exv4w5






Exhibit 4.5



 





ASSOCIATED BANC-CORP




TO




THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., Trustee




Form of Indenture




Dated as of                      ___, 20___




SUBORDINATED
DEBT SECURITIES



 






 









 







Certain Sections of this Indenture relating to Sections 3.10 through 3.18, inclusive, of the Trust
Indenture Act of 1939:




	 	 	 	 	 
	Trust Indenture	 	Indenture
	Act Section	 	Section
	ss. 3.10
	 	(a)(1) 	 	6.09
	 
	 	(a) (2)	 	6.09
	 
	 	(a) (3)	 	Not Applicable
	 
	 	(a) (4)	 	Not Applicable
	 
	 	(b)	 	6.08
	 
	 	 	 	6.10
	ss. 3.11
	 	(a)	 	6.13
	 
	 	(b)	 	6.13
	ss. 3.12
	 	(a)	 	7.01
	 
	 	 	 	7.02
	 
	 	(b)	 	7.02
	 
	 	(c)	 	7.02
	ss. 3.13
	 	(a)	 	7.03
	 
	 	(b)	 	7.03
	 
	 	(c)	 	7.03
	 
	 	(d)	 	7.04
	ss.  3.14
	 	(a)	 	1.01
	 
	 	(a)(4)	 	10.04
	 
	 	(b)	 	Not Applicable
	 
	 	(c)(1)	 	1.02
	 
	 	(c)(2)	 	1.02
	 
	 	(c)(3)	 	Not Applicable
	 
	 	(d)	 	Not Applicable
	 
	 	(e)	 	1.02
	ss. 3.15
	 	(a)	 	6.01
	 
	 	(b)	 	6.02
	 
	 	(c)	 	6.01
	 
	 	(d)	 	6.01
	 
	 	(e)	 	5.14
	ss. 3.16
	 	(a)	 	1.01
	 
	 	(a)(1)(A)	 	5.02
	 
	 	 	 	5.12
	 
	 	(a)(1)(B)	 	5.13
	 
	 	(a)(2)	 	Not Applicable
	 
	 	(b)	 	5.08
	 
	 	(c)	 	1.04
	ss. 3.17
	 	(a)(1)	 	5.03
	 
	 	(a)(2)	 	5.04
	 
	 	(b)	 	10.03
	ss. 3.18
	 	(a)	 	1.07





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





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	RECITALS OF THE COMPANY
	 	 	1	 
	 
	 	 	 	 
	ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
	 	 	1	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. Compliance Certificates and Opinions
	 	 	8	 
	Section 1.03. Form of Documents Delivered to Trustee
	 	 	8	 
	Section 1.04. Acts of Holders; Record Dates
	 	 	9	 
	Section 1.05. Notices, Etc., to Trustee and Company
	 	 	11	 
	Section 1.06. Notice to Holders; Waiver
	 	 	11	 
	Section 1.07. Conflict with Trust Indenture Act
	 	 	11	 
	Section 1.08. Effect of Headings and Table of Contents
	 	 	12	 
	Section 1.09. Successors and Assigns
	 	 	12	 
	Section 1.10. Separability Clause
	 	 	12	 
	Section 1.11. Benefits of Indenture
	 	 	12	 
	Section 1.12. Governing Law; Waiver of Trial by Jury
	 	 	12	 
	Section 1.13. Legal Holidays
	 	 	12	 
	 
	 	 	 	 
	ARTICLE TWO SECURITY FORMS
	 	 	13	 
	Section 2.01. Forms Generally
	 	 	13	 
	Section 2.02. Form of Face of Security
	 	 	13	 
	Section 2.03. Form of Reverse of Security
	 	 	15	 
	Section 2.04. Form of Legend for Global Securities
	 	 	19	 
	Section 2.05. Form of Trustee’s Certificate of Authentication
	 	 	20	 
	Section 2.06. Securities Issuable in the Form of a Global Security
	 	 	20	 
	 
	 	 	 	 
	ARTICLE THREE THE SECURITIES
	 	 	22	 
	Section 3.01. Amount Unlimited; Issuable in Series
	 	 	22	 
	Section 3.02. Denominations
	 	 	25	 
	Section 3.03. Execution, Authentication, Delivery and Dating
	 	 	25	 
	Section 3.04. Temporary Securities
	 	 	27	 
	Section 3.05. Registration; Registration of Transfer and Exchange
	 	 	27	 
	Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities
	 	 	28	 
	Section 3.07. Payment of Interest; Interest Rights Preserved
	 	 	29	 
	Section 3.08. Persons Deemed Owners
	 	 	30	 
	Section 3.09. Cancellation
	 	 	31	 
	Section 3.10. Computation of Interest
	 	 	32	 
	Section 3.11. CUSIP Numbers
	 	 	32	 
	Section 3.12. Further Issuances
	 	 	32	 
	 
	 	 	 	 
	ARTICLE FOUR SATISFACTION AND DISCHARGE
	 	 	32	 
	Section 4.01. Satisfaction and Discharge of Indenture
	 	 	32	 
	Section 4.02. Application of Trust Money
	 	 	33	 






i









 






	 	 	 	 	 
	ARTICLE FIVE REMEDIES
	 	 	34	 
	Section 5.01. Events of Default
	 	 	34	 
	Section 5.02. Acceleration of Maturity; Rescission and Annulment
	 	 	34	 
	Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	35	 
	Section 5.04. Trustee May File Proofs of Claim
	 	 	36	 
	Section 5.05. Trustee May Enforce Claims Without Possession of Securities
	 	 	37	 
	Section 5.06. Application of Money Collected
	 	 	37	 
	Section 5.07. Limitation on Suits
	 	 	37	 
	Section 5.08. Unconditional Right of Holders to Receive Principal, Premium and
Interest or to Convert
	 	 	38	 
	Section 5.09. Restoration of Rights and Remedies
	 	 	38	 
	Section 5.10. Rights and Remedies Cumulative
	 	 	38	 
	Section 5.11. Delay or Omission Not Waiver
	 	 	39	 
	Section 5.12. Control by Holders
	 	 	39	 
	Section 5.13. Waiver of Past Defaults
	 	 	39	 
	Section 5.14. Undertaking for Costs
	 	 	40	 
	Section 5.15. Waiver of Usury, Stay or Extension Laws
	 	 	40	 
	 
	 	 	 	 
	ARTICLE SIX THE TRUSTEE
	 	 	40	 
	Section 6.01. Certain Duties and Responsibilities
	 	 	40	 
	Section 6.02. Notice of Defaults
	 	 	41	 
	Section 6.03. Certain Rights of Trustee
	 	 	42	 
	Section 6.04. Not Responsible for Recitals or Issuance of Securities
	 	 	44	 
	Section 6.05. May Hold Securities
	 	 	44	 
	Section 6.06. Money Held in Trust
	 	 	44	 
	Section 6.07. Compensation and Reimbursement
	 	 	44	 
	Section 6.08. Conflicting Interests
	 	 	45	 
	Section 6.09. Corporate Trustee Required; Eligibility
	 	 	45	 
	Section 6.10. Resignation and Removal; Appointment of Successor
	 	 	45	 
	Section 6.11. Acceptance of Appointment by Successor
	 	 	47	 
	Section 6.12. Merger, Conversion, Consolidation or Succession to Business
	 	 	48	 
	Section 6.13. Preferential Collection of Claims Against Company
	 	 	48	 
	Section 6.14. Appointment of Authenticating Agent
	 	 	48	 
	 
	 	 	 	 
	ARTICLE SEVEN HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
	 	 	50	 
	Section 7.01. Company to Furnish Trustee Names and Addresses of Holders
	 	 	50	 
	Section 7.02. Preservation of Information; Communications to Holders
	 	 	50	 
	Section 7.03. Reports by Trustee
	 	 	51	 
	Section 7.04. Reports by Company
	 	 	51	 
	 
	 	 	 	 
	ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
	 	 	51	 
	Section 8.01. Company May Consolidate, Etc., Only on Certain Terms
	 	 	51	 
	Section 8.02. Successor Substituted
	 	 	52	 
	 
	 	 	 	 
	ARTICLE NINE SUPPLEMENTAL INDENTURES
	 	 	52	 
	Section 9.01. Supplemental Indentures Without Consent of Holders
	 	 	52	 






ii









 






	 	 	 	 	 
	Section 9.02. Supplemental Indentures with Consent of Holders
	 	 	53	 
	Section 9.03. Execution of Supplemental Indentures
	 	 	54	 
	Section 9.04. Effect of Supplemental Indentures
	 	 	55	 
	Section 9.05. Conformity with Trust Indenture Act
	 	 	55	 
	Section 9.06. Reference in Securities to Supplemental Indentures
	 	 	55	 
	Section 9.07. Notice to Holders
	 	 	55	 
	 
	 	 	 	 
	ARTICLE TEN COVENANTS
	 	 	55	 
	Section 10.01. Payment of Principal, Premium and Interest
	 	 	55	 
	Section 10.02. Maintenance of Office or Agency
	 	 	55	 
	Section 10.03. Money for Securities Payments to Be Held in Trust
	 	 	56	 
	Section 10.04. Statement by Officers as to Default
	 	 	57	 
	Section 10.05. Existence
	 	 	57	 
	Section 10.06. Maintenance of Properties
	 	 	57	 
	Section 10.07. Payment of Taxes and Other Claims
	 	 	58	 
	Section 10.08. Waiver of Certain Covenants
	 	 	58	 
	Section 10.09. Calculation of Original Issue Discount
	 	 	58	 
	 
	 	 	 	 
	ARTICLE ELEVEN ARTICLE ELEVEN REDEMPTION OF SECURITIES
	 	 	58	 
	Section 11.01. Applicability of Article
	 	 	58	 
	Section 11.02. Election to Redeem; Notice to Trustee
	 	 	59	 
	Section 11.03. Selection by Trustee of Securities to Be Redeemed
	 	 	59	 
	Section 11.04. Notice of Redemption
	 	 	59	 
	Section 11.05. Deposit of Redemption Price
	 	 	60	 
	Section 11.06. Securities Payable on Redemption Date
	 	 	60	 
	Section 11.07. Securities Redeemed in Part
	 	 	61	 
	 
	 	 	 	 
	ARTICLE TWELVE SINKING FUNDS
	 	 	61	 
	Section 12.01. Applicability of Article
	 	 	61	 
	Section 12.02. Satisfaction of Sinking Fund Payments with Securities
	 	 	61	 
	Section 12.03. Redemption of Securities for Sinking Fund
	 	 	62	 
	 
	 	 	 	 
	ARTICLE THIRTEEN DEFEASANCE AND COVENANT DEFEASANCE
	 	 	62	 
	Section 13.01. Company’s Option to Effect Defeasance or Covenant Defeasance
	 	 	62	 
	Section 13.02. Defeasance and Discharge
	 	 	62	 
	Section 13.03. Covenant Defeasance
	 	 	63	 
	Section 13.04. Conditions to Defeasance or Covenant Defeasance
	 	 	63	 
	Section 13.05. Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions
	 	 	65	 
	Section 13.06. Reinstatement
	 	 	66	 
	 
	 	 	 	 
	ARTICLE FOURTEEN SUBORDINATION OF SECURITIES
	 	 	66	 
	Section 14.01. Securities Subordinate to Senior Indebtedness
	 	 	66	 
	Section 14.02. Payment Over of Proceeds Upon Dissolution, Etc
	 	 	66	 
	Section 14.03. Prior Payment to Senior Indebtedness Upon Acceleration of Securities
	 	 	67	 
	Section 14.04. No Payment When Senior Indebtedness in Default
	 	 	68	 
	Section 14.05. Payment Permitted in Certain Situations
	 	 	69	 






iii









 






	 	 	 	 	 
	Section 14.06. Subrogation to Rights of Holders of Senior Indebtedness
	 	 	69	 
	Section 14.07. Provisions Solely to Define Relative Rights
	 	 	69	 
	Section 14.08. Trustee to Effectuate Subordination
	 	 	70	 
	Section 14.09. No Waiver of Subordination Provisions
	 	 	70	 
	Section 14.10. Notice to Trustee
	 	 	70	 
	Section 14.11. Reliance on Judicial Order or Certificate of Liquidating Agent
	 	 	71	 
	Section 14.12. Trustee Not Fiduciary for Holders of Senior Indebtedness or Entitled Persons
	 	 	71	 
	Section 14.13. Rights of Trustee as Holder of Senior Indebtedness or Entitled Person;
Preservation of Trustee’s Rights
	 	 	72	 
	Section 14.14. Article Applicable to Paying Agents
	 	 	72	 
	Section 14.15. Securities to Rank Pari Passu with All Other Securities; Payment of
Proceeds in Certain Cases
	 	 	72	 
	Section 14.16. Certain Conversions Deemed Payment
	 	 	74	 
	 
	 	 	 	 
	ARTICLE FIFTEEN CONVERSION OF SECURITIES
	 	 	74	 
	Section 15.01. Applicability of Article
	 	 	74	 
	Section 15.02. Conversion Privilege and Conversion Price
	 	 	74	 
	Section 15.03. Exercise of Conversion Privilege
	 	 	75	 
	Section 15.04. Fractions of Shares
	 	 	75	 
	Section 15.05. Adjustment of Conversion Price
	 	 	76	 
	Section 15.06. Notice of Adjustments of Conversion Price
	 	 	78	 
	Section 15.07. Notice of Certain Corporate Action
	 	 	78	 
	Section 15.08. Company to Reserve Common Stock
	 	 	79	 
	Section 15.09. Taxes on Conversions
	 	 	79	 
	Section 15.10. Covenant as to Common Stock
	 	 	79	 
	Section 15.11. Cancellation of Converted Securities
	 	 	79	 
	Section 15.12. Provisions in Case of Consolidation, Merger or Sale of Assets
	 	 	79	 
	Section 15.13. Responsibility of Trustee
	 	 	80	 







iv 











 





     INDENTURE, dated as of                      ___, 20___between Associated Banc-Corp, a corporation
duly organized and existing under the laws of the State of Wisconsin (herein called the “Company”),
having its principal office at 1200 Hansen Road, Green Bay, Wisconsin 54304, and The Bank of New
York Mellon Trust Company, N.A., a national banking association, as Trustee (herein called the
“Trustee”).



