exv4w7






EXHIBIT 4.7




 





HUDSON VALLEY HOLDING CORP.,




Issuer




to




[NAME OF TRUSTEE],




Trustee




 





INDENTURE




 





Dated as of                     , 20      




Junior Subordinated Debentures




 





 









 





Reconciliation and tie between

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

and Indenture




     Reconciliation and tie between the Trust Indenture Act of 1939 (including cross-references to
provisions of Sections 310 to and including 317 which, pursuant to Section 318(c) of the Trust
Indenture Act of 1939, as amended by the Trust Reform Act of 1990, are a part of and govern the
Indenture whether or not physically contained therein) and the Junior Subordinated Indenture, dated
as of                                          , 20                    .



	 	 	 	     	 	 	 
	Trust Indenture Act Section	 	Indenture Section
	Section 310

	 	(a)(1), (2) and (5)
	 	 	Not Applicable

	 

	 	(a)(3)
	 	 	Not Applicable

	 

	 	(a)(4)
	 	 	Not Applicable

	 

	 	(b)
	 	 	608	 
	 

	 	 	 	 	610	 
	 

	 	(c)
	 	 	Not Applicable

	Section 311

	 	(a)
	 	 	613	 
	 

	 	(b)
	 	 	613	 
	 

	 	(b)(2)
	 	 	703	 
	 

	 	 	 	 	703	 
	Section 312

	 	(a)
	 	 	701	 
	 

	 	 	 	 	702	 
	 

	 	(b)
	 	 	702	 
	 

	 	(c)
	 	 	702	 
	Section 313

	 	(a)
	 	 	703	 
	 

	 	(b)
	 	 	703	 
	 

	 	(c)
	 	 	703	 
	 

	 	(d)
	 	 	703	 
	Section 314

	 	(a)(1), (2) and (3)
	 	 	704	 
	 

	 	(a)(4)
	 	    1007	 
	 

	 	(b)
	 	 	Not Applicable

	 

	 	(c)(1)
	 	 	102	 
	 

	 	(c)(2)
	 	 	102	 
	 

	 	(c)(3)
	 	 	Not Applicable

	 

	 	(d)
	 	 	Not Applicable

	 

	 	(e)
	 	 	102	 
	 

	 	(f)
	 	 	Not Applicable

	Section 315

	 	(a)
	 	 	601	 
	 

	 	(b)
	 	 	602	 
	 

	 	 	 	 	703	 
	 

	 	(c)
	 	 	601	 
	 

	 	(d)
	 	 	601	 
	 

	 	(d)(1)
	 	 	601	 
	 

	 	(d)(2)
	 	 	601	 
	 

	 	(d)(3)
	 	 	601	 
	 

	 	(e)
	 	 	514	 
	Section 316

	 	(a)
	 	 	101	 
	 

	 	(a)(1)(A)
	 	 	512	 
	 

	 	(a)(1)(B)
	 	 	513	 
	 

	 	(a)(2)
	 	 	Not Applicable

	 

	 	(b)
	 	 	508	 
	 

	 	(c)
	 	 	104	 
	Section 317

	 	(a)(1)
	 	 	503	 
	 

	 	(a)(2)
	 	 	504	 
	 

	 	(b)
	 	 	1003	 
	Section 318

	 	(a)
	 	 	108	 








 




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




 









 











     INDENTURE, dated as of                                         , 20           (the “Indenture”), between Hudson Valley Holding
Corp., 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 21 Scarsdale
Road, Yonkers, New York 10707, and [Name of Trustee], a banking association duly organized and
existing under the laws of [   ] (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 unsecured junior subordinated debentures, notes or other
evidences of indebtedness in series (hereinafter called the “Securities”) of substantially the
tenor hereinafter provided, 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 business trusts
(each a “Trust,” and collectively, the “Trusts”) of preferred trust interests in such Trusts (the
“Capital Securities”) and common interests in such Trusts (“Common Securities,” and collectively
with the Capital Securities, the “Trust Securities”) and to provide the terms and conditions upon
which the Securities are to be authenticated, issued and delivered.



     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.



     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 as follows:



ARTICLE ONE

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION




     Section 101. 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 GAAP;



     (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”);



     (6) provisions apply to successive events and transactions;



     (7) the term “merger” includes a statutory share exchange and the terms “merge” and “merged”
have correlative meanings;



     (8) the masculine gender includes the feminine and the neuter; and



     (9) references to agreements and other instruments include subsequent amendments and
supplements thereto.



 









 





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



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



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



     “Additional Tax Sums” has the meaning specified in Section 1004.



     “Administrative Trustee” means, in respect of any Trust, each Person identified as an
“Administrative Trustee” or an “Administrative Agent” in the related Trust Agreement, solely in
such Person’s capacity as Administrative Trustee or an Administrative Agent, as the case may be, of
such Trust under such Trust Agreement and not in such Person’s individual capacity, or any
successor administrative trustee or successor administrative agent, as the case may be, appointed
as therein provided.



     “Affiliate” means, with respect to any specified Person, any other Person directly or
indirectly controlling or controlled by or under direct or indirect common control with such
specified Person; provided however, no Trust to which Securities have been issued shall be deemed
to be an Affiliate of the Company. For the purposes of this definition, “control”, when used with
respect to any specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.



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



     “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.



     “Business Day” means, unless otherwise specified with respect to the Securities of any series
pursuant to Section 301, any day other than a Saturday, Sunday, other day on which banking
institutions in the City of New York and in the City of Yonkers are authorized or obligated by law,
regulation or executive order to close, or a day on which the Corporate Trust Office of the
Trustee, or, with respect to the Securities of a series initially issued to a Trust, the principal
office of the Property Trustee under the related Trustee Agreement, is closed for business;
provided that such term shall mean, when used with respect to any payment of principal of, or
premium or interest, if any, on, or any other amounts with respect to, the Securities of any series
to be made at any Place of Payment for such Securities, unless otherwise specified pursuant to
Section 301 with respect to such Securities, any day other than a Saturday, Sunday or other day on
which banking institutions in such Place of Payment are authorized or obligated by law, regulation
or executive order to close.



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



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



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



     “Common Stock” means the common stock, par value $0.01 per share of the Company.



     “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 the Chairman, the Chief Executive Officer, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee.



     “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 office of the Trustee at which at any time its
corporate trust business shall be administered, which at the dated hereof is located at                , or such other address as the Trustee may designate
from time to time by notice to the Holders and the Company, or the principal corporate trust office
of any successor Trustee (or such other address as such successor Trustee may designate from time
to time by notice to the Holders and the Company).



     “corporation” includes corporations, partnerships, associations, limited liability companies
and other companies, and business trusts.



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



     “Defaulted Interest” has the meaning specified in Section 307.



     “Depositary” means, with respect to any Security issuable or issued in the form of one or more
global Securities, the Person designated as depositary by the Company in or pursuant to this
Indenture, and, unless otherwise provided with respect to any Security, any successor to such
Person. If at any time there is more than one such Person, “Depositary” shall mean, with respect to
any Securities, the depositary which has been appointed with respect to such Securities.



     “Discount Security” means any security which provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502.



     “Distributions,” with respect to the Trust Securities issued by a Trust, means amounts payable
in respect of such Trust Securities as provided in the related Trust Agreement and referred to
therein as “Distributions.”



     “Direct Action” is a legal proceeding directly against the Company for enforcement of payment
to the Holder of the principal of or premium, if any, or interest on the Securities having a
principal amount equal to the liquidation amount of the Capital Securities held by the Holder for
enforcement of the conversion or exchange rights, as the case may be.



     “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 501.



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



     “Extension Period” shall have the meaning ascribed to it in Section 311.



     “GAAP” and “generally accepted accounting principles” mean, unless otherwise specified with
respect to any series of Securities pursuant to Section 301, such accounting principles as are
generally accepted in the United States of America as of the date or time of any computation
required hereunder.



     “Global Security” means a Security in the form prescribed in Section 204 evidencing all or
part of a series of Securities, issued to the Depositary or its nominee for such series and
registered in the name of such Depositary or its nominee.



 









 





     “Government Obligations” means securities which are (i) direct obligations of the United
States of America or the other government or governments in the confederation which issued the
foreign currency in which the principal of or any premium or interest on the relevant Security or
any other 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 guarantee by the Company of distributions on the Capital Securities of a
Trust to the extent provided in the related guarantee agreement.



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



     “Indebtedness” means, with respect to any Person: (1) every obligation of such Person for
money borrowed; (2) every obligation of such Person evidenced by bonds, debentures, notes or other
similar instruments, including obligations incurred in connection with the acquisition of property,
assets or businesses; (3) every reimbursement obligation of such Person with respect to letters of
credit, banker’s acceptances or similar facilities issued for the account of such Person; (4) every
obligation of such Person issued or assumed as the deferred purchase price of property or services,
but excluding trade accounts payable or accrued liabilities arising in the ordinary course of
business; (5) every capital lease obligation of such Person; (6) all Indebtedness of such Person,
whether incurred on or prior to the date of the Indenture or thereafter incurred, for claims in
respect of derivative products, including interest rate, foreign exchange rate and commodity
forward contracts, options and swaps and similar arrangements; (7) every obligation of the type
referred to in clauses (1) through (6) above of another person and all dividends of another person
the payment of which, in either case, such Person has guaranteed or is responsible or liable for,
directly or indirectly, as obligor or otherwise; (8) obligations of the type referred to in clauses
(1) through (7) above of another person secured by any lien on any property or asset of such
Person, whether or not the obligation is assumed by such Person; and (9) all deferrals, renewals,
extensions and refundings of, and amendments, modifications and supplements to, any of the
foregoing obligations.



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



     “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.



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



 









 





     “Investment Company Event” means the receipt by the Company and the Trust of an opinion of an
independent counsel experienced in matters relating to investment companies, 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”), there is more than an insubstantial risk that the Trust is
or within 90 days of the date of such opinion will be considered an “investment company” that is
required to be registered under the Investment Company Act, which Change in 1940 Act Law becomes
effective on or after the closing date of any series of Securities.



     “Junior Subordinated Payment” has the meaning specified in Section 1302.



     “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 or such Security, whether at the Stated Maturity or by declaration of acceleration, upon
redemption at the option of the Company, upon repurchase or repayment at the option of the Holder
or otherwise, and includes a Redemption Date for such Security and a date fixed for the repurchase
or repayment of such Security at the option of the Holder.



     “Notice of Default means a written notice of the kind specified in Section 501.



     “Office” or “Agency”, with respect to any Securities, means an office or agency of the Company
maintained or designated in a Place of Payment for such Securities pursuant to Section 1002 or any
other office or agency of the Company maintained or designated for such Securities pursuant to
Section 1002 or, to the extent designated or required by Section 1002 in lieu of such office or
agency, the Corporate Trust Office of the Trustee.



     “Officers’ Certificate” means a certificate signed by the Chairman, the Chief Executive
Officer, the President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, 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 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 an amount less than the principal face amount thereof to be due and payable upon
declaration of acceleration pursuant to Section 502.



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



     (i) Securities theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;



     (ii) Securities for whose payment money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent in trust for the Holders of such Securities; and



     (iii) Securities in substitution for or in lieu of which other Securities have been
authenticated and delivered or which have been paid pursuant to Section 306, unless proof
satisfactory to the Trustee is presented that any such Securities are held by Holders in whose
hands such Securities are valid, binding and legal obligations of the Company; provided, however,
that in determining whether the Holders of the requisite principal amount of Outstanding Securities
have given any request, demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of
the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor. Upon the written request of the Trustee, the Company shall furnish
to the Trustee promptly an Officers’ Certificate listing and identifying all Securities, if any,
known by the Company to be owned or held by or for the account of the Company, or any other obligor
on the Securities or any Affiliate of the Company or such obligor, and, subject to the provisions
of Section 601, the Trustee shall be entitled to accept such Officers’



 









 







Certificate as conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such determination.



     “Paying Agent” means any Person authorized by the Company, including the Company, to pay the
principal of, or any premium or interest on, or any other amounts in respect of, any Security on
behalf of the Company.



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



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



     “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 306 in exchange
for or in lieu of a lost, destroyed, mutilated or stolen Security shall be deemed to evidence the
same indebtedness as the lost, destroyed, mutilated or stolen Security.



     “Proceeding” has the meaning specified in Section 1302.



     “Property Trustee” means, in respect of any Trust, the commercial bank or trust company
identified as the “Property Trustee” in the related Trust Agreement, solely in its capacity as
Property Trustee of such Trust under such Trust Agreement and not in its individual capacity, or
its successor in interest in such capacity, or any successor property trustee appointed as therein
provided.



     “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 201 which is
registered in the Security Register.



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



     “Regulatory Capital Event” means the reasonable determination by the Company that, as a result
of (a) any amendment to, or change (including any announced prospective change) in, the laws (or
any regulations thereunder) of the United States or (b) any official or administrative
pronouncement or action or judicial decision for interpreting or applying such laws or regulations,
which amendment or change is effective or such pronouncement or decision is announced on or after
the date of original issuance of the Capital Securities, there is more than an insubstantial risk
of impairment of the Company’s ability to treat the Capital Securities (or any substantial portion
thereof) as Tier 1 capital (or its then equivalent) for purposes of the capital adequacy guidelines
of the Federal Reserve in effect and applicable to the Company.



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



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



 









 





     “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 305.



     “Senior Debt” means the principal of (and premium, if any) and interest, if any (including
interest accruing on or after the filing of any petition in bankruptcy or for reorganization
relating to the Company whether or not such claim for post-petition interest is allowed in such
proceeding), on Indebtedness of the Company, whether incurred on or prior to the date of this
Indenture or thereafter incurred, unless, in the instrument creating or evidencing the same or
pursuant to which the same is outstanding, it is provided that such obligations are not superior in
right of payment to the Securities, provided, however, that Senior Debt shall not be deemed to
include (a) any Indebtedness of the Company which, when incurred and without respect to any
election under Section 1111(b) of the Bankruptcy Reform Act of 1978, as amended, was without
recourse to the Company, (b) any Indebtedness of the Company to any of its Subsidiaries,
(c) Indebtedness to any employee of the Company, and (d) any Securities.



     “Senior Indebtedness” means all Indebtedness, whether outstanding on the date of execution of
the Indenture or thereafter created, assumed or incurred, except Indebtedness ranking equally with
the junior subordinated debentures or Indebtedness ranking junior to the junior subordinated
debentures.



     “Significant Subsidiary” means any Subsidiary of the Company which is a “significant
subsidiary” as defined in Rule 1-02 of 

Regulation S-X promulgated by the Commission (as such rule
is in effect on the date of this Indenture).



