EX-4.2



 





Exhibit 4.2




 





INDENTURE




Between




M&T BANK CORPORATION




and




The Bank of New York

(as Trustee)




dated as of




May 24, 2007




SENIOR DEBT SECURITIES



 






 









 








CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310

THROUGH 318,

INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:




	 	 	 	 	 
	TRUST INDENTURE ACT SECTION	 	INDENTURE SECTION
	§§310
	 	(a)(1)	 	6.09
	 
	 	(a)(2)	 	6.09
	 
	 	(a)(3)	 	Not Applicable
	 
	 	(a)(4)	 	Not Applicable
	 
	 	(b)	 	6.08
	 
	 	 	 	6.10
	§§311
	 	(a)	 	6.13
	 
	 	(b)	 	6.13
	§§312
	 	(a)	 	7.01
	 
	 	 	 	7.02
	 
	 	(b)	 	7.02
	 
	 	(c)	 	7.02
	§§313
	 	(a)	 	7.03
	 
	 	(b)	 	7.03
	 
	 	(c)	 	7.03
	 
	 	(d)	 	7.03
	§§314
	 	(a)	 	7.04
	 
	 	(a)(4)	 	1.01
	 
	 	 	 	10.04
	 
	 	(b)	 	Not Applicable
	 
	 	(c)(1)	 	1.02
	 
	 	(c)(2)	 	1.02
	 
	 	(c)(3)	 	Not Applicable
	 
	 	(d)	 	Not Applicable
	 
	 	(e)	 	1.02
	§§315
	 	(a)	 	6.01
	 
	 	(b)	 	6.02
	 
	 	(c)	 	6.01
	 
	 	(d)	 	6.01
	 
	 	(e)	 	5.14
	§§316
	 	(a)	 	1.01
	 
	 	(a)(1) (A)	 	5.02
	 
	 	 	 	5.12
	 
	 	(a)(1) (B)	 	5.13
	 
	 	(a)(2)	 	Not Applicable
	 
	 	(b)	 	5.08
	 
	 	(c)	 	1.04






 









 






	 	 	 	 	 
	TRUST INDENTURE ACT SECTION	 	INDENTURE SECTION
	§§317
	 	(a)(1)	 	5.03
	 
	 	(a)(2)	 	5.04
	 
	 	(b)	 	10.03
	§§318
	 	(a)	 	1.07





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





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I.

	DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

	 
	 	 	 	 
	Section 1.01 Definitions
	 	 	1	 
	Section 1.02 Compliance Certificates and Opinions
	 	 	8	 
	Section 1.03 Form of Documents Delivered to Trustee
	 	 	9	 
	Section 1.04 Acts of Holders; Record Dates
	 	 	9	 
	Section 1.05 Notices, Etc., to Trustee and Company
	 	 	11	 
	Section 1.06 Notice to Holders; Waiver
	 	 	12	 
	Section 1.07 Conflict with Trust Indenture Act
	 	 	12	 
	Section 1.08 Effect of Headings and Table of Contents
	 	 	13	 
	Section 1.09 Successors and Assigns
	 	 	13	 
	Section 1.10 Separability Clause
	 	 	13	 
	Section 1.11 Benefits of Indenture
	 	 	13	 
	Section 1.12 Governing Law
	 	 	13	 
	Section 1.13 Legal Holidays
	 	 	13	 
	Section 1.14 Qualification of Indenture
	 	 	14	 
	Section 1.15 Force Majeure
	 	 	14	 
	Section 1.16 Execution in Counterparts
	 	 	14	 
	Section 1.17 Waiver of Jury Trial
	 	 	14	 
	 
	 	 	 	 
	ARTICLE II.

	SECURITY FORMS 

	 
	 	 	 	 
	Section 2.01 Forms Generally
	 	 	14	 
	Section 2.02 Form of Face of Security
	 	 	15	 
	Section 2.03 Form of Reverse of Security
	 	 	17	 
	Section 2.04 Form of Legend for Global Securities
	 	 	20	 
	Section 2.05 Form of Trustee’s Certificate of Authentication
	 	 	21	 
	 
	 	 	 	 
	ARTICLE III.

	THE SECURITIES

	 
	 	 	 	 
	Section 3.01 Amount Unlimited; Issuable in Series
	 	 	21	 
	Section 3.02 Denominations
	 	 	24	 






 









 






	 	 	 	 	 
	Section 3.03 Execution, Authentication, Delivery and Dating
	 	 	24	 
	Section 3.04 Temporary Securities
	 	 	26	 
	Section 3.05 Registration, Registration of Transfer and Exchange
	 	 	26	 
	Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities
	 	 	28	 
	Section 3.07 Payment of Interest; Interest Rights Preserved
	 	 	29	 
	Section 3.08 Persons Deemed Owners
	 	 	30	 
	Section 3.09 Cancellation
	 	 	30	 
	Section 3.10 Computation of Interest
	 	 	30	 
	Section 3.11 CUSIP Numbers
	 	 	31	 
	 
	 	 	 	 
	ARTICLE IV.

	 
	 	 
	SATISFACTION AND DISCHARGE

	 
	 	 	 	 
	Section 4.01 Satisfaction and Discharge of Indenture
	 	 	31	 
	Section 4.02 Application of Trust Money
	 	 	32	 
	 
	 	 	 	 
	ARTICLE V.

	 
	 	 
	REMEDIES

	 
	 	 	 	 
	Section 5.01 Events of Default
	 	 	32	 
	Section 5.02 Acceleration of Maturity; Rescission and Annulment
	 	 	33	 
	Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	35	 
	Section 5.04 Trustee May File Proofs of Claim
	 	 	35	 
	Section 5.05 Trustee May Enforce Claims Without Possession of Securities
	 	 	36	 
	Section 5.06 Application of Money Collected
	 	 	36	 
	Section 5.07 Limitation on Suits
	 	 	37	 
	Section 5.08 Unconditional Right of Holders to Receive Principal, Premium and
Interest
	 	 	37	 
	Section 5.09 Restoration of Rights and Remedies
	 	 	37	 
	Section 5.10 Rights and Remedies Cumulative
	 	 	38	 
	Section 5.11 Delay or Omission Not Waiver
	 	 	38	 
	Section 5.12 Control by Holders
	 	 	38	 
	Section 5.13 Waiver of Past Defaults
	 	 	38	 
	Section 5.14 Undertaking for Costs
	 	 	39	 
	Section 5.15 Waiver of Usury, Stay or Extension Laws
	 	 	39	 






ii 









 






	 	 	 	 	 
	ARTICLE VI.

	 
	 	 
	THE TRUSTEE

	 
	 	 	 	 
	Section 6.01 Certain Duties and Responsibilities
	 	 	39	 
	Section 6.02 Notice of Defaults
	 	 	40	 
	Section 6.03 Certain Rights of Trustee
	 	 	41	 
	Section 6.04 Not Responsible for Recitals or Issuance of Securities
	 	 	42	 
	Section 6.05 May Hold Securities
	 	 	42	 
	Section 6.06 Money Held in Trust
	 	 	43	 
	Section 6.07 Compensation and Reimbursement
	 	 	43	 
	Section 6.08 Conflicting Interests
	 	 	43	 
	Section 6.09 Corporate Trustee Required; Eligibility
	 	 	44	 
	Section 6.10 Resignation and Removal; Appointment of Successor
	 	 	44	 
	Section 6.11 Acceptance of Appointment by Successor
	 	 	45	 
	Section 6.12 Merger, Conversion, Consolidation or Succession to Business
	 	 	47	 
	Section 6.13 Preferential Collection of Claims Against Company
	 	 	47	 
	Section 6.14 Appointment of Authenticating Agent
	 	 	47	 
	 
	 	 	 	 
	ARTICLE VII.

	 
	 	 
	HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

	 
	 	 	 	 
	Section 7.01 Company to Furnish Trustee Names and Addresses of Holders
	 	 	49	 
	Section 7.02 Preservation of Information; Communications to Holders
	 	 	49	 
	Section 7.03 Reports by Trustee
	 	 	49	 
	Section 7.04 Reports by Company
	 	 	50	 
	 
	 	 	 	 
	ARTICLE VIII.

	 
	 	 
	CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

	 
	 	 	 	 
	Section 8.01 Company May Consolidate, Etc., Only on Certain Terms
	 	 	50	 
	Section 8.02 Successor Substituted
	 	 	51	 






iii 









 






	 	 	 	 	 
	ARTICLE IX.

