Exhibit 4.14


 




 





 


ASSURED GUARANTY MUNICIPAL HOLDINGS INC.,


 


Issuer


 


ASSURED GUARANTY LTD.,


 


Guarantor


 


To


 


THE BANK OF NEW YORK MELLON,


Trustee


 


 


	
   

  	
   

  	
   

  
	
   

  	
  INDENTURE

  	
   

  
	
   

  	
   

  	
   

  



 


 


Dated as of [·]


 


Subordinated Debt Securities


 




 





 

















 


Reconciliation and tie between


Trust Indenture Act of 1939 (the “Trust Indenture Act”) and Indenture


 


	
  Trust
  Indenture

  Act Section

  	
   

  	
  Indenture Section

  
	
  §§310(a)(1)

  	
   

  	
  6.8

  
	
  (a)(2)

  	
   

  	
  6.8

  
	
  (b)

  	
   

  	
  6.9

  
	
  §§312(a)

  	
   

  	
  7.1

  
	
  (b)

  	
   

  	
  7.2

  
	
  (c)

  	
   

  	
  7.2

  
	
  §§313(a)

  	
   

  	
  7.3

  
	
  (b)(2)

  	
   

  	
  7.3

  
	
  (c)

  	
   

  	
  7.3

  
	
  (d)

  	
   

  	
  7.3

  
	
  §§314(a)

  	
   

  	
  7.4

  
	
  (c)(1)

  	
   

  	
  1.2

  
	
  (c)(2)

  	
   

  	
  1.2

  
	
  (e)

  	
   

  	
  1.2

  
	
  (f)

  	
   

  	
  1.2

  
	
  §§316(a) (last
  sentence)

  	
   

  	
  1.1

  
	
  (a)(1)(A)

  	
   

  	
  5.2, 5.12

  
	
  (a)(1)(B)

  	
   

  	
  5.13

  
	
  (b)

  	
   

  	
  5.8

  
	
  §§317(a)(1)

  	
   

  	
  5.3

  
	
  (a)(2)

  	
   

  	
  5.4

  
	
  (b)

  	
   

  	
  10.3

  
	
  §§318(a)

  	
   

  	
  10.8

  



 


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


 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  1

  	
  DEFINITIONS
  AND OTHER PROVISIONS OF GENERAL APPLICATION

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 1.1

  	
  Definitions

  	
  2

  
	
  Section 1.2

  	
  Compliance Certificates and Opinions

  	
  14

  
	
  Section 1.3

  	
  Form of Documents Delivered to Trustee

  	
  14

  
	
  Section 1.4

  	
  Acts of Holders

  	
  15

  
	
  Section 1.5

  	
  Notices, etc. to Trustee, Company and Guarantor

  	
  17

  
	
  Section 1.6

  	
  Notice to Holders of Securities; Waiver

  	
  17

  
	
  Section 1.7

  	
  Language of Notices

  	
  18

  
	
  Section 1.8

  	
  Conflict with Trust Indenture Act

  	
  19

  
	
  Section 1.9

  	
  Effect of Headings and Table of Contents

  	
  19

  
	
  Section 1.10

  	
  Successors and Assigns

  	
  19

  
	
  Section 1.11

  	
  Separability Clause

  	
  19

  
	
  Section 1.12

  	
  Holders of Preferred Securities as Third Party
  Beneficiaries

  	
  19

  
	
  Section 1.13

  	
  Benefits of Indenture

  	
  19

  
	
  Section 1.14

  	
  Governing Law

  	
  19

  
	
  Section 1.15

  	
  Legal Holidays

  	
  20

  
	
  Section 1.16

  	
  Counterparts

  	
  20

  
	
  Section 1.17

  	
  Judgment Currency

  	
  20

  
	
  Section 1.18

  	
  No Security Interest Created

  	
  21

  
	
  Section 1.19

  	
  Limitation on Individual Liability

  	
  21

  
	
  Section 1.20

  	
  Submission to Jurisdiction; Jury Trial Waiver

  	
  21

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2

  	
  SECURITIES
  FORMS

  	
  22

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  Forms Generally

  	
  22

  
	
  Section 2.2

  	
  Form of Trustee’s Certificate of
  Authentication

  	
  23

  
	
  Section 2.3

  	
  Securities in Global Form

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3

  	
  THE
  SECURITIES

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Amount Unlimited; Issuable in Series

  	
  24

  
	
  Section 3.2

  	
  Currency; Denominations

  	
  28

  
	
  Section 3.3

  	
  Execution, Authentication, Delivery and Dating

  	
  28

  



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 3.4

  	
  Temporary Securities

  	
  30

  
	
  Section 3.5

  	
  Registration, Transfer and Exchange

  	
  31

  
	
  Section 3.6

  	
  Mutilated, Destroyed, Lost and Stolen Securities

  	
  34

  
	
  Section 3.7

  	
  Payment of Interest and Certain Additional Amounts; Rights to
  Interest and Certain Additional Amounts Preserved

  	
  35

  
	
  Section 3.8

  	
  Persons Deemed Owners

  	
  37

  
	
  Section 3.9

  	
  Cancellation

  	
  38

  
	
  Section 3.10

  	
  Computation of Interest

  	
  38

  
	
  Section 3.11

  	
  Extension of Interest Payment Period

  	
  38

  
	
  Section 3.12

  	
  Right of Set-Off

  	
  39

  
	
  Section 3.13

  	
  Agreed Tax Treatment

  	
  39

  
	
  Section 3.14

  	
  Extension of Stated Maturity; Adjustment of Stated Maturity Upon an
  Exchange

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4

  	
  SATISFACTION
  AND DISCHARGE OF INDENTURE

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Satisfaction and Discharge

  	
  40

  
	
  Section 4.2

  	
  Defeasance and Covenant Defeasance

  	
  41

  
	
  Section 4.3

  	
  Application of Trust Money

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  5

  	
  REMEDIES

  	
  46

  
	
   

  	
   

  	
   

  
	
  Section 5.1

  	
  Events of Default

  	
  46

  
	
  Section 5.2

  	
  Acceleration of Maturity; Rescission and Annulment

  	
  48

  
	
  Section 5.3

  	
  Collection of Indebtedness and Suits for Enforcement by Trustee

  	
  49

  
	
  Section 5.4

  	
  Trustee May File Proofs of Claim

  	
  50

  
	
  Section 5.5

  	
  Trustee May Enforce Claims without Possession of Securities or
  Coupons

  	
  51

  
	
  Section 5.6

  	
  Application of Money Collected

  	
  51

  
	
  Section 5.7

  	
  Limitations on Suits

  	
  52

  
	
  Section 5.8

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

  	
  52

  
	
  Section 5.9

  	
  Restoration of Rights and Remedies

  	
  53

  
	
  Section 5.10

  	
  Rights and Remedies Cumulative

  	
  53

  
	
  Section 5.11

  	
  Delay or Omission Not Waiver

  	
  53

  



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 5.12

  	
  Control by Holders of Securities

  	
  54

  
	
  Section 5.13

  	
  Waiver of Past Defaults

  	
  54

  
	
  Section 5.14

  	
  Waiver of Usury, Stay or Extension Laws

  	
  54

  
	
  Section 5.15

  	
  Undertaking for Costs

  	
  55

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6

  	
  THE
  TRUSTEE

  	
  55

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  Certain Duties and Responsibilities

  	
  55

  
	
  Section 6.2

  	
  Certain Rights of Trustee

  	
  56

  
	
  Section 6.3

  	
  Notice of Defaults

  	
  58

  
	
  Section 6.4

  	
  Not Responsible for Recitals or Issuance of Securities

  	
  59

  
	
  Section 6.5

  	
  May Hold Securities

  	
  59

  
	
  Section 6.6

  	
  Money Held in Trust

  	
  59

  
	
  Section 6.7

  	
  Compensation and Reimbursement

  	
  59

  
	
  Section 6.8

  	
  Corporate Trustee Required; Eligibility

  	
  60

  
	
  Section 6.9

  	
  Resignation and Removal; Appointment of Successor

  	
  60

  
	
  Section 6.10

  	
  Acceptance of Appointment by Successor

  	
  62

  
	
  Section 6.11

  	
  Merger, Conversion, Consolidation or Succession to Business

  	
  63

  
	
  Section 6.12

  	
  Appointment of Authenticating Agent

  	
  64

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  7

  	
  HOLDERS
  LISTS AND REPORTS BY TRUSTEE, GUARANTOR AND COMPANY

  	
  65

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Company and Guarantor to Furnish Trustee Names and Addresses of
  Holders

  	
  65

  
	
  Section 7.2

  	
  Preservation of Information; Communications to Holders

  	
  66

  
	
  Section 7.3

  	
  Reports by Trustee

  	
  66

  
	
  Section 7.4

  	
  Reports by Company and Guarantor

  	
  66

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  8

  	
  CONSOLIDATION,
  AMALGAMATIONS, MERGER AND SALES

  	
  67

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
  Company May Consolidate, Etc., Only on Certain Terms

  	
  67

  
	
  Section 8.2

  	
  Successor Person Substituted for Company

  	
  68

  
	
  Section 8.3

  	
  Guarantor May Consolidate, Etc., Only on Certain Terms

  	
  69

  
	
  Section 8.4

  	
  Successor Person Substituted for Guarantor

  	
  69

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  9

  	
  SUPPLEMENTAL
  INDENTURES

  	
  70

  
	
   

  	
   

  	
   

  
	
  Section 9.1

  	
  Supplemental Indentures without Consent of Holders

  	
  70

  



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 9.2

  	
  Supplemental Indentures with Consent of Holders

  	
  71

  
	
  Section 9.3

  	
  Execution of Supplemental Indentures

  	
  73

  
	
  Section 9.4

  	
  Effect of Supplemental Indentures

  	
  73

  
	
  Section 9.5

  	
  Reference in Securities to Supplemental Indentures

  	
  74

  
	
  Section 9.6

  	
  Conformity with Trust Indenture Act

  	
  74

  
	
  Section 9.7

  	
  Effect on Senior Indebtedness

  	
  74

  
	
  Section 9.8

  	
  Notice of Supplemental Indenture

  	
  74

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  10

  	
  COVENANTS

  	
  74

  
	
   

  	
   

  	
   

  
	
  Section 10.1

  	
  Payment of Principal, any Premium, Interest and Additional Amounts

  	
  74

  
	
  Section 10.2

  	
  Maintenance of Office or Agency

  	
  75

  
	
  Section 10.3

  	
  Money for Securities Payments to Be Held in Trust

  	
  76

  
	
  Section 10.4

  	
  Additional Amounts

  	
  77

  
	
  Section 10.5

  	
  Corporate Existence

  	
  78

  
	
  Section 10.6

  	
  Waiver of Certain Covenants

  	
  78

  
	
  Section 10.7

  	
  Company Statement as to Compliance; Notice of Certain Defaults

  	
  79

  
	
  Section 10.8

  	
  Guarantor Statement as to Compliance; Notice of Certain Defaults

  	
  79

  
	
  Section 10.9

  	
  Additional Sums

  	
  80

  
	
  Section 10.10

  	
  Prohibition Against Dividends, etc.

  	
  80

  
	
  Section 10.11

  	
  Payment of Expenses of each Assured Guaranty Trust

  	
  81

  
	
  Section 10.12

  	
  Ownership of Common Securities

  	
  81

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  11

  	
  REDEMPTION
  OF SECURITIES

  	
  82

  
	
   

  	
   

  	
   

  
	
  Section 11.1

  	
  Applicability of Article

  	
  82

  
	
  Section 11.2

  	
  Election to Redeem; Notice to Trustee

  	
  82

  
	
  Section 11.3

  	
  Selection by Trustee of Securities to be Redeemed

  	
  82

  
	
  Section 11.4

  	
  Notice of Redemption

  	
  83

  
	
  Section 11.5

  	
  Deposit of Redemption Price

  	
  84

  
	
  Section 11.6

  	
  Securities Payable on Redemption Date

  	
  84

  
	
  Section 11.7

  	
  Securities Redeemed in Part

  	
  85

  



 


iv

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 11.8

  	
  Right of Redemption of Securities Issued to an Assured Guaranty Trust

  	
  85

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  12

  	
  SINKING
  FUNDS

  	
  86

  
	
   

  	
   

  	
   

  
	
  Section 12.1

  	
  Applicability of Article

  	
  86

  
	
  Section 12.2

  	
  Satisfaction of Sinking Fund Payments with Securities

  	
  86

  
	
  Section 12.3

  	
  Redemption of Securities for Sinking Fund

  	
  87

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  13

  	
  REPAYMENT
  AT THE OPTION OF HOLDERS

  	
  87

  
	
   

  	
   

  	
   

  
	
  Section 13.1

  	
  Applicability of Article

  	
  87

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  14

  	
  SECURITIES
  IN FOREIGN CURRENCIES

  	
  88

  
	
   

  	
   

  	
   

  
	
  Section 14.1

  	
  Applicability of Article

  	
  88

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  15

  	
  MEETINGS
  OF HOLDERS OF SECURITIES

  	
  88

  
	
   

  	
   

  	
   

  
	
  Section 15.1

  	
  Purposes for Which Meetings May Be Called

  	
  88

  
	
  Section 15.2

  	
  Call, Notice and Place of Meetings

  	
  88

  
	
  Section 15.3

  	
  Persons Entitled to Vote at Meetings

  	
  89

  
	
  Section 15.4

  	
  Quorum; Action

  	
  89

  
	
  Section 15.5

  	
  Determination of Voting Rights; Conduct and Adjournment of Meetings

  	
  90

  
	
  Section 15.6

  	
  Counting Votes and Recording Action of Meetings

  	
  90

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  16

  	
  SUBORDINATION
  OF SECURITIES

  	
  91

  
	
   

  	
   

  	
   

  
	
  Section 16.1

  	
  Agreement to Subordinate

  	
  91

  
	
  Section 16.2

  	
  Default on Company Senior Indebtedness

  	
  91

  
	
  Section 16.3

  	
  Liquidation; Dissolution; Bankruptcy

  	
  92

  
	
  Section 16.4

  	
  Subrogation

  	
  93

  
	
  Section 16.5

  	
  Trustee to Effectuate Subordination

  	
  94

  
	
  Section 16.6

  	
  Notice by the Company

  	
  94

  
	
  Section 16.7

  	
  Rights of the Trustee; Holders of Company Senior Indebtedness

  	
  95

  
	
  Section 16.8

  	
  Subordination May Not Be Impaired

  	
  96

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  17

  	
  GUARANTEE
  AND INDEMNITY

  	
  96

  
	
   

  	
   

  	
   

  
	
  Section 17.1

  	
  The Guarantee

  	
  96

  
	
  Section 17.2

  	
  Net Payments

  	
  97

  



 


v

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 17.3

  	
  Guarantee Unconditional, etc.

  	
  99

  
	
  Section 17.4

  	
  Reinstatement

  	
  99

  
	
  Section 17.5

  	
  Subrogation

  	
  99

  
	
  Section 17.6

  	
  Indemnity

  	
  99

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  18

  	
  SUBORDINATION
  OF GUARANTEE

  	
  100

  
	
   

  	
   

  	
   

  
	
  Section 18.1

  	
  Agreement to Subordinate Guarantee

  	
  100

  
	
  Section 18.2

  	
  Default on Guarantor Senior Indebtedness

  	
  100

  
	
  Section 18.3

  	
  Liquidation; Dissolution; Bankruptcy

  	
  101

  
	
  Section 18.4

  	
  Subrogation

  	
  102

  
	
  Section 18.5

  	
  Trustee to Effectuate Subordination

  	
  103

  
	
  Section 18.6

  	
  Notice by the Guarantor

  	
  103

  
	
  Section 18.7

  	
  Rights of the Trustee; Holders of Guarantor Senior Indebtedness

  	
  104

  
	
  Section 18.8

  	
  Subordination May Not Be Impaired

  	
  105

  



 


vi














 


INDENTURE, dated as of [·] (the “Indenture”), among ASSURED GUARANTY MUNICIPAL
HOLDINGS INC., a corporation duly organized and existing under the laws of the
State of New York (hereinafter called the “Company”), having its principal
executive office located at 31 West 52nd Street, New York, New York 10019,
ASSURED GUARANTY LTD., a company duly organized and existing under the laws of
Bermuda (hereinafter called the “Guarantor”), having its principal executive
office at 30 Woodbourne Avenue, Hamilton HM 08, Bermuda, and THE BANK OF NEW
YORK MELLON, a banking corporation duly organized and existing under the laws
of the State of New York, having its Corporate Trust Office located at 101
Barclay Street, 8W, New York, New York 10286, as Trustee (hereinafter called
the “Trustee”).


 


RECITALS


 


The Company has duly authorized the execution
and delivery of this Indenture to provide for the issuance from time to time of
its subordinated unsecured debentures, notes or other evidences of indebtedness
(hereinafter called the “Securities”), including, without limitation,
Securities issued to evidence loans made to the Company of the proceeds from
the issuance from time to time by one or more Assured Guaranty Trusts (as
defined herein) of preferred beneficial interests in the assets of such Trusts
(the “Preferred Securities”) and common beneficial interests in the assets of
such Trusts (the “Common Securities” and, collectively with the Preferred
Securities, the “Trust Securities”), unlimited as to principal amount, to bear such
rates of interest, to mature at such time or times, to be issued in one or more
series and to have such other provisions as shall be fixed as hereinafter
provided.


 


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


 


For value received, the Guarantor has duly
authorized the execution and delivery of this Indenture to provide for the issuance
of the Guarantee and the indemnity provided for herein. All things necessary to
make this Indenture a valid agreement of the Guarantor, in accordance with its
terms, have been done.


 


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


 


NOW, THEREFORE, THIS INDENTURE WITNESSETH:


 


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


 

















 


ARTICLE 1


 


DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION


 


Section 1.1                              Definitions.


 


Except as otherwise expressly provided in or
pursuant to this Indenture or unless the context otherwise requires, for all
purposes of this Indenture:


 


(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 in the United States of America and, except as otherwise herein
expressly provided, the terms “generally accepted accounting principles” or “GAAP”
with respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States of America
at the date or time of such computation;


 


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


 


(5)  the word “or” is always used inclusively (for example, the
phrase “A or B” means “A or B or both,” not “either A or B but not both”).
Certain terms used principally in certain Articles hereof are defined in those
Articles; and


 


(6)  references herein to Sections or Articles are references to
sections or articles of this Indenture.


 


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


 


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


 


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


 


“Additional Sums” has the meaning specified
in Section 10.9.


 


2

















 


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


 


“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; provided,
however, that an Affiliate of the Company or the Guarantor, as the case may be,
shall not be deemed to include any Assured Guaranty Trust to which Securities
and the Guarantee in respect thereof have been issued. For the purposes of this
definition, “control,” when used with respect to any specified Person, means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms “controlling” and “controlled” have the meanings
correlative to the foregoing.


 


“Assured Guaranty Trusts” means,
collectively, each statutory business trust formed under the laws of the State of
Delaware, or any other similar trust created to issue Trust Securities and to
use the proceeds from the sale thereof to purchase Securities issued under this
Indenture.


 


“Authenticating Agent” means any Person
authorized by the Trustee pursuant to Section 6.11 to act on behalf of the
Trustee to authenticate Securities of one or more series.


 


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


 


“Authorized Officer” means, when used with
respect to the Company, the Chief Executive Officer, the Chief Financial
Officer, the Chief Accounting Officer, the Chairman of the Board of Directors,
a Vice Chairman, the President, any Vice President, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company.


 


“Bearer Security” means any Security in the
form established pursuant to Section 2.1 which is payable to bearer.


 


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


 


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


 


3

















 


“Business Day,” with respect to any Place of
Payment or other location, means, unless otherwise specified with respect to
any Securities pursuant to Section 3.1, any day other than a Saturday,
Sunday or other day on which banking institutions in such Place of Payment or
other location are authorized or obligated by law, regulation or executive
order to close.


 


“Capital Stock” of any Person means any and
all shares, interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) equity of such
Person, including Preferred Stock, but excluding any debt securities
convertible into such equity.


 


“Capitalized Lease Obligation” means an
obligation under a lease that is required to be capitalized for financial reporting
purposes in accordance with generally accepted accounting principles, and the
amount of Indebtedness represented by such obligation shall be the capitalized
amount of such obligation determined in accordance with such principles.


 


“Commission” means the Securities and
Exchange Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or, if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.


 


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


 


“Common Stock” in respect of any Corporation
means Capital Stock of any class or classes (however designated) which has no
preference as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
Corporation, and which is not subject to redemption by such Corporation.


 


“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, and any other obligor
upon the Securities.


 


“Company Request” and “Company Order” mean,
respectively, a written request or order, as the case may be, signed in the
name of the Company by an Authorized Officer, and delivered to the Trustee.


 


“Company Senior Indebtedness” means, with
respect to the Securities of any particular series, all Indebtedness of the
Company outstanding at any time, except (a) the Securities of such series,
(b) Indebtedness as to which, by the terms of the instrument creating or
evidencing the same, it is provided that such Indebtedness is subordinated to
or pari passu with the Securities of such series, (c) Indebtedness of the
Company to an Affiliate of the Company, (d) interest accruing after the
filing of a petition initiating any proceeding relating to the Company referred
to in Section 5.1(7) and 5.1(8) unless such interest is an
allowed claim enforceable against the Company in a proceeding under federal or
state bankruptcy laws, (e) trade accounts payable and (f) any
Indebtedness, including all other debt securities and guaranties in respect of
those debt securities, initially issued to (x) any Assured Guaranty Trust
or (y) any trust, partnership or other entity affiliated with the
Guarantor which is a financing vehicle of the Guarantor or any Affiliate


 


4

















 


of the Guarantor in
connection with the issuance by such entity of Preferred Securities or other
securities which are similar to Preferred Securities that are guaranteed by the
Guarantor pursuant to an instrument that ranks pari passu with or junior in
right of payment to the Preferred Securities Guarantees.


 


“Conversion Event” means the cessation of use
of (i) a Foreign Currency both by the government of the country or the
confederation which issued such Foreign Currency and for the settlement of
transactions by a central bank or other public institutions of or within the
international banking community or (ii) any currency unit or composite
currency for the purposes for which it was established.


 


“Corporate Trust Office” means the principal
corporate trust office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office at the date of
original execution of this Indenture is located at 101 Barclay Street, 8W, New
York, New York 10286.


 


“Corporation” includes corporations and
limited liability companies and, except for purposes of Article 8,
associations, companies and business trusts.


 


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


 


“Currency,” with respect to any payment,
deposit or other transfer in respect of the principal of or any premium or
interest on or any Additional Amounts with respect to any Security, means
Dollars or the Foreign Currency, as the case may be, in which such payment,
deposit or other transfer is required to be made by or pursuant to the terms
hereof or such Security and, with respect to any other payment, deposit or
transfer pursuant to or contemplated by the terms hereof or such Security,
means Dollars.


 


“CUSIP number” means the alphanumeric
designation assigned to a Security by Standard & Poor’s Ratings
Service, CUSIP Service Bureau.


 


“Defaulted Interest” has the meaning
specified in Section 3.7.


 


“Direct Action” has the meaning specified in Section 5.8.


 


“Distributions,” with respect to any Assured
Guaranty Trust, has the meaning specified in the applicable Trust Agreement of
such Assured Guaranty Trust.


 


“Dollars” or “$” means a dollar or other
equivalent unit of legal tender for payment of public or private debts in the
United States of America.


 


“Event of Default” has the meaning specified
in Section 5.1.


 


“Extension Period” has the meaning specified
in Section 3.11.


 


“Foreign Currency” means any currency,
currency unit or composite currency, including, without limitation, the euro,
issued by the government of one or more countries other than the


 


5

















 


United States of America or
by any recognized confederation or association of such governments.


 


“Government Obligations” means securities
which are (i) direct obligations of the United States of America or the
other government or governments which issued the Foreign Currency in which the
principal of or any premium or interest on such Security or any Additional
Amounts in respect thereof shall be payable, in each case where the payment or
payments thereunder are supported by the full faith and credit of such
government or governments or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America or such other government or governments, in each case where the
timely payment or payments thereunder are unconditionally guaranteed as a full
faith and credit obligation by the United States of America or such other
government or governments, and which, in the case of (i) or (ii), are not
callable or redeemable at the option of the issuer or issuers thereof, and
shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of or other amount with respect to any such
Government Obligation held by such custodian for the account of the holder of a
depository receipt, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Obligation or the specific payment of interest on or principal
of or other amount with respect to the Government Obligation evidenced by such
depository receipt.


 


“Guarantee” means the unconditional guarantee
of the payment of the principal of, any premium or interest on, and any
Additional Amounts with respect to the Securities by the Guarantor, as more
fully set forth in Article 17.


 


“Guarantee Agreement” means the Guarantee
Agreement with respect to the Preferred Securities of an Assured Guaranty
Trust, substantially in such form as may be specified as contemplated by Section 3.1
with respect to the Securities of any series, in each case as amended from time
to time.


 


“Guarantor” means the Person named as the “Guarantor”
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 “Guarantor” shall mean such successor Person.


 


“Guarantor’s Board of Directors” means the
board of directors of the Guarantor or any committee of that board duly
authorized to act generally or in any particular respect for the Guarantor
hereunder.


