effected
defeasance and/or covenant defeasance pursuant to Section 403 hereof; and


 


(iv)          Securities which have been paid
pursuant to Section 307 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are held
by a bona fide purchaser in whose hands such Securities are valid obligations
of the Company;


 


provided,
however, that in
determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or are present at a meeting of
Holders of Securities for quorum purposes and for purposes of making the
calculations required by Section 313 of the Trust Indenture Act, (i) the
principal amount of an Original Issue Discount Security that may be counted in
making such determination or calculation and that shall be deemed to be
outstanding for such purposes shall be equal to the amount of the principal
thereof that pursuant to the terms of such Original Issue Discount Security
would be declared (or shall have been declared to be) due and payable upon a
declaration of acceleration pursuant to Section 502 at the time of such
determination or calculation, and (ii) the principal amount of any
Security denominated other than in Dollars that may be counted in making such
determination or calculation and that shall be deemed outstanding for such
purpose shall be equal to the Dollar equivalent, determined by the Company as
of the date such Security is originally issued by the Company, of the principal
amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent
as of such date of original issuance of the amount determined as provided in
clause (i) above) of such Security, and (iii) Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor, shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making any such calculation or relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee
the pledgee’s right so to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor.


 


“Paying Agent” means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Security or
Coupon on behalf of the Company.


 


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


 


6

















 


“Place Of Payment”, with respect to any Security, means the
place or places where the principal of (and premium, if any) and interest on
the Securities of that series are payable as specified in or pursuant to Section 301(9) or
Section 1002.


 


“Predecessor Security” of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 307 in
exchange for or in lieu of a lost, destroyed, mutilated or stolen Security or
any Security to which a mutilated, destroyed, lost or stolen Coupon appertains
shall be deemed to evidence the same debt as the lost, destroyed, mutilated or
stolen Security or the Security to which a mutilated, destroyed, lost or stolen
Coupon appertains.


 


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


 


“Redemption Price”, with respect to any Security or portion
thereof to be redeemed, means the price at which it is to be redeemed as
determined by or pursuant to the provisions of this Indenture.


 


“Registered Security” means any Security established pursuant
to Section 201 which is registered and the transfer or exchange thereof is
registrable in the Security Register.


 


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


 


“Responsible
Officer” when used with respect to the Trustee means any officer
within the corporate trust department of the Trustee, including the vice
president, any assistant vice president, assistant treasurer, or any other
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person’s
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.


 


“Security” or “Securities” means any Security or Securities,
as the case may be, authenticated and delivered under this Indenture; PROVIDED,
HOWEVER, that if at any time there is more than one Person acting as Trustee
under this Indenture, “Securities” with respect to the Indenture as to which
such Person is Trustee shall have the meaning stated in the first recital of
this Indenture and shall more particularly mean Securities authenticated and
delivered under this Indenture, exclusive, however, of Securities of any series
as to which such Person is not Trustee.


 


“Security Register” and “Security Registrar” have the
respective meanings specified in Section 306.


 


“Senior Indebtedness” means: (i) the principal and any
premium or interest for money borrowed or purchased by the Company; (ii) the
principal and any premium or interest for money borrowed or purchased by
another Person and guaranteed by the Company; (iii) any deferred
obligation for the payment of the purchase price of property or assets
evidenced by a note or similar agreement; (iv) an obligation arising from
direct credit substitutes; and (v) any obligation associated with
derivative products such as interest and foreign exchange rate contracts,
commodity contracts and similar arrangements; in each case, whether outstanding
on the date this Subordinated Indenture becomes effective, or created, assumed
or incurred after that date. Senior Indebtedness excludes any indebtedness
that: (a) expressly states that it is junior to, or ranks equally in right
of payment with, the Securities; or (b) is identified as junior to, or
equal in right of payment with, the Securities in any Board Resolution or in
any supplemental indenture.


 


“Special Record Date” for the payment of any Defaulted
Interest on any registered Security means a date fixed by the Trustee pursuant
to Section 308.


 


7

















 


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


 


“Subsidiary” means any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or controls
directly or indirectly more than 50% of the shares of Voting Stock.


 


“Trust Indenture Act” means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed, except as
provided in Section 905.


 


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


 


“United States”, except as otherwise provided herein or in
any Security, means the United States of America (including the States and the
District of Columbia), its territories and possessions and other areas subject
to its jurisdiction.


 


“United States Alien”, except as otherwise provided herein or
in any Security, means any Person who, for United States Federal income tax
purposes, is a foreign corporation, a non-resident alien individual, a
non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or
a non-resident alien fiduciary of a foreign estate or trust.


 


“U.S. Depository” or “Depository” means, with respect to any
Security issuable or issued in the form of one or more global Securities, the
Person designated as U.S. Depository by the Company pursuant to Section 301,
which must be a clearing agency registered under the Securities Exchange Act of
1934, as amended, and, if so provided pursuant to Section 301 with respect
to any Security, any successor to such Person. If at any time there is more
than one such Person, “U.S. Depository” or “Depository” shall mean, with
respect to any Securities, the qualifying entity which has been appointed with
respect to such Securities.


 


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


 


“Voting Stock” means stock of a corporation of the class or
classes having general voting power under ordinary circumstances to elect at
least a majority of the board of directors, managers or trustees of such
corporation provided that, for the purposes hereof, stock which carries only
the right to vote conditionally on the happening of an event shall not be
considered voting stock whether or not such event shall have happened.


 


Section 102. Compliance Certificates and Opinions.


 


Upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
an Officers’ Certificate stating that all conditions precedent, 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, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents or any of them is specifically required by any provision of
this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.


 


8

















 


Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture and in any applicable Security (except Section 1005)
shall include:


 


(1)                                  a statement that each individual signing such
certificate or opinion has read such condition or covenant and the definitions
herein and in any applicable Security relating thereto;


 


(2)                                  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;


 


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


 


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


 


Section 103. Form of Documents Delivered to Trustee.


 


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


 


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


 


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


 


Section 104. Acts of Holders.


 


(a)           Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing. If, but only if, Securities of a series are
issuable as Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fourteen, or a
combination of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the “Act” of the Holders signing such
instrument or instruments and so voting at any such meeting. Proof of execution
of any such instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be


 


9

















 


sufficient for any purpose of this Indenture
and (subject to Section 315 of the Trust Indenture Act) conclusive in
favor of the Trustee and the Company and any agent of the Trustee or the
Company, if made in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the manner provided in Section 1406.


 


Without
limiting the generality of this Section 104, unless otherwise established
in or pursuant to a Board Resolution or set forth or determined in an Officers’
Certificate, or established in one or more indentures supplemental hereto,
pursuant to Section 301, a Holder, including a U.S. Depository that is a
Holder of a global Security, may make, give or take, by a proxy, or proxies,
duly appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in this Indenture to be made,
given or taken by Holders, and a U.S. Depository that is a Holder of a global
Security may provide its proxy or proxies to the beneficial owners of interests
in any such global Security through such U.S. Depository’s standing
instructions and customary practices.


 


The
Trustee shall fix a record date, which shall be not more than 30 days prior to
the first solicitation of such Holders, for the purpose of determining the
Persons who are beneficial owners of interest in any permanent global Security
held by a U.S. Depository entitled under the procedures of such U.S. Depository
to make, give or take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided in this Indenture to be made, given or taken by Holders. If
such a record date is fixed, the Holders on such record date or their duly
appointed proxy or proxies, and only such Persons, shall be entitled to make,
give or take such request, demand, authorization, direction, notice, consent,
waiver or other action, whether or not such Holders remain Holders after such
record date. No such request, demand, authorization, direction, notice,
consent, waiver or other action shall be valid or effective if made, given or
taken more than 90 days after such record date.


 


(b)           The fact and date of the execution by
any Person of any such instrument or writing may be proved in any reasonable
manner which the Trustee deems sufficient and in accordance with such
reasonable rules as the Trustee may determine; and the Trustee may in any
instance require further proof with respect to any of the matters referred to
in this Section.


 


(c)           The ownership, principal amount and
serial numbers of Registered Securities held by any Person, and the date of the
commencement and the date of termination of holding the same, shall be proved
by the Security Register.


 


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


 


(e)           If the Company shall solicit from the
Holders of any Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may at its option,
by Board Resolutions, fix in advance a record date, which shall be not more
than 30 days prior to the first solicitation of such Holders, for the
determination of Holders of Registered Securities entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so.


 


10

















 


If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of Registered
Securities of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided no such authorization, agreement or
consent of the Holders of Registered Securities 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.


 


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


 


Section 105. Notices, Etc., to Trustee and Company.


 


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


 


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


 


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


 


Section 106. Notice to Holders; Waiver.


 


Except
as otherwise expressly provided herein or in any Security, where this Indenture
provides for notice to Holders of any event,


 


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


 


(2)           such notice shall be sufficiently
given to Holders of Bearer Securities, if any, if published in an Authorized
Newspaper and, if such Securities are then listed on any stock exchange outside
the United States, in an Authorized Newspaper in such city as the Company shall
advise the Trustee that such stock exchange so requires, on a Business Day at
least twice, the first such publication to be not earlier than the earliest
date and not later than the latest date prescribed for the giving of such
notice.


 


In
any case where notice to Holders of Registered Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given or provided. In the case
by reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.


 


11

















 


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


 


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


 


Section 107. Language of Notices.


 


Any
request, demand, authorization, direction, notice, consent, election or waiver
required or permitted under this Indenture shall be in the English language,
except that, if the Company so elects, any published notice may be in an
official language of the country of publication.


 


Section 108. Conflict With Trust Indenture Act.


 


If
any provision hereof limits, qualifies or conflicts with the duties imposed
pursuant to Section 318(c) of the Trust Indenture Act, such imposed
duties shall control.


 


Section 109. Effect of Headings and Table of Contents.


 


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


 


Section 110. Successors and Assigns.


 


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


 


Section 111. Separability Clause.


 


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


 


Section 112. Benefits Of Indenture.


 


Nothing
in this Indenture, any Security or any Coupon, express or implied, shall give
to any Person, other than the parties hereto, any Security Registrar, any
Paying Agent and their successors hereunder and the Holders of Securities or
Coupon, any benefit or any legal or equitable right, remedy or claim under this
Indenture.


 


Section 113. Governing Law.


 


This
Indenture, the Securities and the Coupons shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
or instruments entered into and, in each case, performed in said state.


 


12

















 


Section 114. Legal Holidays.


 


In
any case where any Interest Payment Date, Redemption Date or Stated Maturity of
any Security, or the last day on which a Holder has the right to convert these
Securities, is not a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture, any Security or Coupon
other than a provision in any Security or any Coupon that specifically states
that such provision shall apply in lieu of this Section) payment of interest or
any Additional Amounts or principal (and premium, if any) or conversion of the
Securities need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity, or the last such day of conversion, and no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.


 


ARTICLE TWO


 


SECURITIES FORMS


 


Section 201. Forms Generally.


 


Each
Registered Security, Bearer Security, Coupon and temporary global Security
issued pursuant to this Indenture shall be in the form established by or
pursuant to a Board Resolution or in one or more indentures supplemental
hereto, shall have appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture or any indenture
supplemental hereto and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Security,
as evidenced by their execution of such Security.


 


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


 


Section 202. Form of Trustee’s Certificate of Authentication.


 


Subject
to Section 611, the Trustee’s certificate of authentication shall be in
substantially the following form:


 


This
certificate represents Securities of the series designated therein referred to
in the within-mentioned Indenture.


 


	
  Dated:

  	
  [WILMINGTON
  TRUST COMPANY],

  
	
   

  	
  not
  in its individual capacity but solely as Trustee 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


 


Section 203. Securities in Global Form.


 


If
Securities of a series are issuable in global form, any such Security may
provide that it shall represent the aggregate amount of Outstanding Securities
of such series from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be increased or reduced to reflect exchanges. Any endorsement of any
Security in global form to reflect the amount, or any increase or decrease in
the amount, or changes in the rights of Holders, of Outstanding Securities


 


13

















 


represented thereby shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Company Order to be delivered pursuant to Section 304 or 305 with respect
thereto. Subject to the provisions of Section 304 and, if applicable, Section 305,
the Trustee shall deliver and redeliver any Security in permanent global form in
the manner and upon instructions given by the Person or Persons specified
therein or in the applicable Company Order. If a Company Order pursuant to Section 304
or 305 has been, or simultaneously is, delivered, any instructions by the
Company with respect to a Security in global form shall be in writing but need
not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.


 


The
provisions of the immediately preceding sentence shall apply to any Security
represented by a Security in global form if such Security was never issued and
sold by the Company and the Company delivers to the Trustee the Security in
global form together with written instructions (which need not comply with Section 102
and need not be accompanied by an Opinion of Counsel) with regard to the
reduction in the principal amount of Securities represented thereby. 


 


Notwithstanding
the provisions of Section 308, unless otherwise specified as contemplated
by Section 301, payment of principal of and any premium and interest on
any Security in permanent global form shall be made to the Person or Persons
specified therein.


 


Notwithstanding
the provisions of Section 309, and except as provided in the preceding
paragraph, the Company, the Trustee and any agent of the Company and the
Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent global Security (i) in the case of a
permanent global Security in registered form, the Holder of such permanent
global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, the Person or Persons specified pursuant to Section 301.


 


ARTICLE THREE


 


THE SECURITIES


 


Section 301. Amount Unlimited; Issuable in Series.


 


The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities shall be
subordinated in right of payment to Senior Indebtedness as provided in Article Fifteen.


