Exhibit 4.31


 


 


 


 


 


 


 


 


AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY

as Issuer















AMENDED AND RESTATED

INDENTURE

Dated as of July 7, 2006





WELLS FARGO BANK, NATIONAL ASSOCIATION

As Trustee







JUNIOR SUBORDINATED DEBT SECURITIES


DUE April 7, 2036


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 

















 


TABLE OF
CONTENTS


	
  

  	
   

  	
   

  	
   

  	
   

  
	
   

  
	
  ARTICLE
  I

  
	
  DEFINITIONS

  
	
   

  
	
  SECTION 1.01.

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  II

  
	
  DEBT
  SECURITIES

  
	
   

  
	
  SECTION 2.01.

  	
   

  	
  Authentication and Dating

  	
   

  	
  7

  
	
  SECTION 2.02.

  	
   

  	
  Form of Trustee’s Certificate of Authentication

  	
   

  	
  8

  
	
  SECTION 2.03.

  	
   

  	
  Form and Denomination of Debt Securities

  	
   

  	
  8

  
	
  SECTION 2.04.

  	
   

  	
  Execution of Debt Securities

  	
   

  	
  8

  
	
  SECTION 2.05.

  	
   

  	
  Exchange and Registration of Transfer of Debt
  Securities

  	
   

  	
  9

  
	
  SECTION 2.06.

  	
   

  	
  Mutilated, Destroyed, Lost or Stolen Debt Securities

  	
   

  	
  11

  
	
  SECTION 2.07.

  	
   

  	
  Temporary Debt Securities

  	
   

  	
  12

  
	
  SECTION 2.08.

  	
   

  	
  Payment of Interest

  	
   

  	
  13

  
	
  SECTION 2.09.

  	
   

  	
  Cancellation of Debt Securities Paid, etc

  	
   

  	
  14

  
	
  SECTION 2.10.

  	
   

  	
  Computation of Interest

  	
   

  	
  14

  
	
  SECTION 2.11.

  	
   

  	
  Extension of Interest Payment Period

  	
   

  	
  16

  
	
  SECTION 2.12.

  	
   

  	
  Right of Set-Off

  	
   

  	
  17

  
	
  SECTION 2.13.

  	
   

  	
  CUSIP Numbers

  	
   

  	
  17

  
	
  SECTION 2.14.

  	
   

  	
  Global Debentures

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  III

  
	
  PARTICULAR
  COVENANTS OF THE COMPANY

  
	
   

  
	
  SECTION 3.01.

  	
   

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

  	
   

  	
  19

  
	
  SECTION 3.02.

  	
   

  	
  Offices for Notices and Payments, etc

  	
   

  	
  20

  
	
  SECTION 3.03.

  	
   

  	
  Appointments to Fill Vacancies in Trustee’s Office

  	
   

  	
  20

  
	
  SECTION 3.04.

  	
   

  	
  Provision as to Paying Agent

  	
   

  	
  20

  
	
  SECTION 3.05.

  	
   

  	
  Certificate to Trustee

  	
   

  	
  22

  
	
  SECTION 3.06.

  	
   

  	
  Additional Interest

  	
   

  	
  22

  
	
  SECTION 3.07.

  	
   

  	
  Compliance with Consolidation Provisions

  	
   

  	
  22

  
	
  SECTION 3.08.

  	
   

  	
  Limitation on Dividends

  	
   

  	
  23

  
	
  SECTION 3.09.

  	
   

  	
  Covenants as to the Trust

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 



 -i-
 






 



 


	
  ARTICLE IV

  
	
  LISTS
  AND REPORTS BY THE COMPANY AND THE TRUSTEE

  
	
   

  
	
  SECTION 4.01.

  	
   

  	
  Securityholders’ Lists

  	
   

  	
  24

  
	
  SECTION 4.02.

  	
   

  	
  Preservation and Disclosure of Lists

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  V

  
	
  REMEDIES
  OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT

  
	
   

  
	
  SECTION 5.01.

  	
   

  	
  Events of Default

  	
   

  	
  25

  
	
  SECTION 5.02.

  	
   

  	
  Payment of Debt Securities on Default; Suit Therefor

  	
   

  	
  27

  
	
  SECTION 5.03.

  	
   

  	
  Application of Moneys Collected by Trustee

  	
   

  	
  29

  
	
  SECTION 5.04.

  	
   

  	
  Proceedings by Securitvholders

  	
   

  	
  29

  
	
  SECTION 5.05.

  	
   

  	
  Proceedings by Trustee

  	
   

  	
  29

  
	
  SECTION 5.06.

  	
   

  	
  Remedies Cumulative and Continuing

  	
   

  	
  30

  
	
  SECTION 5.07.

  	
   

  	
  Direction of Proceedings and Waiver of Defaults by
  Majority of Securityholders

  	
   

  	
  30

  
	
  SECTION 5.08.

  	
   

  	
  Notice of Defaults

  	
   

  	
  31

  
	
  SECTION 5.09.

  	
   

  	
  Undertaking to Pay Costs

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VI

  
	
  CONCERNING
  THE TRUSTEE

  
	
   

  
	
  SECTION 6.01.

  	
   

  	
  Duties and Responsibilities of Trustee

  	
   

  	
  31

  
	
  SECTION 6.02.

  	
   

  	
  Reliance on Documents, Opinions, etc

  	
   

  	
  33

  
	
  SECTION 6.03.

  	
   

  	
  No Responsibility for Recitals, etc

  	
   

  	
  34

  
	
  SECTION 6.04.

  	
   

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

  	
   

  	
  34

  
	
  SECTION 6.05.

  	
   

  	
  Moneys to be Held in Trust

  	
   

  	
  34

  
	
  SECTION 6.06.

  	
   

  	
  Compensation and Expenses of Trustee

  	
   

  	
  34

  
	
  SECTION 6.07.

  	
   

  	
  Officers’ Certificate as Evidence

  	
   

  	
  35

  
	
  SECTION 6.08.

  	
   

  	
  Eligibility of Trustee

  	
   

  	
  35

  
	
  SECTION 6.09.

  	
   

  	
  Resignation or Removal of Trustee, Calculation
  Agent, Paying Agent or Debt Security Registrar

  	
   

  	
  36

  
	
  SECTION 6.10.

  	
   

  	
  Acceptance by Successor

  	
   

  	
  37

  
	
  SECTION 6.11.

  	
   

  	
  Succession by Merger, etc

  	
   

  	
  38

  
	
  SECTION 6.12.

  	
   

  	
  Authenticating Agents

  	
   

  	
  39

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 



 -ii-
 






 



 


	
  ARTICLE VII

  
	
  CONCERNING
  THE SECURITYHOLDERS

  
	
   

  
	
  SECTION 7.01.

  	
   

  	
  Action by Securityholders

  	
   

  	
  40

  
	
  SECTION 7.02.

  	
   

  	
  Proof of Execution by Securityholders

  	
   

  	
  40

  
	
  SECTION 7.03.

  	
   

  	
  Who Are Deemed Absolute Owners

  	
   

  	
  41

  
	
  SECTION 7.04.

  	
   

  	
  Debt Securities Owned by Company Deemed Not
  Outstanding

  	
   

  	
  41

  
	
  SECTION 7.05.

  	
   

  	
  Revocation of Consents; Future Holders Bound

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII

  
	
  SECURITYHOLDERS’
  MEETINGS

  
	
   

  
	
  SECTION 8.01.

  	
   

  	
  Purposes of Meetings

  	
   

  	
  42

  
	
  SECTION 8.02.

  	
   

  	
  Call of Meetings by Trustee

  	
   

  	
  42

  
	
  SECTION 8.03.

  	
   

  	
  Call of Meetings by Company or Securityholders

  	
   

  	
  42

  
	
  SECTION 8.04.

  	
   

  	
  Qualifications for Voting

  	
   

  	
  43

  
	
  SECTION 8.05.

  	
   

  	
  Regulations

  	
   

  	
  43

  
	
  SECTION 8.06.

  	
   

  	
  Voting

  	
   

  	
  43

  
	
  SECTION 8.07.

  	
   

  	
  Quorum; Actions

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IX

  
	
  SUPPLEMENTAL
  INDENTURES

  
	
   

  
	
  SECTION 9.01.

  	
   

  	
  Supplemental Indentures without Consent of
  Securityholders

  	
   

  	
  45

  
	
  SECTION 9.02.

  	
   

  	
  Supplemental Indentures with Consent of
  Securityholders

  	
   

  	
  46

  
	
  SECTION 9.03.

  	
   

  	
  Effect of Supplemental Indentures

  	
   

  	
  47

  
	
  SECTION 9.04.

  	
   

  	
  Notation on Debt Securities

  	
   

  	
  47

  
	
  SECTION 9.05.

  	
   

  	
  Evidence of Compliance of Supplemental Indenture to
  be Furnished to Trustee

  	
   

  	
  48

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  X

  
	
  REDEMPTION
  OF SECURITIES

  
	
   

  
	
  SECTION 10.01.

  	
   

  	
  Optional Redemption

  	
   

  	
  48

  
	
  SECTION 10.02.

  	
   

  	
  Special Event Redemption

  	
   

  	
  48

  
	
  SECTION 10.03.

  	
   

  	
  Notice of Redemption; Selection of Debt Securities

  	
   

  	
  48

  
	
  SECTION 10.04.

  	
   

  	
  Payment of Debt Securities Called for Redemption

  	
   

  	
  49

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 



 -iii-
 






 



 


	
  ARTICLE XI

  
	
  CONSOLIDATION,
  MERGER, SALE, CONVEYANCE AND LEASE

  
	
   

  
	
  SECTION 11.01.