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



     “Special Record Date” for the payment of any Defaulted Interest on any Registered Security
means a date fixed by the Trustee pursuant to Section 307.



     “Stated Maturity”, with respect to any Security or any installment of principal thereof or
interest thereon or any other 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 other amounts are, due and
payable.



     “Subsidiary” means a corporation or a partnership or a limited liability company a majority of
the outstanding voting stock or partnership or membership interests, as the case may be, of which
is owned or controlled, directly or indirectly, by the Company or by one or more other subsidiaries
of the Company. For purposes of this definition, “voting stock” means stock having voting power for
the election of directors, or trustees, as the case may be, whether at all times or only so long as
no senior class of stock has voting power by reason of any contingency.



     “Tax Event” means the receipt by the Trust of an Opinion of Counsel (as defined in the
relevant Trust Agreement) 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 announced on or after the date of issuance of the Capital
Securities of such Trust, there is more than an insubstantial risk that (i) such 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 such 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 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” has the meaning specified in the first recital of the Indenture.



     “Trust Agreement” means the Trust Agreement (or an Amended and Restated Trust Agreement) under
which a Trust is created and providing for the issuance of Trust Securities by such Trust,
substantially in such form as may



 









 







be specified as contemplated by Section 301 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.



     “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.



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



     “United States”, means the United States of America (including the states thereof and the
District of Columbia), its territories, its possessions and other areas subject to its
jurisdiction; and the term “United States of America” means the United States of America.



     “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 102. Compliance Certificates and Opinions.



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



     Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than the certificates provided pursuant to Section 1007) shall
include:



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



     (2) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are based;



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



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



     Section 103. Form of Documents Delivered to Trustee.



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



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



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



     Section 104. Acts of Holders.



     Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given to or taken by Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders in person or by an
agent or proxy duly appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments is or are delivered to the
Trustee, and, where it is hereby expressly required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes referred to as the
“Act” of the Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section.



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



     The fact and date of the execution by any Person of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient and in accordance with such reasonable rules as the Trustee may determine.



     The ownership of Securities shall be proved by the Securities Register.



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



     The Company may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or direction referred to in
the next paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders after such record
date, provided that no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities
of such series on such record date. Nothing in this paragraph shall be construed to prevent the
Company from setting a new record date for any action for which a record date has previously been
set pursuant to this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable Expiration Date to be given
to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set
forth in Section 106.



     The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to
institute proceedings referred to in Section 507 or (iv) any direction referred to in Section 512,
in each case with respect to Securities of such series. If any record date is set



 









 







pursuant to this paragraph, the Holders of Outstanding Securities of such series on such
record date, and no other Holders, shall be entitled to join in such notice, declaration, request
or direction, whether or not such Holders remain Holders after such record date, provided that no
such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new
record date for any action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with no action by any
Person be canceled and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities
of the relevant series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration Date to be given to the
Company in writing and to each Holder of Securities of the relevant series in the manner set forth
in Section 106.



     With respect to any record date set pursuant to this Section, the party hereto which sets such
record dates may designate any day as the “Expiration Date” and from time to time may change the
Expiration Date to any earlier or later day, provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in writing, and to
each Holder of Securities of the relevant series in the manner set forth in Section 1006, on or
prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any
record date set pursuant to this Section, the party hereto which set such record date shall be
deemed to have initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day
after the applicable record date.



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



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



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



     Section 106. Notice to Holders of Securities; Waiver.



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



     Section 107. Language of Notices.



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



 









 





     Section 108. Conflict with Trust Indenture Act.



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



     Section 109. Effect of Headings and Table of Contents.



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



     Section 110. Successors and Assigns.



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



     Section 111. Separability Clause.



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



     Section 112. Benefits of Indenture.



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



     Section 113. Governing Law.



     This Indenture and the Securities 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.



     Section 114. 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, or any other day on which a
payment is due with respect to, any Security shall be a day which is not a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture, any Security other
than a provision in any Security or in the Board Resolution, Officers’ Certificate or supplemental
indenture establishing the terms of any Security that specifically states that such provision shall
apply in lieu hereof) payment need not be made at such Place of Payment on such date, but such
payment may be made on the next succeeding day that is a Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date, at the Stated Maturity or
Maturity or on any such other payment date, as the case may be, and no interest 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 other payment date, as the case may be, to the next succeeding
Business Day.



     Section 115. 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 116. Extension of Payment Dates.



     In the event that (i) the terms of any Security established in or pursuant to this Indenture
permit the Company or any Holder thereof to extend the date on which any payment of principal of,
or premium, if any, or interest, if any, on, or any other amounts, if any, with respect to such
Security is due and payable and (ii) the due date for any such payment shall have been so extended,
then all references herein to the Stated Maturity of such payment (and all references of like
import) shall be deemed to refer to the date as so extended.



     Section 117. Immunity of Stockholders, Directors, Officers and Agents of the Company.



     No recourse under or upon any obligation, covenant or agreement contained in this Indenture,
or in any Security, or because of any indebtedness evidenced thereby, shall be had against any
past, present or future stockholder, employee, officer or director, as such, of the Company or of
any predecessor or successor, either



 









 







directly or through the Company or any predecessor or successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or by any legal or
equitable proceeding or otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders and as part of the consideration for the issue of the
Securities.



     Section 118. Waiver of Jury Trial.



     EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.



     Section 119. Force Majeure.



     In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or monetary disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.



ARTICLE TWO

SECURITIES FORMS




     Section 201. Forms Generally.



     The Securities of each series shall be in substantially the forms set forth in this Article,
or in such other form or forms as shall be established by or pursuant to a Board Resolution or in
one or more indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by this Indenture and
may have such letters, numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with applicable tax laws or the rules of any securities
exchange or as may, consistently herewith be determined by the officers executing such securities
as evidenced by the execution of such securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered
to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 with
respect to the authentication and delivery of such Securities.



     Unless otherwise provided in or pursuant to this Indenture or any Securities, the Securities
shall be issuable in fully registered form without coupons.



     The Trustee’s certificates of authentication shall be substantially in the form set forth in
this Article.



     The definitive Securities 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 permitted by the rules of any securities exchange on which the
Securities may be listed, all as determined by the officers, if required by any securities exchange
on which the Securities may be listed, executing such Securities, as evidenced by their execution
of such securities.



     Section 202. Form of Face of Security.


HUDSON VALLEY HOLDING CORP.



                    %
JUNIOR SUBORDINATED DEBENTURE DUE                     




	 	 	 
	Registered

	 	Principal Amount:          
	No.

	 	CUSIP No.:






     Hudson Valley Holding Corp., a corporation organized and existing under the laws of New York
(hereinafter called the “Company,” which term includes any successor corporation under the
Indenture hereinafter referred to),



 









 




for value received, hereby promises to pay to                      , or registered assigns,
the principal sum of $                     Dollars on                      ; [if applicable,
insert: provided that the Company may (i) shorten the Stated Maturity of the principal of this
Security to a date not earlier than                      , and (ii) extend the Stated Maturity of
the principal of this Security at any time on one or more occasions, subject to certain conditions
specified in Section 3.14 of the Indenture, but in no event to a date later than                     .]
The Company further promises to pay interest on said principal sum from                     
or from the most recent interest payment date (each such date, an “Interest
Payment Date”) on which interest has been paid or duly provided for, semi-annually (subject to
deferral as set forth herein) in arrears on the last day of                      and
                     of each year commencing                      at the rate of
                     % per annum, until the principal hereof shall have become due and payable, plus
Additional Interest, if any, until the principal hereof is paid or duly provided for or made
available for payment and on any overdue principal and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any overdue installment of
interest at the rate of % per annum, compounded semi-annually. The amount of interest payable for
any period shall be computed on the basis of twelve 30-day months and a 360-day year. The amount of
interest payable for any partial period shall be computed on the basis of the number of days
elapsed in a 360-day year of twelve 30-day months. In the event that any date on which interest is
payable on this Security is not a Business Day, then a payment of the interest payable on such date
will be made on the next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on the date the payment was originally payable. The
interest installment so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on the Regular Record Date
for such interest installment, which shall be [insert Record Date] next preceding such Interest
Payment Date. Any such interest installment not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to
the Person in whose name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than
days prior to such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.




     [If applicable, insert: So long as no specified Event of Default has occurred and is
continuing, the Company shall have the right at any time during the term of this Security to defer
payment of interest on this Security, at any time or from time to time, for up to                     
consecutive                      interest payment periods with respect to each
deferral period (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, and at the end of
which the Company shall pay all interest then accrued and unpaid (together with Additional Interest
thereon to the extent permitted by applicable law)); provided, however, that no Extension Period
shall extend beyond the Stated Maturity of the principal of this Security; provided, further, that
during any such Extension Period, the Company shall not, and shall not permit any Subsidiary of the
Company to, (i) declare or pay any dividends or distributions or redeem, purchase, acquire or make
a liquidation payment with respect to, any of the Company’s capital stock (which includes common
and preferred stock), or (ii) make any payment of principal of or interest or premium, if any, on
or repay, repurchase or redeem any debt security of the Company (including Securities issued by the
Company pursuant to the Indenture other than the Securities represented by this certificate) that
ranks pari passu with or junior in interest to this Security or make any guarantee payments with
respect to any guarantee by the Company of the debt securities of any Subsidiaries of the Company
(including Guarantees other than the Guarantee related to the Capital Securities issued by [NAME OF
TRUST]) if such guarantee ranks pari passu with or junior in interest to this Security [insert
applicable exceptions]. Prior to the termination of any such Extension Period, the Company may
further extend such Extension Period, provided, however, that such extension does not cause such
Extension Period to exceed                      consecutive interest payment periods or to extend
beyond the Stated Maturity. Upon the termination of any such Extension Period and upon the payment
of all amounts then due, and subject to the foregoing limitation, the Company may elect to begin a
new Extension Period. No interest shall be due and payable during an Extension Period except at the
end thereof. The Company shall give the Trustee, the Property Trustee and the Administrative
Trustees notice of its election to begin any Extension Period at least              
Business Days prior to the earlier of (i) the date on which Distributions on the Capital Securities
would be payable except for the election to begin such Extension Period, or (ii) the date the
Administrative Trustees are required to give notice to any automated quotation system or to holders
of such Capital Securities of the record date or the date such Distributions are payable, but in
any event not less than                      Business Days prior to such record date.]



 









 




     Payment of the principal of (and premium, if any) and interest on this Security will be made
at the office or agency of the Company maintained for that purpose in the United States, in such
coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of the Company payment
of interest may be made (i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the Securities Register or (ii) by wire transfer in immediately available
funds at such place and to such account as may be designated by the Person entitled thereto as
specified in the Securities Register.




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



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



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



     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.



HUDSON VALLEY HOLDING CORP.




By:                                                             

      [President or Vice President]




     Section 203. Form of Reverse of Security.



     This Security is one of a duly authorized issue of securities of the Company (herein called
the “Securities”), issued and to be issued in one or more series under a Junior Subordinated
Indenture, dated as of                      , 20       (herein called the “Indenture”),
between the Company and [Name of Trustee] (herein called the “Trustee”, which term includes any
successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Trustee, the Company and the Holders of the Securities, and of the
terms upon which the Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof, limited in aggregate principal amount to $                     .



     All terms used in this Security that are defined in the Indenture [if applicable, insert: and
in the Trust Agreement, dated as of                     , 20      , as amended (the “Trust
Agreement”), for [insert name of trust] among Hudson Valley Holding Corp., as Depositor, and the
Trustees named therein], shall have the meanings assigned to them in the Indenture [or the Trust
Agreement, as the case may be].



     [If applicable, insert—The Company may at any time, at its option, on or after
                    , and subject to the terms and conditions of Article XI of the Indenture], [if
applicable insert—and subject to the Company having received prior approval of the Board of
Governors of the Federal Reserve System (the “Federal Reserve”) if then required under applicable
capital guidelines or policies of the Federal Reserve] redeem this Security [in whole at any time]
[or in part from time to time], without premium or penalty, at a redemption price equal to [insert
redemption price] to the Redemption Date.]



     [If applicable, insert—Upon the occurrence and during the continuation of a Special Event in
respect of a Trust, the Company may, at its option, at any time within 90 days of the occurrence of
such Special Event redeem this Security, [if applicable, insert—in whole but not in part], subject
to the provisions of Section 1107 and the other



 









 




provisions of Article XI of the Indenture, at a redemption price equal to [insert redemption
price] to the Redemption Date.




     [If applicable, insert—In the event of redemption of this Security in part only, a new
Security or Securities of this series for the portion hereof not redeemed will be issued in the
name of the Holder hereof upon the cancellation hereof.]



     The Indenture contains provisions for satisfaction and discharge of the entire indebtedness of
this Security upon compliance by the Company with certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the Company and the Trustee at
any time to enter into a supplemental indenture or indentures for the purpose of modifying in any
manner the rights and obligations of the Company and of the Holders of the Securities, with the
consent of the Holders of not less than a majority in principal amount of the Outstanding
Securities of each series to be affected by such supplemental indenture. The Indenture also
contains provisions permitting Holders of specified percentages in principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon
this Security.



     [If the Security is not a Discount Security,—As provided in and subject to the provisions of
the Indenture, if an Event of Default with respect to the Securities of this series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of this series may declare the
principal amount of all the Securities of this series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), provided that, in the
case of the Securities of this series issued to a 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 this
series fails to declare the principal of all the Securities of this series to be immediately due
and payable, the holders of at least 25% in aggregate Liquidation Amount of the Capital Securities
then outstanding shall have such right by a notice in writing to the Company and the Trustee; and
upon any such declaration the principal amount of and the accrued interest (including any
Additional Interest) on all the Securities of this series shall become immediately due and payable,
provided that the payment of principal and interest (including any Additional Interest) on such
Securities shall remain subordinated to the extent provided in Article XIII of the Indenture.]



     [If the Security is a Discount Security,—As provided in and subject to the provisions of the
Indenture, if an Event of Default with respect to the Securities of this series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or the Holders of not
less than such portion of the principal amount as may be specified in the terms of this series may
declare an amount of principal of the Securities of this series to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if given by Holders), provided that, in
the case of the Securities of this series issued to a 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
this series fails to declare the principal of all the Securities of this series to be immediately
due and payable, the holders of at least 25% in aggregate Liquidation Amount of the Capital
Securities then outstanding shall have such right by a notice in writing to the Company and the
Trustee. Such amount shall be equal to [insert formula for determining the amount]. Upon any such
declaration, such amount of the principal of and the accrued interest (including any Additional
Interest) on all the Securities of this series shall become immediately due and payable, provided
that the payment of principal and interest (including any Additional Interest) on such Securities
shall remain subordinated to the extent provided in Article XIII of the Indenture. Upon payment
(i) of the amount of principal so declared due and payable and (ii) of interest on any overdue
principal and overdue interest (in each case to the extent that the payment of such interest shall
be legally enforceable), all of the Company’s obligations in respect of the payment of the
principal of and interest, if any, on this Security shall terminate.]