 


The
Securities may be issued in one or more series. There shall be established in
or pursuant to one or more Board Resolutions, and set forth in an Officers’
Certificate, or established in one or more indentures supplemental hereto,


 


(1)                                  the title of the Securities and the series in
which such Securities shall be included;


 


(2)                                  any limit upon the aggregate principal amount
of the Securities of such title or the Securities of such series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to Section 305,
306, 307, 906, 1107 or 1502 or the terms of such Securities);


 


(3)                                  whether Securities of the series are to be
issuable as Registered Securities, Bearer Securities or both and, if the
Securities are to be issuable exclusively or alternatively as Bearer
Securities, whether the Bearer Securities are to be issuable with Coupons,
without Coupons or both, and any restrictions applicable to the offer, sale delivery
or conversion of the Bearer Securities and the terms, if any, upon which Bearer
Securities may be exchanged for Registered Securities and vice versa;


 


14














 


(4)                                  whether any Securities of the series are to
be issuable initially or otherwise in global form and, if so, (i) whether
beneficial owners of interests in any such global Security may exchange such
interest for Securities of such series and of like tenor of any authorized form
and denomination and the circumstances under which any such exchanges may
occur, if other than in the manner specified in Section 306, (ii) the
name of the depository or the U.S. Depository, as the case may be, with respect
to any global Security and (iii) the manner in which interest payable on a
global Security will be paid;


 


(5)                                  the date as of which any Bearer Securities of
the series and any global Security representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the first
Security of the series to be issued;


 


(6)                                  if Securities of the series are to be
issuable as Bearer Securities, whether interest in respect of any portion of a
temporary Bearer Security in global form (representing all of the Outstanding
Bearer Securities of the series) payable in respect of an Interest Payment Date
prior to the exchange of such temporary Bearer Security for definitive
Securities of the series shall be paid to any clearing organization with respect
to the portion of such temporary Bearer Security held for its account and, in
such event, the terms and conditions (including any certification requirements)
upon which any such interest payment received by a clearing organization will
be credited to the Persons entitled to interest payable on such Interest
Payment Date;


 


(7)                                  the date or dates, or the method, if any, by
which such date or dates shall be determined, on which the principal of such
Securities is payable;


 


(8)                                  the rate or rates at which such Securities
shall bear interest, if any, or the method, if any, by which such rate or rates
are to be determined, the date or dates, if any, from which such interest shall
accrue or the method, if any, by which such date or dates are to be determined,
the Interest Payment Dates, if any, on which such interest shall be payable and
the Regular Record Date, if any, for the interest payable on Registered
Securities on any Interest Payment Date, whether and under what circumstances
Additional Amounts on such Securities or any of them shall be payable, and the
basis upon which interest shall be calculated if other than that of a 360-day
year of twelve 30-day months;


 


(9)                                  the place or places, if any, where the
principal of (and premium, if any) and interest (including Additional Amounts),
if any, on such Securities shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer, Securities of the
series may be surrendered for exchange or conversion and notices or demands to
or upon the Company in respect of the Securities of the series and this
Indenture may be served;


 


(10)                            whether the Securities of the series or any of them are to be
redeemable at the option of the Company and, if so, the period or periods
within which, the price or prices at which and the other terms and conditions
upon which such Securities may be redeemed, in whole or in part, at the option
of the Company;


 


(11)                            whether the Company is obligated to redeem, or purchase Securities of
the series or any of them pursuant to any sinking fund or at the option of any
Holder thereof and, if so, the period or periods within which, the price or
prices at which and the other terms and conditions upon which such Securities
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation, and any provisions for the remarketing of the Securities of the
series so redeemed or purchased;


 


(12)                            the denominations in which Registered Securities of the series, if any,
shall be issuable if other than denominations of $1,000 and any integral
multiple thereof, and the denominations in which


 


15

















 


Bearer
Securities of the series, if any, shall be issuable if other than the
denomination of $5,000;


 


(13)                            if other than the principal amount thereof, the portion of the
principal amount of the Securities of the series of any of them which shall be
payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion is to be determined;


 


(14)                            if other than such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public or private debts,
the coin or currency, composite currencies or currency unit or units in which
payment of the principal of (and premium, if any) or interest, if any, on or
any Additional Amounts in respect of the Securities of the series or any of
them shall be payable;


 


(15)                            if the principal of (and premium, if any) or interest, if any, on or
any Additional Amounts in respect of the Securities of the series or any of
them are to be payable, at the election of the Company or a Holder thereof, in
a coin or currency, composite currencies or currency unit or units other than
that in which the Securities of the series or any of them are stated to be
payable, the period or periods within which, and the terms and conditions upon
which, such election may be made;


 


(16)                            whether the amount of payments of principal of (and premium, if any) or
interest (including Additional Amounts), if any, on the Securities of the
series may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on one or
more currencies, currency units, composite currencies, commodities, equity
indices or other indices), and, if so, the terms and conditions upon which and
the manner in which such amounts shall be determined and paid or payable;


 


(17)                            whether the principal of (and premium, if any) or interest (including
Additional Amounts), if any, on the Securities of the series are to be payable,
at the election of the Company or any Holder thereof or otherwise, in a
currency or currencies, currency unit or units or composite currency or
currencies other than that in which such Securities or any of them are
denominated or stated to be payable, the period or periods within which, and
the other terms and conditions upon which, such election, if any, may be made,
and the time and manner of determining the exchange rate between the currency
or currencies, currency unit or units or composite currency or currencies in
which such Securities or any of them are denominated or stated to be payable
and the currency or currencies, currency unit or units or composite currency or
currencies in which such Securities or any of them are to be so payable;


 


(18)                            any deletions from, modifications of or additions to the Events of
Default or covenants of the Company with respect to the Securities of the
series or any of them, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;


 


(19)                            the applicability, if any, of Section 403 to the Securities of the
series and any provisions in modification of, in addition to or in lieu of any of
the provisions of Section 403;


 


(20)                            if the Securities of the series or any of them are to be issued upon
the exercise of warrants, the time, manner and place for such Securities to be
authenticated and delivered;


 


(21)                            if the Securities of the series are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Security of such
series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and terms of such certificates,
documents or conditions;


 


16

















 


(22)                            if there is more than one Trustee, the identity of the Trustee and, if
not the Trustee, the identity of each Security Registrar, Paying Agent and/or
Authenticating Agent with respect to the Securities of the series;


 


(23)                            whether any of the Securities of a series shall be issued as Original
Issue Discount Securities; and


 


(24)                            any other terms of the Securities of the series or any of them.


 


All
Securities of any one series and Coupons appertaining to Bearer Securities of
such series, if any, shall be substantially identical except as to denomination
and the rate or rates of interest, if any, and Stated Maturity, the date from
which interest, if any, shall accrue and except as may otherwise be provided by
the Company in or pursuant to one or more Board Resolutions and set forth in
such Officers’ Certificate or in any indenture or indentures supplemental
hereto pertaining to such series of Securities. All Securities of any one
series need not be issued at the same time and, unless otherwise so provided by
the Company, a series may be reopened for issuances of additional Securities of
such series.


 


If
any of the terms of the Securities of any series were established by action
taken by or pursuant to a Board Resolution, the Board Resolution shall be
delivered to the Trustee at or prior to the delivery of the Officers’
Certificate setting forth the terms of such series.


 


Section 302. Denominations.


 


Unless
otherwise established with respect to any Securities pursuant to Section 301,
the Registered Securities of each series, if any, denominated in Dollars shall
be issuable in registered form without coupons in denominations of $1,000 and
any integral multiple thereof, and the Bearer Securities of each series, if
any, denominated in Dollars shall be issuable in the denomination of $1,000.
Securities not denominated in Dollars shall be issuable in such denominations
as are established with respect to such Securities pursuant to Section 301.


 


Section 303. Securities in Foreign Countries


 


Whenever
this Indenture provides for (i) any action by, or the determination of any
of the rights of, Holders of Securities of any series in which not all of such
Securities are denominated in the same currency, or (ii) any distribution
to Holders of Securities, in the absence of any provision to the contrary in
the form of Security of any particular series, any amount in respect of any
Security denominated in a currency other than United States dollars shall be
treated for any such action or distribution as that amount of United States
dollars that could be obtained for such amount on such reasonable basis of
exchange and as of the record date with respect to Registered Securities of
such series (if any) for such action, determination of rights or distribution
(or, if there shall be no applicable record date, such other date reasonably
proximate to the date of such action, determination of rights or distribution)
as the Company may specify in a written notice to the Trustee or, in the
absence of such written notice, as the Trustee may determine.


 


Section 304. Execution, Authentication, Delivery and Dating.


 


The
Securities and any Coupons appertaining thereto shall be executed on behalf of
the Company by its Chairman of the Board, Deputy Chairman, one of its Vice
Chairmen, its President or one of its Vice Presidents under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities and any
Coupons appertaining thereto may be manual or facsimile.


 


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


 


17

















 


At
any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
Coupons appertaining thereto, executed by the Company, to the Trustee for
authentication, and, provided that the Board Resolution or Resolutions and
Officers’ Certificate or supplemental indenture or indentures with respect to
such Securities referred to in Section 301 and a Company Order for the
authentication and delivery of such Securities, has been delivered to the
Trustee, the Trustee in accordance with the Company Order and subject to the
provisions hereof of such Securities shall authenticate and deliver such
Securities. In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities and any
Coupons appertaining thereto, the Trustee shall be entitled to receive, and
(subject to Sections 315(a) through 315(b) of the Trust Indenture
Act) shall be fully protected in relying upon,


 


(1)           an Opinion of Counsel stating, to the
effect


 


(A)                              that the form or forms and terms of such Securities and Coupons, if
any, have been established in conformity with the provisions of this Indenture;


 


(B)                                that all conditions precedent to the authentication and delivery of
such Securities and Coupons, if any, appertaining thereto, have been complied
with and that such Securities, and Coupons, when completed by appropriate
insertion and executed and delivered by the Company to the Trustee for
authentication pursuant to this Indenture, and authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute legally valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws affecting the enforcement
of creditors’ rights generally, and subject to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law) and will entitle the Holders thereof to the benefits of the Indenture;
such Opinion of Counsel need express no opinion as to the availability of
equitable remedies;


 


(C)                                that all laws and requirements in respect of the execution and delivery
by the Company of such Securities and Coupons, if any, have been complied with;
and


 


(D)                               as to such other matters as the Trustee may reasonably request; and


 


(2)           an Officers’ Certificate stating
that, to the best knowledge of the Persons executing such certificate, no Event
of Default with respect to any of the Securities shall have occurred and be
continuing.


 


If
all the Securities of any series are not to be issued at one time, it shall not
be necessary to deliver an Opinion of Counsel and an Officers’ Certificate at
the time of issuance of each Security, but such opinion and certificate, with
appropriate modifications to cover future issuances, shall be delivered at or
before the time of issuance of the first Security of such series.


 


The
Trustee shall not be required to authenticate or to cause an Authenticating
Agent to authenticate any Securities if the issue of such Securities pursuant
to this Indenture will affect the Trustee’s own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee or if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith shall determine that such action would expose the Trustee
to personal liability to existing Holders.


 


Each
Registered Security shall be dated the date of its authentication. Each Bearer
Security and any temporary Bearer Security in global form shall be dated as of
the date specified as contemplated by Section 301.


 


18

















 


No
Security or Coupon shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for in Section 202
or 611 executed by or on behalf of the Trustee by the manual signature of one
of its authorized officers, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Except as permitted by Section 307
or 308, the Trustee shall not authenticate and deliver any Bearer Security unless
all appurtenant Coupons for interest then matured have been detached and
cancelled.


 


Section 305. Temporary Securities.


 


Pending
the preparation of definitive Securities of any series, the Company may execute
and deliver to the Trustee and, upon Company Order the Trustee shall
authenticate and deliver, in the manner provided in Section 304, temporary
Securities of such series which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized, in bearer form with one or
more Coupons or without Coupons and with such appropriate insertions,
omissions, substitutions and other variations as the officers of the Company
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities. In the case of Securities of any series, such
temporary Securities may be in global form.


 


Except
in the case of temporary Securities in global form, which shall be exchanged in
accordance with the provisions thereof, if temporary Securities of any series
are issued, the Company shall cause definitive Securities of such series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of any series, the temporary Securities of such series, if any,
shall be exchangeable upon request for definitive Securities of such series
containing identical terms and provisions upon surrender of the temporary
Securities of such series at an office or agency of the Company maintained for
such purpose pursuant to Section 1002, without charge to any Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured Coupons appertaining thereto), the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of authorized
denominations of the same series containing identical terms and provisions;
PROVIDED, HOWEVER, that no definitive Bearer Security, except as provided
pursuant to Section 301, shall be delivered in exchange for a temporary
Registered Security; and PROVIDED, FURTHER, that a definitive Bearer Security
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth herein or therein. Unless otherwise
specified as contemplated by Section 301 with respect to a temporary
global Security, until so exchanged the temporary Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.


 


Section 306. Registration, Transfer and Exchange.


 


With
respect to the Registered Securities of each series, if any, the Company shall
cause to be kept, at an office or agency of the Company maintained pursuant to Section 1002,
a register (each such register being herein sometimes referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of each series and of transfers of the Registered Securities of such
series. In the event that the Trustee shall not be the Security Registrar, it
shall have the right to examine the Security Register at all reasonable times.
[SCBT Financial Corporation] is hereby initially appointed as Security
Registrar for each series of Securities. In the event that [SCBT Financial
Corporation] shall cease to be Security Registrar with respect to a series of
Securities, the Trustee shall have the right to examine the Security Register
for such series at all reasonable times.


 


Upon
surrender for registration of transfer of any Registered Security of any series
at any office or agency of the Company maintained for such series pursuant to Section 1002,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Registered Securities of the same series of any authorized denominations, of a
like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions.


 


19

















 


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


 


If
specified as contemplated by Section 301 with respect to Securities of any
series, at the option of the Holder, Bearer Securities of such series may be
exchanged for Registered Securities of such series containing identical terms and
provisions, of any authorized denominations and aggregate principal amount,
upon surrender of the Bearer Securities to be exchanged at any such office or
agency for such series, with all unmatured Coupons and all matured Coupons in
default thereto appertaining. If the Holder of a Bearer Security is unable to
produce any such unmatured Coupon or Coupons or matured Coupon or Coupons in
default, such exchange may be effected if the Bearer Securities are accompanied
by payment in funds acceptable to the Company and the Trustee in an amount
equal to the face amount of such missing Coupon or Coupons, or the surrender of
such missing Coupon or Coupons may be waived by the Company and the Trustee if
there is furnished to them such Security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to any Paying Agent any such missing Coupon in
respect of which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; PROVIDED, HOWEVER, that, except
as otherwise provided in Section 1002, interest represented by Coupons
shall be payable only upon presentation and surrender of those Coupons at an
office or agency for such series located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of such series and like tenor after the close of business at such office or agency
on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at such office or agency
on the related date for payment of Defaulted Interest, such Bearer Security
shall be surrendered without the Coupon relating to such Interest Payment Date
or proposed date of payment, as the case may be (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall be returned to the
person so surrendering the Bearer Security), and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture.


 


If
specified as contemplated by Section 301 with respect to Securities of any
series, at the option of the Holder, Registered Securities of such series may
be exchanged for Bearer Securities upon such terms and conditions as may be
provided pursuant hereto with respect to such series.


 


Whenever
any Securities are so surrendered for exchange as contemplated by the
immediately preceding two paragraphs, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.