	 
	 	 
	SUPPLEMENTAL INDENTURES 

	 
	 	 	 	 
	Section 9.01 Supplemental Indentures Without Consent of Holders
	 	 	51	 
	Section 9.02 Supplemental Indentures With Consent of Holders
	 	 	52	 
	Section 9.03 Execution of Supplemental Indentures
	 	 	53	 
	Section 9.04 Effect of Supplemental Indentures
	 	 	53	 
	Section 9.05 Conformity with Trust Indenture Act
	 	 	54	 
	Section 9.06 Reference in Securities to Supplemental Indentures
	 	 	54	 
	 
	 	 	 	 
	ARTICLE X.

	 
	 	 
	COVENANTS

	 
	 	 	 	 
	Section 10.01 Payment of Principal, Premium and Interest
	 	 	54	 
	Section 10.02 Maintenance of Office or Agency
	 	 	54	 
	Section 10.03 Money for Securities Payments to Be Held in Trust
	 	 	55	 
	Section 10.04 Statement by Officers as to Default
	 	 	56	 
	Section 10.05 Company Statement as to Compliance
	 	 	56	 
	Section 10.06 Existence
	 	 	56	 
	Section 10.07 Maintenance of Properties
	 	 	57	 
	Section 10.08 Limitation on Sale or Issuance of Capital Stock of Certain
Subsidiaries
	 	 	57	 
	Section 10.09 Limitation Upon Liens on Certain Capital Stock
	 	 	58	 
	Section 10.10 Payment of Taxes and Other Claims
	 	 	58	 
	Section 10.11 Waiver of Certain Covenants
	 	 	58	 
	Section 10.12 Calculation of Original Issue Discount
	 	 	59	 
	Section 10.13 Original Issue Discount
	 	 	59	 
	 
	 	 	 	 
	ARTICLE XI.



REDEMPTION OF SECURITIES
	 
	 	 	 	 
	Section 11.01 Applicability of Article
	 	 	59	 
	Section 11.02 Election to Redeem; Notice to Trustee
	 	 	59	 
	Section 11.03 Selection by Trustee of Securities to Be Redeemed
	 	 	60	 
	Section 11.04 Notice of Redemption
	 	 	61	 
	Section 11.05 Deposit of Redemption Price
	 	 	61	 
	Section 11.06 Securities Payable on Redemption Date
	 	 	62	 






iv 









 






	 	 	 	 	 
	Section 11.07 Securities Redeemed in Part
	 	 	62	 
	 
	 	 	 	 
	ARTICLE XII.

	 
	 	 
	SINKING FUNDS

	 
	 	 	 	 
	Section 12.01 Applicability of Article
	 	 	62	 
	Section 12.02 Satisfaction of Sinking Fund Payments with Securities
	 	 	63	 
	Section 12.03 Redemption of Securities for Sinking Fund
	 	 	63	 
	 
	 	 	 	 
	ARTICLE XIII.

	 
	 	 
	DEFEASANCE AND COVENANT DEFEASANCE

	 
	 	 	 	 
	Section 13.01 Company’s Option to Effect Defeasance or Covenant Defeasance
	 	 	63	 
	Section 13.02 Defeasance and Discharge
	 	 	64	 
	Section 13.03 Covenant Defeasance
	 	 	64	 
	Section 13.04 Conditions to Defeasance or Covenant Defeasance
	 	 	64	 
	Section 13.05 Deposited Money, U.S. Government Obligations and Foreign
Government Obligations
to Be Held in 

 Trust; Miscellaneous Provisions
	 	 	67	 
	Section 13.06 Reinstatement
	 	 	67	 







v 









 








     INDENTURE, dated as of May 24, 2007, between M&T Bank Corporation, a New York corporation
which is registered as a bank holding company under the Bank Holding Company Act of 1956, as
amended, and under Article III-A of the New York Banking Law (herein called the “Company”), having
its principal office at One M&T Plaza, Buffalo, New York 14203, and The Bank of New York, a New
York banking corporation, as Trustee (herein called the “Trustee”).



RECITALS OF THE COMPANY




     Whereas the Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the “Securities”), to be issued in one or more series as in this
Indenture provided; 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 and the purchase of the Securities by the Holders
thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof, as follows:



ARTICLE I.




DEFINITIONS AND OTHER PROVISIONS



OF GENERAL APPLICATION




Section 1.01 Definitions.




     For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires: (1) the terms defined in this Article have the meanings assigned to
them in this Section 1.01 and include the plural as well as the singular; (2) all other terms used
herein which are defined in the Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein; (3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted accounting principles, and,
except as otherwise herein expressly provided, the term “generally accepted accounting principles”
with respect to any computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such computation; (4) unless the context
otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section,
as the case may be, of this Indenture; and (5) the words “herein”, “hereof” and “hereunder” and
other words of similar import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.



 









 





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



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



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



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



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



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



     (g) “Business Day”, when used with respect to any Place of Payment, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not (i) a day on which banking institutions in
that Place of Payment are authorized or obligated by law or executive order to close, or (ii) a day
on which the Corporate Trust Office of the Trustee is closed for business.



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



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



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



2









 





     (k) “Corporate Trust Office” means the principal office of the Trustee in the Borough of
Manhattan, City of New York at which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Indenture is located at 101 Barclay
Street, New York, New York 10286, Attention: Corporate Trust Administration, or at any other time
at such other address as the Trustee may designate from time to time by notice to the Company or
the principal corporate trust office of any successor Trustee (or such other address as such
successor Trustee may designate from time to time by notice to the Company).



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



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



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



     (o) “Defeasance” has the meaning specified in Section 13.02.



     (p) “Depositary” means, with respect to Securities of any series issuable in whole or in part
in the form of one or more Global Securities, a clearing agency registered under the Exchange Act
that is designated to act as Depositary for such Securities as contemplated by Section 3.01.



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



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



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



     (t) “Foreign Government Obligation” has the meaning specified in Section 13.04.



     (u) “Global Security” means a Security that evidences all or part of the Securities of any
series and bears the legend set forth in Section 2.04 (or such legend as may be specified as
contemplated by Section 3.01 for such Securities) issued to the Depositary or its nominee for such
series, and registered in the name of such Depository or its nominee.



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



     (w) “indebtedness for money borrowed” means: (i) any obligation of, or any obligation
guaranteed by, M&T for the repayment of money borrowed, whether or not evidenced by bonds,
debentures, notes or other written instruments, (ii) any capitalized lease obligations, and (iii)
any deferred obligation for payment of the purchase price of any property or assets.



     (x) “Indenture” means this instrument as originally executed and as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto



3









 







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



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



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



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



     (bb) “Maturity”, when used with respect to any Security, means the date on which the principal
of such Security or an installment of principal becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.



     (cc) “Notice of Default” means a written notice of the kind specified in Section 5.01(d).



     (dd) “Officers’ Certificate” means a certificate signed by the Chairman of the Board, a Vice
Chairman of the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee.
One of the officers signing an Officers’ Certificate given pursuant to Section 10.04 shall be the
principal executive, financial or accounting officer of the Company.



     (ee) “Opinion of Counsel” means a written opinion of counsel, who may be counsel for the
Company, and who shall be acceptable to the Trustee, in form and substance acceptable to the
Trustee.



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



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



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




          (ii) Securities for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent




4









 







(other than the Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;




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




          (iv) Securities which have been paid pursuant to Section 3.06 or in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;



provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any request, demand,
authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the
principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding
shall be the amount of the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 5.02, (B) if, as of such
date, the principal amount payable at the Stated Maturity of a Security is not determinable, the
principal amount of such Security which shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 3.01, (C) the principal amount of a Security
denominated in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided
as contemplated by Section 3.01, of the principal amount of such Security (or, in the case of a
Security described in Clause (A) or (B) above, of the amount determined as provided in such
Clause), and (D) Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver or other action, only
Securities which a Responsible Officer of the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect
to such Securities and that the pledgee is not the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor. Upon the written request of the Trustee,
the Company shall furnish to the Trustee promptly an Officers’ Certificate listing and identifying
all Securities, if any, known by the Company to be owned by held by or for the account of the
Company, or any other obligor on the Securities or any Affiliate of the Company or such obligor,
and subject to the provisions of Section 6.01, the Trustee shall be entitled to accept such
Officers’ Certificate as conclusive evidence of the facts therein set forth and of the fact that
all Securities not listed therein are Outstanding for the purpose of any such determination.