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



     As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Securities Register, upon surrender of this
Security for registration of transfer at the office or agency of the Company maintained under
Section 1002 of the Indenture duly endorsed by, or accompanied by a



 









 







written instrument of transfer in form satisfactory to the Company and the Securities
Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or transferees. No service
charge shall be made for any such registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge payable in connection
therewith.



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



     [If Applicable, insert — The Securities of this series are issuable only in registered form
without coupons in denominations of minimum denominations of $100,000 and any integral multiples of
$1,000 in excess thereof.] As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate principal amount of
Securities of such series of a different authorized denomination, as requested by the Holder
surrendering the same.



     The Company and, by its acceptance of this Security or a beneficial interest therein, the
Holder of, and any Person that acquires a beneficial interest in, this Security agree that for
United States Federal, state and local tax purposes it is intended that this Security constitute
indebtedness.



     THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.



     Section 204. Additional Provisions Required in Global Security.



     Any Global Security issued hereunder shall, in addition to the provisions contained in
Sections 202 and 203, bear a legend in substantially the following form:



     “THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY.”



     Section 205. Form of Trustee’s Certificate of Authentication.



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



Dated:




[NAME OF TRUSTEE], as Trustee




By:                                                             

      Authorized Signatory




ARTICLE THREE

THE SECURITIES




     Section 301. Title and Terms.



     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. There shall be established in or pursuant
to a Board Resolution, and set forth in an Officers’ Certificate (such Officers’ Certificate shall
have the effect of a supplemental indenture for all purposes hereunder), or established in one or
more indentures supplemental hereto, prior to the issuance of Securities of a series:



 









 





     (1) the title of the securities of such series, which shall distinguish the Securities of the
series from all other Securities;



     (2) the limit, if any, upon the aggregate principal amount of the Securities of such series
which may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the series pursuant to Section 304, 305, 306, 906 or 1106 and except for any Securities which,
pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);
provided, however, that the authorized aggregate principal amount of such series may be increased
above such amount by a Board Resolution to such effect;



     (3) the Stated Maturity or Maturities on which the principal of the Securities of such series
is payable or the method of determination thereof;



     (4) the rate or rates, if any, at which the Securities of such series shall bear interest, if
any, the rate or rates and extent to which Additional Interest, if any, shall be payable in respect
of any Securities of such series, the Interest Payment Dates on which such interest shall be
payable, the right, pursuant to Section 311 or as otherwise set forth therein, of the Company to
defer or extend an Interest Payment Date, and the Regular Record Date for the interest payable on
any Interest Payment Date or the method by which any of the foregoing shall be determined;



     (5) the place or places where the principal of (and premium, if any) and interest on the
Securities of such series shall be payable, the place or places where the Securities of such series
may be presented for registration of transfer or exchange, and the place or places where notices
and demands to or upon the Company in respect of the Securities of such series may be made;



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



     (7) the obligation or the right, if any, of the Company to prepay, repay or purchase the
Securities of such series pursuant to any sinking fund, amortization or analogous provisions, or at
the option of a Holder thereof, and the period or periods within which, the price or prices at
which, the currency or currencies (including currency unit or units) in which and the other terms
and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole
or in part, pursuant to such obligation;



     (8) the denominations in which any Securities of such series shall be issuable, if other than
denominations of $100,000 and any integral multiples of $1,000 in excess thereof;



     (9) if other than Dollars, the currency or currencies (including currency unit or units) in
which the principal of (and premium, if any) and interest, if any, on the Securities of the series
shall be payable, or in which the Securities of the series shall be denominated;



     (10) the additions, modifications or deletions, if any, in the Events of Default or covenants
of the Company set forth herein with respect to the Securities of such series;



     (11) if other than the principal amount thereof, the portion of the principal amount of
Securities of such series that shall be payable upon declaration of acceleration of the Maturity
thereof;



     (12) the additions or changes, if any, to this Indenture with respect to the Securities of
such series as shall be necessary to permit or facilitate the issuance of the Securities of such
series in bearer form, registrable or not registrable as to principal, and with or without interest
coupons;



     (13) any index or indices used to determine the amount of payments of principal of and
premium, if any, on the Securities of such series or the manner in which such amounts will be
determined;



     (14) whether the Securities of the series, or any portion thereof, shall initially be issuable
in the form of a temporary Global Security representing all or such portion of the Securities of
such series and provisions for the exchange of such temporary Global Security for definitive
Securities of such series;



     (15) if applicable, that any Securities of the series shall be issuable in whole or in part in
the form of one or more Global Securities and, in such case, the respective Depositaries for such
Global Securities, the form of any



 









 







legend or legends which shall be borne by any such Global Security in addition to or in lieu
of that set forth in Section 204 and any circumstances in addition to or in lieu of those set forth
in Section 305 in which any such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global Security in whole or in part may be
registered, in the name or names of Persons other than the Depositary for such Global Security or a
nominee thereof;



     (16) the appointment of any Paying Agent or Agents for the Securities of such series;



     (17) the terms of any right to convert or exchange Securities of such series into any other
securities or property, and the additions, deletions or changes, if any, to this Indenture with
respect to the Securities of such series to permit or facilitate such conversion or exchange;



     (18) the form or forms of any Trust Agreement, Amended and Restated Trust Agreement and
related guarantee agreement;



     (19) whether, and to what extent the subordination provisions of the Securities shall differ
from those set forth in Article XIII, including whether a different definition of “Senior Debt”
shall apply;



     (20) whether and to what extent the Securities shall be guaranteed by another person;



     (21) the extension or shortening features of the Securities of the series, if any;



     (22) whether and to what extent the Securities are issuable upon the exercise of warrants;



     (23) whether and under what circumstances the Company will pay additional amounts on such
Securities to any Holder in respect of any tax, assessment or other governmental charge and, if so,
whether the Company will have the option to redeem such Securities instead of paying such amounts;



     (24) if any one or more of Section 401 relating to satisfaction and discharge, Section 402(2)
relating to defeasance or Section 402(3) relating to covenant defeasance shall not be applicable to
the Securities of such series, and any covenants in addition to or other than those specified in
Section 402(3) relating to the Securities of such series which shall be subject to covenant
defeasance, and, if the Securities of such series are subject to repurchase or repayment at the
option of the Holders thereof, if the Company’s obligation to repurchase or repay such Securities
will be subject to satisfaction and discharge pursuant to Section 401 or to defeasance or covenant
defeasance pursuant to Section 402, and, if the Holders of such Securities have the right to
convert or exchange such Securities into Common Stock or other securities or property, if the right
to effect such conversion or exchange will be subject to satisfaction and discharge pursuant to
Section 401 or to defeasance or covenant defeasance pursuant to Section 402, and any deletions
from, or modifications or additions to, the provisions of Article Four (including any modification
which would permit satisfaction and discharge, defeasance or covenant defeasance to be effected
with respect to less than all of the outstanding Securities of such series) in respect of the
Securities of such series;



     (25) 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



     (26) any other terms of the Securities of such series (which terms shall not be inconsistent
with the provisions of this Indenture) and any deletions from or modifications or additions to this
Indenture in respect of such Securities.



     All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided herein or in or pursuant to such Board Resolution and set
forth in such Officers’ Certificate or in any such indenture supplemental hereto.



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



     Section 302. Denominations.



     The Securities of each series shall be in registered form without coupons and shall be
issuable in minimum denominations of $100,000 and integral multiples of $1,000 in excess thereof,
unless otherwise specified as contemplated by Section 301.



 









 





     Section 303. Execution, Authentication, Delivery and Dating.



     The Securities shall be executed on behalf of the Company by its President or one of its Vice
Presidents under its corporate seal reproduced or impressed thereon and attested by its Secretary
or one of its Assistant Secretaries. The signature of any of these officers on the Securities may
be manual or facsimile.



     Securities bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities. At any time and from time
to time after the execution and delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in accordance with the
Company Order shall authenticate and deliver such Securities. If the form or terms of the
Securities of the series have been established by or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating,



     (1) if the form of such Securities has been established by or pursuant to Board Resolution as
permitted by Section 201, that such form has been established in conformity with the provisions of
this Indenture;



     (2) if the terms of such Securities have been established by or pursuant to Board Resolution
as permitted by Section 301, that such terms have been established in conformity with the
provisions of this Indenture; and



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



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



     Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not be necessary to
deliver the Officers’ Certificate otherwise required pursuant to Section 301 or the Company Order
and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series to be issued.



     Each Security shall be dated the date of its authentication.



     No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose, unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by the manual signature of
one of its authorized officers, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and delivered hereunder
and shall never be entitled to the benefits of this Indenture.



     Section 304. Temporary Securities.



     Pending the preparation of definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any denomination,
substantially of the tenor of the definitive Securities of such series in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their execution of such
Securities.



 









 





     If temporary Securities of any series are issued, the Company will cause definitive Securities
of such series to be prepared without unreasonable delay. After the preparation of definitive
Securities, the temporary Securities shall be exchangeable for definitive Securities upon surrender
of the temporary Securities at the office or agency of the Company designated for that purpose
without charge to the Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor one or more definitive Securities of the same series of authorized denominations having
the same original issue date and Stated Maturity and having the same terms as such temporary
Securities. 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 305. Registration, Transfer and Exchange.



     The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register in
which, subject to such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Securities and of transfers of Securities. Such register is herein sometimes
referred to as the “Securities Register.” The Trustee is hereby appointed “Securities Registrar”
for the purpose of registering Securities and transfers of Securities as herein provided.



     Upon surrender for registration of transfer of any Security at the office or agency of the
Company designated for that purpose the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or more new Securities of
the same series of any authorized denominations, of a like aggregate principal amount, of the same
original issue date and Stated Maturity and having the same terms.



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



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



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



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



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



     The provisions of Clauses (1), (2), (3) and (4) below shall apply only to Global Securities:



     (1) Each Global Security authenticated under this Indenture shall be registered in the name of
the Depositary designated for such Global Security or a nominee thereof and delivered to such
Depositary or a nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.



     (2) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged
in whole or in part for Securities registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (i) has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security or (ii) has ceased to be a
clearing agency registered under the Exchange Act at a time when the Depositary is required to be
so registered to act as depositary, in each case unless the Company has approved a successor
Depositary within 90 days, (B) there shall have occurred and be continuing an Event of Default with
respect to such Global Security, (C) the Company in its sole discretion determines that such Global
Security will be so



 









 







exchangeable or transferable or (D) there shall exist such circumstances, if any, in addition
to or in lieu of the foregoing as have been specified for this purpose as contemplated by
Section 301.



     (3) Subject to Clause (2) above, any exchange of a Global Security for other Securities may be
made in whole or in part, and all Securities issued in exchange for a Global Security or any
portion thereof shall be registered in such names as the Depositary for such Global Security shall
direct.



     (4) Every Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this
Section, Section 304, 306, 906 or 1106 or otherwise, shall be authenticated and delivered in the
form of, and shall be, a Global Security, unless such Security is registered in the name of a
Person other than the Depositary for such Global Security or a nominee thereof.



     Neither the Company nor the Trustee shall be required, pursuant to the provisions of this
Section, (a) to issue, transfer or exchange any Security of any series during a period beginning at
the opening of business 15 days before the day of selection for redemption of Securities pursuant
to Article Eleven and ending at the close of business on the day of mailing of notice of redemption
or (b) to transfer or exchange any Security so selected for redemption in whole or in part, except,
in the case of any Security to be redeemed in part, any portion thereof not to be redeemed.



     The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Indenture or under applicable law with respect
to any transfer of any interest in any Security (including any transfers between or among
Depositary participants or beneficial owners of interests in any Global Security) other than to
require delivery of such certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the
same to determine substantial compliance as to form with the express requirements hereof.



     Neither the Trustee nor any Paying Agent shall have any responsibility for any actions taken
or not taken by the Depositary.



     Section 306. Mutilated, Destroyed, Lost and Stolen Securities.



     If any mutilated Security is surrendered to the Trustee, together with such security or
indemnity as may be required by the Company or the Trustee to save each of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same issue and series of like tenor and principal amount, having the same original
issue date and Stated Maturity, and bearing a number not contemporaneously outstanding.



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



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



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



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



     The provisions of this Section 306 are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.



 









 





     Section 307. Payment of Interest; Interest Rights Preserved.



     Interest on any Security of any series which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered as of the close of business on the Regular
Record Date for such interest in respect of Securities of such series, except that, unless
otherwise provided in the Securities of such series, interest payable on the Stated Maturity of the
principal of a Security shall be paid to the Person to whom principal is paid. The initial payment
on any Security of any series which is issued between a Regular Record Date and the related
Interest Payment Date shall be payable as provided in such Security or in the Board Resolution
pursuant to Section 301 with respect to the related series of Securities.



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



     (1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities of such series in respect of which interest is in default (or their respective
Predecessor Security thereof) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date of the proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust for the benefit of
the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon, the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name and at the expense of the
Company shall cause notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each Holder of a Security of
such series at the address of such Holder as it appears in the Securities 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 cause a similar notice to be published at least once in a newspaper,
customarily published in the English language on each Business Day and of general circulation in
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 Persons in whose names such Securities of such series (or their respective Predecessor
Security) are registered on such Special Record Date and shall no longer be payable pursuant to the
following clause (2).



     (2) The Company may make payment of any Defaulted Interest 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 (or by the Trustee if the Securities are
not listed), if, after notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such payment shall be deemed practicable by the Trustee.



     Subject to the foregoing provisions of this Section and Section 307, each Security delivered
under this Indenture upon transfer of or in exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other
Security.



     Section 308. Persons Deemed Owners.



     The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in
whose name any Security is registered as the owner of such Security for the purpose of receiving
payment of principal of, any premium and (subject to Section 307) and interest on and any other
amounts with respect to such Security and for all other purposes whatsoever, whether or not any
payment with respect to such Registered Security shall be overdue, and neither the Company, the
Trustee or any agent of the Company or the Trustee shall be affected by notice to the contrary.



 









 





     Section 309. Cancellation.



     All Securities surrendered for payment, 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, as well as Securities surrendered
directly to the Trustee for any such purpose, shall be cancelled promptly by the Trustee. The
Company may at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever,
and 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 held by
the Trustee shall be disposed of in accordance with its procedures for the disposition of cancelled
Securities and the Trustee shall deliver to the Company a certificate of such disposition.