 


Notwithstanding
the foregoing, except as otherwise specified as contemplated by Section 301,
any global Security of any series shall be exchangeable for Securities of such
series only if (i) the Securities Depository is at any time unwilling or
unable or ineligible to continue as Securities Depository and a successor
depository is not appointed by the Company within 90 days of the date the
Company is so notified in writing, (ii) the Company executes and delivers
to the Trustee a Company Order to the effect that such global Security shall be
so exchangeable, or (iii) an Event of Default has occurred and is
continuing with respect to the Securities. If the beneficial owners of
interests in a global Security are entitled to exchange such interests for
Securities of such series and of like tenor and principal amount of any
authorized form and denomination, as specified as contemplated by Section 301,
then without unnecessary delay but in any event not later than the earliest
date on which such interests may be so exchanged, the Company shall deliver to
the Trustee definitive Securities of that series in aggregate principal amount
equal to the principal amount of such global Security, executed by the Company.
On or after the earliest date on which such interests may be so exchanged, such
global Security shall be surrendered from time to time by the U.S. Depository
or such other depository as shall be specified in the


 


20

















 


Company Order with respect thereto, and in
accordance with instructions given to the Trustee and the U.S. Depository or
such other depository, as the case may be (which instructions shall be in
writing but need not comply with Section 102 or be accompanied by an
Opinion of Counsel), as shall be specified in the Company Order with respect
thereto to the Trustee, as the Company’s agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities of the same series
without charge. The Trustee shall authenticate and make available for delivery,
in exchange for each portion of such surrendered global Security, a like
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such global
Security to be exchanged which (unless the Securities of such series are not
issuable both as Bearer Securities and as Registered Securities, in which case
the definitive Securities exchanged for the global Security shall be issuable
only in the form in which the Securities are issuable, as specified as
contemplated by Section 301) shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof; PROVIDED, HOWEVER, that no such exchanges may occur
during a period beginning at the opening of business 15 days before any
selection of Securities of such series to be redeemed and ending on the
relevant Redemption Date; and provided, further, that (unless otherwise
specified as contemplated by Section 301) no Bearer Security delivered in
exchange for a portion of a global Security shall be mailed or otherwise
delivered to any location in the United States. Promptly following any such
exchange in part, such global Security shall be returned by the Trustee to such
Depository or the U.S. Depository, as the case may be, or such other Depository
or U.S. Depository referred to above in accordance with the instructions of the
Company referred to above. If a Registered Security is issued in exchange for
any portion of a global Security after the close of business at the office or
agency where such exchange occurs on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related proposed date for
payment of interest or Defaulted Interest, as the case may be, interest will
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Registered Security, but will be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
only to the Person to whom interest in respect of such portion of such global
Security is payable in accordance with the provisions of this Indenture.


 


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


 


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


 


No
service charge shall be made for any registration of transfer or exchange,
redemption or conversion of Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 305, 906 or 1107 not
involving any transfer.


 


Except
as otherwise specified as contemplated by Section 301, the Company shall
not be required (i) to issue, register the transfer of or exchange any
Securities of any series during a period beginning at the opening of business
15 days before the day of the selection for redemption of Securities of such
series under Section 1103 and ending at the close of business on the day
of such selection, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except in
the case of any Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for
redemption except, to the extent provided with respect to such Security, that
such a Bearer Security may be exchanged for a Registered Security of that
series, provided that such Registered Security shall be immediately surrendered
for redemption with written instruction for payment consistent with the
provisions of this Indenture or (iv) to issue, register the transfer of or
exchange any Security which, in accordance with its terms specified as


 


21

















 


contemplated by Section 301, has been
surrendered for repayment at the option of the Holder, except the portion, if
any, of such Security not to be repaid.


 


Section 307. Mutilated, Destroyed, Lost and Stolen Securities.


 


If
any mutilated Security or a Security with a mutilated Coupon appertaining to it
is surrendered to the Trustee, subject to the provisions of this Section 307,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series containing identical terms
and of like principal amount and bearing a number not contemporaneously
outstanding, with Coupons corresponding to the Coupons, if any, appertaining to
the surrendered Security.


 


If
there be delivered to the Company and to the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security or Coupon, and (ii) such
Security or indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security or Coupon has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen Coupon appertains with all appurtenant Coupons not
destroyed, lost or stolen, a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons corresponding to the Coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen Coupon appertains.


 


Notwithstanding
the foregoing provisions of this Section 307, in case any such mutilated,
destroyed, lost or stolen Security or Coupon has become or is about to become
due and payable, the Company in its discretion may, instead of issuing a new
Security, pay such Security or Coupon; PROVIDED, HOWEVER, that payment of
principal of (and premium, if any) and any interest on Bearer Securities shall,
except as otherwise provided in Section 1002, be payable only at an office
or agency located outside the United States and, unless otherwise specified as
contemplated by Section 301, any interest on Bearer Securities shall be
payable only upon presentation and surrender of the Coupons appertaining
thereto.


 


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


 


Every
new Security of any series, with its Coupons, if any, issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security and its Coupons, if any, or the
destroyed, lost or stolen Coupon shall constitute a separate obligation of the
Company, whether or not the destroyed, lost or stolen Security and its Coupons,
if any, or the destroyed, lost or stolen Coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their Coupons, if any.


 


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


 


Section 308. Payment of Interest; Interest Rights Preserved.


 


Unless
otherwise specified as contemplated by Section 301, interest on any
Registered Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is registered as of the
close of business on the Regular Record Date for such interest. In case a Bearer
Security of any series is surrendered in exchange for a Registered Security of
such series after the close of business (at an office or agency in a Place of
Payment for such series) on any Regular Record Date and before the opening of
business (at such office or agency) on the next succeeding Interest Payment
Date, such Bearer Security shall be surrendered without the Coupon relating to
such


 


22

















 


Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange of such Bearer Security, but will be payable only to the
Holder of such Coupon when due in accordance with the provisions of this
Indenture.


 


Any
interest on any Registered Security of any series which shall be payable, but
shall not be punctually paid or duly provided for, on any Interest Payment Date
for such Registered Security (herein called “Defaulted Interest”) shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date
by virtue of having been such Holder; and such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in Clause (1) or
(2) below:


 


(1)           The Company may elect to make payment
of any Defaulted Interest to the Persons in whose names the Registered
Securities affected (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 Registered 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 on or prior to the date of the proposed payment.
Money will be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon, the Trustee shall fix
a Special Record Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of such Registered Securities at his address as it appears in
the Security Register not less than 10 days prior to such Special Record Date.
Notice of the proposed payment 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 Registered Securities (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to
the following Clause (2). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for such series in
exchange for a Registered Security of such series after the close of business
at such office or agency on any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the
Coupon relating to such proposed date of payment and Defaulted Interest will
not be payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture.


 


(2)           The Company may make payment of any
Defaulted Interest in any other lawful manner not inconsistent with the
requirements of any Securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this
Clause, such payment shall be deemed practicable by the Trustee.


 


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


 


Subject
to the foregoing provisions of this Section and Section 306, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.


 


Section 309. Persons Deemed Owners.


 


Prior
to due presentment of a Registered Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Registered Security is


 


23

















 


registered as the owner of such Registered
Security for the purpose of receiving payment of principal of (and premium, if
any), and (subject to Sections 306 and 308) interest on or any Additional
Amounts with respect to, such Registered Security and for all other purposes
whatsoever, whether or not any payment with respect to such Registered Security
be overdue, and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.


 


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


 


Section 310. Cancellation.


 


All
Securities and Coupons surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee or the Security Registrar, be
delivered to the Trustee or the Security Registrar, and any such Securities and
Coupons and Securities and Coupons surrendered directly to the Trustee or the
Security Registrar for any such purpose shall be promptly cancelled by the
Trustee or the Security Registrar, as the case may be. The Company may at any
time deliver to the Trustee or the Security Registrar for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly cancelled by the Trustee or the Security Registrar, as the
case may be. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture or as otherwise specified as contemplated by Section 301.
All cancelled Securities and Coupons held by the Trustee or the Security
Registrar shall be returned to the Company by the Trustee or the Security
Registrar, as the case may be, upon a Company Order. The Trustee shall promptly
notify the Company of all cancelled Securities.


 


Section 311. Computation of Interest.


 


Except
as otherwise specified as contemplated by Section 301 for Securities of
any series, interest on the Securities of each series shall be computed on the
basis of 360-day year of twelve 30-day months.


 


Section 312. Cusip Numbers.


 


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


 


ARTICLE FOUR


 


SATISFACTION AND DISCHARGE


 


Section 401. Satisfaction and Discharge of Indenture.


 


Upon
the direction of the Company by a Company Order, this Indenture shall cease to
be of further effect with respect to any series of Securities specified in such
Company Order (except as to any surviving rights of registration of transfer or
exchange of Securities of such series herein expressly provided for and any
right to receive Additional Amounts, as provided in Section 1004), and the
Trustee, on receipt of a Company Order, at


 


24

















 


the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
as to such series, when


 


(1)           either


 


(A)                              all Securities of such series theretofore authenticated and delivered
and all Coupons appertaining thereto (other than (i) Coupons appertaining
to Bearer Securities of such series surrendered for exchange for Registered
Securities of such series and maturing after such exchange, whose surrender is
not required or has been waived as provided in Section 306, (ii) Securities
and Coupons of such series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 307, (iii) Coupons
appertaining to Securities of such series called for redemption and maturing
after the relevant Redemption Date, whose surrender has been waived as provided
in Section 1107, and (iv) Securities and Coupons of such series for
whose payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or


 


(B)                                all Securities of such series and, in the case of (i) or (ii) below,
any such Coupons appertaining thereto not theretofore delivered to the Trustee
for cancellation


 


(i)                                     have become due and payable, or


 


(ii)                                  will become due and payable at their Stated
Maturity within one year and such Securities are not convertible into other
Securities, or


 


(iii)                               if redeemable at the option of the Company, such Securities are not
convertible into other Securities and are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company,


 


and
the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for the
purpose, lawful money of the United States Government Obligations which through
the payment of interest and principal or other amounts in respect thereof in
accordance with their terms will provide not later than the opening of business
on the due dates of any payment of principal (and premium, if any) and
interest, or any Additional Amounts with respect thereto, or a combination
thereof, in an amount sufficient to pay and discharge the entire indebtedness
on such Securities and Coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest, or any
Additional Amounts with respect thereto, to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;


 


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


 


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


 


In
the event there are two or more Trustees hereunder, then the effectiveness of
any such instrument shall be conditioned upon receipt of such instruments from
all Trustees hereunder.


 


25














 


Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 606 and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003 shall survive such satisfaction and
discharge.


 


Section 402. Application of Trust Money.


 


Subject
to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 or this section 402
shall be held in trust and applied by it, in accordance with the provisions of
the Securities, the Coupons and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and any interest or any Additional Amounts for
whose payment such money has been deposited with the Trustee; but such money
need not be segregated from other funds except to the extent required by law.


 


All
monies deposited with the Trustee pursuant to Section 401 (and held by it
or any Paying Agent) for the payment of Securities subsequently converted shall
be returned to the Company upon Company Request.


 


Section 403. Satisfaction, Discharge and Defeasance of Securities
of Any Series.


 


If
pursuant to Section 301 provision is made for defeasance of Securities of
any series pursuant to Section 403, the Company shall be deemed to have
paid and discharged the entire indebtedness on all the Outstanding Securities
of such series and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of such
indebtedness, when


 


(1)           either


 


(A)                              with respect to all Outstanding Securities of such series and any
Coupons appertaining thereto,


 


(i)                                     the Company has deposited or caused to be
deposited with the Trustee, as trust funds in trust for such purpose, an amount
sufficient to pay and discharge the entire indebtedness on all Outstanding
Securities of such series for principal (and premium, if any), any Additional
Amounts, and interest to the Stated Maturity or any Redemption Date as
contemplated by the penultimate paragraph of this Section 403, as the case
may be; or


 


(ii)                                  with respect to any Series of Securities
which are denominated in United States dollars, the Company has deposited or
caused to be deposited with the Trustee, as obligations in trust for such
purpose, such amount of direct obligations of, or obligations the timely
payment of the principal of and interest on which are fully guaranteed by, the
United States of America and which are not callable at the option of the issuer
thereof as will, together with the income to accrue thereon without
consideration of any reinvestment thereof, be sufficient to pay and discharge
the entire indebtedness on all Outstanding Securities of such series for
principal (and premium, if any), any Additional Amounts, and interest to the
stated Maturity or any Redemption Date as contemplated by the penultimate
paragraph of this Section 403; or


 


(B)                                the Company has properly fulfilled such other means of satisfaction and
discharge as is specified, as contemplated by Section 301, to be applicable
to the Securities of such series; and


 


26

















 


(2)                                  the Company has paid or caused to be paid all
other sums payable hereunder with respect to the Outstanding Securities of such
series; and


 


(3)                                  the Company has delivered to the Trustee a
certificate signed by a nationally recognized firm of Independent Public
Accountants certifying as to the sufficiency of the amounts deposited pursuant
to subsections (A) (i) or (ii) of this Section for payment
of the principal (and premium, if any) and interest on the dates such payments
are due, an Officers’ Certificate and an Opinion of Counsel, each such
Certificate and opinion stating that no Event of Default or event which with
notice or lapse of time or both would become an Event of Default with respect
to such Securities shall have occurred and all conditions precedent herein
provided for relating to the satisfaction and discharge of the entire
indebtedness on all Outstanding Securities of any such series have been complied
with; and


 


(4)                                  the Company has delivered to the Trustee


 


(A)                              a ruling from the Internal Revenue Service or an opinion of independent
counsel that the holders of the Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to Federal income tax on
the same amount and in the same manner and at the same times, as would have
been the case if such deposit, defeasance and discharge had not occurred; and


 


(B)                                if the Securities of such series are then listed on the Nasdaq Global
Select Market, an Opinion of Counsel that the Securities of such series will
not be delisted as a result of the exercise of this option.


 


Any
deposits with the Trustee referred to in subsection (1) (A) of this Section shall
be irrevocable and shall be made under the terms of an escrow trust agreement
in form and substance satisfactory to the Trustee. If any Outstanding
Securities of such series are to be redeemed prior to their Stated Maturity,
whether pursuant to any optional redemption or repayment provisions or in
accordance with any mandatory sinking fund requirement, the Company shall make
such arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.