 


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


 


“Guarantor’s Officer’s Certificate” means a
certificate signed by the Chairman of the Guarantor’s Board of Directors, a
Vice Chairman, the President, the Chief Financial Officer, the Chief Investment
Officer, the Chief Accounting Officer, the General Counsel or the Secretary of


 


6

















 


the Guarantor, that complies
with the requirements of Section 314(e) of the Trustee Indenture Act
and is delivered to the Trustee.


 


“Guarantor Request” and “Guarantor Order”
mean, respectively, a written request or order, as the case may be, signed in
the name of the Guarantor by the Chairman of the Guarantor’s Board of
Directors, a Vice Chairman, the President, the Chief Financial Officer, the
Chief Investment Officer, the Chief Accounting Officer, the General Counsel or
the Secretary of the Guarantor, and delivered to the Trustee.


 


“Guarantor Senior Indebtedness” means, with
respect to the Securities of any particular series, all Indebtedness of the
Guarantor outstanding at any time, except (a) the Guarantor’s obligations
under the Guarantee in respect of the Securities of such series, (b) Indebtedness
as to which, by the terms of the instrument creating or evidencing the same, it
is provided that such Indebtedness is subordinated to or pari passu with the
Guarantor’s obligations under the Guarantee in respect of the Securities of
such series, (c) Indebtedness of the Guarantor to an Affiliate of the
Guarantor, (d) interest accruing after the filing of a petition initiating
any proceeding relating to the Guarantor referred to in Section 5.1(7) and
5.1(8) unless such interest is an allowed claim enforceable against the
Guarantor in a proceeding under federal or state bankruptcy laws, (e) trade
accounts payable, (f) the Guarantor’s obligations under the Guarantee in
respect of the securities of any series initially issued to (x) any
Assured Guaranty Trust or (y) any trust, partnership or other entity
affiliated with the Guarantor which is a financing vehicle of the Guarantor or
any Affiliate of the Guarantor in connection with the issuance by such entity
of Preferred Securities or other securities which are similar to Preferred
Securities that are guaranteed by the Guarantor pursuant to an instrument that
ranks pari passu with or junior in right of payment to the Preferred Securities
Guarantees. and (g) all Preferred Securities Guarantees and all guarantees
similar to the Preferred Securities Guarantees issued by the Guarantor on
behalf of holders of Preferred Securities of an Assured Guaranty Trust or other
securities similar to Preferred Securities issued by any trust, partnership or
other entity affiliated with the Guarantor which is a financing vehicle of the
Guarantor or any Affiliate of the Guarantor.


 


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


 


“Indebtedness” means, with respect to any
Person, (i) the principal of and any premium and interest on (a) indebtedness
of such Person for money borrowed and (b) indebtedness evidenced by notes,
debentures, bonds or other similar instruments for the payment of which such
Person is responsible or liable; (ii) all Capitalized Lease Obligations of
such Person; (iii) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations and all
obligations under any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business); (iv) all obligations
of such Person for the reimbursement of any obligor on any letter of credit,
banker’s acceptance or similar credit transaction (other than obligations with
respect to letters of credit securing obligations (other than obligations
described in (i) through (iii) above) entered into in the ordinary
course of business of such Person to the extent such letters of credit are not
drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no
later than the third Business


 


7

















 


Day following receipt by
such Person of a demand for reimbursement following payment on the letter of
credit); (v) all obligations of the type referred to in clauses (i) through
(iv) of other Persons and all dividends of other Persons for the payment
of which, in either case, such Person is responsible or liable as obligor,
guarantor or otherwise; (vi) all obligations of the type referred to in
clauses (i) through (v) of other Persons secured by any Lien on any
property or asset of such Person (whether or not such obligation is assumed by
such Person), the amount of such obligation being deemed to be the lesser of
the value of such property or assets or the amount of the obligation so
secured; and (vii) any amendments, modifications, refundings, renewals or
extensions of any indebtedness or obligation described as Indebtedness in
clauses (i) through (vi) above.


 


“Indenture” means this instrument as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and, with respect to any Security, by the terms and provisions of such Security
and any Coupon appertaining thereto established pursuant to Section 3.1
(as such terms and provisions may be amended pursuant to the applicable
provisions hereof).


 


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


 


“Indexed Security” means a Security the terms
of which provide that the principal amount thereof payable at Stated Maturity
may be more or less than the principal face amount thereof at original
issuance.


 


“Interest”, with respect to any Original
Issue Discount Security which by its terms bears interest only after Maturity,
means interest payable after Maturity and, when used with respect to a Security
which provides for the payment of Additional Amounts pursuant to Section 10.4
or 17.2, includes such Additional Amounts.


 


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


 


“Investment Company Event” means, in respect
of an Assured Guaranty Trust, the receipt by such Assured Guaranty Trust of an
Opinion of Counsel, rendered by an independent law firm experienced in such
matters, to the effect that, as a result of the occurrence of a change in law
or regulation or a change in interpretation or application of law or regulation
by any legislative body, court, governmental agency or regulatory authority (a “Change
in 1940 Act Law”), such Assured Guaranty Trust is or will be considered an
investment company that is required to be registered under the 1940 Act, which
Change in 1940 Act Law becomes effective on or after the date of original
issuance of the Preferred Securities of such Assured Guaranty Trust.


 


8

















 


“Judgment Currency” has the meaning specified
in Section 1.16.


 


“Lien” means any mortgage, pledge, lien,
security interest or other encumbrance.


 


“Maturity”, with respect to any Security,
means the date on which the principal of such Security or an installment of
principal becomes due and payable as provided in or pursuant to this Indenture,
whether at the Stated Maturity or by declaration of acceleration, notice of
redemption or repurchase, notice of option to elect repayment or otherwise, and
includes the Redemption Date.


 


“New York Banking Day” has the meaning
specified in Section 1.16.


 


“1940 Act” means the Investment Company Act
of 1940, as amended.


 


“Office” or “Agency,” with respect to any
Securities, means an office or agency of the Company and the Guarantor
maintained or designated in a Place of Payment for such Securities pursuant to Section 10.2
or any other office or agency of the Company and the Guarantor maintained or
designated for such Securities pursuant to Section 10.2 or, to the extent
designated or required by Section 10.2 in lieu of such office or agency, the
Corporate Trust Office of the Trustee.


 


“Officer’s Certificate” means a certificate
signed by an Authorized Officer that complies with the requirements of Section 314(e) of
the Trust Indenture Act and is delivered to the Trustee.


 


“Opinion of Counsel” means a written opinion
of counsel, who may be an employee of or counsel for the Company or the
Guarantor, as the case may be, or other counsel who shall be reasonably
acceptable to the Trustee, that, if required by the Trust Indenture Act,
complies with the requirements of Section 314(e) of the Trust
Indenture Act.


 


“Original Issue Discount Security” means a
Security issued pursuant to this Indenture which provides for declaration of an
amount less than the principal face amount thereof to be due and payable upon
acceleration pursuant to Section 5.2.


 


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


 


(1)  any such Security theretofore cancelled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security Registrar for
cancellation;


 


(2)  any such Security for whose payment at the Maturity thereof
money in the necessary amount has been theretofore deposited pursuant hereto
(other than pursuant to Section 4.2) with the Trustee or any Paying Agent
(other than the Company or the Guarantor) in trust or set aside and segregated
in trust by the Company or the Guarantor (if the Company shall act as its own,
or authorize the Guarantor to act as, Paying Agent) for the Holders of such
Securities and any Coupons appertaining thereto, provided that, if


 


9

















 


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)  any such Security with respect to which the Company or the
Guarantor has effected defeasance pursuant to the terms hereof, except to the extent
provided in Section 4.2;


 


(4)  any such Security which has been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, unless there shall have been presented
to the Trustee proof satisfactory to it that such Security is held by a bona
fide purchaser in whose hands such Security is a valid obligation of the
Company; and


 


(5)  any such Security converted or exchanged as contemplated by
this Indenture into securities of the Company or the Guarantor or another
issuer, if the terms of such Security provide for such conversion or exchange
pursuant to Section 3.1; provided, however, that in determining whether
the Holders of the requisite principal amount of Outstanding Securities have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder or are present at a meeting of Holders of Securities for quorum
purposes, (i) the principal amount of an Original Issue Discount Security
that may be counted in making such determination and that shall be deemed to be
Outstanding for such purposes shall be equal to the amount of the principal
thereof that pursuant to the terms of such Original Issue Discount Security
would be declared (or shall have been declared to be) due and payable upon a
declaration of acceleration thereof pursuant to Section 5.2 at the time of
such determination, and (ii) the principal amount of any Indexed Security
that may be counted in making such determination and that shall be deemed
Outstanding for such purposes shall be equal to the principal face amount of
such Indexed Security at original issuance, unless otherwise provided in or
pursuant to this Indenture, and (iii) the principal amount of a Security
denominated in a Foreign Currency shall be the Dollar equivalent, determined on
the date of original issuance of such Security, of the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar equivalent on the
date of original issuance of such Security of the amount determined as provided
in (i) above) of such Security, and (iv) Securities owned by the
Company, the Guarantor or any other obligor upon the Securities or any
Affiliate of the Company, the Guarantor or such other obligor, shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in making any such determination or relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which shall have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee (A) the pledgee’s right so to act with
respect to such Securities and (B) that the pledgee is not the Company,
the Guarantor or any other obligor upon the Securities or any Coupons
appertaining thereto or an Affiliate of the Company, the Guarantor or such other
obligor.


 


10

















 


“Paying Agent” means any Person authorized by
the Company to pay the principal of, or any premium or interest on, or any
Additional Amounts with respect to, any Security or any Coupon on behalf of the
Company.


 


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


 


“Place of Payment,” with respect to any Security,
means the place or places where the principal of, or any premium or interest
on, or any Additional Amounts with respect to such Security are payable as
provided in or pursuant to this Indenture or such Security.


 


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


 


“Preferred Securities Guarantee” means the
guarantee by Assured Guaranty Ltd., in its capacity as guarantor with respect
to the Preferred Securities of an Assured Guaranty Trust, of distributions on
such Preferred Securities to the extent provided in the Guarantee Agreement.


 


“Predecessor Security” of any particular
Security means every previous Security evidencing all or a portion of the same
Indebtedness as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and delivered under Section 3.6
in exchange for or in lieu of a lost, destroyed, mutilated or stolen Security
or any Security to which a mutilated, destroyed, lost or stolen Coupon
appertains shall be deemed to evidence the same Indebtedness as the lost,
destroyed, mutilated or stolen Security or the Security to which a mutilated,
destroyed, lost or stolen Coupon appertains.


 


“Preferred Stock” in respect of any
Corporation means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Corporation, over shares of Capital Stock of any other class of such
Corporation.


 


“Property Trustee,” with respect to any
Assured Guaranty Trust, means the entity acting in the capacity of Property
Trustee pursuant to the related Trust Agreement.


 


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


 


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


 


“Registered Security” means any Security
established pursuant to Section 2.1 which is registered in a Security
Register.


 


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


 


11














 


“Required Currency” has the meaning specified
in Section 1.16.


 


“Responsible Officer” means any officer
assigned to the corporate trust department of the Trustee and who shall have
direct responsibility for the administration of this Indenture and also means,
for the purposes of Section 6.1(8) and the first proviso of Section 6.2,
any other officer to whom a particular corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.


 


“Security” or “Securities” means any note or
notes, bond or bonds, debenture or debentures, or any other evidences of
Indebtedness, as the case may be, authenticated and delivered under this
Indenture; provided, however, that, if at any time there is more than one
Person acting as Trustee under this Indenture, “Securities,” with respect to
any such Person, shall mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.


 


“Security Register” and “Security Registrar”
have the respective meanings specified in Section 3.5.


 


“Senior Indebtedness,” with respect to the
Securities of any particular series, means, collectively, Company Senior
Indebtedness with respect to the Securities of such series and Guarantor Senior
Indebtedness with respect to the Securities of such series.


 


“Special Event” means an Investment Company
Event or a Tax Event.


 


“Special Record Date” for the payment of any
Defaulted Interest on any Registered Security means a date fixed by the Company
pursuant to Section 3.7.


 


“Stated Maturity,” with respect to any
Security or any installment of principal thereof or interest thereon or any
Additional Amounts with respect thereto, means the date established by or
pursuant to this Indenture or such Security as the fixed date on which the
principal of such Security or such installment of principal or interest is, or
such Additional Amounts are, due and payable.


 


“Subsidiary” means, in respect of any Person,
any Corporation, limited or general partnership or other business entity of
which at the time of determination more than 50% of the voting power of the
shares of its Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is owned or
controlled, directly or indirectly, by (i) such Person, (ii) such
Person and one or more Subsidiaries of such Person or (iii) one or more
Subsidiaries of such Person.


 


“Tax Event” means, in respect of an Assured
Guaranty Trust, the receipt by such Assured Guaranty Trust or the Company of an
Opinion of Counsel, rendered by an independent law firm experienced in such
matters, to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which pronouncement or
decision is


 


12

















 


announced on or after the
date of original issuance of the Preferred Securities of such Assured Guaranty
Trust, there is more than an insubstantial risk that (i) such Assured
Guaranty Trust is, or will be within 90 days of the date of such Opinion of
Counsel, subject to United States Federal income tax with respect to income
received or accrued on the corresponding series of Securities, (ii) interest
payable by the Company on the corresponding series of Securities is not, or
within 90 days of the date of such Opinion of Counsel will not be, deductible by
the Company, in whole or in part, for United States Federal income tax purposes
or (iii) such Assured Guaranty Trust is, or will be within 90 days of the
date of such Opinion of Counsel, subject to more than a de minimis amount of
other taxes, duties or other governmental charges.


 


“Trust Agreement” means the Trust Agreement
substantially in the form attached hereto as Annex A, as amended by an Amended
and Restated Trust Agreement substantially in such form as may be specified as
contemplated by Section 3.1 with respect to the Securities of any series,
in each case as amended from time to time.


 


“Trust Indenture Act” means the Trust
Indenture Act of 1939, as amended, and any reference herein to the Trust
Indenture Act or a particular provision thereof shall mean such Act or
provision, as the case may be, as amended or replaced from time to time or as
supplemented from time to time by rules or regulations adopted by the
Commission under or in furtherance of the purposes of such Act or provision, as
the case may be.


 


“Trust Securities,” with respect to any
Assured Guaranty Trust, means, collectively, the Common Securities and
Preferred Securities issued by such Assured Guaranty Trust.


 


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


 


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


 


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


 


“U.S. Depository” or “Depository” means, with
respect to any Security issuable or issued in the form of one or more global
Securities, the Person designated as U.S. Depository or Depository by the
Company in or pursuant to this Indenture, which Person must be, to the extent
required by applicable law or regulation, a clearing agency registered under
the Securities Exchange Act of 1934, as amended, and, if so provided with
respect to any Security, any


 


13

















 


successor to such Person. If
at any time there is more than one such Person, “U.S. Depository” or “Depository”
shall mean, with respect to any Securities, the qualifying entity which has
been appointed with respect to such Securities.


 


“Vice President,” 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 1.2                              Compliance Certificates and Opinions.


 


Except as otherwise expressly provided in
this Indenture, upon any application or request by the Company or the Guarantor
to the Trustee to take any action under any provision of this Indenture, the
Company or the Guarantor, as the case may be, shall furnish to the Trustee an
Officer’s Certificate or a Guarantor’s Officer’s Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents or any of them is specifically
required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be furnished.


 


Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:


 


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


 


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


 


Section 1.3                              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.


 


14

















 


Any certificate or opinion of an officer of
the Company or the Guarantor may be based, insofar as it relates to legal
matters, upon an Opinion of Counsel, provided that such officer, after
reasonable inquiry, has no reason to believe and does not believe that the
Opinion of Counsel with respect to the matters upon which his certificate or
opinion is based is erroneous. Any such 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 or the Guarantor, as
the case may be, stating that the information with respect to such factual
matters is in the possession of the Company or the Guarantor, as the case may
be, provided that such counsel, after reasonable inquiry, has no reason to
believe and does not believe that the certificate or opinion or representations
with respect to such matters are erroneous.


 


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


 


Section 1.4                              Acts of Holders.


 


(1)  Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by or pursuant to this Indenture to be
given or taken by Holders or by holders of Preferred Securities may be embodied
in and evidenced by one or more instruments of substantially similar tenor
signed by such Holders or holders of Preferred Securities, as applicable, in
person or by an agent duly appointed in writing. If, but only if, Securities of
a series are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in or pursuant to
this Indenture to be given or taken by Holders of Securities of such series
may, alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article 15,
or a combination of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments or record or both are delivered to the Trustee and,
where it is hereby expressly required, to the Company or the Guarantor or both
of them. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
“Act” of the Holders or holders of Preferred Securities signing such instrument
or instruments or so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 315 of the Trust Indenture Act) conclusive in favor of
the Trustee, the Company and the Guarantor and any agent of the Trustee, the
Company or the Guarantor, if made in the manner provided in this Section.  The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 15.6.


 


Without limiting
the generality of this Section 1.4, unless otherwise provided in or
pursuant to this Indenture, a Holder, including a U.S. Depository that is a
Holder of a global Security, may make, give or take, by a proxy or proxies,
duly appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other Act


 


15

















 


provided in or
pursuant to this Indenture to be made, given or taken by Holders, and a U.S.
Depository that is a Holder of a global Security may provide its proxy or
proxies to the beneficial owners of interests in any such global Security
through such U.S. Depository’s standing instructions and customary practices.


 


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


 


(2)  The fact and date of the execution by any Person of any such instrument
or writing referred to in this Section 1.4 may be proved in any reasonable
manner; and the Trustee may in any instance require further proof with respect
to any of the matters referred to in this Section.


 


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


 


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


 


16

















 


(5)  If the Company or the Guarantor shall solicit from the
Holders of any Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company or the Guarantor,
as the case may be, may at its option (but is not obligated to), by Board
Resolution or Guarantor’s Board Resolution, as the case may be, fix in advance
a record date for the determination of Holders of Registered Securities
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of Registered
Securities of record at the close of business on such record date shall be
deemed to be Holders for the purpose of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders of Registered Securities shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture
not later than six months after the record date.


 


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


 


Section 1.5                              Notices, etc. to Trustee, Company and
Guarantor.


 


Any request, demand, authorization,
direction, notice, consent, waiver or other 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, the Guarantor or the Company shall
be sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, or


 


(2)  Company or the Guarantor, as the case may be, by the Trustee
or 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 or the Guarantor, as the case may be, addressed to the
attention of its Treasurer, with a copy to the attention of its General
Counsel, 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 or the Guarantor, as the case may be.


 


Section 1.6                              Notice to Holders of Securities; Waiver.


 


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


 


17

















 


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


 


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


 


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


 


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


 


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


 


Section 1.7                              Language of Notices.


 


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


 


18

















 


Section 1.8                              Conflict with Trust Indenture Act.


 


If any provision hereof limits, qualifies or
conflicts with any duties under any required provision of the Trust Indenture
Act imposed hereon by Section 318(c) thereof, such required provision
shall control.


 


Section 1.9                              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 1.10                        Successors and Assigns.


 


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


 


Section 1.11                        Separability Clause.


 


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


 


Section 1.12                        Holders of Preferred Securities as Third
Party Beneficiaries.


 


The Company and the Guarantor hereby
acknowledge that, to the extent specifically set forth herein, the holders of
the Preferred Securities of an Assured Guaranty Trust shall expressly be third
party beneficiaries of this Indenture. The Company and the Guarantor further
acknowledge that, if an Event of Default has occurred and is continuing and is
attributable to the failure of the Company and the Guarantor to pay the
principal of or premium, if any, or interest on or Additional Amounts with
respect to the Securities of the series held by such Assured Guaranty Trust,
any holder of the Preferred Securities of such Assured Guaranty Trust may
institute a Direct Action against the Company or the Guarantor.


 


Section 1.13                        Benefits of Indenture.


 


Except as otherwise expressly provided herein
with respect to holders of Preferred Securities, nothing in this Indenture, any
Security or any Coupon, express or implied, shall give to any Person, other
than the parties hereto and the holders of Senior Indebtedness, any Security
Registrar, any Paying Agent, any Authenticating Agent and their successors
hereunder and the Holders of Securities or Coupons, any benefit or any legal or
equitable right, remedy or claim under this Indenture.


 


Section 1.14                        Governing Law.


 


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


 


19

















 


Section 1.15                        Legal Holidays.


 


Unless otherwise specified in or pursuant to
this Indenture or any Securities, in any case where any Interest Payment Date,
Stated Maturity or Maturity of any Security, or the last date on which a Holder
has the right to convert or exchange Securities of a series that are
convertible or exchangeable, shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture, any
Security or any Coupon other than a provision in any Security or Coupon that
specifically states that such provision shall apply in lieu hereof) payment
need not be made at such Place of Payment on such date, and such Securities
need not be converted or exchanged on such date, but such payment may be made,
and such Securities may be converted or exchanged, on the next succeeding day
that is a Business Day at such Place of Payment, and no interest shall accrue
on the amount payable on such date or at such time for the period from and
after such Interest Payment Date, Stated Maturity, Maturity or last day for
conversion or exchange, as the case may be, to such next succeeding Business
Day, except that if such next succeeding Business Day is in the next succeeding
calendar year, such payment may be made, and such Securities may be converted
or exchanged, on the immediately preceding Business Day (in the case of each of
the foregoing, with the same force and effect as if made on such Interest
Payment Date or at such Stated Maturity or Maturity or on such last day for
conversion or exchange, as the case may be).


 


Section 1.16                        Counterparts.


 


This Indenture may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.


 


Section 1.17                        Judgment Currency.


 


The Company and the Guarantor each agrees, to
the fullest extent that it may effectively do so under applicable law, that (a) if
for the purpose of obtaining judgment in any court it is necessary to convert
the sum due in respect of the principal of, or premium or interest, if any, or
Additional Amounts on the Securities of any series (the “Required Currency”)
into a currency in which a judgment will be rendered (the “Judgment Currency”),
the rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
requisite amount of the Required Currency with the Judgment Currency on the New
York Banking Day preceding the day on which a final unappealable judgment is
given and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender,
or any recovery pursuant to any judgment (whether or not entered in accordance
with clause (a)), in any currency other than the Required Currency, except to
the extent that such tender or recovery shall result in the actual receipt, by
the payee, of the full amount of the Required Currency expressed to be payable
in respect of such payments, (ii) shall be enforceable as an alternative
or additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii) shall
not be affected by judgment being obtained for any other sum due under this
Indenture. For purposes of the foregoing, “New York Banking Day” means any day
except a Saturday, Sunday or a legal holiday in The City of New York or a day
on which banking institutions in The City of New York are authorized or
obligated by law, regulation or executive order to be closed.


 


20

















 


Section 1.18                        No Security Interest Created.


 


Nothing in this Indenture or in any
Securities, express or implied, shall be construed to constitute a security
interest under the Uniform Commercial Code or similar legislation, as now or
hereafter enacted and in effect in any jurisdiction where property of the Company,
the Guarantor or their respective Subsidiaries is or may be located.


 


Section 1.19                        Limitation on Individual Liability.


 


No recourse under or upon any obligation,
covenant or agreement contained in this Indenture or in any Security, or for
any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, shareholder (except in a shareholder’s corporate capacity as
Guarantor), officer or director, as such, past, present or future, of the
Company or the Guarantor, as the case may be, either directly or through the
Company or the Guarantor, as the case may be, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this Indenture
and the obligations issued hereunder are solely corporate obligations, and that
no such personal liability whatever shall attach to, or is or shall be incurred
by, the incorporators, shareholders, officers or directors, as such, of the
Company or the Guarantor, as the case may be, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any
Security or implied therefrom; and that any and all such personal liability of
every name and nature, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, shareholder, officer or director, as such, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any
Security or implied therefrom, are hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issuance of such Security.


 


Section 1.20                        Submission to Jurisdiction; Jury Trial
Waiver.


 


The Company and the Guarantor each agrees
that any judicial proceedings instituted in relation to any matter arising
under this Indenture, the Securities or any Coupons appertaining thereto may be
brought in any United States Federal or New York State court sitting in the
Borough of Manhattan, The City of New York, New York to the extent that such
court has subject matter jurisdiction over the controversy, and, by execution
and delivery of this Indenture, the Company and the Guarantor each hereby
irrevocably accepts, generally and unconditionally, the jurisdiction of the
aforesaid courts, acknowledges their competence and irrevocably agrees to be
bound by any judgment rendered in such proceeding. The Company and the
Guarantor each also irrevocably and unconditionally waives for the benefit of
the Trustee and the Holders of the Securities and Coupons any immunity from
jurisdiction and any immunity from legal process (whether through service or
notice, attachment prior to judgment, attachment in the aid of execution,
execution or otherwise) in respect of this Indenture. The Company and the
Guarantor each hereby irrevocably designates and appoints for the benefit of
the Trustee and the Holders of the Securities and Coupons for the term of this
Indenture Assured Guaranty Corp., 31 West 52nd Street, New York, New York
10019, as its agent to receive on its behalf service of all process (with a
copy of all such service of process to be delivered to James M. Michener,
General


 


21

















 


Counsel and Secretary, 30
Woodbourne Avenue, Hamilton, HM 08, Bermuda) brought against it with respect to
any such proceeding in any such court in The City of New York, such service
being hereby acknowledged by each of the Company and the Guarantor to be
effective and binding service on it in every respect whether or not the Company
or the Guarantor, as the case may be, shall then be doing or shall have at any
time done business in New York. Such appointment shall be irrevocable so long
as any of the Securities or Coupons or the respective obligations of the
Company and the Guarantor hereunder remain outstanding, or until the
appointment of a successor by the Company or the Guarantor, as the case may be,
and such successor’s acceptance of such appointment. Upon such acceptance, the
Company or the Guarantor, as the case may be, shall notify the Trustee of the
name and address of such successor. The Company and the Guarantor each further
agrees for the benefit of the Trustee and the Holders of the Securities and the
Coupons to take any and all action, including the execution and filing of any
and all such documents and instruments, as may be necessary to continue such
designation and appointment of said Assured Guaranty Corp., Inc. in full
force and effect so long as any of the Securities or Coupons or the respective
obligations of the Company and the Guarantor hereunder shall be outstanding.
The Trustee shall not be obligated and shall have no responsibility with
respect to any failure by the Company or the Guarantor to take any such action.
Nothing herein shall affect the right to serve process in any other manner
permitted by any law or limit the right of the Trustee or any Holder to
institute proceedings against the Company or the Guarantor in the courts of any
other jurisdiction or jurisdictions.