     Section 310. Computation of Interest.



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



     Section 311. Option to Extend Interest Payment Date.



     If specified as contemplated by Section 201 or Section 301 with respect to the Securities of a
particular series, so long as no Event of Default set forth in Section 501(5) or (6) has occurred
and is continuing, the Company shall have the right, at any time during the term of such series,
from time to time to defer the payment of interest on such Securities for such period or periods as
may be specified as contemplated by Section 301 (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 date 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); provided, however, that no
Extension Period shall extend beyond the Stated Maturity of the principal of the Securities of such
series; provided, further, that during any such Extension Period, the Company shall not, and shall
not permit any Subsidiary to, (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of the Company’s capital stock
(which includes common and preferred stock), or (ii) make any payment of principal of or interest
or premium, if any, on or repay, repurchase or redeem any debt securities of the Company (including
Securities other than the Securities of such series) that ranks pari passu with or junior in
interest to the Securities of such series or make any guarantee payments with respect to any
guarantee by the Company of the debt securities of any Subsidiary of the Company (including
Guarantees other than the Guarantee related to the Capital Securities issued by the Trust holding
Securities of such series) if such guarantee ranks pari passu with or junior in interest to the
securities of such series, subject to such exceptions as may be applicable pursuant to Section 301.
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 Trustee, the
Property Trustee and the Administrative Trustees of the Trust holding Securities of such series
notice of its election of any Extension Period (or an extension thereof) at least five Business
Days prior to the earlier of (i) the next succeeding date on which Distributions on the Capital
Securities of such Trust would be payable except for the election to begin or extend such Extension
Period or (ii) the date the Administrative Trustees of such Trust is required to give notice to any
automated quotation system or to holders of such Capital Securities of the record date or the date
such Distributions are payable, but in any event not less than five Business Days prior to such
record date.



     The Trustee 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. Subject to the foregoing
limitations, there is no limitation on the number of times that the Company may begin or extend an
Extension Period.



     Section 312. Agreed Tax Treatment.



     Each Security issued hereunder shall provide that the Company 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 313. Shortening or Extension of Stated Maturity.



     If specified as contemplated by Section 201 or Section 301 with respect to the Securities of a
particular series, the Company shall have the right to (i) shorten the Stated Maturity of the
principal of the Securities of such series at any time to any date not earlier than the first date
on which the Company has the right to redeem the Securities of such series, and (ii) extend the
Stated Maturity of the principal of the Securities of such series at any time at its election for
one or more periods, but in no event to a date later than the 49th anniversary of the first
Interest Payment Date following the original issue date of the Securities of such series; provided
that, if the Company elects to exercise its right to extend the Stated Maturity of the principal of
the Securities of such series pursuant to clause (ii) above, at the time such election is made and
at the time of extension (A) the Company is not in bankruptcy, otherwise insolvent or in
liquidation, (B) the Company is not in default in the payment of any interest or principal on such
Securities, (C) in the case of any series of Securities issued to a Trust, such Trust is not in
arrears on payments of Distributions on the Capital Securities issued by such Trust and no deferred
Distributions are accumulated and (D) such Securities are rated not less than BBB- by S&P or Baa3
by Moody’s or the equivalent by any other nationally recognized statistical rating organization. In
the event the Company elects to shorten or extend the Stated Maturity of the Securities of any
series, it shall give notice to the Trustee, and the Trustee shall give notice of such shortening
or extension to the Holders thereof no less than 30 and no more than 60 days prior to the
effectiveness thereof.



     Section 314. CUSIP Numbers.



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



ARTICLE FOUR

SATISFACTION AND DISCHARGE OF INDENTURE




     Section 401. Satisfaction and Discharge.



     This Indenture shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided for and as otherwise
provided in this Section 401), upon Company Request, and the Trustee, on demand and at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture series, when



     (1) either



     (a) all Securities of such series theretofore authenticated and delivered (other than
(i) Securities of such series which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 and (ii) Securities of such series for whose payment
money has theretofore been deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or



     (b) all Securities of such series 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 Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited
with the Trustee as trust funds in trust for such purpose, money in the currency in which such
Securities are payable in an amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, including the principal of,
any premium and interest on, and, to the extent that the Securities of such series provide for the
payment of any other amounts thereon as contemplated by Section 301 and the amount of any such
other amounts which are or will be payable with respect to the Securities of such series is at the
time of deposit



 









 







determinable by the Company (in the exercise by the Company of its reasonable discretion), any
other amounts with respect to, such Securities, 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;



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



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



     In the event there are Securities of two or more series Outstanding 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 to the Trustee under Section 606 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (1) of this Section, the
obligations of the Company and the Trustee with respect to the Securities of such series under
Sections 305, 306, 403, 404, 1002, 1003 and, if applicable to the Securities of such series, 1004
(including, without limitation, with respect to the payment of Additional Tax Sums, if any, with
respect to such Securities as contemplated by Section 1004, but only to the extent that the
Additional Tax Sums payable with respect to such Securities exceed the amount deposited in respect
of such Additional Tax Sums pursuant to Section 401(1)(b)), any rights of Holders of the Securities
of such series (unless otherwise provided pursuant to Section 301 with respect to the Securities of
such series) to require the Company to repurchase or repay, and the obligations of the Company to
repurchase or repay, such Securities at the option of the Holders pursuant to Article Thirteen
hereof, and any rights of Holders of the Securities of such series (unless otherwise provided
pursuant to Section 301 with respect to the Securities of such series) to convert or exchange, and
the obligations of the Company to convert or exchange, such Securities into Common Stock or other
securities or property, shall survive.



     Section 402. Defeasance and Covenant Defeasance.



     (1) Unless, pursuant to Section 301, either or both of (i) defeasance of the Securities of or
within a series under clause (2) of this Section 402 or (ii) covenant defeasance of the Securities
of or within a series under clause (3) of this Section 402 shall not be applicable with respect to
the Securities of such series, then such provisions, together with the other provisions of this
Section 402 (with such modifications thereto as may be specified pursuant to Section 301 with
respect to any Securities), shall be applicable to such Securities, and the Company may at its
option by Board Resolution, at any time, with respect to the Securities of or within such series,
elect to have Section 402(2) or Section 402(3) be applied to such Outstanding Securities upon
compliance with the conditions set forth below in this Section 402. Unless otherwise specified
pursuant to Section 301 with respect to the Securities of any series, defeasance under clause
(2) of this Section 402 and covenant defeasance under clause (3) of this Section 402 may be
effected only with respect to all, and not less than all, of the Outstanding Securities of any
series. To the extent that the terms of any Security established in or pursuant to this Indenture
permit the Company or any Holder thereof to extend the date on which any payment of principal of,
or premium, if any, or interest, if any, on, or any other amounts, if any, with respect to such
Security is due and payable, then unless otherwise provided pursuant to Section 301, the right to
extend such date shall terminate upon defeasance or covenant defeasance, as the case may be.



     (2) Upon the Company’s exercise of the above option applicable to this Section 402(2) with
respect to any Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Outstanding Securities on the date the
conditions set forth in clause (4) of this Section 402 are satisfied (hereinafter, “defeasance”).
For this purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities, which shall
thereafter be deemed to be “Outstanding” only for the purposes of clause (5) of this Section 402
and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph,
and to have satisfied all of its other obligations under such Securities and this Indenture insofar
as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding
Securities to receive, solely (except as provided in clause (ii) below) from the trust fund
described in clause (4)(a) of this Section 402 and as more fully set forth in this Section 402 and
403, payments in respect of the principal of (and



 









 







premium, if any) and interest, if any, on, and any other amounts, if any, with respect to,
such Securities when such payments are due, (ii) the obligations of the Company and the Trustee
with respect to such Securities under Sections 305, 306, 1002, 1003 and, if applicable to the
Securities of such series, 1004 (including, without limitation, with respect to the payment of
Additional Tax Sums, if any, with respect to such Securities as contemplated by Section 1004, but
only to the extent that the Additional Tax Sums payable with respect to such Securities exceed the
amount deposited in respect of such Additional Tax Sums pursuant to clause (4)(a) of this
Section 402)), any rights of Holders of such Securities (unless otherwise provided pursuant to
Section 301 with respect to the Securities of such series) to require the Company to repurchase or
repay, and the obligations of the Company to repurchase or repay, such Securities at the option of
the Holders pursuant to Article Thirteen hereof, and any rights of Holders of such Securities
(unless otherwise provided pursuant to Section 301 with respect to the Securities of such series)
to convert or exchange, and the obligations of the Company to convert or exchange, such Securities
into Common Stock or other securities or property, (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (iv) this Section 402 and Sections 403 and 404. The Company
may exercise its option under this Section 402(2) notwithstanding the prior exercise of its option
under Section 402(3) with respect to such Securities.



     (3) Upon the Company’s exercise of the above option applicable to this Section 402(3) with
respect to any Securities of or within a series, the Company shall be released from its obligations
under clauses (ii) and (iii) of Section 1005 and under Sections 1006 and 1007 and, to the extent
specified pursuant to Section 301, any other covenant applicable to such Securities with respect to
such Securities shall cease to be applicable to such Securities on and after the date the
conditions set forth in clause (4) of this Section 402 are satisfied (hereinafter, “covenant
defeasance”), and such Securities 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, the Company 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 any
such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any such Section or such other
covenant to any other provision herein or in any other document and such omission to comply shall
not constitute a default or an Event of Default under Section 501(4) or otherwise, as the case may
be.



     (4) The following shall be the conditions to application of clause (2) or (3) of this
Section 402 to any Outstanding Securities of or within a series:



     (a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee
(or another trustee satisfying the requirements of Section 607 who shall agree to comply with the
provisions of this Section 402 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 (1) an amount in Dollars or in such foreign currency in which
such Securities are then specified as payable at Stated Maturity or, if such defeasance or covenant
defeasance is to be effected in compliance with subsection (f) below, on the relevant Redemption
Date, as the case may be, or (2) Government Obligations applicable to such Securities (determined
on the basis of the currency in which such Securities are then specified as payable at Stated
Maturity or, if such defeasance or covenant defeasance is to be effected in compliance with
subsection (f) below, on the relevant Redemption Date, as the case may be) 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, if any, on such Securities, 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, if any, on, and, to the extent that such
Securities provide for the payment of additional amounts thereon and the amount of any such
additional amounts which are or will be payable with respect to the Securities of such series is at
the time of deposit determinable by the Company (in the exercise by the Company of its reasonable
discretion), any additional amounts with respect to, such Outstanding Securities on the Stated
Maturity of such principal or installment of principal or interest or the applicable Redemption
Date, as the case may be, and (z) any mandatory sinking fund payments or analogous payments
applicable to such Outstanding Securities on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities.



 









 





     (b) 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 any Subsidiary is a party or by which it is bound.



     (c) No Event of Default or event which with notice or lapse of time or both would become an
Event of Default with respect to such Securities shall have occurred and be continuing on the date
of such deposit, and, solely in the case of defeasance under Section 402(2), no Event of Default
with respect to such Securities and any Coupons appertaining thereto under clause (5) or (6) of
Section 501 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 under clause (5) or (6) of
Section 501 shall have occurred and be continuing at any time during the period ending on and
including the 91st day after the date of such deposit (it being understood that this condition to
defeasance under Section 402(2) shall not be deemed satisfied until the expiration of such period).



     (d) In the case of defeasance pursuant to Section 402(2), the Company shall have delivered to
the Trustee an opinion of independent counsel reasonably acceptable to the Trustee stating that
(x) the Company has received from, or there has been published by, the Internal Revenue Service a
ruling, or (y) since the date of this Indenture there has been a change in applicable federal
income tax law, in either case to the effect that, and based thereon such opinion of independent
counsel shall confirm that, the Holders of such Outstanding Securities 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; or, in the case of covenant defeasance pursuant to
Section 402(3), the Company shall have delivered to the Trustee an opinion of independent counsel
reasonably acceptable to the Trustee to the effect that the Holders of such Outstanding Securities
and 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.



     (e) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion
of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance, as
the case may be, under this Indenture have been complied with.



     (f) If the monies or Government Obligations or combination thereof, as the case may be,
deposited under clause (a) above are sufficient to pay the principal of, and premium, if any, and
interest, if any, on and, to the extent provided in such clause (a), any additional amounts with
respect to, such Securities provided such Securities are redeemed on a particular Redemption Date,
the Company shall have given the Trustee irrevocable instructions to redeem such Securities on such
date and to provide notice of such redemption to Holders as provided in or pursuant to this
Indenture.



     (g) No event or condition will exist pursuant to the terms of Article XIII that would prevent
the Company from making payments of principal and premium, if any, and interest on the Securities
at the date of the irrevocable deposit referred to above.



     (h) Notwithstanding any other provisions of this Section 402(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 in connection therewith pursuant to Section 301.



     (5) Subject to the provisions of the last paragraph of Section 1003, all money and Government
Obligations (or other property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee—collectively for purposes of this
Section 402(5) and Section 403, the “Trustee”) pursuant to clause (4)(a) of Section 402 in respect
of any Outstanding Securities of any series shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (other than the Company or any Subsidiary or Affiliate of the
Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Securities of
all sums due and to become due thereon in respect of principal (and premium, if any) and interest
and Additional Amounts, if any, but such money need not be segregated from other funds except to
the extent required by law.



     Unless otherwise specified in or pursuant to this Indenture or any Securities, if, after a
deposit referred to in Section 402(4)(a) has been made, (a) the Holder of a Security in respect of
which such deposit was made is entitled to, and does, elect pursuant to Section 301 or the terms of
such Security to receive payment in a currency other than that in which the deposit pursuant to
Section 402(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 402(4)(a) has been made, the indebtedness represented by such Security 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, if any, on, and any 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 shall pay and indemnify the Trustee against any tax, fee or other charge, imposed
on or assessed against the Government Obligations deposited pursuant to this Section 402 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.



     Anything in this Section 402 to the contrary notwithstanding, the Trustee shall deliver or pay
to the Company from time to time upon Company Request any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in clause (4)(a) of this Section 402
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 402.



     Section 403. Application of Trust Money.



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



     Section 404. Reinstatement.