RECITALS OF THE COMPANY




     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 (herein called the “Securities”), to be issued in one or more series as in this
Indenture provided.



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



NOW, THEREFORE, THIS INDENTURE WITNESSETH:




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



ARTICLE ONE




DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION




Section 1.01. Definitions.




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



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



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



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



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



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



 









 





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



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



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



     “Bank” means (i) any institution which accepts deposits that the depositor has a legal right
to withdraw on demand and engages in the business of making commercial loans, and (ii) any trust
company.



     “Board of Directors” means either the board of directors of the Company or any duly authorized
committee of that board.



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



     “Business Day”, when used with respect to any Place of Payment, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of
Payment are authorized or obligated by law or executive order to close.



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



     “Common Stock” includes any stock of any class of the Company that has no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Company and that is not subject to redemption by the
Company. However, subject to the provisions of Section 15.12, shares issuable on conversion of
Securities shall include only shares of the class designated as Common Stock of the Company at the
date of this instrument or shares of any class or classes resulting from any reclassification or
reclassifications thereof and that have no preference in respect of dividends or of amounts payable
in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Company
and that are not subject to redemption by the Company; provided that if at any time there shall be
more than one such resulting class, the shares of each such class then so issuable shall be
substantially in the proportion that the total number of shares of such class resulting from all
such reclassifications bears to the total number of shares of all such classes resulting from all
such reclassifications.



2









 





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



     “Company Request” or “Company Order” means a written request or order signed in the name of
the Company by its Chairman of the Board, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.



     “Corporate Trust Office” means the office of the Trustee at which at any particular time its
corporate trust business shall be principally administered, which office at the date of the
execution of this instrument is located at 2 N. LaSalle Street, Suite 1020, Chicago, Illinois
60602, Attention: Corporate Trust Division – Corporate Finance Unit, or such other address as the
Trustee may designate from time to time by notice to the Company, or the principal corporate trust
office of any successor Trustee (or such other address as such successor Trustee may designate from
time to time by notice to the Company).



     “corporation” means a corporation, association, company, joint-stock company or business
trust.



     “Covenant Defeasance” has the meaning specified in Section 13.03.



     “Default” has the meaning specified in Section 5.03.



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



     “Defeasance” has the meaning specified in Section 13.02.



     “Depositary” means, unless otherwise specified by the Company pursuant to Sections 2.06 or
3.01, with respect to Securities of any series issuable or issued in whole or in part in the form
of one or more Global Securities, The Depository Trust Company, New York, New York, or any
successor thereto registered under the Exchange Act, or other applicable statue or regulation.



     “Entitled Persons” means any Person entitled to payment pursuant to the terms of “Other
Financial Obligations.”



     “Event of Default” has the meaning specified in Section 5.01.



     “Excess Proceeds” has the meaning specified in Section 14.15(c).



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



     “Expiration Date” has the meaning specified in Section 1.04.



     “Final Conversion Date”, when used with respect to any Security, means the last day on which
such Security shall be convertible into Common Stock.



3









 





     “Foreign Government Obligations” has the meaning specified in Section 13.04.



     “Global Security” means a Security that evidences all or part of the Securities of any series
which is executed by the Company and authenticated and delivered by the Trustee to the Depository
or pursuant to the Depository’s instruction, all in accordance with this Indenture and pursuant to
a Company Order, which shall be registered as to principal and interest in the name of the
Depository or its nomine.



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



     “Indenture” means this instrument as originally executed and 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, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively. The term “Indenture”
shall also include the terms of particular series of Securities established as contemplated by
Section 3.01.



     “Initial Conversion Date”, when used with respect to any Security, means the first day on
which such Security shall be convertible into Common Stock.



     “Initial Conversion Price”, when used with respect to any Security, means the price at which
the Common Stock shall be delivered upon conversion of such Security, prior to any adjustment of
such price as provided herein.



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



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



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



     “Junior Securities” has the meaning specified in Section 14.16.



     “Maturity”, when used 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, call for redemption or otherwise.



     “Officers’ Certificate” means a certificate signed by the Chairman of the Board, 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.
One of the officers signing an Officers’ Certificate given pursuant to Section 10.04 shall be the
principal executive, financial or accounting officer of the Company.



4









 





     “Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Company,
and who shall be acceptable to the Trustee.



     “Other Financial Obligations” means, unless otherwise determined with respect to any series of
Securities pursuant to Section 3.01, whether outstanding on the date of the Indenture or thereafter
created, incurred or assumed, all obligations of the Company to make payment pursuant to the terms
of financial instruments such as (i) securities contracts and foreign currency exchange contracts,
(ii) derivative instruments, such as swap agreements (including interest rate and currency and
foreign exchange rate swap agreements), cap agreements, floor agreements, collar agreements,
interest rate agreements, foreign exchange rate agreements, options, commodity futures contracts
and commodity options contracts and (iii) financial instruments similar to those set forth in (i)
or (ii) above; provided, however, that Other Financial Obligations shall not include (A)
obligations on account of Senior Indebtedness and (B) obligations on account of indebtedness for
money borrowed ranking pari passu with or subordinate to the Securities.



     “Original Issue Discount Security” means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.02.



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



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



     (2) Securities for whose payment or redemption 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; 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;



     (3) Securities as to which Defeasance has been effected pursuant to Section 13.02; and



     (4) Securities which have been paid pursuant to Section 3.06 or in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a 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 the Outstanding Securities have given, made or taken
any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as
of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed
to be Outstanding shall be the amount of the principal thereof which would be due and payable as of
such date upon acceleration of the Maturity thereof to such date pursuant to Section 5.02, (B) if,
as of such date, the principal amount payable at the Stated Maturity of a



5









 







Security is not determinable, the principal amount of such Security which shall be deemed to
be Outstanding shall be the amount as specified or determined as contemplated by Section 3.01,
(C) the principal amount of a Security denominated in one or more foreign currencies or currency
units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of
such date in the manner provided as contemplated by Section 3.01, of the principal amount of such
Security (or, in the case of a Security described in Clause (A) or (B) above, of the amount
determined as provided in such Clause), and (D) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall
be protected in relying upon any such request, demand, authorization, direction, notice, consent,
waiver or other action, 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 of such other obligor.



     “Paying Agent” means any Person authorized by the Company to pay the principal of or any
premium or interest on any Securities on behalf of the Company.



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



     “Place of Payment”, when used with respect to the Securities of any series, means the place or
places where the principal of and any premium and interest on the Securities of that series are
payable as specified as contemplated by Section 3.01.



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



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



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



     “Regular Record Date” for the interest payable on any Interest Payment Date on the Securities
of any series means the date specified for that purpose as contemplated by Section 3.01.



     “Responsible Officer”, when used with respect to the Trustee, means any trust officer or
assistant trust officer or any other officer in the corporate trust department of the Trustee
having direct responsibility for the administration of this Indenture and also means, with respect
to a



6









 







particular corporate trust matter, any other officer to whom such matter is referred because
of his knowledge of and familiarity with the particular subject.



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



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



     “Security Register” and “Security Registrar” have the respective meanings specified in Section
3.05.



     “Senior Indebtedness” means the principal of (and premium, if any) and interest on (a) all
indebtedness of the Company (including indebtedness of others guaranteed by the Company), other
than the Securities, which is (i) for money borrowed or (ii) evidenced by a note or similar
instrument given in connection with the acquisition of any businesses, properties or assets of any
kind, and (b) amendments, renewals, extensions, modifications or refundings of any such
indebtedness, unless in any case in the instrument creating or evidencing any such indebtedness or
pursuant to which the same is outstanding it is provided that such indebtedness is not superior in
right of payment to the Securities or is to rank pari passu with or subordinate to the Securities.



     “Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.07.



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



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



     “Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of
which this instrument was executed; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.



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



7









 





     “U.S. Government Obligation” has the meaning specified in Section 13.04.



     “Vice President”, when used 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”.



Section 1.02. Compliance Certificates and Opinions.




     Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall
be given in the form of an Officers’ Certificate, if to be given by an officer of the Company, or
an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the
Trust Indenture Act and any other requirements set forth in this Indenture.



     Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (except for certificates provided for in Section 10.04) shall include:



     (1) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein 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 covenant or condition 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 1.03. Form of Documents Delivered to Trustee.




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



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



8









 







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, they may,
but need not, be consolidated and form one instrument.



Section 1.04. Acts of Holders; Record Dates.




     (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders 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; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are delivered to a
Responsible Officer of the Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.



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



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



     (d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of 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, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such Security.



     (e) The Company may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or direction referred to in
the next paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders after such



9









 







record date; provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 1.06.



     (f) The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making of (i) any notice of
Default or Event of Default, (ii) any declaration of acceleration referred to in Section 5.02,
(iii) any request to institute proceedings referred to in Section 5.07(2) or (iv) any direction
referred to in Section 5.12, in each case with respect to Securities of such series. If any record
date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on
such record date, and no other Holders, shall be entitled to join in such notice, declaration,
request or direction, whether or not such Holders remain Holders after such record date; provided
that no such action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee
from setting a new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause
notice of such record date, the proposed action by Holders and the applicable Expiration Date to be
given to the Company in writing and to each Holder of Securities of the relevant series in the
manner set forth in Section 1.06.



     (g) With respect to any record date set pursuant to this Section, the party hereto which sets
such record dates may designate any day as the “Expiration Date” and from time to time may change
the Expiration Date to any earlier or later day; provided that no such change shall be effective
unless notice of the proposed new Expiration Date is given to the other party hereto in writing,
and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06, on
or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to
any record date set pursuant to this Section, the party hereto which set such record date shall be
deemed to have initially designated the 90th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the 90th day after the
applicable record date.



10









 





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



Section 1.05. 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 a Responsible Officer of the
Trustee at its Corporate Trust Office.



     (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 it at the address of its principal office specified in
the first paragraph of this instrument or at any other address previously furnished in writing to
the Trustee by the Company.



Section 1.06. Notice to Holders; Waiver.




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



     In 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.



Section 1.07. Conflict with Trust Indenture Act.




     If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act which is required under such Act to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or excludes any



11









 







provision of the Trust Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.



Section 1.08. Effect of Headings and Table of Contents.




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



Section 1.09. Successors and Assigns.




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



Section 1.10. Separability Clause.




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



Section 1.11. Benefits of Indenture.




     Nothing in this Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, the holders of Senior Indebtedness
subject to Section 14.15 Entitled Persons in respect of Other Financial Obligations and the
Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.



Section 1.12. Governing Law; Waiver of Trial by Jury.




     This Indenture and the Securities shall be governed by and construed in accordance with the
law of the State of New York. This Indenture is subject to the provisions of the Trust Indenture
Act that are required or deemed to be part of this Indenture and shall, to the extent applicable,
be governed by such provision.


EACH OF THE COMPANY AND THE TRUSTEE, AND EACH HOLDER OF A SECURITY BY ITS ACCEPTANCE THEREOF,
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT IT
MAY HAVE TO TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.




Section 1.13. Legal Holidays.




     In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security or the last date on which a Holder has the right to convert his Securities shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture
or of the Securities (other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal (and



12









 







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 on such last day for conversion, provided that no interest shall accrue with respect
to such payment for the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.



ARTICLE TWO




SECURITY FORMS




Section 2.01. Forms Generally.




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



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



Section 2.02. Form of Face of Security.




     [If the Security is an Original Issue Discount Security, insert – FOR PURPOSES OF SECTION 1273
OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED, THE ISSUE PRICE OF THIS SECURITY IS
___% OF ITS PRINCIPAL AMOUNT AND THE ISSUE DATE IS                     .]



     [Insert any additional legends required by the Internal Revenue Code and the regulations
thereunder.] THIS NOTE IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IS NOT INSURED BY THE ISSUER, ANY OF
THE ISSUER’S AFFILIATES, THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE DEPOSIT INSURANCE FUND, OR
ANY OTHER FEDERAL GOVERNMENTAL AGENCY.



13









 





ASSOCIATED BANC-CORP



CUSIP No.                     




			
	No.                     
	 	$                    






     Associated Banc-Corp, a corporation duly organized and existing under the laws of Wisconsin
(herein called the “Company”, which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to                     , or
registered assigns, the principal sum of                      Dollars on                      [if the Security
is to bear interest prior to Maturity, insert – , and to pay interest thereon from                      or
from the most recent Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on                      and                      in each year, commencing                      at the rate of
___% per annum, until the principal hereof is paid or made available for payment. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided
in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date for such interest,
which shall be the                      or                      (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture].



     [If the Security is not to bear interest prior to Maturity, insert – The principal of this
Security shall not bear interest except in the case of a default in the payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any
overdue premium shall bear interest at the rate of ___% per annum (to the extent that the payment
of such interest shall be legally enforceable), from the dates such amounts are due until they are
paid or made available for payment. Interest on any overdue principal or premium shall be payable
on demand.]



     Payment of the principal of (and premium, if any) and [if applicable, insert – any such]
interest on this Security will be made at the office or agency of the Company maintained for that
purpose in                      [insert applicable Place of Payment] in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of public and private debts
[if applicable, insert – ; provided, however, that at the option of the Company payment of interest
may be made by check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register].



     [Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day
months.]



14









 





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



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



     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.