  	
   

  	
  Company May Consolidate, etc., on Certain Terms

  	
   

  	
  50

  
	
  SECTION 11.02.

  	
   

  	
  Successor Entity to be Substituted

  	
   

  	
  50

  
	
  SECTION 11.03.

  	
   

  	
  Opinion of Counsel to be Given to Trustee

  	
   

  	
  51

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  XII

  
	
  SATISFACTION
  AND DISCHARGE OF INDENTURE

  
	
   

  
	
  SECTION 12.01.

  	
   

  	
  Discharge of Indenture

  	
   

  	
  51

  
	
  SECTION 12.02.

  	
   

  	
  Deposited Moneys to be Held in Trust by Trustee

  	
   

  	
  51

  
	
  SECTION 12.03.

  	
   

  	
  Paying Agent to Repay Moneys Held

  	
   

  	
  52

  
	
  SECTION 12.04.

  	
   

  	
  Return of Unclaimed Moneys

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  XIII

  
	
  IMMUNITY
  OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

  	
   

  
	
   

  	
   

  
	
  SECTION 13.01.

  	
   

  	
  Indenture and Debt Securities Solely Corporate
  Obligations

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  XIV

  
	
  MISCELLANEOUS
  PROVISIONS

  
	
   

  
	
  SECTION 14.01.

  	
   

  	
  Successors

  	
   

  	
  53

  
	
  SECTION 14.02.

  	
   

  	
  Official Acts by Successor Entity

  	
   

  	
  53

  
	
  SECTION 14.03.

  	
   

  	
  Surrender of Company Powers

  	
   

  	
  53

  
	
  SECTION 14.04.

  	
   

  	
  Addresses for Notices, etc

  	
   

  	
  53

  
	
  SECTION 14.05.

  	
   

  	
  Governing Law

  	
   

  	
  54

  
	
  SECTION 14.06.

  	
   

  	
  Evidence of Compliance with Conditions Precedent

  	
   

  	
  54

  
	
  SECTION 14.07.

  	
   

  	
  Non-Business Days

  	
   

  	
  54

  
	
  SECTION 14.08.

  	
   

  	
  Table of Contents, Headings, etc

  	
   

  	
  54

  
	
  SECTION 14.09.

  	
   

  	
  Execution in Counterparts

  	
   

  	
  55

  
	
  SECTION 14.10.

  	
   

  	
  Severability

  	
   

  	
  55

  
	
  SECTION 14.11.

  	
   

  	
  Assignment

  	
   

  	
  55

  
	
  SECTION 14.12.

  	
   

  	
  Benefits of Indenture

  	
   

  	
  55

  
	
  SECTION 14.13.

  	
   

  	
  Acknowledgment of Rights

  	
   

  	
  55

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 



 -iv-
 






 



 


	
  ARTICLE XV

  
	
  SUBORDINATION
  OF DEBT SECURITIES

  
	
   

  
	
  SECTION 15.01.

  	
   

  	
  Agreement to Subordinate

  	
   

  	
  56

  
	
  SECTION 15.02.

  	
   

  	
  Default on Senior Indebtedness

  	
   

  	
  56

  
	
  SECTION 15.03.

  	
   

  	
  Liquidation; Dissolution; Bankruptcy

  	
   

  	
  57

  
	
  SECTION 15.04.

  	
   

  	
  Subrogation

  	
   

  	
  58

  
	
  SECTION 15.05.

  	
   

  	
  Trustee to Effectuate Subordination

  	
   

  	
  59

  
	
  SECTION 15.06.

  	
   

  	
  Notice by the Company

  	
   

  	
  59

  
	
  SECTION 15.07.

  	
   

  	
  Rights of the Trustee; Holders of Senior
  Indebtedness

  	
   

  	
  59

  
	
  SECTION 15.08.

  	
   

  	
  Subordination May Not Be Impaired

  	
   

  	
  60

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT A

  	
   

  	
  FORM OF DEBT SECURITY

  	
   

  	
   

  



 



 -v-















 


THIS AMENDED AND RESTATED INDENTURE, dated as of July
7, 2006, between American Equity Investment Life Holding Company, a company
incorporated in Iowa (hereinafter sometimes called the “Company”), and Wells
Fargo Bank, National Association, a national banking association with its
principal place of business in the State of Delaware, as trustee (hereinafter
sometimes called the “Trustee”).


W I T N E S S E T H:


WHEREAS, the Company and the Trustee previously
entered into an Indenture, dated as of February 15, 2006 (the “Original
Indenture”) to provide for the issuance of its junior subordinated debt
securities (the “Debt Securities”) issued to evidence loans made to the Company
of the proceeds from the issuance by American Equity Capital Trust XII, a
Delaware statutory trust (the “Trust”), of undivided preferred beneficial
interests in the assets of the Trust (the “Capital Securities”) and undivided
common beneficial interests in the assets of the Trust (the “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;


WHEREAS, the Company has duly authorized the execution
and delivery of this Amended and Restated Indenture to increase the amount of
outstanding Debt Securities and Trust Securities; and


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


NOW, THEREFORE, this Indenture Witnesseth:


For and in consideration of the premises herein set
forth, the receipt and sufficiency of which is hereby acknowledged, each party,
for the equal and proportionate benefit of all Holders of the Debt Securities,
hereby amend and restates the Original Indenture in its entirety and agrees as
follows:


ARTICLE I


DEFINITIONS


SECTION 1.01.  Definitions.


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


 









 



 


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


“Additional Provisions”
shall have the meaning set forth in Section 15.01.


“Applicable Depository Procedures” means, with respect
to any transfer or transaction involving a Global Debenture or beneficial
interest therein, the rules and procedures of the Depositary for such Global
Debenture, in each case to the extent applicable to such transaction and as in
effect from time to time.


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


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


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


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


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


“Calculation Agent” means
the Person identified as “Trustee” in the first paragraph hereof with respect
to the Debt Securities and the Institutional Trustee with respect to the Trust
Securities.


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


“Capital Securities
Guarantee” means the amended and restated guarantee agreement that the Company
will enter into with Wells Fargo Bank, Delaware Trust Company or other Persons
that operates directly or indirectly for the benefit of holders of Capital
Securities of the Trust.


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


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


 



 2
 






 



 


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


“Company” means American
Equity Investment Life Holding Company, a company incorporated in Iowa, and,
subject to the provisions of Article XI, shall include its successors and
assigns.


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


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


“Debt Security Registrar” has the meaning stated in
Section 2.05


“Declaration” means the
Second Amended and Restated Declaration of Trust of the Trust dated as of July
7, 2006, as amended or supplemented from time to time.


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


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


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


“Depositary” means an organization registered as a
clearing agency under the Securities Exchange Act of 1934 that is designated as
Depositary by the Company or any successor thereto.  DTC will be the initial Depositary.


“Depositary Participant” means a broker, dealer, bank,
other financial institution or other Person for whom from time to time the
Depositary effects book-entry transfers and pledges of securities deposited
with the Depositary.


“DTC” means The Depository Trust Company, a New York
corporation.


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


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


“Fee Agreement” means the agreement dated as of
February 15, 2006, by and among the Trustee, the Initial Purchaser, the Sponsor
and the Trust.


“Global Debenture” means
a security that evidences all or part of the Debt Securities, the ownership and
transfers of which shall be made through book entries by a Depositary.


 



 3
 






 



 


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


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


“Interest Payment Date”
means January 7, April 7, July 7 and October 7 of each year, commencing on
April 7, 2006, during the term of this Indenture.


“Interest Rate” means a
per annum rate of interest, reset quarterly, equal to LIBOR, as determined on
the LIBOR Determination Date immediately preceding each Interest Payment Date,
plus 3.50%.


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


“LIBOR” means the London
Interbank Offered Rate for U.S. Dollar deposits in Europe as determined by the
Calculation Agent according to Section 2.10(b).


“LIBOR Banking Day” has
the meaning set forth in Section 2.10(b)(1).


“LIBOR Business Day” has
the meaning set forth in Section 2.10(b)(1).


“LIBOR Determination Date”
has the meaning set forth in Section 2.10(b).


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


“Maturity Date” means
April 7, 2036.


“Notice” has the meaning
set forth in Section 2.11.


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


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


 



 4
 






 



 


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


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


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


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


“Paying Agent” has the
meaning set forth in Section 3.04(e).


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


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


“Principal Office of the
Trustee” means the office of the Trustee, at which at any particular time its
corporate trust business shall be principally administered, which at all times
shall be located within the United States and at the time of the execution of
this Indenture shall be 919 Market Street, Suite 700, Wilmington, DE 19801.


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


“Redemption Price” means
100% of the principal amount of the Debt Securities being redeemed plus accrued
and unpaid interest on such Debt Securities to the Redemption Date or, in the
case of a redemption due to the occurrence of a Special Event, to the Special
Redemption Date if such Special Redemption Date is on or after April 7, 2011.


“Responsible Officer”
means, with respect to the Trustee, any officer within the Principal Office of
the Trustee with direct responsibility for the administration of the Indenture,
including any vice-president, any assistant vice-president, any secretary, any
assistant secretary, the treasurer, any assistant treasurer, any trust officer
or other officer of the Principal Office of 


 



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the Trustee customarily performing functions similar
to those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer’s knowledge of and familiarity with
the particular subject.


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


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


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


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


“Special Redemption Price”
means (1) if the Special Redemption Date is before April 7, 2011, One Hundred
Seven and One Half Percent (107.5%) of the principal amount to be redeemed plus
any accrued and unpaid interest thereon to the date of such redemption and (2)
if the Special Redemption Date is on or after April 7, 2011, the Redemption
Price for such Special Redemption Date.