     If the Trustee (or other qualifying trustee appointed pursuant to Section 402(4)(a)) or any
Paying Agent is unable to apply any moneys or Government Obligations deposited pursuant to
Section 401(1) or 402(4)(a) to pay any principal of or premium, if any, or interest, if any, on or
any additional amounts, if any, with respect to the Securities of any series by reason of any legal
proceeding or any order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the Company’s obligations under this Indenture and
the Securities of such series shall be revived and reinstated as though no such deposit had
occurred, until such time as the Trustee (or other qualifying trustee) or Paying Agent is permitted
to apply all such moneys and Government Obligations to pay the principal of and premium, if any,
and interest, if any, on and additional amounts, if any, in respect of the Securities of such
series as contemplated by Sections 401 or 402 as the case may be, and Section 403; provided,
however, that if the Company makes any payment of the principal of or premium, if any, or interest
if any, on or any additional amounts, if any, in respect of the Securities of such series following
the reinstatement of its obligations as aforesaid, the Company shall be subrogated to the rights of
the Holders of such Securities to receive such payment from the funds held by the Trustee (or other
qualifying trustee) or Paying Agent.



     Section 405. Effect on Subordination Provisions.



     Unless otherwise expressly provided pursuant to Section 301, the provisions of Article
Thirteen hereof are hereby expressly made subject to the provisions for satisfaction and discharge
set forth in Section 401 hereof and the provisions for defeasance and covenant defeasance set forth
in Section 402 hereof and, anything herein to the contrary notwithstanding, upon the effectiveness
of such satisfaction and discharge pursuant to Section 401 with respect to the Securities of such
series or any such defeasance or covenant defeasance pursuant to Section 402 with respect to the
Securities of or within such series, all of the Securities of such series (in the case of
satisfaction and discharge pursuant to Section 401) or the Securities of such series as to which
defeasance or covenant defeasance, as the case may be, shall have become effective shall thereupon
cease to be so subordinated and shall no longer be subject to the provisions of Article Thirteen
and, without limitation to the foregoing, all moneys, Government Obligations and other securities
or property deposited with the Trustee (or other qualifying trustee) in trust in



 









 







connection with such satisfaction and discharge, defeasance or covenant defeasance, as the
case may be, and all proceeds therefrom may be applied to pay the principal of, premium, if any,
and interest, if any, on, and additional amounts, if any, with respect to such Securities as and
when the same shall become due and payable notwithstanding the provisions of Article Thirteen.



ARTICLE FIVE

REMEDIES




     Section 501. Events of Default.



     “Event of Default”, wherever used herein with respect to Securities of any series, means any
one of the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or 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 Officers’ Certificate establishing the terms of such series pursuant to this
Indenture:



     (1) default in the payment of any interest on, Additional Interest, or any other amounts
payable in respect of any interest on, any of the Securities of such series when such interest or
such additional amounts, as the case may be, become due and payable and continuance of such default
for a period of 30 days; provided that, during any extension period for that series of Securities
(if applicable), failure to pay such interest on such series of Securities will not constitute an
Event of Default; or



     (2) default in the payment of any principal of or premium, if any, on, or any Additional
Interest or other amounts payable in respect of any principal of or premium, if any, on, any of the
Securities of such series when due whether at Maturity or otherwise;



     (3) default in the performance, or breach, of any covenant or warranty of the Company in this
Indenture or any Security of such series (other than a covenant or warranty for which the
consequences of breach or nonperformance are addressed elsewhere in this Section 501 or a covenant
or warranty which has expressly been included in this Indenture, whether or not by means of a
supplemental indenture, solely for the benefit of Securities of a series other than such series),
and continuance of such default or breach (without such default or breach having been waived in
accordance of the provisions of this Indenture) for a period of 90 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the Outstanding Securities of such series a
written notice specifying such default or breach and requiring it to be remedied and stating that
such notice is a “Notice of Default” hereunder;



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



     (5) the commencement by the Company or any Significant Subsidiary of the Company of a
voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt
or insolvent, or the consent by the Company or any Significant Subsidiary of the Company to the
entry of a decree or order for relief in respect of the Company or any Significant Subsidiary of
the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Company or any Significant Subsidiary of the Company, or
the filing by the Company or any Significant Subsidiary of the Company of a petition or answer or
consent seeking reorganization or relief under any applicable Federal or State law, or the consent
by the Company or any Significant Subsidiary of the Company to the filing of such petition or to
the appointment of or taking possession by a custodian, receiver, conservator, liquidator,
assignee, trustee, sequestrator or similar official of the Company or any Significant Subsidiary of
the Company or of any substantial part of the property of the Company or any Significant



 









 







Subsidiary of the Company, or the making by the Company or any Significant Subsidiary of the
Company of an assignment for the benefit of creditors, or the taking of corporate action by the
Company or any Significant Subsidiary of the Company in furtherance of any such action; or



     (6) default in the delivery of any shares of Common Stock, together with cash in lieu of
fractional shares, or any other securities or property (including cash) when required to be
delivered upon conversion of any convertible Security of such series or upon the exchange of any
Security of such series which is exchangeable for other securities or property (whether or not such
delivery is prohibited by the Subordination Provisions applicable thereto), and continuance of such
default for a period of 10 days; or



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



     Section 502. Acceleration of Maturity; Rescission and Annulment.



     If an Event of Default with respect to Securities of any series occurs and is continuing, then
either the Trustee or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of any 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, and accrued
and unpaid interest, if any, thereon to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by the Holders), and upon any such declaration such
principal or such lesser amount, as the case may be, and such accrued and unpaid interest shall
become immediately due and payable. If an Event of Default specified in clause (5) or (6) of
Section 501 with respect to the Securities of any series occurs, then the principal of all of the
Securities of such series, or such lesser amount as may be provided for in the Securities of such
series, and accrued an unpaid interest, if any, thereon 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 the Securities of such series.



     At any time after Securities of any series have been accelerated 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 aggregate principal amount of the Outstanding
Securities of such series, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if



     (1) the Company has paid or deposited with the Trustee a sum of money sufficient to pay (or,
to the extent that the terms of the Securities of such series established pursuant to Section 301
expressly provide for payment to be made in shares of Common Stock or other securities or property,
shares of Common Stock or other securities or property, together with cash in lieu of fractional
shares or securities, sufficient to pay)



     (a) all overdue installments of any interest on any Securities of such series which have
become due otherwise than by such declaration of acceleration and any other amounts due with
respect thereto,



     (b) the principal of and any premium on any Securities of such series which have become due
otherwise than by such declaration of acceleration and any additional amounts with respect thereto
and, to the extent permitted by applicable law, interest thereon at the rate or respective rates,
as the case may be, provided for in or with respect to such Securities, or, if no such rate or
rates are so provided, at the rate or respective rates, as the case may be, of interest borne by
such Securities,



     (c) to the extent permitted by applicable law, interest upon installments of any interest, if
any, which have become due otherwise than by such declaration of acceleration and any additional
amounts with respect thereto at the rate or respective rates, as the case may be, provided for in
or with respect to such Securities, or, if no such rate or rates are so provided, at the rate or
respective rates, as the case may be, of interest borne by such Securities, and



     (d) all sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and all other amounts
due the Trustee under Section 606; and



     (2) 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 513.



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



 









 





     Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.



     The Company covenants that if:



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



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



the Company shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders
of such Securities, the whole amount of money then due and payable with respect to such Securities,
with interest upon the overdue principal, any premium and, to the extent permitted by applicable
law, upon any overdue installments of interest and additional amounts at the rate or respective
rates, as the case may be, provided for or with respect to such Securities or, if no such rate or
rates are so provided, at the rate or respective rates, as the case may be, of interest borne by
such 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 606.



     If the Company 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 any other obligor upon such Securities and collect the monies adjudged
or decreed to be payable in the manner provided by law out of the property of the Company or any
other obligor upon such Securities, wherever situated.



     If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series 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 504. Trustee May File Proofs of Claim.



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



     (1) to file and prove a claim for the whole amount, or such lesser amount as may be provided
for in the Securities of such series, of the principal and any premium, interest and additional
amounts owing and unpaid in respect of the Securities 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 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 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, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel and any other amounts due the Trustee under Section 606.



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



 









 





     Section 505. Trustee May Enforce Claims without Possession of Securities.



     All rights of action and claims under this Indenture or any of the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the Securities or the
production thereof in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any recovery 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 a Security in respect of which such judgment has been recovered.



     Section 506. Application of Money Collected.



     Any money collected by the Trustee pursuant to this Article with respect to the Securities of
any series 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 or
Additional Amounts, upon presentation of such Securities, if any, appertaining thereto, or both, as
the case may be, and the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:



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



     SECOND: To the payment of amounts then due and unpaid to the holders of Senior Debt with
respect to such series, to the extent required pursuant to Article XIII hereof;



     THIRD: To the payment of the amounts then due and unpaid upon the Securities for principal and
any premium, interest and additional amounts specified for such Securities in the Indenture 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 for principal and any premium, interest and additional amounts;



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



     Section 507. Limitations on Suits.



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



     (1) such Holder has previously given written notice to 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 aggregate 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 indemnity satisfactory to the Trustee
against the costs, expenses and liabilities to be incurred in compliance with such request;



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



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



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



     Section 508. Unconditional Right of Holders to Receive Principal and any Premium, Interest and
Additional Amounts; Direct Action by Holders of Capital Securities.



     Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right which is absolute and unconditional to receive payment of the principal of (and premium,
if any) and (subject to Section 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such right shall not be impaired without the
consent of such Holder. In the case of Securities of a series issued to a Trust, any



 









 







holder of the corresponding series of Trust Securities issued by such trust shall have the
right, upon the occurrence of an Event of Default described in Section 501(1) or 501(2), to
institute a Direct Action.



     The Company cannot amend this Indenture to remove the foregoing right to bring a Direct Action
without the prior written consent of the Holders of all of the Capital Securities outstanding. If
such right to bring a Direct Action is removed, the trust or trusts whose Capital Securities are
outstanding may become subject to the reporting obligations under the Exchange Act.



     Notwithstanding any payments made to a Holder of Capital Securities by the Company in
connection with a Direct Action, the Company will remain obligated to pay the principal of and
premium, if any, and interest on the related Securities, and the Company will be subrogated to the
rights of the Holder of the Capital Securities with respect to payments on the Capital Securities
to the extent of any payments made by the Company to any Holder in any Direct Action.



     The Holders of the Capital Securities will not be able to exercise directly any remedies,
other than those set forth in the preceding paragraphs, available to the Holders of the related
Securities unless an Event of Default has occurred and is continuing under the Trust Agreement.



     Section 509. Restoration of Rights and Remedies.



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



     Section 510. Rights and Remedies Cumulative.



     To the extent permitted by applicable law and except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to each and
every Holder of a Security 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 511. Delay or Omission Not Waiver.



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



     Section 512. Control by Holders of Securities.



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



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



 









 





     Section 513. Waiver of Past Defaults.



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



     (1) a default in the payment of the principal of, any premium or interest on, or any
additional amounts due and owing with respect to, any Security of such series, or



     (2) in the case of any Securities which are convertible into or exchangeable for Common Stock
or other securities or property, a default in any such conversion or exchange, or



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



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



     Section 514. Waiver of Usury, Stay or Extension Laws.



     The Company 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 benefit or advantage of, any
stay or extension law or any usury law or any other law wherever enacted, now or at any time
hereafter in force, which would prohibit or forgive the Company from paying all or any portion of
the principal of or premium, if any, or interest, if any on or additional amounts, if any, with
respect to any Securities as contemplated herein and therein or which may affect the covenants or
the performance of this Indenture or the Securities; and the Company (to the extent that it may
lawfully do so) expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to the Trustee or the
Holders, but will suffer and permit the execution of every such power as though no such law had
been enacted.



     Section 515. 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 and disbursements, 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 515 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 to any
suit instituted by any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest, if any, on 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 at the option of the Holder pursuant
to Article Thirteen hereof, on or after the date for repayment) or for the enforcement of the
right, if any, to convert or exchange any Security into Common Stock or other securities in
accordance with its terms.



ARTICLE SIX

THE TRUSTEE




     Section 601. Certain Duties and Responsibilities of Trustee.



     Except during the continuance of an Event of Default;



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



     (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of this Indenture, but in the
case of any such certificates or opinions which by any provisions hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to



 









 







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



     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 own affairs.



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



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



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



     (3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of Holders pursuant to Section 512 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.



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



     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 601.



     Section 602. Notice of Defaults.



     Within 90 days after actual knowledge by a Responsible Officer of the Trustee of 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, as their names and addresses appear
in the Securities Register, notice of such default, 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) on 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 determines that the withholding of such notice is in the interests of the
Holders of Securities of such series; and provided, further, that, in the case of any default of
the character specified in Section 501(3), no such notice to Holders of Securities of such series
shall be given until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term “default” means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.



     Section 603. Certain Rights of the Trustee.



     Subject to the provisions of Section 601:



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



     (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;



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



     (d) 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;



 









 





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



     (f) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, indenture, Security or other paper or document, but the Trustee in its
discretion may make such inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent or attorney at the
sole cost of the Company and shall incur no liability or additional liability of any kind by reason
of such inquiry or investigation;



     (g) 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;



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



     (i) in no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action;



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



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



     (l) the Trustee may request that the Company deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified actions pursuant to
this Indenture.



     Section 604. Not Responsible for Recitals or Issuance of Securities.



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



     Section 605. May Hold Securities.



     The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other Person.



     Section 606. Money Held in Trust.



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



     Section 607. Compensation and Reimbursement.



     The Company agrees:



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



 









 





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



     (3) to indemnify each of the Trustee or any predecessor Trustee and their agents for, and to
hold them harmless against, any loss, liability or expense (including the reasonable compensation
and the expenses and disbursements of its agents and counsel and including taxes other than taxes
based upon, measured by or determined by the income of the Trustee) incurred without negligence or
bad faith, arising out of or in connection with the acceptance or administration of this trust or
the performance of its duties hereunder, including the costs and expenses of defending itself
against any claim (whether asserted by the Company, or any Holder or any other Person) or liability
in connection with the exercise or performance of any of its powers or duties hereunder, or in
connection with enforcing the provisions of this Section.



     To secure the Company’s payment obligations in this Section 607, the Company and the Holders
agree that the Trustee shall have a lien prior to the Securities on all money or property held or
collected by the Trustee. Such lien shall survive the satisfaction and discharge of this Indenture.



     When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 501(5) or (6) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under the Bankruptcy Reform Act of 1978 or any successor
statute.



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



     Section 608. Disqualification; Conflicting Interests.



     The Trustee for the Securities of any series issued hereunder shall be subject to the
provisions of Section 310(b) of the Trust Indenture Act provided ,  however , that
there shall be excluded from the operation of said Section 310(b)(1) any indenture or indentures
under which other securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in said
Section 310(b)(1) are met. Nothing herein shall prevent the Trustee from filing with the Commission
the application referred to in the second to last paragraph of said Section 310(b).