     Dated:                                                             



	 	 	 	 	 	 	 
	 	 	ASSOCIATED BANC-CORP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 






	 	 	 
	Attest:
	 	 
	 
	 	 
	 


	 	 






Section 2.03. Form of Reverse of Security.




     This Security is one of a duly authorized issue of securities of the Company (herein called
the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of
                     (herein called the “Indenture”, which term shall have the meaning assigned to it in
such instrument), between the Company and The Bank of New York Mellon Trust Company, N.A., as
Trustee (herein called the “Trustee”, which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders
of the Securities and of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof [, limited in
aggregate principal amount to [$]                     ].



     [If applicable, insert – The Securities of this series are subject to redemption upon not less
than 30 days’ notice by mail, [if applicable, insert – (1) on                      in any year commencing
with the year ___and ending with the year ___through operation of the sinking fund for this
series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert – on or after                     , ___], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the principal amount): If
redeemed [if applicable, insert   on or before                     , ___%, and if redeemed] during the
12-month period beginning                      of the years indicated,



	 	 	 	 	 	 	 
	Year	 	Redemption Price	 	Year	 	Redemption Price
	 
	 	 	 	 	 	 




and thereafter at a Redemption Price equal to___% of the principal amount, together in the case of
any such redemption [if applicable, insert – (whether through operation of the sinking fund or




15









 







otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in the Indenture.]




     [If applicable, insert – Subject to and in compliance with the provisions of the Indenture,
the Holder of this Security is entitled, at his option, at any time on or after the opening of
business on the Initial Conversion Date and on or before the close of business on the Final
Conversion Date, or in case this Security or a portion hereof is called for redemption, then in
respect of this Security or such portion hereof until and including, but (unless the Company
defaults in making the payment due upon redemption) not after, the close of business on the
Redemption Date, to convert this Security (or any portion of the principal amount hereof which is
$1,000 or an integral multiple thereof), at the principal amount hereof, or of such portion, into
fully paid and non-assessable shares (calculated as to each conversion to the nearest 1/100 of a
share) of Common Stock of the Company at the Initial Conversion Price (or at the current adjusted
conversion price if an adjustment has been made as provided in the Indenture) by surrender of this
Security, duly endorsed or assigned to the Company or in blank, to the Company at its office or
agency in the Borough of Manhattan, The City of New York, accompanied by written notice to the
Company that the Holder hereof elects to convert this Security, or if less than the entire
principal amount hereof is to be converted, the portion hereof to be converted, and, in case such
surrender shall be made during the period from the close of business on any Regular Record Date
next preceding any Interest Payment Date (unless this Security or the portion thereof being
converted has been called for redemption on a Redemption Date within such period), also accompanied
by payment in New York Clearing House 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 this Security then
being converted. Subject to the aforesaid requirement for payment in the case of a conversion
after the Regular Record Date next preceding any Interest Payment Date and on or before such
Interest Payment Date, to the right of the Holder of this Security (or any Predecessor Security) of
record at such Regular Record Date to receive an installment of interest (with certain exceptions
provided in the Indenture), no payment or adjustment is to be made on conversion for interest
accrued hereon or for dividends on the Common Stock issued on conversion. No fractions of shares
or scrip representing fractions of shares will be issued on conversion, but instead of any
fractional interest the Company shall pay a cash adjustment as provided in the Indenture. The
conversion price is subject to adjustment as provided in the Indenture. In addition, the Indenture
provides that in case of certain consolidations or mergers to which the Company is a party or the
transfer of substantially all of the assets of the Company, the Indenture shall be amended, without
the consent of any Holders of Securities, so that this Security, if then outstanding, will be
convertible thereafter, during the period this Security shall be convertible as specified above,
only into the kind and amount of securities, cash and other property receivable upon the
consolidation, merger or transfer by a holder of the number of shares of Common Stock into which
this Security might have been converted immediately prior to such consolidation, merger or transfer
(assuming such holder of Common Stock failed to exercise any rights of election and received per
share the kind and amount received per share by a plurality of non-electing shares), assuming, if
such consolidation, merger or transfer is prior to the Initial Conversion Date, that is Security
were convertible at the time of such consolidation, merger or transfer at the Initial Conversion
Price



16









 







specified above as adjusted from the date of establishment of the Initial Conversion Price to
such time pursuant to the Indenture.]



     [If applicable, insert – The Securities of this series are subject to redemption upon not less
than 30 days’ notice by mail, (1) on                      in any year commencing with the year                      and ending
with the year ___through operation of the sinking fund for this series at the Redemption Prices
for redemption through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below, and (2) at any time [if applicable, insert – on or after
                    .], as a whole or in part, at the election of the Company, at the Redemption Prices for
redemption otherwise than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12-month period beginning
                     of the years indicated,



	 	 	 	 	 
	 	 	Redemption Price for Redemption	 	Redemption Price for Redemption
	 	 	Through Operation	 	Otherwise than Through Operation
	Year	 	of the Sinking Fund	 	of the Sinking Fund
	 
	 	 	 	 




and thereafter at a Redemption Price equal to ___% of the principal amount, together in the case of
any such redemption (whether through operation of the sinking fund or otherwise) with accrued
interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.]




     [If applicable, insert – Notwithstanding the foregoing, the Company may not, prior to ___,
redeem any Securities of this series as contemplated by [if applicable, insert – Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less than ___% per annum.]



     [If applicable, insert – The sinking fund for this series provides for the redemption on
                     in each year beginning with the year ___and ending with the year ___of [if applicable,
insert – not less than $                     (“mandatory sinking fund”) and not more than] $                     aggregate
principal amount of Securities of this series. Securities of this series acquired or redeemed by
the Company otherwise than through [if applicable, insert – mandatory] sinking fund payments may be
credited against subsequent [if applicable, insert – mandatory] sinking fund payments otherwise
required to be made [if applicable, insert – , in the inverse order in which they become due].]



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



17









 





     The Company covenants and agrees, and each Holder of a Security, by his acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner set forth in Article Fourteen
of the Indenture, the indebtedness represented by the Securities and the payment of principal of
(and premium, if any) and interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness
and Other Financial Obligations.



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



     [If the Security is not an Original Issue Discount Security, insert – If an Event of Default
(defined in the Indenture as certain events involving the bankruptcy or reorganization of the
Company) with respect to Securities of this series shall occur and be continuing, the principal of
the Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture. There is no right of acceleration of the payment of principal of the
Securities of this series upon a default in the payment of [an installment of principal of (or
premium, if any) or] interest on such Securities or in the performance of any covenant of the
Company in the Indenture or in such Securities.]



     [If the Security is an Original Issue Discount Security, insert – If an Event of Default
(defined in the Indenture as certain events involving the bankruptcy or reorganization of the
Company) with respect to Securities of this series shall occur and be continuing, an amount of
principal of the Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture. Such amount shall be equal to – insert formula for
determining the amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case to the extent that
the payment of such interest shall be legally enforceable), all of the Company’s obligations in
respect of the payment of the principal of and interest, if any, on the Securities of this series
shall terminate. There is no right of acceleration of the payment of principal of the Securities
of this series upon a default in the payment of [an installment of principal of (or premium, if
any) or] interest on such Securities or in the performance of any covenant of the Company in the
Indenture or in such Securities.]



     The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange



18









 







herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this
Security.



     No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and any premium and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed. [If applicable, insert – or to convert this Security as
provided in the Indenture.]



     As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.



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



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



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



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



     This Security shall be governed by and construed in accordance with the law of the State of
New York.



Section 2.04. Form of Legend for Global Securities.




     Unless otherwise specified as contemplated by Section 3.01 for the Securities evidenced
thereby, every Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form:



19









 





     [If the Security is a Global Security, insert – Unless this certificate is presented by an
authorized representative of The Depository Trust Company, a New York corporation (the
“Depositary”), to the Company or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of the Depositary, ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.



     UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED
HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY.]



Section 2.05. Form of Trustee’s Certificate of Authentication.




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



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



     Dated:                                                            



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON TRUST
 COMPANY, N.A., as
Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 



Section 2.06. Securities Issuable in the Form of a Global Security.





     (a) If the Company shall establish pursuant to Section 3.01 that the Securities of a
particular series are to be issued in whole or in part in the form of one or more Global
Securities, then the Company shall execute and the Trustee shall, in accordance with Section 3.03
and the Company Order delivered to the Trustee thereunder, authenticate and deliver, such Global
Security or Securities, which (i) shall represent, and shall be denominated in an amount equal to
the aggregate principal amount of, the Outstanding Securities of such series to be represented by
such Global Security or Securities, (ii) shall be registered in the name of the Depositary for such
Global Security or Securities or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary’s instruction and (iv) shall bear a legend substantially
to the following effect: “Unless and until it is exchanged in whole or in part for the individual
Securities represented hereby, this Global Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to the



20









 




Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such success Depositary.”




     (b) Notwithstanding any other provision of this Section 2.06 or of Section 3.05, unless the
terms of a Global Security expressly permit such Global Security to be exchanged in whole or in
part for individual Securities, a Global Security may be transferred, in whole but not in part and
in the manner provided in Section 3.05, only to the Depositary or another nominee of the Depositary
for such Global Security, or to a successor Depositary for such Global Security selected or
approved by the Company or to a nominee of such successor Depositary. Except as provided below,
owners of beneficial interests in a Global Security shall not be entitled to receive physical
delivery of the Securities represented by such Global Security and will not be considered the
Holders thereof for any purpose under this Indenture.



     (c) (i) If at any time the Depositary for a Global Security notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Security or if at any time the
Depositary for the Securities for such series shall no longer be eligible or in good standing under
the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, the
Company shall appoint a successor Depositary with respect to such Global Security. If a successor
Depositary for such Global Security is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Company’s election
pursuant to Section 3.01(16) shall no longer be effective with respect to such Global Security and
the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of individual Securities of such series in exchange for such Global Security, will
authenticate and deliver individual Securities of such series of like tenor and terms in definitive
form in an aggregate principal amount equal to the principal amount of the Global Security in
exchange for such Global Security.




     (ii) The Company may at any time and in its sole discretion determine that the
Securities of any series issued or issuable in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such event the
Company will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Securities of such series in exchange in whole or
in part for such Global Security, will authenticate and deliver individual Securities of
such series of like tenor and terms in definitive form in an aggregate principal amount
equal to the principal amount of such Global Security or Securities representing such series
in exchange for such Global Security or Securities.




     (iii) A Global Security will also be exchangeable if there shall have occurred or be
continuing a Default or an event which, with the giving of notice or lapse of time or both,
would constitute a Default with respect to the Securities of such series represented by such
Global Security. In such event the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of individual Securities of such series in
exchange in whole or in part for such Global Security, will authenticate and deliver
individual Securities of such series of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of such Global Security or
Securities representing such series in exchange for such Global Security or Securities.



21









 






     (iv) If specified by the Company pursuant to Section 3.01 with respect to Securities
issued or issuable in the form of a Global Security, the Depositary for such Global Security
may surrender such Global Security in exchange in whole or in part for individual Securities
of such series of like tenor and terms in definitive form on such terms as are acceptable to
the Company and such Depositary. Thereupon the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge, (1) to each Person specified by such
Depositary a new Security or Securities of the same series of like tenor and terms and of
any authorized denominations as requested by such Person or the Depositary in aggregate
principal amount equal to and in exchange for such Person’s beneficial interest in the
Global Security; and (2) to such Depositary a new Global Security of like tenor and terms
and in a denomination equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of Securities delivered to
Holders thereof.




     (v) In any exchange provided for in any of the preceding four paragraphs, the Company
will execute and the Trustee will authenticate and deliver individual fully registered
Securities in authorized denominations. Upon the exchange of a Global Security for
individual Securities, such Global Security shall be cancelled by the Trustee. Securities
issued in exchange for a Global Security pursuant to this Section 2.06 shall be registered
in such names and in such authorized denominations as the Depositary for such Global
Security, pursuant to the instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee in writing. The Trustee shall deliver such Securities
to the Persons in whose names such Securities are so registered.




     (vi) Members in and participants of the Depositary shall have no rights under the
Indenture with respect to any Global Security held on their behalf by a Depositary, and such
Depositary may be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the owner of such Global Security for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by a Depositary or impair, as between a Depositary and its members
and participants, the operation of customary practices governing the exercise of the rights
of a Holder of any Security of the series represented by such Global Security, including,
without limitation, the granting of proxies or other authorization of participants to give
or take any request, demand, authorization, direction, notice, consent, waiver or other
action which a Holder is entitled to give or take under the Indenture.



ARTICLE THREE




THE SECURITIES




Section 3.01. Amount Unlimited; Issuable in Series.




     The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.