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


 



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power for the election of a majority of the directors
(or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the
occurrence of a contingency.


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


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


“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended from time-to-time, or any
successor legislation.


“Trust Securities” means
Common Securities and Capital Securities of American Equity Capital Trust XII.


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


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


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


 



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ARTICLE II


DEBT SECURITIES


SECTION 2.01.  Authentication
and Dating.


Upon the execution and delivery of this Indenture, or
from time to time thereafter, Debt Securities in an aggregate principal amount
not in excess of $41,238,000 may be executed and delivered by the Company to
the Trustee for authentication, and the Trustee shall thereupon authenticate
and make available for delivery said Debt Securities to or upon the written
order of the Company, signed by its Chairman of the Board of Directors, Vice Chairman,
President or Chief Financial Officer or one of its Vice Presidents, without any
further action by the Company hereunder. In authenticating such Debt
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Debt Securities, the Trustee shall be entitled to receive,
and (subject to Section 6.01) shall be fully protected in relying upon a copy
of any Board Resolution or Board Resolutions relating thereto and, if
applicable, an appropriate record of any action taken pursuant to such
resolution, in each case certified by the Secretary or an Assistant Secretary
or other officers with appropriate delegated authority of the Company as the
case may be.


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


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


SECTION 2.02.  Form
of Trustee’s Certificate of Authentication.


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


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


WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its
individual capacity but solely as trustee


By                                                                                                                      


           Authorized
Officer


SECTION 2.03.  Form
and Denomination of Debt Securities.


The Debt Securities shall be substantially in the form
of Exhibit A hereto. The Debt Securities shall be in registered, certificated
form without coupons and in minimum denominations of $100,000 and any multiple
of $1,000 in excess thereof. The Debt Securities shall be numbered, lettered,
or otherwise distinguished in such manner or in accordance with 


 



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such plans as the
officers executing the same may determine with the approval of the Trustee as
evidenced by the execution and authentication thereof.


SECTION 2.04.  Execution
of Debt Securities.


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


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


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


SECTION 2.05.  Exchange
and Registration of Transfer of Debt Securities.


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


Debt Securities to be exchanged may be surrendered at
the Principal Office of the Trustee or at any office or agency to be maintained
by the Company for such purpose as provided in Section 3.02, and the Company shall
execute, the Company or the Trustee shall register and the Trustee or the
Authenticating Agent shall authenticate and make available for delivery in
exchange therefor the Debt Security or Debt Securities which the Securityholder
making the exchange shall be entitled to receive. Upon due presentment for
registration of transfer of any Debt Security at the Principal Office of the
Trustee or at any office or agency of 


 



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the Company maintained
for such purpose as provided in Section 3.02, the Company shall execute, the
Company or the Trustee shall register and the Trustee or the Authenticating
Agent shall authenticate and make available for delivery in the name of the
transferee or transferees a new Debt Security for a like aggregate principal
amount. Registration or registration of transfer of any Debt Security by the
Trustee or by any agent of the Company appointed pursuant to Section 3.02, and
delivery of such Debt Security, shall be deemed to complete the registration or
registration of transfer of such Debt Security.


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


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


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


Notwithstanding the foregoing, Debt Securities may not
be transferred except in compliance with the restricted securities legend set
forth below, unless otherwise determined by the Company in accordance with
applicable law, which legend shall be placed on each Debt Security:


THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS. NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY ONLY (A) TO THE COMPANY, (B) PURSUANT TO AND IN ACCORDANCE WITH
RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON THE HOLDER
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE
144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (C) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING
OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF AN “ACCREDITED
INVESTOR,” FOR INVESTMENT PURPOSES AND NOT WITH A VIEW 


 



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TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT
IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE
COMPANY. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES THAT IT
WILL COMPLY WITH THE FOREGOING RESTRICTIONS.


THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES, REPRESENTS AND WARRANTS THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONS
INVOLVING THIS SECURITY UNLESS SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE
SECURITIES ACT.


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


IN CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS
SECURITY WILL DELIVER TO THE COMPANY AND TRUSTEE SUCH CERTIFICATES AND OTHER
INFORMATION AS MAY BE REQUIRED BY THE INDENTURE TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS.


 



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


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


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


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


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


 



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SECTION 2.07.  Temporary
Debt Securities.


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


SECTION 2.08.  Payment
of Interest.


Each Debt Security will bear interest at the then
applicable Interest Rate from and including each Interest Payment Date or, in
the case of the first interest period, the original date of issuance of such
Debt Security to, but excluding, the next succeeding Interest Payment Date or,
in the case of the last interest period, the Redemption Date, Special
Redemption Date or Maturity Date, as applicable, on the principal thereof, on
any overdue principal and (to the extent that payment of such interest is
enforceable under applicable law) on Deferred Interest and on any overdue
installment of interest (including Defaulted Interest), payable (subject to the
provisions of Article XII) on each Interest Payment Date commencing on April 7,
2006.  Interest and any Deferred Interest
on any Debt Security that is payable, and is punctually paid or duly provided
for by the Company, on any Interest Payment Date shall be paid to the Person in
whose name said Debt Security (or one or more Predecessor Securities) is
registered at the close of business on the regular record date for such
interest installment, except that interest and any Deferred Interest payable on
the Maturity Date shall be paid to the Person to whom principal is paid. In the
event that any Debt Security or portion thereof is called for redemption and
the redemption date is subsequent to a regular record date with respect to any
Interest Payment Date and prior to such Interest Payment Date, interest on such
Debt Security will be paid upon presentation and surrender of such Debt Security.


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


 



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


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


The term “regular record date” as used in this Section
shall mean the fifteenth day prior to an Interest Payment Date whether or not
such date is a Business Day.


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


SECTION 2.09.  Cancellation
of Debt Securities Paid, etc.


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


 



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


SECTION 2.10.  Computation
of Interest.


(a)           The amount of interest payable for
any interest period will be computed on the basis of a 360-day year and the
actual number of days elapsed in the relevant interest period; provided,
however, that upon the occurrence of a Special Event Redemption pursuant
to Section 10.02 the amounts payable pursuant to this Indenture shall be
calculated as set forth in the definition of Special Redemption Price.


(b)           LIBOR shall be determined by the
Calculation Agent in accordance with the following provisions:


(1)           On the second LIBOR Business Day
(provided, that on such day commercial banks are open for business (including
dealings in foreign currency deposits) in London (a “LIBOR Banking Day”), and
otherwise the next preceding LIBOR Business Day that is also a LIBOR Banking
Day) prior to January 15, April 15, July 15 and October 15 (except, with
respect to the first interest payment period, on February 13, 2006), (each such
day, a “LIBOR Determination Date”), LIBOR shall equal the rate, as obtained by
the Calculation Agent for three-month U.S. Dollar deposits in Europe, which
appears on Telerate Page 3750 (as defined in the International Swaps and
Derivatives Association, Inc. 1991 Interest Rate and Currency Exchange
Definitions) or such other page as may replace such Telerate Page 3750, as of
11:00 a.m. (London time) on such LIBOR Determination Date, as reported by
Bloomberg Financial Markets Commodities News; provided, however,
that in the case of the first interest payment period, LIBOR will be
interpolated from LIBOR for three-month U.S. Dollar deposits in Europe and
LIBOR for four-month U.S. Dollar deposits in Europe on a straight-line basis. “LIBOR
Business Day” means any day that is not a Saturday, Sunday or other day on
which commercial banking institutions in New York, New York or Wilmington,
Delaware are authorized or obligated by law or executive order to be closed. If
such rate is superseded on Telerate Page 3750 by a corrected rate before 12:00
noon (London time) on the same LIBOR Determination Date, the corrected rate as
so substituted will be the applicable LIBOR for that LIBOR Determination Date.


(2)           If, on any LIBOR Determination Date,
such rate does not appear on Telerate Page 3750 as reported by Bloomberg
Financial Markets Commodities News or such other page as may replace such
Telerate Page 3750, the Calculation Agent shall determine the arithmetic mean
of the offered quotations of the Reference Banks (as defined below) to leading
banks in the London interbank market for three-month U.S. Dollar deposits in
Europe (in an amount determined by the Calculation Agent) by reference to
requests for quotations as of approximately 11:00 a.m. (London time) on the
LIBOR Determination Date made by the Calculation Agent to the Reference Banks.
If, on any LIBOR Determination Date, at least two of the Reference Banks
provide such quotations, 


 



 15
 






 



 


LIBOR shall equal the
arithmetic mean of such quotations. If, on any LIBOR Determination Date, only
one or none of the Reference Banks provide such a quotation, LIBOR shall be
deemed to be the arithmetic mean of the offered quotations that at least two
leading banks in the City of New York (as selected by the Calculation Agent)
are quoting on the relevant LIBOR Determination Date for three-month U.S.
Dollar deposits in Europe at approximately 11:00 a.m. (London time) (in an
amount determined by the Calculation Agent). As used herein, “Reference Banks”
means four major banks in the London interbank market selected by the
Calculation Agent.


(3)           If the Calculation Agent is required
but is unable to determine a rate in accordance with at least one of the
procedures provided above, LIBOR shall be LIBOR in effect on the previous LIBOR
Determination Date (whether or not LIBOR for such period was in fact determined
on such LIBOR Determination Date).


(c)           All percentages resulting from any
calculations on the Debt Securities will be rounded, if necessary, to the
nearest one hundred-thousandth of a percentage point, with five one-millionths
of a percentage point rounded upward (e.g., 9.876545% (or .09876545) being
rounded to 9.87655% (or .0987655)), and all dollar amounts used in or resulting
from such calculation will be rounded to the nearest cent (with one-half cent
being rounded upward).