5









 








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



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



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



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



     (ll) “Principal Subsidiary Bank” means any Subsidiary which is a Bank and has total assets
equal to 50 percent or more of the consolidated assets of the Company determined as of the date of
the most recent financial statements of such entities.



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



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



     (oo) “Regular Record Date” for the interest payable on any Interest Payment Date on the
Securities of any series means unless otherwise specified pursuant to Section 3.01, the date that
is fifteen days next preceding such Interest Payment Date (whether or not a Business Day).



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



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



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



6









 





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



     (tt) “Senior Indebtedness” means, unless otherwise determined with respect to any series of
Securities pursuant to Section 3.01, the principal of (and premium, if any) and interest on: (i)
all “indebtedness for money borrowed” of the Company, including indebtedness of others guaranteed
by the Company, other than the Securities, whether outstanding on the date of execution of the
indenture or incurred afterward, except indebtedness that by its terms expressly is not superior in
payment right to the Securities or ranks equal to the Securities; and (ii) any deferrals, renewals
or extensions of any such indebtedness. Senior Indebtedness of the Company includes: (i) any
borrowings under the $30 million credit facility under the Credit Agreement dated as of December
15, 2000 between the Company and Citibank, N.A., (ii) any outstanding commercial paper issued by
the Company, and (iii) the Company’s guarantee of the 6.5% Senior Medium Term Notes due 2008 issued
by Keystone Financial Mid-Atlantic Funding Corp. The following indebtedness of the Company,
however, is not considered to be Senior Indebtedness of the Company, and is subordinate to the
Securities: (i) 7.20 % Subordinated Notes due July 1, 2007, (ii) 6.875% Subordinated Notes due June
1, 2009, (iii) Floating Rate Junior Subordinated Debentures due January 15, 2027; (iv) Floating
Rate Junior Subordinated Debentures due February 1, 2027; (v) 8.234% Junior Subordinated Debentures
due February 1, 2027, (vi) 9.25% Junior Subordinated Debentures due February 1, 2027, (vii) 8.277%
Junior Subordinated Debentures due June 1, 2027, and (viii) Floating Rate Junior Subordinated
Debentures due July 15, 2029.



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



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



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



     (xx) “Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of
which this instrument was executed except as provided in Section 9.05; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such date,
“Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act
of 1939 as so amended.



     (yy) “Trustee” means the Person named as the “Trustee” in the first paragraph of this
instrument until a successor Trustee shall have become such pursuant to the



7









 







applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each
Person who is then a Trustee hereunder, and if at any time there is more than one such Person,
“Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect
to Securities of that series.



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



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



     (bbb) “Voting Stock” means stock of the class or classes having general voting power under
ordinary circumstances to elect at least a majority of the board of directors, managers or trustees
of such corporation (irrespective of whether or not at the time stock of any other class or classes
shall have or might have voting power by reason of the happening of any contingency).



Section 1.02 Compliance Certificates and Opinions.




     Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate
stating that all conditions precedent (including covenants compliance with which constitutes a
condition precedent), if any, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such counsel, all such
conditions precedent (including covenants compliance with which constitutes a condition precedent),
if any, have been complied with (except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or opinion need be
furnished), as well as any such additional certificates and opinions as may be required under the
Trust Indenture Act. Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except for certificates provided for in Section 10.04)
shall include,



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



     (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 each such individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and



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



8









 





Section 1.03 Form of Documents Delivered to Trustee.




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



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



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



Section 1.04 Acts of Holders; Record Dates.




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



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



9









 







authority of the Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.



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



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



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



     (f) The Company may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or direction referred to in
the next paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities
of such series on such record date. Nothing in this paragraph shall be construed to prevent the
Company from setting a new record date for any action for which a record date has previously been
set pursuant to this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable Expiration Date to be given
to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set
forth in Section 1.06.



     (g) The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in Section 5.02, (iii) any request to
institute proceedings referred to in Section 5.07(b) or (iv) any direction referred to in Section
5.12, in each case with respect to Securities of such series. If any record date is set pursuant to
this paragraph, the Holders of Outstanding Securities of such series on such record date, and no
other Holders, shall be



10









 







entitled to join in such notice, declaration, request or direction, whether or not such
Holders remain Holders after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Trustee from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph (whereupon the record
date previously set shall automatically and with no action by any Person be canceled and of no
effect), and nothing in this paragraph shall be construed to render ineffective any action taken by
Holders of the requisite principal amount of Outstanding Securities of the relevant series on the
date such action is taken. Promptly after any record date is set pursuant to this paragraph, the
Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder
of Securities of the relevant series in the manner set forth in Section 1.06.



     (h) With respect to any record date set pursuant to this Section 1.04, the party hereto which
sets such record dates may designate any day as the “Expiration Date” and from time to time may
change the Expiration Date to any earlier or later day; provided that no such change shall be
effective unless notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities of the relevant series in the manner set forth in Section
1.06, on or prior to the existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section, the party hereto which set such record
date shall be deemed to have initially designated the 180th day after such record date as the
Expiration Date with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than
the 180th day after the applicable record date.



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



Section 1.05 Notices, Etc., to Trustee and Company.




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



     (a) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing and delivered in person or mailed by
first-class mail, postage prepaid, addressed to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, or transmitted by facsimile transmission (confirmed by
delivery in person or mail by first-class mail, postage prepaid, or by guaranteed overnight
courier, or



11









 





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



Section 1.06 Notice to Holders; Waiver.




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



     (b) In case by reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification for every purpose
hereunder.



Section 1.07 Conflict with Trust Indenture Act.



Except as otherwise expressly provided herein, the Trust Indenture Act shall apply as a matter of
contract to this Indenture for purposes of interpretation, construction and defining the rights and
obligations hereunder, and this Indenture, the Company, and the Trustee shall be deemed for all
purposes hereof to be subject to and governed by the Trust Indenture Act. Except as otherwise
provided herein, if and to the extent that any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture
Act through operation of Section 318(c) thereof, such imposed duties shall control.



Whenever this Indenture refers to a provision of the Trust Indenture Act, that provision is
incorporated by reference in and made a part of this Indenture. The Indenture shall also include
those provisions of the Trust Indenture Act required to be included herein by the provisions of the
Trust Indenture Reform Act of 1990. The following Trust Indenture Act terms used in this Indenture
have the following meanings:




     “indenture securities” means the Securities;



     “indenture trustee” means the Trustee; and



12









 





     “obligor” on the Securities means the Company or any other obligor on the Securities.



     All other terms used in this Indenture that are defined in the Trust Indenture Act, defined by
Trust Indenture Act reference to another statute or defined by any SEC rule and not otherwise
defined herein shall have the meanings assigned to them therein.



Section 1.08 Effect of Headings and Table of Contents.




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



Section 1.09 Successors and Assigns.




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



Section 1.10 Separability Clause.




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



Section 1.11 Benefits of Indenture.




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



Section 1.12 Governing Law.




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



Section 1.13 Legal Holidays.




     In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities (other than a provision of any Security which
specifically states that such provision shall apply in lieu of this Section)) payment of interest
or principal (and premium, if any) need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity.



13









 





Section 1.14 Qualification of Indenture.




     The Company has previously qualified this Indenture under the Trust Indenture Act and shall
pay be responsible for all reasonable costs and expenses (including attorneys’ fees and expenses
for the Company and the Trustee) incurred in connection therewith, including, but not limited to,
costs and expenses of qualification of the Indenture and the Securities and printing this Indenture
and the Securities. The Trustee shall be entitled to receive from the Company any such Officers’
Certificates, Opinions of Counsel or other documentation as it may reasonably request in connection
with any such qualification of this Indenture under the Trust Indenture Act.



Section 1.15 Force Majeure.




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



Section 1.16 Execution in Counterparts.




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



Section 1.17 Waiver of Jury Trial.




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



ARTICLE II.




SECURITY FORMS




Section 2.01 Forms Generally.




     (a) The Securities of each series shall be in substantially the form set forth in this Article
II, or in such other form as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or



14









 







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



     (b) The definitive securities shall be printed, lithographed or engraved or produced by any
combination of these methods, if required by any securities exchange on which the Securities may be
listed, on a steel engraved border or steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their execution of such
Securities.



Section 2.02 Form of Face of Security.