 


EACH PARTY HERETO, AND EACH
HOLDER OF A SECURITY BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION RELATING TO THE TRUSTEE DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE.


 


ARTICLE 2


 


SECURITIES FORMS


 


Section 2.1                              Forms Generally.


 


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


 


Unless otherwise provided in or pursuant to
this Indenture or any Securities, the Securities shall be issuable in
registered form without Coupons and shall not be issuable upon the exercise of
warrants.


 


22














 


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


 


Section 2.2                              Form of Trustee’s Certificate of
Authentication.


 


Subject to Section 6.11, the Trustee’s
certificate 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.


 


	
   

  	
  THE
  BANK OF NEW YORK MELLON,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  
				



 


Section 2.3                              Securities in Global Form.


 


Unless otherwise provided in or pursuant to
this Indenture or any Securities, the Securities shall not be issuable in
temporary or permanent global form. If Securities of a series shall be issuable
in global form, any such Security may provide that it or any number of such
Securities shall represent the aggregate amount of all Outstanding Securities
of such series (or such lesser amount as is permitted by the terms thereof)
from time to time endorsed thereon and may also provide that the aggregate
amount of Outstanding Securities represented thereby may from time to time be
increased or reduced to reflect exchanges. Any endorsement of any Security in
global form to reflect the amount, or any increase or decrease in the amount,
or changes in the rights of Holders, of Outstanding Securities represented
thereby shall be made in such manner and by such Person or Persons as shall be
specified therein or in the Company Order to be delivered pursuant to Section 3.3
or 3.4 with respect thereto. Subject to the provisions of Section 3.3 and,
if applicable, Section 3.4, the Trustee shall deliver and redeliver, in
each case at the Company’s expense, any Security in permanent global form in
the manner and upon instructions given by the Person or Persons specified
therein or in the applicable Company Order. If a Company Order pursuant to Section 3.3
or 3.4 has been, or simultaneously is, delivered, any instructions by the
Company with respect to a Security in global form shall be in writing but need
not be accompanied by or contained in an Officer’s Certificate and need not be
accompanied by an Opinion of Counsel.


 


Notwithstanding the provisions of Section 3.7,
unless otherwise specified in or pursuant to this Indenture or any Securities,
payment of principal of, any premium and interest on, and any Additional
Amounts in respect of, any Security in temporary or permanent global form shall
be made to the Person or Persons specified therein.


 


Notwithstanding the provisions of Section 3.8
and except as provided in the preceding paragraph, the Company, the Guarantor,
the Trustee and any agent of the Company, the


 


23

















 


Guarantor or the Trustee
shall treat as the Holder of such principal amount of Outstanding Securities
represented by a global Security (i) in the case of a global Security in
registered form, the Holder of such global Security in registered form, or (ii) in
the case of a global Security in bearer form, the Person or Persons specified
pursuant to Section 3.1.


 


ARTICLE 3


 


THE SECURITIES


 


Section 3.1                              Amount Unlimited; Issuable in Series.


 


The aggregate principal amount of Securities
which may be authenticated and delivered under this Indenture is unlimited. The
Securities may be issued in one or more series. The Securities of each series
shall be subordinated in right of payment to all Company Senior Indebtedness
with respect to such series as provided in Article 16. The Securities of
each series shall be guaranteed by the Guarantor, which Guarantee shall be
subordinated in right of payment to all Guarantor Senior Indebtedness with
respect to such series as provided in Article 18.


 


With respect to any Securities to be
authenticated and delivered hereunder, there shall be established in or
pursuant to a Board Resolution and set forth in an Officer’s Certificate, or
established in one or more indentures supplemental hereto,


 


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


 


(2)  any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of such series pursuant to Section 3.4,
3.5, 3.6, 9.5 or 11.7, upon repayment in part of any Registered Security of
such series pursuant to Article 13, upon surrender in part of any
Registered Security for conversion into other securities of the Company or
exchange for securities of the Guarantor or another issuer pursuant to its
terms, or pursuant to or as contemplated by the terms of such Securities);


 


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


 


(4)  if any of such Securities are to be issuable in global form,
when any of such Securities are to be issuable in global form and (i) whether
such Securities are to be issued in temporary or permanent global form or both,
(ii) whether beneficial owners of interests in any such global Security
may exchange such interests for Securities of the same series and of like tenor
and of any authorized form and denomination, and the circumstances under which
any such exchanges may occur, if other than in the manner


 


24

















 


specified in Section 3.5,
and (iii) the name of the Depository or the U.S. Depository, as the case
may be, with respect to any such global Security;


 


(5)  if any of such Securities are to be issuable as Bearer
Securities or in global form, the date as of which any such Bearer Security or
global Security shall be dated (if other than the date of original issuance of
the first of such Securities to be issued);


 


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


 


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


 


(8)  the rate or rates at which such Securities shall bear
interest, if any, or the method or methods, if any, by which such rate or rates
are to be determined, the rate or rates and the extent to which Additional
Interest, if any, shall be payable in respect of such Securities, the date or
dates, if any, from which such interest shall accrue or the method or methods,
if any, by which such date or dates are to be determined, the Interest Payment
Dates, if any, on which such interest shall be payable and the Regular Record
Date, if any, for the interest payable on Registered Securities on any Interest
Payment Date, the right, pursuant to Section 3.11 hereof or as otherwise
set forth therein, of the Company to defer or extend an interest payment period
and the duration of any such Extension Period, including the maximum
consecutive period during which interest payment periods may be extended,
whether and under what circumstances Additional Amounts on such Securities or
any of them shall be payable, the notice, if any, to Holders regarding the
determination of interest on a floating rate Security and the manner of giving
such notice, and the basis upon which interest shall be calculated if other
than that of a 360-day year of twelve 30-day months;


 


(9)  if in addition to or other than the Borough of Manhattan, The
City of New York, the place or places where the principal of, any premium and
interest on or any Additional Amounts with respect to such Securities shall be
payable, any of such Securities that are Registered Securities may be
surrendered for registration of transfer or exchange, any of such Securities
may be surrendered for conversion or exchange and notices or demands to or upon
the Company or the Guarantor in respect of such Securities and this Indenture
may be served, the extent to which, or the manner in which, any interest
payment or Additional Amounts on a global Security on an Interest Payment Date,
will be paid and the manner in which any principal of or premium, if any, on
any global Security will be paid;


 


25

















 


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


 


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


 


(12)  the denominations in which
any of such Securities that are Registered Securities shall be issuable if
other than denominations of $1,000 and any integral multiple thereof, and the
denominations in which any of such Securities that are Bearer Securities shall
be issuable if other than the denomination of $5,000;


 


(13)  whether the Securities of
the series will be convertible into other securities of the Company and/or
exchangeable for securities of the Guarantor or another issuer, and if so, the
terms and conditions upon which such Securities will be so convertible or
exchangeable, and any deletions from or modifications or additions to this
Indenture to permit or to facilitate the issuance of such convertible or
exchangeable Securities or the administration thereof;


 


(14)  if other than the principal
amount thereof, the portion of the principal amount of any of such Securities
that shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.2 or the method by which such portion is to be
determined;


 


(15)  if other than Dollars, the
Foreign Currency in which payment of the principal of, any premium or interest
on or any Additional Amounts with respect to any of such Securities shall be
payable;


 


(16)  if the principal of, any
premium or interest on or any Additional Amounts with respect to any of such
Securities are to be payable, at the election of the Company or a Holder
thereof or otherwise, in Dollars or in a Foreign Currency other than that in
which such Securities are stated to be payable, the date or dates on which, the
period or periods within which, and the other terms and conditions upon which,
such election may be made, and the time and manner of determining the exchange
rate between the Currency in which such Securities are stated to be payable and
the Currency in which such Securities or any of them are to be paid pursuant to
such election, and any deletions from or modifications of or additions to the
terms of this Indenture to provide for or to facilitate the issuance of
Securities denominated or payable, at the election of the Company or a Holder
thereof or otherwise, in a Foreign Currency;


 


26

















 


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


 


(18)  the relative degree, if
any, to which Securities of such series and the Guarantee in respect thereof
shall be senior to or be subordinated to other series of Securities and the
Guarantee in respect thereof or other Indebtedness of the Company or the
Guarantor, as the case may be, in right of payment, whether such other series
of Securities or other Indebtedness is outstanding or not;


 


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


 


(20)  whether either or both of Section 4.2(2) relating
to defeasance or Section 4.2(3) relating to covenant defeasance shall
not be applicable to the Securities of such series, or any covenants in
addition to those specified in Section 4.2(3) relating to the
Securities of such series which shall be subject to covenant defeasance, and
any deletions from, or modifications or additions to, the provisions of Article 4
in respect of the Securities of such series;


 


(21)  the form or forms of the
Trust Agreement (if different from the form attached hereto as Annex A),
Amended and Restated Trust Agreement and Guarantee Agreement;


 


(22)  whether any of such
Securities are to be issuable upon the exercise of warrants, and the time,
manner and place for such Securities to be authenticated and delivered;


 


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


 


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


 


(25)  any other terms of such
Securities and any other deletions from or modifications or additions to this
Indenture in respect of such Securities.


 


All Securities of any one series and all
Coupons, if any, appertaining to Bearer Securities of such series shall be
substantially identical except as to Currency of payments due thereunder,


 


27

















 


denomination and the rate of
interest thereon, or method of determining the rate of interest, if any,
Maturity, and the date from which interest, if any, shall accrue and except as
may otherwise be provided by the Company in or pursuant to the Board Resolution
and set forth in the Officer’s Certificate or in any indenture or indentures
supplemental hereto pertaining to such series of Securities. The terms of the Securities
of any series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon written order of persons designated in the Officer’s Certificate or
supplemental indenture and that such persons are authorized to determine,
consistent with such Officer’s Certificate or any applicable supplemental
indenture, such terms and conditions of the Securities of such series as are
specified in such Officer’s Certificate or supplemental indenture. All
Securities of any one series need not be issued at the same time and, unless
otherwise so provided, a series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of Securities.


 


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


 


Section 3.2                              Currency; Denominations.


 


Unless otherwise provided in
or pursuant to this Indenture, the principal of, any premium and interest on
and any Additional Amounts with respect to the Securities shall be payable in Dollars.
Unless otherwise provided in or pursuant to this Indenture, Registered
Securities denominated in Dollars shall be issuable in registered form without
Coupons in denominations of $1,000 and any integral multiple thereof, and the
Bearer Securities denominated in Dollars shall be issuable in the denomination
of $5,000. Securities not denominated in Dollars shall be issuable in such
denominations as are established with respect to such Securities in or pursuant
to this Indenture.


 


Section 3.3                              Execution, Authentication, Delivery and
Dating.


 


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


 


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


 


At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver Securities,
together with any Coupons appertaining thereto, executed by the Company, to the
Trustee for authentication and, provided that the Board Resolution and Officer’s
Certificate or supplemental indenture or indentures with respect to such
Securities


 


28

















 


referred to in Section 3.1
and a Company Order for the authentication and delivery of such Securities have
been delivered to the Trustee, the Trustee in accordance with the Company Order
and subject to the provisions hereof and of such Securities shall authenticate
and deliver such Securities. In authenticating such Securities, and accepting
the additional responsibilities under this Indenture in relation to such
Securities and any Coupons appertaining thereto, the Trustee shall be entitled
to receive, and (subject to Sections 315(a) through 315(d) of the
Trust Indenture Act) shall be fully protected in relying upon,


 


(1)  an Opinion of Counsel to the effect that:


 


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


 


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


 


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


 


(d)                                 this Indenture has been qualified under
the Trust Indenture Act;


 


and


 


(2)  an Officer’s Certificate and a Guarantor’s Officer’s
Certificate, in each case stating that, to the best knowledge of the Persons
executing such certificate, all conditions precedent to the execution,
authentication and delivery of such Securities and Coupons, if any,
appertaining thereto, have been complied with, and no event which is, or after
notice or lapse of time would become, an Event of Default with respect to any
of the Securities shall have occurred and be continuing.


 


If all the Securities of any series are not
to be issued at one time, it shall not be necessary to deliver an Opinion of
Counsel and an Officer’s Certificate and Guarantor’s Officer’s Certificate at
the time of issuance of each Security, but such opinion and certificates, with
appropriate modifications, shall be delivered at or before the time of issuance
of the first Security


 


29

















 


of such series. After any
such first delivery, any separate written request by an Authorized Officer of
the Company or any person designated in writing by an Authorized Officer that
the Trustee authenticate and deliver Securities of such series for original
issue will be deemed to be a certification by the Company and the Guarantor
that all conditions precedent provided for in this Indenture relating to
authentication and delivery of such Securities continue to have been complied
with and that no Event of Default with respect to any of the Securities has
occurred or is continuing.


 


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


 


Each Registered Security shall be dated the
date of its authentication. Each Bearer Security and any Bearer Security in
global form shall be dated as of the date specified in or pursuant to this
Indenture.


 


No Security or Coupon appertaining thereto
shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose, unless there appears on such Security a certificate of
authentication substantially in the form provided for in Section 2.2 or
6.11 executed by or on behalf of the Trustee or by the Authenticating Agent by
the manual signature of one of its authorized signatories.  Such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Except as permitted by Section 3.6
or 3.7, the Trustee shall not authenticate and deliver any Bearer Security
unless all Coupons appertaining thereto then matured have been detached and
cancelled.


 


Section 3.4                              Temporary Securities.


 


Pending the preparation of definitive
Securities, the Company may execute and deliver to the Trustee and, upon
Company Order, the Trustee shall authenticate and deliver, in the manner
provided in Section 3.3, temporary Securities in lieu thereof which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form or, if
authorized in or pursuant to this Indenture, in bearer form with one or more
Coupons or without Coupons and with such appropriate insertions, omissions,
substitutions and other variations as the officers of the Company executing
such Securities may determine, as conclusively evidenced by their execution of such
Securities. Such temporary Securities may be in global form.


 


Except in the case of temporary Securities in
global form, which shall be exchanged in accordance with the provisions
thereof, if temporary Securities are issued, the Company shall cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities of the same series and containing terms and provisions
that are identical to those of any temporary Securities, such temporary
Securities shall be exchangeable for such definitive Securities upon surrender
of such temporary Securities at an Office or Agency for such Securities,
without charge to any Holder thereof. Upon surrender for cancellation of any
one or


 


30

















 


more temporary Securities
(accompanied by any unmatured Coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of authorized denominations of
the same series and containing identical terms and provisions; provided,
however, that no definitive Bearer Security, except as provided in or pursuant
to this Indenture, shall be delivered in exchange for a temporary Registered
Security; and provided, further, that a definitive Bearer Security shall be
delivered in exchange for a temporary Bearer Security only in compliance with
the conditions set forth in or pursuant to this Indenture. Unless otherwise
provided in or pursuant to this Indenture with respect to a temporary global
Security, until so exchanged the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.


 


Section 3.5                              Registration, Transfer and Exchange.


 


With respect to the Registered Securities of
each series, if any, the Company shall cause to be kept a register (each such
register being herein sometimes referred to as the “Security Register”) at an
Office or Agency for such series in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of the Registered Securities of such series and of transfers of the Registered
Securities of such series. Such Office or Agency shall be the “Security
Registrar” for that series of Securities. Unless otherwise specified in or
pursuant to this Indenture or the Securities, the Trustee shall be the initial
Security Registrar for each series of Securities. The Company shall have the
right to remove and replace from time to time the Security Registrar for any
series of Securities; provided that no such removal or replacement shall be
effective until a successor Security Registrar with respect to such series of
Securities shall have been appointed by the Company and shall have accepted
such appointment by the Company. In the event that the Trustee shall not be or
shall cease to be Security Registrar with respect to a series of Securities, it
shall have the right to examine the Security Register for such series at all
reasonable times. There shall be only one Security Register for each series of
Securities.


 


Upon surrender for registration of transfer
of any Registered Security of any series at any Office or Agency for such
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 Registered Securities of the same series denominated as authorized in or
pursuant to this Indenture, of a like aggregate principal amount bearing a
number not contemporaneously outstanding and containing identical terms and
provisions.


 


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


 


If provided in or pursuant to this Indenture,
with respect to Securities of any series, at the option of the Holder, Bearer
Securities of such series may be exchanged for Registered


 


31

















 


Securities of such series
containing identical terms, denominated as authorized in or pursuant to this
Indenture and in the same aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any Office or Agency for such series, with
all unmatured Coupons and all matured Coupons in default thereto appertaining.
If the Holder of a Bearer Security is unable to produce any such unmatured
Coupon or Coupons or matured Coupon or Coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company, the Guarantor and the Trustee in an amount equal to
the face amount of such missing Coupon or Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company, the Guarantor and the
Trustee if there is furnished to them such security or indemnity as they may require
to save each of them and any Paying Agent harmless. If thereafter the Holder of
such Bearer Security shall surrender to any Paying Agent any such missing
Coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 10.2, interest represented
by Coupons shall be payable only upon presentation and surrender of those
Coupons at an Office or Agency for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such Office or Agency for such series in exchange for a
Registered Security of such series and like tenor after the close of business at
such Office or Agency on (i) any Regular Record Date and before the
opening of business at such Office or Agency on the next succeeding Interest
Payment Date, or (ii) any Special Record Date and before the opening of
business at such Office or Agency on the related date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the Coupon relating
to such Interest Payment Date or proposed date of payment, as the case may be
(or, if such Coupon is so surrendered with such Bearer Security, such Coupon
shall be returned to the Person so surrendering the Bearer Security), and
interest or Defaulted Interest, as the case may be, shall not be payable on
such Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but shall be payable only to the Holder of such Coupon when due in accordance
with the provisions of this Indenture.


 


If provided in or pursuant to this Indenture
with respect to Securities of any series, at the option of the Holder,
Registered Securities of such series may be exchanged for Bearer Securities
upon such terms and conditions as may be provided in or pursuant to this
Indenture with respect to such series.


 


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


 


Notwithstanding the foregoing, except as
otherwise provided in or pursuant to this Indenture, any global Security shall
be exchangeable for definitive Securities only if (i) the Depository is at
any time unwilling, unable or ineligible to continue as depository and a
successor depository is not appointed by the Company within 90 days of the date
the Company is so informed in writing, (ii) the Company executes and
delivers to the Trustee a Company Order to the effect that such global Security
shall be so exchangeable, or (iii) an Event of Default has occurred and is
continuing with respect to the Securities. If the beneficial owners of
interests in a global Security are entitled to exchange such interests for
definitive Securities as the result of an


 


32

















 


event described in clause
(i), (ii) or (iii) of the preceding sentence, then without
unnecessary delay but in any event not later than the earliest date on which
such interests may be so exchanged, the Company shall deliver to the Trustee
definitive Securities in such form and denominations as are required by or
pursuant to this Indenture, and of the same series, containing identical terms
and in aggregate principal amount equal to the principal amount of such global
Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such global Security shall be surrendered from
time to time by the U.S. Depository or such other Depository as shall be
specified in the Company Order with respect thereto, and in accordance with
instructions given to the Trustee and the U.S. Depository or such other
Depository, as the case may be (which instructions shall be in writing but need
not be contained in or accompanied by an Officer’s Certificate or be
accompanied by an Opinion of Counsel), as shall be specified in the Company
Order with respect thereto to the Trustee, as the Company’s agent for such
purpose, to be exchanged, in whole or in part, for definitive Securities as
described above without charge. The Trustee shall authenticate and make
available for delivery, in exchange for each portion of such surrendered global
Security, a like aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of
such global Security to be exchanged, which (unless such Securities are not
issuable both as Bearer Securities and as Registered Securities, in which case
the definitive Securities exchanged for the global Security shall be issuable
only in the form in which the Securities are issuable, as provided in or
pursuant to this Indenture) shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof, but subject to the satisfaction of any certification
or other requirements to the issuance of Bearer Securities; provided, however,
that no such exchanges may occur during a period beginning at the opening of
business 15 days before any selection of Securities of the same series to be
redeemed and ending on the relevant Redemption Date; and provided, further,
that (unless otherwise provided in or pursuant to this Indenture) no Bearer
Security delivered in exchange for a portion of a global Security shall be
mailed or otherwise delivered to any location in the United States. Promptly
following any such exchange in part, such global Security shall be returned by
the Trustee to such Depository or the U.S. Depository, as the case may be, or
such other Depository or U.S. Depository referred to above in accordance with
the instructions of the Company referred to above. If a Registered Security is
issued in exchange for any portion of a global Security after the close of
business at the Office or Agency for such Security where such exchange occurs
on or after (i) any Regular Record Date for such Security and before the
opening of business at such Office or Agency on the next succeeding Interest
Payment Date, or (ii) any Special Record Date for such Security and before
the opening of business at such Office or Agency on the related proposed date
for payment of interest or Defaulted Interest, as the case may be, interest
shall not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered Security, but shall
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, only to the Person to whom interest in respect of such portion of
such global Security shall be payable in accordance with the provisions of this
Indenture.


 


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


 


33














 


Every Registered Security presented or
surrendered for registration of transfer or for exchange or redemption shall
(if so required by the Company or the Security Registrar for such Security) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar for such Security 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, or redemption of Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge and any other expenses (including fees and expenses of the
Trustee) that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 3.4, 9.5
or 11.7 not involving any transfer.


 


Except as otherwise provided in or pursuant
to this Indenture, the Company shall not be required (i) to issue,
register the transfer of or exchange any Securities during a period beginning
at the opening of business 15 days before the day of mailing of a notice of
redemption of Securities of like tenor and the same series under Section 11.3
and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Registered Security selected for
redemption in whole or in part, except in the case of any Security to be
redeemed in part, the portion thereof not to be redeemed, or (iii) to
exchange any Bearer Security selected for redemption except, to the extent
provided with respect to such Bearer Security, that such Bearer Security may be
exchanged for a Registered Security of like tenor and the same series, provided
that such Registered Security shall be immediately surrendered for redemption
with written instruction for payment consistent with the provisions of this
Indenture or (iv) to issue, register the transfer of or exchange any
Security which, in accordance with its terms, has been surrendered for
repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.


 


Section 3.6                              Mutilated, Destroyed, Lost and Stolen
Securities.


 


If any mutilated Security or a Security with
a mutilated Coupon appertaining to it is surrendered to the Trustee, subject to
the provisions of this Section 3.6, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of
the same series containing identical terms and of like principal amount and
bearing a number not contemporaneously outstanding, with Coupons appertaining
thereto corresponding to the Coupons, if any, appertaining to the surrendered
Security.


 


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


 


34

















 


corresponding to the
Coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen Coupon appertains.


 


Notwithstanding the foregoing provisions of
this Section 3.6, in case any mutilated, destroyed, lost or stolen
Security or Coupon has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security, pay such
Security or Coupon; provided, however, that payment of principal of, any
premium or interest on or any Additional Amounts with respect to any Bearer
Securities shall, except as otherwise provided in Section 10.2, be payable
only at an Office or Agency for such Securities located outside the United
States and, unless otherwise provided in or pursuant to this Indenture, any
interest on Bearer Securities and any Additional Amounts with respect to such
interest shall be payable only upon presentation and surrender of the Coupons
appertaining thereto.


 


Upon the issuance of any new Security under
this Section 3.6, 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, with any Coupons
appertaining thereto issued pursuant to this Section 3.6 in lieu of any
destroyed, lost or stolen Security, or in exchange for a Security to which a
destroyed, lost or stolen Coupon appertains shall constitute a separate
obligation of the Company and the Guarantor, whether or not the destroyed, lost
or stolen Security and Coupons appertaining thereto or the destroyed, lost or
stolen Coupon shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Securities of such series and any Coupons, if any, duly issued
hereunder.


 


The provisions of this Section 3.6, as
amended or supplemented pursuant to this Indenture with respect to particular
Securities or generally, shall be exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or Coupons.


 


Section 3.7                              Payment of Interest and Certain
Additional Amounts; Rights to Interest and Certain Additional Amounts Preserved.


 


Unless otherwise provided in or pursuant to
this Indenture, any interest on and any Additional Amounts with respect to any
Registered Security which shall be payable, and are punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name such Security (or one or more Predecessor Securities) is registered as of
the close of business on the Regular Record Date for such interest.