(d)           On each LIBOR Determination Date, the
Calculation Agent shall notify, in writing, the Company and the Paying Agent of
the applicable Interest Rate in effect for the applicable Interest Payment
Date. The Calculation Agent shall, upon the request of the holder of any Debt
Securities, provide the Interest Rate then in effect. All calculations made by
the Calculation Agent in the absence of manifest error shall be conclusive for
all purposes and binding on the Company and the Holders of the Debt Securities.
The Paying Agent shall be entitled to rely on information received from the
Calculation Agent or the Company as to the Interest Rate. The Company shall,
from time to time, provide any necessary information to the Paying Agent
relating to any original issue discount and interest on the Debt Securities
that is included in any payment and reportable for taxable income calculation
purposes.


SECTION 2.11.  Extension
of Interest Payment Period.


So long as no Event of Default has occurred and is
continuing, the Company shall have the right, from time to time and without
causing an Event of Default, to defer payments of interest on the Debt
Securities by extending the interest payment period on the Debt Securities at
any time and from time to time during the term of the Debt Securities, for up
to twenty consecutive quarterly periods (each such extended interest payment
period, an “Extension Period”), during which Extension Period no interest shall
be due and payable (except any Additional Interest that may be due and
payable). No Extension Period may end on a date other than an Interest Payment
Date. During any Extension Period, interest will continue to accrue on the Debt
Securities, and interest on such accrued interest (such accrued interest and
interest thereon referred to herein as “Deferred Interest”) will accrue at an
annual rate equal to the Interest Rate in effect for such Extension Period,
compounded quarterly from the date such 


 



 16
 






 



 


Deferred Interest would
have been payable were it not for the Extension Period, to the extent permitted
by law. No interest or Deferred Interest shall be due and payable during an
Extension Period, except at the end thereof. At the end of any such Extension
Period the Company shall pay all Deferred Interest then accrued and unpaid on
the Debt Securities; provided, however, that no Extension Period
may extend beyond the Maturity Date; and provided  further, however,
that during any such Extension Period, the Company shall be subject to the
restrictions set forth in Section 3.08 of this Indenture. Prior to the
termination of any Extension Period, the Company may further extend such
period, provided, that such period together with all such previous and
further consecutive extensions thereof shall not exceed twenty consecutive
quarterly periods, or extend beyond the Maturity Date. Upon the termination of
any Extension Period and upon the payment of all Deferred Interest, the Company
may commence a new Extension Period, subject to the foregoing requirements. The
Company must give the Trustee notice of its election to begin such Extension
Period (“Notice”) at least one Business Day prior to the earlier of (i) the
next succeeding date on which interest on the Debt Securities would have been
payable except for the election to begin such Extension Period or (ii) the date
such interest is payable, but in any event not later than the related regular
record date. The Notice shall describe, in reasonable detail, why the Company
has elected to begin an Extension Period. 
The Notice shall acknowledge and affirm the Company’s understanding that
it is prohibited from issuing dividends and other distributions during the
Extension Period.  Upon receipt of the
Notice, the Placement Agent has the right, at its sole discretion, to disclose
the name of the Company, the fact that the Company has elected to begin an
Extension Period and other information that the Initial Purchaser (as defined
in the Purchase Agreement by and between the Company and the Initial
Purchaser), at its sole discretion, deems relevant to the Company’s election to
begin an Extension Period.  The Trustee
shall give notice of the Company’s election to begin a new Extension Period to
the Securityholders.


SECTION 2.12.  Right
of Set-Off.


Notwithstanding anything to the contrary herein, the
Company shall have the right to set off any payment it is otherwise required to
make in respect of any Debt Security to the extent the Company has theretofore
made, or is concurrently on the date of such payment making, a payment under
the Guarantee Agreement relating to such Debt Security.


SECTION 2.13.  CUSIP
Numbers.


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


 



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SECTION 2.14.  Global
Debentures.


(a)           Upon the election of the holder of
Outstanding Debt Securities, which election need not be in writing, the Debt
Securities owned by such holder shall be issued in the form of one or more
Global Debentures registered in the name of the Depositary or its nominee.  Each Global Debenture issued under this
Indenture shall be registered in the name of the Depositary designated by the
Company for such Global Debenture or a nominee thereof and delivered to such
Depositary or a nominee thereof or custodian therefor, and each such Global
Debenture shall constitute a single Debt Security for all purposes of this
Indenture.


(b)           Notwithstanding any other provision
in this Indenture, no Global Debenture may be exchanged in whole or in part for
Debt Securities registered, and no transfer of a Global Debenture in whole or
in part may be registered, in the name of any Person other than the Depositary
for such Global Debenture or a nominee thereof unless (i) such Depositary
advises the Trustee and the Company in writing that such Depositary is no
longer willing or able to properly discharge its responsibilities as Depositary
with respect to such Global Debenture, and no qualified successor is appointed
by the Company within ninety (90) days of receipt by the Company of such
notice, (ii) such Depositary ceases to be a clearing agency registered under
the Exchange Act and no successor is appointed by the Company within ninety
(90) days after obtaining knowledge of such event, (iii) the Company executes
and delivers to the Trustee a Company Order stating that the Company elects to
terminate the book-entry system through the Depositary or (iv) an Event of
Default shall have occurred and be continuing. 
Upon the occurrence of any event specified in clause (i), (ii), (iii) or
(iv) above, the Trustee shall notify the Depositary and instruct the Depositary
to notify all owners of beneficial interests in such Global Debenture of the
occurrence of such event and of the availability of Debt Securities to such
owners of beneficial interests requesting the same.  Upon the issuance of such Debt Securities and
the registration in the Debt Security Register of such Debt Securities in the
names of the holders of the beneficial interests therein, the Trustee shall
recognize such holders of beneficial interests as holders thereof.


(c)           If any Global Debenture is to be
exchanged for other Debt Securities or canceled in part, or if another Debt
Security is to be exchanged in whole or in part for a beneficial interest in
any Global Debenture, then either (i) such Global Debenture shall be so
surrendered for exchange or cancellation as provided in this Article II
or (ii) the principal amount thereof shall be reduced or increased by an amount
equal to the portion thereof to be so exchanged or canceled, or equal to the
principal amount of such other Debt Security to be so exchanged for a
beneficial interest therein, as the case may be, by means of an appropriate
adjustment made on the records of the Debt Security registrar, whereupon the
Trustee, in accordance with the Applicable Depository Procedures, shall
instruct the Depositary or its authorized representative to make a
corresponding adjustment to its records. 
Upon any such surrender or adjustment of a Global Debenture by the
Depositary, accompanied by registration instructions, the Company shall execute
and the Trustee shall authenticate and deliver any Debt Securities issuable in
exchange for such Global Debenture (or any portion thereof) in accordance with
the instructions of the Depositary.  The
Trustee shall not be liable for any delay in delivery of such instructions and
may conclusively rely on, and shall be fully protected in relying on, such
instructions.


 



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(d)           Every Debt Security authenticated and
delivered upon registration of transfer of, or in exchange for or in lieu of, a
Global Debenture or any portion thereof shall be authenticated and delivered in
the form of, and shall be, a Global Debenture, unless such Debt Security is
registered in the name of a Person other than the Depositary for such Global
Debenture or a nominee thereof.


(e)           Debt Securities distributed to
holders of Book-Entry Capital Securities (as defined in the Trust Agreement)
upon the dissolution of the Trust shall be distributed in the form of one or
more Global Debentures registered in the name of a Depositary or its nominee,
and deposited with the Debt Securities registrar, as custodian for such
Depositary, or with such Depositary, for credit by the Depositary to the
respective accounts of the beneficial owners of the Debt Securities represented
thereby (or such other accounts as they may direct).  Debt Securities distributed to holders of
Capital Securities other than Book-Entry Capital Securities upon the
dissolution of the Trust shall not be issued in the form of a Global Debenture
or any other form intended to facilitate book-entry trading in beneficial
interests in such Debt Securities.


(f)            The Depositary or its nominee, as
the registered owner of a Global Debenture, shall be the holder of such Global
Debenture for all purposes under this Indenture and the Debt Securities, and
owners of beneficial interests in a Global Debenture shall hold such interests
pursuant to the Applicable Depository Procedures.  Accordingly, any such owner’s beneficial
interest in a Global Debenture shall be shown only on, and the transfer of such
interest shall be effected only through, records maintained by the Depositary
or its nominee or its Depositary Participants. 
The Debt Securities registrar and the Trustee shall be entitled to deal
with the Depositary for all purposes of this Indenture relating to a Global
Debenture (including the payment of principal and interest thereon and the
giving of instructions or directions by owners of beneficial interests therein
and the giving of notices) as the sole holder of the Debt Security and shall
have no obligations to the owners of beneficial interests therein.  Neither the Trustee nor the Debt Securities
registrar shall have any liability in respect of any transfers affected by the
Depositary.


(g)           The rights of owners of beneficial
interests in a Global Debenture shall be exercised only through the Depositary
and shall be limited to those established by law and agreements between such
owners and the Depositary and/or its Depositary Participants.


(h)           No holder of any beneficial interest
in any Global Debenture held on its behalf by a Depositary shall have any
rights under this Indenture with respect to such Global Debenture, and such
Depositary may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the owner of such Global Debenture for all purposes
whatsoever.  None of the Company, the
Trustee nor any agent of the Company or the Trustee will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global
Debenture or maintaining, supervising or reviewing any records relating to such
beneficial ownership interests. 
Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by a
Depositary or impair, as between a Depositary and such 


 



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holders of beneficial
interests, the operation of customary practices governing the exercise of the
rights of the Depositary (or its nominee) as holder of any Debt Security.