     [Insert any legend required by the Internal Revenue Code and the regulations thereunder.]
THIS NOTE IS NOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
BANK INSURANCE FUND, THE SAVINGS ASSOCIATION INSURANCE FUND OR ANY OTHER GOVERNMENTAL AGENCY.



M&T BANK CORPORATION




			
	 	 	 
	No.                     
	 	$                    





M&T Bank Corporation, a New York corporation which is registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended, and under Article III-A of the New York Banking
Law (herein called the “Company”, which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
                                        
, or
registered assigns, the principal sum of                      Dollars on
                     [(if the Security is to
bear interest prior to Maturity, insert:) , and to pay interest thereon from or from the most
recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on
                     and
                     in each year, commencing
                    , at the
rate of                     % per annum,
until the principal hereof is paid or made available for payment] [(if applicable, insert:) ,
provided that any principal and premium, and any such installment of interest, which is overdue
shall bear interest at the rate of ___% per annum (to the extent that the payment of such interest
shall be legally enforceable), from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on demand]. The interest so payable, and
punctually paid or




15









 







duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be the                      or
                     (whether or not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Securities of this series not less than 10 days prior
to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities of this series may be
listed, and upon such notice as may be required by such exchange, all as more fully provided in
said Indenture].



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



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



Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place. Unless the certificate of authentication hereon has been executed by the Trustee
referred to on the reverse hereof by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.



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




16









 







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




Dated:



	 	 	 	 	 	 	 
	 	 	M&T BANK CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 





	 	 	 	 	 
	Attest:

	 	 	.	 
	 

	 	 	 	 




Section 2.03 Form of Reverse of Security.



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



[(If applicable, insert:) The Securities of this series are subject to redemption upon not less
than 30 days’ notice by mail, [(if applicable,
insert:) (1) on ___ in any year commencing with
the year ___ and ending with the year ___ through operation of the sinking fund for this series
at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [(if applicable,
insert:) on or after                     , 20___], as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal amount): If redeemed [(if
applicable, insert:) on or before                     , ___%, and if redeemed] during the 12-month period
beginning                      of the years indicated,




	 	 	 	 
	Year

	Redemption Price
	Year
	Redemption Price





and thereafter at a Redemption Price equal to ___% of the principal amount, together in the case
of any such redemption [(if applicable, insert:) (whether through operation of the sinking fund or
otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be


17









 






payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof, all as provided in
the Indenture.]



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




	 	 	 	 	 
	Year

	 	Redemption Price For Redemption
Through Operation of the Sinking
Fund
	 	Redemption Price For Redemption
Otherwise Than Through Operation of
the Sinking Fund





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



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



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



[(If the Security is subject to redemption of any kind, insert:) In the event of redemption of this
Security in part only, a new Security or Securities of this series and of like tenor


18









 






for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]



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



[(If the Security is not an Original Issue Discount Security, insert:) If an Event of Default with
respect to Securities of this series shall occur and be continuing, the principal of the Securities
of this series may be declared due and payable in the manner and with the effect provided in the
Indenture.]



[(If the Security is an Original Issue Discount Security, insert:) If an Event of Default with
respect to Securities of this series shall occur and be continuing, an amount of principal of the
Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to [insert formula for determining the
amount]. Upon payment (i) of the amount of principal so declared due and payable and (ii) of
interest on any overdue principal, premium and interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company’s obligations in respect
of the payment of the principal of and premium and interest, if any, on the Securities of this
series shall terminate.]



The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights
of the Holders of the Securities of each series to be affected under the Indenture at any time by
the Company and the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.



As provided in and subject to the provisions of the Indenture, the Holder of this Security shall
not have the right to institute any proceeding with respect to the Indenture or for the appointment
of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have
previously given the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount of the Securities
of this series at the time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity
reasonably satisfactory to it, and the Trustee shall not have received from the Holders of a
majority in principal amount of Securities


19









 






of this series at the time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such notice, request and
offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this
Security for the enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.



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



As provided in the Indenture and subject to certain limitations therein set forth, the transfer of
this Security is registrable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company maintained under Section 10.02 of
the Indenture for such purpose, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities
of this series and of like tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.



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



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



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



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




Section 2.04 Form of Legend for Global Securities.




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



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THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED
IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.




Section 2.05 Form of Trustee’s Certificate of Authentication.



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



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




	 	 	 	 	 
	 	 	The Bank of New York, as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Officer 	 
	 	 	 	 
	 



ARTICLE III.




THE SECURITIES




Section 3.01 Amount Unlimited; Issuable in Series.





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



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



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




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




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




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




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




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




          (vii) the period or periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series may be redeemed, in whole or in part, at the
option of the Company and, if other than by a Board Resolution, the manner in which any election by
the Company to redeem the Securities shall be evidenced;




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




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




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




          (xi) if other than the currency of the United States of America, the currency, currencies or
currency units in which the principal of or any premium or interest on any Securities of the series
shall be payable which in each instance, shall be reasonably acceptable to the Trustee, and the
manner of determining the equivalent thereof in the currency of the United States of America for
any purpose, including for purposes of the definition of “Outstanding” in Section 1.01;




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




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




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




          (xv) if applicable, that any Securities of the series shall be issuable in whole or in part in
the form of one or more Global Securities and, in such case, the respective Depositories for such
Global Securities, the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 2.04 and any circumstances in
addition to or in lieu of those set forth in Section 3.05(h)(ii) in which any such Global Security
may be exchanged in whole or in part for Securities registered, and any transfer of such Global
Security in whole or in part may be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;




          (xvi) the right, if any, of the Company to convert or exchange the Securities of such series,
or the obligation, if any, of the Company to permit the Securities of such series to be converted
into or exchanged, for common stock of the Company or other securities or property of the Company
and the terms and conditions upon which such conversion or exchange shall be effected (including,
without limitation, the initial conversion price or rate, the conversion or exchange period, any
adjustment of the applicable conversion or exchange price or rate and any requirements relative to
the reservation of such shares for purposes of conversion or exchange);




          (xvii) if convertible or exchangeable, any applicable limitations on the ownership or
transferability of the securities or property into which such Securities are convertible or
exchangeable;




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




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




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




     (c) All Securities of any one series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to the Board Resolution
referred to above and (subject to Section 3.03) set forth, or determined in the manner provided, in
the Officers’ Certificate referred to above or in any such indenture supplemental hereto.



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



     (e) The Securities shall rank equally in right of payment with all Senior Indebtedness



Section 3.02 Denominations.




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



Section 3.03 Execution, Authentication, Delivery and Dating.




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



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



     (c) At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver
such Securities. If the form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 2.01 and 3.01, in authenticating
such Securities, and accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee



24









 







shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in
relying upon, an Opinion of Counsel stating,



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




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




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




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



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



     (f) Each Security shall be dated the date of its authentication.



     (g) No Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in
Section 3.09, for all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the benefits of this
Indenture.



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Section 3.04 Temporary Securities.




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



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



Section 3.05 Registration, Registration of Transfer and Exchange.




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



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



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



26









 





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



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



     (f) No service charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of transfer or exchange
of Securities, other than exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any
transfer.



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



     (h) The provisions of Clauses (i), (ii), (iii) and (iv) below shall apply only to Global
Securities:



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




          (ii) Notwithstanding any other provision in this Indenture, no Global Security may be
exchanged in whole or in part for Securities registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any Person other than the Depositary for such
Global Security or a nominee thereof unless (A) such Depositary (x) has notified the Trustee in
writing that it is unwilling or unable to continue as Depositary for such Global Security and the
Company is unable to locate a qualified successor or (y) has ceased to be a clearing agency
registered under the Exchange Act, (B) there shall have occurred and be continuing an Event of
Default with respect to such Global Security or (C) there shall exist such circumstances, if any,
in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated
by Section 3.01.




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




          (iv) Every Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this
Section, Section 3.04, 3.06, 9.06 or 11.07 or otherwise, shall be authenticated and delivered in
the form of, and shall be, a Global Security, unless such Security is registered in the name of a
Person other than the Depositary for such Global Security or a nominee thereof.




Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities.




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



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



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



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



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



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



28









 





Section 3.07 Payment of Interest; Interest Rights Preserved.