 


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


 


35

















 


(1)  The Company or the Guarantor, as the case may be, may elect
to make payment of any Defaulted Interest to the Person in whose name such
Registered Security (or a Predecessor Security thereof) shall be registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed by the Company in the following
manner. The Company or the Guarantor, as the case may be, shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
such Registered Security, the Special Record Date therefor and the date of the
proposed payment, and at the same time the Company or the Guarantor, as the
case may be, shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit on or
prior to the date of the proposed payment, such money when so deposited to be
held in trust for the benefit of the Person entitled to such Defaulted Interest
as in this Clause provided. The Special Record Date for the payment of such
Defaulted Interest 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
notification to the Trustee of the proposed payment. The Trustee shall, in the
name and at the expense of the Company or the Guarantor, cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to the Holder of such
Registered Security (or a Predecessor Security thereof) at his address as it
appears in the Security Register not less than 10 days prior to such Special
Record Date. The Trustee may, in its discretion, in the name and at the expense
of the Company or the Guarantor, cause a similar notice to be published at
least once in an Authorized Newspaper of general circulation in the Borough of
Manhattan, The City of New York, but such publication shall not be a condition
precedent to the establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Person in whose name such Registered Security (or a Predecessor Security
thereof) shall be 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 or the Guarantor, as the case may be, may make
payment of any Defaulted Interest in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Security may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company or the Guarantor, as the case may be, to the
Trustee of the proposed payment pursuant to this Clause, such payment shall be
deemed practicable by the Trustee.


 


Unless otherwise provided in or pursuant to
this Indenture or the Securities of any particular series pursuant to the
provisions of this Indenture, at the option of the Company or the Guarantor,
interest on Registered Securities that bear interest may be paid by mailing a check
to the address of the Person entitled thereto as such address shall appear in
the Security Register or by transfer to an account maintained by the payee with
a bank located in the United States.


 


Subject to the foregoing provisions of this Section and
Section 3.5, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any


 


36

















 


other Security shall carry
the rights to interest accrued and unpaid, and to accrue, which were carried by
such other Security.


 


In the case of any Registered Security of any
series that is convertible into other securities of the Company or exchangeable
for securities of the Guarantor or another issuer, which Registered Security is
converted or exchanged after any Regular Record Date and on or prior to the
next succeeding Interest Payment Date (other than any Registered Security with
respect to which the Stated Maturity is prior to such Interest Payment Date),
interest with respect to which the Stated Maturity is on such Interest Payment
Date shall be payable on such Interest Payment Date notwithstanding such
conversion or exchange, and such interest (whether or not punctually paid or
duly provided for) shall be paid to the Person in whose name that Registered
Security (or one or more predecessor Registered 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
Registered Security which is converted or exchanged, interest with respect to
which the Stated Maturity is after the date of conversion or exchange of such
Registered Security shall not be payable.


 


Section 3.8                              Persons Deemed Owners.


 


Prior to due presentment of a Registered
Security for registration of transfer, the Company, the Guarantor, the Trustee
and any agent of the Company or the Guarantor or the Trustee may treat the
Person in whose name such Registered Security is registered in the Security Register
as the owner of such Registered Security for the purpose of receiving payment
of principal of, any premium and (subject to Sections 3.5 and 3.7) interest on
and any Additional Amounts with respect to such Registered Security and for all
other purposes whatsoever, whether or not any payment with respect to such
Registered Security shall be overdue, and none of the Company, the Guarantor,
the Trustee or any agent of the Company, the Guarantor or the Trustee shall be
affected by notice to the contrary.


 


The Company, the Guarantor, the Trustee and
any agent of the Company, the Guarantor or the Trustee may treat the bearer of
any Bearer Security or the bearer of any Coupon as the absolute owner of such
Security or Coupon for the purpose of receiving payment thereof or on account
thereof and for all other purposes whatsoever, whether or not any payment with
respect to such Security or Coupon shall be overdue, and none of the Company,
the Guarantor, the Trustee or any agent of the Company, the Guarantor or the Trustee
shall be affected by notice to the contrary.


 


No Holder of any beneficial interest in any
global Security held on its behalf by a Depository shall have any rights under
this Indenture with respect to such global Security, and such Depository may be
treated by the Company, the Guarantor, the Trustee, and any agent of the
Company, the Guarantor or the Trustee as the owner of such global Security for
all purposes whatsoever. None of the Company, the Guarantor, the Trustee, any
Paying Agent or the Security Registrar will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.


 


37

















 


Section 3.9                              Cancellation.


 


All Securities and Coupons surrendered for
payment, redemption, registration of transfer, 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 any such Securities
and Coupons, as well as Securities and Coupons surrendered directly to the
Trustee for any such purpose, shall be cancelled promptly by the Trustee. The
Company or the Guarantor may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company or the Guarantor may have acquired in any manner whatsoever,
and all Securities so delivered shall be cancelled promptly 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 or
pursuant to this Indenture. All cancelled Securities and Coupons held by the
Trustee shall be disposed of by the Trustee in accordance with its then
customary procedures, unless by a Company Order or Guarantor Order the Company
or the Guarantor, as the case may be, directs their return to it.


 


Section 3.10                        Computation of Interest.


 


Except as otherwise provided in or pursuant
to this Indenture or in any Security, interest on the Securities shall be
computed on the basis of a 360-day year of twelve 30-day months.


 


Section 3.11                        Extension of Interest Payment Period.


 


If specified as contemplated by Section 3.1
with respect to the Securities of a particular series and subject to the terms,
conditions and covenants, if any, so specified, the Company shall have the
right, at any time and from time to time during the term of such series, to
defer the payment of interest on such Securities for such period or periods as
may be specified as contemplated by Section 3.1 (each, an “Extension
Period”), during which Extension Periods the Company shall have the right to
make partial payments of interest on any Interest Payment Date. No Extension
Period shall end on a day other than an Interest Payment Date. At the end of
any such Extension Period, the Company shall pay all interest then accrued and
unpaid on the Securities (together with Additional Interest thereon, if any, at
the rate specified for the Securities of such series to the extent permitted by
applicable law). Prior to the termination of any such Extension Period, the
Company may further extend the interest payment period, provided that no
Extension Period shall exceed the period or periods specified in such
Securities or extend beyond the Stated Maturity of the principal of such
Securities. Upon termination of any Extension Period and upon the payment of
all accrued and unpaid interest and any Additional Interest then due on any
Interest Payment Date, the Company may elect to begin a new Extension Period,
subject to the above requirements. No interest shall be due and payable during
an Extension Period, except at the end thereof.


 


The Company shall give the Holders of the
Securities of such series and the Trustee notice of its election to begin any
such Extension Period at least one Business Day prior to the Interest Payment
Date or, with respect to the Securities of a series issued to an Assured
Guaranty Trust, prior to the earlier of (i) the date the Distributions on
the Preferred Securities of such Assured Guaranty Trust are payable or (ii) the
date the trustees of such Assured Guaranty Trust are required to give notice to
any securities exchange or other applicable self-regulatory organization or to
holders of such Preferred Securities of the record date or the date such


 


38

















 


Distributions are payable,
but in any event not less than one Business Day prior to such record date.


 


The Company shall promptly give notice of the
Company’s election to begin any such Extension Period to the Holders of the
outstanding Securities of such series.


 


Section 3.12                        Right of Set-Off.


 


With respect to the Securities of a series
issued to an Assured Guaranty Trust, notwithstanding anything to the contrary
in this Indenture, the Company or the Guarantor, as applicable, shall each have
the right to set-off any payment it is otherwise required to make thereunder in
respect of any such Security to the extent the Company or the Guarantor, as
applicable, has theretofore made, or is concurrently on the date of such
payment making, a payment under the Preferred Securities Guarantee relating to
such Security or under Section 5.8 hereof, as applicable.


 


Section 3.13                        Agreed Tax Treatment.


 


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


 


Section 3.14                        Extension of Stated Maturity; Adjustment
of Stated Maturity Upon an Exchange.


 


If specified as contemplated by Section 3.1
with respect to the Securities of a particular series, the Company shall have
the right to (a) change the Stated Maturity of the principal of the
Securities of such series upon the liquidation of the applicable Assured
Guaranty Trust and the exchange of such Securities for the Preferred Securities
of such Assured Guaranty Trust, or (b) extend the Stated Maturity of the
principal of the Securities of such series; provided that, at the time any
election to extend such Stated Maturity is made and at the time of such
extension, (i) neither the Company nor the Guarantor is in bankruptcy,
otherwise insolvent or in liquidation, (ii) neither the Company nor the
Guarantor is in default in the payment of any interest or principal or
Additional Amounts on the Securities of such series or under the Guarantee in
respect thereof, as the case may be, and no deferred interest payments thereon
have accrued, (iii) the applicable Assured Guaranty Trust is not in
arrears on payments of Distributions on its Preferred Securities and no
deferred Distributions thereon have accumulated, (iv) the Securities of
such series are rated not less than BBB- by Standard & Poor’s Ratings
Services or Baa3 by Moody’s Investors Service, Inc. or the equivalent by
any other nationally recognized statistical rating organization and (v) the
extended Stated Maturity is no later than the 49th anniversary of the initial
issuance of the Preferred Securities of the applicable Assured Guaranty Trust;
provided, further, that, if the Company exercises its right to liquidate the
applicable Assured Guaranty Trust and exchange the Securities of such series
for the Preferred Securities of such Assured Guaranty Trust as specified in
clause (a) above, any changed Stated Maturity of the principal of the
Securities of such series shall be no earlier than the date that is five years
after the initial issue date of the Preferred Securities and no later than the
date 30 years (plus an


 


39

















 


extended term of up to an
additional 19 years if the above-referenced conditions are satisfied) after the
initial issue date of the Preferred Securities of the applicable Assured
Guaranty Trust.


 


ARTICLE 4


 


SATISFACTION AND DISCHARGE OF INDENTURE


 


Section 4.1                              Satisfaction and Discharge.


 


Upon the direction of the Company by a
Company Order or of the Guarantor by a Guarantor Order, this Indenture shall
cease to be of further effect with respect to any series of Securities
specified in such Company Order or Guarantor Order and any Coupons appertaining
thereto, and the Trustee, on receipt of a Company Order or a Guarantor Order,
at the expense of the Company and the Guarantor, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series,
when


 


(1) either


 


(1)  all Securities of such series theretofore authenticated and
delivered and all Coupons appertaining thereto (other than (i) Coupons
appertaining to Bearer Securities of such series surrendered in exchange for
Registered Securities of such series and maturing after such exchange whose
surrender is not required or has been waived as provided in Section 3.5, (ii) Securities
and Coupons of such series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.6, (iii) Coupons
appertaining to Securities of such series called for redemption and maturing
after the relevant Redemption Date whose surrender has been waived as provided
in Section 11.7, and (iv) Securities and Coupons of such series for
whose payment money has theretofore been deposited in trust or segregated and
held in trust by the Company or the Guarantor and thereafter repaid to the
Company or the Guarantor, as the case may be, or discharged from such trust, as
provided in Section 10.3) have been delivered to the Trustee for
cancellation;


 


or


 


(2)  all Securities of such series and, in the case of (i) or
(ii) below, any Coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation (i) have become due and payable, or (ii) will
become due and payable at their Stated Maturity within one year, or (iii) if
redeemable at the option of the Company, are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company and the Guarantor, and the Company or the Guarantor, in the case of
(i), (ii) or (iii) above, has deposited or caused to be deposited
with the Trustee as trust funds in trust for such purpose, money in the
Currency in which such Securities are payable in an amount sufficient to pay
and discharge the entire indebtedness on such Securities and any Coupons
appertaining thereto not theretofore delivered to the Trustee for cancellation,
including the principal of, any premium and interest (including any Additional
Interest) on, and any Additional Amounts with respect to such Securities and
any Coupons


 


40

















 


appertaining
thereto, to the date of such deposit (in the case of Securities which have
become due and payable) or to the Maturity thereof, as the case may be;


 


(3)  the Company or the Guarantor has paid or caused to be paid
all other sums payable hereunder by the Company and the Guarantor with respect
to the Outstanding Securities of such series and any Coupons appertaining
thereto; and


 


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


 


In the event there are Securities of two or
more series hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if requested to
do so with respect to Securities of such series as to which it is Trustee and
if the other conditions thereto are met.


 


Notwithstanding the satisfaction and
discharge of this Indenture with respect to any series of Securities, the
obligations of the Company and the Guarantor to the Trustee under Section 6.6
and, if money shall have been deposited with the Trustee pursuant to subclause (b) of
clause (1) of this Section, the obligations of the Company, the Guarantor
and the Trustee with respect to the Securities of such series under Sections
3.5, 3.6, 4.3, 10.2 and 10.3, with respect to the payment of Additional
Amounts, if any, with respect to such Securities as contemplated by Sections
10.4 and 17.2 (but only to the extent that the Additional Amounts payable with
respect to such Securities exceed the amount deposited in respect of such
Additional Amounts pursuant to Section 4.1(1)(b)), and with respect to any
rights to convert or exchange such Securities into securities of the Company or
the Guarantor or another issuer shall survive.


 


Section 4.2                              Defeasance and Covenant Defeasance.


 


(1)  Unless pursuant to Section 3.1, either or both of (i) defeasance
of the Securities of or within a series under clause (2) of this Section 4.2
shall not be applicable with respect to the Securities of such series or (ii) covenant
defeasance of the Securities of or within a series under clause (3) of
this Section 4.2 shall not be applicable with respect to the Securities of
such series, then such provisions, together with the other provisions of this Section 4.2
(with such modifications thereto as may be specified pursuant to Section 3.1
with respect to any Securities), shall be applicable to such Securities and any
Coupons appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any Coupons
appertaining thereto, elect to have Section 4.2(2) or Section 4.2(3) be
applied to such Outstanding Securities and any Coupons appertaining thereto
upon compliance with the conditions set forth below in this Section 4.2.


 


(2)  Upon the Company’s exercise of the above option applicable to
this Section 4.2(2) with respect to any Securities of or within a
series, the Company and the Guarantor shall be deemed to have been discharged
from its obligations with respect to such


 


41

















 


Outstanding
Securities and any Coupons appertaining thereto and under the Guarantee in
respect thereof, respectively, on the date the conditions set forth in clause (4) of
this Section 4.2 are satisfied (hereinafter, “defeasance”). For this
purpose, such defeasance means that the Company or the Guarantor shall be
deemed to have paid and discharged the entire Indebtedness represented by such
Outstanding Securities and any Coupons appertaining thereto, and under the
Guarantee in respect thereof, which shall thereafter be deemed to be “Outstanding”
only for the purposes of clause (5) of this Section 4.2 and the other
Sections of this Indenture referred to in clauses (i) and (ii) below,
and to have satisfied all of its other obligations under such Securities and
any Coupons appertaining thereto, and under the Guarantee in respect thereof,
and this Indenture insofar as such Securities and any Coupons appertaining
thereto, and the Guarantee in respect thereof, are concerned (and the Trustee,
at the expense of the Company and the Guarantor, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights
of Holders of such Outstanding Securities and any Coupons appertaining thereto
to receive, solely from the trust fund described in clause (4) of this Section 4.2
and as more fully set forth in such clause, payments in respect of the
principal of (and premium, if any) and interest (including any Additional
Interest), if any, on, and Additional Amounts, if any, with respect to, such
Securities and any Coupons appertaining thereto when such payments are due, and
any rights of such Holder to convert such Securities into other securities of
the Company or exchange such Securities for securities of the Guarantor or
another issuer, (ii) the obligations of the Company, the Guarantor and the
Trustee with respect to such Securities under Sections 3.5, 3.6, 10.2 and 10.3
and with respect to the payment of Additional Amounts, if any, on such
Securities as contemplated by Sections 10.4 and 17.2 (but only to the extent
that the Additional Amounts payable with respect to such Securities exceed the
amount deposited in respect of such Additional Amounts pursuant to Section 4.2(4)(a) below),
and with respect to any rights to convert such Securities into other securities
of the Company or exchange such Securities for securities of the Guarantor or
another issuer, (iii) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and (iv) this Section 4.2. The Company may
exercise its option under this Section 4.2(2) notwithstanding the
prior exercise of its option under clause (3) of this Section 4.2
with respect to such Securities and any Coupons appertaining thereto.


 


(3)  Upon the Company’s exercise of the option to have this Section 4.2(3) apply
with respect to any Securities of or within a series, the Company and the
Guarantor shall be released from their obligations under any covenant
applicable to such Securities specified pursuant to Section 3.1(20), with
respect to such Outstanding Securities and any Coupons appertaining thereto,
and the Guarantee in respect thereof, on and after the date the conditions set
forth in clause (4) of this Section 4.2 are satisfied (hereinafter, “covenant
defeasance”), and such Securities and any Coupons appertaining thereto shall
thereafter be deemed to be not “Outstanding” for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with any such covenant, but shall continue to be deemed “Outstanding”
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to such Outstanding Securities and any Coupons
appertaining thereto, the Company and the Guarantor may omit to comply with,
and shall have no liability in respect of, any term, condition or limitation
set forth in any such Section or such other


 


42

















 


covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
Section or such other covenant or by reason of reference in any such Section or
such other covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a default or an Event of Default
under Section 5.1(4) or 5.1(9) or otherwise, as the case may be,
but, except as specified above, the remainder of this Indenture and such
Securities and Coupons appertaining thereto and the Guarantee in respect
thereof shall be unaffected thereby.


 


(4)  The following shall be the conditions to application of
clause (2) or (3) of this Section 4.2 to any Outstanding
Securities of or within a series and any Coupons appertaining thereto and the
Guarantee in respect thereof:


 


(5)  The Company or the Guarantor shall irrevocably have deposited
or caused to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.7 who shall agree to comply with the provisions
of this Section 4.2 applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Securities and any
Coupons appertaining thereto, (1) an amount in Dollars or in such Foreign
Currency in which such Securities and any Coupons appertaining thereto are then
specified as payable at Stated Maturity, or (2) Government Obligations
applicable to such Securities and Coupons appertaining thereto (determined on
the basis of the Currency in which such Securities and Coupons appertaining
thereto are then specified as payable at Stated Maturity) 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 of principal of (and premium, if any) and interest (including any
Additional Interest), if any, on such Securities and any Coupons appertaining
thereto, money in an amount, or (3) a combination thereof, in any case, in
an amount, sufficient, without consideration of any reinvestment of such
principal and interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, (y) the
principal of (and premium, if any) and interest (including any Additional
Interest), if any, on such Outstanding Securities and any Coupons appertaining
thereto at the Stated Maturity of such principal or installment of principal or
premium or interest and (z) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities and any Coupons appertaining
thereto on the days on which such payments are due and payable in accordance
with the terms of this Indenture and of such Securities and any Coupons
appertaining thereto.


 


(6)  Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company or the Guarantor is
a party or by which either of them is bound.


 


(7)  No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to such Securities
and any Coupons appertaining thereto shall have occurred and be continuing on
the date of such deposit


 


43

















 


and, with respect
to defeasance only, at any time during the period ending on the 123rd day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).


 


(8)  In the case of an election under clause (2) of this Section 4.2,
the Company or the Guarantor shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Company or the Guarantor has received from the
Internal Revenue Service a letter ruling, or there has been published by the
Internal Revenue Service a Revenue Ruling, or (ii) since the date of
execution of this Indenture, there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Outstanding Securities and any
Coupons appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had not occurred.


 


(9)  In the case of an election under clause (3) of this Section 4.2,
the Company or the Guarantor shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Outstanding Securities and any
Coupons appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such covenant defeasance had not
occurred.


 


(10)  The Company or the Guarantor shall have delivered to the
Trustee an Opinion of Counsel to the effect that, after the 123rd day after the
date of deposit, all money and Government Obligations (or other property as may
be provided pursuant to Section 3.1) (including the proceeds thereof)
deposited or caused to be deposited with the Trustee (or other qualifying
trustee) pursuant to this clause (4) to be held in trust will not be
subject to any case or proceeding (whether voluntary or involuntary) in respect
of the Company or the Guarantor under any Federal or State bankruptcy,
insolvency, reorganization or other similar law, or any decree or order for
relief in respect of the Company or the Guarantor issued in connection
therewith.


 


(11)  The Company and the
Guarantor shall have delivered to the Trustee an Officer’s Certificate and a
Guarantor’s Officer’s Certificate and the Company or the Guarantor shall have
delivered to the Trustee an Opinion of Counsel, each stating that all
conditions precedent to the defeasance or covenant defeasance under clause (2) or
(3) of this Section 4.2 (as the case may be) have been complied with.


 


(12)  Notwithstanding any other
provisions of this Section 4.2(4), such defeasance or covenant defeasance
shall be effected in compliance with any additional or substitute terms, conditions
or limitations which may be imposed on the Company or the Guarantor in
connection therewith pursuant to Section 3.1.


 


(13)  Unless otherwise specified
in or pursuant to this Indenture or any Security, if, after a deposit referred
to in Section 4.2(4)(a) has been made, (a) the Holder of a


 


44

















 


Security in
respect of which such deposit was made is entitled to, and does, elect pursuant
to Section 3.1 or the terms of such Security to receive payment in a
Currency other than that in which the deposit pursuant to Section 4.2(4)(a) has
been made in respect of such Security, or (b) a Conversion Event occurs in
respect of the Foreign Currency in which the deposit pursuant to Section 4.2(4)(a) has
been made, the indebtedness represented by such Security and any Coupons
appertaining thereto shall be deemed to have been, and will be, fully
discharged and satisfied through the payment of the principal of (and premium,
if any), and interest (including any Additional Interest), if any, on, and
Additional Amounts, if any, with respect to, such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property deposited
in respect of such Security into the Currency in which such Security becomes
payable as a result of such election or Conversion Event based on (x) in
the case of payments made pursuant to clause (a) above, the applicable
market exchange rate for such Currency in effect on the second Business Day
prior to each payment date, or (y) with respect to a Conversion Event, the
applicable market exchange rate for such Foreign Currency in effect (as nearly
as feasible) at the time of the Conversion Event.


 


The Company and the Guarantor (without
duplication) shall pay and indemnify the Trustee (or other qualifying trustee,
collectively for purposes of this Section 4.2(5) and Section 4.3,
the “Trustee”) against any tax, fee or other charge, imposed on or assessed
against the Government Obligations deposited pursuant to this Section 4.2
or the principal or interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of such
Outstanding Securities and any Coupons appertaining thereto.


 


Anything in this Section 4.2 to the
contrary notwithstanding, the Trustee shall deliver or pay to the Company from
time to time upon Company Request, or the Guarantor upon Guarantor Request, as
the case may be, any money or Government Obligations (or other property and any
proceeds therefrom) held by it as provided in clause (4) of this Section 4.2
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 a defeasance or covenant defeasance, as applicable, in
accordance with this Section 4.2.


 


Section 4.3                              Application of Trust Money.


 


Subject to the provisions of the last
paragraph of Section 10.3, all money and Government Obligations (or other
property as may be provided pursuant to Section 3.1) (including the
proceeds thereof) deposited with the Trustee pursuant to Section 4.1 or 4.2
in respect of any Outstanding Securities of any series and any Coupons
appertaining thereto shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and any Coupons appertaining
thereto and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent or the
Guarantor acting as Paying Agent) as the Trustee may determine, to the Holders
of such Securities and any Coupons appertaining thereto of all sums due and to
become due thereon in respect of principal (and premium, if any) and interest
(including any Additional Interest) and


 


45














 


Additional Amounts, if any;
but such money and Government Obligations need not be segregated from other
funds except to the extent required by law.


 


ARTICLE 5


 


REMEDIES


 


Section 5.1                              Events of Default.