 


Upon
the satisfaction of the conditions set forth in this Section 403 with
respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, other than the provisions of Sections 306,
307, and 1002, other than the right of Holders of Securities and any Coupons of
such series to receive, from the trust fund described in this Section, payment
of the principal (and premium, if any) of, the interest on or any Additional
Amounts with respect to such Securities and Coupons (if any) appertaining
thereto when such payments are due, other than any right of conversion of such
Securities and the rights, powers, duties and immunities of the Trustee
hereunder, shall no longer be binding upon, or applicable to, the Company
except those responsibilities and obligations which by the terms of the
Indenture survive the termination of the Indenture; PROVIDED that the Company
shall not be discharged from any payment obligations in respect of Securities
of such series which are deemed not to be Outstanding under clause (iii) of
the definition thereof if such obligations continue to be valid obligations of
the Company under applicable law.


 


ARTICLE FIVE


 


REMEDIES


 


Section 501. Events of Default.


 


“Event
of Default”, wherever used herein with respect to Securities of any series,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or be effected


 


27

















 


by operation of law pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):


 


(1)           a court having jurisdiction in the
premises shall enter a decree or order for relief in respect of the Company or
the Subsidiary Bank in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, and adjudging it a
bankrupt or insolvent or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Company or the
Subsidiary Bank or for any substantial part of its property, or ordering the
winding-up or liquidation of its affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or


 


(2)           the Company or the Subsidiary Bank
shall commence a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or shall consent to the entry of
an order for relief in any 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 similar official) of the Company
or the Subsidiary Bank or for 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 shall take any corporate
action in furtherance of any of the foregoing.


 


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


 


Section 502. Acceleration of Maturity; Rescission and Annulment.


 


If
an Event of Default with respect to Securities of any series at the time
outstanding occurs and is continuing, then the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of that series
may declare the principal of all the Securities of that series, or such lesser
amount as may be provided for in the Securities of that series, to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by the Holders), and upon any such declaration such principal or such
lesser amount shall become immediately due and payable.


 


At
any time after such a declaration of acceleration with respect to Securities of
any series has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article provided,
the Holders of not less than a majority in principal amount of the Outstanding
Securities of that series, by written notice to the Company and the Trustee,
may rescind and annul such declaration and its consequences if


 


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


 


(A)                              all overdue installments of interest on and any Additional Amounts
payable in respect of all Securities of such series,


 


(B)                                the principal of (and premium, if any, on) any Securities of such
series which have become due otherwise than by such declaration of acceleration
and interest thereon at the rate or rates borne by or provided for in such
Securities,


 


(C)                                to the extent that payment of such interest is lawful, interest upon
overdue installments of interest or any Additional Amounts at the rate or rates
borne by or provided for in such Securities, and


 


28

















 


(D)                               all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel as provided in Section 606 hereof; and


 


(2)                                  all Events of Default with respect to
Securities of such series, have been cured or waived as provided in Section 513.


 


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


 


Section 503. Collection of Indebtedness and Suits For Enforcement
By Trustee.


 


The
Company covenants that if


 


(1)                                  default is made in the payment of any
installment of interest on or any Additional Amounts payable in respect of any
Security when such interest or Additional Amounts shall have become due and
payable and such default continues for a period of 30 days, or


 


(2)                                  default is made in the payment of the
principal of (or premium, if any, on) any Security at its Maturity,


 


then
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and any Coupons appertaining thereto, the whole
amount then due and payable on such Securities and Coupons for principal (and
premium, if any) and interest or Additional Amounts, if any, with interest upon
the overdue principal (and premium, if any) and, to the extent that payment of
such interest shall be legally enforceable, upon overdue installments of interest
or any Additional Amounts, at the rate or rates borne by or provided for in
such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.


 


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


 


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


 


Section 504. Trustee May File Proofs of Claim.


 


In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of any overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,


 


29

















 


(1)                                  to file and prove a claim for the whole
amount or such lesser amount as may be provided for in the Securities of such
series, of principal (and premium, if any) and interest and any Additional
Amounts owing and unpaid in respect of the Securities and any Coupons
appertaining thereto and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents or counsel) and of the Holders allowed in such
judicial proceeding, and


 


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


 


and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder of Securities or Coupons 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 Holders of Securities or Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 606.


 


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


 


Section 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons.


 


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


 


Section 506. Application of Money Collected.


 


Any
money collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal (and premium, if
any), interest or any Additional Amounts, upon presentation of the Securities
or Coupons, or both, as the case may be, and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:


 


FIRST:                                                           To the payment of all amounts due the Trustee
and any predecessor Trustee under Section 606;


 


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


 


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


 


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Section 507. Limitation on Suits.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 508. Unconditional Right of Holders to Receive Principal,
Premium, Interest and Additional Amounts.


 


Notwithstanding
any other provision in this Indenture, the Holder of any Security or coupon
shall have the right, which is absolute and unconditional, to receive payment
of the principal of (and premium, if any) and (subject to Sections 306 and 308)
interest on or any Additional Amounts in respect of such Security or payment of
such Coupon on the respective Stated Maturity or Maturities specified in such
Security or Coupon (or, in the case of redemption, on the Redemption Date) and
to institute suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Holder.


 


Section 509. Restoration of Rights and Remedies.


 


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


 


Section 510. Rights and Remedies Cumulative.


 


Except
as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or Coupons in the last paragraph of Section 307,
no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders of a Security or Coupon is intended to be exclusive of any other right
or remedy, and every right and remedy, to the extent permitted by law, shall be
cumulative and in addition to every


 


31

















 


other right and remedy given hereunder or now
or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.


 


Section 511. Delay or Omission Not Waiver.


 


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


 


Section 512. Control By Holders.


 


The
Holders of a majority in principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Securities of such series
and any Coupons appertaining thereto, PROVIDED that


 


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


 


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


 


(3)                                  such direction is not unduly prejudicial to
the rights of other Holders of Securities of such series.


 


Section 513. Waiver of Past Defaults.


 


The
Holders of not less than a majority in principal amount of the outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such Series and any Coupons appertaining thereto waive any past default
hereunder with respect to such series and its consequences, except a default


 


(1)                                  in the payment of the principal of (and
premium, if any) or interest on or Additional Amounts payable in respect of any
Security of such series or any Coupons appertaining thereto, or


 


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


 


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


 


Section 514. Waiver of Stay or Extension Laws.


 


The
Company covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law and covenants that it will not hinder, delay or impede the execution of any
power


 


32

















 


herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.


 


ARTICLE SIX


 


THE TRUSTEE


 


Section 601. Notice of Defaults.


 


Within
90 days after the occurrence of any default hereunder with respect to the
Securities of any series, the Trustee shall transmit to the Holders in the
manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, notice of such default hereunder known to a Responsible Officer
of the Trustee, unless such default shall have been cured or waived; PROVIDED,
HOWEVER, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest on, or any Additional Amounts with respect
to, any Security of such series or in the payment of any sinking fund
installment with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Holders of Securities and Coupons of such
series.


 


Section 602. Certain Rights of Trustee.


 


Subject
to the provisions of Sections 315(a) through 315(d) of the Trust
Indenture Act:


 


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


 


(2)                                  any request or direction of the Company
mentioned herein shall be sufficiently evidenced by a Company Request or a
Company Order (other than delivery of any Security, together with any Coupons
appertaining thereto to the Trustee for authentication and delivery pursuant to
Section 304 which shall be sufficiently evidenced as provided therein) and
any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution or Board Resolutions;


 


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


 


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


 


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


 


(6)                                  the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to


 


33

















 


examine
the books, records and premises of the Company, personally or by agent or
attorney at the sole cost to the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation;


 


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


 


(8)                                  the Trustee shall not be liable for any
action taken, suffered, omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture;


 


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


 


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


 


Section 603. Not Responsible For Recitals or Issuance of
Securities.


 


The
recitals contained herein and in the Securities, except the Trustee’s
certificate of authentication, and in any coupons shall be taken as the
statements of the Company and neither the Trustee nor any Authenticating Agent
assumes responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility and Qualification on Form T-l supplied to the
Company are true and accurate, subject to the qualifications set forth therein.
The Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.


 


Section 604. May Hold Securities.


 


The
Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or
any other Person that may be an agent of the Trustee or the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and Coupons and, subject to Sections 310(b) and 311 of the Trust Indenture
Act, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other Person.


 


Section 605. Money Held In Trust.


 


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


 


Section 606. Compensation and Reimbursement.


 


The
Company agrees


 


34

















 


(1)                                  to pay to the Trustee from time to time such
compensation for all services rendered by it hereunder as shall be mutually
agreed upon by the Company and the Trustee in writing (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);


 


(2)                                  except as otherwise expressly provided
herein, to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
reasonable expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its negligence
or bad faith; and


 


(3)                                  to indemnify each of the Trustee and any
predecessor Trustee and its agents for, and to hold them harmless against, any
loss, liability, claim, damage or expense including taxes (other than taxes
based upon, measured by or determined by the income of the Trustee) incurred
without negligence or bad faith on their part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder, including
the costs and expenses of defending themselves against any claim or liability
in connection with the exercise or performance of any of their powers or duties
hereunder.


 


As
Security for the performance of the obligations of the Company under this Section,
the Trustee shall have a lien prior to the Securities of any series upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium, if any) or interest on
Securities. When the Trustee incurs expenses or renders services after an Event
of Default occurs, the expenses and compensation for the services of the
Trustee are intended to constitute expenses of administration under any
bankruptcy law or any similar federal or state law for the relief of debtors.


 


The
provisions of this Section 606 shall survive the termination of this
Indenture and the resignation or removal of the Trustee.


 


Section 607. Corporate Trustee Required; Eligibility; Conflicting
Interests.


 


There
shall at all times be a Trustee hereunder that is a corporation permitted by Section 310(a) (1) and
(5) of the Trust Indenture Act to act as trustee under the Trust Indenture
Act and that has a combined capital and surplus (computed in accordance with Section 310(a) (2) of
the Trust Indenture Act) of at least $50,000,000. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect hereinafter
specified in this Article. If the Trustee has or shall acquire any conflicting
interest, as defined in Section 310(b) of the Trust Indenture Act,
with respect to the Securities of any series, the Trustee shall take such
action as is required pursuant to said Section 310(b).


 


Section 608. Resignation and Removal; Appointment of Successor.


 


(a)           No resignation or removal of the
Trustee and no appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Trustee
pursuant to Section 609.


 


(b)           The Trustee may resign at any time
with respect to the Securities of one or more series by giving written notice
thereof to the Company. If the instrument of acceptance by a successor Trustee
required by Section 609 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition, at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such
series.


 


(c)           The Trustee may be removed at any
time with respect to the Securities of any series by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to


 


35














 


the Trustee within 30 days after the giving
of such notice of removal, the Trustee being removed may petition, at the
expense of the Company, any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such series.


 


(d)           If at any time:


 


(1)                                 the Trustee shall fail to comply with the
obligations imposed upon it under Section 310(b) of the Trust
Indenture Act after written request therefor by the Company or by any Holder of
a Security who has been a bona fide Holder of a Security for at least six
months, or


 


(2)                                 the Trustee shall cease to be eligible under Section 607
and shall fail to resign after written request therefor by the Company or by
any such Holder of a Security, or


 


(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, (a) the Company, by or pursuant to Board Resolution, may
remove the Trustee with respect to all Securities, or (b) subject to Section 315(c) of
the Trust Indenture Act any Holder of a Security who has been a bona fide
Holder of a Security of any series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities of
such series and the appointment of a successor Trustee or Trustees.


 


(e)           If the Trustee shall resign, be
removed or become incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause, with respect to the Securities of one or more
series, the Company, by or pursuant to Board Resolutions, shall promptly
appoint a successor Trustee or Trustees with respect to the Securities of that
or those series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 609. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 609, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders of Securities and accepted
appointment in the manner required by Section 609, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.


 


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


 


36

















 


Section 609. Acceptance of Appointment By Successor.


 


(a)           In case of the appointment hereunder
of a successor Trustee with respect to all Securities, every such successor
Trustee so appointed shall execute, acknowledge and deliver to the Company and
the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company and/or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder, subject nevertheless to its claim, if any, provided for in Section 606.


 


(b)           In case of the appointment hereunder
of a successor Trustee with respect to the Securities of one or more (but not
all) series, the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust, that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee and that no Trustee shall be responsible for any notice given to,
or received by, or any act or failure to act on the part of any other Trustee
hereunder, and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to
the extent provided therein, such retiring Trustee shall with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates have no further responsibility for the exercise of rights and
powers or for the performance of the duties and obligations vested in the
Trustee under this Indenture other than as hereinafter expressly set forth, and
each such successor Trustee without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company
or any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee, to the extent contemplated by such
supplemental indenture, the property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.


 


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


 


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


 


Section 610. Merger, Conversion, Consolidation or Succession to
Business.


 


Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee 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, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such


 


37

















 


authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.


 


Section 611. Appointment of Authenticating Agent.


 


The
Trustee may appoint an Authenticating Agent or Authenticating Agents, which may
be an Affiliate of the Company, with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of that or those series issued upon original issue or
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 307, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes
as if authenticated by the Trustee hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of Securities by the Trustee
or the Trustee’s certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent.


 


Each
Authenticating Agent shall be acceptable to the Company and, except as
specified as contemplated by Section 301, shall at all times be a
corporation that would be permitted by Section 310(a) (1) and (5) of
the Trust Indenture Act to be able to act as a trustee under an indenture qualified
under the Trust Indenture Act, is authorized under applicable law and by its
charter to act as such and that has a combined capital and surplus (computed in
accordance with Section 310(a) (2) of the Trust Indenture Act)
of not less that $50,000,000. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section. If the Authenticating Agent has or shall acquire any
conflicting interest, as defined in Section 310(b) of the Trust
Indenture Act, with respect to the Securities of any series, the Authenticating
Agent shall take action as is required pursuant to said Section 310 (b).


 


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


 


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


 


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


 


The
provisions of Sections 309, 603 and 604 shall be applicable to each
Authenticating Agent.


 


38

















 


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


 


This
certificate represents Securities of the series designated herein referred to
in the within-mentioned Indenture.


 


	
   

  	
  Dated:
  [WILMINGTON TRUST COMPANY],

  
	
   

  	
  not
  in its individual capacity but solely as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  As Authenticating Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Authorized Signatory

  



 


If
all of the Securities of any series may not be originally issued at one time,
and if the Trustee does not have an office capable of authenticating Securities
upon original issuance located in a Place of Payment where the Company wishes
to have Securities of such series authenticated upon original issuance, the
Trustee, if so requested in writing (which writing need not comply with Section 102)
by the Company, shall appoint in accordance with this Section an
Authenticating Agent having an office in a Place of Payment designated by the
Company with respect to such series of Securities.