     Section 609. Corporate Trustee Required; Eligibility.



     There shall at all times be a Trustee hereunder which shall be:



     (a) a corporation organized and doing business under the laws of the United States of America
or of any State or Territory or the District of Columbia, authorized under such laws to exercise
corporate trust powers and subject to supervision or examination by Federal, State, Territorial or
District of Columbia authority, or



     (b) a corporation or other Person organized and doing business under the laws of a foreign
government that is permitted to act as Trustee pursuant to a rule, regulation or order of the
Commission, authorized under such laws to exercise corporate trust powers, and subject to
supervision or examination by authority of such foreign government or a political subdivision
thereof substantially equivalent to supervision or examination applicable to United States
institutional trustees, in either case having a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by Federal or State authority. If such
corporation publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then, for the purposes of this
Section 609, the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so published. If
at any time the Trustee shall cease to be eligible in accordance with the provisions of this
Section 609, it shall resign immediately in the manner and with the effect hereinafter specified in
this Article VI. Neither the Company nor any Person directly or indirectly controlling, controlled
by or under common control with the Company shall serve as Trustee for the Securities of any series
issued hereunder.



     Section 610. Resignation and Removal; Appointment of Successor.



     (a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article Six shall become effective until the acceptance of appointment by the
successor Trustee under Section 611.



     (b) The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered



 









 







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



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



     (d) If at any time:



     (1) the Trustee shall fail to comply with Section 608 after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security for at least six months,



     (2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign after
written request therefor by the Company or by any such Holder, or



     (3) the Trustee shall become incapable of acting or shall be adjudged 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, acting pursuant to the
authority of a Board Resolution, may remove the Trustee with respect to all Securities, or
(ii) subject to Section 514, any Holder who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.



     (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee with respect
to the Securities of that or those series. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to the Securities of such series and supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Security for at least six
months may, subject to Section 514, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.



     (f) The Company shall give notice of each resignation and each removal of the Trustee with
respect to the Securities of any series and each appointment of a successor Trustee with respect to
the Securities of any series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Securities of such series as their names and addresses appear in the
Securities Register. 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.



     Section 611. Acceptance of Appointment by Successor.



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



     In case of the appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with



 









 







respect to the Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other
such Trustee and upon the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts, and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee hereunder with respect
to the Securities of that or those series to which the appointment of such successor Trustee
relates.



     Upon request of any such successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor Trustee all rights, powers
and trusts referred to in paragraph (a) or (b) of this Section 611, as the case may be.



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



     Section 612. Merger, Conversion, Consolidation or Succession to Business.



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



     Section 613. Preferential Collection of Claims Against Company.



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



     Section 614. Appointment of Authenticating Agent.



     The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306, 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. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business under the laws of the
United States of America, or of any State or Territory or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and surplus of not less
than $50,000,000 and subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes of this Section 614
the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. If at any
time an Authenticating Agent shall cease to be eligible in accordance with the



 









 







provisions of this Section 614, such Authenticating Agent shall resign immediately in the
manner and with the effect specified in this Section 614.



     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 trust business of an Authenticating Agent shall be the successor
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
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section 614, the Trustee
may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall
give notice of such appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under
the provision of this Section 614.



     The Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section 614, and the Trustee shall be entitled to be
reimbursed for such payments, subject to the provisions of Section 607.



     If an appointment with respect to one or more series is made pursuant to this Section 614, the
Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of
authentication, an alternative certificate of authentication in the following form:



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



Dated:




[NAME OF TRUSTEE],




As Trustee




By:      
                                                                  
         

As Authenticating Agent




By:      
                                                                  
         

Authorized Signatory




ARTICLE SEVEN

HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY




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



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



     (1) semi-annually, not more than 15 days after [     ] and [     ] in each year, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the Holders as of [     ]
and [     ] of such year, and



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



     Section 702. Preservation of Information, Communications to Holders.



     The Trustee shall preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and



 









 







addresses of Holders received by the Trustee in its capacity as Securities Registrar. The
Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list
so furnished.



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



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



     Section 703. Reports by Trustee.



     The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act, at the times and in
the manner provided pursuant thereto.



     Reports so required to be transmitted at stated intervals of not more than 12 months shall be
transmitted no later than July 15 in each calendar year, commencing with the first July 15 after
the first issuance of Securities under this Indenture.



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



     Section 704. Reports by Company.



     (a) The Company shall file with the Trustee and with the Commission, and transmit to Holders,
such information, documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided in the Trust Indenture
Act; provided that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is required to be filed with the Commission. Notwithstanding
that the Company may not be required to remain subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, the Company shall continue to file with the Commission and provide
the Trustee with the annual reports and the information, documents and other reports which are
specified in Sections 13 and 15(d) of the Exchange Act. Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall
not constitute constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on the Officers’ Certificates).
The Company also shall comply with the other provisions of Trust Indenture Act Section 314(a).



     (b) The Company intends to file the reports referred to in Section 704(a) hereof with the
Commission in electronic form pursuant to Regulation S-T of the Commission using the Commission’s
Electronic Data Gathering, Analysis and Retrieval system. Compliance with the foregoing, or any
successor electronic system approved by the Commission, shall constitute delivery by the Company of
such reports to the Trustee and Holders in compliance with the provision of Section 704(a) and TIA
Sections 314(a). Notwithstanding anything to the contrary herein, the Trustee shall have no duty to
search for or obtain any electronic or other filings that the Company makes with the Commission,
regardless of whether such filings are periodic, supplemental or otherwise. Delivery of the
reports, information and documents to the Trustee pursuant to this Section 704(b) shall be solely
for the purposes of compliance with this Section 704(b) and with TIA Section 314(a). The Trustee’s
receipt of such reports, information and documents shall not constitute notice to it of the content
thereof or of any matter determinable from the content thereof (and the Trustee shall not have any
duty to ascertain or inquire as to such content or matter), including the Company’s compliance with
any of its covenants hereunder, as to which the Trustee is absolutely entitled to rely upon
Officers’ Certificates.



 









 





ARTICLE EIGHT

CONSOLIDATION, MERGER AND SALES




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



     The Company shall not, in any transaction or series of related transactions, consolidate with
or merge into any Person or sell, assign, transfer, lease or otherwise convey all or substantially
all its properties and assets to any Person, unless:



     (1) either (A) the Company shall be the continuing Person (in the case of a merger), or
(B) the successor Person (if other than the Company) formed by such consolidation or into which the
Company is merged or which acquires by sale, assignment, transfer, lease or other conveyance all or
substantially all the properties and assets of the Company shall be a corporation organized and
existing under the laws of the United States of America, any state thereof or the District of
Columbia and shall expressly assume, by an indenture (or indentures, if at such time there is more
than one Trustee) supplemental hereto, executed by such successor corporation and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of, any
premium and interest on, and any additional amounts with respect to, all the Outstanding Securities
and the due and punctual performance and observance of every obligation in this Indenture and the
Outstanding Securities on the part of the Company to be performed or observed, and which
supplemental indenture 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, no Event of Default, and no event
which, after notice or lapse of time, or both, would become an Event of Default, shall have
occurred and be continuing; and



     (3) either the Company or the successor Person shall have delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger,
sale, assignment, transfer, lease or other conveyance and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such transaction have been complied with.



     For purposes of the foregoing, any sale, assignment, transfer, lease or other conveyance of
all or any of the properties and assets of one or more Subsidiaries of the Company (other than to
the Company or another Subsidiary), which, if such properties and assets were owned by the Company,
would constitute all or substantially all of the Company’s properties and assets, shall be deemed
to be the transfer of all or substantially all of the properties and assets of the Company.



     Section 802. Successor Person Substituted for Company.



     Upon any consolidation by the Company with or merger of the Company into any other Person or
any sale, assignment, transfer, lease or conveyance of all or substantially all of the properties
and assets of the Company to any Person in accordance with Section 801, the successor Person formed
by such consolidation or into which the Company is merged or to which such sale, assignment,
transfer, lease or other conveyance is made 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.



ARTICLE NINE

SUPPLEMENTAL INDENTURES




     Section 901. Supplemental Indentures without Consent of Holders.



     Without the consent of any Holders of Securities, the Company (when authorized by or pursuant
to a Board Resolution) and the Trustee, at any time and from time to time, may enter into one or
more indentures supplemental hereto, in form satisfactory to the Trustee, provided, however, that
the form and terms of Securities of any series may be established by a Board Resolution, as set
forth in the Officers’ Certificate delivered to the Trustee pursuant to Section 301, without
entering into a supplemental indenture for all purposes hereunder, for any of the following
purposes:



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



 









 





     (2) to add to the covenants of the Company for the benefit of the Holders of all or any series
of Securities (as shall be specified in such supplemental indenture or indentures) or to surrender
any right or power herein conferred upon the Company with respect to all or any series of
Securities issued under this Indenture (as shall be specified in such supplemental indenture or
indentures); 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 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 or global form, provided any
such action shall not adversely affect the interests of the Holders of Securities of any series; or



     (4) to establish the form or terms of Securities of any series as permitted by Sections 201
and 301, including, without limitation, any conversion or exchange provisions applicable to
Securities which are convertible into or exchangeable for other securities or property, and any
deletions from or additions or changes to this Indenture in connection therewith (provided that any
such deletions, additions and changes shall not be applicable to any other series of Securities
then Outstanding); 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 609; or



     (6)(a) to cure any ambiguity or to correct or supplement any provision herein which may be
defective or which may be inconsistent with any other provision herein, or (b) to make any other
provisions with respect to matters or questions arising under this Indenture which shall not
adversely affect the interests of the Holders of Securities of any series then Outstanding; or



     (7) 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



     (8) to supplement any of the provisions of this Indenture to such extent as shall be necessary
to permit or facilitate the defeasance, covenant defeasance and/or satisfaction and discharge of
any series of Securities pursuant to Article Four, provided that any such action shall not
adversely affect the interests of any Holder of a Security of such series or any other Security in
any material respect; or



     (9) to secure or otherwise or to add guarantees for the benefit of the Securities; or



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



     (11) to amend or supplement any provision contained herein or in any supplemental indenture or
in any Securities (which amendment or supplement may apply to one or more series of Securities or
to one or more Securities within any series as specified in such supplemental indenture or
indentures), provided that such amendment or supplement does not apply to any Outstanding Security
issued prior to the date of such supplemental indenture and entitled to the benefits of such
provision; or



     (12) in the case of any series of Securities which are convertible into or exchangeable for
Common Stock or other securities or property, to safeguard or provide for the conversion or
exchange rights, as the case may be, of such Securities in the event of any reclassification or
change of outstanding shares of Common Stock or any merger, consolidation, statutory share exchange
or combination of the Company with or into another Person or any sale, lease, assignment, transfer,
disposition or other conveyance of all or substantially all of the properties and assets of the
Company to any other Person or other similar transactions, if expressly required by the terms of
such series of Securities established pursuant to Section 301; or



     (13) to comply with the requirements of the Commission in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act; or



     (14) to make any change that does not adversely affect the legal rights under an indenture of
any Holder of Securities of any series issued under that indenture; or



     (15) to add to, delete from or revise the conditions, limitations or restrictions on issue,
authentication and delivery of Securities.



     Section 902. Supplemental Indentures with Consent of Holders.



     With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the



 









 







Trustee, the Company (when authorized by or pursuant to a Board Resolution), and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Indenture or
of the Securities of such series or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, 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 premium, if any, or any installment of
interest, if any, on, or any Additional Amounts, if any, with respect to, any Security, or reduce
the principal amount thereof or the premium, if any, thereon or the rate (or modify the calculation
of such rate) of interest thereon, or reduce the amount payable upon redemption thereof at the
option of the Company or repayment thereof at the option of the Holder, or reduce any additional
amounts payable with respect thereto, or change the obligation of the Company to pay Additional Tax
Sums pursuant to Section 1004 (except as contemplated by Section 801(1) and permitted by
Section 901(1)), or reduce the amount of the principal of any Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the amount thereof provable in bankruptcy pursuant to Section 504, or adversely
affect the right of repayment at the option of any Holder, or extend the time of payment of
interest on any Security or any additional amounts (except as contemplated by the terms of any
Securities), or change any of the conversion, exchange or redemption provisions of any Security or
change the Place of Payment where or the currency in which the principal of, any premium or
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
pursuant to Article Thirteen at the option of the Holder, on or after the date for repayment) in
each case as such Stated Maturity, Redemption Date or date for repayment may, if applicable, be
extended in accordance with the terms of such Security, or in the case of any Security which is
convertible into or exchangeable for other securities or property, impair the right to institute
suit to enforce the right to convert or exchange such Security in accordance with its terms, 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 Section 513 or 1006 of this
Indenture, or reduce the requirements of Section 1504 for quorum or voting, or



     (3) modify any of the provisions of this Section, Section 513 or Section 1006, 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



     (4) make any change that adversely affects the right, if any, to convert or exchange any
Security for Common Stock or other securities or property in accordance with its terms;



     (5) change the right of holders of any Trust Securities to bring a Direct Action in respect of
any required payments or conversion or exchange rights or impair or affect the right of any Holder
of any Securities to institute suit for the payment of the principal of, or premium, if any, or any
installment of interest, if any, on or any additional amounts, if any, with respect to, any
Security or for the conversion or exchange of any Securities in accordance with their terms.



     (6) modify the provisions in Article Thirteen of this Indenture with respect to the
subordination of Outstanding Securities of any series in a manner adverse to the Holders thereof;
provided, further, that, in the case of the Securities of a series issued to a Trust, so long as
any of the corresponding series of Capital Securities issued by such Trust remains outstanding,
(i) no such amendment shall be made that adversely affects the holders of such Capital Securities
in any material respect, 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 aggregate liquidation preference of
such Capital Securities then outstanding unless and until the principal (and premium, if any) of
the Securities of such series and all accrued and, subject to Section 307, unpaid interest
(including any Additional Interest) thereon have been paid in full and (ii) no amendment shall be
made to Section 508 of this Indenture that would impair the rights of the holders of Capital
Securities provided therein without the prior consent of the holders of each Capital Security then
outstanding unless and until the principal (and premium, if any) of the Securities of such series
and all accrued and (subject to Section 307) unpaid interest (including any Additional Interest)
thereon 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 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.



     Anything in this Indenture to the contrary notwithstanding, if more than one series of
Securities is Outstanding, the Company shall be entitled to enter into a supplemental indenture
under this Section 902 with respect to any one or more series of Outstanding Securities without
entering into a supplemental indenture with respect to any other series of Outstanding Securities.



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



     Section 903. Execution of Supplemental Indentures.