ARTICLE III


PARTICULAR COVENANTS OF THE COMPANY


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


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


(b)           The Company will treat the Debt Securities
as indebtedness, and the interest payable in respect of such Debt Securities as
interest, for all U.S. federal income tax purposes. All payments in respect of
such Debt Securities will be made free and clear of U.S. withholding tax to any
beneficial owner thereof that has provided an Internal Revenue Service Form W-8
BEN (or any substitute or successor form) establishing its non-U.S. status for
U.S. federal income tax purposes.


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


SECTION 3.02.  Offices
for Notices and Payments, etc.


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


 



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


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


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


SECTION 3.04.  Provision
as to Paying Agent.


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


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


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


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


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


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


 



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


(d)           Any money deposited with the Trustee
or any Paying Agent, or then held by the Company in trust for the payment of
the principal of and any premium or interest (including any Additional
Interest) on any Debt Security and remaining unclaimed for two years after such
principal and any premium or interest has become due and payable shall (unless
otherwise required by mandatory provision of applicable escheat or abandoned or
unclaimed property law) be paid on company request to the Company, 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 Debt 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, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than thirty (30) days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.


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


(f)            The Company hereby confirms the
appointment of the Trustee to act as Paying Agent (the “Paying Agent”).


SECTION 3.05.  Certificate
to Trustee.


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


SECTION 3.06.  Additional
Interest.


If and for so long as the Trust is the holder of all
Debt Securities and is subject to or otherwise required to pay, or is required
to withhold from distributions to holders of Trust Securities, any additional
taxes (including withholding taxes), duties, assessments or other 


 



 22
 






 



 


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


SECTION 3.07.  Compliance
with Consolidation Provisions.


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


SECTION 3.08.  Limitation
on Dividends.


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


 



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Company’s capital stock
(or any capital stock of a subsidiary of the Company) for any class or series
of the Company’s capital stock or of any class or series of the Company’s
indebtedness for any class or series of the Company’s capital stock, (c) the
purchase of fractional interests in shares of the Company’s capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (d) any declaration of a dividend in
connection with any stockholder’s rights plan, or the issuance of rights, stock
or other property under any stockholder’s rights plan, or the redemption or
repurchase of rights pursuant thereto, or (e) any dividend in the form of
stock, warrants, options or other rights where the dividend stock or the stock
issuable upon exercise of such warrants, options or other rights is the same
stock as that on which the dividend is being paid or ranks pari passu
with or junior to such stock).


SECTION 3.09.  Covenants
as to the Trust.


For so long as such Trust Securities remain
outstanding, the Company shall maintain 100% ownership of the Common
Securities; provided, however, that any permitted successor of
the Company under this Indenture that is a U.S. Person may succeed to the Company’s
ownership of such Common Securities. The Company, as owner of the Common
Securities, shall use commercially reasonable efforts to cause the Trust (a) to
remain a statutory trust, except in connection with a distribution of Debt
Securities to the holders of Trust Securities in liquidation of the Trust, the
redemption of all of the Trust Securities or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration, (b) to otherwise continue
to be classified as a grantor trust for United States federal income tax
purposes and (c) to cause each holder of Trust Securities to be treated as
owning an undivided beneficial interest in the Debt Securities.


ARTICLE IV


LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE


SECTION 4.01.  Securityholders’
Lists.


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


(a)           Semiannually, on or before June 30
and December 31 of each year, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Securityholders of the
Debt Securities as of a date not more than 15 days prior to the time such list
is furnished; and


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


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


 



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SECTION 4.02.  Preservation
and Disclosure of Lists.


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


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


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


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


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


 



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order and the renewal of
such tender; otherwise the Trustee shall be relieved of any obligation or duty
to such applicants respecting their application.


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


ARTICLE V


REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT


SECTION 5.01.  Events
of Default.


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


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


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


(c)           the Company defaults in the
performance of, or breaches, any of its covenants or agreements in Sections
3.06, 3.07, 3.08 or 3.09 of this Indenture (other than a covenant or agreement
a default in whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a
period of 90 days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the holders
of not less than 25% in aggregate principal amount of the outstanding Debt
Securities, a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a “Notice of Default” hereunder;
or


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


 



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


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


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


The foregoing provisions, however, are subject to the
condition that if, at any time after the principal of the Debt Securities shall
have been so declared due and payable, and before any judgment or decree for
the payment of the moneys due shall have been obtained or entered as hereinafter
provided, (i) the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Debt
Securities and all payments on the Debt Securities which shall have become due
otherwise than by acceleration (with interest upon all such payments and
Deferred Interest, to the extent permitted by law) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee and each predecessor
Trustee, their respective agents, attorneys and counsel, and all other amounts
due to the Trustee pursuant to Section 6.06, if any, and (ii) all Events of
Default under this Indenture, other than the non-payment of the payments on
Debt Securities which shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein, then and in every such case
the holders of a majority in aggregate principal amount of the Debt Securities
then outstanding, by written notice to the Company and to the Trustee, may
waive all defaults and rescind and annul such declaration and its consequences;
provided, that if the Holders of such Debt Securities fail to annul such
declaration and waive such default, the holders of not less than a majority in
aggregate Liquidation Amount of the Capital Securities of the Trust then
outstanding shall also have the right to rescind and annul such declaration and
its consequences, by written notice to the Company and to the Trustee.  No such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall impair any
right consequent thereon.


In case the Trustee shall have proceeded to enforce
any right under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or 


 



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annulment or for any
other reason or shall have been determined adversely to the Trustee, then and
in every such case the Company, the Trustee and the holders of the Debt
Securities shall be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company, the Trustee and
the holders of the Debt Securities shall continue as though no such proceeding
had been taken.


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


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


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


 



 28
 






 



 


in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be sufficient to
cover reasonable compensation to the Trustee, each predecessor Trustee and
their respective agents, attorneys and counsel, and all other amounts due to
the Trustee under Section 6.06.


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


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


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


SECTION 5.03.  Application
of Moneys Collected by Trustee.


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


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


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


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


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


SECTION 5.04.  Proceedings
by Securitvholders.


No holder of any Debt Security shall have any right to
institute any suit, action or proceeding for any remedy hereunder, unless such
holder previously shall have given to the Trustee written notice of an Event of
Default with respect to the Debt Securities and unless the 


 



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


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


SECTION 5.05.  Proceedings
by Trustee.


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


SECTION 5.06.  Remedies
Cumulative and Continuing.


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


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


The holders of a majority in aggregate principal
amount of the Debt Securities affected (voting as one class) at the time
outstanding shall have the right to direct the time, 


 



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


SECTION 5.08.  Notice
of Defaults.


The Trustee shall, within 90 days after a Responsible
Officer of the Trustee shall have actual knowledge or received written notice
of the occurrence of a default with respect to the Debt Securities, mail to all
Securityholders, as the names and addresses of such holders appear upon the
Debt Security Register, notice of all defaults with respect to the Debt
Securities known to the Trustee, unless such defaults shall have been cured
before the giving of such notice (the term “defaults” for the purpose of this
Section 5.08 being hereby defined to be the events specified in subsections
(a), (b), (c), (d) and (e) of Section 5.01, not including periods of grace, if
any, provided for therein); provided, that, except in the case of default
in the payment of the principal of, premium, if any, or interest on any of the
Debt Securities, the Trustee shall be protected in withholding such notice if
and so long as a Responsible Officer of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Securityholders.


SECTION 5.09.  Undertaking
to Pay Costs.


All parties to this Indenture agree, and each holder
of any Debt Security by such holder’s acceptance thereof shall be deemed to
have agreed, that any court may in its discretion 


 



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


ARTICLE VI


CONCERNING THE TRUSTEE


SECTION 6.01.  Duties
and Responsibilities of Trustee.


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


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


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


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


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


 



 32
 






 



 


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 on their face to the requirements of this
Indenture;


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


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


(d)           the Trustee shall not be charged with
knowledge of any Default or Event of Default with respect to the Debt
Securities unless either (1) a Responsible Officer shall have actual knowledge
of such Default or Event of Default or (2) written notice of such Default or
Event of Default shall have been given to the Trustee by the Company or any
other obligor on the Debt Securities or by any holder of the Debt Securities,
except with respect to an Event of Default pursuant to Sections 5.01 (a) or
5.01 (b) hereof (other than an Event of Default resulting from the default in
the payment of Additional Interest or premium, if any, if the Trustee does not
have actual knowledge or written notice that such payment is due and payable),
of which the Trustee shall be deemed to have knowledge; and


(e)           in the absence of bad faith on the
part of the Trustee, the Trustee may seek and rely on reasonable instructions
from the Company.


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


SECTION 6.02.  Reliance
on Documents, Opinions, etc.


Except as otherwise provided in Section 6.01:


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


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


 



 33














 


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


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


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


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


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


SECTION 6.03.  No
Responsibility for Recitals, etc.


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



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


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


SECTION 6.05.  Moneys
to be Held in Trust.


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


SECTION 6.06.  Compensation
and Expenses of Trustee.


Unless otherwise set forth in the Fee Agreement, the
Company covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, such compensation as shall be agreed to in
writing between the Company and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust),
and the Company will pay or reimburse the Trustee upon its written request for
all documented reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the reasonable expenses and
disbursements of its counsel and of all Persons not regularly in its employ)
except any such expense, disbursement or advance that arises from Trustee’s
negligence or bad faith. The Company also covenants to indemnify each of the
Trustee (including in its individual capacity) and any predecessor Trustee (and
its officers, agents, directors and employees) for, and to hold it harmless
against, any and all loss, damage, claim, liability or expense including taxes
(other than taxes based on the income of the Trustee), except to the extent
such loss, damage, claim, liability or expense results from the negligence or
bad faith of such indemnitee, arising out of or in connection with the
acceptance or administration of this Trust, including the costs and expenses of
defending itself against any claim or liability in the premises. The
obligations of the Company under this Section 6.06 to compensate and indemnify
the Trustee and to pay or reimburse the Trustee for documented expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Debt Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the holders of particular
Debt Securities.