     (a) Except as otherwise provided as contemplated by Section 3.01 with respect to any series of
Securities, interest on any Security of any series which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest in respect of Securities of such series, except that, unless
otherwise provided in the Securities of such series, interest payable on the Stated Maturity of the
principal of a Security shall be paid to the Person to whom principal is paid. The initial payment
of interest on any Security of any series that is issued between a Regular Record Date and the
related Interest Payment Date shall be payable as provided in such Security or in the Board
Resolution pursuant to Section 2.01 with respect to the related series of Securities.



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



          (i) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities of such series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such series and the date of
the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in 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, which notice shall be prepared by the Company and shall be acceptable to the Trustee, to
be given to each Holder of Securities of such series in the manner set forth in Section 1.06, not
less than 10 days prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following Clause (ii).




29









 








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




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




Section 3.08 Persons Deemed Owners.




     Prior to due presentment of a Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee shall treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of principal of and
any premium and (subject to Section 3.07) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.



Section 3.09 Cancellation.




     All Securities surrendered for payment, redemption, registration of transfer or exchange or
for credit against any sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall be disposed of as
directed by a Company Order provided, however, that the Trustee shall not be
required to destroy such cancelled Securities.



Section 3.10 Computation of Interest.




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



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Section 3.11 CUSIP Numbers.




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



ARTICLE IV.




SATISFACTION AND DISCHARGE




Section 4.01 Satisfaction and Discharge of Indenture.




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



     (a) either:



          (i) all Securities theretofore authenticated and delivered (other than (x) Securities which
have been destroyed, lost or stolen and which have been replaced or paid as provided in Section
3.06 and (y) Securities for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 10.03) have been delivered to the Trustee for cancellation; or




          (ii) all such Securities not theretofore delivered to the Trustee for cancellation (x) have
become due and payable, or (y) will become due and payable at their Stated Maturity within one
year, or (z) are to be called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of
the Company, and the Company, in the case of (x), (y) or (z) above, has deposited or caused to be
deposited with the Trustee as trust funds in trust for such purpose money in an amount sufficient
to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and any premium and interest to the date of such deposit
(in the case of Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;




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



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



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



Section 4.02 Application of Trust Money.




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



ARTICLE V.




REMEDIES




Section 5.01 Events of Default.




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



     (a) default in the payment of any interest upon any Security of that series when it becomes
due and payable, and continuance of such default for a period of 30 days; or



     (b) default in the payment of the principal of or any premium on any Security of that series
at its Maturity; or



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



     (d) default in the performance, or breach, of any covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than that series), and continuance
of such default or breach for a period of 90 days after there has been given, by registered or
certified mail, to the Company by the Trustee



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or to the Company and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or



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



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



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


The Trustee shall not be charged with knowledge of any Event of Default unless written notice
thereof shall have been given to a Responsible Officer at the Corporate Trust Office of the Trustee
by the Company, a Paying Agent, any Holder or any agent of any Holder.




Section 5.02 Acceleration of Maturity; Rescission and Annulment.




     (a) If an Event of Default (other than an Event of Default specified in Section 5.01(e) or
5.01(f)) with respect to Securities of any series at the time Outstanding occurs and is continuing,
then in every such case the Trustee or the Holders of not less than 25%



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in principal amount of the Outstanding Securities of that series may declare the principal
amount of all the Securities of that series (or, if any Securities of that series are Original
Issue Discount Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable. If an Event of Default
specified in Section 5.01(e) or 5.01(f) with respect to Securities of any series at the time
Outstanding occurs, the principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such portion of the principal
amount of such Securities as may be specified by the terms thereof) shall automatically, and
without any declaration or other action on the part of the Trustee or any Holder, become
immediately due and payable.



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



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





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




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




          (C) to the extent that payment of such interest is lawful, interest upon overdue
interest at the rate or rates prescribed therefor in such Securities, and




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




and



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




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



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




     (a) The Company covenants that if:



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




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



the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of
such Securities, the whole amount then due and payable on such Securities for principal, including
any sinking fund payment, and any premium and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and premium and on any
overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.



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




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



Section 5.04 Trustee May File Proofs of Claim.




     (a) In case of any judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments directly to the
Holders, to pay



35









 







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



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



Section 5.05 Trustee May Enforce Claims Without Possession of Securities.




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



Section 5.06 Application of Money Collected.




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



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



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



     THIRD: To the Person or Persons entitled thereto, and




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




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Section 5.07 Limitation on Suits.




     Subject to Section 5.08, no Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:



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



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



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



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



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



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



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




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



Section 5.09 Restoration of Rights and Remedies.




     If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former



37









 







positions hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.



Section 5.10 Rights and Remedies Cumulative.




     Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in Section 3.06(f), no right or remedy herein conferred upon
or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.



Section 5.11 Delay or Omission Not Waiver.




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



Section 5.12 Control by Holders.




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



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




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



     (c) subject to the provisions of Section 6.01, the Trustee shall have the right to decline to
follow such direction if a Responsible Officer or Responsible Officers of the Trustee shall, in
good faith, determine that the proceeding so directed would be unjustly prejudicial to the Holders
not joining in any such direction or would involve the Trustee in personal liability.



Section 5.13 Waiver of Past Defaults.




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



38









 





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




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




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



Section 5.14 Undertaking for Costs.




     All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, a court may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in the manner and to the
extent provided in the Trust Indenture Act; provided that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such
an assessment in any suit instituted by the Trustee, a suit by a Holder pursuant to Section 8.08 or
a suit by Holders of more than 10% in aggregate principal amount of Securities then Outstanding.



Section 5.15 Waiver of Usury, Stay or Extension Laws.




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



ARTICLE VI.




THE TRUSTEE




Section 6.01 Certain Duties and Responsibilities.




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




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




39









 








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




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



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



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




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




          (iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken
by it in good faith in accordance with the direction of the Holders pursuant to Section 5.12,
relating to the time, method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with
respect to the Securities of such series; and




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



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



Section 6.02 Notice of Defaults.




     Within 90 days after the occurrence of any default hereunder with respect to Securities of any
series, and such default is known to a Responsible Officer of the Trustee, the Trustee shall give
the Holders of Securities of such series notice of such known default unless such default shall
have been cured or waived; provided, however,



40









 







that in the case of any default of the character specified in Section 5.01(d) with respect to
Securities of such series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term “default” means any event which
is, or after notice or lapse of time or both would become, an Event of Default with respect to
Securities of such series.



Section 6.03 Certain Rights of Trustee.




     Subject to the provisions of Section 6.01:



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



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



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



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



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



     (f) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;



     (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall



41









 







not be responsible for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;



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



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



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



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



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



Section 6.04 Not Responsible for Recitals or Issuance of Securities.




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



Section 6.05 May Hold Securities.




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



42









 





Section 6.06 Money Held in Trust.




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



Section 6.07 Compensation and Reimbursement.



     The Company agrees:



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



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



     (c) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or
expense (including the reasonable compensation and expenses and disbursements of its agents and
counsel) incurred without negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder, including the costs and expenses
of defending itself against any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder.


This indemnification shall survive the termination of this Indenture.



To secure the Company’s payment obligations in this Section 6.07, the Trustee shall have a lien
prior to the Securities as to all money or property held or collected by the Trustee for any amount
owing it or any predecessor Trustee pursuant to this Section 6.07, except such money or property
held in trust for the benefit of holders of particular Securities. The obligations of the Company
under this Section 6.07 shall survive the satisfaction and discharge of this Indenture or the
resignation or removal of the Trustee.



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




Section 6.08 Conflicting Interests.




     If the Trustee for the Security of any series issued hereunder has or shall acquire a
conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by, and subject



43









 







to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by
such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a
trustee under this Indenture with respect to Securities of more than one series.



Section 6.09 Corporate Trustee Required; Eligibility.




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



Section 6.10 Resignation and Removal; Appointment of Successor.




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



     (b) The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities of such
series.



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



     (d) If at any time:



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




          (ii) the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after
written request therefor by the Company or by any such Holder, or




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          (iii) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,



then, in any such case, (A) the Company by a Board Resolution may remove the Trustee with respect
to all Securities, or (B) subject to Section 5.14, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all

others similarly situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.




     (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series and
that at any time there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11. If, within one year
after such resignation, removal or incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities
of any series shall have been so appointed by the Company or the Holders and accepted appointment
in the manner required by Section 6.11, any Holder who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.



     (f) The Company shall give notice of each resignation and each removal of the Trustee with
respect to the Securities of any series and each appointment of a successor Trustee with respect to
the Securities of any series to all Holders of Securities of such series in the manner provided in
Section 1.06. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.