 


“Event of Default,” wherever used herein with
respect to Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or 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), unless such event is specifically
deleted or modified in or pursuant to the supplemental indenture, Board
Resolution or Officer’s Certificate establishing the terms of such Series pursuant
to this Indenture:


 


(1)  default in the payment of any interest on any Security of
such series, including any Additional Interest in respect thereof, or any
Additional Amounts payable with respect thereto, when such interest becomes or
such Additional Amounts become due and payable, and continuance of such default
for a period of 30 days (subject to any deferral of any due date in the case of
an Extension Period); or


 


(2)  default in the payment of the principal of or any premium on
any Security of such series, or any Additional Amounts payable with respect
thereto, when such principal or premium becomes or such Additional Amounts
become due and payable at their Maturity; or


 


(3)  default in the deposit of any sinking fund payment when and
as due by the terms of a Security of such series; or


 


(4)  default in the performance, or breach, of any covenant or
warranty of the Company or the Guarantor in this Indenture or the Securities
(other than a covenant or warranty a default in the performance or the breach
of which is elsewhere in this Section specifically dealt with or which has
been expressly included in this Indenture solely for the benefit of a series of
Securities other than such 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 and the Guarantor by the Trustee or to the Company, the
Guarantor and the Trustee by the Holders of at least 25% in principal amount of
the Outstanding Securities of such series or, if that series of Securities is
held by an Assured Guaranty Trust, the holders of at least 25% in liquidation
amount of the Preferred Securities of that Assured Guaranty Trust then
outstanding, a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a “Notice of Default”
hereunder; or


 


(5)  if any event of default as defined in any mortgage, indenture
or instrument under which there may be issued, or by which there may be secured
or evidenced, any Indebtedness of the Company or the Guarantor (including, in
each case, an Event of


 


46

















 


Default under any
other series of Securities), whether such Indebtedness now exists or shall
hereafter be created or incurred, shall happen and shall consist of default in
the payment of more than $50,000,000 in principal amount of such Indebtedness
at the maturity thereof (after giving effect to any applicable grace period) or
shall result in such Indebtedness in principal amount in excess of $50,000,000
becoming or being declared due and payable prior to the date on which it would
otherwise become due and payable, and such default shall not be cured or such
acceleration shall not be rescinded or annulled within a period of 30 days
after there shall have been given, by registered or certified mail, to the
Company and the Guarantor by the Trustee or to the Company, the Guarantor and
the Trustee by the Holders of at least 25% in principal amount of the Outstanding
Securities of such series or, if that series of Securities is held by an
Assured Guaranty Trust, the holders of at least 25% in liquidation amount of
the Preferred Securities of that Assured Guaranty Trust then outstanding, a
written notice specifying such event of default and requiring the Company or
the Guarantor to cause such acceleration to be rescinded or annulled or to
cause such Indebtedness to be discharged and stating that such notice is a “Notice
of Default” hereunder; or


 


(6)  the Company or the Guarantor shall fail within 60 days to
pay, bond or otherwise discharge any uninsured judgment or court order for the
payment of money in excess of $50,000,000, which is not stayed on appeal or is
not otherwise being appropriately contested in good faith; or


 


(7)  the entry by a court having competent jurisdiction of:


 


(8)  a decree or order for relief in respect of the Company or the
Guarantor in an involuntary proceeding under any applicable bankruptcy,
insolvency, reorganization (other than a reorganization under a foreign law
that does not relate to insolvency) or other similar law and such decree or
order shall remain unstayed and in effect for a period of 60 consecutive days;
or


 


(9)  a decree or order adjudging the Company or the Guarantor to
be insolvent, or approving a petition seeking reorganization (other than a
reorganization under a foreign law that does not relate to insolvency),
arrangement, adjustment or composition of the Company or the Guarantor and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or


 


(10)  a final and non-appealable order appointing a custodian,
receiver, liquidator, assignee, trustee or other similar official of the
Company or the Guarantor of any substantial part of the property of the Company
or the Guarantor or ordering the winding up or liquidation of the affairs of
the Company or the Guarantor; or


 


(11)  the commencement by the
Company or the Guarantor of a voluntary proceeding under any applicable
bankruptcy, insolvency, reorganization (other than a reorganization under a
foreign law that does not relate to insolvency) or other similar law or of a
voluntary proceeding seeking to be adjudicated insolvent or the consent by the
Company or the Guarantor to the entry of a decree or order for relief in an
involuntary proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar


 


47

















 


law or to the
commencement of any insolvency proceedings against it, or the filing by the
Company or the Guarantor of a petition or answer or consent seeking
reorganization, arrangement, adjustment or composition of the Company or relief
under any applicable law, or the consent by the Company or the Guarantor to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee or similar official of the
Company or the Guarantor or any substantial part of the property of the Company
or the Guarantor or the making by the Company or the Guarantor of an assignment
for the benefit of creditors, or the taking of corporate action by the Company
or the Guarantor in furtherance of any such action; or


 


(12)  any other Event of Default
provided in or pursuant to this Indenture with respect to Securities of such
series.


 


Section 5.2                              Acceleration of Maturity; Rescission and
Annulment.


 


If an Event of Default with respect to
Securities of any series at the time Outstanding (other than an Event of
Default specified in clause (7) or (8) of Section 5.1) occurs
and is continuing, then the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of such series may declare the
principal of all the Securities of such series, or such lesser amount as may be
provided for in the Securities of such series, to be due and payable
immediately, by a notice in writing to the Company and the Guarantor (and to
the Trustee if given by the Holders), and upon any such declaration such
principal or such lesser amount shall become immediately due and payable;
provided that, in the case of Securities of a series issued to an Assured
Guaranty Trust, if, upon an Event of Default, the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of such series
fail to declare the principal of all the Securities of such series, or such
lesser amount as may be provided for in the Securities of such series, to be
immediately due and payable, the holders of at least 25% in liquidation amount
of the Preferred Securities of such Assured Guaranty Trust then outstanding
shall have such right by a notice in writing to the Company, the Guarantor, the
Trustee and the Property Trustee; and upon any such declaration such principal
or such lesser amount and all accrued and unpaid interest (including any
Additional Interest) thereon shall become immediately due and payable, provided
that the payment of principal and interest and all other amounts due with
respect to such Securities shall remain subordinated to the extent provided in Article 16.


 


If an Event of Default specified in clause (7) or
(8) of Section 5.1 occurs, all unpaid principal of and accrued
interest (including any Additional Interest) on the Outstanding Securities of
that series (or such lesser amount as may be provided for in the Securities of
such series) shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder of any
Security of that series.


 


At any time after a declaration of
acceleration with respect to the Securities of any series has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of not
less than a majority in principal amount of the Outstanding Securities of such
series (subject to, in the case of any series of Securities held as assets of
an Assured Guaranty Trust, such consent of the holders of the Preferred
Securities and the Common Securities of such Assured Guaranty Trust as may be


 


48

















 


required under the Trust
Agreement of such Assured Guaranty Trust), by written notice to the Company,
the Guarantor and the Trustee, may rescind and annul such declaration and its
consequences if


 


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


 


(2)  all overdue installments of any interest (including any
Additional Interest) on and Additional Amounts with respect to all Securities
of such series and any Coupon appertaining thereto,


 


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


 


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


 


(5)  all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and all other amounts due the Trustee under Section 6.6;
and


 


(6)  all Events of Default with respect to Securities of such
series, other than the non-payment of the principal of, any premium and
interest on, and any Additional Amounts with respect to Securities of such
series which shall have become due solely by such declaration of acceleration,
shall have been cured or waived as provided in Section 5.13.


 


In the case of Securities of a series issued
to an Assured Guaranty Trust, should the Holders of such Securities fail to
rescind and annul such declaration and its consequences, the holders of a
majority in liquidation amount of the Preferred Securities of such Assured
Guaranty Trust then outstanding shall have such right by written notice to the
Company, the Guarantor, the Trustee and the Property Trustee, subject to
satisfaction of the conditions set forth in clauses (1) and (2) above
of this Section 5.2.


 


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


 


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


 


The Company and the Guarantor each covenants,
in each case, that if


 


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


 


49

















 


(2)  default is made in the payment of the principal of or any
premium on any Security or any Additional Amounts with respect thereto at their
Maturity, the Company or the Guarantor, as the case may be, shall, upon demand
of the Trustee, pay to the Trustee, for the benefit of the Holders of such
Securities and any Coupons appertaining thereto, the whole amount of money then
due and payable with respect to such Securities and any Coupons appertaining
thereto, with interest (including any Additional Interest) upon the overdue
principal, any premium and (to the extent that payment of such interest shall
be legally enforceable and, if the Securities are held by an Assured Guaranty
Trust, without duplication of any other amounts paid to such Assured Guaranty
Trust in respect thereof) upon any overdue installments of interest and
Additional Amounts at the rate or rates borne by or provided for in such
Securities, and, in addition thereto, such further amount of money 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 and all other amounts due to the Trustee under Section 6.6.


 


If the Company or the Guarantor fails to pay
the money it is required to pay the Trustee pursuant to the preceding paragraph
forthwith upon the demand of the Trustee, the Trustee, in its own name and as
trustee of an express trust, may institute a judicial proceeding for the
collection of the money so due and unpaid, and may prosecute such proceeding to
judgment or final decree, and may enforce the same against the Company or the
Guarantor or any other obligor upon such Securities and any Coupons
appertaining thereto and collect the monies adjudged or decreed to be payable
in the manner provided by law out of the property of the Company or the
Guarantor or any other obligor upon such Securities and any Coupons
appertaining thereto, wherever situated.


 


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


 


Section 5.4                              Trustee May File Proofs of Claim.


 


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


 


50

















 


(1)  to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of any applicable
series, of the principal and any premium, interest (including any Additional
Interest) and Additional Amounts owing and unpaid in respect of the Securities
and any Coupons appertaining thereto and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents or counsel) and of the Holders of
Securities or any Coupons appertaining thereto allowed in such judicial
proceeding, and (2) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder of Securities or any Coupons to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 6.6.


 


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


 


Section 5.5                              Trustee May Enforce Claims without
Possession of Securities or Coupons.


 


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


 


Section 5.6                              Application of Money Collected.


 


Any money collected by the Trustee pursuant
to this Article and any money or other property distributable in respect
of the Company’s or the Guarantor’s obligations under this Indenture after 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, interest
(including any Additional Interest) or Additional Amounts, upon presentation of
the Securities or Coupons, or both, as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:


 


FIRST: To the payment of all amounts due the
Trustee and any predecessor Trustee under Section 6.6;


 


51

















 


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


 


THIRD: The balance, if any, to the Person or
Persons entitled thereto.


 


Section 5.7                              Limitations on Suits.


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 5.8                              Unconditional Right of Holders to Receive
Principal and any Premium, Interest and Additional Amounts.


 


Notwithstanding any other provision in this
Indenture, the Holder of any Security or Coupon shall have the right, which is
absolute and unconditional, to receive payment of the principal of, any premium
and (subject to Sections 3.5, 3.7 and 3.11) interest (including any Additional
Interest) on, and any Additional Amounts with respect to such Security or
payment of such Coupon, as the case may be, on the respective Stated Maturity
or Maturities therefor specified in such Security or Coupon (or, in the case of
redemption, on the Redemption Date or,


 


52

















 


in the case of repayment at
the option of such Holder if provided in or pursuant to this Indenture, on the
date such repayment is due) and to institute suit for the enforcement of any
such payment, and such right shall not be impaired without the consent of such
Holder. In the case of Securities of a series issued to an Assured Guaranty
Trust, any holder of Preferred Securities issued by such Assured Guaranty Trust
shall have the right, upon the occurrence of an Event of Default described in Section 5.1(1) or
5.1(2) hereof, to institute directly a proceeding against the Company or
the Guarantor, as the case may be, for enforcement of payment to such holder of
principal of, and any premium and (subject to Sections 3.5, 3.7 and 3.11)
interest (including any Additional Interest) on, and Additional Amounts with
respect to, such Securities having a principal amount equal to the liquidation
amount of such Preferred Securities held by such holder (a “Direct Action”).
Notwithstanding any payments made to a holder of Preferred Securities by the
Company or the Guarantor in connection with a Direct Action, the Company and
the Guarantor shall remain obligated to pay the principal of and premium, if
any, or interest on and Additional Amounts, if any, with respect to the related
Securities, and the Company or the Guarantor shall be subrogated to the rights
of the holder of such Preferred Securities with respect to payments on the
Preferred Securities to the extent of any payments made by the Company or the
Guarantor, as the case may be, to such holder in any Direct Action.


 


Section 5.9                              Restoration of Rights and Remedies.


 


If the Trustee or any Holder of a Security or
a Coupon has, or the holders of Preferred Securities have, 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, to such Holder or to the holders of such
Preferred Securities, then and in every such case the Company, the Guarantor,
the Trustee and each such Holder or the holders of such Preferred Securities
shall, subject to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder, and thereafter all rights
and remedies of the Trustee and each such Holder or the holders of such
Preferred Securities 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
or Coupons in the last paragraph of Section 3.6, no right or remedy herein
conferred upon or reserved to the Trustee, to each and every Holder of a
Security or a Coupon or to the holders of Preferred Securities is intended to
be exclusive of any other right or remedy, and every right and remedy, to the
extent permitted by law, shall be cumulative and in addition to every 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, to the extent permitted by law, 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 Security or Coupon or of the holders of Preferred 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


 


53

















 


or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or
to any Holder of a Security or a Coupon or to the holders of Preferred
Securities may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee, by such Holder or by such holders of Preferred
Securities, as the case may be.


 


Section 5.12                        Control by Holders of Securities.


 


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


 


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


 


(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 the
other Holders of Securities of such series not joining in such action.


 


(4)  such direction shall not involve the Trustee in personal
liability.


 


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 on behalf of the
Holders of all the Securities of such series and any Coupons appertaining
thereto and, in the case of any Securities issued to an Assured Guaranty Trust,
the holders of not less than a majority in liquidation amount of the Preferred
Securities issued by such Assured Guaranty Trust then outstanding, may waive
any past default hereunder with respect to such series and its consequences,
except a default


 


(1)  in the payment of the principal of, any premium or interest
(including any Additional Interest) on, or any Additional Amounts with respect
to, any Security of such series or any Coupons appertaining thereto, or


 


(2)  in respect of a covenant or provision hereof which under Article 9
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.


 


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


 


Section 5.14                        Waiver of Usury, Stay or Extension Laws.


 


The Company and the Guarantor each covenants
that (to the extent that it may lawfully do so) it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the


 


54

















 


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 and the Guarantor each expressly waives (to the extent that it may
lawfully do so) 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.


 


Section 5.15                        Undertaking for Costs


 


All parties to this Indenture agree, and each
Holder of any Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of any 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 to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 5.15 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in principal amount of
Outstanding Securities of any series or, if a series of Securities is held by
an Assured Guaranty Trust, the holders of more than 10% in liquidation amount
of the Preferred Securities of that Assured Guaranty Trust then outstanding, or
to any suit instituted by any Holder or any holder of Preferred Securities for
the enforcement of the payment of the principal of (or premium, if any) or
interest (including any Additional Interest), if any, on or Additional Amounts,
if any, with respect to any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date, and, in the case of repayment, on or after the date
for repayment) or for the enforcement of the right, if any, to convert or
exchange any Security into other securities in accordance with its terms.


 


ARTICLE 6


 


THE TRUSTEE


 


Section 6.1                              Certain Duties and Responsibilities.


 


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


 


(a)                                  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


 


(b)                                 in the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements 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


 


55

















 


they conform to
the requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein or any
conclusions stated therein).


 


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


 


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


 


(a)                                  this Subsection shall not be construed to
limit the effect of Subsections (a) or (d) of this Section 6.1;


 


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


 


(c)                                  the Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the 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.


 


(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 it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.


 


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


 


Section 6.2                              Certain Rights of Trustee.


 


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


 


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


 


56














 


(2)  any request or direction of the Company or of the Guarantor
mentioned herein shall be sufficiently evidenced by a Company Request or a
Company Order or by a Guarantor Request or Guarantor Order, as the case may be
(in each case, other than delivery of any Security, together with any Coupons
appertaining thereto, to the Trustee for authentication and delivery pursuant
to Section 3.3 which shall be sufficiently evidenced as provided therein)
and any resolution of the Board of Directors or of the Guarantor’s Board of
Directors may be sufficiently evidenced by a Board Resolution or by a Guarantor’s
Board Resolution, as the case may be;


 


(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
shall be herein specifically prescribed) may, in the absence of bad faith on
its part, conclusively rely upon an Officer’s Certificate or, if such matter
pertains to the Guarantor, a Guarantor’s Officer’s Certificate;


 


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


 


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


 


(6)  the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, coupon or other paper or document, but the Trustee, in its
discretion, may, but shall not be obligated to 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, during business hours and upon reasonable notice, the
books, records and premises of the Company and the Guarantor, 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 or
omitted to be taken by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture;


 


57

















 


(9)  the Trustee shall not be deemed to have notice or be charged
with knowledge of any default or Event of Default unless a Responsible Officer
of the Trustee has received written notice of such default or Event of Default
at the Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture;


 


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


 


(11)  the permissive right of the
Trustee to take or refrain from taking any actions enumerated in this Indenture
shall not be construed as a duty;


 


(12)  the Trustee may request
that the Company or the Guarantor, as the case may be, deliver an Officer’s
Certificate or Guarantor’s Officer’s Certificate, as the case may be, setting
forth the names of individuals and/or titles of officers authorized at such time
to take specified actions pursuant to this Indenture;


 


(13)  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 Company or Guarantor has been
advised as to the likelihood of such loss or damage and regardless of the form
of action;


 


(14)  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 reasonable 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; accidents; labor disputes; acts of civil or military authority and
governmental action;


 


Section 6.3                              Notice of Defaults.


 


Within 90 days after the occurrence of any
default hereunder with respect to the Securities of any series, the Trustee
shall transmit by mail to all Holders of Securities of such series entitled to
receive reports pursuant to Section 7.3(3), notice of such default
hereunder actually known to a Responsible Officer of the Trustee, unless such
default shall have been cured or waived; provided, however, that, except in the
case of a default in the payment of the principal of (or premium, if any), or
interest (including any Additional Interest), if any, on, or Additional Amounts
or any sinking fund or purchase fund installment with respect to, any Security
of such series, the Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the best interest of the
Holders of Securities and Coupons of such series; and provided, further, that
in the case of any default of the character specified in Section 5.1(5) 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


 


58

















 


the purpose of this Section,
the term “default” means any event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to Securities of such
series.


 


Section 6.4                              Not Responsible for Recitals or Issuance
of Securities.


 


The recitals contained herein and in the
Securities, except the Trustee’s certificate of authentication, and in any
Coupons shall be taken as the statements of the Company or the Guarantor, as
the case may be, 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 or the
Coupons, except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Securities and perform its
obligations hereunder and that the statements made by it in a Statement of
Eligibility on Form T-1 supplied to the Company are true and accurate,
subject to the qualifications set forth therein. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of the Securities or the proceeds thereof.


 


Section 6.5                              May Hold Securities.


 


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


 


Section 6.6                              Money Held in Trust.


 


Except as provided in Section 4.3 and Section 10.3,
money held by the Trustee in trust hereunder need not be segregated from other
funds except to the extent required by law and shall be held uninvested. The
Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed to in writing with the Company or the
Guarantor.


 


Section 6.7                              Compensation and Reimbursement.


 


The Company and the Guarantor (without
duplication) each agree:


 


(1)  to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee 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 or arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to the
Trustee’s gross negligence or willful misconduct; and


 


59

















 


(3)  to indemnify the Trustee and its agents, officers, directors
and employees for, and to hold them harmless against, any loss, damage, claims,
liability or expense (including taxes (other than taxes based upon, measured by
or determined by the income of the trustee)) incurred without gross negligence
or willful misconduct on their part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses of defending themselves against any claim (whether asserted
by the Company, the Guarantor, any Holder or any other Person) or liability
(including the compensation and expenses of counsel) in connection with the
exercise or performance of any of their powers or duties hereunder.


 


As security for the performance of the
obligations of the Company and the Guarantor under this Section, the Trustee
shall have a lien prior to the Securities of any series upon all property and
funds held or collected by the Trustee as such, except funds held in trust for
the payment of principal of, and premium or interest (including any Additional
Interest) on or any Additional Amounts with respect to particular Securities or
any Coupons appertaining thereto.


 


To the extent permitted by law, any
compensation due or expense incurred by the Trustee after a default specified
in or pursuant to Section 5.1 is intended to constitute an expense of
administration under any then applicable bankruptcy or insolvency law. “Trustee”
for purposes of this Section 6.6 shall include any predecessor Trustee but
the negligence or bad faith of any Trustee shall not affect the rights of any
other Trustee under this Section 6.6.


 


The provisions of this Section 6.6 shall
survive the satisfaction and discharge of this Indenture, the termination of
this Indenture for any reason, or the earlier resignation or removal of the
Trustee and shall apply with equal force and effect to the Trustee in its
capacity as Authenticating Agent, Paying Agent or Security Registrar.


 


Section 6.8                              Corporate Trustee Required; Eligibility.


 


There shall at all times be a Trustee
hereunder that is a Corporation organized and doing business under the laws of
the United States of America, any state thereof or the District of Columbia,
that is eligible under Section 310(a)(1) of the Trust Indenture Act
to act as trustee under an indenture qualified under the Trust Indenture Act
and that has a combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $50,000,000, and that is subject to
supervision or examination by Federal or state authority. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.


 


Section 6.9                              Resignation and Removal; Appointment of
Successor.


 


(1)  Resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee pursuant to Section 6.9.


 


(2)  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 and the Guarantor. If the instrument of acceptance by a successor
Trustee required by Section 6.9 shall not have been delivered to the
resigning Trustee or the Trustee being removed as hereafter


 


60

















 


provided within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to such series.


 


(3)  The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee,
the Company and the Guarantor.


 


(4)  If at any time:


 


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


 


(b)                                 the Trustee shall cease to be eligible
under Section 6.7 and shall fail to resign after written request therefor
by the Company, the Guarantor or any such Holder, or


 


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


 


(5)  If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by or
pursuant to a Board Resolution, and the Guarantor, by or pursuant to a
Guarantor’s Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of such 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 6.9. If, within one
year after such resignation, removal or incapacity, 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, the Guarantor
and the retiring Trustee, the successor Trustee so appointed shall, forthwith


 


61

















 


upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 6.9, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor Trustee
appointed by the Company and the Guarantor. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company and the Guarantor or the Holders of Securities and accepted appointment
in the manner required by Section 6.9, any Holder of a Security who has
been a bona fide Holder of a Security of such series for at least six months may,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.


 


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


 


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


 


Section 6.10                        Acceptance of Appointment by Successor.


 


(1)  Upon the appointment hereunder of any successor Trustee with
respect to all Securities, such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company, the Guarantor and the retiring Trustee
an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties hereunder of the retiring Trustee;
but, on the request of the Company, the Guarantor or such successor Trustee,
such retiring Trustee, upon payment of its charges, shall execute and deliver
an instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and, subject to Section 10.3, shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder, subject nevertheless to its lien,
provided for in Section 6.6.


 


(2)  Upon the appointment hereunder of any successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
Guarantor, the retiring Trustee and such successor Trustee 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,
such 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


 


62

















 


Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee,
and (3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee and that no Trustee shall be responsible
for any notice given to, or received by, or any act or failure to act on the
part of any other Trustee hereunder, and, upon the execution and delivery of
such supplemental indenture, the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein, such retiring Trustee shall
have no further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates other than as hereinafter
expressly set forth, 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 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, the Guarantor or such successor Trustee, such retiring
Trustee, upon payment of its charges with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates and
subject to Section 10.3 shall duly assign, transfer and deliver to such
successor Trustee, to the extent contemplated by such supplemental indenture,
the property and money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates, subject to its lien, provided for in Section 6.6.


 


(3)  Upon request of any Person appointed hereunder as a successor
Trustee, the Company and the Guarantor shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts referred to in paragraph (1) or
(2) of this Section, as the case may be.


 


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


 


Section 6.11                        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 of the
corporate agency or corporate trust business of the Trustee  shall
be the successor of the Trustee hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. 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


 


63

















 


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 6.12                        Appointment of Authenticating Agent.


 


The Trustee may appoint one or more
Authenticating Agents acceptable to the Company with respect to one or more
series of Securities which shall be authorized to act on behalf of the Trustee
to authenticate Securities of that or those series issued upon original issue,
exchange, registration of transfer, partial redemption or partial repayment or
pursuant to Section 3.6, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee’s certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent.


 


Each Authenticating Agent must be acceptable
to the Company and the Guarantor and, except as provided in or pursuant to this
Indenture, shall at all times be a Corporation that would be permitted by the
Trust Indenture Act to act as trustee under an indenture qualified under the
Trust Indenture Act, is authorized under applicable law and by its charter to
act as an Authenticating Agent and has a combined capital and surplus (computed
in accordance with Section 310(a)(2) of the Trust Indenture Act) of
at least $50,000,000. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect specified in this Section.


 


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


 


An Authenticating Agent may resign at any
time by giving written notice thereof to the Trustee, the Company and the
Guarantor. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent, the Company and the Guarantor. 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 the Guarantor and shall (i) mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Registered Securities, if any, of the series with respect to which
such Authenticating Agent shall serve, as their names and addresses appear in
the Security Register, and (ii) if Securities of the series are issued as
Bearer Securities, publish notice of such appointment at least once in an
Authorized Newspaper in the place where such successor Authenticating Agent has
its principal office if such office is located outside the United States. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers


 


64

















 


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 and the Guarantor (without
duplication) each agree to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments, subject
to the provisions of Section 6.6.


 


The provisions of Sections 3.8, 6.4 and 6.5
shall be applicable to each Authenticating Agent.


 


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


 


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


 


	
   

  	
  THE
  BANK OF NEW YORK MELLON, as

  
	
   

  	
  Trustee

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  as Authenticating Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  	
   

  



 


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


 


ARTICLE 7


 


HOLDERS LISTS AND REPORTS BY TRUSTEE, GUARANTOR AND
COMPANY


 


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


 


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


 


65

















 


(1)  semi-annually with respect to Securities of each series not
later than May 1 and November 1 of the year or upon such other dates
as are set forth in or pursuant to the Board Resolution or indenture
supplemental hereto authorizing such series, a list, in each case in such form
as the Trustee may reasonably require, of the names and addresses of Holders as
of the applicable date, and


 


(2)  at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company or the Guarantor of any such
request, a list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished, provided, however, that so long as
the Trustee is the Security Registrar no such list shall be required to be
furnished.


 


Section 7.2                              Preservation of Information;
Communications to Holders.