22









 





     The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution and, subject to Section 3.03, set forth, or determined in the manner
provided, in an Officers’ Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series:



     (1) the title of the Securities of the series (which shall distinguish the Securities of the
series from Securities of any other series);



     (2) any limit upon the aggregate principal amount of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07 and except for any Securities which, pursuant
to Section 3.03, are deemed never to have been authenticated and delivered hereunder);



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



     (4) the date or dates on which the principal of any Securities of the series is payable;



     (5) the rate or rates at which any Securities of the series shall bear interest, if any, the
date or dates from which any such interest shall accrue, the Interest Payment Dates on which any
such interest shall be payable and the Regular Record Date for any such interest payable on any
Interest Payment Date;



     (6) the place or places where the principal of and any premium and interest on any Securities
of the series shall be payable;



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



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



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



     (10) if the amount of principal of or any premium or interest on any Securities of the series
may be determined with reference to an index or pursuant to a formula, the manner in which such
amounts shall be determined;



     (11) if other than the currency of the United States of America, the currency, currencies or
currency units in which the principal of or any premium or interest on any



23









 







Securities of the series shall be payable and the manner of determining the equivalent thereof
in the currency of the United States of America for any purpose, including for purposes of the
definition of “Outstanding” in Section 1.01;



     (12) if the principal of or any premium or interest on any Securities of the series is to be
payable, at the election of the Company or the Holder thereof, in one or more currencies or
currency units other than that or those in which such Securities are stated to be payable, the
currency, currencies or currency units in which the principal of or any premium or interest on such
Securities as to which such election is made shall be payable, the periods within which and the
terms and conditions upon which such election is to be made and the amount so payable (or the
manner in which such amount shall be determined);



     (13) if other than the entire principal amount thereof, the portion of the principal amount of
any Securities of the series which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 5.02;



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



     (15) if applicable, that the Securities of the series, in whole or any specified part, shall
be defeasible pursuant to Section 13.02 or Section 13.03 or both such Sections and, if other than
by a Board Resolution, the manner in which any election by the Company to defease such Securities
shall be evidenced;



     (16) if applicable, that any Securities of the series shall be issuable in whole or in part in
the form of one or more Global Securities and, in such case, the respective Depositaries for such
Global Securities, the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 2.04 and any circumstances in which
any such Global Security may be exchanged in whole or in part for Securities registered, and any
transfer of such Global Security in whole or in part may be registered, in the name or names of
Persons other than the Depositary for such Global Security or a nominee thereof;



     (17) any addition to or change in the Events of Default which applies to any Securities of the
series and any change in the right of the Trustee or the requisite Holders of such Securities to
declare the principal amount thereof due and payable pursuant to Section 5.02;



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



     (19) if applicable, that the Securities of the series shall be convertible pursuant to Article
Fifteen, and the Initial Conversion Price, the Initial Conversion Date, the Final



24









 







Conversion Date and any other terms relating to the conversion of the Securities as provided
herein; and



     (20) any other terms of the series (which terms shall not be inconsistent with the provisions
of this Indenture, except as permitted by Section 9.01(5)).



     All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 3.03) set forth, or determined in the manner provided, in the Officers’
Certificate referred to above or in any such indenture supplemental hereto. All securities of any
one series need not be issued at one time and, unless otherwise provided, a series may be reopened
for issuances of additional securities of such series.



     Unless otherwise specifically provided with respect to the Securities of a series, at the
option of the Company, interest on the Securities of any series that bears 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.



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



Section 3.02. Denominations.




     The Securities of each series shall be issuable only in registered form without coupons and
only in such denominations as shall be specified as contemplated by Section 3.01. In the absence
of any such specified denomination with respect to the Securities of any series, the Securities of
such series shall be issuable in denominations of $1,000 and any integral multiple thereof.



Section 3.03. Execution, Authentication, Delivery and Dating.




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



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



     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver



25









 







such Securities. If the form or terms of the Securities of the series have been established
by or pursuant to one or more Board Resolutions as permitted by Sections 2.01 and 3.01, in
authenticating such Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon, an Opinion of Counsel stating:



     (1) if the form of such Securities has been established by or pursuant to Board Resolution as
permitted by Section 2.01, that such form has been established in conformity with the provisions of
this Indenture;



     (2) if the terms of such Securities have been established by or pursuant to Board Resolution
as permitted by Section 3.01, that such terms have been established in conformity with the
provisions of this Indenture;



     (3) that such Securities, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors’ rights and to general
equity principles;



     (4) that all laws and requirements in respect of the execution and delivery by the Company of
such Securities have been complied with; and



     (5) that all conditions precedent under the Indenture relating to the authentication and
delivery of such securities have been complied with.



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



     Notwithstanding the provisions of Section 3.01 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not be necessary to
deliver the Officers’ Certificate otherwise required pursuant to Section 3.01 or the Company Order
and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series to be issued.



     Each Security shall be dated the date of its authentication.



     No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the



26









 







Company, and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.09, for all purposes of this Indenture such Security shall be deemed never to
have been authenticated and delivered hereunder and shall never be entitled to the benefits of this
Indenture.



Section 3.04. Temporary Securities.




     Pending the preparation of definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Securities 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 and with such appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their execution of such
Securities.



     If temporary Securities of any series are issued, the Company will cause definitive Securities
of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or
more definitive Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount. 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 and tenor.



Section 3.05. Registration; Registration of Transfer and Exchange.




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



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



     At the option of the Holder, Securities of any series may be exchanged for other Securities of
the same series, of any authorized denominations and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the



27









 







Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.



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



     Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the 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 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 3.04, 9.06 or 11.07 not involving any
transfer.



     If the Securities of any series (or of any series and specified tenor) are to be redeemed in
part, the Company shall not be required (A) to issue, register the transfer of or exchange any
Securities of that series (or of that series and specified tenor, as the case may be) during a
period beginning at the opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 11.03 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part.



     None of the Company, the Trustee, any Paying Agent or the Securities Registrar will have any
responsibility or liability for any aspect of the Depositary’s records relating to or payments made
on account of beneficial ownership interests in a Global Security or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.



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




     If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and
of like tenor and principal amount and bearing a number not contemporaneously outstanding.



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



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



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



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



Section 3.07. Payment of Interest; Interest Rights Preserved.




     Except as otherwise provided as contemplated by Section 3.01 with respect to any series of
Securities, interest on any 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 at the close of business on the Regular Record Date for
such interest.



     Any interest on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall
forthwith cease to be payable to the 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 Securities of such series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such series and the date of
the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall 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



29









 







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 given to each Holder of Securities of
such series in the manner set forth in Section 1.06, 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 so mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).



     (2) The Company may make payment of any Defaulted Interest on the Securities of any series in
any other lawful manner not inconsistent with the requirements of any securities exchange on which
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
manner of payment shall be deemed practicable by the Trustee.



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



Section 3.08. Persons Deemed Owners.




     Prior to due presentment of a 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 Security is
registered as the owner of such Security for the purpose of receiving payment of principal of and
any premium and (subject to Section 3.07) any interest on such Security and for all other purposes
whatsoever, whether or not such 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.



     In the case of any convertible Security which is converted after any Regular Record Date and
on or prior to the next succeeding Interest Payment Date (other than any Security whose Maturity is
prior to such Interest Payment Date), interest whose Stated Maturity is on such Interest Payment
Date shall be payable on such Interest Payment Date notwithstanding such conversion, and such
interest (whether or not punctually paid or duly provided for) shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the close of business
on such Regular Record Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any convertible Security which is converted, interest whose Stated
Maturity is after the date of conversion of such Security shall not be payable.



     No holder of any beneficial interest in any Global Security held on such holder’s behalf by a
Depositary shall have any rights under this Indenture with respect to such Global Security, and
such Depositary may be treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the owner of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall impair, as between a Depositary and such



30









 







holders of beneficial interests, the operation of customary practices governing the exercise
of the rights of the Depositary as Holder of any Security.



     None of the Company, the Trustee, the Paying Agent or the Security Registrar shall have any
responsibility or obligation to any beneficial owner in a Global Security or other Person with
respect to the accuracy of the records of the Depositary or its nominee or of any agent member,
with respect to any ownership interest in the Securities or with respect to the delivery to any
agent member, beneficial owner or other Person (other than the Depositary) of any notice (including
any notice of redemption) or the payment of any amount, under or with respect to such Securities.
All notices and communications to be given to the Holders and all payments to be made to Holders
under the Securities and this Indenture shall be given or made only to or upon the order of the
registered holders (which shall be the Depositary or its nominee in the case of the Global
Security). The rights of beneficial owners in the Global Security shall be exercised only through
the Depositary subject to the applicable procedures. The Trustee, the Paying Agent and the
Security Registrar shall be entitled to rely and shall be fully protected in relying upon
information furnished by the Depositary with respect to its members, participants and any
beneficial owners. The Trustee, the Paying Agent and the Security Registrar shall be entitled to
deal with the Depositary, and any nominee thereof, that is the registered holder of any Global
Security for all purposes of this Indenture relating to such Global Security (including the payment
of principal, premium, if any, and interest and additional amounts, if any, and the giving of
instructions or directions by or to the owner or holder of a beneficial ownership interest in such
Global Security) as the sole holder of such Global Security and shall have no obligations to the
beneficial owners thereof. None of the Company, the Trustee, the Paying Agent or the Security
Registrar shall have any responsibility or liability for any acts or omissions of the Depository
with respect to such Global Security, for the records of any such Depositary, including records in
respect of beneficial ownership interests in respect of any such Global Security, for any
transactions between the Depository and any agent member or between or among the Depositary, any
such agent member and/or any holder or owner of a beneficial interest in such Global Security, or
for any transfer or beneficial interests in any such Global Security.



Section 3.09. Cancellation.




     All Securities surrendered for payment, redemption, registration of transfer or exchange or
conversion or for credit against any sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver
to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. 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. All cancelled Securities held by the Trustee shall be disposed of by
the Trustee in accordance with its customary procedures.



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Section 3.10. Computation of Interest.




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



Section 3.11. CUSIP Numbers.




     The Company, in issuing the Securities, may use “CUSIP” numbers (if then generally in use)
and, if so, the Trustee shall use “CUSIP” numbers in notice of redemption 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.



Section 3.12. Further Issuances.




     The Company may from time to time without the consent of the Holders of Securities of any
series affected create and issue further Securities of such series having the same terms and
conditions as the Securities of such series in all respects (or in all respects except for the
payment of interest of the Securities of such series (i) scheduled and paid prior to the date of
issuance of the additional Securities of such series or (ii) payable on the first Interest Payment
Date following such issuance) so that such further issues shall be consolidated and form a single
series with the outstanding Securities of any series. Any further Securities forming a single
series with the outstanding Securities of any series may be constituted by the Indenture or any
supplement to this Indenture.



ARTICLE FOUR



SATISFACTION AND DISCHARGE




Section 4.01. Satisfaction and Discharge of Indenture.




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



     (1) either




     (A) all Securities theretofore authenticated and delivered (other than (i) Securities
which have been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 3.06 and (ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and



32









 







thereafter repaid to the Company or discharged from such trust, as provided in Section
10.03) have been delivered to the Trustee for cancellation; or




     (B) all such Securities 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, or




     (iii) 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 money in an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal and any premium and interest to the date
of such deposit (in the case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;



     (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 have been complied with.



     Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 6.07, the obligations of the Company to any Authenticating
Agent under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 4.02 and
the last paragraph of Section 10.03 shall survive. The provisions of this Section shall survive
the termination of this Indenture.



Section 4.02. Application of Trust Money.




     Subject to the provisions of the last paragraph of Section 10.03, all money deposited with the
Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal and any premium and interest for whose payment
such money has been deposited with the Trustee. All monies deposited with the Trustee pursuant to
Section 4.01 (and held by it or the Paying Agent) for the payment of Securities subsequently
converted shall be returned to the Company upon Company Request.



     Money deposited and held in trust pursuant to this Section 4.02 shall not be subject to claims
of the holders of Senior Indebtedness or Entitled Persons under Article Fourteen.



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ARTICLE FIVE




REMEDIES




Section 5.01. 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
occasioned by the provisions of Article Fourteen or be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):



     (1) the entry by a court having jurisdiction in the premises of (A) a decree or order for
relief in respect of the Company in an involuntary case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the Company under any
applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order unstayed and in effect for a period of
60 consecutive days; or



     (2) the commencement by the Company of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of
a petition or answer or consent seeking reorganization or relief under any applicable Federal or
State law, or the consent by it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate action by the Company in
furtherance of any such action; or



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



Section 5.02. Acceleration of Maturity; Rescission and Annulment.




     If an Event of Default with respect to Securities of any series at the time Outstanding
occurs, the principal amount of all the Securities of that series (or, if any Securities of that
series are Original Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified by the terms thereof) shall automatically, and without any
declaration or other action on the part of the Trustee or any Holder, become immediately due and
payable.



34









 





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



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




     (A) all overdue interest on all Securities of that series,




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




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



     and



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



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



Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee.




     The Company covenants that if



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



     (2) default is made in the payment of the principal of (or premium, if any, on) any Security
at the Maturity thereof, the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable on such Securities for
principal and any premium and interest at the rate or rates prescribed therefor 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 shall fail 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, 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.



35









 





     “Default”, wherever used herein with respect to Securities of any series, means any one of the
following events (whatever the reason for such Default and whether it shall be occasioned by the
provisions of Article 14 or be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):



     (1) an Event of Default with respect to that series specified in Section 5.01; or



     (2) any event referred to in clause (1) or (2) of the first paragraph of this Section 5.03
with respect to Securities of that series; or



     (3) default in the performance, or breach, of any covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than that series), and continuance
of such default or breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and a Responsible Officer of the
Trustee by the Holders of not less than 25% in principal amount of the Outstanding Securities of
that series a written notice specifying such default or breach and requiring it to be remedied; or



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



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



Section 5.04. Trustee May File Proofs of Claim.




     In case of any judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or such other obligor or their creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and
all actions authorized under the such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee shall be authorized (i) to file and
prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid
in respect of the Securities in accordance with the terms thereof 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, expense, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding, and (ii) to collect and
receive any moneys or other property payable or deliverable on any such claims and to distribute
the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, if the Trustee shall consent to the making of



36









 







such payments directly to the Holders, to pay to the Trustee any amount due to the Trustee for
the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 6.07.



     No provision of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors’ or other similar
committee.



Section 5.05. Trustee May Enforce Claims Without Possession of Securities.




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



Section 5.06. Application of Money Collected.




     Any money collected by the Trustee pursuant to this Article and any money or other
distributable in respect of the company’s obligation under this Indenture after the occurrence of
an Event of Default 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 or any premium or
interest, upon presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:



     First: To the payment of all amounts due the Trustee under Section 6.07; and



     Second: Subject to Article Fourteen, to the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal and any premium and
interest, respectively.