 


ARTICLE SEVEN


 


HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY


 


Section 701. Company to Furnish Trustee Names and Addresses of
Holders.


 


In
accordance with Section 312(a) of the Trust Indenture Act, the
Company will furnish or cause to be furnished to the Trustee


 


(1)                                 semi-annually, not later than 15 days after
the Regular Record Date for interest for each series of Securities, a list, in
such form as the Trustee may reasonably require, of the names and addresses of
the Holders of Registered Securities of such series as of such Regular Record
Date, or if there is no Regular Record Date for interest for such series of
Securities, semi-annually, upon such dates as are set forth in the Board
Resolution or indenture supplemental hereto authorizing such series, and


 


(2)                                 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,


 


provided,
however, that so long
as the Trustee is the Security Registrar no such list shall be required to be
furnished.


 


Section 702. Preservation of Information; Communications to
Holders.


 


(a)           The Trustee shall comply with the
obligations imposed upon it pursuant to Section 312 of the Trust Indenture
Act.


 


39

















 


(b)           Every Holder of Securities or
Coupons, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any Paying Agent nor any
Security Registrar shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Holders of Securities in
accordance with Section 312 of the Trust Indenture Act, 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 Section 312(b) of the Trust Indenture Act.


 


Section 703. Reports By Trustee.


 


(a)           Within 60 days after May 15 of
each year commencing with the year following the first issuance of Securities
pursuant to Section 301, if required by Section 313(a) of the
Trust Indenture Act, the Trustee shall transmit pursuant to Section 313(c) of
the Trust Indenture Act a brief report dated as of such May 15 with
respect to any of the events specified in said Section 313(a) which
may have occurred since the later of the immediately preceding May 15 and
the date of this Indenture.


 


(b)           The Trustee shall transmit the
reports required by Section 313(a) of the Trust Indenture Act at the
times specified therein.


 


(c)           Reports pursuant to this Section shall
be transmitted in the manner and to the Persons required by Sections 313(c) and
(d) of the Trust Indenture Act.


 


Section 704. Reports By Company.


 


The
Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:


 


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


 


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


 


(3)                                 transmit within 30 days after the actual
filing thereof with the Trustee, in the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1) and
(2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission; and


 


(4)                                 transmit within 90 days of December 31
of each year to the Trustee, a brief certificate from the principal executive
officer, principal financial officer or principal accounting officer of the
Company as to his or her knowledge of such obligor’s compliance with all
conditions and


 


40

















 


covenants
under the Indenture as determined without regard to any period of grace or
requirement of notice provided under the Indenture.


 


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


 


ARTICLE EIGHT


 


CONSOLIDATION, MERGER AND SALES


 


Section 801. Company May Consolidate Etc., Only on Certain
Terms.


 


Nothing
contained in this Indenture or in any of the Securities shall prevent any
consolidation or merger of the Company with or into any other Person or Persons
(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 conveyance, transfer or lease of the property of
the Company as an entirety or substantially as an entirety, to any other Person
(whether or not affiliated with the Company); PROVIDED, HOWEVER, that:


 


(1)                                 in case the Company shall consolidate with or
merge into another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the entity formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America, any State thereof or
the District of Columbia and shall expressly assume, by an indenture (or
indentures, if at such time there is more than one Trustee) supplemental
hereto, executed and delivered by the successor Person to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
(and premium, if any) and interest on or any Additional Amounts in respect of
all the Securities and the performance of every other covenant of this
Indenture on the part of the Company to be performed or observed;


 


(2)                                 immediately after giving effect to such
transaction and treating any indebtedness which becomes an obligation of the
Company or a Subsidiary as a result of such transaction as having been incurred
by the Company or such Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and


 


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


 


Section 802. Successor Corporation Substituted For Company.


 


Upon
any consolidation or merger or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety to any Person
in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease to another Person, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities and the Coupons.


 


41

















 


ARTICLE NINE


 


SUPPLEMENTAL INDENTURES


 


Section 901. Supplemental Indentures Without Consent of Holders.


 


Without
the consent of any Holders of Securities or Coupons, the Company, when
authorized by Board Resolutions, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:


 


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


 


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


 


(3)                                 to add to or change any of the provisions of
this Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of principal
(or premium, if any) on Registered Securities or of principal (or premium, if
any) or any interest on Bearer Securities, to permit Registered Securities to
be exchanged for Bearer Securities or to permit or facilitate the issuance of
Securities in uncertified form, PROVIDED any such action shall not adversely
affect the interests of the Holders of Securities of any series or any Coupons
appertaining thereto in any material respect;


 


(4)                                 to establish the form or terms of Securities
of any series and any Coupons appertaining thereto as permitted by Sections 201
and 301;


 


(5)                                 to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the Securities of
one or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 609(b);


 


(6)                                 to cure any ambiguity, to correct or
supplement any provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with respect to matters
or questions arising under this Indenture which shall not be inconsistent with
the provisions of this Indenture and which shall not adversely affect the
interest of the Holders of Securities of any series or any related coupons in
any material respect;


 


(7)                                 to add to, delete from or revise the
conditions, limitations and restrictions on the authorized amount, terms or
purposes of issue, authentication and delivery of Securities, as herein set
forth;


 


(8)                                 to add any additional Events of Default;


 


(9)                                 to modify, eliminate or add to the provisions
of this Indenture to such extent as shall be necessary to conform the
obligations of the Company and the Trustee under this Indenture to the
obligations imposed on such Persons hereunder pursuant to the Trust Indenture
Act or under any similar federal statute hereafter enacted and rules or
regulations of the Commission thereunder;


 


42

















 


(10)                           to make provisions with respect to the
conversion rights of Holders of Convertible Securities pursuant to the
requirements of Section 1606; or


 


(11)                           to add to, change or eliminate any of the
provisions of this Indenture in respect to one or more series of Securities;
provided, however, that any such addition, change or elimination (i) shall
neither (A) apply to any Security of any series issued prior to the
execution of such supplemental indenture and entitled to the benefit of such
provision nor (B) modify the rights of the Holder of any such pre-existing
series of any Security with respect to the application of such provision to
such pre-existing series of a Security or (ii) shall become effective only
when there is no such pre-existing series of a Security outstanding.


 


Section 902. Supplemental Indentures With Consent of Holders.


 


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


 


(1)                                 change the Stated Maturity of the principal
of, or any installment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any Additional Amounts
payable in respect thereof, or any premium payable upon the redemption thereof,
or change the obligation of the Company to pay Additional Amounts pursuant to Section 1004
(except as contemplated by Section 801(1) and permitted by Section 901(1)),
or reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, or change the Place of Payment, coin or
currency in which any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date), or


 


(2)                                 reduce the percentage in principal amount of
the Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose Holders
is required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided for in
this Indenture, or reduce the requirements of Section 1404 for quorum or
voting, or


 


(3)                                 modify any of the provisions of this section,
or Sections 512, 513 or Section 1011, except to increase any such
percentage or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each Outstanding
Security affected thereby.


 


The
Company may, but shall not be obligated to, fix a record date for the purposes
of determining the Persons entitled to consent to any indenture supplemental
hereto. If a record date is fixed, the Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to consent to
such supplemental indenture, whether or not such Holders remain Holders after
such record date; PROVIDED, that unless such consent shall have become
effective by virtue of the requisite percentage having been obtained prior to
the date which is 90 days after such record date, any such consent previously
given shall automatically and without further action by any Holder be cancelled
and of no further effect.


 


A
supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which 


 


43

















 


modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.


 


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


 


Section 903. Execution of Supplemental Indentures.


 


As
a condition to executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trust created by this Indenture, the Trustee shall be provided
with, and (subject to Section 315 of the Trust Indenture Act) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture and that it complies with the terms of this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.


 


Section 904. Effect of Supplemental Indentures.


 


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


 


Section 905. Conformity With Trust Indenture Act.


 


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


 


Section 906. Reference in Securities to Supplemental Indentures.


 


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


 


Section 907. Subordination Unimpaired.


 


No
supplemental indenture entered into under this Article Nine shall modify,
directly or indirectly, the provisions of Article Fifteen or the
definition of Senior Indebtedness in Section 101 in any manner that might
alter or impair the subordination of the Securities with respect to Senior
Indebtedness then outstanding, unless each holder of such Senior Indebtedness
has consented thereto in writing.


 


44

















 


ARTICLE TEN


 


COVENANTS


 


Section 1001. Payment of Principal, Premium, If Any, and Interest.


 


The
Company covenants and agrees for the benefit of the Holders of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any), interest on or any Additional Amounts payable in respect of the
Securities of that series in accordance with the terms of such series of
Securities, any Coupons appertaining thereto and this Indenture. Any interest
due on and any Additional Amounts payable in respect of Bearer Securities on or
before Maturity, other than Additional Amounts, if any, payable as provided in Section 1004
in respect of principal of (or premium, if any, on) such a Security, shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.


 


Section 1002. Maintenance of Office or Agency.


 


The
Company will maintain in each Place of Payment for any series of Securities an
office or agency where Securities of such series (but not Bearer Securities,
except as otherwise provided below, unless such Place of Payment is located
outside the United States) may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. If Securities of a
series are issuable as Bearer Securities, the Company shall maintain, subject
to any laws or regulations applicable thereto, an office or agency in a Place
of Payment for such series which is located outside the United States where
Securities of such series and the related Coupons may be presented and
surrendered for payment (including payment of any Additional Amounts payable on
Securities of such series pursuant to Section 1004); PROVIDED, HOWEVER,
that if the Securities of such series are listed on The Stock Exchange of the
United Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or
any other stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent in London,
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Securities of such series are listed on such
exchange. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of that series and the
related Coupons may be presented and surrendered for payment (including payment
of any Additional Amounts payable on Bearer Securities of that series pursuant
to Section 1004) at the place specified for the purpose pursuant to Section 301,
and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.


 


Except
as otherwise specified as contemplated by Section 301, no payment of
principal, premium or interest on Bearer Securities shall be made at any office
or agency of the Company in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank
located in the United States; PROVIDED, HOWEVER, payment of principal of and
any premium and interest in U.S. dollars (including Additional Amounts payable
in respect thereof) on any Bearer Security may be made at the Corporate Trust
Office or any office or agency designated by the Company if (but only if)
payment of the full amount of such principal, premium, interest or Additional
Amounts at all offices outside the United States maintained for the purpose by
the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.


 


The
Company may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; PROVIDED, HOWEVER, that no such designation or rescission shall
in any manner relieve the Company of their obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency. Unless otherwise specified as contemplated by Section 301,
the Company hereby designates as the Place of Payment for each series the Corporate
Trust Office of the Trustee. Pursuant to Section 301(9) of this
Indenture, the Company may subsequently appoint a place or places where such
Securities may be payable.


 


45














 


Section 1003. Money For Securities Payments to Be Held in Trust.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Except
as otherwise provided hereby or pursuant hereto, any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of (and premium, if any) or interest and Additional
Amounts on any Security of any series and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security or any Coupon appertaining thereto shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper in each Place of Payment for such
series or to be mailed to Holders of Registered Securities for such series, or
both, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication
or mailing nor shall it be later than two years after such principal (and
premium, if any) or interest has become due and payable, any unclaimed balance
of such money then remaining will be repaid to the Company.


 


46

















 


Section 1004. Additional Amounts.


 


If
any Securities of a series provide for the payment of Additional Amounts, the
Company agrees to pay to the Holder of any such Security of any such series or
any Coupon appertaining thereto Additional Amounts as provided therein.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of (or premium, if any) or interest on, or in respect of, any
Security of any series or any related Coupon or the net proceeds received on
the sale or exchange of any Security of any series, such mention shall be
deemed to include mention of the payment of Additional Amounts provided by the
terms of such series established hereby or pursuant hereto to the extent that,
in such context, Additional Amounts are, were or would be payable in respect
thereof pursuant to such terms and express mention of the payment of Additional
Amounts (if applicable) in any provisions hereof shall not be construed as
excluding Additional Amounts in those provisions hereof where such express
mention is not made.


 


Except
as otherwise provided herein or pursuant hereto, if the Securities of a series
provide for the Payment of Additional Amounts, at least 10 days prior to the
first Interest Payment Date with respect to such series of Securities (or if
the Securities of that series shall not bear interest prior to Maturity, the
first day on which a payment of principal (and premium, if any, is made), and
at least 10 days prior to each date of payment of principal (and premium, if
any) or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers’ Certificate, the Company will furnish
the Trustee and the principal Paying Agent or Paying Agents, if other than the
Trustee, an Officers’ Certificate instructing the Trustee and such Paying Agent
or Paying Agents whether such payment of principal (and premium, if any) of or
interest on the Securities of that series shall be made to Holders of
Securities of that series or the Coupons appertaining thereto who are United
States Aliens without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of that series. If any
such withholding shall be required, then such Officers’ Certificate shall
specify by country the amount, if any, required to be withheld on such payments
to such Holders of Securities or Coupons and the Company agrees to pay to the
Trustee or such Paying Agent the Additional Amounts required by this Section.
The Company covenants to indemnify the Trustee and any Paying Agent for, and to
hold them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers’
Certificate furnished pursuant to this Section.


 


Section 1005. Statement As To Compliance; Notice of Certain
Defaults.


 


(a)           The Company will, in addition to the
reports required by Section 704(4), deliver to the Trustee, within 120
days after the end of each fiscal year (which on the date hereof ends on December 31),
commencing December 31, 2008, a written statement, which need not comply
with Section 102, signed by the Chairman of the Board, a Deputy Chairman,
Vice Chairman, the President or a Vice President and by the Treasurer or an
Assistant Treasurer of the Company, stating, as to each signer thereof, that


 


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


 


(2)                                  to the best of his knowledge, based on such
review, (a) the Company has fulfilled all of its obligations under this
Indenture throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to him
and the nature and status thereof, and (b) no event has occurred and is
continuing which is, or after notice or lapse of time or both would become, an
Event of Default, or, if such an event has occurred and is continuing,
specifying each such event known to him and the nature and status thereof.


 


(b)           The Company will deliver to the
Trustee as soon as possible, and in any event, within five days after the
occurrence thereof, written notice of any event which after notice or lapse of
time or both would become an Event of Default.


 


47

















 


Section 1006. Payment of Taxes and Other Claims.


 


The
Company will pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the
income, profits or property of the Company or any Subsidiary, and (2) all
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Company or any subsidiary; PROVIDED,
HOWEVER, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.