 


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


 


Every Holder of Securities or Coupons, by
receiving and holding the same, agrees with the Company, the Guarantor and the
Trustee that none of the Company, the Guarantor, the Trustee, any Paying Agent
or any Security Registrar shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Holders of
Securities in accordance with Section 312(c) of the Trust Indenture
Act, regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust
Indenture Act.


 


Section 7.3                              Reports by Trustee.


 


(1)  Within 60 days after September 15 of each year
commencing with the first September 15 following the first issuance of
Securities pursuant to Section 3.1, if required by Section 313(a) of
the Trust Indenture Act, the Trustee shall transmit, pursuant to Section 313(c) of
the Trust Indenture Act, a brief report dated as of such September 15 with
respect to any of the events specified in said Section 313(a) which
may have occurred since the later of the immediately preceding September 15
and the date of this Indenture.


 


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


 


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


 


Section 7.4                              Reports by Company and Guarantor.


 


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


 


(1)  file with the Trustee, within 15 days after the Company or
the Guarantor, as the case may be, is required to file the same with the
Commission, copies of the annual


 


66

















 


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


 


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


 


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


 


Delivery
of reports, information and documents to the Trustee under this Section 7.4
is for informational purposes only and the Trustee’s receipt of the foregoing
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company’s or
the Guarantor’s compliance with any of its respective covenants hereunder (as
to which the Trustee is entitled to rely exclusively on Officer’s Certificates
and Guarantor’s Officer’s Certificates, except as otherwise provided herein).


 


ARTICLE 8


 


CONSOLIDATION, AMALGAMATIONS, MERGER AND SALES


 


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


 


The Company shall not consolidate or
amalgamate with or merge into any other Person (whether or not affiliated with
the Company), or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any other Person (whether or not
affiliated with the Company), and the Company shall not permit any other Person
(whether or not affiliated with the Company) to consolidate or amalgamate with
or merge into the Company or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to the Company; unless:


 


67














 


(1)  in case the Company shall consolidate or amalgamate with or
merge into another Person or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to any Person, the Person
formed by such consolidation or amalgamation 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 as an entirety or substantially as an
entirety shall be a Corporation organized and existing under the laws of the
United States of America or any state thereof or the District of Columbia and
shall expressly assume, by an indenture (or indentures, if at such time there
is more than one Trustee) supplemental hereto, executed by the successor Person
and the Guarantor and delivered to the Trustee the due and punctual payment of
the principal of, any premium and interest (including any Additional Interest)
on and any Additional Amounts with respect to all the Securities and the
performance of every obligation in this Indenture and the Outstanding
Securities on the part of the Company to be performed or observed and shall
provide for conversion or exchange rights in accordance with the provisions of
the Securities of any series that are convertible or exchangeable into Common
Stock or other securities;


 


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


 


(3)  in the case of the Securities of a series issued to an
Assured Guaranty Trust, such transaction is permitted under the related Trust
Agreement and does not give rise to any breach or violation of such Trust
Agreement; and


 


(4)  either the Company or the successor Person shall have
delivered to the Trustee an Officer’s 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 8.2                              Successor Person Substituted for Company.


 


Upon any consolidation or amalgamation by 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 to any Person in accordance with Section 8.1, the successor
Person formed by such consolidation or amalgamation 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 released from all obligations and
covenants under this Indenture, the Securities and the Coupons.


 


68

















 


Section 8.3                              Guarantor May Consolidate, Etc.,
Only on Certain Terms.


 


The Guarantor shall not consolidate or
amalgamate with or merge into any other Person (whether or not affiliated with
the Guarantor), or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any other Person (whether or not
affiliated with the Guarantor), and the Guarantor shall not permit any other
Person (whether or not affiliated with the Guarantor) to consolidate or amalgamate
with or merge into the Guarantor or convey, transfer or lease its properties
and assets as an entirety or substantially as an entirety to the Guarantor;
unless:


 


(1)  in case the Guarantor shall consolidate or amalgamate with or
merge into another Person or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to any Person, the Person
formed by such consolidation or amalgamation or into which the Guarantor is
merged or the Person which acquires by conveyance or transfer, or which leases,
the properties and assets of the Guarantor as an entirety or substantially as
an entirety shall be a Corporation organized and existing under the laws of the
United States of America, any state thereof or the District of Columbia or
Bermuda, or any other country which is on the date of this Indenture a member
of the Organization for Economic Cooperation and Development, and shall
expressly assume, by an indenture (or indentures, if at such time there is more
than one Trustee) supplemental hereto, executed by the successor Person and the
Company and delivered to the Trustee the due and punctual payment of the
principal of, any premium and interest (including any Additional Interest) on
and any Additional Amounts with respect to all the Securities and the
performance of every obligation in this Indenture and the Outstanding
Securities on the part of the Guarantor to be performed or observed and shall
provide for conversion or exchange rights in accordance with the provisions of
the Securities of any series that are convertible or exchangeable into Common
Stock or other securities;


 


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


 


(3)  in the case of Securities of a series issued to an Assured
Guaranty Trust, such transaction is permitted under the related Guarantee
Agreement and does not give rise to any breach or violation of such Guarantee
Agreement; and


 


(4)  either the Guarantor or the successor Person shall have
delivered to the Trustee a Guarantor’s Officer’s 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 8.4                              Successor Person Substituted for Guarantor.


 


Upon any consolidation or amalgamation by the
Guarantor with or merger of the Guarantor into any other Person or any
conveyance, transfer or lease of the properties and assets 


 


69

















 


of the Guarantor substantially
as an entirety to any Person in accordance with Section 8.3, the successor
Person formed by such consolidation or amalgamation or into which the Guarantor
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
Guarantor under this Indenture with the same effect as if such successor Person
had been named as the Guarantor herein; and thereafter, except in the case of a
lease, the predecessor Person shall be released from all obligations and
covenants under this Indenture, the Securities and the Coupons.


 


ARTICLE 9


 


SUPPLEMENTAL INDENTURES


 


Section 9.1                              Supplemental Indentures without Consent
of Holders.


 


Without the consent of any Holders of
Securities or Coupons, the Company (when authorized by or pursuant to a Board
Resolution), the Guarantor (when authorized by or pursuant to a Guarantor’s
Board Resolution) and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, for any of the following
purposes:


 


(1)  to evidence the succession of another Person to the Company
or the Guarantor, and the assumption by any such successor of the covenants of
the Company or the Guarantor, as the case may be, contained herein and in the
Securities; or


 


(2)  to add to the covenants of the Company or the Guarantor, as
the case may be, for the benefit of the Holders of all or any series of
Securities (as shall be specified in such supplemental indenture or indentures)
or to surrender any right or power herein conferred upon the Company or the
Guarantor, as the case may be; or


 


(3)  to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal, to change
or eliminate any restrictions on the payment of principal of, any premium or
interest (including any Additional Interest) on or any Additional Amounts with
respect to Securities, to permit Bearer Securities to be issued in exchange for
Registered Securities, to permit Bearer Securities to be exchanged for Bearer
Securities of other authorized denominations or to permit or facilitate the
issuance of Securities in uncertificated form, provided any such action shall
not adversely affect the interests of the Holders of Outstanding Securities of
any series or any Coupons appertaining thereto in any material respect; or


 


(4)  to establish the form or terms of Securities of any series
and any Coupons appertaining thereto as permitted by Sections 2.1 and 3.1; or


 


(5)  to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section 6.9;
or


 


70

















 


(6)  to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not adversely affect, in any
material respect, the interests of the Holders of Securities of any series then
Outstanding or any Coupons appertaining thereto or, in the case of Securities
of a series issued to an Assured Guaranty Trust and for so long as any of the
Preferred Securities issued by such Assured Guaranty Trust shall remain outstanding,
the holders of such Preferred Securities; or


 


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


 


(8)  to add any additional Events of Default with respect to all
or any series of Securities (as shall be specified in such supplemental
indenture); or


 


(9)  to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article 4, provided that
any such action shall not adversely affect the interests of any Holder of an
Outstanding Security of such series and any Coupons appertaining thereto or any
other Outstanding Security or Coupon or, in the case of Securities of a series
issued to an Assured Guaranty Trust and for so long as any of the Preferred
Securities issued by such Assured Guaranty Trust shall remain outstanding, the
holders of such Preferred Securities, in any material respect; or


 


(10)  to secure the Securities; or


 


(11)  to make provisions with
respect to conversion or exchange rights of Holders of Securities of any
series; or


 


(12)  to amend or supplement any
provision contained herein or in any supplemental indenture, provided that no
such amendment or supplement shall materially adversely affect the interests of
the Holders of any Securities then Outstanding.


 


Section 9.2                              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 (and, in the case of any series
of Securities held as assets of an Assured Guaranty Trust, such consent of
holders of the Preferred Securities and the Common Securities of such Assured
Guaranty Trust as may be required under the Trust Agreement of such Assured
Guaranty Trust), by Act of said Holders delivered to the Company, the Guarantor
and the Trustee, the Company (when authorized by or pursuant to a Company’s
Board Resolution), the Guarantor (when authorized by or pursuant to a Guarantor’s
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 or of the Securities of such series; 


 


71

















 


provided, however, that no
such supplemental indenture, without the consent of the Holder of each
Outstanding Security affected thereby, shall


 


(1)  change the Stated Maturity of the principal of, or any
premium or installment of interest (including any Additional Interest) on or
any Additional Amounts with respect to, any Security, or reduce the principal
amount thereof or the rate (or modify the calculation of such rate) of interest
(including any Additional Interest) thereon or any Additional Amounts with
respect thereto, or any premium payable upon the redemption thereof or
otherwise, or change the obligation of the Company and the Guarantor to pay
Additional Amounts pursuant to the terms hereof (except as contemplated by Section 8.1(1) and
permitted by Section 9.1(1)), or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2
or the amount thereof provable in bankruptcy pursuant to Section 5.4,
change the redemption provisions or adversely affect the right of repayment at
the option of any Holder as contemplated by Article 13, or change the
Place of Payment, Currency in which the principal of, any premium or interest
(including any Additional Interest) on, or any Additional Amounts with respect
to any Security 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, in the case of
repayment at the option of the Holder, on or after the date for repayment), or


 


(2)  reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
reduce the requirements of Section 15.4 for quorum or voting, or


 


(3)  modify any of the provisions of this Indenture relating to
the subordination of the Securities or the Guarantee in respect thereof in a manner
adverse to Holders of Securities, or


 


(4)  modify or effect in any manner adverse to the Holders the
terms and conditions of the obligations of the Guarantor in respect of the due
and punctual payments of principal of, or any premium or interest (including
any Additional Interest) on, or any sinking fund requirements or Additional
Amounts with respect to, the Securities, or


 


(5)  modify any of the provisions of this Section, Section 5.13
or Section 10.6, 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, or


 


(6)  make any change that adversely affects the right to convert
or exchange any Security into or for securities of the Company or the Guarantor
or other securities (whether or not issued by the Company or the Guarantor),
cash or property in accordance 


 


72

















 


with its terms,
provided that, in the case of the Securities of a series issued to an Assured
Guaranty Trust, so long as any of the Preferred Securities of such Assured
Guaranty Trust remain outstanding, no such amendment shall be made that
adversely affects the holders of such Preferred Securities, and no termination
of this Indenture shall occur, and no waiver of any Event of Default or
compliance with any covenant under this Indenture shall be effective, without
the prior consent of the holders of at least a majority of the liquidation amount
of such Preferred Securities then outstanding unless and until the principal
of, any premium or, subject to Section 3.7, interest (including any
Additional Interest) on, and any Additional Amounts with respect to, the
Securities of such series have been paid in full; and provided further that in
the case of the Securities of a series issued to an Assured Guaranty Trust, so
long as any of the Preferred Securities of such Assured Guaranty Trust remain
outstanding, no amendment shall be made to Section 5.8 of this Indenture
without the prior consent of the holder of each Preferred Security then
outstanding unless and until the principal of, any premium or, subject to Section 3.7,
interest (including any Additional Interest) on, and any Additional Amounts with
respect to, the Securities of such series have been paid in full.


 


A supplemental indenture which changes or
eliminates any covenant or other provision of this Indenture which shall have
been included expressly and 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 of Securities or holders of Preferred Securities under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.


 


Section 9.3                              Execution of Supplemental Indentures.


 


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


 


Section 9.4                              Effect of Supplemental Indentures.


 


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


 


73

















 


Section 9.5                              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 9.6                              Conformity with Trust Indenture Act.


 


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


 


Section 9.7                              Effect on Senior Indebtedness.


 


No supplemental indenture shall directly or
indirectly modify or eliminate the provisions of Article 16 or Article 18,
as the case may be, in any manner which might terminate or impair the
subordination of the Securities of any series to Company Senior Indebtedness
with respect to such series or the subordination of the Guarantee in respect
thereof to Guarantor Senior Indebtedness with respect to such series,
respectively, without the prior written consent of the holders of such Company
Senior Indebtedness or Guarantor Senior Indebtedness, respectively.


 


Section 9.8                              Notice of Supplemental Indenture.


 


Promptly after the execution by the Company,
the Guarantor and the Trustee of any supplemental indenture pursuant to this
Article, the Company shall transmit to the Holders of Outstanding Securities of
any series affected thereby a notice setting forth the substance of such
supplemental indenture; provided, however, that the failure to transmit such
notice shall not affect the validity of such supplemental indenture.


 


ARTICLE 10


 


COVENANTS


 


Section 10.1                        Payment of Principal, any Premium,
Interest and Additional Amounts.


 


The Company covenants and agrees for the
benefit of the Holders of the Securities of each series that it will duly and
punctually pay the principal of, any premium and interest (including any
Additional Interest) on and any Additional Amounts with respect to the
Securities of such series in accordance with the terms thereof, any Coupons
appertaining thereto and this Indenture. Any interest due on any Bearer
Security on or before the Maturity thereof, and any Additional Amounts payable
with respect to such interest, shall be payable only upon presentation and
surrender of the Coupons appertaining thereto for such interest as they
severally mature.


 


74

















 


Section 10.2                        Maintenance of Office or Agency.


 


The Company and the Guarantor shall maintain
in each Place of Payment for any series of Securities an Office or Agency where
Securities of such series (but not Bearer Securities, except as otherwise
provided below, unless such Place of Payment is located outside the United
States) may be presented or surrendered for payment, where Securities of such
series may be surrendered for registration of transfer or exchange, where
Securities of such series that are convertible or exchangeable may be
surrendered for conversion or exchange, and where notices and demands to or
upon the Company or the Guarantor in respect of the Securities of such series
relating thereto and this Indenture may be served. If Securities of a series
are issuable as Bearer Securities, the Company and the Guarantor shall
maintain, subject to any laws or regulations applicable thereto, an Office or
Agency in a Place of Payment for such series which is located outside the United
States where Securities of such series and any Coupons appertaining thereto may
be presented and surrendered for payment; provided, however, that if the
Securities of such series are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company and the Guarantor shall maintain a Paying Agent
in London, Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of such series are listed
on such exchange. The Company and the Guarantor 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 or the Guarantor shall fail to maintain
any such required Office or Agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of such series and any Coupons appertaining thereto may be presented
and surrendered for payment at the place specified for the purpose with respect
to such Securities as provided in or pursuant to this Indenture, and the
Company and the Guarantor hereby appoint the Trustee as their agent to receive
all such presentations, surrenders, notices and demands.


 


Except as otherwise provided in or pursuant
to this Indenture, no payment of principal, premium, interest or Additional
Amounts with respect to Bearer Securities shall be made at any Office or Agency
in the United States or by check mailed to any address in the United States or
by transfer to an account maintained with a bank located in the United States;
provided, however, if amounts owing with respect to any Bearer Securities shall
be payable in Dollars, payment of principal of, any premium or interest on and
any Additional Amounts with respect to any such Security may be made at the
Corporate Trust Office of the Trustee or any Office or Agency designated by the
Company and the Guarantor in the Borough of Manhattan, The City of New York, if
(but only if) payment of the full amount of such principal, premium, interest
or Additional Amounts at all offices outside the United States maintained for
such purpose by the Company and the Guarantor in accordance with this Indenture
is illegal or effectively precluded by exchange controls or other similar
restrictions.


 


The Company and the Guarantor 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 or the Guarantor of its obligation to maintain an Office or Agency in
each Place of Payment for Securities of any series for such purposes. The
Company and the Guarantor shall give prompt written notice to the Trustee of
any such designation or rescission and of any change in the 


 


75

















 


location of any such other
Office or Agency. Unless otherwise provided in or pursuant to this Indenture,
the Company and the Guarantor hereby designate as the Place of Payment for each
series of Securities the Borough of Manhattan, The City of New York, and
initially appoint the Corporate Trust Office of the Trustee as the Office or
Agency of the Company in the Borough of Manhattan, The City of New York for
such purpose. The Company and the Guarantor may subsequently appoint a
different Office or Agency in the Borough of Manhattan, The City of New York
for the Securities of any series.


 


Unless otherwise specified with respect to
any Securities pursuant to Section 3.1, if and so long as the Securities
of any series (i) are denominated in a Foreign Currency or (ii) may
be payable in a Foreign Currency, or so long as it is required under any other
provision of this Indenture, then the Company will maintain with respect to
each such series of Securities, or as so required, at least one exchange rate
agent.


 


Section 10.3                        Money for Securities Payments to Be Held
in Trust.


 


If the Company shall at any time act as its
own Paying Agent, or if the Guarantor shall act as Paying Agent, with respect
to any series of Securities, it shall, on or before each due date of the
principal of, any premium or interest (including any Additional Interest) on or
Additional Amounts with respect to any of the Securities of such series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum in the currency or currencies, currency unit or units or composite currency
or currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 3.1 for the Securities of such
series) sufficient to pay the principal or any premium, interest (including any
Additional Interest) or Additional Amounts so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
shall 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 shall, on or prior to each due
date of the principal of, any premium or interest (including any Additional
Interest) on or any Additional Amounts with respect to any Securities of such
series, deposit with any Paying Agent a sum (in the currency or currencies, currency
unit or units or composite currency or currencies described in the preceding
paragraph) sufficient to pay the principal or any premium, interest (including
any Additional Interest) or Additional Amounts so becoming due, such sum to be
held in trust for the benefit of the Persons entitled thereto, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
its action or failure so to act.


 


The Company shall 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 shall:


 


(1)  hold all sums held by it for the payment of the principal of,
any premium or interest (including any Additional Interest) on or any
Additional Amounts with respect to Securities of such series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as provided in or pursuant to this Indenture;


 


76














 


(2)  give the Trustee notice of any default by the Company or the
Guarantor (or any other obligor upon the Securities of such series) in the
making of any payment of principal, any premium or interest (including any
Additional Interest) on or any Additional Amounts with respect to the
Securities of such series; and


 


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


 


The Company or the Guarantor 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 or Guarantor Order direct
any Paying Agent to pay, to the Trustee all sums held in trust by the Company,
the Guarantor or such Paying Agent, such sums to be held by the Trustee upon
the same terms as those upon which such sums were held by the Company, the
Guarantor 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 sums.


 


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


 


Section 10.4                        Additional Amounts.


 


If any Securities of a series provide for the
payment of Additional Amounts, the Company agrees to pay to the Holder of any
such Security or any Coupon appertaining thereto Additional Amounts as provided
in or pursuant to this Indenture or such Securities. Whenever in this Indenture
there is mentioned, in any context, the payment of the principal of or any
premium or interest on, or in respect of, any Security of any series or any
Coupon or the net proceeds received on the sale or exchange of any Security of
any series, such mention shall be deemed to include mention of the payment of
Additional Amounts provided by the terms of such series 


 


77

















 


established hereby or
pursuant hereto to the extent that, in such context, Additional Amounts are,
were or would be payable in respect thereof pursuant to such terms, and express
mention of the payment of Additional Amounts (if applicable) in any provision
hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.


 


Except as otherwise provided in or pursuant
to this Indenture or the Securities of the applicable series, if the Securities
of a series provide for the payment of Additional Amounts, at least 10 days
prior to the first Interest Payment Date with respect to such series of
Securities (or if the Securities of such series shall not bear interest prior
to Maturity, the first day on which a payment of principal is made), and at
least 10 days prior to each date of payment of principal or interest if there
has been any change with respect to the matters set forth in the
below-mentioned Officer’s Certificate, the Company shall furnish to the Trustee
and the principal Paying Agent or Paying Agents, if other than the Trustee, an
Officer’s Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of and premium, if any, or interest on
the Securities of such series shall be made to Holders of Securities of such
series or the Coupons appertaining thereto who are United States Aliens without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of such series. If any such withholding
shall be required, then such Officer’s Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of
Securities or Coupons, and the Company agrees to pay to the Trustee or such
Paying Agent the Additional Amounts required by the terms of such Securities.
The Company covenants to indemnify the Trustee and any Paying Agent for, and to
hold them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officer’s
Certificate furnished pursuant to this Section 10.4.


 


Section 10.5                        Corporate Existence.


 


Subject to Article 8, the Company and
the Guarantor shall do or cause to be done all things necessary to preserve and
keep in full force and effect their respective corporate existences and that of
each of their respective Subsidiaries and their respective rights (charter and
statutory) and franchises; provided, however, that the foregoing shall not
obligate the Company or the Guarantor or any of their respective Subsidiaries
to preserve any such right or franchise if the Company, the Guarantor or any
such Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of its business or the business of such Subsidiary and
that the loss thereof is not disadvantageous in any material respect to any
Holder.


 


Section 10.6                        Waiver of Certain Covenants.


 


The Company or the Guarantor, as the case may
be, may omit in any particular instance to comply with any term, provision or
condition set forth in Section 10.5 with respect to the Securities of any
series if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities of such series, by
Act of such Holders, either shall waive such compliance in such instance or
generally shall have waived 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 


 


78

















 


become effective, the
obligations of the Company and the Guarantor and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.


 


Section 10.7                        Company Statement as to Compliance;
Notice of Certain Defaults.


 


(1)  The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement (which need not be
contained in or accompanied by an Officer’s Certificate) signed by the
principal executive officer, the principal financial officer or the principal
accounting officer of the Company, stating that


 


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


 


(3)  to the best of his or her knowledge, based on such review, (a) the
Company has complied with all the conditions and covenants imposed on it under
this Indenture throughout such year, or, if there has been a default in the
fulfillment of any such condition or covenant, specifying each such default
known to him or her and the nature and status thereof, and (b) no event
has occurred and is continuing which is, or after notice or lapse of time or both
would become, an Event of Default, or, if such an event has occurred and is
continuing, specifying each such event known to him and the nature and status
thereof.


 


(4)  The Company shall deliver to the Trustee, within five days
after the occurrence thereof, written notice of any Event of Default or any
event which after notice or lapse of time or both would become an Event of
Default pursuant to clause (4) of Section 5.1.


 


Section 10.8                        Guarantor Statement as to Compliance;
Notice of Certain Defaults.


 


(1)  The Guarantor shall deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement (which need not be
contained in or accompanied by a Guarantor’s Officer’s Certificate) signed by
the principal executive officer, the principal financial officer or the
principal accounting officer of the Guarantor, stating that


 


(2)  a review of the activities of the Guarantor during such year
and of performance under this Indenture has been made under his or her
supervision, and


 


(3)  to the best of his or her knowledge, based on such review, (a) the
Guarantor has complied with conditions and covenants imposed on it under this
Indenture throughout such year, or, if there has been a default in the
fulfillment of any such condition or covenant, specifying each such default
known to him or her and the nature and status thereof, and (b) no event
has occurred and is continuing which constitutes, or which after notice or
lapse of time or both would become, an Event of Default, or, if such an event
has occurred and is continuing, specifying each such event known to him and the
nature and status thereof.


 


79

















 


(4)  The Guarantor shall deliver to the Trustee, within five days
after the occurrence thereof, written notice of any event which after notice or
lapse of time or both would become an Event of Default pursuant to clause (4) of
Section 5.1.


 


Section 10.9                        Additional Sums.


 


In the case of Securities of a series issued
to an Assured Guaranty Trust, except as otherwise specified as contemplated by Section 3.1,
in the event that (i) such Assured Guaranty Trust is the Holder of all of
the Outstanding Securities of such series, (ii) a Tax Event in respect of
such Assured Guaranty Trust shall have occurred and be continuing and (iii) the
Company shall not have (i) redeemed the Securities of such series pursuant
to Section 11.8 or (ii) terminated such Assured Guaranty Trust
pursuant to Section 9.2(b) of the related Trust Agreement, the
Company shall pay to such Assured Guaranty Trust (and its permitted successors
or assigns under the related Trust Agreement), for so long as such Assured
Guaranty Trust (or its permitted successor or assignee) is the registered
holder of any Securities of such series, such additional amounts as may be
necessary in order that the amount of Distributions then due and payable by
such Assured Guaranty Trust on the related Preferred Securities and Common
Securities that at any time remain outstanding in accordance with the terms
thereof shall not be reduced as a result of any Additional Taxes (the “Additional
Sums”). Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of or any premium or interest on, or in respect of,
any Security of any series or any Coupon or the net proceeds received on the
sale or exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of Additional Sums provided by the terms of such
series established hereby or pursuant hereto to the extent that, in such
context, Additional Sums are, were or would be payable in respect thereof
pursuant to such terms, and express mention of the payment of Additional Sums
(if applicable) in any provision hereof shall not be construed as excluding Additional
Sums in those provisions hereof where such express mention is not made,
provided, however, that the extension of an interest payment period pursuant to
Section 3.11 or the terms of the applicable Securities shall not extend
the payment of any Additional Sums that may be due and payable during such
interest payment period.


 


Section 10.10                  Prohibition Against Dividends, etc.


 


Except as otherwise specified as contemplated
by Section 3.1, the Company and the Guarantor each covenant and agree with
each Holder of Securities of a series issued to an Assured Guaranty Trust that
it will not, and will not permit any of its Subsidiaries to, (a) declare
or pay any dividends or distributions on, or redeem, purchase, acquire or make
a liquidation payment with respect to, any of the outstanding capital stock of
the Company or the Guarantor, as the case may be, or (b) make any payment
of principal of, interest or premium, if any, on or repay, repurchase or redeem
any debt security of the Company or the Guarantor, as the case may be, that
ranks junior in interest to the Securities of such series or the Guarantee in
respect thereof, as the case may be, or make any guarantee payments with
respect to any guarantee by the Company or the Guarantor, as the case may be,
of the debt securities of any Subsidiary of the Company or the Guarantor, as
the case may be, if such guarantee ranks junior in interest to the Securities
of such series or the Guarantee in respect thereof, as the case may be (other
than (i) dividends or distributions on the Capital Stock of the Company
paid or made to the Guarantor and dividends or distributions in Common Stock of
the Company or the Guarantor, as the case 


 


80

















 


may be, (ii) redemptions
or purchases of any rights outstanding under a shareholder rights plan of the
Company or the Guarantor, as the case may be, or the declaration of a dividend
of such rights or the issuance of stock under such plans in the future, (iii) payments
under any Preferred Securities Guarantee, and (iv) purchases of Common
Stock related to the issuance of Common Stock under any benefit plans of the
Company or the Guarantor, as the case may be, for its respective directors,
officers or employees) if at such time (1) there shall have occurred any
event of which the Company or the Guarantor, as the case may be, has actual
knowledge that (A) with the giving of notice or the lapse of time or both,
would constitute an Event o Default hereunder and (B) in respect of which
the Company or the Guarantor, as the case may be, shall not have taken
reasonable steps to cure, (2) the Guarantor shall be in default with
respect to its payment of any obligations under the related Preferred
Securities Guarantee or (3) the Company shall have given notice of its
election to begin an Extension Period as provided herein with respect to the
Securities of such series and shall not have rescinded such notice, or such
Extension Period, or any extension thereof, shall be continuing.


 


Section 10.11                  Payment of Expenses of each Assured
Guaranty Trust.


 


The Guarantor covenants for the benefit of
the Holders of each series of Securities to pay or cause to be paid all of the
obligations, costs and expenses of each Assured Guaranty Trust (other than
payments in respect of Trust Securities) in accordance with the provisions of
its Trust Agreement and to pay the taxes of such Assured Guaranty Trust in
accordance with the provisions of its Trust Agreement in order to permit such
Assured Guaranty Trust to make distributions on and redemptions of its
Preferred Securities in accordance with such Trust Agreement.


 


Section 10.12                  Ownership of Common Securities.


 


The Company covenants, as to each series of
Securities issued to an Assured Guaranty Trust in connection with the issuance
of Preferred Securities and Common Securities by that Assured Guaranty Trust, (a) to
maintain directly or indirectly 100% ownership of the Common Securities of such
Assured Guaranty Trust; provided, however, that any permitted successor of the
Company hereunder may succeed to the Company’s ownership of such Common
Securities, (b) not to voluntarily dissolve, wind-up or liquidate such
Assured Guaranty Trust, except in connection with (i) a distribution of
the Securities of such series to the holders of Preferred Securities and Common
Securities in liquidation of such Assured Guaranty Trust, (ii) the
redemption of all of the Preferred Securities and Common Securities of such
Assured Guaranty Trust or (iii) certain mergers, consolidations or
amalgamations, each as permitted by the Trust Agreement of such Assured
Guaranty Trust and (c) to use its reasonable efforts, consistent with the
terms and provisions of the related Trust Agreement, to cause such Assured
Guaranty Trust to remain classified as a grantor trust and not an association
taxable as a corporation for United States federal income tax purposes.


 


81

















 


ARTICLE 11


 


REDEMPTION OF SECURITIES


 


Section 11.1                        Applicability of Article.


 


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


 


Section 11.2                        Election to Redeem; Notice to Trustee.


 


The election of the Company to redeem any
Securities shall be evidenced by or pursuant to a Board Resolution. In case of
any redemption at the election of the Company of (a) less than all of the
Securities of any series or (b) all of the Securities of any series, with
the same issue date, interest rate or formula, Stated Maturity and other terms,
the Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities
of such series to be redeemed. If the Securities of a series are held by an
Assured Guaranty Trust, the Company shall also deliver a copy of such notice to
the Property Trustee of such Assured Guaranty Trust.


 


Section 11.3                        Selection by Trustee of Securities to be
Redeemed.


 


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


 


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


 


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


 


Unless otherwise specified in or pursuant to
this Indenture or the Securities of any series, if any Security selected for
partial redemption is converted into other securities of the Company or
exchanged for securities of the Guarantor or another issuer in part before
termination of the conversion or exchange right with respect to the portion of
the Security so selected, the converted portion of such Security shall be
deemed (so far as may be) to be the portion selected for redemption. Securities
which have been converted or exchanged during a selection of Securities to be
redeemed shall be treated by the Trustee as Outstanding for the purpose of such
selection.


 


82

















 


Section 11.4                        Notice of Redemption.


 


Notice of redemption shall be given in the
manner provided in Section 1.6, not less than 30 nor more than 60 days
prior to the Redemption Date, unless a shorter period is specified in the
Securities to be redeemed, to the Holders of Securities to be redeemed. Failure
to give notice by mailing in the manner herein provided to the Holder of any
Registered Securities designated for redemption as a whole or in part, or any
defect in the notice to any such Holder, shall not affect the validity of the
proceedings for the redemption of any other Securities or portion thereof.


 


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


 


All notices of redemption shall state:


 


(1)  the Redemption Date,


 


(2)  the Redemption Price,


 


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


 


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


 


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


 


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


 


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


 


(8)  that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for redemption
or the amount of any such missing Coupon or Coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the Company, the
Guarantor, the Trustee and any Paying Agent is furnished,


 


(9)  if Bearer Securities of any series are to be redeemed and no
Registered Securities of such series are to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on the Redemption Date 


 


83

















 


pursuant to Section 3.5
or otherwise, the last date, as determined by the Company, on which such
exchanges may be made,


 


(10)  in the case of Securities of any series that are convertible
into Common Stock of the Company or exchangeable for other securities, the
conversion or exchange price or rate, the date or dates on which the right to
convert or exchange the principal of the Securities of such series to be
redeemed will commence or terminate and the place or places where such
Securities may be surrendered for conversion or exchange, and


 


(11)  the CUSIP number or the
Euroclear or the Cedel reference numbers of such Securities, if any (or any
other numbers used by a Depository to identify such Securities).


 


A notice of redemption published as
contemplated by Section 1.6 need not identify particular Registered
Securities to be redeemed.


 


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


 


Section 11.5                        Deposit of Redemption Price.


 


On or prior to any Redemption Date, the
Company or the Guarantor shall deposit, with respect to the Securities of any
series called for redemption pursuant to Section 11.4, with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent or
the Guarantor is acting as Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money in the applicable Currency
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date, unless otherwise specified pursuant to Section 3.1
or in the Securities of such series) any accrued interest (including any
Additional Interest) on and Additional Amounts with respect thereto, all such
Securities or portions thereof which are to be redeemed on that date.


 


Section 11.6                        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 and the Guarantor shall default in the
payment of the Redemption Price and accrued interest) such Securities shall
cease to bear interest and the Coupons for such interest appertaining to any
Bearer Securities so to be redeemed, except to the extent provided below, shall
be void. Upon surrender of any such Security for redemption in accordance with
said notice, together with all Coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Company at the
Redemption Price, together with any accrued interest and Additional Amounts to
the Redemption Date; provided, however, that, except as otherwise provided in
or pursuant to this Indenture or the Bearer Securities of such series,
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only upon presentation and
surrender of Coupons for such interest (at an Office or Agency located outside
the United States except as otherwise provided in Section 10.2), and
provided, further, that, except as otherwise specified in or pursuant to this
Indenture or the Registered Securities of such 


 


84

















 


series, installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
Regular Record Dates therefor according to their terms and the provisions of Section 3.7.


 


If any Bearer Security surrendered for
redemption shall not be accompanied by all appurtenant Coupons maturing after
the Redemption Date, such Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all such missing
Coupons, or the surrender of such missing Coupon or Coupons may be waived by
the Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing Coupon in respect of which a deduction shall have
been made from the Redemption Price, such Holder shall be entitled to receive
the amount so deducted; provided, however, that any interest or Additional
Amounts represented by Coupons shall be payable only upon presentation and
surrender of those Coupons at an Office or Agency for such Security located
outside of the United States except as otherwise provided in Section 10.2.


 


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


 


Section 11.7                        Securities Redeemed in Part.


 


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


 


Section 11.8                        Right of Redemption of Securities Issued
to an Assured Guaranty Trust.


 


In the case of the Securities of a series
issued to an Assured Guaranty Trust, except as otherwise specified as
contemplated by Section 3.1, if a Special Event in respect of such Assured
Guaranty Trust shall occur and be continuing, the Company may, at its option,
redeem the Securities of such series within 90 days of the occurrence of such
Special Event, in whole but not in part, subject to the provisions of this Section 11.8
and the other provisions of this Article 11. Unless otherwise specified in
or pursuant to this Indenture or the Securities of such series, the 


 


85

















 


redemption price for any
Security so redeemed pursuant to this Section 11.8 shall be equal to 100%
of the principal amount of such Securities then Outstanding plus accrued and
unpaid interest, including any Additional Interest, to the date fixed for
redemption.


 


ARTICLE 12


 


SINKING FUNDS


 


Section 12.1                        Applicability of Article.


 


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


 


The minimum amount of any sinking fund
payment provided for by the terms of Securities of any series is herein
referred to as a “mandatory sinking fund payment,” and any payment in excess of
such minimum amount provided for by the terms of Securities of such series is
herein referred to as an “optional sinking fund payment”. If provided for by
the terms of Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 12.2. Each
sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series and this
Indenture.


 


Section 12.2                        Satisfaction of Sinking Fund Payments
with Securities.


 


The Company or the Guarantor may, in
satisfaction of all or any part of any sinking fund payment with respect to the
Securities of any series to be made pursuant to the terms of such Securities (1) deliver
Outstanding Securities of such series (other than any of such Securities
previously called for redemption or any of such Securities in respect of which
cash shall have been released to the Company), together in the case of any
Bearer Securities of such series with all unmatured Coupons appertaining
thereto, and (2) apply as a credit Securities of such series which have
been redeemed either at the election of the Company pursuant to the terms of
such series of Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, provided that
such series of Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be
reduced accordingly. If, as a result of the delivery or credit of Securities of
any series in lieu of cash payments pursuant to this Section 12.2, the
principal amount of Securities of such series to be redeemed in order to
satisfy the remaining sinking fund payment shall be less than $100,000, the
Trustee need not call Securities of such series for redemption, except upon
Company Request or Guarantor Request, and such cash payment shall be held by
the Trustee or a Paying Agent and applied to the next succeeding sinking fund
payment, provided, however, that the Trustee or such Paying Agent shall at the
request of the Company or the Guarantor from time to time pay over and deliver
to the Company or the Guarantor, as the case may be, any cash payment so being
held by the Trustee or such Paying Agent upon delivery by the Company or the
Guarantor to the Trustee of 


 


86

















 


Securities of that series
purchased by the Company or the Guarantor having an unpaid principal amount
equal to the cash payment requested to be released to the Company or the
Guarantor.


 


Section 12.3                        Redemption of Securities for Sinking
Fund.


 


Not less than 75 days prior to each sinking
fund payment date for any series of Securities, the Company shall deliver to
the Trustee an Officer’s Certificate specifying the amount of the next ensuing
mandatory sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satisfied by payment of
cash and the portion thereof, if any, which is to be satisfied by delivering
and crediting of Securities of that series pursuant to Section 12.2, and
the optional amount, if any, to be added in cash to the next ensuing mandatory
sinking fund payment, and will also deliver to the Trustee any Securities to be
so credited and not theretofore delivered. If such Officer’s Certificate shall
specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay the
amount therein specified. Not less than 60 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 11.3 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 11.4. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 11.6 and 11.7.


 


ARTICLE 13


 


REPAYMENT AT THE OPTION OF HOLDERS


 


Section 13.1                        Applicability of Article.


 


Securities of any series which are repayable
at the option of the Holders thereof before their Stated Maturity shall be
repaid in accordance with the terms of the Securities of such series. The
repayment of any principal amount of Securities pursuant to such option of the
Holder to require repayment of Securities before their Stated Maturity, for
purposes of Section 3.9, shall not operate as a payment, redemption or
satisfaction of the Indebtedness represented by such Securities unless and
until the Company, at its option, shall deliver or surrender the same to the
Trustee with a directive that such Securities be cancelled. Notwithstanding
anything to the contrary contained in this Section 13.1, in connection
with any repayment of Securities, the Company may arrange for the purchase of
any Securities by an agreement with one or more investment bankers or other
purchasers to purchase such Securities by paying to the Holders of such
Securities on or before the close of business on the repayment date an amount
not less than the repayment price payable by the Company on repayment of such
Securities, and the obligation of the Company to pay the repayment price of
such Securities shall be satisfied and discharged to the extent such payment is
so paid by such purchasers.


 


87














 


ARTICLE 14


 


SECURITIES IN FOREIGN CURRENCIES


 


Section 14.1                        Applicability of Article.


 


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


 


ARTICLE 15


 


MEETINGS OF HOLDERS OF SECURITIES


 


Section 15.1                        Purposes for Which Meetings May Be
Called.


 


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


 


Section 15.2                        Call, Notice and Place of Meetings.


 


(1)  The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 15.1, to be
held at such time and at such place in the Borough of Manhattan, The City of
New York, or, if Securities of such series have been issued in whole or in part
as Bearer Securities, in London or in such place outside the United States as
the Trustee shall determine. Notice of every meeting of Holders of Securities
of any series, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given,
in the manner provided in Section 1.6, not less than 21 nor more than 180
days prior to the date fixed for the meeting.


 


(2)  In case at any time the Company (by or pursuant to a Board
Resolution), the Guarantor (by or pursuant to a Guarantor’s Board Resolution)
or the Holders of at least 10% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting of
the Holders of Securities of such series for any purpose specified in Section 15.1,
by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed notice of or made
the first publication of the notice of such meeting within 21 days after
receipt of such request (whichever shall be required pursuant to Section 1.6)
or shall not thereafter proceed to cause the meeting to be held as provided
herein, then the Company, the Guarantor or the Holders of Securities of such
series in the amount above specified, as the case may be, may determine the
time and the place in the Borough of Manhattan, The City of New York, or, if
Securities of such series are to be issued as Bearer Securities, in


 


88

















 


London for such
meeting and may call such meeting for such purposes by giving notice thereof as
provided in clause (1) of this Section.


 


Section 15.3                        Persons Entitled to Vote at Meetings.


 


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


 


Section 15.4                        Quorum; Action.


 


The Persons entitled to vote a majority in
principal amount of the Outstanding Securities of a series shall constitute a
quorum for any meeting of Holders of Securities of such series. In the absence
of a quorum within 30 minutes after the time appointed for any such meeting,
the meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any
reconvened meeting, such reconvened meeting may be further adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such reconvened meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in Section 15.2(1),
except that such notice need be given only once not less than five days prior
to the date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum.


 


Except as limited by the proviso to Section 9.2,
any resolution presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted only by the affirmative
vote of the Holders of a majority in principal amount of the Outstanding
Securities of that series; provided, however, that, except as limited by the
proviso to Section 9.2, any resolution with respect to any request,
demand, authorization, direction, notice, consent, waiver or other Act which
this Indenture expressly provides may be made, given or taken by the Holders of
a specified percentage, which is less than a majority, in principal amount of
the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
by the affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of such series.


 


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


 


89

















 


Section 15.5                        Determination of Voting Rights; Conduct
and Adjournment of Meetings.


 


(1)  Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote, and
such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 1.4
and the appointment of any proxy shall be proved in the manner specified in Section 1.4
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 1.4
to certify to the holding of Bearer Securities. Such regulations may provide
that written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 1.4 or
other proof.


 


(2)  The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 15.2(2), in
which case the Company, the Guarantor or the Holders of Securities of the
series calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at
the meeting.


 


(3)  At any meeting, each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of
Securities of such series held or represented by him; provided, however, that
no vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be
not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.


 


(4)  Any meeting of Holders of Securities of any series duly
called pursuant to Section 15.2 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the meeting;
and the meeting may be held as so adjourned without further notice.


 


Section 15.6                        Counting Votes and Recording Action of
Meetings.


 


The vote upon any resolution submitted to any
meeting of Holders of Securities of any series shall be by written ballots on
which shall be subscribed the signatures of the Holders of Securities of such
series or of their representatives by proxy and the principal amounts and
serial numbers of the Outstanding Securities of such series held or represented
by them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the 


 


90

















 


meeting their verified
written reports in triplicate of all votes cast at the meeting. A record, at
least in triplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was given as provided in Section 15.2
and, if applicable, Section 15.4. Each copy shall be signed and verified
by the affidavits of the permanent chairman and secretary of the meeting and
one such copy shall be delivered to the Company and the Guarantor, and another
to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.


 


ARTICLE 16


 


SUBORDINATION OF SECURITIES


 


Section 16.1                        Agreement to Subordinate.


 


The Company covenants and agrees, and each
Holder of Securities issued hereunder and under any indenture supplemental
hereto or pursuant to a Board Resolution, Officer’s Certificate and Guarantor’s
Officer’s Certificate (“Additional Provisions”) by such Holder’s acceptance
thereof likewise covenants and agrees, that all Securities shall be issued
subject to the provisions of this Article 16; and each Holder of a
Security, whether upon original issue or upon transfer or assignment thereof,
accepts and agrees to be bound by such provisions.


 


The payment by the Company of the principal
of, any premium and interest (including any Additional Interest) on and any
Additional Amounts with respect to all Securities of each series issued
hereunder and under any Additional Provisions shall, to the extent and in the
manner hereinafter set forth, be subordinate in right of payment to the prior
payment in full of all Company Senior Indebtedness with respect to such series,
whether outstanding at the date of this Indenture or thereafter incurred.


 


No provision of this Article 16 shall
prevent the occurrence of any default or Event of Default hereunder.


 


Section 16.2                        Default on Company Senior Indebtedness.


 


In the event and during the continuation of
any default by the Company in the payment of principal, premium, interest or
any other amount due on any Company Senior Indebtedness with respect to the
Securities of any series, or in the event that the maturity of any Company
Senior Indebtedness with respect to the Securities of any series has been
accelerated because of a default, then, in either case, no payment shall be
made by the Company with respect to the principal (including redemption and
sinking fund payments) of, any premium or interest (including any Additional
Interest) on, or any Additional Amounts with respect to, the Securities of such
series.


 


In the event that, notwithstanding the
foregoing, any payment shall be received by the Trustee when such payment is
prohibited by the preceding paragraph of this Section 16.2, such 


 


91

















 


payment shall be held in
trust for the benefit of, and shall be paid over or delivered to, the holders
of such Company Senior Indebtedness or their respective representatives, or to
the trustee or trustees under any indenture pursuant to which any of such
Company Senior Indebtedness may have been issued, as their respective interests
may appear, but only to the extent that the holders of such Company Senior
Indebtedness (or their representative or representatives or a trustee) notify
the Trustee in writing within 90 days of such payment of the amounts then due
and owing on such Company Senior Indebtedness and only the amounts specified in
such notice to the Trustee shall be paid to the holders of such Company Senior
Indebtedness.


 


Section 16.3                        Liquidation; Dissolution; Bankruptcy.


 


Upon any payment by the Company or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to creditors upon any dissolution, winding-up,
liquidation or reorganization of the Company, whether voluntary or involuntary,
or in bankruptcy, insolvency, receivership or other proceedings, all amounts
due upon all Company Senior Indebtedness with respect to the Securities of any
series shall first be paid in full, or payment thereof provided for in money in
accordance with its terms, before any payment is made by the Company on account
of the principal of, premium or interest (including any Additional Interest)
on, or Additional Amounts with respect to, the Securities of such series; and
upon any such dissolution, winding-up, liquidation or reorganization, or in any
such bankruptcy, insolvency, receivership or other proceeding, any payment by
the Company, or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders or the Trustee
would be entitled to receive from the Company, except for the provisions of
this Article 16, shall be paid by the Company or by any receiver, trustee
in bankruptcy, liquidating trustee, agent or other Person making such payment
or distribution, or by the Holders or by the Trustee under this Indenture if
received by them or it, directly to the holders of such Company Senior
Indebtedness (pro rata to such holders on the basis of the respective amounts
of such Company Senior Indebtedness held by such holders, as calculated by the
Company) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing such
Company Senior Indebtedness may have been issued, as their respective interests
may appear, to the extent necessary to pay such Company Senior Indebtedness in
full, in money or money’s worth, after giving effect to any concurrent payment
or distribution to or for the holders of such Company Senior Indebtedness,
before any payment or distribution is made to the Holders of the Securities of
such series or to the Trustee.


 


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


 


92

















 


Indebtedness in full in
money in accordance with its terms, after giving effect to any concurrent
payment or distribution to or for the benefit of the holders of such Company
Senior Indebtedness.


 


For purposes of this Article 16, 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,
the payment of which is subordinated at least to the extent provided in this Article 16
with respect to the Securities of the relevant series to the payment of all
Company Senior Indebtedness with respect to the Securities of such series that
may at the time be outstanding, provided that (i) such Company Senior
Indebtedness is assumed by the new corporation, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the holders of such
Company Senior Indebtedness are not, without the consent of such holders,
altered by such reorganization or readjustment. The consolidation of the
Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the conveyance, transfer or
lease of its property as an entirety, or substantially as an entirety, to
another Person upon the terms and conditions provided for in Sections 8.1 and
8.2 of this Indenture shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 16.3 if
such other Person shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Sections 8.1 and 8.2 of this
Indenture. Nothing in Section 16.2 or in this Section 16.3 shall
apply to claims of, or payments to, the Trustee under or pursuant to Section 6.6
of this Indenture.


 


Section 16.4                        Subrogation.


 


Subject to the payment in full of all Company
Senior Indebtedness with respect to the Securities of any series, the rights of
the Holders of the Securities of such series shall be subrogated to the rights
of the holders of such Company Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to such
Company Senior Indebtedness until the principal of, any premium and interest
(including any Additional Interest) on, and any Additional Amounts with respect
to, the Securities of such series shall be paid in full; and, for the purposes
of such subrogation, no payments or distributions to the holders of such
Company Senior Indebtedness of any cash, property or securities to which the
Holders or the Trustee would be entitled except for the provisions of this Article 16,
and no payment over pursuant to the provisions of this Article 16 to or
for the benefit of the holders of such Company Senior Indebtedness by Holders
of the Securities of such series or the Trustee, shall, as between the Company,
its creditors other than holders of such Company Senior Indebtedness, and the
Holders of the Securities of such series, be deemed to be a payment by the
Company to or on account of such Company Senior Indebtedness. It is understood
that the provisions of this Article 16 are and are intended solely for the
purposes of defining the relative rights of the Holders of the Securities of
each series, on the one hand, and the holders of the Company Senior
Indebtedness with respect to the Securities of such series on the other hand.


 


Nothing contained in this Article 16 or
elsewhere in this Indenture, any Additional Provisions or in the Securities of
any series is intended to or shall impair, as between the Company, its
creditors other than the holders of Company Senior Indebtedness with respect to
the Securities of such series, and the Holders of the Securities of such series,
the obligation of the 


 


93

















 


Company, which is absolute
and unconditional, to pay to the Holders of the Securities of such series the
principal of, any premium and interest (including any Additional Interest) on,
and any Additional Amounts with respect to, the Securities of such series as
and when the same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights of the Holders of the
Securities of such series and creditors of the Company, other than the holders
of such Company Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or the Holder of any Security of such series from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article 16
of the holders of such Company Senior Indebtedness in respect of cash, property
or securities of the Company, as the case may be, received upon the exercise of
any such remedy.


 


Upon any payment or distribution of assets of
the Company referred to in this Article 16, the Trustee, subject to the
provisions of Article 6 of this Indenture, and the Holders shall be
entitled to conclusively rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Holders of the
Securities of any series, for the purposes of ascertaining the Persons entitled
to participate in such distribution, the holders of Company Senior Indebtedness
with respect to the Securities of such series and other indebtedness of the
Company, as the case may be, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article 16.


 


Section 16.5                        Trustee to Effectuate Subordination.


 


Each Holder of Securities by such Holder’s
acceptance thereof authorizes and directs the Trustee on such Holder’s behalf
to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article 16 and appoints the Trustee such
Holder’s attorney-in-fact for any and all such purposes.


 


Section 16.6                        Notice by the Company.