Without prejudice to any other rights available to the
Trustee under applicable law, when the Trustee incurs expenses or renders
services in connection with an Event of Default 



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specified in subsections
(d), (e) or (f) of Section 5.01, the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the services are intended
to constitute expenses of administration under any applicable federal or state
bankruptcy, insolvency or other similar law.


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


SECTION 6.07.  Officers’
Certificate as Evidence.


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


SECTION 6.08.  Eligibility
of Trustee.


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


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


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


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



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SECTION 6.09.  Resignation
or Removal of Trustee, Calculation Agent, Paying Agent or Debt Security
Registrar.


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


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


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


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


(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, the Company may remove the
Trustee and appoint a successor Trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the successor Trustee,
or, subject to the provisions of Section 5.09, if no successor Trustee shall
have been so appointed and have accepted appointment within 30 days of the
occurrence of any of (1), (2) or (3) above, any Securityholder who has been a
bona fide holder of a Debt Security or Debt Securities for at least six months may,
on behalf of himself or herself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor Trustee.



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


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


SECTION 6.10.  Acceptance
by Successor.


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


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



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


In no event shall a retiring Trustee, Calculation
Agent, Paying Agent or Debt Security Registrar be liable for the acts or
omissions of any successor hereunder.


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


SECTION 6.11.  Succession
by Merger, etc.


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


In case at the time such successor to the Trustee
shall succeed to the trusts created by this Indenture any of the Debt
Securities shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor
Trustee, and deliver such Debt Securities so authenticated; and in case at that
time any of the Debt Securities shall not have been authenticated, any successor
to the Trustee may authenticate such Debt Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificates shall have the full force which it is anywhere in the
Debt Securities or in this Indenture provided that the certificate of the
Trustee shall have; provided, however, that the right to adopt
the certificate of authentication of any predecessor Trustee or authenticate
Debt Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.


SECTION 6.12.  Authenticating
Agents.


There may be one or more Authenticating Agents
appointed by the Trustee upon the request of the Company with power to act on
its behalf and subject to its direction in the authentication and delivery of
Debt Securities issued upon exchange or registration of transfer thereof as
fully to all intents and purposes as though any such Authenticating Agent had
been expressly authorized to authenticate and deliver Debt Securities;
provided, that the Trustee shall have no liability to the Company for any acts
or omissions of the Authenticating Agent with respect to the authentication and
delivery of Debt Securities. Any such Authenticating Agent shall at all times
be a Person organized and doing business under the laws of the United States or
of any state or territory thereof or of the District of Columbia authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of at least $50,000,000 and 



 39
 






 



being subject to
supervision or examination by federal, state, territorial or District of
Columbia authority. If such Person publishes reports of condition at least
annually pursuant to law or the requirements of such authority, then for the
purposes of this Section 6.12 the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect herein specified
in this Section.


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


Any Authenticating Agent may at any time resign by
giving written notice of resignation to the Trustee and to the Company. The
Trustee may at any time terminate the agency of any Authenticating Agent with
respect to the Debt Securities by giving written notice of termination to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible under this Section 6.12, the
Trustee may, and upon the request of the Company shall, promptly appoint a
successor Authenticating Agent eligible under this Section 6.12, shall give
written notice of such appointment to the Company and shall mail notice of such
appointment to all holders of Debt Securities as the names and addresses of
such holders appear on the Debt Security Register. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
rights, powers, duties and responsibilities with respect to the Debt Securities
of its predecessor hereunder, with like effect as if originally named as
Authenticating Agent herein.


The Company agrees to pay to any Authenticating Agent
from time to time reasonable compensation for its services. Any Authenticating
Agent shall have no responsibility or liability for any action taken by it as
such in accordance with the directions of the Trustee and shall receive such
reasonable indemnity as it may require against the costs, expenses and
liabilities incurred in furtherance of its duties under this Section 6.12.


ARTICLE VII


CONCERNING THE SECURITYHOLDERS


SECTION 7.01.  Action
by Securityholders.


Whenever in this Indenture it is provided that the
holders of a specified percentage in aggregate principal amount of the Debt
Securities may take any action (including the making of any demand or request,
the giving of any notice, consent or waiver or the taking of any other action),
the fact that at the time of taking any such action the holders of such specified
percentage have joined therein may be evidenced by any instrument or any number
of 



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instruments of similar
tenor executed by such Securityholders in person or by agent or proxy appointed
in writing or by any other method the Trustee deems satisfactory.


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


SECTION 7.02.  Proof
of Execution by Securityholders.


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


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


SECTION 7.03.  Who
Are Deemed Absolute Owners.


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



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SECTION 7.04.  Debt
Securities Owned by Company Deemed Not Outstanding.


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


SECTION 7.05.  Revocation
of Consents; Future Holders Bound.


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


ARTICLE VIII


SECURITYHOLDERS’ MEETINGS


SECTION 8.01.  Purposes
of Meetings.


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


 



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


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


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


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


SECTION 8.02.  Call
of Meetings by Trustee.


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


SECTION 8.03.  Call
of Meetings by Company or Securityholders.


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


SECTION 8.04.  Qualifications
for Voting.


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


 



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SECTION 8.05.  Regulations.


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


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


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


SECTION 8.06.  Voting.


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



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SECTION 8.07.  Quorum;
Actions.


The Persons entitled to vote a majority in outstanding
principal amount of the Debt Securities shall constitute a quorum for a meeting
of Securityholders; provided, however, that if any action is to
be taken at such meeting with respect to a consent, waiver, request, demand,
notice, authorization, direction or other action which may be given by the
holders of not less than a specified percentage in outstanding principal amount
of the Debt Securities, the Persons holding or representing such specified
percentage in outstanding principal amount of the Debt Securities will
constitute a quorum. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the request
of Securityholders, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the permanent
chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for a period of not less than 10 days as determined by the
permanent chairman of the meeting prior to the adjournment of such adjourned
meeting. Notice of the reconvening of any adjourned meeting shall be given as
provided in Section 8.02, except that such notice need be given only once not
less than five days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the outstanding principal
amount of the Debt Securities which shall constitute a quorum.


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


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


ARTICLE IX


SUPPLEMENTAL INDENTURES


SECTION 9.01.  Supplemental
Indentures without Consent of Securityholders.


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


 



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


(b)           to add to the covenants of the
Company such further covenants, restrictions or conditions, and to make the
occurrence, or the occurrence and continuance, of a default in any of such
additional covenants, restrictions or conditions a default or an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however,
that in respect of any such additional covenant, restriction or condition such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such default
or may limit the remedies available to the Trustee upon such default;


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


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


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


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


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


The Trustee is hereby authorized to join with the
Company in the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations 


 



 46
 






 



 


which may be therein
contained and to accept the conveyance, transfer and assignment of any property
thereunder, but the Trustee shall not be obligated to, but may in its
discretion, enter into any such supplemental indenture which adversely affects
the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.


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


SECTION 9.02.  Supplemental
Indentures with Consent of Securityholders.


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


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


Promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to the provisions of this
Section, the Trustee shall transmit by mail, first class postage prepaid, a
notice, prepared by the Company, setting forth in general terms the substance
of such supplemental indenture, to the Securityholders as their names and 


 



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addresses appear upon the
Debt Security Register. Any failure of the Trustee to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.


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


SECTION 9.03.  Effect
of Supplemental Indentures.


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


SECTION 9.04.  Notation
on Debt Securities.


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


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


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


 



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ARTICLE X


REDEMPTION OF SECURITIES


SECTION 10.01.  Optional
Redemption.


At any time the Company shall have the right to redeem
the Debt Securities, in whole or in part, on any January 7, April 7, July 7 or
October 7 on or after April 7, 2011 (the “Redemption Date”), at the Redemption
Price.


SECTION 10.02.  Special
Event Redemption.


If a Special Event shall occur and be continuing, the
Company shall have the right to redeem the Debt Securities, in whole but not in
part, at any time within 90 days following the occurrence of such Special Event
(the “Special Redemption Date”), at the Special Redemption Price.


SECTION 10.03.  Notice
of Redemption; Selection of Debt Securities.


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


Each such notice of redemption shall specify the date
fixed for redemption, the redemption price at which Debt Securities are to be
redeemed (or, if the redemption price cannot be calculated prior to the time
the notice is required to be sent, the estimate of the redemption price, as
calculated by the Calculation Agent, together with a statement that it is an
estimate and that the actual redemption price will be calculated on the fifth
Business Day prior to the date fixed for redemption), the place or places of
payment, that payment will be made upon presentation and surrender of such Debt
Securities, that interest accrued to the date fixed for redemption will be paid
as specified in said notice, and that on and after said date interest thereon
or on the portions thereof to be redeemed will cease to accrue. If less than
all the Debt Securities are to be redeemed the notice of redemption shall
specify the numbers of the Debt Securities to be redeemed. In case the Debt
Securities are to be redeemed in part only, the notice of redemption shall
state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Debt Security, a new Debt Security or Debt Securities in principal amount equal
to the unredeemed portion thereof will be issued.



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


The Company will give the Trustee notice not less than
45 nor more than 60 days prior to the redemption date as to the redemption
price at which the Debt Securities are to be redeemed and the aggregate
principal amount of Debt Securities to be redeemed (in integral multiples of
$1,000), and, if less than all Debt Securities are to be redeemed, the
particular securities to be redeemed shall be selected and redeemed on a pro
rata basis by the Trustee.