Section 6.11 Acceptance of Appointment by Successor.




     (a) In case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall



45









 







become effective and such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on
the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall, upon payment of any fees and expenses
due and owing to it hereunder, duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.



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



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



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



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




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



Section 6.13 Preferential Collection of Claims Against Company.




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



Section 6.14 Appointment of Authenticating Agent.




     (a) The Trustee may appoint an Authenticating Agent or Agents with respect to one or more
series of Securities which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue and upon exchange, registration of transfer or
partial redemption thereof or pursuant to Section 3.06, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia, authorized under such laws
to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to the requirements of
said supervising or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the effect specified in
this Section.



47









 





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



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



     (d) The Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section, and the Trustee shall be entitled to be
reimbursed for such payments, subject to the provisions of Section 6.07.



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


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




	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK, as Trustee
	 
	 

	 	By:	 	 	                                        
                           
                                      ,

As Authenticating Agent
	 

	 	By:	 	 	                         
                                                                                ,

Authorized Officer






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ARTICLE VII.




HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY




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




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




     (a) semi-annually, not later than May 31 and November 30 in each year, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each
series as of the preceding or, as the case may be, 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,



excluding from any such list names and addresses received by the Trustee in its capacity as
Security Registrar.



Section 7.02 Preservation of Information; Communications to Holders.




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



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



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



Section 7.03 Reports by Trustee.




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



     (b) Reports so required to be transmitted at stated intervals of not more than 12 months shall
be transmitted within 60 days after May 15 in each calendar year, commencing with May 15, 2008
after the first issuance of Securities under this Indenture.



     (c) A copy of each such report shall, at the time of such transmission to Holders, be filed by
the Trustee with each stock exchange upon which any Securities are listed,



49









 







with the Commission and with the Company. The Company will notify the Trustee in writing when
any Securities are listed on any stock exchange.



Section 7.04 Reports by Company.




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



ARTICLE VIII.




CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE




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




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



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



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



     (c) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,



50









 







such supplemental indenture, comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with; and the Trustee, subject to
Section 6.01, may rely upon such Officers’ Certificate and Opinion of Counsel as conclusive
evidence that such transaction complies with this Section 8.01.



Section 8.02 Successor Substituted.




     Upon any consolidation of the Company with, or merger of the Company into, any other Person or
any conveyance, transfer or lease of the properties and assets of the Company substantially as an
entirety in accordance with Section 8.01, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.



ARTICLE IX.




SUPPLEMENTAL INDENTURES




Section 9.01 Supplemental Indentures Without Consent of Holders.




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



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



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



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



     (d) to add to or change any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or



51









 





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



     (f) to secure the Securities; or




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



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



     (i) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture, provided that such action pursuant to
this Clause (i) shall not adversely affect the interests of the Holders of Securities of any series
in any material respect.



Section 9.02 Supplemental Indentures With Consent of Holders.




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



          (i) change the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon
or any premium payable upon the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security which would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or change any Place
of Payment where, or the coin or currency in which, any Security or any premium or interest thereon
is payable, or impair the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date),
or




52









 








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




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




          (iv) A supplemental indenture which changes or eliminates any covenant or other provision of
this Indenture which has expressly been included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.




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



Section 9.03 Execution of Supplemental Indentures.




     In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in
relying upon, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture and that all conditions
precedent herein provided for or relating to such action have been complied with. The Trustee may,
but shall not be obligated to, enter into any such supplemental indenture which affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise.



Section 9.04 Effect of Supplemental Indentures.




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



53









 





Section 9.05 Conformity with Trust Indenture Act.




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



Section 9.06 Reference in Securities to Supplemental Indentures.




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



ARTICLE X.




COVENANTS




Section 10.01 Payment of Principal, Premium and Interest.




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



Section 10.02 Maintenance of Office or Agency.




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



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



54









 







to the Trustee of any such designation or rescission and of any change in the location of any
such other office or agency.



Section 10.03 Money for Securities Payments to Be Held in Trust.




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



     (b) Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, prior to each due date of the principal of or any premium or interest on any Securities of
that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held
as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee in writing of its action or failure so to act.



     (c) The Company will cause each Paying Agent for any series of Securities other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying Agent will (i) comply
with the provisions of the Trust Indenture Act applicable to it as a Paying Agent; (ii) during the
continuance of any default by the Company (or any other obligor upon the Securities of that series)
in the making of any payment in respect of the Securities of that series, upon the written request
of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series; (iii) hold all sums held by it for the payment
of the principal of (and premium, if any) or interest on the Securities of a series in trust for
the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided; and (iv) give the Trustee notice of any default by the
Company (or any other obligor upon such Securities) in the making of any payment of principal (and
premium, if any) or interest in respect of any Security of any series.



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



     (e) Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or any premium or interest on any Security of any series
and remaining unclaimed for two years after such principal, premium or interest has become due and
payable shall be paid to the Company on



55









 







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



Section 10.04 Statement by Officers as to Default.




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



Section 10.05 Company Statement as to Compliance.




     The Company will delivery to the Trustee, within 120 days after the end of each fiscal year, a
written statement, which need not comply with Section 1.02, signed by the Chairman of the Board, a
Vice Chairman, the President or a Vice President and by the Treasurer or an Assistant Treasurer of
the Company, stating, as to each signer thereof, that



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



     (b) to the best of his knowledge, based on such review, (a) the Company has fulfilled its
obligations under this Indenture throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to him and the nature and
status thereof, and (b) no event has occurred and is continuing which is, or after notice or lapse
of time or both would become and Event of Default under Section 5.01, or, if such event has
occurred and is continuing, specifying such event known to him and the nature and status thereof.



Section 10.06 Existence.




     Subject to Article VIII, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and that of



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



Section 10.07 Maintenance of Properties.




     The Company will cause all properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company
may be necessary so that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any material respect to
the Holders.



Section 10.08 Limitation on Sale or Issuance of Capital Stock of Certain Subsidiaries.




     Except as set forth below, for so long as any securities are outstanding, the Company will not
sell, assign, pledge, transfer or otherwise dispose of, or permit the issuance of, any shares of
Voting Stock or any security convertible or exercisable into shares of Voting Stock of any
Principal Subsidiary Bank or any Subsidiary which owns a controlling interest in shares of Voting
Stock or securities convertible into or exercisable such shares of Voting Stock of a Principal
Subsidiary Bank; provided, however, that nothing in this Section shall prohibit any
dispositions made by the Company or any Subsidiary (i) acting in a fiduciary capacity for any
person other than the Company or any Subsidiary, or (ii) to the Company or any of its wholly owned
(except for directors’ qualifying shares) Subsidiaries. Notwithstanding the foregoing, sales,
assignments, pledges, transfers, issuances or other dispositions of shares of Voting Stock or
securities convertible or exercisable into shares of Voting Stock of a corporation referred to
above may be made where: (i) the sales, assignments, pledges, transfers, issuances or other
dispositions are made, in the minimum amount required by law, to any Person for the purpose of the
qualification of such Person to serve as a director; or (ii) the sales, assignments, pledges,
transfers, issuances or other dispositions are made in compliance with an order of a court or
regulatory authority of competent jurisdiction; or (iii) the sales, assignments, pledges,
transfers, issuances or other dispositions are made in connection with a merger or consolidation of
a Principal Subsidiary Bank with or into a wholly owned Subsidiary or a Principal Subsidiary Bank,
if, after such merger or consolidation with such Principal Subsidiary Bank, the Company owns,
directly or indirectly, not less than the percentage of Voting Stock of the surviving entity of
such transaction as it owned of such Principal Subsidiary Bank prior to such transaction; or (iv)
the sales, assignments, pledges, transfers, issuances or other dispositions are for fair



57









 







market value (as determined by the Board of Directors of the Company (or any committee
thereof), which determination shall be conclusive and evidenced by a Board Resolution) and, after
giving effect to such disposition, the Company and its wholly owned (except for directors’
qualifying shares) Subsidiaries, will own directly not less than 80% of the Voting Stock of such
Principal Subsidiary Bank or Subsidiary; or (v) a Principal Subsidiary Bank sells additional shares
of Voting Stock to its stockholders at any price, if, after such sale, the Company owns, directly
or indirectly, not less than the percentage of Voting Stock of such Principal Subsidiary Bank it
owned prior to such sale; or (vi) a pledge is made or a lien is created to secure loans or other
extensions of credit by a Subsidiary Bank subject to Section 23A of the Federal Reserve Act.



Section 10.09 Limitation Upon Liens on Certain Capital Stock.




     Except as provided in Section 10.07, the Company will not at any time, directly or indirectly,
create, assume, incur or suffer to be created, assumed or incurred or to exist any mortgage,
pledge, encumbrance or lien or charge of any kind upon (a) any shares of capital stock of any
Principal Subsidiary Bank (other than directors’ qualifying shares), or (b) any shares of capital
stock of a Subsidiary which owns capital stock of any Principal Subsidiary Bank; provided,
however, that, notwithstanding the foregoing, the Company may incur or suffer to be
incurred or to exist upon such capital stock (x) liens for taxes, assessments or other governmental
charges or levies which are not yet due or are payable without penalty or of which the amount,
applicability or validity is being contested by the Company in good faith by appropriate
proceedings and the Company shall have set aside on its books adequate reserves with respect
thereto (segregated to the extent required by generally accepted accounting principles), or (y) the
lien of any judgment, if such judgment shall not have remained undischarged, or unstayed on appeal
or otherwise, for more than 60 days.



Section 10.10 Payment of Taxes and Other Claims.




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



Section 10.11 Waiver of Certain Covenants.




     Except as otherwise specified as contemplated by Section 3.01 for Securities of such series,
the Company may, with respect to the Securities of any series, omit in any particular instance to
comply with any term, provision or condition set forth in any covenant provided pursuant to Section
3.01(b)(xviii), 9.01(b) or 9.01(g) for the benefit of the Holders of such series if before the time
for such compliance the Holders of not less



58









 







than a majority in principal amount of the Outstanding Securities of such series shall, by Act
of such Holders, either waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.



Section 10.12 Calculation of Original Issue Discount.




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



Section 10.13 Original Issue Discount.




     For each year in which Original Issue Discount Securities are Outstanding, the Company shall
furnish to each Paying Agent in a timely fashion such information as may be reasonably requested by
each Paying Agent in order that each Paying Agent may prepare the information which it is required
to report for such year on Internal Revenue Service forms 1096 and 1099 pursuant to Section 60489
of the Internal Revenue Code of 1986, as amended. Such information shall include the amount of
original issue discount includible in income for each $1,000 or principal amount at Stated Maturity
of outstanding Securities during such year.



ARTICLE XI.




REDEMPTION OF SECURITIES




Section 11.01 Applicability of Article.




     Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 3.01
for such Securities) in accordance with such form of Security and this Article; provided,
however, that if any provision of any such form of Security shall conflict with any
provision of this Article, the provision of such form of Security shall govern. Except as
otherwise set forth in the form of Security for such series, such Security of a series shall be
subject to partial redemption only the amount of $1,000 or any integral multiples thereof.



Section 11.02 Election to Redeem; Notice to Trustee.




     The election of the Company to redeem any Securities shall be evidenced by a Board Resolution
or in another manner specified as contemplated by Section 3.01 for



59









 







such Securities. In case of any redemption at the election of the Company of less than all the
Securities of any series (including any such redemption affecting only a single Security), the
Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee in writing of such Redemption
Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of
the tenor of the Securities to be redeemed and provide the additional information required to be
included in the notice or notices contemplated by Section 11.04. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers’ Certificate evidencing compliance with such restriction.



Section 11.03 Selection by Trustee of Securities to Be Redeemed.




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



     (b) The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption as aforesaid and, in case of any Securities selected for partial redemption as
aforesaid, the principal amount thereof to be redeemed.



     (c) The provisions of the two preceding paragraphs shall not apply with respect to any
redemption affecting only a single Security, whether such Security is to be redeemed in whole or in
part. In the case of any such redemption in part, the unredeemed portion of the principal amount of
the Security shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.



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



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Section 11.04 Notice of Redemption.




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



     (b) All notices of redemption shall state:



          (i) the Redemption Date,




          (ii) the Redemption Price,




          (iii) if less than all the Outstanding Securities of any series consisting of more than a
single Security are to be redeemed, the identification (and, in the case of partial redemption of
any such Securities, the principal amounts) of the particular Securities to be redeemed and, if
less than all the Outstanding Securities of any series consisting of a single Security are to be
redeemed, the principal amount of the particular Security to be redeemed,




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




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




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




          (vii) CUSIP numbers, if any, and




          (viii) such other provisions as may be required in respect of the terms of a particular series
of Securities.




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



Section 11.05 Deposit of Redemption Price.




     Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date.



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Section 11.06 Securities Payable on Redemption Date.




     (a) Notice of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price therein specified,
and from and after such date (unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that, unless otherwise specified as contemplated by Section
3.01, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.07.



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



Section 11.07 Securities Redeemed in Part.




     Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series and of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.



ARTICLE XII.




SINKING FUNDS




Section 12.01 Applicability of Article.




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



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



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Section 12.02 Satisfaction of Sinking Fund Payments with Securities.




     The Company (a) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (b) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to any Securities of such series required to be made pursuant to the terms of such
Securities as and to the extent provided for by the terms of such Securities; provided that the
Securities to be so credited have not been previously so credited. The Securities to be so credited
shall be received and credited for such purpose by the Trustee at the Redemption Price, as
specified in the Securities so to be redeemed, for redemption through operation of the sinking fund
and the amount of such sinking fund payment shall be reduced accordingly.



Section 12.03 Redemption of Securities for Sinking Fund.




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



ARTICLE XIII.




DEFEASANCE AND COVENANT DEFEASANCE




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




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



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Section 13.02 Defeasance and Discharge.




     Upon the Company’s exercise of its option (if any) to have this Section 13.02 applied to any
Securities or any series of Securities, as the case may be, the Company shall be deemed to have
been discharged from its obligations with respect to such Securities as provided in this Section on
and after the date the conditions set forth in Section 13.04 are satisfied (hereinafter called
“Defeasance”). For this purpose, such Defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by such Securities and to have satisfied
all its other obligations under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the direction and expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which shall survive until otherwise
terminated or discharged hereunder: (a) the rights of Holders of such Securities to receive, solely
from the trust fund described in Section 13.04 and as more fully set forth in such Section,
payments in respect of the principal of and any premium and interest on such Securities when
payments are due, (b) the Company’s obligations with respect to such Securities under Sections
3.04, 3.05, 3.06, 10.02 and 10.03, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (d) this Article XIII. Subject to compliance with this Article XIII, the
Company may exercise its option (if any) to have this Section applied to any Securities or any
series of Securities notwithstanding the prior exercise of its option (if any) to have Section
13.03 applied to such Securities.



Section 13.03 Covenant Defeasance.




     Upon the Company’s exercise of its option (if any) to have this Section 13.03 applied to any
Securities or any series of Securities, as the case may be, (a) the Company shall be released from
its obligations under Sections 10.06 through 10.10, inclusive, and any covenants provided pursuant
to Section 3.01(b)(xviii), 9.01(b) or 9.01(g) for the benefit of the Holders of such Securities and
(b) the occurrence of any event specified in Section 5.01(d) (with respect to any of Sections 10.06
through 10.10, inclusive, and any such covenants provided pursuant to Section 3.01(b)(xviii),
9.01(b) or 9.01(g)) or Section 5.01(g) shall be deemed not to be or result in an Event of Default,
in each case with respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 13.04 are satisfied (hereinafter called “Covenant Defeasance”). For
this purpose, such Covenant Defeasance means that, with respect to such Securities, the Company may
omit to comply with and shall have no liability in respect of any term, condition or limitation set
forth in any such specified Section (to the extent so specified in the case of Section 5.01(d)),
whether directly or indirectly by reason of any reference elsewhere herein to any such Section
5.01(d) or by reason of any reference in any such Section 5.01(d) to any other provision herein or
in any other document, but the remainder of this Indenture and such Securities shall be unaffected
thereby.



Section 13.04 Conditions to Defeasance or Covenant Defeasance.




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



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     (a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the Holders of such Securities, (i) in the
case of Securities denominated in a foreign currency, money in such foreign currency or Foreign
Government Obligations of the foreign government or governments issuing such foreign currency which
through the scheduled payment of principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any payment, such foreign
currency in an amount, or (ii) in the case of Securities denominated in U.S. dollars, U.S. dollars
or U.S. Government Obligations which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than one day before the due
date of any payment, U.S. dollars in an amount, or (iii) a combination of money and U.S. Government
Obligations or Foreign Government Obligations (as applicable), in each case sufficient, in the
opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee to pay and discharge, the principal of and any premium and interest on such Securities
on the respective Stated Maturities, in accordance with the terms of this Indenture and such
Securities. As used herein, “U.S. Government Obligation” means (x) any security which is (i) a
direct obligation of the United States of America for the payment of which the full faith and
credit of the United States of America is pledged or (ii) an obligation of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not callable or redeemable at the option
of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation which is
specified in Clause (x) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal of or interest on any U.S.
Government Obligation which is so specified and held, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
As used herein, “Foreign Government Obligation” means any security denominated in a foreign
currency which is (i) a direct obligation of a foreign government or governments for the payment of
which the full faith and credit of such foreign government or governments is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or instrumentality of
such foreign government or governments the payment of which is unconditionally guaranteed as a full
faith and credit obligation by such foreign government, which, in either case (i) or (ii) is not
callable or redeemable at the option of the issuer thereof.



     (b) In the event of an election to have Section 13.02 apply to any Securities or any series of
Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (i)(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (y) since the date of this instrument, there has been a change
in the applicable Federal income tax law, in either



65









 







case (x) or (y) to the effect that, and based thereon such opinion shall confirm that, the
Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a
result of the deposit, Defeasance and discharge to be effected with respect to such Securities and
will be subject to Federal income tax on the same amount, in the same manner and at the same times
as would be the case if such deposit, Defeasance and discharge were not to occur and (ii) if
Securities of such series are then listed on any registered national securities exchange under the
Securities Exchange Act of 1934, as amended, to the effect that the Securities of such series will
not be delisted as a result of such election.



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



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



     (e) No event which is, or after notice or lapse of time or both would become, an Event of
Default with respect to such Securities or any other Securities shall have occurred and be
continuing at the time of such deposit or, with regard to any such event specified in Sections
5.01(e) and (f), at any time on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after such 90th day).



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



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



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



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



66









 





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




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



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



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



Section 13.06 Reinstatement.




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



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



67









 





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



	 	 	 	 	 
	[SEAL]                                	M&T BANK CORPORATION

 	 
	 	By:  	/s/ Ayan D. Gupta
 	 
	 	 	Name:  	Ayan D. Gupta 	 
	 	 	Title:  	Administrative Vice President 	 
	 



	 	 	 	 	 
	Attest:

	 	/s/ Brian R. Yoshida
 

	 	 
	 

	 	Name: Brian R. Yoshida	 	 
	 

	 	Title: Vice President and Assistant Secretary	 	 






	 	 	 	 	 
	 	THE BANK OF NEW YORK

 	 
	 	By:  	/s/ Scott I. Klein
 	 
	 	 	Name:  	Scott I. Klein 	 
	 	 	Title:  	Assistant Treasurer 	 
	 



	 	 	 	 	 
	Attest:

	 	/s/ Geovanni Barris
 

	 	 
	 

	 	Name: Geovanni Barris	 	 
	 

	 	Title: Vice President	 	 







68









 








Exhibit 4(c)




[Form of Senior Note]




[Face of Security]



If the registered owner of this Security is the Depositary or a nominee of the Depositary, this
Security is a Global Security and the following legend is applicable except as specified on the
reverse hereof:



THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED
IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.



[Insert any legend required by the Internal Revenue Code and the regulations thereunder.]



THIS SECURITY IS NOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
BANK INSURANCE FUND, THE SAVINGS ASSOCIATION INSURANCE FUND OR ANY OTHER GOVERNMENTAL AGENCY.




M&T BANK CORPORATION




			
	No.
                                        

	 	$                                        






     M&T Bank Corporation, a New York corporation which is registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended, and under Article III-A of the New York Banking
Law (herein called the “Company”), which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered
assigns, the principal sum of
                                        
  Dollars on                              
           
[if the Security is to bear
interest prior to Maturity, insert:) , and to pay interest thereon from
                                        
  or from the
most recent Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on
                                        
  and
                                        
  in each year, commencing                     , at the rate of
                    % per
annum, until the principal hereof is paid or made available for payment][(if applicable, insert:) ,
provided that any principal and premium, and any such installment of interest, which is overdue
shall bear interest at the rate of                     % per annum (to the extent that the payment of such interest
shall be legally enforceable), from the dates such amounts are due until they are paid or made
available for payment, and such



 









 




interest shall be payable on demand]. [The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which
shall be the                      or
                     (whether or not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Securities of this series not less than 10 days prior
to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities of this series may be
listed, and upon such notice as may be required by such exchange, all as more fully provided in
said Indenture]. Interest shall be computed on the basis of a 360-day year of twelve 30-day months.



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



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



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



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




2









 







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




Dated:




M&T BANK CORPORATION




	 	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 





	 	 	 	 	 
	Attest:
	 	 	.	 
	 

	 	 

	 	 






CERTIFICATE OF AUTHENTICATION



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




	 	 	 	 	 
	 	 	THE BANK OF NEW YORK, as Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Authorized Officer






[Reverse of Security]



This Security is one of a duly authorized issue of securities of the Company (herein called the
“Securities”), issued and to be issued in one or more series under an Indenture, dated as of
                                        

(herein called the “Indenture”, which term shall have the meaning assigned to it in
such instrument), between the Company and
                                        
, as Trustee (herein called the “Trustee”,
which term includes any successor trustee under the Indenture), and reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This Security is one of the
series designated on the face hereof [(if applicable, insert:) , limited in aggregate principal
amount to
$                                        ].



[(If applicable, insert:) The Securities of this series are subject to redemption upon not less
than 30 days’ notice by mail, [(if applicable, insert:) (1) on                      in any year commencing with
the year                      and ending with the year
                     through operation of the sinking fund for this series
at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [(if applicable,
insert:) on or after                     , 20___], as a whole or in part, at the election of the Company, at
the following Redemption Prices (expressed as percentages of the principal amount): If redeemed
[(if applicable, insert:)


3









 






on or
before
                                        
,
                    ,
                    % and if redeemed] during the 12-month period beginning
                                  of the years indicated,




	 	 	 	 	 
	Year

	Redemption Price
	 	Year
	Redemption Price





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



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




	 	 	 	 	 
	Year

	 	Redemption Price For Redemption
Through Operation of the
Sinking Fund
	 	Redemption Price For Redemption
Otherwise 

Than Through
Operation of the Sinking Fund





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



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



[(If applicable, insert:) The sinking fund for this series provides for the redemption on
                    
in each year beginning with the year ___ and ending with
the year ___ of [(if applicable,
insert:) not less than $                     (“mandatory sinking fund”) and not more


4









 






than] $                     aggregate principal amount of Securities of this
series. Securities of this series
acquired or redeemed by the Company otherwise than through [(if applicable, insert:) mandatory]
sinking fund payments may be credited against subsequent [(if applicable, insert:) mandatory]
sinking fund payments otherwise required to be made [(if applicable, insert:), in the inverse order
in which they become due].]



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



[(If applicable, insert:) The Indenture contains provisions for defeasance at any time of [the
entire indebtedness of this Security] [or] [certain restrictive covenants and Events of Default
with respect to this Security] [, in each case] upon compliance with certain conditions set forth
in the Indenture.] The terms of the Indenture relating to Defeasance and Discharge will [not] apply
to this Security.



[(If the Security is not an Original Issue Discount Security, insert:) If an Event of Default with
respect to Securities of this series shall occur and be continuing, the principal of the Securities
of this series may be declared due and payable in the manner and with the effect provided in the
Indenture.]



[(If the Security is an Original Issue Discount Security, insert:) If an Event of Default with
respect to Securities of this series shall occur and be continuing, an amount of principal of the
Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to — insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of
interest on any overdue principal, premium and interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company’s obligations in respect
of the payment of the principal of and premium and interest, if any, on the Securities of this
series shall terminate.]



The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.




5









 







As provided in and subject to the provisions of the Indenture, the Holder of this Security shall
not have the right to institute any proceeding with respect to the Indenture or for the appointment
of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have
previously given the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount of the Securities
of this series at the time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity
reasonably satisfactory to it, and the Trustee shall not have received from the Holders of a
majority in principal amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days
after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the respective due dates expressed herein.



No reference herein to the Indenture and no provision of this Security or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Security at the

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



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



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



All terms used in this Security which are defined in the Indenture shall have the meanings assigned
to them in the Indenture. times, place and rate, and in the coin or currency, herein prescribed.



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





6