 


Section 1007. Corporate Existence.


 


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


 


Section 1008. Waiver of Certain Covenants.


 


The
Company may omit in any particular instance to comply with any term, provision
or condition set forth in Section 1006 with respect to the Securities of
any series if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities of such series
shall, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.


 


Section 1009. Calculation of Original Issue Discount.


 


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


 


ARTICLE ELEVEN


 


REDEMPTION OF SECURITIES


 


Section 1101. Applicability of Article.


 


Redemption
of Securities of any series at the option of the Company as permitted or
required by the terms of such Securities shall be made in accordance with the
terms of such Securities and (except as otherwise provided herein or pursuant
hereto) this Article.


 


Section 1102. Election To Redeem; Notice To Trustee.


 


The
election of the Company to redeem any Securities shall be evidenced by Board
Resolution. In case of any redemption at the election of the Company of the
Securities of any series, with the same issue date, interest rate and Stated
Maturity, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal
amount of Securities of such series to be redeemed.


 


48

















 


Section 1103. Selection By Trustee of Securities To Be Redeemed.


 


If
less than all the Securities of any series with the same issue date, interest
rate, Stated Maturity and other terms are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions of the principal amount of Registered Securities of such series;
PROVIDED, HOWEVER, that no such partial redemption shall reduce the portion of
the principal amount of a Registered Security of such series not redeemed to
less than the minimum denomination for a Security of such series established
herein pursuant hereto.


 


If
any Convertible Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed
(so far as may be) to be the portion selected for redemption. Securities which
have been converted during a selection of Securities to be redeemed shall be
treated by the Trustee as Outstanding for the purpose of such selection.


 


The
Trustee shall promptly notify the Company and the Security Registrar (if other
than itself) in writing of the Securities selected for redemption and, in the
case of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.


 


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


 


Section 1104. Notice of Redemption.


 


Notice
of redemption shall be given in the manner provided in Section 106, not
less than 30 nor more than 60 days prior to the Redemption Date, unless a
shorter period is specified in the Securities to be redeemed, to the Holders of
Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.


 


Any
notice that is mailed to the Holder of any Registered Securities in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not such Holder receives the notice.


 


All
notices of redemption shall state:


 


(1)                                 the Redemption Date,


 


(2)                                 the Redemption Price,


 


(3)                                 if less than all outstanding Securities of
any series are to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Securities to be redeemed,


 


(4)                                 in case any Registered Security is to be
redeemed in part only, the notice which relates to such Security shall state
that on and after the Redemption Date, upon surrender of such Security, the
Holder of such Security will receive, without charge, a new Registered Security
or Registered Securities of authorized denominations for the principal amount
thereof remaining unredeemed,


 


(5)                                 in the case of Convertible Securities, the
Conversion Price then in effect, the date on which the right to convert the
principal amount of the Securities or the portions thereof to be redeemed will
terminate and the place or places where such Securities may be surrendered for
conversion,


 


49

















 


(6)                                 that on the Redemption Date the Redemption
Price will become due and payable upon each such Security to be redeemed only,
as to Bearer Securities, against tender of such Security and any Coupons
appertaining thereto, and, if applicable, that interest thereon and Additional
Amounts, if any, shall cease to accrue on and after said date,


 


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


 


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


 


(9)                                 the CUSIP number, if any.


 


A
notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.


 


Notice
of redemption of Securities to be redeemed at the election of the Company shall
be given by the Company or, at the Company’s request, by the Trustee in the
name and at the expense of the Company.


 


Section 1105. Deposit of Redemption Price.


 


On
or prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on and any Additional
Amounts with respect thereto, all the Securities or portions thereof which are
to be redeemed on that date.


 


If
any Convertible Security or portion thereof called for redemption is converted
pursuant to Article Fifteen, any money deposited with the Trustee or so
segregated and held in trust for the redemption of such Security or portion
thereof shall (subject to any right of the Holder of the Security on a Regular
Record Date preceding such conversion to receive interest) be paid to the
Company upon Company Request or, if then held by the Company, shall be
discharged from such trust.


 


Section 1106. Securities Payable on Redemption Date.


 


Notice
of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest and the Coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest (or
any Additional Amounts) to the Redemption Date; PROVIDED, HOWEVER, that installments
of interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only upon presentation and surrender of
coupons for such interest (at an office or agency located outside the United
States except as otherwise provided in Section 1002), and PROVIDED,
FURTHER, that installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
at the close of business on the Regular Record Dates according to their terms
and the provisions of Section 308.


 


If
any Bearer Security surrendered for redemption shall not be accompanied by all
appurtenant Coupons maturing after the Redemption Date, such Security may be
paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing Coupons, or the surrender of such missing Coupon or
Coupons may be waived by the Company and the Trustee if there be furnished to
them such Security or


 


50

















 


indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; PROVIDED,
HOWEVER, that interest (or any Additional Amounts) represented by Coupons shall
be payable only upon presentation and surrender of those Coupons at an office
or agency located outside of the United States except as otherwise provided in Section 1002.


 


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


 


Section 1107. Securities Redeemed in Part.


 


Any
Registered Security which is to be redeemed only in part shall be surrendered
at any office or agency of the Company maintained for that purpose pursuant to Section 1002
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing) and the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Registered
Security or Securities of the same series, containing identical terms and
provisions, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered. If a Security in global form
is so surrendered, the Company shall execute, and the Trustee shall
authenticate and deliver to the U.S. Depository or other depository for such
Security in global form as shall be specified in the Company Order with respect
thereto to the Trustee, without service charge, a new Security in global form
in a denomination equal to and in exchange for the unredeemed portion of the
principal of the Security in global form so surrendered.


 


Section 1108. Conversion Arrangements on Call for Redemption.


 


Notwithstanding
anything to the contrary contained in this Indenture, in connection with any
redemption of Convertible Securities of any series, the Company, by an
agreement with one or more investment bankers or other purchasers, may arrange
for such purchasers to purchase all such Convertible Securities called for
redemption (the “Called Securities”) which are either (i) surrendered for
redemption or (ii) not duly surrendered for redemption or conversion prior
to the close of business on the Redemption Date, and to convert the same into
shares of Common Stock, by the purchasers’ depositing with the Trustee (acting
as Paying Agent with respect to the deposit of such amount and as conversion
agent with respect to the conversion of such Called Securities), in trust for
the Holders of the Called Securities, on or prior to the Redemption Date in the
manner agreed to by the Company and such purchasers, an amount sufficient to
pay the Redemption Price, payable by the Company on redemption of such Called
Securities. In connection with any such arrangement for purchase and
conversion, the Trustee as Paying Agent shall pay on or after the Redemption
Date such amounts so deposited by the purchasers in exchange for Called
Securities surrendered for redemption prior to the close of business on the
Redemption Date and for all Called Securities surrendered after such Redemption
Date. Notwithstanding anything to the contrary contained in this Article Eleven,
the obligation of the Company to pay the Redemption Price of such Called
Securities shall be satisfied and discharged to the extent such amount is so
paid by such purchasers. However, nothing in this Section 1108 shall in
any way relieve the Company of the obligation to pay such Redemption Price on
all Called Securities to the extent such amount is not so paid by said
purchasers. For all purposes of this Indenture, any Called Securities
surrendered by the Holders for redemption, and any Called Securities not duly
surrendered for redemption or conversion prior to the close of business on the
Redemption Date, shall be deemed acquired by such purchasers from such Holders
and surrendered by such purchasers for conversion and shall in all respects be
deemed to have been converted, all as of immediately prior to the close of
business on the Redemption Date, subject to the deposit by the Purchasers of
the above amount as aforesaid. Nothing in this Section 1108 shall in any
way limit the right of any Holder of a Security to convert his Security
pursuant to the terms of this Indenture and of such Security at any time prior
to the close of business on the Redemption Date applicable thereto.


 


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ARTICLE TWELVE


 


SINKING FUNDS


 


Section 1201. Applicability of Article.


 


The
provisions of this Article shall be applicable to any sinking fund for the
retirement of Securities of a series, except as otherwise permitted or required
by any form of Security of such series issued pursuant to this Indenture.


 


The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a “mandatory sinking fund
payment”, and any payment in excess of such minimum amount provided for by the
terms of Securities of such series is herein referred to as an “optional
sinking fund payment”. If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to
the redemption of Securities of any series as provided for by the terms of
Securities of such series.


 


Section 1202. Satisfaction of Sinking Fund Payments With
Securities.


 


The
Company may, in satisfaction of all or any part of any sinking fund payment
with respect to the Securities of such series to be made pursuant to the terms
of such Securities as provided for by the terms of such series (1) deliver
Outstanding Securities of such series (other than any of such Securities
previously called for redemption or any of such Securities in respect of which
cash shall have been released to the Company), together in the case of any
Bearer Securities of such series with all unmatured Coupons appertaining
thereto, and (2) apply as a credit Securities of such series which have
been redeemed either at the election of the Company pursuant to the terms of
such series of Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, PROVIDED that
such series of Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be
reduced accordingly. If as a result of the delivery or credit of Securities of
any series in lieu of cash payments pursuant to this Section 1202, the
principal amount of Securities of such series to be redeemed in order to
exhaust the aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such series for redemption, except upon Company
Request, and such cash payment shall be held by the Trustee or a Paying Agent and
applied to the next succeeding sinking fund payment, PROVIDED, HOWEVER, that
the Trustee or such Paying Agent shall at the request of the Company from time
to time pay over and deliver to the Company any cash payment so being held by
the Trustee or such Paying Agent upon delivery by the Company to the Trustee of
Securities of that series purchased by the Company having an unpaid principal
amount equal to the cash payment requested to be released to the Company.


 


Section 1203. Redemption of Securities For Sinking Fund.


 


Not
less than 75 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers’ Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting of Securities of that
series pursuant to Section 1202, and the optional amount, if any, to be
added in cash to the next ensuing mandatory sinking fund payment, and will also
deliver to the Trustee any Securities to be so credited and not theretofore
delivered. If such Officers’ Certificate shall specify an optional amount to be
added in cash to the next ensuing mandatory sinking fund payment, the Company
shall thereupon be obligated to pay the amount therein specified. Not less than
60 days before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner


 


52

















 


provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 1106 and 1107.


 


ARTICLE THIRTEEN


 


REPAYMENT AT THE OPTION OF HOLDERS


 


Section 1301. Applicability of Article.


 


Securities
of any series which are repayable at the option of the Holders thereof before
their Stated Maturity shall be repaid in accordance with the terms of the
Securities of such series. The repayment of any principal amount of Securities
pursuant to such option of the Holder to require repayment of Securities before
their Stated Maturity, for purposes of Section 310, shall not operate as a
payment, redemption or satisfaction of the indebtedness represented by such
Securities unless and until the Company, at its option, shall deliver or
surrender the same to the Trustee with a directive that such Securities be
cancelled. Notwithstanding anything to the contrary contained in this Article Thirteen,
in connection with any repayment of Securities, the Company may arrange for the
purchase of any Securities by an agreement with one or more investment bankers
or other purchasers to purchase such Securities by paying to the Holders of
such Securities on or before the close of business on the repayment date an
amount not less than the repayment price payable by the Company on repayment of
such Securities, and the obligation of the Company to pay the repayment price
of such Securities shall be satisfied and discharged to the extent such payment
is so paid by such purchasers.


 


ARTICLE FOURTEEN


 


MEETINGS OF HOLDERS


 


Section 1401. Purposes For Which Meetings May Be Called.


 


A
meeting of Holders of Securities of such series may be called at any time and
from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.


 


Section 1402. Call, Notice and Place of Meetings.


 


(a)           The Trustee may at any time call a
meeting of Holders of Securities of any series for any purpose specified in Section 1401,
to be held at such time and at such place in the Principle Office of the
Trustee, or, if Securities of such series are to be issued as Bearer
Securities, in London, as the Trustee shall determine. Notice of every meeting
of Holders of Securities of any series, 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 given, in the manner provided in Section 106, not less
than 21 nor more than 180 days prior to the date fixed for the meeting.


 


(b)           In case at any time the Company,
pursuant to Board Resolution, or the Holders of at least 10% in principal
amount of the Outstanding Securities of any series shall have requested the
Trustee to call a meeting of the Holders of Securities of such series for any
purpose specified in Section 1401, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have made the first publication of the notice of such meeting
within 21 days after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company or the
Holders of Securities of such series in the amount above specified, as the case
may be, may determine the time and the place for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in subsection (a) of
this Section.


 


53

















 


Section 1403. Persons Entitled To Vote At Meetings.


 


To
be entitled to vote at any meeting of Holders of Securities of any series, a
Person shall be (1) a Holder of one or more Outstanding Securities of such
series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.


 


Section 1404. Quorum; Action.


 


The
Persons entitled to vote a majority in principal amount of the Outstanding
Securities of a series shall constitute a quorum for a meeting of Holders of
Securities of such series. In the absence of a quorum within 30 minutes after
the time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the 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 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 1402 (a), 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 Outstanding Securities of such series which shall constitute a
quorum.


 


Except
as limited by the proviso to Section 902, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
PROVIDED, HOWEVER, that, except as limited by the proviso to Section 902,
any resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the
Holders of such specified percentage in principal amount of the Outstanding
Securities of that series.


 


Any
resolution passed or decision taken at any meeting of Holders of Securities of
any series duly held in accordance with this Section shall be binding on
all the Holders of Securities of such series and the Coupons appertaining
thereto, whether or not present or represented at the meeting.


 


Section 1405. Determination of Voting Rights; Conduct and
Adjournment of Meetings.


 


(a)           Notwithstanding any other provisions
of this Indenture, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Holders of Securities of such series in
regard to proof of the holding of Securities of such series and of the
appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Securities shall
be proved in the manner specified in Section 104 and the appointment of
any proxy shall be proved in the manner specified in Section 104 or by
having the signature of the person executing the proxy witnessed or guaranteed
by any trust company, bank or banker authorized by Section 104 to certify
to the holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid
and genuine without the proof specified in Section 104 or other proof.


 


(b)           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 Holders of Securities as provided
in Section 1402(b), in which case the Company or the Holders of Securities
of the series calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of


 


54

















 


the meeting shall be elected by vote of the
Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting.


 


(c)           At any meeting each Holder of a
Security of such series or proxy shall be entitled to one vote for each $1,000
principal amount of Securities of such series held or represented by him;
PROVIDED, HOWEVER, that no vote shall be cast or counted at any meeting in
respect of any 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, except as a Holder of a Security of such series or proxy.