 


The Company shall give prompt written notice
to a Responsible Officer of the Trustee of any fact known to the Company that
would prohibit the making of any payment of monies to or by the Trustee in
respect of the Securities of any series pursuant to the provisions of this Article 16.
Notwithstanding the provisions of this Article 16 or any other provision
of this Indenture or any Additional Provisions, the Trustee shall not be
charged with knowledge of the existence of any facts that would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Securities of any series pursuant to the provisions of this Article 16,
unless and until a Responsible Officer of the Trustee shall have received
written notice thereof from the Company or a holder or holders of Company
Senior Indebtedness with respect to the Securities of such series or from any
trustee therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Article 6 of this Indenture, shall
be entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice provided for in
this Section 16.6 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 


 


94

















 


limitation, the payment of
the principal of, any premium or interest (including any Additional Interest)
on, or any Additional Amounts with respect to, any Security of such series),
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such money and to apply the same
to the purposes for which they were received, and shall not be affected by any
notice to the contrary that may be received by it within two Business Days
prior to such date.


 


The Trustee, subject to the provisions of Article 6
of this Indenture, shall be entitled to conclusively rely on the delivery to it
of a written notice by a Person representing himself to be a holder of Company
Senior Indebtedness with respect to the Securities of any series (or a trustee
on behalf of such holder), to establish that such notice has been given by a
holder of such Company Senior Indebtedness or a trustee on behalf of any such
holder or holders. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a
holder of such Company Senior Indebtedness to participate in any payment or
distribution pursuant to this Article 16, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of such Company Senior Indebtedness held by such Person, the extent
to which such Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under this Article 16,
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.


 


Upon any payment or distribution of assets of
the Company referred to in this Article 16, the Trustee and the Holders
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,
liquidating trustee, custodian, receiver, assignee for the benefit of
creditors, agent or other Person making such payment or distribution, delivered
to the Trustee or to the Holders of the Securities of any series, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Company Senior Indebtedness with respect to the
Securities of such series and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article 16.


 


Section 16.7                        Rights of the Trustee; Holders of Company
Senior Indebtedness.


 


The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article 16 in respect of
any Company Senior Indebtedness with respect to the Securities of any series at
any time held by it, to the same extent as any other holder of such Company
Senior Indebtedness, and nothing in this Indenture or any Additional Provisions
shall deprive the Trustee of any of its rights as such holder.


 


With respect to the holders of Company Senior
Indebtedness with respect to the Securities of any series, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article 16, and no implied covenants
or obligations with respect to the holders of such Company Senior Indebtedness
shall be read into this Indenture or any Additional Provisions against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of such Company Senior Indebtedness 


 


95

















 


and, subject to the
provisions of Article 6 of this Indenture, the Trustee shall not be liable
to any holder of such Company Senior Indebtedness if it shall pay over or
deliver to Holders of the Securities of such series, the Company or any other
Person money or assets to which any holder of such Company Senior Indebtedness
shall be entitled by virtue of this Article 16 or otherwise.


 


Nothing in this Article 16 shall apply
to claims of, or payments to, the Trustee under or pursuant to Section 6.6.


 


Section 16.8                        Subordination May Not Be Impaired


 


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


 


Without in any way limiting the generality of
the foregoing paragraph, the holders of Company Senior Indebtedness with
respect to the Securities of any series may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of Securities of
such series, without incurring responsibility to such Holders and without
impairing or releasing the subordination provided in this Article 16 or
the obligations hereunder of the Holders of the Securities of such series to
the holders of such Company Senior Indebtedness, 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, such Company Senior Indebtedness, or
otherwise amend or supplement in any manner such Company Senior Indebtedness or
any instrument evidencing the same or any agreement under which such Company
Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such
Company Senior Indebtedness; (iii) release any Person liable in any manner
for the collection of such Company Senior Indebtedness; and (iv) exercise
or refrain from exercising any rights against the Company and any other Person.


 


ARTICLE 17


 


GUARANTEE AND INDEMNITY


 


Section 17.1                        The Guarantee.


 


The Guarantor hereby unconditionally
guarantees to each Holder of a Security authenticated and delivered by the
Trustee the due and punctual payment of the principal of, any premium and
interest (including any Additional Interest) on, any Additional Amounts, and,
if applicable, any Additional Sums with respect to such Security and the due
and punctual payment of the sinking fund payments (if any) provided for
pursuant to the terms of such Security, when and as the same shall become due
and payable, whether at maturity, by acceleration, redemption, repayment or
otherwise, in accordance with the terms of such Security and of this Indenture.
In case of the failure of the Company punctually to pay any such principal,
premium, interest (including any Additional Interest), Additional Amounts,
Additional Sums or sinking fund 


 


96

















 


payment, the Guarantor
hereby agrees to cause any such payment to be made punctually when and as the
same shall become due and payable, whether at maturity, upon acceleration,
redemption, repayment or otherwise, and as if such payment were made by the
Company.


 


Section 17.2                        Net Payments.


 


All payments of principal of and premium, if
any, interest (including any Additional Interest) and any other amounts on, or
in respect of, the Securities of any series or any Coupon appertaining thereto
shall be made by the Guarantor without withholding or deduction at source for,
or on account of, any present or future taxes, fees, duties, assessments or
governmental charges of whatever nature imposed or levied by or on behalf of
Bermuda (a “taxing jurisdiction”) or any political subdivision or taxing
authority thereof or therein, unless such taxes, fees, duties, assessments or
governmental charges are required to be withheld or deducted by (i) the
laws (or any regulations or ruling promulgated thereunder) of a taxing
jurisdiction or any political subdivision or taxing authority thereof or
therein or (ii) an official position regarding the application,
administration, interpretation or enforcement of any such laws, regulations or
rulings (including, without limitation, a holding by a court of competent
jurisdiction or by a taxing authority in a taxing jurisdiction or any political
subdivision thereof). If a withholding or deduction at source is required, the
Guarantor shall, subject to certain limitations and exceptions set forth below,
pay to the Holder of any such Security or any Coupon appertaining thereto such
Additional Amounts as may be necessary so that every net payment of principal,
premium, if any, interest or any other amount made to such Holder, after such
withholding or deduction, shall not be less than the amount provided for in
such Security, any Coupons appertaining thereto and this Indenture to be then
due and payable; provided, however, that the Guarantor shall not be required to
make payment of such Additional Amounts for or on account of:


 


(1)  any tax, fee, duty, assessment or governmental charge of
whatever nature which would not have been imposed but for the fact that such
Holder: (A) was a resident, domiciliary or national of, or engaged in
business or maintained a permanent 101 establishment or was physically present
in, the relevant taxing jurisdiction or any political subdivision thereof or
otherwise had some connection with the relevant taxing jurisdiction other than
by reason of the mere ownership of, or receipt of payment under, such Security;
(B) presented such Security for payment in the relevant taxing
jurisdiction or any political subdivision thereof, unless such Security could
not have been presented for payment elsewhere; or (C) presented such
Security more than thirty (30) days after the date on which the payment in
respect of such Security first became due and payable or provided for,
whichever is later, except to the extent that the Holder would have been
entitled to such Additional Amounts if it had presented such Security for
payment on any day within such period of thirty (30) days;


 


(2)  any estate, inheritance, gift, sale, transfer, personal
property or similar tax, assessment or other governmental charge;


 


(3)  any tax, assessment or other governmental charge that is
imposed or withheld by reason of the failure by the Holder or the beneficial
owner of such Security to comply with any reasonable request by the Guarantor
addressed to the Holder within 90 days of 


 


97

















 


such request (A) to
provide information concerning the nationality, residence or identity of the
Holder or such beneficial owner or (B) to make any declaration or other
similar claim or satisfy any information or reporting requirement, which, in
the case of (A) or (B), is required or imposed by statute, treaty,
regulation or administrative practice of the relevant taxing jurisdiction or
any political subdivision thereof as a precondition to exemption from all or
part of such tax, assessment or other governmental charge; or (4) any
combination of items (1), (2) and (3); nor shall Additional Amounts be
paid with respect to any payment of the principal of, or premium, if any,
interest or any other amounts on, any such Security to any Holder who is a
fiduciary or partnership or other than the sole beneficial owner of such
Security to the extent such payment would be required by the laws of the
relevant taxing jurisdiction (or any political subdivision or relevant taxing
authority thereof or therein) to be included in the income for tax purposes of a
beneficiary or partner or settlor with respect to such fiduciary or a member of
such partnership or a beneficial owner who would not have been entitled to such
Additional Amounts had it been the Holder of the Security.


 


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


 


Except as otherwise provided in or pursuant
to this Indenture or the Securities of the applicable series, at least 10 days
prior to the first Interest Payment Date with respect to a series of Securities
(or if the Securities of such series shall not bear interest prior to Maturity,
the first day on which a payment of principal is made), and at least 10 days
prior to each date of payment of principal or interest if there has been any
change with respect to the matters set forth in the below-mentioned Guarantor’s
Officer’s Certificate, the Guarantor shall furnish to the Trustee and the
principal Paying Agent or Paying Agents, if other than the Trustee, a Guarantor’s
Officer’s Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of and premium, if any, interest or
any other amounts on the Securities of such series shall be made to Holders of
Securities of such series or the Coupons appertaining thereto without
withholding for or on account of any tax, fee, duty, assessment or other
governmental charge described in this Section 17.2. If any such
withholding shall be required, then such Guarantor’s Officer’s Certificate
shall specify by taxing jurisdiction the amount, if any, required to be
withheld on such payments to such Holders of Securities or Coupons, and the
Guarantor agrees to pay to the Trustee or such Paying Agent the Additional
Amounts required by this Section 17.2. The Guarantor covenants to
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in connection with actions taken
or omitted by any of them in reliance on any Guarantor’s Officer’s Certificate
furnished pursuant to this Section 17.2.


 


98














 


Section 17.3                        Guarantee Unconditional, etc.


 


The Guarantor hereby agrees that its
obligations hereunder shall be as principal and not merely as surety, and shall
be absolute, irrevocable and unconditional, irrespective of, and shall be
unaffected by, any invalidity, irregularity or unenforceability of any Security
or this Indenture, any failure to enforce the provisions of any Security or
this Indenture, or any waiver, modification, consent or indulgence granted with
respect thereto by the Holder of such Security or the Trustee, the recovery of
any judgment against the Company or any action to enforce the same, or any
other circumstances which may otherwise constitute a legal or equitable
discharge of a surety or guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger, insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to any
such Security or the Indebtedness evidenced thereby and all demands whatsoever,
and covenants that this Guarantee will not be discharged except by payment in
full of the principal of, any premium and interest (including any Additional
Interest) on, and any Additional Amounts, and, if applicable, any Additional
Sums and sinking fund payments required with respect to, the Securities and the
complete performance of all other obligations contained in the Securities. The
Guarantor further agrees, to the fullest extent that it lawfully may do so,
that, as between the Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, the Maturity of the obligations guaranteed hereby
may be accelerated as provided in Section 5.2 hereof for the purposes of
this Guarantee, notwithstanding any stay, injunction or prohibition extant
under any bankruptcy, insolvency, reorganization or other similar law of any
jurisdiction preventing such acceleration in respect of the obligations
guaranteed hereby.


 


Section 17.4                        Reinstatement.


 


This Guarantee shall continue to be effective
or be reinstated, as the case may be, if at any time payment on any Security,
in whole or in part, is rescinded or must otherwise be restored to the Company
or the Guarantor upon the bankruptcy, liquidation or reorganization of the
Company or otherwise.


 


Section 17.5                        Subrogation.


 


The Guarantor shall be subrogated to all
rights of the Holder of any Security against the Company in respect of any
amounts paid to such Holder by the Guarantor pursuant to the provisions of this
Guarantee; provided, however, that the Guarantor shall not be entitled to
enforce, or to receive any payments arising out of or based upon, such right of
subrogation until the principal of, any premium and interest (including any
Additional Interest) on, and any Additional Amounts and, if applicable, any
Additional Sums and sinking fund payments required with respect to, all
Securities shall have been paid in full.


 


Section 17.6                        Indemnity.


 


As a separate and alternative stipulation,
the Guarantor unconditionally and irrevocably agrees that any sum expressed to
be payable by the Company under this Indenture, the Securities or the Coupons
but which is for any reason (whether or not now known or becoming known to the
Company, the Guarantor, the Trustee or any Holder of any Security or Coupon)
not 


 


99

















 


recoverable from the
Guarantor on the basis of a guarantee will nevertheless be recoverable from it
as if it were the sole principal debtor and will be paid by it to the Trustee
on demand. This indemnity constitutes a separate and independent obligation
from the other obligations in this Indenture, gives rise to a separate and
independent cause of action and will apply irrespective of any indulgence granted
by the Trustee or any Holder of any Security or Coupon.


 


ARTICLE 18


 


SUBORDINATION OF GUARANTEE


 


Section 18.1                        Agreement to Subordinate Guarantee.


 


The Guarantor covenants and agrees, and each
Holder of Securities issued hereunder and under any Additional Provisions, by
such Holder’s acceptance thereof likewise covenants and agrees, that all
Securities shall be issued subject to the provisions of this Article 18;
and each Holder of a Security, whether upon original issue or upon transfer or
assignment thereof, accepts and agrees to be bound by such provisions.


 


The payment by the Guarantor pursuant to the
Guarantee of the principal of, any premium and interest (including any
Additional Interest) on, any Additional Amounts and, if applicable, any
Additional Sums with respect to all Securities of each series issued hereunder
and under any Additional Provisions shall, to the extent and in the manner
hereinafter set forth, be subordinate in right of payment to the prior payment
in full of all Guarantor Senior Indebtedness with respect to such series,
whether outstanding at the date of this Indenture or thereafter incurred.


 


No provision of this Article 18 shall
prevent the occurrence of any default or Event of Default hereunder.


 


Section 18.2                        Default on Guarantor Senior Indebtedness.


 


In the event and during the continuation of
any default by the Guarantor in the payment of principal, premium, interest
(including any Additional Interest) or any other amount due on any Guarantor
Senior Indebtedness with respect to the Securities of any series, or in the
event that the maturity of any Guarantor Senior Indebtedness with respect to
the Securities of any series has been accelerated because of a default, then,
in either case, no payment shall be made by the Guarantor pursuant to the
Guarantee with respect to the principal (including redemption and sinking fund
payments) of, any premium or interest (including any Additional Interest) on,
or any Additional Amounts or, if applicable, Additional Sums with respect to,
the Securities of such series.


 


In the event that, notwithstanding the
foregoing, any payment shall be received by the Trustee when such payment is
prohibited by the preceding paragraph of this Section 18.2, such payment
shall be held in trust for the benefit of, and shall be paid over or delivered
to, the holders of such Guarantor Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Guarantor Senior Indebtedness may have been issued, as their
respective interests may appear, but only to the extent that the holders of
such Guarantor Senior Indebtedness (or their representative or 


 


100

















 


representatives or a
trustee) notify the Trustee in writing within 90 days of such payment of the
amounts then due and owing on such Guarantor Senior Indebtedness and only the
amounts specified in such notice to the Trustee shall be paid to the holders of
such Guarantor Senior Indebtedness.


 


Section 18.3                        Liquidation; Dissolution; Bankruptcy.


 


Upon any payment by the Guarantor or
distribution of assets of the Guarantor of any kind or character, whether in
cash, property or securities, to creditors upon any dissolution, winding-up,
liquidation or reorganization of the Guarantor, whether voluntary or
involuntary, or in bankruptcy, insolvency, receivership or other proceedings,
all amounts due upon all Guarantor Senior Indebtedness with respect to the
Securities of any series shall first be paid in full, or payment thereof
provided for in money in accordance with its terms, before any payment is made
by the Guarantor pursuant to the Guarantee on account of the principal of,
premium or interest (including any Additional Interest) on, or Additional
Amounts or, if applicable, Additional Sums with respect to, the Securities of
such series; and upon any such dissolution, winding-up, liquidation or
reorganization, or in any such bankruptcy, insolvency, receivership or other
proceeding, any payment by the Guarantor, or distribution of assets of the
Guarantor of any kind or character, whether in cash, property or securities, to
which the Holders or the Trustee would be entitled to receive from the
Guarantor, except for the provisions of this Article 18, shall be paid by
the Guarantor or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by the Holders or
by the Trustee under this Indenture if received by them or it, directly to the
holders of such Guarantor Senior Indebtedness (pro rata to such holders on the
basis of the respective amounts of such Guarantor Senior Indebtedness held by
such holders, as calculated by the Guarantor) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Guarantor Senior Indebtedness may have
been issued, as their respective interests may appear, to the extent necessary
to pay such Guarantor Senior Indebtedness in full, in money or money’s worth,
after giving effect to any concurrent payment or distribution to or for the
holders of such Guarantor Senior Indebtedness, before any payment or
distribution is made pursuant to the Guarantee to the Holders of the Securities
of such series or to the Trustee.


 


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


 


101

















 


For purposes of this Article 18, the
words “cash, property or securities” shall not be deemed to include shares of
stock of the Guarantor as reorganized or readjusted, or securities of the
Guarantor or any other corporation provided for by a plan of reorganization or
readjustment, the payment of which is subordinated at least to the extent
provided in this Article 18 with respect to the Guarantee in respect of
any series of Securities to the payment of all Guarantor Senior Indebtedness
with respect to the Securities of such series that may at the time be
outstanding, provided that (i) such Guarantor Senior Indebtedness is
assumed by the new corporation, if any, resulting from any such reorganization
or readjustment, and (ii) the rights of the holders of such Guarantor
Senior Indebtedness are not, without the consent of such holders, altered by
such reorganization or readjustment. The consolidation of the Guarantor with,
or the merger of the Guarantor into, another Person or the liquidation or
dissolution of the Guarantor following the conveyance, transfer or lease of its
property as an entirety, or substantially as an entirety, to another Person
upon the terms and conditions provided for in Sections 8.3 and 8.4 of this
Indenture shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 18.3 if such other Person
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Sections 8.3 and 8.4 of this Indenture. Nothing
in Section 18.2 or in this Section 18.3 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.6 of this
Indenture.


 


Section 18.4                        Subrogation.


 


Subject to the payment in full of all
Guarantor Senior Indebtedness with respect to the Securities of any series, the
rights of the Holders of the Securities of such series shall be subrogated to
the rights of the holders of such Guarantor Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Guarantor
applicable to such Guarantor Senior Indebtedness until the principal of, any
premium and interest (including any Additional Interest) on, and any Additional
Amounts or, if applicable, Additional Sums with respect to, the Securities of
such series shall be paid in full; and, for the purposes of such subrogation,
no payments or distributions to the holders of such Guarantor Senior
Indebtedness of any cash, property or securities to which the Holders or the
Trustee would be entitled except for the provisions of this Article 18,
and no payment over pursuant to the provisions of this Article 18 to or
for the benefit of the holders of such Guarantor Senior Indebtedness by Holders
of the Securities of such series or the Trustee, shall, as between the
Guarantor, its creditors other than holders of such Guarantor Senior
Indebtedness, and the Holders of the Securities of such series, be deemed to be
a payment by the Guarantor to or on account of such Guarantor Senior
Indebtedness. It is understood that the provisions of this Article 18 are
and are intended solely for the purposes of defining the relative rights of the
Holders of the Securities of each series, on the one hand, and the holders of
such Guarantor Senior Indebtedness with respect to the Securities of such
series on the other hand.


 


Nothing contained in this Article 18 or
elsewhere in this Indenture, any Additional Provisions or in the Securities of
any series is intended to or shall impair, as between the Guarantor, its
creditors other than the holders of Guarantor Senior Indebtedness with respect
to the Securities of such series, and the Holders of the Securities of such
series, the obligation of the Guarantor, which is absolute and unconditional,
to pay to the Holders of the Securities of such series pursuant to the
Guarantee the principal of, any premium and interest (including any Additional
Interest) on, and any Additional Amounts or, if applicable, Additional Sums
with 


 


102

















 


respect to, the Securities
of such series as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of the
Holders of the Securities of such series and creditors of the Guarantor, other
than the holders of such Guarantor Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or the Holder of any Security of such
series from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article 18
of the holders of such Guarantor Senior Indebtedness in respect of cash,
property or securities of the Guarantor, as the case may be, received upon the
exercise of any such remedy.


 


Upon any payment or distribution of assets of
the Guarantor referred to in this Article 18, the Trustee, subject to the
provisions of Article 6 of this Indenture, and the Holders shall be
entitled to conclusively rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Holders of the
Securities of any series, for the purposes of ascertaining the Persons entitled
to participate in such distribution, the holders of Guarantor Senior
Indebtedness with respect to the Securities of such series and other
indebtedness of the Guarantor, as the case may be, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article 18.


 


Section 18.5                        Trustee to Effectuate Subordination.


 


Each Holder of Securities by such Holder’s
acceptance thereof authorizes and directs the Trustee on such Holder’s behalf
to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article 18 and appoints the Trustee such
Holder’s attorney-in-fact for any and all such purposes.


 


Section 18.6                        Notice by the Guarantor.


 


The Guarantor shall give prompt written
notice to a Responsible Officer of the Trustee of any fact known to the
Guarantor that would prohibit the making of any payment of monies to or by the
Trustee in respect of the Securities of any series pursuant to the provisions
of this Article 18. Notwithstanding the provisions of this Article 18
or any other provision of this Indenture or any Additional Provisions, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment of monies to or by the Trustee in
respect of the Securities of any series pursuant to the provisions of this Article 18,
unless and until a Responsible Officer of the Trustee shall have received
written notice thereof from the Guarantor or a holder or holders of Guarantor
Senior Indebtedness with respect to the Securities of such series or from any
trustee therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Article 6 of this Indenture, shall
be entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice provided for in
this Section 18.6 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 pursuant to the Guarantee of the principal of,
any premium or interest (including any Additional Interest) on, or any
Additional Amounts or, if applicable, Additional Sums with respect to, any
Security of such series), then, anything herein contained to the 


 


103

















 


contrary notwithstanding,
the Trustee shall have full power and authority to receive such money and to
apply the same to the purposes for which they were received, and shall not be
affected by any notice to the contrary that may be received by it within two
Business Days prior to such date.


 


The Trustee, subject to the provisions of Article 6
of this Indenture, shall be entitled to conclusively rely on the delivery to it
of a written notice by a Person representing himself to be a holder of
Guarantor Senior Indebtedness with respect to the Securities of any series (or
a trustee on behalf of such holder), to establish that such notice has been
given by a holder of such Guarantor Senior Indebtedness or a trustee on behalf
of any such holder or holders. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of such Guarantor Senior Indebtedness to participate in any payment
or distribution pursuant to this Article 18, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of such Guarantor Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under
this Article 18, 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.


 


Upon any payment or distribution of assets of
the Guarantor referred to in this Article 18, the Trustee and the Holders
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,
liquidating trustee, custodian, receiver, assignee for the benefit of
creditors, agent or other Person making such payment or distribution, delivered
to the Trustee or to the Holders of the Securities of any series, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Guarantor Senior Indebtedness with respect to the
Securities of such series and other indebtedness of the Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article 18.


 


Section 18.7                        Rights of the Trustee; Holders of
Guarantor Senior Indebtedness.


 


The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article 18 in respect of
any Guarantor Senior Indebtedness with respect to the Securities of any series
at any time held by it, to the same extent as any other holder of such
Guarantor Senior Indebtedness, and nothing in this Indenture or any Additional
Provisions shall deprive the Trustee of any of its rights as such holder.


 


With respect to the holders of Guarantor
Senior Indebtedness with respect to the Securities of any series, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article 18, and no implied covenants
or obligations with respect to the holders of such Guarantor Senior
Indebtedness shall be read into this Indenture or any Additional Provisions
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of such Guarantor Senior Indebtedness and, subject to the
provisions of Article 6 of this Indenture, the Trustee shall not be liable
to any holder of such Guarantor Senior Indebtedness if it shall pay over or
deliver to Holders of the 


 


104

















 


Securities of such series,
the Guarantor or any other Person money or assets to which any holder of such
Guarantor Senior Indebtedness shall be entitled by virtue of this Article 18
or otherwise.


 


Nothing in this Article 18 shall apply
to claims of, or payments to, the Trustee under or pursuant to Section 6.6.


 


Section 18.8                        Subordination May Not Be Impaired.


 


No right of any present or future holder of
any Guarantor 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 Guarantor, or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Guarantor with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof that any such holder may have or otherwise be charged with.


 


Without in any way limiting the generality of
the foregoing paragraph, the holders of Guarantor Senior Indebtedness with
respect to the Securities of any series may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of Securities of
such series, without incurring responsibility to such Holders and without
impairing or releasing the subordination provided in this Article 18 or
the obligations hereunder of the Holders of the Securities of such series to
the holders of such Guarantor Senior Indebtedness, 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, such Guarantor Senior Indebtedness, or
otherwise amend or supplement in any manner such Guarantor Senior Indebtedness
or any instrument evidencing the same or any agreement under which such
Guarantor Senior Indebtedness is outstanding; (ii) sell, exchange, release
or otherwise deal with any property pledged, mortgaged or otherwise securing
such Guarantor Senior Indebtedness; (iii) release any Person liable in any
manner for the collection of such Guarantor Senior Indebtedness; and (iv) exercise
or refrain from exercising any rights against the Guarantor and any other
Person.


 


*  *  *


 


105

















 


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


 


	
   

  	
  ASSURED
  GUARANTY MUNICIPAL HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  ASSURED GUARANTY,

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK
  MELLON,

  
	
   

  	
  as
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


106