Section 5.07. Limitation on Suits.




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



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



37









 





     (2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that
series shall have made written request to a Responsible Officer of 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 to the Trustee 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 that series; it being understood and intended that no one or more of such Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable benefit of all of
such Holders.



Section 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest or to Convert.




     Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of and any
premium and (subject to Section 3.07) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption Date) and, if
applicable, to convert such Security in accordance with Article Fifteen, to institute suit for the
enforcement of any such payment and right to convert, and such rights shall not be impaired without
the consent of such Holder.



Section 5.09. Restoration of Rights and Remedies.




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



Section 5.10. Rights and Remedies Cumulative.




     Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent permitted by law, be



38









 







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



Section 5.11. Delay or Omission Not Waiver.




     No delay or omission of the Trustee or of any Holder of any Securities 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 may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.



Section 5.12. 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, 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.



Section 5.13. 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 waive any past default
hereunder with respect to such series and its consequences, except a default



     (1) in the payment of the principal of or any premium or interest on any Security of such
series, 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.



39









 





Section 5.14. Undertaking for Costs.




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



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




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



ARTICLE SIX




THE TRUSTEE




Section 6.01. Certain Duties and Responsibilities.




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




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




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



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



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




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




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




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




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



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



Section 6.02. Notice of Defaults.




     Within 90 days after the occurrence of any default hereunder known to the Trustee with respect
to the Securities of any series, the Trustee shall transmit by mail to all Holders of Securities of
such series, as their names and addresses appear in the Security Register, notice of such default
hereunder, unless such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any) or interest on any
Security of such series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of directors 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 of such series; and provided, further, that in the case of
any default of the character specified in clauses (3) or (4) of the third paragraph of Section



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5.03 with respect to Securities of such series, no such notice to Holders shall be given until
at least 30 days after the occurrence thereof. For the purpose of this Section, the term “default”
means any event which is, or after notice or lapse of time or both would become, a Default with
respect to Securities of such series.




     Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an
Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits to
take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee
may consult with counsel and the written advice of such counsel or any Opinion of Counsel will be
full and complete authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.



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



Section 6.03. Certain Rights of Trustee.




     Subject to the provisions of Section 6.01:



     (1) the Trustee may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document
believed 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 Company Order, and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;



     (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, 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 pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory
to the Trustee against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;



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     (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, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney at the sole cost of 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 or omitted to be taken by
it in good faith and reasonably believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture;



     (9) the Trustee shall not be deemed to have notice of any default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof of unless written notice of any
event which is in fact such a default is received by a Responsible Officer of the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the Securities and this
Indenture, unless the Trustee has received notice of such default or Event of Default pursuant to
Section 10.04 hereof;



     (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;



     (11) the Trustee may request that the Company deliver an Officers’ Certificate setting forth
the names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person
authorized to sign an Officers’ Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded;



     (12) anything in this Indenture notwithstanding, in no event shall the Trustee be liable for
special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but
not limited to loss of profit), even if the Trustee has been advised as to the likelihood of such
loss or damage and regardless of the form of action; and



     (13) the Trustee shall not be responsible or liable for any failure or delay in the
performance of its obligations under this Indenture arising out of or caused, directly or
indirectly, by circumstances beyond its control, including, without limitation, acts of God;
earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics;
riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or
communication services; any act or provision of any present of future law or regulation or
governmental authority, the



43









 







unavailability of the Federal Reserve Bank wire or telex or other wire; accidents; labor
disputes; acts of civil or military authority and governmental action.



Section 6.04. Not Responsible for Recitals or Issuance of Securities.




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



Section 6.05. May Hold Securities.




     The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.



Section 6.06. Money Held in Trust.




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



Section 6.07. Compensation and Reimbursement.




     The Company agrees



     (1) to pay to the Trustee from time to time such compensation as shall be agreed in writing
between the Company and the Trustee for all services rendered by it hereunder (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
expenses and disbursements of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence, willful misconduct or bad faith; and



     (3) to indemnify each of the Trustee and any predecessor Trustee and their officers, agents,
directors and employees for, and to hold them harmless against, any and all loss, liability,
damage, claim or expense, including taxes (other than taxes based on the income of the Trustee)
incurred without negligence, willful misconduct or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts hereunder, including the



44









 







costs and expenses of defending itself against any claim (whether against the Company, a
Holder or any other Person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder or in connection with enforcing the Provisions of this Section 6.07.



     The Trustee shall have a lien prior to the Securities as to all property and funds held by it
hereunder for any amount owing it or any predecessor Trustee pursuant to this Section 6.07, except
with respect to funds held in trust for the benefit of the Holders of particular Securities.



     When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 5.01(5) or Section 5.01(6), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are intended to constitute expenses
of administration under any applicable Federal or State bankruptcy, insolvency or other similar
law.



     The provisions of this Section shall survive the termination of this Indenture.



Section 6.08. Conflicting Interests.




     If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.



Section 6.09. Corporate Trustee Required; Eligibility.




     There shall at all times be one (and only one) Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one or more other
series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act
as such, and has a combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee with respect to the Securities of any series shall cease
to be eligible in accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.



Section 6.10. Resignation and Removal; Appointment of Successor.




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



     (b) The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 6.11 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



45









 







expense of the Company, any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of 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 a Responsible Officer of the Trustee and to the Company. If the instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after
the giving of such notice of removal, the Trustee being removed may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.



     (d) If at any time:




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




     (2) the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign
after written request therefor by the Company or by any such Holder, 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 a Board Resolution may remove the Trustee with respect to all Securities, or (B)
subject to Section 5.14, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.



     (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee 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 6.11. 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 6.11, 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 and accepted appointment
in the manner required by Section 6.11, any Holder 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



46









 







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 to all Holders of Securities of such series in the manner provided in
Section 1.06. 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.



     The provisions of this Section shall survive the termination of this Indenture.



Section 6.11. Acceptance of Appointment by Successor.




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



     (b) In case of the appointment hereunder of a successor Trustee with respect to the Securities
of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment and which (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 and that each such Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided therein and each 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, upon



47









 







payment of fees and expenses of its agents and counsel, duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee hereunder with respect
to the Securities of that or those series to which the appointment of such successor Trustee
relates.



     (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 the first or second preceding paragraph, as the case
may be.



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



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




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



Section 6.13. Preferential Collection of Claims Against Company.




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



Section 6.14. Appointment of Authenticating Agent.




     The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue and upon exchange, registration of transfer, partial
conversion or partial redemption thereof or pursuant to Section 3.06, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by 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 shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or examination by Federal or



48









 







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



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



     An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment in the manner provided in Section 1.06 to all Holders of Securities of
the series with respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.



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



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



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




49












 





THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,



As Trustee




By                                             ,

As Authenticating Agent




By                                          

Authorized Signatory




ARTICLE SEVEN




HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY




Section 7.01. Company to Furnish Trustee Names and Addresses of Holders.



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



     (1) semi-annually, not later than 10 calendar days after each Regular Record Date in each
year, a list for each series of Securities, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders of Securities of each series as of the preceding Regular
Record Date, 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; excluding from any such list names and
addresses received by the Trustee in its capacity as Security Registrar.



Section 7.02. Preservation of Information; Communications to Holders.



     The Trustee shall preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.01
upon receipt of a new list so furnished.



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



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



50









 





Section 7.03. Reports by Trustee.



     (a) Within 60 days after May 15 of each year commencing with the year 2009, the Trustee shall
transmit by mail to all Holders of Securities of each series, as their names and addresses appear
in the Security Register, and to any other Persons specified in Section 313(c) of the Trust
Indenture Act, a brief report dated as of such May 15, in accordance with, and to the extent
required under, Section 313 of the Trust Indenture Act.



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



Section 7.04. Reports by Company.



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



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



ARTICLE EIGHT




CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE




Section 8.01. Company May Consolidate, Etc., Only on Certain Terms.



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



     (1) the corporation formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety shall be a corporation, partnership or trust, shall be
organized and validly existing under the laws of the United States of America, any State thereof or
the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of and any premium and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the Company to be performed or
observed and, if applicable, shall have provided for conversion rights in accordance with Section
15.11;



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     (2) immediately after giving effect to such transaction, no 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) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction, such supplemental indenture
comply with this Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.



Section 8.02. Successor Substituted.



     Upon any consolidation of the Company with, or merger of the Company into, any other Person or
any conveyance, transfer or lease of the properties and assets of the Company substantially as an
entirety in accordance with Section 8.01, 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, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.



ARTICLE NINE




SUPPLEMENTAL INDENTURES




Section 9.01. Supplemental Indentures Without Consent of Holders.



     Without the consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may 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; or



     (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; or



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



     (4) to add to or change any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not



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registrable as to principal, and with or without interest coupons, or to permit or facilitate
the issuance of Securities in uncertificated form; or



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



     (6) to secure the Securities; or



     (7) to establish the form or terms of Securities of any series as permitted by Sections 2.01
and 3.01; or



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



     (9) to make provision with respect to the conversion rights of Holders pursuant to the
requirements of Section 15.12, if applicable; or



     (10) 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, provided that such action pursuant to
this clause (10) shall not adversely affect the interests of the Holders of Securities of any
series in any material respect.



     Notwithstanding any provision in this Indenture or otherwise, the rights of Entitled Persons
in respect of Other Financial Obligations under this Indenture and otherwise in respect of the
Securities or any series of the Securities may, at any time and from time to time, be modified in
any respect or eliminated without the consent of any Entitled Person in respect of Other Financial
Obligations.



Section 9.02. 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 a Board
Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby:



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     (1) change the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon
or any premium payable upon the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security which would be due and payable upon an
acceleration of the Maturity thereof pursuant to Section 5.02, or change any Place of Payment
where, or the coin or currency in which, any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or
modify the provisions of this Indenture with respect to the subordination of the Securities in a
manner adverse to the Holders, or adversely affect the right to convert any Security as provided in
Article Fifteen (except as permitted by Section 9.01(9); 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



     (3) modify any of the provisions of this Section, Section 5.13 or Section 10.08, except to
increase any such percentage or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to “the Trustee” and concomitant changes in this
Section and Section 10.08, or the deletion of this proviso, in accordance with the requirements of
Sections 6.11 and 9.01(8).



     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 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 under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.



Section 9.03. Execution of Supplemental Indentures.



     In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in
relying upon, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by 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.



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Section 9.04. Effect of Supplemental Indentures.



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



Section 9.05. Conformity with Trust Indenture Act.



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



Section 9.06. Reference in Securities to Supplemental Indentures.



     Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee, 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 9.07. Notice to Holders.



     After any supplemental indenture under this Article become effective, the Company shall mail
to the Holders a notice briefly describing such supplemental Indenture; provided, however, that the
failure to give such notice to all Holders, or any defect therein, shall not impair or affect the
validity of such supplemental indenture.



ARTICLE TEN




COVENANTS




Section 10.01. Payment of Principal, Premium and Interest.



     The Company covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of and any premium and interest on the Securities of that
series in accordance with the terms of the Securities and this Indenture.



Section 10.02. Maintenance of Office or Agency.



     (a) The Company will maintain in each Place of Payment for any series of Securities an office
or agency where Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or exchange, where
convertible securities may be surrendered for conversion and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to maintain any such



55









 







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, and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.



     (b) The Company may also from time to time designate one or more other offices or agencies
where the Securities 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 its obligation to maintain an
office or agency in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation or rescission and of
any change in the location of any such other office or agency.



Section 10.03. 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 or any premium or interest on
any of the Securities of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal and any premium and 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, prior to each due date of the principal of or any premium or interest on any Securities of
that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held
as provided by the Trust Indenture Act, 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) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the Securities of that series)
in the making of any payment in respect of the Securities of that series, upon the written request
of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.



     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 trusts 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.



     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 or any premium or interest on any Security



56









 







of any series and remaining unclaimed for two years after such principal, premium 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 shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice
that such money remains unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.



Section 10.04. Statement by Officers as to Default.



     The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company ending after the date hereof, an Officers’ Certificate, stating whether or not to the
best knowledge of the signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they may have knowledge.



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



Section 10.05. 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 and the rights (charter and
statutory) and franchises of the Company; provided, however, that the Company shall not be required
to preserve any such right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of the Company and that
the loss thereof is not disadvantageous in any material respect to the Holders.



Section 10.06. Maintenance of Properties.



     The Company will cause all properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company
may be necessary so that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the operation or maintenance of any of



57









 







such properties if such discontinuance is, in the judgment of the Company, desirable in the
conduct of its business or the business of any Subsidiary and not disadvantageous in any material
respect to the Holders.



Section 10.07. 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 10.08. Waiver of Certain Covenants.



     Except as otherwise specified as contemplated by Section 3.01 for Securities of such series,
the Company may, with respect to the Securities of any series, omit in any particular instance to
comply with any term, provision or condition set forth in any covenant provided pursuant to Section
3.01(18), 9.01(2) or 9.01(7) for the benefit of the Holders of such series or in any of Sections
10.05 to 10.07 inclusive if before the time for such compliance the Holders of not less than 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 10.09. 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




ARTICLE ELEVEN REDEMPTION OF SECURITIES




Section 11.01. Applicability of Article.



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



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Section 11.02. Election to Redeem; Notice to Trustee.



     The election of the Company to redeem any Securities shall be evidenced by a Board Resolution
or in another manner specified as contemplated by Section 3.01 for such Securities. In case of any
redemption at the election of the Company of the Securities of any series (including any such
redemption affecting only a single Security), 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, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the
case of any redemption of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish
the Trustee with an Officers’ Certificate evidencing compliance with such restriction.



Section 11.03. Selection by Trustee of Securities to Be Redeemed.



     If less than all the Securities of any series are to be redeemed (unless all the Securities of
a specified tenor 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 (but subject to compliance with the rules of any securities exchange on which the
securities of such series may be listed) and which may provide for the selection for redemption of
a portion of the principal amount of any Security of such series, provided that the unredeemed
portion of the principal amount of any Security shall be in an authorized denomination (which shall
not be less than the minimum authorized denomination) for such Security. If less than all the
Securities of such series and of a specified tenor 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 and specified tenor not previously called for
redemption in accordance with the preceding sentence.



     The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption as aforesaid and, in case of any Securities selected for partial redemption as
aforesaid, 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 amount of such Securities which has been
or is to be redeemed.



Section 11.04. Notice of Redemption.



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



     All notices of redemption shall identify the Securities to be redeemed (including CUSIP
number) and shall state:



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     (1) the Redemption Date,



     (2) the Redemption Price,



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



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



     (5) the conversion price, the date on which the right to convert the Securities to be redeemed
will terminate and the place or places where such Securities may be surrendered for conversion,



     (6) the place or places where each such Security is to be surrendered for payment of the
Redemption Price, and



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



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



Section 11.05. Deposit of Redemption Price.



     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 10.03) 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, all the
Securities which are to be redeemed on that date other than any convertible Securities called for
redemption on that date which have been converted prior to the date of such deposit.



     If any convertible Security called for redemption is converted, any money deposited with the
Trustee or with any Paying Agent or so segregated and held in trust for the redemption of such
Security shall (subject to any right of the Holder of such Security or any Predecessor Security to
receive interest as provided in the last paragraph of Section 3.07) be paid to the Company upon
Company Request or, if then held by the Company, shall be discharged from such trust.



Section 11.06. Securities Payable on Redemption Date.



     Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall



60









 







be paid by the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, unless otherwise specified as contemplated by Section
3.01, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.07.



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



Section 11.07. Securities Redeemed in Part.



     Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder 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
Security or Securities of the same series and of like tenor, 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.



ARTICLE TWELVE




SINKING FUNDS




Section 12.01. Applicability of Article.



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



     The minimum amount of any sinking fund payment provided for by the terms of any Securities 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 such Securities is herein referred to as an “optional sinking
fund payment”. If provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 12.02. Each sinking fund payment shall
be applied to the redemption of Securities as provided for by the terms of such Securities.



Section 12.02. Satisfaction of Sinking Fund Payments with Securities.



     The Company (1) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (2) may apply as a credit Securities of a series which have been
converted pursuant to Article Fifteen or which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in



61









 







satisfaction of all or any part of any sinking fund payment with respect to any Securities of
such series required to be made pursuant to the terms of such Securities as and to the extent
provided for by the terms of such Securities; provided that the Securities to be so credited have
not been previously so credited. The Securities to be so credited shall be received and credited
for such purpose by the Trustee at the Redemption Price, as specified in the Securities so to be
redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.



Section 12.03. Redemption of Securities for Sinking Fund.



     Not less than 60 days prior to each sinking fund payment date for any Securities, the Company
will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing
sinking fund payment for such Securities pursuant to the terms of such Securities, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which
is to be satisfied by delivering and crediting Securities pursuant to Section 12.02 and will also
deliver to the Trustee any Securities to be so delivered. Not less than 45 days prior to 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 11.03 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the manner provided in
Section 11.04. Such notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 11.06 and 11.07.



ARTICLE THIRTEEN




DEFEASANCE AND COVENANT DEFEASANCE




Section 13.01. Company’s Option to Effect Defeasance or Covenant Defeasance.



     The Company may elect, at its option at any time, to have Section 13.02 or Section 13.03
applied to any Securities or any series of Securities, as the case may be, designated pursuant to
Section 3.01 as being defeasible pursuant to such Section 13.02 or 13.03, in accordance with any
applicable requirements provided pursuant to Section 3.01 and upon compliance with the conditions
set forth below in this Article. Any such election shall be evidenced by a Board Resolution or in
another manner specified as contemplated by Section 3.01 for such Securities.



Section 13.02. Defeasance and Discharge.



     Upon the Company’s exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, the Company shall be deemed to have
been discharged from its obligations, with respect to such Securities as provided in this Section
on and after the date the conditions set forth in Section 13.04 are satisfied (hereinafter called
“Defeasance”). For this purpose, such Defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by such Securities and to have satisfied
all its other obligations under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), subject to the following which shall survive until otherwise terminated or
discharged hereunder: (1) the rights of Holders of such Securities to



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receive, solely from the trust fund described in Section 13.04 and as more fully set forth in
such Section, payments in respect of the principal of and any premium and interest on such
Securities when payments are due, (2) the Company’s obligations with respect to such Securities
under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (3) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (4) this Article. Subject to compliance with this Article,
the Company may exercise its option (if any) to have this Section applied to any Securities
notwithstanding the prior exercise of its option (if any) to have Section 13.03 applied to such
Securities.



Section 13.03. Covenant Defeasance.



     Upon the Company’s exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, (1) the Company shall be released from
its obligations under any Section applicable to such Securities that are determined pursuant to
Section 3.01 to be subject to this provision) and (2) the occurrence of any event specified in
Sections 5.03(3) (with respect to any Section applicable to such Securities that are determined
pursuant to Section 3.01 to be subject to this provision) shall be deemed not to be or result in an
Event of Default (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, the Company may omit to comply with (and no
Event of Default shall arise out of such non-compliance with) and shall have no liability in
respect of any term, condition or limitation set forth in any such specified Section or Article,
whether directly or indirectly by reason of any reference elsewhere herein to any such Section or
Article or by reason of any reference in any such Section or Article to any other provision herein
or in any other document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.



Section 13.04. Conditions to Defeasance or Covenant Defeasance.



     The following shall be the conditions to the application of Section 13.02 or Section 13.03 to
any securities or any series of Securities, as the case may be:



     (1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee
(or another trustee which satisfies the requirements contemplated by Section 6.09 and agrees to
comply with the provisions of this Article applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security for, and dedicated
solely to, the benefits of the Holders of such Securities, (A) in the case of Securities
denominated in a foreign currency, money in such foreign currency or Foreign Government Obligations
of the foreign government or governments issuing such foreign currency which through the scheduled
payment of principal and interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, such foreign currency in an amount or
(B) in the case of Securities denominated in U.S. dollars, U.S. dollars or U.S. Government
Obligations which through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the due date of any
payment, U.S. dollars in an amount, or (C) a combination of money and U.S. Government Obligations
or Foreign Government Obligations (as applicable), in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee
(or any such other qualifying trustee) to pay and discharge, the principal of and any



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premium and interest on such Securities on the respective Stated Maturities, in accordance
with the terms of this Indenture and such Securities. As used herein, “U.S. Government Obligation”
means (x) any security which is (i) a direct obligation of the United States of America for the
payment of which the full faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any
U.S. Government Obligation which is specified in Clause (x) above and held by such bank for the
account of the holder of such depositary receipt, or with respect to any specific payment of
principal of or interest on any U.S. Government Obligation which is so specified and held, 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 depositary receipt from any amount received by the custodian
in respect of the U.S. Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt. As used herein, “Foreign Government Obligation” means any
security denominated in a foreign currency which is (i) a direct obligation of a foreign government
or governments for the payment of which the full faith and credit of such foreign government or
governments is pledged or (ii) an obligation of a Person controlled or supervised by and acting as
an agency or instrumentality of such foreign government or governments the payment of which is
unconditionally guaranteed as a full faith and credit obligation by such foreign government, which,
in either case (i) or (ii) is not callable or redeemable at the option of the issuer thereof.



     (2) In the event of an election to have Section 13.02 apply to any Securities or any series of
Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (y) since the date of this instrument, there has been a change
in the applicable Federal income tax law, in either case (x) or (y) to the effect that, and based
thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or
loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would be the case if such deposit, Defeasance
and discharge were not to occur.



     (3) In the event of an election to have Section 13.03 apply to any Securities or any series of
Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with
respect to such Securities and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit and Covenant Defeasance were
not to occur.



     (4) The Company shall have delivered to the Trustee an Officer’s Certificate to the effect
that neither such Securities nor any other Securities of the same series, if then listed on any
securities exchange, will be delisted as a result of such deposit.



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     (5) No event which is, or after notice or lapse of time or both would become, an Event of
Default with respect to such Securities or any other Securities shall have occurred and be
continuing (A) at the time of such deposit or, (B) with regard to any such event specified in
Sections 5.01(5) and (6), at any time during the period ending on the 123rd day after the date of
such deposit or, if longer, ending on the day following the expiration of the longest preference
period applicable to the Company in respect of such deposit (it being understood that the condition
in this clause (B) is a condition subsequent and shall not be deemed satisfied until the expiration
of such period).



     (6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting
interest within the meaning of the Trust Indenture Act (assuming all Securities are in default
within the meaning of such Act).



     (7) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which the Company is a party or by
which it is bound.



     (8) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such
deposit constituting an investment company within the meaning of the Investment Company Act unless
such trust shall be registered under such Act or exempt from registration thereunder.



     (9) The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.



Section 13.05. Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous
Provisions.



     Subject to the provisions of the last paragraph of Section 10.03, all money, U.S. Government
Obligations and Foreign Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section and Section 13.06, the
Trustee and any such other trustee are referred to collectively as the “Trustee”) pursuant to
Section 13.04 in respect of any Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and any premium and interest, but money so held in trust need not
be segregated from other funds except to the extent required by law. Money, U.S. Government
Obligations and Foreign Government Obligations so held in trust shall not be subject to the
provisions of Article Fourteen.



     The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations or the Foreign Government Obligations
deposited pursuant to Section 13.04 or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the Holders of
Outstanding Securities.



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     Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company from time to time upon Company Request any money or U.S. Government Obligations or the
Foreign Government Obligations held by it as provided in Section 13.04 with respect to any
Securities which, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect the Defeasance or Covenant
Defeasance, as the case may be, with respect to such Securities.



Section 13.06. Reinstatement.



     If the Trustee or the Paying Agent is unable to apply any money in accordance with this
Article with respect to any Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, then the
obligations under this Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 13.02 or 13.03 shall be revived and reinstated as though no deposit
had occurred pursuant to this Article with respect to such Securities, until such time as the
Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 13.05
with respect to such Securities in accordance with this Article; provided, however, that if the
Company makes any payment of principal of or any premium or interest on any such Security following
such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of
the Holders of such Securities to receive such payment from the money so held in trust.



ARTICLE FOURTEEN




SUBORDINATION OF SECURITIES




Section 14.01. Securities Subordinate to Senior Indebtedness.



     The Company covenants and agrees, and each Holder of a Security, by his acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this
Article, the indebtedness represented by the Securities and the payment of the principal of (and
premium, of any) and interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness
and, to the extent set forth in Section 14.15, of all Other Financial Obligations.



Section 14.02. Payment Over of Proceeds Upon Dissolution, Etc.



     In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection therewith, relative
to the Company or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution
or other winding up of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company, then and in any such event the holders of
Senior Indebtedness shall be entitled to receive payment in full of all amounts due or to become
due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in
money or money’s worth, before the Holders of the Securities are entitled to receive



66









 







any payment on account of principal of (or premium, if any) or interest on the Securities, and
to that end the holders of Senior Indebtedness shall be entitled to receive, for application to the
payment thereof, any payment or distribution of any kind or character, whether in cash, property or
securities, including any such payment or distribution which may be payable or deliverable by
reason of the payment of any other indebtedness of the Company being subordinated to the payment of
the Securities, which may be payable or deliverable in respect of the Securities in any such case,
proceeding, dissolution, liquidation or other winding up or event.



     In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or
the Holder of any Security shall have received any payment or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment of any other indebtedness
of the Company being subordinated to the payment of the Securities, before all Senior Indebtedness
is paid in full or payment thereof provided for, and if such fact shall, at or prior to the time of
such payment or distribution, have been made known to a Responsible Officer of the Trustee or, as
the case may be, such Holder, then and in such event such payment or distribution shall (to the
extent in its possession, in the case of the Trustee) be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person
making payment or distribution of assets of the Company for application to the payment of all
Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in
full, after giving effect to any concurrent payment or distribution to or for the holders of Senior
Indebtedness.



     For purposes of this Article only, the words “cash, property or securities” shall not be
deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the
Company or any other corporation provided for by a plan of reorganization or readjustment which are
subordinated in right of payment to all Senior Indebtedness which may at the time be outstanding to
substantially the same extent as, or to a greater extent than, the Securities are so subordinated
as provided in this Article. The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company following the conveyance or
transfer of its properties and assets substantially as an entirety to another Person upon the terms
and conditions set forth in Article Eight shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and
liabilities of the Company for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires by conveyance or
transfer such properties and assets substantially as an entirety, as the case may be, shall, as a
part of such consolidation, merger, conveyance or transfer, comply with the conditions set forth in
Article Eight.



Section 14.03. Prior Payment to Senior Indebtedness Upon Acceleration of Securities.



     In the event that any Securities are declared due and payable before their Stated Maturity,
then and in such event the holders of Senior Indebtedness outstanding at the time such Securities
become so due and payable shall be entitled to receive payment in full of all amounts due or to
become due on or in respect of all Senior Indebtedness or provision shall be made for such payment
in money or money’s worth, before the Holders of the Securities are entitled to receive



67









 







any payment (including any payment which may be payable by reason of the payment of any other
indebtedness of the Company being subordinated to the payment of the Securities) by the Company on
account of the principal of (or premium, if any) or interest on the Securities or on account of the
purchase or other acquisition of Securities; provided, however, that nothing in this Section shall
prevent the satisfaction of any sinking fund payment in accordance with Article Twelve by
delivering and crediting pursuant to Section 12.02 Securities which have been acquired (upon
redemption or otherwise) prior to such declaration of acceleration.



     In the event that, notwithstanding the foregoing, the Company shall make any payment to the
Trustee or the Holder of any Security prohibited by the foregoing provisions of this Section, and
if such fact shall, at or prior to the time of such payment, have been made known to a Responsible
Officer of the Trustee or, as the case may be, such Holder, then and in such event such (to the
extent in its possession, in the case of the Trustee) payment shall be paid over and delivered
forthwith to the Company.



     The provisions of this Section shall not apply to any payment with respect to which Section
14.02 would be applicable.



Section 14.04. No Payment When Senior Indebtedness in Default.



     (a) In the event and during the continuation of any default in the payment of principal of (or
premium, if any) or interest on any Senior Indebtedness beyond any applicable grace period with
respect thereto, or in the event that any event of default with respect to any Senior Indebtedness
shall have occurred and be continuing permitting the holders of such Senior Indebtedness (or a
trustee on behalf of the holders thereof) to declare such Senior Indebtedness due and payable prior
to the date on which it would otherwise have become due and payable, unless and until such event of
default shall have been cured or waived or shall have ceased to exist and such acceleration shall
have been rescinded or annulled, or (b) in the event any judicial proceeding shall be pending with
respect to any such default in payment or event of default, then no payment (including any payment
which may be payable by reason of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities) shall be made by the Company on account of principal
of (or premium, if any) or interest on the Securities or on account of the purchase or other
acquisition of Securities; provided, however, that nothing in this Section shall prevent the
satisfaction of any sinking fund payment in accordance with Article Twelve by delivering and
crediting pursuant to Section 12.02 Securities which have been acquired (upon redemption or
otherwise) prior to such default in payment or event of default.



     In the event that, notwithstanding the foregoing, the Company shall make any payment to the
Trustee or the Holder of any Security prohibited by the foregoing provisions of this Section, and
if such fact shall, at or prior to the time of such payment, have been made known to a Responsible
Officer of the Trustee or, as the case may be, such Holder, then and in such event such payment
shall (to the extent in its possession, in the case of the Trustee) be paid over and delivered
forthwith to the Company.



     The provisions of this Section shall not apply to any payment with respect to which Section
14.02 would be applicable.



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Section 14.05. Payment Permitted in Certain Situations.



     Nothing contained in this Article or elsewhere in this Indenture or in any of the Securities
shall prevent (a) the Company, at any time except during the pendency of any case, proceeding,
dissolution, liquidation or other winding up, assignment for the benefit of creditors or other
marshalling of assets and liabilities of the Company referred to in Section 14.02 or under the
conditions described in Section 14.03 or 14.04, from making payments at any time of principal of
(and premium, if any) or interest on the Securities or (b) the application by the Trustee of any
money deposited with it hereunder to the payment of or on account of the principal of (and premium,
if any) or interest on the Securities of any series or the retention of such payment by the Holder,
if, at the time of such application by the Trustee, it did not have actual knowledge that such
payment would have been prohibited by the provisions of this Article.



Section 14.06. Subrogation to Rights of Holders of Senior Indebtedness.



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



Section 14.07. Provisions Solely to Define Relative Rights.



     The provisions of this Article are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities on the one hand and the holders of Senior
Indebtedness (and, in the case of Section 14.15, Entitled Persons in respect of Other Financial
Obligations) on the other hand. Nothing contained in this Article or elsewhere in this Indenture
or in the Securities is intended to or shall (a) impair, as among the Company, its creditors other
than holders of Senior Indebtedness and other than Entitled Persons in respect of Other Financial
Obligations and the Holders of the Securities, the obligation of the Company, which is absolute and
unconditional (and which, subject to the rights under this Article of the holders of Senior
Indebtedness and Entitled Persons in respect of Other Financial Obligations, is intended to rank
equally with all other general obligations of the Company), to pay to the Holders of the Securities
the principal of (and premium, if any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms; or (b) affect the relative rights against
the Company of the Holders of the Securities and creditors of the Company other than the holders of
Senior Indebtedness and Entitled Persons in respect of Other Financial Obligations; or (c) 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



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any, under this Article of the holders of Senior Indebtedness and under Section 14.15 of
Entitled Persons in respect of Other Financial Obligations, to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.



Section 14.08. Trustee to Effectuate Subordination.



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



Section 14.09. No Waiver of Subordination Provisions.



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



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



Section 14.10. Notice to Trustee.



     The Company shall give prompt written notice to a Responsible Officer of the Trustee of any
fact known to the Company which would prohibit the making of any payment to or by the Trustee in
respect of the Securities. Notwithstanding the provisions of this Article or any other provision
of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment to or by the Trustee in respect of the Securities,
unless and until a Responsible Officer of the Trustee shall have received written notice thereof
from the Company or a holder of Senior Indebtedness or from any trustee therefor or from any
Entitled Persons in respect of Other Financial Obligations; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Section 6.01, shall be entitled



70









 







in all respects to assume that no such facts exist; provided, however, that if the Trustee
shall not have received the notice provided for in this Section at least two Business Days prior to
the date upon which by the terms hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal (and premium, if any) or interest on any security)
then notwithstanding anything to the contrary herein, the Trustee shall have full power and
authority to receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be received by it within
two Business Days prior to such date.



     Subject to the provisions of Section 6.01, the Trustee shall be entitled to 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 therefor) or an Entitled Person in respect of Other Financial
Obligations to establish that such notice has been given by a holder of Senior Indebtedness (or a
trustee therefor) or an Entitled Person in respect of Other Financial Obligations. 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 or an Entitled Person in respect of Other
Financial Obligations to participate in any payment or distribution pursuant to this Article, the
Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee
as to the amount of Senior Indebtedness or other Financial Obligations held by such Person, the
extent to which such Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial determination as to
the right of such Person to receive such payment.



Section 14.11. Reliance on Judicial Order or Certificate of Liquidating Agent.



     Upon any payment or distribution of assets of the Company referred to in this Article, the
Trustee, subject to the provisions of Section 6.01, and the Holders of the Securities shall be
entitled to rely upon any order or decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or
similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to a Responsible Officer of the Trustee or to the Holders
of Securities, for the purpose of ascertaining the Persons entitled to participate in such payment
or distribution, the holders of Senior Indebtedness and other indebtedness of the Company and the
Entitled Persons in respect of Other Financial Obligations, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this
Article.



Section 14.12. Trustee Not Fiduciary for Holders of Senior Indebtedness or Entitled Persons.



     The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness or Entitled Persons in respect of Other Financial Obligations and shall not be liable
to any such holders or creditors if it shall in good faith mistakenly pay over or distribute to
Holders of Securities or to the Company or to any other Person cash, property or securities to
which any holders of Senior Indebtedness or Entitled Persons in respect of Other Financial
Obligations shall be entitled by virtue of this Article or otherwise.



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Section 14.13. Rights of Trustee as Holder of Senior Indebtedness or Entitled Person; Preservation
of Trustee’s Rights.



     The Trustee in its individual capacity shall be entitled to all the rights set forth in this
Article with respect to any Senior Indebtedness which may at any time be held by it and with
respect to any Other Financial Obligations owed to the Trustee as an Entitled Person, to the same
extent as any other holder of Senior Indebtedness or Entitled Person in respect of Other Financial
Obligations, as the case may be, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder or Entitled Person.



     Nothing in this Article shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 6.07.



Section 14.14. Article Applicable to Paying Agents.



     In case at any time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term “Trustee” as used in this Article shall in such case
(unless the context otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named
in this Article in addition to or in place of the Trustee; provided, however, that Section 14.13
shall not apply to the Company or any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.



Section 14.15. Securities to Rank Pari Passu with All Other Securities; Payment of Proceeds in
Certain Cases.



     (a) Subject to the provisions of this Section and to any provisions established or determined
with respect to Securities of any series pursuant to Section 3.01, the Securities shall rank pari
passu in right of payment with all other Securities.



     (b) Upon the occurrence of any of the events specified in clauses (a), (b) and (c) of the
first paragraph of Section 14.02, the provisions of that Section shall be given effect to determine
the amount of cash, property or securities which may be payable or deliverable as between the
holders of Senior Indebtedness, on the one hand, and the Holders of Securities, on the other hand.



     (c) If, after giving effect to the provisions of Section 14.02 and Section 14.06, any amount
of cash, property or securities shall be available for payment or distribution in respect of the
Securities (“Excess Proceeds”), and any Entitled Persons in respect of Other Financial Obligations
shall not have received payment in full of all amounts due or to become due on or in respect of
such Other Financial Obligations (and provision shall not have been made for such payment in money
or money’s worth), then such Excess Proceeds shall first be applied (ratably with any amount of
cash, property or securities available for payment or distribution in respect of any other
indebtedness of the Company that by its express terms provides for the payment over of amounts
corresponding to Excess Proceeds to Entitled Persons in respect of Other Financial Obligations) to
pay or provide for the payment of the Other Financial Obligations remaining unpaid, to the extent
necessary to pay all Other Financial Obligations in full, after giving effect



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to any concurrent payment or distribution to or for Entitled Persons in respect of Other
Financial Obligations. Any Excess Proceeds remaining after the payment (or provision for payment)
in full of all Other Financial Obligations shall be available for payment or distribution in
respect of the Securities.



     (d) In the event that, notwithstanding the foregoing provisions of subsection (c) of this
Section, after the occurrence of any of the events specified in clauses (a), (b) and (c) of the
first paragraph of Section 14.02, the Trustee or Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character, whether in cash,
property or securities, before Senior Indebtedness and all Other Financial Obligations are paid in
full or payment thereof duly provided for, and if such fact shall, at or prior to the time of such
payment or distribution, have been made known to a Responsible Officer of the Trustee or, as the
case may be, such Holder, then and in such event, subject to any obligation that the Trustee or
such Holder may have pursuant to Section 14.02, such payment or distribution shall (to the extent
in its possession, in the case of the Trustee) be paid over or delivered forthwith to the trustee
in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making
payment or distribution of assets of the Company for payment in accordance with subsection (c).



     (e) Subject to the payment in full of all Other Financial Obligations, the Holders of the
Securities shall be subrogated (equally and ratably with the holders of all indebtedness of the
Company that by its express terms provides for the payment over of amounts corresponding to Excess
Proceeds to Entitled Persons in respect of Other Financial Obligations and is entitled to like
rights of subrogation) to the extent of the payments or distributions made to Entitled Persons in
respect of Other Financial Obligations pursuant to subsection (c) or (d) of this Section to the
rights of the Entitled Persons in respect of Other Financial Obligations to receive payments and
distributions of cash, property and securities applicable to the Other Financial Obligations until
the principal of (and premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to Entitled Persons in respect of Other
Financial Obligations of any cash, property or securities to which Holders of the Securities or the
Trustee would be entitled except for the provisions of this Section, and no payments over pursuant
to the provisions of this Section to Entitled Persons in respect of Other Financial Obligations by
Holders of Securities or the Trustee, shall, as among the Company, its creditors other than
Entitled Persons in respect of Other Financial Obligations and the Holders of Securities be deemed
to be a payment or distribution by the Company to or on account of the Other Financial Obligations.



     (f) The provisions of subsections (c), (d) and (e) of this Section 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 Entitled Persons in respect of Other Financial Obligations, on the other hand, after giving
effect to the rights of the holders of Senior Indebtedness, as provided in this Article. Nothing
contained in subsections (c), (d) and (e) of this Section is intended to or shall affect the
relative rights against the Company of the Holders of the Securities and creditors of the Company
other than Entitled Persons in respect of Other Financial Obligations.



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Section 14.16. Certain Conversions Deemed Payment.



     For purposes of this Article only, the issuance and delivery of junior securities upon
conversion of Securities in accordance with Article Fifteen shall not be deemed to constitute a
payment or distribution on account of the purchase or other acquisition of Securities, and (2) the
payment, issuance or delivery of cash, property or securities (other than junior securities) upon
conversion of a security shall be deemed to constitute payment on account of the principal of such
Securities. For purposes of this Section, the term “junior securities” means (a) shares of any
stock of any class of the Company and (b) securities of the Company which are subordinated in right
of payment to all Senior Indebtedness and Other Financial Obligations which may be outstanding at
the time of issuance or delivery of such securities to substantially the same extent as, or to a
greater extent than, the Securities are so subordinated as provided in this Article. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is intended to or
shall impair, as among the Company, its creditors other than holders of Senior Indebtedness and the
Holders of the Securities, the right, which is absolute and unconditional, of the Holder of any
convertible Security to convert such Security in accordance with Article Fifteen.



ARTICLE FIFTEEN




CONVERSION OF SECURITIES




Section 15.01. Applicability of Article.



     The Company may elect, at its option at any time, to have Section 15.02 applied to any
Securities or any series of Securities, as the case may be, designated pursuant to Section 3.01 as
being convertible into Common Stock of the Company pursuant to such Section 15.02, in accordance
with any applicable requirements provided pursuant to Section 3.01 and upon compliance with the
conditions set forth below in this Article. Any such election shall be evidenced by a Board
Resolution or in another manner specified as contemplated by Section 3.01 for such Securities.



Section 15.02. Conversion Privilege and Conversion Price.



     Subject to and upon compliance with the provisions of this Article, at the option of the
Holder thereof, any Security or any portion of the principal amount thereof which is an integral
multiple of the authorized denomination thereof may be converted at the principal amount thereof,
or of such portion thereof, into fully paid and nonassessable shares (calculated as to each
conversion to the nearest 1/100 of a share) of Common Stock of the Company, at the conversion price
for Securities of such series, determined as hereinafter provided, in effect at the time of
conversion. Such conversion right shall commence at the opening of business on the Initial
Conversion Date and expire at the close of business on the Final Conversion Date. In case a
Security or portion thereof is called for redemption, such conversion right in respect of the
Security or portion so called shall expire at the close of business on the Redemption Date, unless
the Company defaults in making the payment due upon redemption.



     The price at which shares of Common Stock shall be delivered upon conversion of Securities of
a series (herein called the “conversion price” for Securities of such series) shall be



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initially the Initial Conversion Price for Securities of such series per share of Common
Stock. The conversion price shall be adjusted in certain instances as provided in paragraphs (1),
(2), (3), (4) and (7) of Section 15.05.


Section 15.03. Exercise of Conversion Privilege.




     In order to exercise the conversion privilege, the Holder of any Security to be converted
shall surrender such Security, duly endorsed or assigned to the Company or in blank, at any office
or agency of the Company maintained for that purpose pursuant to Section 10.02, accompanied by
written notice to the Company at such office or agency that the Holder elects to convert such
Security or, if less than the entire principal amount thereof is to be converted, the portion
thereof to be converted. Securities surrendered for conversion during the period from the close of
business on any Regular Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date shall (except in the case of Securities or portions thereof
which have been called for redemption on a Redemption Date within such period) be accompanied by
payment in legal tender 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 Securities being surrendered for
conversion. Except as provided in the preceding sentence and subject to the last paragraph of
Section 3.07, no payment or adjustment shall be made upon any conversion on account of any interest
accrued on the Securities surrendered for conversion or on account of any dividends on the Common
Stock issued upon conversion.



     Securities shall be deemed to have been converted immediately prior to the close of business
on the day of surrender of such Securities for conversion in accordance with the foregoing
provisions, and at such time the rights of the Holders of such Securities as Holders shall cease,
and the Person or Persons entitled to receive the Common Stock issuable upon conversion shall be
treated for all purposes as the record holder or holders of such Common Stock at such time. As
promptly as practicable on or after the conversion date, the Company shall issue and shall deliver
at such office or agency a certificate or certificates for the number of full shares of Common
Stock issuable upon conversion, together with payment in lieu of any fraction of a share, as
provided in Section 15.04. In the case of any Security of a series which is converted in part
only, upon such conversion the Company shall execute and the Trustee shall authenticate and deliver
to the Holder thereof, at the expense of the Company, a new Security or Securities of such series
of authorized denominations in aggregate principal amount equal to the unconverted portion of the
principal amount of such Security.



Section 15.04. Fractions of Shares.



     No fractional shares of Common Stock shall be issued upon conversion of Securities. If more
than one Security of a series shall be surrendered for conversion at one time by the same Holder,
the number of full shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities of such series (or specified portions
thereof) so surrendered. Instead of any fractional share of Common Stock which would otherwise be
issuable upon conversion of any Security or Securities (or specified portion thereof), the Company
shall pay a cash adjustment in respect of such fraction in an amount equal (computed to the nearest
cent) to the same fraction of the market price per share of



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Common Stock (as determined by the Board of Directors or in any manner prescribed by the Board
of Directors) at the close of business on the day of conversion.



Section 15.05. Adjustment of Conversion Price.



     (1) In case at any time after the date of establishment of the Initial Conversion Price with
respect to Securities of a series the Company shall pay or make a dividend or other distribution in
shares of Common Stock on any class of capital stock of the Company, the conversion price in effect
at the opening of business on the day following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution shall be reduced by
multiplying such conversion price by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of shares and the total number of
shares constituting such dividend or other distribution, such reduction to become effective
immediately after the opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph, the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the Company. The Company will
not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the
Company.



     (2) In case at any time after the date of establishment of the Initial Conversion Price with
respect to Securities of a series the Company shall issue rights or warrants to all holders of its
Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per
share less than the current market price per share (determined as provided in paragraph (6) of this
Section) of the Common Stock on the date fixed for the determination of stockholders entitled to
receive such rights or warrants, the conversion price in effect at the opening of business on the
day following the date fixed for such determination shall be reduced by multiplying such conversion
price by a fraction of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination plus the number of
shares of Common Stock which the aggregate of the offering price of the total number of shares of
Common Stock so offered for subscription or purchase would purchase at such current market price
and the denominator shall be the number of shares of Common Stock outstanding at the close of
business on the dated fixed for such determination plus the number of shares of Common Stock so
offered for subscription or purchase, such reduction to become effective immediately after the
opening of business on the day following the date fixed for such determination. For the purposes
of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not
include shares held in the treasury of the Company. The Company will not issue any rights or
warrants in respect of shares of Common Stock held in the treasury of the Company.



     (3) In case at any time after the date of establishment of the Initial Conversion Price with
respect to Securities of a series outstanding shares of Common Stock shall be subdivided into a
greater number of shares of Common Stock, the conversion price in effect at the opening of business
on the day following the day upon which such subdivision becomes effective shall be proportionately
reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a
smaller number of shares of Common Stock, the conversion price in



76









 







effect at the opening of business on the day following the day upon which such combination
becomes effective shall be proportionately increased, such reduction or increase, as the case may
be, to become effective immediately after the opening of business on the day following the day upon
which such subdivision or combination becomes effective.



     (4) In case at any time after the date of establishment of the Initial Conversion Price with
respect to Securities of a series the Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock evidences of its indebtedness or assets (including securities, but
excluding any rights or warrants referred to in paragraph (2) of this Section, any dividend or
distribution paid in cash out of the retained earnings of the Company and any dividend or
distribution referred to in paragraph (1) of this Section), the conversion price shall be adjusted
so that the same shall equal the price determined by multiplying the conversion price in effect
immediately prior to the close of business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which the numerator shall be the current
market price per share (determined as provided in paragraph (6) of this Section) of the Common
Stock on the date fixed for such determination less the then fair market value (as determined by
the Board of Directors, whose determination shall be conclusive and described in a Board Resolution
filed with the Trustee) of the portion of assets or evidences of indebtedness so distributed
applicable to one share of Common Stock and the denominator shall be such current market price per
share of the Common Stock, such adjustment to become effective immediately prior to the opening of
business on the day following the date fixed for the determination of stockholders entitled to
receive such distribution.



     (5) The reclassification of Common Stock into securities other than Common Stock (other than
any reclassification upon a consolidation or merger to which Section 15.02 applies) shall be deemed
to involve (a) a distribution of such securities other than Common Stock to all holders of Common
Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for
the determination of stockholders entitled to receive such distribution” and “the date fixed for
such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or
combination, as the case may be, of the number of shares of Common Stock outstanding immediately
prior to such reclassification into the number of shares of Common Stock outstanding immediately
thereafter (and the effective date of such reclassification shall be deemed to be “the day upon
which such subdivision becomes effective” or “the day upon which such combination becomes
effective”, as the case may be, and “the day upon which such subdivision or combination becomes
effective” within the meaning of paragraph (3) of this Section).



     (6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the
current market price per share of Common Stock on any date shall be deemed to be the average of the
daily closing prices for the 30 consecutive Business Days selected by the Company commencing not
less than 30 nor more than 45 Business Days before the day in question. The closing price for each
day shall be the last reported sales price regular way or, in case no such reported sale takes
place on such day, the average of the reported closing bid and asked prices regular way, in either
case, on the principal national securities exchange on which the Common Stock are listed or
admitted to trading or, if not listed or admitted to trading on any national securities exchange,
on the National Association of Securities Dealers Automated



77









 







Quotations National Market System or, if the Common Stock is not listed or admitted to trading
on any national securities exchange or quoted on such National Market System, the average of the
closing bid and asked prices in the over-the-counter market as furnished by any New York Stock
Exchange member firm selected from time to time by the Company for that purpose.



     (7) The Company may make such reductions in the conversion price, in addition to those
required by paragraphs (1), (2), (3) and (4) 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.



Section 15.06. Notice of Adjustments of Conversion Price.



     Whenever the conversion price is adjusted as herein provided:



     (a) the Company shall compute the adjusted conversion price in accordance with Section 15.05
and shall prepare a certificate signed by the Treasurer of the Company setting forth the adjusted
conversion price and showing in reasonable detail the facts upon which such adjustment is based,
and such certificate shall forthwith be filed at each office or agency maintained for the purpose
of conversion of Securities pursuant to Section 10.02; and



     (b) a notice stating that the conversion price has been adjusted and setting forth the
adjusted conversion price shall forthwith be required, and as soon as practicable after it is
required, such notice shall be mailed by the Company to all Holders at their respective last
addresses as they shall appear in the Security Register.



Section 15.07. Notice of Certain Corporate Action.



     In case at any time after 20 Business Days preceding the Initial Conversion Date:



     (a) the Company shall declare a dividend (or any other distribution) on its Common Stock
payable otherwise than in cash out of its retained earnings; or



     (b) the Company shall authorize the granting to the holders of its Common Stock of rights or
warrants to subscribe for or purchase any shares of capital stock of any class or of any other
rights; or



     (c) of any reclassification of the Common Stock of the Company (other than a subdivision or
combination of its outstanding shares of Common Stock), or of any consolidation or merger to which
the Company is a party and for which approval of any stockholders of the Company is required, or of
the sale or transfer of all or substantially all of the assets of the Company; or



     (d) of the voluntary or involuntary dissolution, liquidation or winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained for the purpose of
conversion of Securities pursuant to Section 10.02, and shall cause to be mailed to all Holders at
their respective last addresses as they shall appear in the Security Register, at least 20 days (or
10 days in any case specified in Clause (a) or (b) above) prior to the applicable record or



78









 







effective date hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution, rights or warrants, or, if a record is not to
be taken, the date as of which the holders of Common Stock of record to be entitled to such
dividend, distribution, rights or warrants are to be determined, or (y) the date on which such
reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.



Section 15.08. Company to Reserve Common Stock.



     The Company shall at all times reserve and keep available, free from pre-emptive rights, out
of its authorized but unissued Common Stock, for the purpose of effecting the conversion of
Securities, the full number of shares of Common Stock then issuable upon the conversion of all
outstanding Securities.



Section 15.09. Taxes on Conversions.



     The Company will pay any and all taxes that may be payable in respect of the issue or delivery
of shares of Common Stock on conversion of Securities pursuant hereto. 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 of Common Stock in a name other than that of the Holder of the
Security or Securities to be converted, and no such issue or delivery shall be made unless and
until the Person requesting such issue has paid to the Company the amount of any such tax, or has
established to the satisfaction of the Company that such tax has been paid.



Section 15.10. Covenant as to Common Stock.



     The Company covenants that all shares of Common Stock which may be issued upon conversion of
Securities will upon issue be fully paid and nonassessable and, except as provided in Section
15.09, the Company will pay all taxes, liens and charges with respect to the issue thereof.



Section 15.11. Cancellation of Converted Securities.



     All Securities delivered for conversion shall be delivered to the Trustee to be cancelled by
or at the direction of the Trustee, which shall dispose of the same as provided in Section 3.09.



Section 15.12. Provisions in Case of Consolidation, Merger or Sale of Assets.



     In case of any consolidation of the Company with, or merger of the Company into, any other
Person, any merger of another Person into the Company (other than a merger which does not result in
any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of
the Company) or any sale or transfer of all or substantially all of the assets of the Company, the
Person formed by such consolidation or resulting from such merger or which acquires such assets, as
the case may be, shall execute and deliver to the Trustee a supplemental



79









 







indenture providing that the Holder of each Security then outstanding shall have the right
thereafter, during the period such Security shall be convertible as specified in Section 15.02, to
convert such Security only into the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer by a holder of the number of shares of
Common Stock of the Company into which such Security might have been converted immediately prior to
such consolidation, merger, sale or transfer, assuming such holder of Common Stock of the Company
(i) is not a Person with which the Company consolidated or into which the Company merged or which
merged into the Company or to which such sale or transfer was made, as the case may be
(“constituent Person”), or an Affiliate of a constituent Person and (ii) failed to exercise his
rights of election, if any, as to the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer (provided that if the kind or amount
of securities, cash and other property receivable upon such consolidation, merger, sale or transfer
is not the same for each share of Common Stock of the Company held immediately prior to such
consolidation, merger, sale or transfer by others than a constituent Person or an Affiliate thereof
and in respect of which such rights of election shall not have been exercised (“non-electing
share”), then for the purpose of this Section the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer by each non-electing share
shall be deemed to be the kind and amount so receivable per share by a plurality of the
non-electing shares), and assuming, if such consolidation, merger, sale or transfer is prior to the
Initial Conversion Date, that the Securities were convertible at the time of such consolidation,
merger, sale or transfer at the initial conversion price specified in Section 15.02 as adjusted
from the date of establishment of the Initial Conversion Price with respect to Securities of a
series to such time pursuant to paragraphs (1), (2), (3), (4) and (7) of Section 15.05. Such
supplemental indenture shall provide for adjustments which, for events subsequent to the effective
date of such supplemental indenture, shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article. The above provisions of this Section shall similarly
apply to successive consolidations, mergers, sales or transfers.



Section 15.13. Responsibility of Trustee.



     The Trustee shall not at any time be under any duty or responsibility to any Holder of a
Security to make or cause to be made any adjustment of the conversion price, or to determine the
price of Common Stock or any other security, whether any facts exist which may require any such
calculation with respect to, or adjustment, or with respect to the nature or extent of any such
adjustment when made, or with respect to any method employed, or herein or in any supplemental
indenture provided to be employed, in making the same. The Trustee shall not 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 conversion of any
Security; and the Trustee makes no representation with respect thereto. The Trustee shall not be
responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock
or stock certificates or other securities or property upon surrender of any Security for the
purpose of conversion or to comply with any of the covenants of the Company contained in this
Article Fifteen.



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     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.



81









 





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



	 	 	 	 	 	 	 
	 	 	ASSOCIATED BANC-CORP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 







82