     As a condition to executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trust created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Sections 315(a) through 315(d)
of the Trust Indenture Act) shall be fully protected in relying upon, an Officers’ Certificate and
an Opinion of Counsel to the effect that the execution of such supplemental indenture is authorized
or permitted by this Indenture and that such supplemental indenture has been duly authorized,
executed and delivered by, and is a valid, binding and enforceable obligation of, the Company,
subject to customary exceptions. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.



     Section 904. Effect of Supplemental Indentures.



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



     Section 905. 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 906. Effect on Senior Debt.



     No supplemental indenture shall directly or indirectly modify or eliminate Article XIII or the
definition of “Senior Debt” applicable with respect to the Securities of any series in any manner
which might terminate or impair the subordination of such series of Securities to such Senior Debt
without the prior written consent of the Holders of such Senior Debt.



     Section 907. 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.



ARTICLE TEN

COVENANTS




     Section 1001. Payment of Principal, Premium, Interest and Additional Amounts.



     The Company covenants and agrees for the benefit of each series that it will duly and
punctually pay the principal of, any premium and interest on and any additional amounts specified
in the Indenture with respect to the Securities of such series, whether payable in cash, shares of
Common Stock or other securities or property, in accordance with the terms of such Securities and
this Indenture.



     Section 1002. Maintenance of Office or Agency.



     The Company shall maintain in each Place of Payment for any series of Securities an office or
agency where Securities of such series may be presented or surrendered for payment, and an office
or agency where Securities of



 









 







such series may be surrendered for transfer or exchange, and where notices and demands to or
upon the Company in respect of the Securities of such series relating thereto and this Indenture
may be served. The Company initially appoints the Trustee, acting through its Corporate Trust
office, as its agent for said purposes. The Company will give prompt written notice to the Trustee
of any change in the location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.



     The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.



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



     If the Company shall at any time act as its own Paying Agent with respect to any series of
Securities, it shall, on or before each due date of the principal of, any premium or interest on,
or any 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 in
which the Securities of such series are payable sufficient to pay the principal, any premium,
interest and additional amounts, as the case may be, 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, or any premium or 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 described in the preceding paragraph) sufficient to pay the
principal, premium, interest and additional amounts, as the case may be, so becoming due, such sum
to be held in trust for the benefit of the Persons entitled thereto, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.



     The Company 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 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;



     (2) give the Trustee notice of any default by the Company (or any other obligor upon the
Securities of such series) in the making of any payment of principal, any premium or interest on or
any additional amounts with respect to the Securities of such series;



     (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; and



     (4) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent.



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



     Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, any premium or interest on or any additional amounts
with respect to any Security of any series remaining unclaimed for two years after such principal
or such premium or interest or additional amount shall have become due and payable shall (unless
otherwise required by mandatory provision of applicable escheat or



 









 







abandoned or unclaimed property law) be paid to the Company on Company Request, or (if then
held by the Company) shall (unless otherwise required by mandatory provision of applicable escheat
or abandoned or unclaimed property law) be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such repayment, may, at the
expense of the Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation in the City of New
York, notice that such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication or mailing nor shall it be earlier
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.



     Section 1004. Additional Tax Sums.



     In the case of the Securities of a series issued to a Trust, so long as no Event of Default
has occurred and is continuing and except as otherwise specified as contemplated by Section 201 or
Section 301, in the event that (i) such Trust is the Holder of all of the Outstanding Securities of
such series, (ii) a Tax Event in respect of such Trust shall have occurred and be continuing and
(iii) the Company shall not have (A) redeemed the Securities of such series pursuant to
Section 1107(ii) or (B) terminated such Trust pursuant to the related Trust Agreement, the Company
shall pay to such Trust (and its permitted successors or assigns under the related Trust Agreement)
for so long as such 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 Trust on the related Capital 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 Tax Sums”). Whenever in this Indenture
or the Securities there is a reference in any context to the payment of principal of or interest on
the Securities, such mention shall be deemed to include mention of the payments of the Additional
Tax Sums provided for in this paragraph to the extent that, in such context, Additional Tax Sums
are, were or would be payable in respect thereof pursuant to the provisions of this paragraph and
express mention of the payment of Additional Tax Sums (if applicable) in any provisions hereof
shall not be construed as excluding Additional Tax Sums in those provisions hereof where such
express mention is not made; provided, however, that the deferral of the payment of interest
pursuant to Section 311 of the Securities shall not deter the payment of any Additional Tax Sums
that may be due and payable.



     Section 1005. Corporate Existence.



     Subject to Article Eight, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect (i) the corporate existence of the Company, (ii) the
existence (corporate or other) of each Significant Subsidiary of the Company and (iii) the rights
(charter and statutory), licenses and franchises of the Company and each of its Significant
Subsidiaries; provided, however, that the Company shall not be required to preserve the existence
(corporate or other) of any of its Significant Subsidiaries or any such right, license or franchise
of the Company or any of its Significant Subsidiaries if the Board of Directors of the Company
determines that the preservation thereof is no longer desirable in the conduct of the business of
the Company and its Significant Subsidiaries taken as a whole.



     Section 1006. Waiver of Certain Covenants.



     The Company may omit in any particular instance to comply with any term, provision or
condition set forth in Sections 1002 to 1005, inclusive, with respect to the Securities of any
series and, if expressly provided pursuant to Section 301(10) or (24), any additional covenants
applicable to the Securities of such 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 become effective, the obligations of the Company and the duties of the Trustee in respect of
any such term, provision or condition shall remain in full force and effect.



     Section 1007. Company Statement as to Compliance.



     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 Officers’ Certificate)
signed by the principal executive



 









 







officer, the principal financial officer or the principal accounting officer of the Company,
stating whether or not, to the best of his or her knowledge, the Company is in default in the
performance and observance of any of the terms, provisions and conditions of this Indenture
(without regard to notice requirements or periods of grace) and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which he or she may have
knowledge.



     Section 1008. Additional Covenants.



     [If applicable, insert: The Company covenants with each Holder of Securities of a series
issued to a Trust (i) to maintain directly or indirectly 100% ownership of the Common Securities of
such trust; provided, however, that any permitted successor of the Company hereunder may succeed to
the Company’s ownership of such Common Securities, (ii) to use its reasonable best efforts to cause
such trust that issued such Trust Securities (a) to remain a business trust except, in connection
with a distribution of the Securities of such series to the holders of Trust Securities in
liquidation of such Trust the conversion, exchange or redemption of all of its Trust Securities,
certain mergers, consolidations or amalgamations permitted by the related Trust Agreement; (b) to
continue otherwise to be classified as a grantor trust for United States federal income tax
purposes; and (c) to use its reasonable best efforts to cause each holder of its Trust Securities
to be treated as owning an undivided beneficial interest in the related Securities; and (iii) not
to cause, as sponsor of such Trust, or to permit as the holder of its Common Securities, the
dissolution, liquidation or winding-up of such trust, except as provided in the Trust Agreement.]



ARTICLE ELEVEN

REDEMPTION OF SECURITIES




     Section 1101. Applicability of This Article.



     Redemption of Securities of any series (whether by operation of a sinking fund or otherwise)
as permitted or required by any form of Security issued pursuant to this Indenture shall be made in
accordance with such form of Security and this Article; provided, however, that if any provision of
any such form of Security shall conflict with any provision of this Article, the provision of such
form of Security shall govern. Except as otherwise set forth in the form of Security for such
series, each Security of such series shall be subject to partial redemption only in the amount of
$100,000 or integral multiples of $1,000 in excess thereof, or, in the case of the Securities of a
series issued to a Trust, $100,000, or integral multiples of $1,000 in excess thereof.



     Section 1102. 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 less than all of the
Securities of any particular series and having the same terms, the Company shall, not less than 30
nor more than 60 days prior to the Redemption Date (unless a shorter notice shall be satisfactory
to the Trustee), notify the Trustee of such date and of the principal amount of Securities of that
series to be redeemed. In the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities, the Company shall furnish
the Trustee with an Officers’ Certificate and an Opinion of Counsel evidencing compliance with such
restriction.



     Section 1103. Selection of Securities to be Redeemed.



     If less than all the Securities of any series are to be redeemed (unless all the Securities of
such series and of a specified tenor are to be redeemed or unless such redemption affects only a
single Security), 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 a portion of the principal amount of any
Security of such series, provided that the portion of the principal amount of any Security not
redeemed shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all the Securities of such series and of a
specified tenor are to be redeemed (unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor
not previously called for redemption in accordance with the preceding sentence.



     The Trustee shall promptly notify the Company in writing of the Securities selected for
partial redemption and 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 Security redeemed or



 









 







to be redeemed only in part, to the portion of the principal amount of such Security which has
been or is to be redeemed. If the Company shall so direct, Securities registered in the name of the
Company, any Affiliate or any Subsidiary thereof shall not be included in the Securities selected
for redemption.



     Section 1104. Notice of Redemption.



     Notice of redemption shall be given by first-class mail, postage prepaid, mailed not later
than the thirtieth day, and not earlier than the sixtieth day, prior to the Redemption Date, to
each Holder of Securities to be redeemed, at the address of such Holder as it appears in the
Securities Register.



     With respect to Securities of each series to be redeemed, each notice of redemption shall
state:



     (1) the Redemption Date;



     (2) the Redemption Price;



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



     (4) that on the Redemption Date, the Redemption Price will become due and payable upon each
such Security or portion thereof, and that interest thereon, if any, shall cease to accrue on and
after said date;



     (5) the place or places where such Securities are to be surrendered for payment of the
Redemption Price;



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



     (7) the CUSIP numbers, if any.



     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 delivered at least 10 days before the date such
notice is to be given (unless a shorter period shall be acceptable to the Trustee), by the Trustee
in the name and at the expense of the Company and shall not be irrevocable. The notice if mailed in
the manner herein provided shall be conclusively presumed to have been duly given, whether or not
the Holder receives such notice. In any case, a failure to give such notice by mail or any defect
in the notice to the Holder of any Security designated for redemption as a whole or in part shall
not affect the validity of the proceedings for the redemption of any other Security.



     Section 1105. Deposit of Redemption Price.



     Prior to 10:00 a.m. New York City time on the Redemption Date specified in the notice of
redemption given as provided in Section 1104, the Company will deposit with the Trustee or with one
or more Paying Agents (or if the Company is acting as its own Paying Agent, the Company will
segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the
Redemption Price of, and any accrued interest (including Additional Interest) on, all the
Securities which are to be redeemed on that date.



     Section 1106. Payment of Securities Called for Redemption.



     If any notice of redemption has been given as provided in Section 1104, the Securities or
portion of Securities with respect to which such notice has been given shall become due and payable
on the date and at the place or places stated in such notice at the applicable Redemption Price. On
presentation and surrender of such Securities at a Place of Payment in said notice specified, the
said securities or the specified portions thereof shall be paid and redeemed by the Company at the
applicable Redemption Price, together with accrued interest (including any Additional Interest) to
the Redemption Date; provided, however, that, unless otherwise specified as contemplated by
Section 301, installments of interest whose Stated Maturity is on or prior to the Redemption Date
will be payable to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 307.



     Upon presentation of any Security redeemed in part only, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new
Security or Securities of the same series, of authorized denominations, in aggregate principal
amount equal to the portion of the Security not redeemed so presented and having the same original
issue date, Stated Maturity and terms. If a Global Security is so surrendered, such new Security
will also be a new Global Security.



 









 





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



     Section 1107. Right of Redemption of Securities Initially Issued to a Trust.



     In the case of the Securities of a series initially issued to a Trust, except as otherwise
specified as contemplated by Section 301, the Company, at its option, may redeem such Securities
(i) on or after the date five years after the original issue date of such Securities, in whole at
any time or in part from time to time, or (ii) upon the occurrence and during the continuation of a
Special Event, at any time within 90 days following the occurrence of such Special Event in respect
of such Trust, in whole (but not in part), in each case at a Redemption Price equal to 100% of the
principal amount thereof.



ARTICLE TWELVE

SINKING FUNDS




     Section 1201. Applicability of Article.



     The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities of any series, except as otherwise specified as contemplated by Section 301 for such
Securities.



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



     Section 1202. Satisfaction of Sinking Fund Payments with Securities.



     In lieu of making all or any part of a mandatory sinking fund payment with respect to any
Securities of a series in cash, the Company may at its option, at any time no more than 16 months
and no less than 30 days prior to the date on which such sinking fund payment is due, deliver to
the Trustee Securities of such series (together with the unmatured coupons, if any, appertaining
thereto) theretofore purchased or otherwise acquired by the Company, except Securities of such
series that have been redeemed through the application of mandatory or optional sinking fund
payments pursuant to the terms of the Securities of such series, accompanied by a Company Order
instructing the Trustee to credit such obligations and stating that the Securities of such series
were originally issued by the Company by way of bona fide sale or other negotiation for value;
provided, however, that the Securities to be so credited have not been previously so credited. The
Securities to be so credited shall be received and credited for such purpose by the Trustee at the
redemption price for such Securities, as specified in the Securities so to be redeemed, for
redemption through operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.



     Section 1203. Redemption of Securities for Sinking Fund.



     Not less than 60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next
ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the
portion thereof, if any, which is to be satisfied by payment of cash in the currency in which the
Securities of such series are payable (except as provided pursuant to Section 301) and the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so delivered. Such Officers’
Certificate shall be irrevocable and upon its delivery the Company shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the succeeding sinking fund
payment date. In the case of the failure of the Company to deliver such Officers’ Certificate (or,
as required by this Indenture, the Securities and coupons, if any, specified in such Officers’
Certificate), the sinking fund payment due on the succeeding sinking fund payment date for such
series shall be paid entirely in cash and shall be sufficient to redeem the principal amount of the
Securities of such series subject to a mandatory sinking fund payment without the right to deliver
or credit securities as provided in Section 1202 and without the right to make the optional sinking
fund payment with respect to such series at such time.