 


(d)           Any meeting of Holders of Securities
of any series duly called pursuant to Section 1402 at which a quorum is
present may be adjourned from time to time by Persons entitled to vote a
majority in principal amount of the Outstanding Securities of such series
represented at the meeting; and the meeting may be held as so adjourned without
further notice.


 


Section 1406. Counting Votes and Recording Action of Meetings.


 


The
vote upon any resolution submitted to any meeting of Holders of Securities of
any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series 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, at least in triplicate, of the proceedings of each meeting of Holders
of Securities of any series 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 given as provided in Section 1402
and, if applicable, Section 1404. Each copy shall be signed and verified
by the affidavits of the permanent chairman and secretary of the meeting and
one such copy shall be delivered to the Company and another 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.


 


ARTICLE FIFTEEN


 


SUBORDINATION


 


Section 1501. Securities Subordinated To Senior Indebtedness.


 


The
Company covenants and agrees, and each Holder of Securities, by its acceptance
thereof, likewise covenants and agrees, that the indebtedness evidenced by the
Securities and the payment of the principal of (and premium, if any) and
interest on and any Additional Amounts payable in respect thereof is hereby
expressly subordinated, to the extent and in the manner hereinafter set forth,
in right of payment to the prior payment in full of Senior Indebtedness.


 


Anything
in this Indenture or in the Securities of any series to the contrary
notwithstanding, the indebtedness evidenced by the Securities shall be
subordinate and junior in right of payment, to the extent and in the manner
hereinafter set forth, to all Senior Indebtedness:


 


(1)                                  In the event of any insolvency or bankruptcy
proceedings, and any receivership, liquidation, reorganization, arrangement or
other similar proceedings in connection therewith, relative to the Company or
to its property, and in the event of any proceedings for voluntary liquidation,
dissolution or other winding-up of the Company, whether or not involving
insolvency or bankruptcy, then the holders of Senior Indebtedness shall be
entitled to receive payment in full of all principal, premium and interest on
all Senior Indebtedness before the Holders of the


 


55














 


Securities
are entitled to receive any payment on account of principal, premium, if any,
interest or Additional Amounts upon the Securities, and to that end (but
subject to the power of a court of competent jurisdiction to make other
equitable provisions reflecting the rights conferred in the Securities upon
Senior Indebtedness and the Holders thereof with respect to the subordinated
indebtedness represented by the Securities and the Holders hereof by a lawful
plan of reorganization under applicable bankruptcy law) the holders of Senior
Indebtedness shall be entitled to receive for application in payment thereof
any payment or distribution of any kind or character, whether in cash or
property or securities, which may be payable or deliverable in any such proceedings
in respect of the Securities after giving effect to any concurrent payment or
distribution in respect of such Senior Indebtedness, except securities which
are subordinate and junior in right of payment to the payment of all Senior
Indebtedness then outstanding;


 


(2)                                  In the event that any Security of any series
is declared or otherwise becomes due and payable before its expressed maturity
because of the occurrence of an Event of Default hereunder (under circumstances
when the provisions of the foregoing clause (1) or the following clause (3) shall
not be applicable), the holders of Senior Indebtedness outstanding at the time
such Security so becomes due and payable because of such occurrence of an Event
of Default hereunder shall, so long as such declaration has not been rescinded
and annulled pursuant to Section 502, be entitled to receive payment in
full of all principal of, and premium and interest on, all such Senior
Indebtedness before the Holders of the Securities of such series are entitled
to receive any payment on account of principal of, premium, if any, or interest
and Additional Amounts on the Securities of such series. However, nothing
herein shall prevent the Holders of Securities from seeking any remedy allowed
at law or at equity so long as any judgment or decree obtained thereby makes
provision for enforcing this clause; and


 


(3)                                  In the event that any default shall occur and
be continuing with respect to any Senior Indebtedness permitting the holders of
such Senior Indebtedness to accelerate the maturity thereof, if either


 


(A)                              notice of such default, in writing or by telegram, shall have been
given to the Company and to the Trustee, provided that judicial proceedings
shall be commenced in respect of such default within 180 days in the case of a
default in payment of principal or interest and within 90 days in the case of
any other default after the giving of such notice, and provided further that
only one such notice shall be given pursuant to this Section 1601(3) in
any twelve months period, or


 


(B)                                judicial proceedings shall be pending in respect of such default, the
Holders of the Securities and the Trustee for their benefit shall not be
entitled to receive any payment on account of principal, premium, if any, or
interest and Additional Amounts thereon (including any such payment which would
cause such default) unless payment in full of all principal of, and premium and
interest on, such Senior Indebtedness shall have been made or provided for. The
Trustee, forthwith upon receipt of any notice received by it pursuant to this Section 1601(3),
shall, as soon as practicable, send a notice thereof to each Holder of
Securities at the time outstanding as the names and addresses of such Holders
appear on the Security Register.


 


In
case despite the foregoing provisions, any payment or distribution shall, in
any such event, be paid or delivered to any Holder of the Securities or to the
Trustee for their benefit before all Senior Indebtedness shall have been paid
in full, such payment or distribution shall be held in trust for and so paid
and delivered to the holders of Senior Indebtedness (or their duly authorized
representatives) until all Senior Indebtedness shall have been paid in full.


 


The
Company shall give written notice to the Trustee within five days after the
occurrence of any insolvency, bankruptcy, receivership, liquidation,
reorganization, arrangement or similar proceeding of the


 


56

















 


Company within the meaning of this Section 1601.
Upon any payment or distribution of assets of the Company referred to in this Article Fifteen,
the Trustee, subject to the provisions of Section 315(a) through 315(b) of
the Trust Indenture Act, and the Holders of the Securities shall be entitled to
rely upon a certificate of the trustee in bankruptcy, receiver, assignee for
the benefit of creditors or other liquidating agent making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article Fifteen.


 


The
Trustee shall be entitled to conclusively rely on the delivery to it of a
written notice by a person representing himself to be a holder of Senior
Indebtedness (or a trustee or agent on behalf of such holder) to establish that
such notice has been given by a holder of Senior Indebtedness (or a trustee or
agent on behalf of any such holder). In the event that the Trustee determines,
in good faith, that further evidence is required with respect to the right of
any person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Section 1601, the Trustee may request such
person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Indebtedness held by such person, as to the extent to
which such person is entitled to participate in such payment or distribution,
and as to other facts pertinent to the rights of such person under this Section 1601,
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 1502. Subrogation.


 


Subject
to the payment in full of all Senior Indebtedness to which the indebtedness
evidenced by the Securities is in the circumstances subordinated as provided in
Section 1601, the Holders of the Securities shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to such
Senior Indebtedness until all amounts owing on the Securities shall be paid in
full. As between the Company, its creditors other than holders of such Senior
Indebtedness, and the Holders of the Securities, no such payment or distribution
made to the holders of such Senior Indebtedness by virtue of this Article Fifteen
which otherwise would have been made to the Holders of the Securities shall be
deemed to be a payment by the Company on account of such Senior Indebtedness,
it being understood that the provisions of this Article Fifteen are and
are intended solely for the purpose of defining the relative rights of the
Holders of the Securities on the one hand, and the holders of the Senior
Indebtedness, on the other hand.


 


Section 1503. Obligation Of Company Unconditional.


 


Nothing
contained in this Article Fifteen or elsewhere in this Indenture or in the
Securities,


 


(1)                                  is intended to or shall impair as between its
creditors other than the holders of Senior Indebtedness and the Holders of the
Securities, the obligation of the Company which is absolute and unconditional,
to pay to the Holders of the Securities the principal of (and premium, if any),
interest on, or any Additional Amounts with respect to, the Securities as and
when the same shall become due and payable in accordance with their terms, or


 


(2)                                  is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company other than
the holders of Senior Indebtedness, or


 


(3)                                  prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this Article Fifteen
of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such Upon any
payment or distribution of assets of the Company referred to in this Article Fifteen,
the Trustee and the Holders of the Securities shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which any
such dissolution, winding up, liquidation or reorganization


 


57

















 


proceeding
affecting the affairs of the Company is pending or upon a certificate of the
trustee in bankruptcy, receiver, assignee for the benefit of creditors,
liquidating trustee or agent or other person making any payment or
distribution, delivered to the Trustee or to the Holders of the Securities, for
the purpose of ascertaining the persons entitled to participate in such payment
or distribution, the holders of the Senior Indebtedness and other indebtedness
of the Company the amount thereof or payable thereon, the amount paid or
distributed thereon and all other facts pertinent thereto or to this Article Fifteen.


 


Section 1504. Payment On Securities Permitted.


 


Nothing
contained in this Article Fifteen or elsewhere in this Indenture, or in
any of the Securities, shall affect the obligation of the Company to make, or
prevent the Company from making payment of the principal of (or premium, if
any), interest or any Additional Amounts on the Securities in accordance with
the provisions hereof and thereof, except as otherwise provided in this Article Fifteen.


 


Section 1505. Effectuation Of Subordination by Trustee.


 


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


 


Section 1506. Knowledge Of Trustee.


 


Notwithstanding
the provisions of this Article Fifteen or any other provisions of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment of monies to or by the
Trustee, or the taking of any other action by the Trustee, unless and until the
Trustee shall have received written notice thereof from the Company, any Holder
of the Securities, any paying agent of the Company or the holder or
representative of any class of Senior Indebtedness.


 


Section 1507. Trustee’s Relation To Senior Indebtedness.


 


Except
as otherwise provided in the Trust Indenture Act, the Trustee shall be entitled
to all the rights set forth in this Article Fifteen with respect to any
Senior Indebtedness at the time held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder. Notwithstanding anything in this
Indenture or in the Securities of any series, nothing in this Article Fifteen
shall apply to or limit claims of or payment to the Trustee under or pursuant
to Sections 506 and 606.


 


With
respect to holders of Senior Indebtedness, the Trustee undertakes to perform or
to observe only such of its covenants and obligations as are specifically set
forth in this Article Fifteen, and no implied covenants or obligations
with respect to the holders of Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness and the Trustee shall not
be liable to any holder of Senior Indebtedness if it shall pay over or deliver
to Holders, the Company or any other Person monies or assets to which any
holder of Senior Indebtedness shall be entitled by virtue of this Article Fifteen
or otherwise.


 


No
recourse may be taken with respect to the obligations of the Issuer or the
Trustee against the Trustee in its individual capacity.


 


Section 1508. Rights Of Holders Of Senior Indebtedness Not
Impaired.


 


No
right of any present or future holder of any Senior Indebtedness to enforce the
subordination herein shall at any time or in any way be prejudiced or impaired
by any act or failure to act on the part of the Company


 


58

















 


or by any non-compliance by the Company with
the terms, provisions or covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.


 


ARTICLE SIXTEEN


 


CONVERSION


 


Section 1601. Conversion Privilege.


 


Subject
to and upon compliance with the provisions of this Article Fifteen and the
terms of the Convertible Securities of the series proposed to be converted, at
the option of the Holder, any Convertible Security or any portion of the
principal amount thereof which is $1,000 or an integral multiple thereof, may
be converted into shares of Common Stock, as said shares shall be constituted
at the Date of Conversion, at the Conversion Price for such Convertible
Securities of such series in effect at the Date of Conversion.


 


Section 1602. Manner of Exercise of Convertible Privilege.


 


In
order to exercise the conversion privilege, the Holder of any Convertible
Security to be converted shall surrender such Convertible Security to the
Company at its office or agency, together with the conversion notice in the
form provided on the Securities (or separate written notice) duly executed,
and, if so required by the Company, accompanied by instruments of transfer, in
form satisfactory to the Company and to the Trustee, duly executed by the
Holder or by his duly authorized attorney in writing. Any Registered
Convertible Security so surrendered during the period from the close of
business on the Regular Record Date preceding an Interest Payment Date for such
Registered Convertible Security to the opening of business on such Interest
Payment Date shall (unless any such Registered Convertible Security or the
portion thereof being converted shall have been called for redemption on a
Redemption Date during such period, in which event no interest shall be payable
with respect to such Registered Convertible Security or portion thereof, as the
case may be, following such Redemption Date) also be accompanied by payment in
Clearing House funds or other funds acceptable to the Company of an amount
equal to the interest payable on such Interest Payment Date on the principal
amount of such Registered Convertible Security then being converted; provided,
however, that no such payment need be made if there shall exist, at the time of
conversion, a default in the payment of interest on the Convertible Securities
of such series. Except as provided in the immediately preceding sentence, no
adjustment shall be made for interest accrued on any Convertible Security that
shall be converted or for dividends on any shares of Common Stock that shall be
delivered upon the conversion of such Convertible Securities. The funds so
delivered to such office or agency shall be paid to the Company on or after
such Interest Payment Date, unless the Company shall default in the payment of
the interest due on such Interest Payment Date, in which event such funds shall
be repaid to the Person who delivered the same. As promptly as practicable
after the surrender of any Convertible Security for conversion as aforesaid,
the Company shall deliver at said office or agency to such Holder, or on his written
order, a certificate or certificates for the number of full shares deliverable
upon the conversion of such Convertible Security or portion thereof and a check
or cash in respect of any fraction of a share of Common Stock otherwise
deliverable upon such conversion, all as provided in this Article Fifteen,
together with a Convertible Security or Convertible Securities of the same
series in principal amount equal to the unconverted and unredeemed portion, if
any, of the Convertible Security so converted in accordance with Section 306
hereof. Such conversion shall be deemed to have been effected on the date on
which such notice shall have been received at said office or agency and such
Convertible Security shall have been surrendered as aforesaid, and the Person
or Persons in whose name or names any certificate or certificates for shares of
Common Stock shall be deliverable upon such conversion shall be deemed to have
become on said date the Holder or Holders of record of the shares represented
thereby, provided, however, that any such surrender on any date when the stock


 


59

















 


transfer books of the Company shall be closed
shall constitute the Person or Persons in whose name or names the certificates
are to be delivered as the record Holder or Holders thereof for all purposes on
the next succeeding day on which such stock transfer books are open, but such
conversion shall be at the Conversion Price in effect on the date of such
surrender.


 


Section 1603. Cash Adjustment Upon Conversion.


 


The
Company shall not be required to deliver fractions of shares of Common Stock
upon conversions of Convertible Securities. If more than one Convertible
Security shall be surrendered for conversion at one time by the same Holder,
the number of full shares which shall be deliverable upon conversion thereof
shall be computed on the basis of the aggregate principal amount of the
Securities so surrendered. If any fractional interest in a share of Common
Stock would be deliverable upon the conversion of any Convertible Security or
Securities, the Company shall make an adjustment therefor in cash equal to the
current market value of such fractional interest computed to the nearest cent
either on the basis of the last reported sale price regular way of the Common
Stock on the Nasdaq Global Select Market (or, if not listed on the Nasdaq
Global Select Market, then on such other exchange on which the shares of Common
Stock are listed as the Company may designate) on the last Business Day prior
to the Date of Conversion or, if there shall not have been a sale on such last
Business Day, on the basis of the average of the bid and asked quotations
therefor on such exchange on such last Business Day or, if the Common Stock
shall not then be listed on any exchange, at the highest bid quotation in the
over-the- counter market on such last Business Day as reported by the National
Association of Securities Dealers through NASDAQ, its automated system for
reporting quotes, or its successor or such other generally accepted source of
publicly reported bid and asked quotations as the Company may reasonably
designate.


 


Section 1604. Conversion Price.


 


The
Conversion Price applicable to any series of Convertible Securities shall be
the initial Conversion Price set forth on the Officers’ Certificate or
supplemental indenture establishing such series adjusted as provided in this Article Fifteen.


 


Section 1605. Adjustment of Conversion Price.


 


The
Conversion Price applicable to any series of Convertible Securities shall be
adjusted from time to time as follows:


 


(a)           In case the Company shall, at any
time or from time to time while the Securities of any series are outstanding, (i) pay
a dividend on its Common Stock in shares of Common Stock, (ii) subdivide
its outstanding shares of Common Stock into a larger number of shares, or (iii) combine
its outstanding Common Stock into a smaller number of shares, the Conversion
Price for such series in effect immediately prior thereto shall be adjusted so
that the Holder of any Security of such series thereafter surrendered for
conversion shall be entitled to receive the number of shares of Common Stock or
other securities of the Company which he would have owned or have been entitled
to receive after the happening of any of the events described above, had such
Convertible Security of such series been converted immediately prior to the
happening of such event. An adjustment made pursuant to this subdivision (a) shall
become effective, in the case of a dividend, on the payment date retroactively
to immediately after the opening of business on the day following the record
date for the determination of shareholders entitled to receive such dividend,
subject to the provisions of paragraph (g) of this Section 1605, and
shall become effective in the case of a subdivision or combination immediately
after the opening of business on the day following the day when such
subdivision or combination, as the case may be, becomes effective.


 


(b)           In case the Company shall, at any
time or from time to time while the Convertible Securities of any series are
outstanding, issue rights or warrants to all holders of its shares of Common
Stock entitling them (for a period expiring within 45 days of the record date
mentioned below) to subscribe for or purchase shares of Common Stock at a price
per share less than the current market price per share of Common Stock (as
defined in paragraph (d) below) at such record date, the Conversion Price
of any series of Convertible Securities in effect


 


60

















 


immediately prior to the issuance of such
rights or warrants shall be adjusted as follows: the number of shares of Common
Stock into which $1,000 principal amount of Convertible Securities of such
series was theretofore convertible shall be multiplied by a fraction, of which
the numerator shall be the number of shares of Common Stock outstanding
immediately prior to such record date plus the number of additional shares of
Common Stock offered for subscription or purchase, and of which the denominator
shall be the number of shares of Common Stock outstanding immediately prior to
such record date plus the number of shares which the aggregate offering price
of the total number of shares so offered would purchase at such current market
price; and the Conversion Price for such series of Convertible Securities shall
be adjusted by dividing $1,000 by the new number of shares into which $1,000
principal amount of Securities of such series shall be convertible as
aforesaid. Such adjustment shall become effective on the date of such issuance
retroactively to immediately after the opening of business on the day following
the record date for the determination of shareholders entitled to receive such
rights or warrants, subject to the provisions of paragraph (g) of this Section 1605.
In determining whether any rights or warrants entitle the holders to subscribe
for or purchase shares of Common Stock at less than such current market price,
and in determining the aggregate offering price of such shares, there shall be
taken into account any consideration received by the Company for such rights or
warrants, the value of such consideration, if other than cash, to be determined
by the Board of Directors.


 


(c)           In case the Company shall, at any time
from time to time while the Convertible Securities of any series are
outstanding, distribute to all holders of shares of its Common Stock evidences
of its indebtedness or securities or assets (excluding cash dividends or cash
distributions payable out of consolidated net earnings or retained earnings) or
rights or warrants to subscribe for shares of Common Stock at a price per share
less than the current market price per share of Common Stock, determined in the
manner set forth in paragraph (d) below, but excluding rights or warrants
referred to in paragraph (b) above, the Conversion Price for such series
of Convertible Securities in effect immediately prior to such distribution
shall be adjusted by multiplying the number of shares of Common Stock into which
$1,000 principal amount of Convertible Securities of such series of Convertible
Securities was theretofore convertible by a fraction, of which the numerator
shall be the current market price per share of Common Stock (as defined in
paragraph (d) below) on the record date for such distribution, and of
which the denominator shall be such current market price per share of the
Common Stock, less the then fair market value (as determined by the Board of
Directors of the Company, whose determination shall be conclusive) of the
portion of such evidences of indebtedness, securities or assets or of such
subscription rights or warrants so distributed applicable to one share of
Common Stock; and the Conversion Price for such series of Convertible
Securities shall be adjusted by dividing $1,000 by the new number of shares
into which $1,000 principal amount of Convertible Securities of such series
shall be convertible as aforesaid. Such adjustment shall become effective on
the date of such distribution retroactively to immediately after the opening of
business on the day following the record date for the determination of
shareholders entitled to receive such distribution, subject to the provisions
of paragraph (g) of this Section 1605. For the purposes of this
paragraph (c) consolidated net earnings or retained earnings shall be
computed by adding thereto all charges against retained earnings on account of
dividends paid in shares of Common Stock in respect of which the Conversion
Price has been adjusted, all as determined by Independent Public Accountants,
whose determination shall be conclusive.


 


(d)           For the purpose of any computation
under paragraphs (b) and (c) above, the current market price per
share of Common Stock at any date shall be deemed to be the average of the
market values of the shares of Common Stock for the ten consecutive Business
Days immediately preceding the day in question. The market value of the Common
Stock for each day shall be determined as provided in Section 1603 hereof.


 


(e)           The Company may make such reductions
in the Conversion Price for any series of Convertible Securities, in addition
to those required by paragraphs (a), (b) and (c) of this Section as
it considers to be advisable in order that any event treated for Federal income
tax purposes as a dividend of stock or stock rights shall not be taxable to the
recipients.


 


(f)            Except as herein otherwise provided,
no adjustment in the Conversion Price for any series of Convertible Securities
shall be made by reason of the issuance, in exchange for cash, property or
services, of shares of Common Stock, or any securities convertible into or
exchangeable for shares of Common Stock, or carrying the right to purchase any
of the foregoing.


 


61

















 


(g)           If the Company shall take a record of
the holders of its shares of Common Stock for the purpose of entitling them to
receive any dividend or any subscription or purchase rights or any distribution
and shall, thereafter and before the distribution to shareholders of any such
dividend, subscription or purchase rights or distribution, legally abandon its
plan to pay or deliver such dividend, subscription or purchase rights or
distribution, then no adjustment of the Conversion Price for any series of
Convertible Securities shall be required by reason of the taking of such
record.


 


(h)           No adjustment in the Conversion Price
for any series of Convertible Securities shall be required unless such
adjustment would require an increase or decrease of at least 1% in such price;
provided, however, that any adjustments which by reason of this paragraph (h) are
not required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Article Fifteen shall
be made to the nearest cent or to the nearest one-hundredth of a share, as the
case may be.


 


(i)            Whenever the Conversion Price for
any series of Convertible Securities is adjusted as herein provided, the
Company shall (i) forthwith place on file at the Principal Office of the
Trustee an Officers’ Certificate showing in detail the facts requiring such
adjustment and the Conversion Price after such adjustment and shall exhibit the
same from time to time to any Holder of Convertible Securities of such series
desiring an inspection thereof, and (ii) cause a notice stating that such
adjustment has been effected and the adjusted Conversion Price to be mailed to
the Holders of Registered Convertible Securities of such series at their last
addresses as they shall appear on the Security Register.


 


(j)            The Company may delete, modify or
vary any of the provisions applicable to conversion of the Convertible
Securities of any series, or may add new provisions applicable thereto, all as
may be contained in the Board Resolutions and Officers’ Certificate or
supplemental indenture establishing such series.


 


Section 1606. Effect of Reclassifications, Consolidations, Mergers
or Sales on Conversion Privilege.


 


In
case of any reclassification or change of outstanding shares of the class of
Common Stock issuable upon conversion of the Convertible Securities (other than
a change in par value, or from par value to no par value, or from no par value
to par value, or as a result of a subdivision or combination), or in case of
any merger or consolidation of the Company with one or more other corporations
(other than a merger or consolidation in which the Company is the continuing
corporation and which does not result in any reclassification or change of
outstanding shares of Common Stock issuable upon conversion of the Securities),
or in case of the merger of the Company into another corporation, or in case of
any sale or conveyance to another corporation of the property of the Company as
an entirety or substantially as an entirety, the Holder of Convertible
Securities then outstanding shall have the right to convert such Convertible
Security into the kind and amount of shares of capital stock or other
securities and property, including cash, receivable upon such reclassification,
change, consolidation, merger, sale or conveyance by a holder of the number of
shares of Common Stock into which such Convertible Security might have been
converted immediately prior to such reclassification, change, consolidation,
merger, sale or conveyance. In any such case the Company, or such successor or
purchasing corporation, as the case may be, shall execute with the Trustee one
or more supplemental indentures (which shall conform to the Trust Indenture Act
of 1939 as in force at the date of the execution of such supplemental
indenture) containing provisions to the effect set forth above in this Section 1606
and providing further for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article Fifteen;
and any such adjustment which shall be approved by the Board of Directors and
set forth in such supplemental indenture or supplemental indentures shall be
conclusive for all purposes of this Section, and the Trustee shall not be under
any responsibility to determine the correctness of any provision contained in
such supplemental indenture or supplemental indentures relating to either the
kind or amount of shares of stock or securities or property receivable by
Holders of Securities of any series upon the conversion of their Convertible
Securities after any such reclassification, change, consolidation, merger, sale
or conveyance.


 


The
above provisions of this Section 1606 shall similarly apply to successive
reclassifications, changes, consolidations, mergers, sales and conveyances.


 


62

















 


Section 1607. Taxes on Conversions.


 


The
issue of stock certificates on conversions of Convertible Securities shall be
made without charge to the converting Holder of Convertible Securities for any
tax in respect of the issue thereof. The Company shall not, however, be
required to pay any tax which may be payable in respect of any transfer
involved in the issue and delivery of shares in any name other than that of the
Holder of any Registered Convertible Security converted, and the Company shall
not be required to issue or deliver any such stock certificate unless and until
the Person or Persons requesting the issue thereof shall have paid to the
Company the amount of such tax or shall have established to the satisfaction of
the Company that such tax has been paid.


 


Section 1608. Company to Reserve Common Stock.


 


The
Company shall at all times reserve and keep available out of the aggregate of
its authorized but unissued shares or its issued shares held in its treasury,
or both, for the purpose of effecting the conversion of the Securities, such
number of its duly authorized shares of Common Stock as shall from time to time
be sufficient to effect the conversion of all outstanding Securities.


 


If
any shares of Common Stock reserved or to be reserved for the purpose of
conversion of Securities hereunder require registration with or approval of any
governmental authority under any Federal or State law before such shares may be
validly delivered upon conversion, then the Company covenants that it will in
good faith and as expeditiously as possible endeavor to secure registration or
approval, as the case may be.


 


The
Company covenants that all shares of Common Stock which may be delivered upon
conversion of Convertible Securities shall upon delivery be fully paid and
nonassessable by the Company and free from all taxes, liens and charges with
respect to the issue or delivery thereof.


 


Section 1609. Disclaimer by Trustee of Responsibility for Certain
Matters.


 


Neither
the Trustee nor any conversion agent shall at any time be under any duty or
responsibility to any Holder of Convertible Securities of any series to
determine whether any facts exist which may require any adjustment of the
Conversion Price for such series, or with respect to the nature or extent of
any such adjustment when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in making the
same, subject, however, to the provisions of Sections 315(a) through 315(b) of
the Trust Indenture Act. Neither the Trustee nor any conversion agent shall be
accountable with respect to the validity or value (or the kind or amount) of
any shares of Common Stock, or of any securities or property which may at any
time be issued or delivered upon the conversion of any Convertible Security;
and neither of them makes any representation with respect thereto. Neither the
Trustee nor any conversion agent shall be responsible for any failure of the
Company to make any cash payment or to issue, transfer or deliver any shares of
Common Stock or stock certificates or other securities or property upon the
surrender of any Security for the purpose of conversion or, subject to Sections
315(a) through 315(b) of the Trust Indenture Act, to comply with any
of the covenants of the Company contained in this Article Sixteen.


 


Section 1610. Company to Give Notice of Certain Events.


 


In
the event:


 


(1)                                  that the Company shall pay any dividend or
make any distribution to the holders of shares of Common Stock otherwise than
in cash charged against consolidated net earnings or retained earnings of the
Company and its consolidated net earnings or retained earnings of the Company
and its consolidated subsidiaries or in Common Stock; or


 


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(2)                                  that the Company shall offer for subscription
or purchase, pro rata, to the holders of shares of Common Stock any additional
shares of stock of any class or any securities convertible into or exchangeable
for stock of any class; or


 


(3)                                  of any reclassification or change in
outstanding shares of the class of Common Stock issuable upon the conversion of
the Securities (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision or
combination), or of any merger or consolidation of the Company with, or merger
of the Company into, another corporation (other than a merger or consolidation
in which the Company is the continuing corporation and which does not result in
any reclassification or change of outstanding shares of Common Stock issuable
upon conversion of the Securities), or of any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially as
an entirety;


 


then,
and in any one or more of such events, the Company will give to the Trustee and
each conversion agent written notice thereof at least fifteen days prior to (i) the
record date fixed with respect to any of the events specified in (1) and (2) above,
and (ii) the effective date of any of the events specified in (3) above;
and shall mail promptly a copy of such notice to the Holders of Registered
Convertible Securities at their last addresses as they shall appear upon the
Security Register. Failure to give such notice, or any defect therein, shall
not affect the legality or validity of such dividend, distribution,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up.


 


* * * * *


 


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


 


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


 


	
   

  	
  SCBT
  FINANCIAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [WILMINGTON
  TRUST COMPANY],

  
	
   

  	
  not
  in its individual capacity but solely as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


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