SECTION 10.04.  Payment
of Debt Securities Called for Redemption.


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


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


ARTICLE XI


CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE


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


Nothing contained in this Indenture or in the Debt
Securities shall prevent any consolidation or merger of the Company with or
into any other corporation or corporations (whether or not affiliated with the
Company) or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale,
conveyance, transfer or other disposition of the property or capital stock of
the Company or its successor or successors as an entirety, or substantially as
an entirety, to any other corporation (whether or not affiliated with the
Company, or its successor or successors) authorized to acquire 



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and operate the same; provided,
however, that the Company hereby covenants and agrees that, upon any such
consolidation, merger (where the Company is not the surviving corporation),
sale, conveyance, transfer or other disposition, the due and punctual payment
of all payments due on all of the Debt Securities in accordance with their
terms, according to their tenor, and the due and punctual performance and
observance of all the covenants and conditions of this Indenture to be kept or
performed by the Company, shall be expressly assumed by supplemental indenture
reasonably satisfactory in form to the Trustee executed and delivered to the
Trustee by the entity formed by such consolidation, or into which the Company
shall have been merged, or by the entity which shall have acquired such
property or capital stock.


SECTION 11.02.  Successor
Entity to be Substituted.


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


SECTION 11.03.  Opinion
of Counsel to be Given to Trustee.


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


 



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ARTICLE XII


SATISFACTION AND DISCHARGE OF INDENTURE


SECTION 12.01.  Discharge
of Indenture.


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


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


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


 



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SECTION 12.03.  Paying
Agent to Repay Moneys Held.


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


SECTION 12.04.  Return
of Unclaimed Moneys.


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


ARTICLE XIII


IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS


SECTION 13.01.  Indenture
and Debt Securities Solely Corporate Obligations.


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


ARTICLE XIV


MISCELLANEOUS PROVISIONS


SECTION 14.01.  Successors.


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



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SECTION 14.02.  Official
Acts by Successor Entity.


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


SECTION 14.03.  Surrender
of Company Powers.


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


SECTION 14.04.  Addresses
for Notices, etc.


Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Securityholders on the Company may be given or served in writing by being
deposited postage prepaid by registered or certified mail in a post office
letter box addressed (until another address is filed by the Company with the
Trustee for such purpose) to the Company at:


American Equity
Investment Life Holding Company

5000 Westown Parkway, Suite 440

West Des Moines, Iowa 50266

Attention:  Wendy L. Carlson]


Any notice, direction, request or demand by any
Securityholder or the Company to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made in writing
at the office of Wells Fargo Bank, National Association at:


919 Market Street

Suite 700

Wilmington, DE 19801

Attention: Corporate Trust Division


SECTION 14.05.  Governing
Law.


This Indenture and each Debt Security shall be deemed
to be a contract made under the law of the State of New York, and for all
purposes shall be governed by and construed in accordance with the law of said
State, without regard to conflict of laws principles thereof (other than
Section 5-1401 of the General Obligations Law).


SECTION 14.06.  Evidence
of Compliance with Conditions Precedent.


Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers’ Certificate stating that in
the opinion of the signers all conditions precedent, if any, 



 54
 






 



provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent have been
complied with (except that no such Opinion of Counsel is required to be
furnished to the Trustee in connection with the authentication and issuance of
Debt Securities issued on the date of this Indenture).


Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture (except certificates
delivered pursuant to Section 3.05) shall include (a) a statement that the
person making such certificate or opinion has read such covenant or condition; (b)
a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (c) a statement that, in the opinion of such
person, he or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (d) a statement as to whether
or not, in the opinion of such person, such condition or covenant has been
complied with.


SECTION 14.07.  Non-Business
Days.


In any case where the date of payment of interest on
or principal of the Debt Securities is not a Business Day, the payment of such
interest on or principal of the Debt Securities need not be made on such date
but may be made on the next succeeding Business Day, with the same force and
effect as if made on the date of payment, except if such Business Day is in the
next succeeding calendar year, such payment will be made on the immediately preceding
Business Day.


SECTION 14.08.  Table
of Contents, Headings, etc.


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


SECTION 14.09.  Execution
in Counterparts.


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


SECTION 14.10.  Severability.


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



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SECTION 14.11.  Assignment.


Subject to Article XI, the Company will have the right
at all times to assign any of its rights or obligations under this Indenture to
a direct or indirect wholly owned Subsidiary of the Company, provided,
that, in the event of any such assignment, the Company will remain liable for
all such obligations. Subject to the foregoing, this Indenture is binding upon
and inures to the benefit of the parties hereto and their respective successors
and assigns. This Indenture may not otherwise be assigned by the parties
thereto.


SECTION 14.12.  Benefits
of Indenture.


Nothing in this Indenture
or in the Debt Securities, express or implied, shall give to any person, other
than the parties hereto and their successors and assigns, the holders of Senior
Indebtedness, the Holders of the Debt Securities 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 14.13.  Acknowledgment
of Rights.


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


ARTICLE XV


SUBORDINATION OF DEBT SECURITIES


SECTION 15.01.  Agreement
to Subordinate.


The Company covenants and agrees, and each holder of
Debt Securities issued hereunder and under any supplemental indenture (the “Additional
Provisions”) by such Securityholder’s acceptance thereof likewise covenants and
agrees, that all Debt Securities shall be issued subject to the provisions of
this Article XV; and each holder of a Debt Security, 



 56
 






 



whether upon original issue or upon transfer or
assignment thereof, accepts and agrees to be bound by such provisions.


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


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


SECTION 15.02.  Default
on Senior Indebtedness.


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


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


SECTION 15.03.  Liquidation;
Dissolution; Bankruptcy.


Upon any payment by the Company or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding- up or liquidation or
reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due upon
all Senior Indebtedness of the Company shall first be paid in full, or payment
thereof provided for in money in accordance with its terms, before any payment
is made by the Company on the Debt Securities; and upon any such dissolution or
winding-up or liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to which the Securityholders or the Trustee would
be entitled to receive from the Company, except for the provisions of this
Article XV, shall be paid by the Company, or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Securityholders or by the Trustee under 



 57
 






 



this Indenture if received by them or it, directly to
the holders of Senior Indebtedness of the Company (pro rata to such holders on
the basis of the respective amounts of Senior Indebtedness held by such
holders, as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Indebtedness may have been issued,
as their respective interests may appear, to the extent necessary to pay such
Senior Indebtedness in full, in money or money’s worth, after giving effect to
any concurrent payment or distribution to or for the holders of such Senior
Indebtedness, before any payment or distribution is made to the
Securityholders.


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


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


SECTION 15.04.  Subrogation.


Subject to the payment in full of all Senior
Indebtedness of the Company, the Securityholders shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to such
Senior Indebtedness until all payments due on the Debt Securities shall be paid
in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of such Senior 



 58
 






 



Indebtedness of any cash, property or securities to
which the Securityholders or the Trustee would be entitled except for the
provisions of this Article XV, and no payment over pursuant to the provisions
of this Article XV to or for the benefit of the holders of such Senior
Indebtedness by Securityholders or the Trustee, shall, as between the Company,
its creditors other than holders of Senior Indebtedness of the Company, and the
holders of the Debt Securities be deemed to be a payment or distribution by the
Company to or on account of such Senior Indebtedness. It is understood that the
provisions of this Article XV are and are intended solely for the purposes of
defining the relative rights of the holders of the Debt Securities, on the one
hand, and the holders of such Senior Indebtedness, on the other hand.


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


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


SECTION 15.05.  Trustee
to Effectuate Subordination.


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


SECTION 15.06.  Notice
by the Company.


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



 59
 






 



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


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


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


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


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



 60
 






 



which any holder of such
Senior Indebtedness shall be entitled by virtue of this Article XV or
otherwise.


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


SECTION 15.08.  Subordination
May Not Be Impaired.


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


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


Wells Fargo Bank, National Association, in its
capacity as Trustee, hereby accepts the trusts in this Indenture declared and
provided, upon the terms and conditions herein above set forth.



 61
 






 



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


	
  

  	
  American Equity Investment Life
  Holding

  
	
   

  	
  Company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Wendy L. Carlson

  
	
   

  	
  Name:

  	
  Wendy L. Carlson

  
	
  

  	
  Title:

  	
  CFO & General Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Wells Fargo Bank, National
  Association, as 

  
	
   

  	
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ TracyM. McLamb

  
	
   

  	
  Name:

  	
  Tracy M. McLamb

  
	
   

  	
  Title:

  	
  Vice President

  
					



 


 



 62














 


EXHIBIT A


FORM OF JUNIOR SUBORDINATED DEBT SECURITY

DUE 2036


[FORM OF FACE OF SECURITY]


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


THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES, REPRESENTS AND WARRANTS THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONS
INVOLVING THIS SECURITY UNLESS SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE
SECURITIES ACT.


THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT,
INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT 


 



 A-1
 






 



 


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


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


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



 A-2
 






 



 


Form of Junior Subordinated Debt Security due 2036


of


American Equity Investment Life Holding Company


American Equity Investment Life Holding Company,
incorporated in Iowa (the “Company”), for value received promises to pay to
Wells Fargo Bank, National Association, not in its individual capacity but
solely as Institutional Trustee for American Equity Capital Trust XII, a
Delaware statutory trust (the “Holder”), or registered assigns, the principal
sum of Forty One Million Two Hundred Thirty Eight Thousand Dollars
($41,238,000) on April 7, 2036 and to pay interest on said principal sum
from July 7, 2006, or from the most recent interest payment date (each such
date, an “Interest Payment Date”) to which interest has been paid or duly
provided for, quarterly (subject to deferral as set forth herein) in arrears on
January 7, April 7, July 7 and October 7 of each year commencing April 7, 2006,
at a variable per annum rate equal to LIBOR (as defined in the Indenture) plus
3.50% (the “Interest Rate”) until the principal hereof shall have become due
and payable, and on any overdue principal and (without duplication and to the
extent that payment of such interest is enforceable under applicable law) on
any overdue installment of interest at an annual rate equal to the Interest
Rate in effect for each such Extension Period compounded quarterly. The amount
of interest payable on any Interest Payment Date shall be computed on the basis
of a 360-day year and the actual number of days elapsed in the relevant
interest period. In the event that any date on which the principal or interest
is payable on this Debt Security is not a Business Day, then payment payable on
such date will be made on the next succeeding day that is a Business Day,
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Debt Security (or one or more Predecessor Securities, as
defined in said Indenture) is registered at the close of business on the
regular record date for such interest installment, except that interest and any
Deferred Interest payable on the Maturity Date shall be paid to the Person to
whom principal is paid. Any such interest installment not punctually paid or
duly provided for shall forthwith cease to be payable to the registered holders
on such regular record date and may be paid to the Person in whose name this
Debt Security (or one or more Predecessor Debt Securities) is registered at the
close of business on a special record date to be fixed by the Trustee for the
payment of such defaulted interest, notice whereof shall be given to the
registered holders of the Debt Securities not less than 10 days prior to such
special record date, all as more fully provided in the Indenture. The principal
of and interest on this Debt Security shall be payable at the office or agency
of the Trustee (or other Paying Agent appointed by the Company) maintained for
that purpose in any coin or currency of the United States of America that at
the time of payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the
Company by check mailed to the registered holder at such address as shall
appear in the Debt Security Register or by wire transfer to an account
appropriately designated by the holder hereof. Notwithstanding the foregoing,
so long as the holder of this Debt Security is the Institutional Trustee, the
payment of the principal of and interest on this Debt Security will be made in
immediately available funds at such place and to such account as may be
designated by the Trustee.


 



 A-3
 






 



 


Unless otherwise defined herein, capitalized terms
shall have the meaning set forth in the Indenture of even date herewith by and
between the Company and the Trustee.


Upon submission of Notice and so long as no Event of
Default has occurred and is continuing, the Company shall have the right, from
time to time and without causing an Event of Default, to defer payments of
interest on the Debt Securities by extending the interest payment period on the
Debt Securities at any time and from time to time during the term of the Debt
Securities, for up to 20 consecutive quarterly periods (each such extended
interest payment period, an “Extension Period”), during which Extension Period
no interest shall be due and payable (except any Additional Interest that may
be due and payable). During any Extension Period, interest will continue to
accrue on the Debt Securities, and interest on such accrued interest (such
accrued interest and interest thereon referred to herein as “Deferred Interest”)
will accrue at an annual rate equal to the Interest Rate in effect for each
such Extension Period, compounded quarterly from the date such Deferred
Interest would have been payable were it not for the Extension Period, to the
extent permitted by law. No Extension Period may end on a date other than an
Interest Payment Date. At the end of any such Extension Period the Company
shall pay all Deferred Interest then accrued and unpaid on the Debt Securities;
provided, however, that no Extension Period may extend beyond the
Maturity Date and provided, further, however, during any such
Extension Period, the Company may not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company’s capital stock or (ii) make any payment on
or repay, repurchase or redeem any debt securities of the Company that rank
pari passu in all respects with or junior in interest to the Debt Securities
(other than (a) repurchases, redemptions or other acquisitions of shares of
capital stock of the Company (A) in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of one or
more employees, officers, directors or consultants, (B) in connection with a
dividend reinvestment or stockholder stock purchase plan or (C) in connection
with the issuance of capital stock of the Company (or securities convertible
into or exercisable for such capital stock), as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as a
result of any exchange or conversion of any class or series of the Company’s
capital stock (or any capital stock of a subsidiary of the Company) for any
class or series of the Company’s capital stock or of any class or series of the
Company’s indebtedness for any class or series of the Company’s capital stock,
(c) the purchase of fractional interests in shares of the Company’s capital
stock pursuant to the conversion or exchange provisions of such capital stock
or the security being converted or exchanged, (d) any declaration of a dividend
in connection with any stockholder’s rights plan, or the issuance of rights,
stock or other property under any stockholder’s rights plan, or the redemption
or repurchase of rights pursuant thereto, or (e) any dividend in the form of
stock, warrants, options or other rights where the dividend stock or the stock
issuable upon exercise of such warrants, options or other rights is the same
stock as that on which the dividend is being paid or ranks pari passu
with or junior to such stock). Prior to the termination of any Extension
Period, the Company may further extend such period, provided, that such
period together with all such previous and further consecutive extensions
thereof shall not exceed 20 consecutive quarterly periods, or extend beyond the
Maturity Date. Upon the termination of any Extension Period and upon the
payment of all Deferred Interest, the Company may commence a new Extension
Period, subject to the foregoing requirements. No interest or Deferred Interest
shall be due and payable during an Extension Period, except at the end thereof,
but Deferred Interest shall accrue upon each installment of interest that would
otherwise have been due and payable during such 


 



 A-4
 






 



 


Extension Period until such installment is paid. The
Company must give the Trustee notice of its election to begin such Extension
Period at least one Business Day prior to the earlier of (i) the next
succeeding date on which interest on the Debt Securities would have been
payable except for the election to begin such Extension Period or (ii) the date
such interest is payable, but in any event not later than the related regular
record date.


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


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


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


 



 A-5
 






 



 


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


	
  

  	
  American Equity Investment Life
  Holding

  
	
   

  	
  Company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
  

  	
  Title:

  	
   

  
	
  Dated:

  	
   

  	
   

  
							



 


 


CERTIFICATE OF AUTHENTICATION


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


	
  

  	
   

  	
   

  
	
   

  	
  Wells Fargo Bank, National
  Association, not in 

  
	
   

  	
  its individual capacity but solely
  as the Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Officer

  
	
  Dated:

  	
   

  	
   

  
						



 


 



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[FORM OF REVERSE OF SECURITY]


This Debt Security is one of a duly authorized series
of Debt Securities of the Company, all issued or to be issued pursuant to an
Amended and Restated Indenture (the “Indenture”), dated as of July 7, 2006,
duly executed and delivered between the Company and Wells Fargo Bank, National
Association, as Trustee (the “Trustee”), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of the Debt Securities (referred to herein
as the “Debt Securities”) of which this Debt Security is a part. The summary of
the terms of this Debt Security contained herein does not purport to be
complete and is qualified by reference to the Indenture.


Upon the occurrence and continuation of a Tax Event,
an Investment Company Event or a Capital Treatment Event (each a “Special Event”),
this Debt Security may become due and payable, in whole but not in part, at any
time, within 90 days following the occurrence of such Tax Event, Investment
Company Event or Capital Treatment Event (the “Special Redemption Date”), as
the case may be, at the Special Redemption Price. The Company shall also have
the right to redeem this Debt Security at the option of the Company, in whole
or in part, on any January 7, April 7, July 7 or October 7 on or after April 7,
2011 (a “Redemption Date”), at the Redemption Price.


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


“Redemption Price” means 100% of the principal amount
of the Debt Securities being redeemed plus accrued and unpaid interest on such
Debt Securities to the Redemption Date or, in the case of a redemption due to
the occurrence of a Special Event, to the Special Redemption Date if such Special
Redemption Date is on or after April 7, 2011.


“Special Redemption Price” means (1) if the Special
Redemption Date is before April 7, 2011, One Hundred Seven and One Half Percent
(107.5%) of the principal amount to be redeemed plus any accrued and unpaid
interest thereon to the date of such redemption and (2) if the Special
Redemption Date is on or after April 7, 2011, the Redemption Price for such
Special Redemption Date.


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


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


 



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The Indenture contains provisions permitting the
Company and the Trustee, with the consent of the holders of not less than a
majority in aggregate principal amount of the Debt Securities at the time
outstanding affected thereby, as specified in the Indenture, to execute
supplemental indentures for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Debt Securities; provided, however, that no such
supplemental indenture shall, among other things, without the consent of the
holders of each Debt Security then outstanding and affected thereby (i) extend
the fixed maturity of the Debt Securities, or reduce the principal amount
thereof or any redemption premium thereon, or reduce the rate or extend the
time of payment of interest thereon, or make payments due on the Debt
Securities payable in any coin or currency other than that provided in the Debt
Securities, or impair or affect the right of any holder of Debt Securities to
institute suit for the payment thereof, or (ii) reduce the aforesaid percentage
of Debt Securities, the holders of which are required to consent to any such
supplemental indenture. The Indenture also contains provisions permitting the
holders of a majority in aggregate principal amount of the Debt Securities at
the time outstanding, on behalf of all of the holders of the Debt Securities,
to waive any past default in the performance of any of the covenants contained
in the Indenture, or established pursuant to the Indenture, and its
consequences, except a default in payments due on any of the Debt Securities.
Any such consent or waiver by the registered holder of this Debt Security
(unless revoked as provided in the Indenture) shall be conclusive and binding
upon such holder and upon all future holders and owners of this Debt Security
and of any Debt Security issued in exchange herefor or in place hereof (whether
by registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debt Security.


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


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


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


 



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the Trustee nor any Authenticating Agent nor any
Paying Agent nor any transfer agent nor any Debt Security registrar shall be
affected by any notice to the contrary.


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


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


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


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


THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE
INDENTURE AND THE DEBT SECURITIES, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).


 



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