 









 





     Any sinking fund payment or payments (mandatory or optional) made in cash plus any unused
balance of any preceding sinking fund payments made with respect to the Securities of any
particular series shall be applied by the Trustee (or by the Company if the Company is acting as
its own Paying Agent) on the sinking fund payment date on which such payment is made (or, if such
payment is made before a sinking fund payment date, on the sinking fund payment date immediately
following the date of such payment) to the redemption of Securities of such series at the
Redemption Price specified in such Securities with respect to the sinking fund. Any sinking fund
moneys not so applied or allocated by the Trustee (or, if the Company is acting as its own Paying
Agent, segregated and held in trust by the Company as provided in Section 1003) for such series and
together with such payment (or such amount so segregated) shall be applied in accordance with the
provisions of this Section 1203. Any and all sinking fund moneys with respect to the Securities of
any particular series held by the Trustee (or if the Company is acting as its own Paying Agent,
segregated and held in trust as provided in Section 1003) on the last sinking fund payment date
with respect to Securities of such series and not held for the payment or redemption of particular
Securities of such series shall be applied by the Trustee (or by the Company if the Company is
acting as its own Paying Agent), together with other moneys, if necessary, to be deposited (or
segregated) sufficient for the purpose, to the payment of the principal of the Securities of such
series at Maturity. The Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner provided in Section 1104.
Such notice having been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Section 1106. On or before each sinking fund payment date, the Company
shall pay to the Trustee (or, if the Company is acting as its own Paying Agent, the Company shall
segregate and hold in trust as provided in Section 1003) in cash a sum in the currency in which
Securities of such series are payable (except as provided pursuant to Section 301) equal to the
principal and any interest accrued to the Redemption Date for Securities or portions thereof to be
redeemed on such sinking fund payment date pursuant to this Section 1203.



     Neither the Trustee nor the Company shall redeem any Securities of a series with sinking fund
moneys or mail any notice of redemption of Securities of such series by operation of the sinking
fund for such series during the continuance of a default in payment of interest, if any, on any
Securities of such series or of any Event of Default (other than an Event of Default occurring as a
consequence of this paragraph) with respect to the Securities of such series, except that if the
notice of redemption shall have been provided in accordance with the provisions hereof, the Trustee
(or the Company, if the Company is then acting as its own Paying Agent) shall redeem such
Securities if cash sufficient for that purpose shall be deposited with the Trustee (or segregated
by the Company) for that purpose in accordance with the terms of this Article Twelve. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any such default or
Event of Default shall occur and any moneys thereafter paid into such sinking fund shall, during
the continuance of such default or Event of Default, be held as security for the payment of the
Securities and coupons, if any, of such series; provided, however, that in case such default or
Event of Default shall have been cured or waived herein, such moneys shall thereafter be applied on
the next sinking fund payment date for the Securities of such series on which such moneys may be
applied pursuant to the provisions of this Section 1203.



ARTICLE THIRTEEN

SUBORDINATION OF SECURITIES




     Section 1301. Securities Subordinate to Senior Debt.



     The Company covenants and agrees, and each Holder of a Security, by its acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this
Article Thirteen, the payment of the principal of (and premium, if any) and interest (including any
Additional Interest) on each and all of the Securities are hereby expressly made subordinate and
subject in right of payment to the prior payment in full of all amounts then due and payable in
respect of all Senior Debt.



     Section 1302. Payment Over of Proceeds Upon Dissolution, Etc.



     In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company (each such event, if any, herein sometimes referred to as a “Proceeding”), then the holders
of Senior Debt shall be entitled to receive payment in full of all amounts then due and payable in
respect of such Senior Debt, or provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior Debt, before the Holders
of the Securities are entitled to receive or retain any payment or distribution of any kind or
character, whether in cash, property or securities (including any payment or distribution which may
be payable or deliverable by reason of the



 









 







payment of any other Debt of the Company subordinated to the payment of the Securities, such
payment or distribution being hereinafter referred to as a “Junior Subordinated Payment”), on
account of principal of (or premium, if any) or interest (including any Additional Interest) on the
Securities or on account of the purchase or other acquisition of Securities by the Company or any
Subsidiary and to that end the holders of Senior Debt shall be entitled to receive, for application
to the payment thereof, any payment or distribution of any kind or character, whether in cash,
property or securities, including any Junior Subordinated Payment, which may be payable or
deliverable in respect of the Securities in any such Proceeding.



     In the event that, notwithstanding the foregoing provisions of this Section 1302, the Trustee
or the Holder of any Security shall have received any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, including any Junior
Subordinated Payment, before all amounts then due and payable in respect of all Senior Debt are
paid in full or payment thereof is provided for in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt, and if such fact shall, at or prior to the time
of such payment or distribution, have been made known to the Trustee or, as the case may be, such
Holder, then and in such event such payment or distribution shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other Person making payment or distribution of assets of the Company for application to the
payment of all amounts then due and payable in respect of all Senior Debt remaining unpaid, to the
extent necessary to pay all amounts then due and payable in respect of all Senior Debt in full,
after giving effect to any concurrent payment or distribution to or for the holders of Senior Debt.



     For purposes of this Article Thirteen only, the words “any payment or distribution of any kind
or character, whether in cash, property or securities” shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment which securities are
subordinated in right of payment to all then outstanding Senior Debt to substantially the same
extent as the Securities are so subordinated as provided in this Article Thirteen. 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 sale of all or substantially all of its
properties and assets as an entirety to another Person upon the terms and conditions set forth in
Article Thirteen shall not be deemed a Proceeding for the purposes of this Section 1302 if the
Person formed by such consolidation or into which the Company is merged or the Person which
acquires by sale such properties and assets as an entirety, as the case may be, shall, as a part of
such consolidation, merger, or sale comply with the conditions set forth in Article Eight.



     Section 1303. Prior Payment to Senior Debt Upon Acceleration of Securities.



     In the event that any Securities are declared due and payable before their Stated Maturity,
then and in such event the holders of the Senior Debt outstanding at the time such Securities so
become due and payable shall be entitled to receive payment in full of all amounts then due and
payable in respect of such Senior Debt (including any amounts due upon acceleration), or provision
shall be made for such payment in cash or cash equivalents or otherwise in a manner satisfactory to
the holders of Senior Debt, before the Holders of the Securities are entitled to receive any
payment or distribution of any kind or character, whether in cash, properties or securities
(including any Junior Subordinated Payment) by the Company on account of the principal of (or
premium, if any) or interest on the Securities or on account of the purchase or other acquisition
of Securities by the Company or any Subsidiary; provided, however, that nothing in this
Section 1303 shall prevent the satisfaction of any sinking fund payment in accordance with this
Indenture or as otherwise specified as contemplated by Section 301 for the Securities of any series
by delivering and crediting pursuant to Section 1202 or as otherwise specified as contemplated by
Section 301 for the Securities of any series Securities which have been acquired (upon redemption
or otherwise) prior to such declaration of acceleration.



     In the event that, notwithstanding the foregoing, the Company shall make any payment to the
Trustee or the Holder of any Security prohibited by the foregoing provisions of this Section 1303,
and if such fact shall, at or prior to the time of such payment, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such payment shall be paid over
and delivered forthwith to the Company.



     The provisions of this Section 1303 shall not apply to any payment with respect to which
Section 1302 would be applicable.



     Section 1304. No Payment When Senior Debt in Default.



     In the event and during the continuation of any default in the payment of principal of (or
premium, if any) or interest on any Senior Debt, or in the event that any event of default with
respect to any Senior Debt shall have



 









 







occurred and be continuing and shall have resulted in such Senior Debt becoming or being
declared due and payable prior to the date on which it would otherwise have become due and payable,
unless and until such event of default shall have been cured or waived or shall have ceased to
exist and such acceleration shall have been rescinded or annulled, or (b) in the event any judicial
proceeding shall be pending with respect to any such default in payment or such event of default,
then no payment or distribution of any kind or character, whether in cash, properties or securities
(including any Junior Subordinated Payment) shall be made by the Company on account of principal of
(or premium, if any) or interest (including any Additional Interest), if any, on the Securities or
on account of the purchase or other acquisition of Securities by the Company or any Subsidiary, in
each case unless and until all amounts then due and payable in respect of such Senior Debt are paid
in full; provided, however, that nothing in this Section 1304 shall prevent the satisfaction of any
sinking fund payment in accordance with this Indenture or as otherwise specified as contemplated by
Section 301 for the Securities of any series by delivering and crediting pursuant to Section 1202
or as otherwise specified as contemplated by Section 301 for the Securities of any series
Securities which have been acquired (upon redemption or otherwise) prior to such default in payment
or event of default.



     In the event that, notwithstanding the foregoing, the Company shall make any payment to the
Trustee or the Holder of any Security prohibited by the foregoing provisions of this Section 1304,
and if such fact shall, at or prior to the time of such payment, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such payment shall be paid over
and delivered forthwith to the Company.



     The provisions of this Section 1304 shall not apply to any payment with respect to which
Section 1302 would be applicable.



     Section 1305. Payment Permitted If No Default.



     Nothing contained in this Article Thirteen or elsewhere in this Indenture or in any of the
Securities shall prevent (a) the Company, at any time except during the pendency of any Proceeding
referred to in Section 1302 or under the conditions described in Sections 1303 and 1304, from
making payments at any time of principal of (and premium, if any) or interest (including any
Additional Interest) on the Securities, or (b) the application by the Trustee of any money
deposited with it hereunder to the payment of or on account of the principal of (and premium, if
any) or interest (including any Additional Interest) on the Securities or the retention of such
payment by the Holders, if, at the time of such application by the Trustee, it did not have
knowledge that such payment would have been prohibited by the provisions of this Article Thirteen.



     Section 1306. Subrogation to Rights of Holders of Senior Debt.



     Subject to the payment in full of all amounts due or to become due on all Senior Debt, or the
provision for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, the Holders of the Securities shall be subrogated to the extent of the
payments or distributions made to the holders of such Senior Debt pursuant to the provisions of
this Article Thirteen (equally and ratably with the holders of all indebtedness of the Company
which by its express terms is subordinated to Senior Debt of the Company to substantially the same
extent as the Securities are subordinated to the Senior Debt and is entitled to like rights of
subrogation by reason of any payments or distributions made to holders of such Senior Debt) to the
rights of the holders of such Senior Debt to receive payments and distributions of cash, property
and securities applicable to the Senior Debt until the principal of (and premium, if any) and
interest on the Securities shall be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of the Senior Debt of any cash, property or securities to which the
Holders of the Securities or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article Thirteen to the holders of
Senior Debt by Holders of the Securities or the Trustee, shall, as among the Company, its creditors
other than holders of Senior Debt, and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Debt.



     Section 1307. Provisions Solely to Define Relative Rights.



     The provisions of this Article Thirteen are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand and the holders of
Senior Debt on the other hand. Nothing contained in this Article Thirteen or elsewhere in this
Indenture or in the Securities is intended to or shall (a) impair, as between the Company and the
Holders of the Securities, the obligations of the Company, which are absolute and unconditional, to
pay to the Holders of the Securities the principal of (and premium, if any) and interest (including
any Additional Interest) on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the Company of the Holders
of the Securities and creditors of the



 









 







Company other than their rights in relation to the holders of Senior Debt; or (c) prevent the
Trustee or the Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture including, without limitation, filing and voting
claims in any Proceeding, subject to the rights, if any, under this Article Thirteen of the holders
of Senior Debt to receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder.



     Section 1308. Trustee to Effectuate Subordination.



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



     Section 1309. No Waiver of Subordination Provisions.



     No right of any present or future holder of any Senior Debt 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 be otherwise charged with.



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



     Section 1310. Notice to Trustee.



     The Company shall give prompt written notice to the Trustee of any fact known to the Company
which would prohibit the making of any payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article Thirteen or any other provision of this Indenture,
the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit
the making of any payment to or by the Trustee in respect of the Securities, unless and until the
Trustee shall have received written notice thereof from the Company or a holder of Senior Debt or
from any trustee, agent or representative therefor; provided, however, that if the Trustee shall
not have received the notice provided for in this Section 1310 at least two Business Days prior to
the date upon which by the terms hereof any monies may become payable for any purpose (including,
without limitation, the payment of the principal of (and premium, if any) or interest (including
any Additional Interest) on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such monies and to
apply the same to the purpose for which they were received and shall not be affected by any notice
to the contrary which may be received by it within two Business Days prior to such date.



     Subject to the provisions of Section 601, the Trustee shall be entitled to conclusively rely
on the delivery to it of a written notice by a Person representing himself to be a holder of Senior
Debt (or a trustee therefor) to establish that such notice has been given by a holder of Senior
Debt (or a trustee therefor). In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this Article, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior
Debt held by such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such Person under this
Article, and if such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such payment.



     Section 1311. Reliance on Judicial Order or Certificate of Liquidating Agent.



     Upon any payment or distribution of assets of the Company referred to in this Article
Thirteen, the Trustee, subject to the provisions of Section 601, and the Holders of the Securities
shall be entitled to conclusively rely upon any order or decree entered by any court of competent
jurisdiction in which such Proceeding is pending, or a



 









 







certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee
for the benefit of creditors, agent or other Person making such payment or distribution, delivered
to the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of the Senior Debt 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 Thirteen.



     Section 1312. Trustee Not Fiduciary for Holders of Senior Debt.



     The Trustee, in its capacity as trustee under this Indenture, shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders of Securities or to the Company or
to any other Person cash, property or securities to which any holders of Senior Debt shall be
entitled by virtue of this Article or otherwise. With respect to the holders of Senior Debt, the
Trustee undertakes to perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article and no implied covenants or obligations with respect to
holders of Senior Debt shall be read into this Indenture against the Trustee.



     Section 1313. Rights of Trustee as Holder of Senior Debt; Preservation of Trustee’s Rights.



     The Trustee in its individual capacity shall be entitled to all the rights set forth in this
Article Thirteen with respect to any Senior Debt which may at any time be held by it, to the same
extent as any other holder of Senior Debt, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder.



     Nothing in this Article shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 607.



     Section 1314. Article Applicable to Paying Agents.



     In case at any time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term “Trustee” as used in this Article Thirteen shall in
such case (unless the context otherwise requires) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article Thirteen in addition to or in place of the Trustee.



     Section 1315. Certain Conversions or Exchanges Deemed Payment.



     For the purposes of this Article Thirteen only, (a) the issuance and delivery of junior
securities upon conversion or exchange of Securities shall not be deemed to constitute a payment or
distribution on account of the principal of (or premium, if any) or interest (including any
Additional Interest) on Securities or on account of the purchase or other acquisition of
Securities, and (b) the payment, issuance or delivery of cash, property or securities (other than
junior securities) upon conversion or exchange of a Security shall be deemed to constitute payment
on account of the principal of such security. For the purposes of this Section 1315, the term
“junior securities” means (i) shares of any stock of any class of the Company and (ii) securities
of the Company which are subordinated in right of payment to all Senior Debt which may be
outstanding at the time of issuance or delivery of such securities to substantially the same extent
as, or to a greater extent than, the Securities are so subordinated as provided in this Article
Thirteen.



*   *   *   *   *




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



 









 





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



HUDSON VALLEY HOLDING CORP.




By:      
                                                                  
         

Name:

Title:




[NAME OF TRUSTEE],




as Trustee




By:      
                                                                  
         

Name:

Title: