exv4w2






Exhibit 4.2




 

 






PG&E CORPORATION




TO




                                        ,




TRUSTEE.




 






Subordinated Note Indenture




Dated As Of                                         ,            




 

 






 









 












PG&E Corporation

Reconciliation and Tie Between Trust Indenture Act of 1939 and

Subordinated Note Indenture, Dated as of                     , 20    




	 	 	 	 	 	 	 	 	 	 	 
	Trust Indenture	 	 	 	 	 	 	 
	Act Section	 	 	 	 	 	Indenture Section
	 
	§310
	 	(a)(1)	 	 	 	 	 	 	609
	 
	 	(a)(2)	 	 	 	 	 	 	609
	 
	 	(a)(3)	 	 	 	 	 	Not Applicable
	 
	 	(a)(4)	 	 	 	 	 	Not Applicable
	 
	 	(b)	 	 	 	 	 	 	608, 610
	§311
	 	(a)	 	 	 	 	 	 	613
	 
	 	(b)(4)	 	 	 	 	 	 	613(a)
	 
	 	(b)(6)	 	 	 	 	 	 	613(b)
	§312
	 	(a)	 	 	 	 	 	 	701,702(a)
	 
	 	(c)	 	 	 	 	 	 	702(b)
	§ 313
	 	(a)	 	 	 	 	 	 	703(a)
	 
	 	(b)	 	 	 	 	 	 	703(b)
	 
	 	(c)	 	 	 	 	 	 	703(c), 704
	 
	 	(d)	 	 	 	 	 	 	703(c)
	§ 314
	 	(a)	 	 	 	 	 	 	704, 1007
	 
	 	(b)	 	 	 	 	 	Not Applicable
	 
	 	(c)(1)	 	 	 	 	 	 	102
	 
	 	(c)(2)	 	 	 	 	 	 	102
	 
	 	(c)(3)	 	 	 	 	 	Not Applicable
	 
	 	(d)	 	 	 	 	 	Not Applicable
	 
	 	(e)	 	 	 	 	 	 	102
	§ 315
	 	(a)	 	 	 	 	 	 	601(a)
	 
	 	(b)	 	 	 	 	 	 	602
	 
	 	(c)	 	 	 	 	 	 	601(b)
	 
	 	(d)	 	 	 	 	 	 	601(c)
	 
	 	(d)(1)	 	 	 	 	 	 	601(a)(1)
	 
	 	(d)(2)	 	 	 	 	 	 	601(c)(2)
	 
	 	(d)(3)	 	 	 	 	 	 	601(c)(3)
	 
	 	(e)	 	 	 	 	 	 	514
	§316
	 	(a)	 	 	 	 	 	 	101
	 
	 	(a)(1)(A)	 	 	 	 	 	 	502, 512
	 
	 	(a)(1)(B)	 	 	 	 	 	 	513
	 
	 	(a)(2)	 	 	 	 	 	Not Applicable
	 
	 	(b)	 	 	 	 	 	 	508
	§317
	 	(a)(1)	 	 	 	 	 	 	503
	 
	 	(a)(2)	 	 	 	 	 	 	504
	 
	 	(b)	 	 	 	 	 	 	1003
	§ 318
	 	(a)	 	 	 	 	 	 	107







 











 






TABLE OF CONTENTS




	 	 	 
	 	 	Page
	 	 	 
	Parties

	 	1
	Recitals of the Company

	 	1






ARTICLE ONE




Definitions and Other Provisions Of General Application




	 	 	 	 	 	 	 
	Section 101. Definitions	 	 	1	 
	 
	 	 	 	 	 	 
	 
	 	Act	 	 	2	 
	 
	 	Additional Interest	 	 	2	 
	 
	 	Affiliate	 	 	2	 
	 
	 	Authenticating Agent	 	 	2	 
	 
	 	Board of Directors	 	 	2	 
	 
	 	Board Resolution	 	 	2	 
	 
	 	Business Day	 	 	2	 
	 
	 	Certificate of a Firm of Independent Public Accountants	 	 	3	 
	 
	 	Commission	 	 	3	 
	 
	 	Company	 	 	3	 
	 
	 	Company Request or Company Order	 	 	3	 
	 
	 	Corporate Trust Office	 	 	3	 
	 
	 	Corporation	 	 	3	 
	 
	 	Defaulted Interest	 	 	3	 
	 
	 	Depositary	 	 	3	 
	 
	 	Event of Default	 	 	4	 
	 
	 	Global Security	 	 	4	 
	 
	 	Guarantee	 	 	4	 
	 
	 	Holder	 	 	4	 
	 
	 	Indenture	 	 	4	 
	 
	 	Interest Payment Date	 	 	4	 
	 
	 	Junior Subordinated Note	 	 	4	 
	 
	 	Maturity	 	 	4	 
	 
	 	Officers' Certificate	 	 	5	 
	 
	 	Opinion of Counsel	 	 	5	 
	 
	 	Outstanding	 	 	5	 
	 
	 	Paying Agent	 	 	6	 
	 
	 	Person	 	 	6	 
	 
	 	Predecessor Security	 	 	6	 
	 
	 	Property Trustee	 	 	6	 
	 
	 	Redemption Date	 	 	6	 
	 
	 	Redemption Price	 	 	6	 
	 
	 	Regular Record Date	 	 	6	 
	 
	 	Responsible Officer	 	 	6	 
	 
	 	Securities Trust	 	 	6	 






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	 	 	Page






	 	 	 	 	 	 	 
	 

	 	Security Register and Security Registrar
	 	 	6	 
	 

	 	Senior Indebtedness
	 	 	6	 
	 

	 	Special Record Date
	 	 	7	 
	 

	 	Stated Maturity
	 	 	7	 
	 

	 	Trust Agreement
	 	 	7	 
	 

	 	Trust Indenture Act
	 	 	7	 
	 

	 	Trust Securities
	 	 	7	 
	 

	 	Trustee
	 	 	7	 
	 

	 	Vice President
	 	 	7	 
	Section 102.       Compliance Certificates and Opinions	 	 	8	 
	Section 103.       Form of Documents Delivered to Trustee	 	 	8	 
	Section 104.       Acts of Holders	 	 	9	 
	Section 105.       Notices, Etc., to Trustee and Company	 	 	10	 
	Section 106.       Notice to Holders of Junior Subordinated Notes; Waiver	 	 	10	 
	Section 107.       Conflict With Trust Indenture Act	 	 	11	 
	Section 108.       Effect of Headings and Table of Contents	 	 	11	 
	Section 109.       Successors and Assigns	 	 	11	 
	Section 110.       Separability Clause	 	 	11	 
	Section 111.       Benefits of Indenture	 	 	11	 
	Section 112.       Governing Law	 	 	11	 
	Section 113.       Legal Holidays	 	 	11	 
	Section 114.       Appointment of Agent for Service	 	 	12	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE TWO	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Forms Of Junior Subordinated Notes	 	 	 	 
	 
	 	 	 	 	 	 
	Section 201.       Forms Generally	 	 	12	 
	Section 202.       Form of Trustee’s Certificate of Authentication	 	 	13	 
	Section 203.       Junior Subordinated Notes Issuable in the Form of a Global Security	 	 	13	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE THREE	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	The Junior Subordinated Notes	 	 	 	 
	 
	 	 	 	 	 	 
	Section 301.       Amount Unlimited; Issuable in Series	 	 	15	 
	Section 302.       Execution, Authentication, Delivery and Dating	 	 	18	 
	Section 303.       Registration, Registration of Transfer and Exchange	 	 	19	 
	Section 304.       Mutilated, Destroyed, Lost and Stolen Junior Subordinated Notes	 	 	21	 
	Section 305.       Payment of Interest; Interest Rights Preserved	 	 	21	 
	Section 306.       Persons Deemed Owners	 	 	23	 
	Section 307.       Cancellation	 	 	23	 





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	 	 	Page







	 	 	 	 	 	 	 
	Section 308.       Computation of Interest	 	 	23	 
	 
	 

	 	ARTICLE FOUR	 	 	 	 
	 
	 

	 	Satisfaction And Discharge	 	 	 	 
	 
	Section 401.       Satisfaction and Discharge of Indenture	 	 	25	 
	Section 402.       Application of Trust Money	 	 	26	 
	 
	 

	 	ARTICLE FIVE	 	 	 	 
	 
	 

	 	Remedies	 	 	 	 
	 
	Section 501.       Events of Default	 	 	27	 
	Section 502.       Acceleration of Maturity; Rescission and Annulment	 	 	29	 
	Section 503.       Collection of Indebtedness and Suits for Enforcement by Trustee	 	 	30	 
	Section 504.       Trustee May File Proofs of Claim	 	 	30	 
	Section 505.       Trustee May Enforce Claims Without Possession of Junior Subordinated Notes	 	 	31	 
	Section 506.       Application of Money Collected	 	 	31	 
	Section 507.       Limitation on Suits	 	 	32	 
	Section 508.       Unconditional Right of Holders to Receive Principal, Premium and Interest	 	 	32	 
	Section 509.       Restoration of Rights and Remedies	 	 	33	 
	Section 510.       Rights and Remedies Cumulative	 	 	33	 
	Section 511.       Delay or Omission Not Waiver	 	 	33	 
	Section 512.       Control by Holders of Junior Subordinated Notes	 	 	33	 
	Section 513.       Waiver of Past Defaults	 	 	34	 
	Section 514.       Undertaking for Costs	 	 	34	 
	Section 515.       Waiver of Stay or Extension Laws	 	 	34	 
	 
	 

	 	ARTICLE SIX	 	 	 	 
	 
	 

	 	The Trustee	 	 	 	 
	 
	Section 601.       Certain Duties and Responsibilities	 	 	35	 
	Section 602.       Notice of Defaults	 	 	36	 
	Section 603.       Certain Rights of Trustee	 	 	36	 
	Section 604.       Not Responsible for Recitals or Issuance of Junior Subordinated Notes	 	 	37	 
	Section 605.       May Hold Junior Subordinated Notes	 	 	37	 
	Section 606.       Money Held in Trust	 	 	38	 
	Section 607.       Compensation and Reimbursement	 	 	38	 
	Section 608.       Disqualification; Conflicting Interests	 	 	38	 
	Section 609.       Corporate Trustee Required; Eligibility	 	 	39	 





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	 	 	Page







	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	Section 610.       Resignation and Removal; Appointment of Successor	 	 	39	 
	Section 611.       Acceptance of Appointment by Successor	 	 	40	 
	Section 612.       Merger, Conversion, Consolidation or Succession to Business	 	 	41	 
	Section 613.       Preferential Collection of Claims Against Company	 	 	42	 
	Section 614.       Appointment of Authenticating Agent	 	 	42	 
	 	 	 	 	 	 	 
	 

	 	ARTICLE SEVEN	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	Holders’ Lists and Reports by Trustee and Company	 	 	 	 
	 	 	 	 	 	 	 
	Section 701.       Company to Furnish Trustee Names and Addresses of Holders	 	 	44	 
	Section 702.       Preservation of Information; Communications to Holders	 	 	44	 
	Section 703.       Reports by Trustee	 	 	44	 
	Section 704.       Reports by Company	 	 	45	 
	 	 	 	 	 	 	 
	 

	 	ARTICLE EIGHT	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	Consolidation, Merger, Conveyance, Transfer or Lease	 	 	 	 
	 	 	 	 	 	 	 
	Section 801.       Company May Consolidate, Etc., Only on Certain Terms	 	 	45	 
	Section 802.       Successor Corporation Substituted	 	 	46	 
	 	 	 	 	 	 	 
	 

	 	ARTICLE NINE	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	Supplemental Indentures	 	 	 	 
	 	 	 	 	 	 	 
	Section 901.       Supplemental Indentures Without Consent of Holders	 	 	46	 
	Section 902.       Supplemental Indentures With Consent of Holders	 	 	48	 
	Section 903.       General Provisions Regarding Supplemental Indenture	 	 	48	 
	Section 904.       Execution of Supplemental Indentures	 	 	49	 
	Section 905.       Effect of Supplemental Indentures	 	 	49	 
	Section 906.       Conformity With Trust Indenture Act	 	 	49	 
	Section 907.       Reference in Junior Subordinated Notes to Supplemental Indentures	 	 	49	 
	 	 	 	 	 	 	 
	 

	 	ARTICLE TEN	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	Covenants	 	 	 	 
	 	 	 	 	 	 	 
	Section 1001.       Payment of Principal and Interest	 	 	49	 
	Section 1002.       Maintenance of Office or Agency	 	 	50	 
	Section 1003.       Money for Junior Subordinated Notes Payments to be Held in Trust	 	 	50	 
	Section 1004.       Additional Interest	 	 	51	 
	Section 1005.       Corporate Existence	 	 	52	 
	Section 1006.       Limitations on Dividend and Certain Other Payments	 	 	52	 






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	 	 	Page






	 	 	 	 	 	 	 
	Section 1007.       Statement as to Compliance	 	 	52	 
	Section 1008.       Waiver of Certain Covenants	 	 	53	 
	 
	 

	 	ARTICLE ELEVEN	 	 	 	 
	 
	 

	 	Redemption Of Junior Subordinated Notes	 	 	 	 
	 
	Section 1101.       Applicability of Article	 	 	53	 
	Section 1102.      Election to Redeem; Notice to Trustee	 	 	53	 
	Section 1103.       Selection by Trustee of Junior Subordinated Notes to be Redeemed	 	 	54	 
	Section 1104.       Notice of Redemption	 	 	54	 
	Section 1105.       Deposit of Redemption Price	 	 	55	 
	Section 1106.       Junior Subordinated Notes Payable on Redemption Date	 	 	56	 
	Section 1107.       Junior Subordinated Notes Redeemed in Part	 	 	56	 
	 
	 

	 	ARTICLE TWELVE	 	 	 	 
	 
	 

	 	Sinking Funds	 	 	 	 
	 
	Section 1201.       Applicability of Article	 	 	56	 
	Section 1202.       Satisfaction of Sinking Fund Payments With Junior Subordinated Notes	 	 	57	 
	Section 1203.       Redemption of Junior Subordinated Notes for Sinking Fund	 	 	57	 
	 
	 

	 	ARTICLE THIRTEEN	 	 	 	 
	 
	 

	 	Subordination	 	 	 	 
	 
	Section 1301.       Junior Subordinated Notes Subordinate to Senior Indebtedness	 	 	57	 
	Section 1302.       Payment of Proceeds Upon Dissolution, Etc	 	 	58	 
	Section 1303.       No Payment When Senior Indebtedness in Default	 	 	59	 
	Section 1304.       Payment Permitted if No Default	 	 	59	 
	Section 1305.       Subrogation to Rights of Holders of Senior Indebtedness	 	 	59	 
	Section 1306.       Provisions Solely to Define Relative Rights	 	 	60	 
	Section 1307.       Trustee to Effectuate Subordination	 	 	60	 
	Section 1308.       No Waiver of Subordination Provisions	 	 	60	 
	Section 1309.       Trust Moneys Not Subordinated	 	 	61	 
	Section 1310.       Notice to the Trustee	 	 	61	 
	Section 1311.       Reliance on Judicial Order or Certificate of Liquidating Agent	 	 	62	 
	Section 1312.       Trustee Not Fiduciary for Holders of Senior Indebtedness	 	 	62	 
	Section 1313.       Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee’s
Rights	 	 	62	 
	Section 1314.       Article Applicable to Paying Agents	 	 	63	 







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	Section 1315.       Reliance by Holders of Senior Indebtedness on Subordination Provisions	 	 	63	 
	 
	 

	 	ARTICLE FOURTEEN	 	 	 	 
	 
	 

	 	Miscellaneous Provisions	 	 	 	 
	 
	Section 1401.       No Recourse Against Others 63	 	 	 	 
	Section 1402.       Set-Off	 	 	63	 
	Section 1403.       Assignment; Binding Effect	 	 	64	 
	Section 1404.       Additional Interest	 	 	64	 







vi











 





SUBORDINATED NOTE INDENTURE




     THIS SUBORDINATED NOTE INDENTURE is made as of                      , 20    , between PG&E CORPORATION, a
corporation duly organized and existing under the laws of the California (herein called the
“Company”), having its principal office at One Market Street, Spear Tower, Suite 2400, San
Francisco, CA 94105, and                                                             , a banking corporation duly organized and existing
under the laws of                                                             , having its principal corporate trust office at
                                                  , as Trustee (herein called the “Trustee”).



WITNESSETH:




     WHEREAS, the Company has duly authorized the execution and delivery of this Subordinated Note
Indenture to provide for the issuance from time to time of its unsecured subordinated debentures,
notes or other evidences of indebtedness (herein called the “Junior Subordinated Notes”), to be
issued in one or more series as in this Subordinated Note Indenture provided; and



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



     NOW, THEREFORE, for and in consideration of the premises and the purchase of the Junior
Subordinated Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Junior Subordinated Notes or of series thereof, as
follows:



ARTICLE ONE




Definitions and Other Provisions

of General Application




Section 101. Definitions.




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



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



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



          (3) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles in the United States of America, 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 in the United States of America at
the date of such computation;



1









 





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



          (5) Trust Securities related to a particular series of Junior Subordinated Notes means the
series of Trust Securities the proceeds of the sale of which were loaned to the Company in exchange
for such series of Junior Subordinated Notes, and the guarantee related to such series of Trust
Securities means the guarantee pursuant to which the Company has guaranteed, to the extent stated
therein, the payment of distributions and certain other amounts with respect to such series of
Trust Securities.



     Certain terms, used principally in Article Six, are defined in that Article.



     “Act”, when used with respect to any Holder of a Junior Subordinated Note, has the meaning
specified in Section 104.



     “Additional Interest” means (i) such additional amounts as may be required so that the net
amounts received and retained by the Holder (if the Holder is a Securities Trust) after paying
taxes, duties, assessments or governmental charges of whatever nature (other than withholding
taxes) imposed by the United States or any other taxing authority will not be less than the amounts
the Holder would have received had no such taxes, duties, assessments, or other governmental
charges been imposed; and (ii) any interest due and not paid on an Interest Payment Date, together
with interest thereon from such Interest Payment Date to the date of payment, compounded quarterly,
on each Interest Payment Date.



     “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. Notwithstanding the foregoing, any
Securities Trust organized by the Company shall not be deemed to be an Affiliate of the Company.



     “Authenticating Agent” means any Person or Persons authorized by the Trustee to authenticate
one or more series of Junior Subordinated Notes.



     “Board of Directors” means either the board of directors of the Company or any duly authorized
committee of the officers and/or directors of the Company appointed by that board.



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



     “Business Day” means a day other than (i) a Saturday or a Sunday, (ii) a day on which banks in
New York, New York are authorized or obligated by law or executive order to remain closed, or (iii)
a day on which the Trustee’s Corporate Trust Office or Property Trustee’s principal corporate trust
office is closed for business.



2









 





     “Certificate of a Firm of Independent Public Accountants” means a certificate signed by an
independent public accountant or a firm of independent public accountants who may be the
independent public accountants regularly retained by the Company or who may be other independent
public accountants. Such accountant or firm shall be entitled to rely upon an Opinion of Counsel
as to the interpretation of any legal matters relating to such certificate.



     “Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, as amended, or, if at any time after the
execution of this 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.



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



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



     “Corporate Trust Office” means the office of the Trustee in the Borough of Manhattan, New York
City, at which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Subordinated Note Indenture is located
at                                         .



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



     “Defaulted Interest” has the meaning specified in Section 305.



     “Depositary” means, unless otherwise specified by the Company pursuant to either Section 203
or 301, with respect to Junior Subordinated Notes of any series issuable or issued as a Global
Security, The Depository Trust Company, New York, New York, or any successor thereto registered as
a clearing agency under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation.



     “Eligible Obligations” means:




     (a) with respect to Junior Subordinated Notes denominated in Dollars, Government
Obligations; or




     (b) with respect to Junior Subordinated Notes denominated in a currency other than
Dollars or in a composite currency, such other obligations or instruments as shall be
specified with respect to such Junior Subordinated Notes as contemplated by Section 301.



3









 





     “Event of Default” has the meaning specified in Section 501.



     “Global Security” means, with respect to any series of Junior Subordinated Notes issued
hereunder, a Junior Subordinated Note that is executed by the Company and authenticated and
delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction, all in
accordance with Section 203 of this Indenture and any indenture supplemental hereto.



     “Government Obligations” means securities which are (a) (i) direct obligations of the United
States where the payment or payments thereunder are supported by the full faith and credit of the
United States or (ii) obligations of a Person controlled or supervised by and acting as an agency
or instrumentality of the United States where the timely payment or payments thereunder are
unconditionally guaranteed as a full faith and credit obligation by the United States or (b)
depository receipts issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933,
as amended) as custodian with respect to any such Government Obligation or a specific payment of
interest on or principal of or other amount with respect to any such Government Obligation held by
such custodian for the account of the holder of a depository receipt; provided, that, (except as
required by law) such custodian is not authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or principal of or other amount with
respect to the Government Obligation evidenced by such depository receipt.



     “Guarantee” means a Guarantee Agreement, if any, executed and delivered by the Company for the
benefit of the holders from time to time of all or a portion of the Trust Securities of a
Securities Trust.



     “Holder”, when used with respect to any Junior Subordinated Note, means the Person in whose
name the Junior Subordinated Note is registered in the Security Register.



     “Indenture” means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of the particular series of Junior
Subordinated Notes established as contemplated by Section 301.



     “Interest Payment Date”, when used with respect to any series of Junior Subordinated Notes,
means the dates established for the payment of interest thereon, as provided in the supplemental
indenture for such series.



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



     “Maturity”, when used with respect to any Junior Subordinated Note, means the date on which
the principal of such Junior Subordinated Note 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.



4









 





     “Officer’s Certificate” means a certificate signed by the Chairman of the Board, the President
or a Vice President, the Chief Financial Officer, the Treasurer or any Assistant Treasurer of the
Company, and delivered to the Trustee.



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



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



          (i) Junior Subordinated Notes theretofore canceled by the Trustee or delivered to the Trustee
for cancellation;



          (ii) Junior Subordinated Notes for whose payment or redemption money in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Junior Subordinated Notes; provided that if such Junior
Subordinated Notes 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) Junior Subordinated Notes that have been paid or in exchange for or in lieu of which
other Junior Subordinated Notes have been authenticated and delivered pursuant to this Indenture,
other than any such Junior Subordinated Notes in respect of which there shall have been presented
to the Trustee proof satisfactory to it that such Junior Subordinated Notes are held by a bona fide
purchaser in whose hands such Junior Subordinated Notes are valid obligations of the Company; and



          (iv) Junior Subordinated Notes, or portions thereof, converted into or exchanged for another
security if the terms of such Junior Subordinated Notes provide for such conversion or exchange;


provided, however, that in determining, during any period in which any Junior Subordinated Notes of
a series are owned by any Person other than the Company or any Affiliate thereof,
whether the Holders of the requisite principal amount of Outstanding Junior Subordinated Notes of
such series have given any request, demand, authorization, direction, notice, consent or waiver
hereunder, Junior Subordinated Notes of such series owned by the Company or any Affiliate thereof
shall be disregarded and deemed not to be Outstanding. In determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction, notice, consent or
waiver, only Junior Subordinated Notes that the Trustee knows to be so owned by the Company or an
Affiliate of the Company in the above circumstances shall be so disregarded. Junior Subordinated
Notes so owned that 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
Junior Subordinated Notes and that the pledgee is not the Company or any Affiliate of the Company.




5









 








     “Paying Agent” means any Person authorized by the Company to pay the principal of (and
premium, if any) or interest on any Junior Subordinated Notes on behalf of the Company.



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



     “Predecessor Security” of any particular Junior Subordinated Note means every previous Junior
Subordinated Note evidencing all or a portion of the same debt as that evidenced by such particular
Junior Subordinated Note; and, for the purposes of this definition, any Junior Subordinated Note
authenticated and delivered under Section 304 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Junior Subordinated Note shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Junior Subordinated Note.



     “Property Trustee”, when used with respect to the Junior Subordinated Notes of any series,
means the Person designated as such in the related Trust Agreement.



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



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



     “Regular Record Date” for the interest payable on any Interest Payment Date on the Junior
Subordinated Notes of any series means the date specified for that purpose as contemplated by
Section 301, whether or not a Business Day.



     “Responsible Officer”, when used with respect to the Trustee, means the chairman or any
vice-chairman of the board of directors, the chairman or any vice-chairman of the executive
committee of the board of directors, the chairman of the trust committee, the president, any vice
president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, the cashier, any assistant cashier, any senior trust officer, any
trust officer or assistant trust officer, the controller or any assistant controller or any other
officer of the Trustee customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his knowledge of and familiarity with the
particular subject.



     “Securities Trust” means any statutory business trust formed by the Company or an Affiliate to
issue Trust Securities, the proceeds of which will be used to purchase Junior Subordinated Notes of
one or more series.



     “Security Register” and “Security Registrar” have the respective meanings specified in Section
303.



     “Senior Indebtedness” means, with respect to the Company, (i) any payment due in respect of
indebtedness of the Company, whether outstanding at the date of execution of this Subordinated Note
Indenture or thereafter incurred, created, or assumed, (a) in respect of money borrowed (including
any financial derivative, hedging or futures contract or similar instrument)



6









 







and (b) evidenced by
securities, debentures, bonds, notes or other similar instruments issued by the Company which, by
their terms, are senior or senior subordinated debt securities including, without limitation, all
obligations under its indentures with various trustees; (ii) all capital lease obligations; (iii)
all obligations issued or assumed as the deferred purchase price of property, all conditional sale
obligations and all obligations of the Company under any title retention agreement (but excluding
trade accounts payable arising in the ordinary course of business and long-term purchase
obligations); (iv) all obligations for the reimbursement of any letter of credit, banker’s
acceptance, security purchase facility or similar credit transaction; (v) all obligations of the
type referred to in clauses (i) through (iv) above of other persons the payment of which the
Company is responsible or liable as obligor, guarantor or otherwise; and (vi) all obligations of
the type referred to in clauses (i) through (v) above of other persons secured by any lien on any
property or asset of the Company (whether or not such obligation is assumed by the Company), except
for (1) any such indebtedness that is by its terms subordinated to or pari passu with the Junior
Subordinated Notes and (2) any unsecured indebtedness between or among the Company or its
Affiliates. Such Senior Indebtedness shall continue to be entitled to the benefits of the
subordination provisions contained in Article Thirteen irrespective of any amendment, modification
or waiver of any term of such Senior Indebtedness.



     “Special Record Date” for the payment of any Defaulted Interest on the Junior Subordinated
Notes of any series means a date fixed by the Trustee pursuant to Section 305.



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



     “Trust Agreement”, when used with respect to a Securities Trust, means the agreement or
instrument that governs the affairs of such Securities Trust.



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, and any reference
herein to the Trust Indenture Act or a particular provision thereof shall mean such Trust Indenture
Act or provision, as the case may be, as amended or replaced from time to time.



     “Trust Securities” means the securities issued by a Securities Trust evidencing the entire
beneficial interest therein.



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



     “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.”



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Section 102. 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 Officer’s Certificate
stating that all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.



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



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



          (ii) 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;



          (iii) 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



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



Section 103. Form of Documents Delivered to Trustee.




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



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



8









 







York law, in reliance on an opinion of New York counsel, which may be an opinion contemporaneously
delivered to a third party or parties and shall expressly permit such reliance.



          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 104. Acts of Holders.




     (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders in person or by agent
duly appointed in writing. 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 601) 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 in a capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority.



     (c) The principal amount and serial numbers of Junior Subordinated Notes held by any Person,
and the date of holding the same, shall be proved by the Security Register.



     (d) Any request, demand, authorization, direction, notice, consent, election, waiver or other
Act of the Holder of any Junior Subordinated Note shall bind every future Holder of the same Junior
Subordinated Note and the Holder of every Junior Subordinated Note 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 Junior Subordinated Note.



     (e) The fact and date of execution of any such instrument or writing and the authority of the
Person executing the same may also be proved in any other manner which the Trustee deems
sufficient; and the Trustee may in any instance require further proof with respect to any of the
matters referred to in this Section.



     (f) If the Company shall solicit from the Holders of Junior Subordinated Notes of any series
any Act, the Company may, at its option, by Board Resolution, fix in advance a record date for the
determination of Holders of Junior Subordinated Notes entitled to take such Act, but the Company
shall have no obligation to do so. Any such record date shall be fixed at the Company’s
discretion. If such a record date is fixed, such Act may be sought or given before or



9









 







after the record date, but only the Holders of record at the close of business on such record date shall be
deemed to be Holders of Junior Subordinated Notes for the purpose of determining whether Holders of
the requisite proportion of Junior Subordinated Notes of such series Outstanding have authorized or
agreed or consented to such Act, and for that purpose the Junior Subordinated Notes of such series
Outstanding shall be computed as of such record date.



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




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



          (1) the Trustee by any Holder of a Junior Subordinated Note or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the
Trustee at its Corporate Trust Office, Attention: Corporate Trustee Administration Department, or
transmitted by facsimile transmission or other direct written electronic means to such telephone
number or other electronic communications address as the Trustee shall from time to time designate,
or transmitted by registered or certified mail, return receipt requested, or
overnight courier guaranteeing next day delivery, charges prepaid, to the Trustee, at its
Corporate Trust Office,



          (2) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and transmitted by facsimile
transmission or other direct written electronic means to such telephone number or other electronic
communications address as the Trustee shall from time to time designate, or transmitted by
registered or certified mail, return receipt requested, or overnight courier guaranteeing next day
delivery, charges prepaid, to the Company addressed to the attention of its Secretary, at One
Market, Spear Tower, Suite 2400, San Francisco, CA 94105, or at any other address previously
furnished in writing to the Trustee by the Company.



Section 106. Notice to Holders of Junior Subordinated Notes; Waiver.




          Except as otherwise expressly provided herein, where this Indenture provides for notice to
Holders of Junior Subordinated Notes of any event, such notice shall be sufficiently given 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, and not earlier
than the earliest date, prescribed for the giving of such Notice.



          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.
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 of Junior



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Subordinated Notes shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.



Section 107. Conflict With Trust Indenture Act.




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



Section 108. 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 109. 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 110. Separability Clause.




          In case any provision in this Indenture or the Junior Subordinated Notes 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 111. Benefits of Indenture.




          Nothing in this Indenture or the Junior Subordinated Notes, express or implied, shall give to
any Person, other than the parties hereto, their successors hereunder and the Holders of Junior
Subordinated Notes and, to the extent provided in Section 1403, the holders of Senior Indebtedness
or Trust Securities, any benefit or any legal or equitable right, remedy or claim under this
Indenture.



Section 112. Governing Law.




          This Indenture and the Junior Subordinated Notes shall be governed by, and construed in
accordance with, the internal laws of the State of New York, without regard to principles of
conflicts of law.



Section 113. Legal Holidays.




          In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Junior
Subordinated Note shall not be a Business Day, then (notwithstanding any other provision of this
Indenture or of the Junior Subordinated Notes) payment of interest or principal (and premium, if
any) need not be made on such date, but may be made on the next succeeding Business Day, except
that, if such Business Day is in the next succeeding calendar year, such payment shall be made on
the immediately preceding Business Day, in each case with the same force and effect as if made on
the Interest Payment Date or Redemption Date, or at the



11









 







Stated Maturity, provided that no interest
shall accrue on the amount so payable for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.



Section 114. Appointment of Agent for Service.




          By the execution and delivery of this Indenture, the Company hereby appoints the Trustee as
its agent upon which process may be served in any legal action or proceeding which may be
instituted in any Federal or State court in the Borough of Manhattan, New York City, arising out of
or relating to the Junior Subordinated Notes or this Indenture. Service of process upon such agent
at the office of such agent at                                                                        
         , Attention: Corporate Trustee Administration
Department (or such other address in the Borough of Manhattan, New York City, as may be the
Corporate Trust Office of the Trustee), and written
notice of such service to the Company by the Person serving the same addressed as provided in
Section 105, shall be deemed in every respect effective service of process upon the Company in any
such legal action or proceeding, and the Company hereby submits to the jurisdiction of any such
court in which any such legal action or proceeding is so instituted. Such appointment shall be
irrevocable so long as the Holders of Junior Subordinated Notes shall have any rights pursuant to
the terms thereof or of this Indenture until the appointment of a successor by the Company with the
consent of the Trustee and such successor’s acceptance of such appointment. The Company further
agrees to take any and all action, including the execution and filing of any and all such documents
and instruments, as may be necessary to continue such designation and appointment of such agent or
successor.



          By the execution and delivery of this Indenture, the Trustee hereby agrees to act as such
agent and undertakes promptly to notify the Company of receipt by it of service of process in
accordance with this Section.



ARTICLE TWO




Forms of Junior Subordinated Notes




Section 201. Forms Generally.




          The Junior Subordinated Notes of each series shall be in substantially the form appended to
the supplemental indenture authorizing such series, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by this Indenture, and
may have such letters, numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Junior Subordinated Notes, as
evidenced by their execution of the Junior Subordinated Notes.



          The Junior Subordinated Notes of each series shall be issuable in registered form without
coupons.



          The definitive Junior Subordinated Notes may be printed, typewritten, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all



12









 







as determined by the officers
executing such Junior Subordinated Notes, as evidenced by their execution of such Junior
Subordinated Notes.



Section 202. Form of Trustee’s Certificate of Authentication.




          The form of the Trustee’s Certificate of Authentication for a series of Junior Subordinated
Notes shall be in substantially the form appended to the Supplemental Indenture authorizing such
series.



Section 203. Junior Subordinated Notes Issuable in the Form of a Global Security.




     (a) If the Company shall establish pursuant to Section 301 that the Junior Subordinated Notes
of a particular series are to be issued in whole or in part in the form of one or more Global
Securities, then the Company shall execute and the Trustee shall, in accordance with Section 302
and the Company Order delivered to the Trustee thereunder, authenticate and deliver such Global
Security or Securities, which (i) shall represent, and shall be denominated in an amount equal to
the aggregate principal amount of the Outstanding Junior Subordinated Notes of such series to be
represented by such Global Security or Securities, (ii) may provide that the aggregate amount of
Outstanding Junior Subordinated Notes represented thereby may from time to time be increased or
reduced to reflect exchanges, (iii) shall be registered in the name of the Depositary for such
Global Security or Securities or its nominee, (iv) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary’s instruction and (v) shall bear a legend in accordance
with the requirements of the Depositary.



     (b) Notwithstanding any other provision of this Section 203 or of Section 303, subject to the
provisions of paragraph (c) below, unless the terms of a Global Security expressly permit such
Global Security to be exchanged in whole or in part for individual Junior Subordinated Notes, a
Global Security may be transferred, in whole but not in part and in the manner provided in Section
303, only to a nominee of the Depositary for such Global Security, or to the Depositary, or to a
successor Depositary for such Global Security selected or approved by the Company, or to a nominee
of such successor Depositary.



     (c) (1) If at any time the Depositary for a Global Security notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Security or if at any time the
Depositary for the Junior Subordinated Notes for such series shall no longer be eligible or in good
standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, the Company shall appoint a successor Depositary with respect to such Global Security.
If a successor Depositary for such Global Security is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of
individual Junior Subordinated Notes of such series in exchange for such Global Security, will
authenticate and deliver individual Junior Subordinated Notes of such series of like tenor and
terms in definitive form in an aggregate principal amount equal to the principal amount of the
Global Security in exchange for such Global Security.



          (2) The Company may at any time and in its sole discretion determine that the Junior
Subordinated Notes of any series issued or issuable in the form of one or more Global



13









 







Securities shall no longer be represented by such Global Security or Securities. In such event the Company
will execute, and the Trustee, upon receipt of a Company Request for the authentication and
delivery of individual Junior Subordinated Notes of such series in exchange in whole or in part for
such Global Security, will authenticate and deliver individual Junior Subordinated Notes of such
series of like tenor and terms in definitive form in an aggregate principal amount equal to the
principal amount of such Global Security or Securities representing such series in exchange for
such Global Security or Securities.



          (3) If specified by the Company pursuant to Section 301 with respect to Junior Subordinated
Notes issued or issuable in the form of a Global Security, the Depositary for such Global Security
may surrender such Global Security in exchange in whole or in part for individual Junior
Subordinated Notes of such series of like tenor and terms in definitive form on such terms as are
acceptable to the Company and such Depositary. Thereupon the Company shall execute, and the
Trustee shall authenticate and deliver, without service charge, (A) to each Person specified by
such Depositary a new Junior Subordinated Note or Notes of the same series of like tenor and terms
and of any authorized denomination as requested by such Person in aggregate principal amount equal
to and in exchange for such Person’s beneficial interest in the Global Security; and (B) to such
Depositary a new Global Security of like tenor and terms and in an authorized denomination equal to
the difference, if any, between the principal amount of the surrendered Global Security and the
aggregate principal amount of Junior Subordinated Notes delivered to Holders thereof.



          (4) In any exchange provided for in any of the preceding three paragraphs, the Company will
execute and the Trustee will authenticate and deliver individual Junior Subordinated Notes in
definitive form in authorized denominations. Upon the exchange of the entire principal amount of a
Global Security for individual Junior Subordinated Notes, such Global Security shall be cancelled
by the Trustee. Except as provided in the preceding paragraph, Junior Subordinated Notes issued in
exchange for a Global Security pursuant to this Section shall be registered in such names and in
such authorized denominations as the Depositary for such Global Security, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the Trustee. Provided that
the Company and the Trustee have so agreed, the Trustee shall deliver such Junior Subordinated
Notes to the Persons in whose names the Junior Subordinated Notes are registered.



          (5) Any endorsement of a Global Security to reflect the amount, or any increase or decrease in
the amount, or changes in the rights of Holders, of Outstanding Junior Subordinated Notes
represented thereby shall be made in such manner and by such Person or Persons as shall be
specified therein or in the Company Order to be delivered pursuant to Section 302 with respect
thereto. Subject to the provisions of Section 302, the Trustee shall deliver and redeliver any
such Global Security in the manner and upon instructions given by the Person or Persons specified
therein or in the applicable Company Order. If a Company Order pursuant to Section 302 has been,
or simultaneously is, delivered, any instructions by the Company with respect to such Global
Security shall be in writing but need not be accompanied by or contained in an Officer’s
Certificate and need not be accompanied by an Opinion of Counsel.



14









 





ARTICLE THREE




The Junior Subordinated Notes




Section 301. Amount Unlimited; Issuable in Series.




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



          The Junior Subordinated Notes may be issued in one or more series. There may be established,
pursuant to one or more indentures supplemental hereto or in a Board Resolution, or in an Officer’s
Certificate pursuant to a Supplemental Indenture or a Board Resolution, prior to the issuance of
Junior Subordinated Notes of any series,



          (1) the title of the Junior Subordinated Notes of the series (which shall distinguish the
Junior Subordinated Notes of the series from Junior Subordinated Notes of all other series);



          (2) any limit upon the aggregate principal amount of the Junior Subordinated Notes of the
series which may be authenticated and delivered under this Indenture (except for Junior
Subordinated Notes authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Junior Subordinated Notes of the series pursuant to Sections 203, 303,
304, 907 or 1107);



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



          (4) the date or dates on which the principal of the Junior Subordinated Notes of the series is
payable or any formula or other method or other means by which such date or dates shall be
determined, by reference to an index or other fact or event ascertainable outside of this Indenture
or otherwise (without regard to any provisions for redemption, prepayment, acceleration, purchase
or extension) and the right, if any, to extend the Maturity of the Junior Subordinated Notes of
such series, and the duration of any such extension;



          (5) the rate or rates at which the Junior Subordinated Notes of the series shall bear
interest, if any (including the rate or rates at which overdue principal shall bear interest, if
different from the rate or rates at which such Junior Subordinated Notes shall bear interest prior
to Maturity, and if applicable, the rate or rates at which overdue premium or interest shall bear
interest, if any), or any method by which such rate or rates shall be determined, or any formula or
other method or other means by which such rate or rates shall be determined, by reference to an
index or other fact or event ascertainable outside of this Indenture or otherwise, the date or
dates from which such interest shall accrue, the Interest Payment Dates on which such interest
shall be payable, the Regular Record Date for the interest payable on Junior Subordinated Notes on
any
Interest Payment Date and the basis upon which interest shall be calculated if other than that
of a 360-day year consisting of twelve 30-day months, and the right, if any, to extend the interest
payment periods and the duration of any such extension;



15









 





          (6) the place or places where the principal of (and premium, if any) and interest, if any, on
Junior Subordinated Notes of the series shall be payable;



          (7) the methods by which (i) registration of transfer of Junior Subordinated Notes of such
series may be effected, (ii) exchanges of Junior Subordinated Notes of such series may be effected
and (iii) notices and demands to or upon the Company in respect of the Junior Subordinated Notes of
such series and this Indenture may be made, given, furnished, filed or served, if other than as
provided in Section 105; the Note Registrar and any Paying Agent or Agents for such series; and, if
such is the case, that the principal of such Junior Subordinated Notes shall be payable without the
presentment or surrender thereof;



          (8) if the time for the giving of redemption notices for such series of Junior Subordinated
Notes shall be other than as provided in Section 1104, such different time, and the period or
periods within which or the date or dates on which, the price or prices at which and the terms and
conditions upon which the Junior Subordinated Notes of such series may be redeemed, in whole or in
part, at the option of the Company (including, without limitation, any provision for the payment of
a “make-whole”, yield-maintenance or similar premium in connection with the redemption of Junior
Subordinated Notes of such series during a “no-call” or other period during which such Junior
Subordinated Notes are generally not subject to optional redemption by the Company) and any
restrictions on such redemptions;



          (9) the obligation or obligations, if any, of the Company to redeem, purchase or repay the
Junior Subordinated Notes of such series pursuant to any sinking fund or analogous provision or at
the option of a Holder thereof and the period or periods within which or the date or dates on
which, the price or prices at which and the terms and conditions upon which, Junior Subordinated
Notes of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation, and applicable exceptions to the requirements of Section 1104 in the case of mandatory
redemption or redemption or repayment at the option of the Holder;



          (10) the denominations in which Junior Subordinated Notes of the series shall be issuable;



          (11) the currency or currencies, including composite currencies, in which payment of the
principal of and premium, if any, and interest, if any, on the Junior Subordinated Notes of such
series shall be payable (if other than in Dollars); it being understood that, for purposes of
calculations under this Indenture, any amounts denominated in a currency other than Dollars or in a
composite currency shall be converted to Dollar equivalents by calculating the amount of Dollars
which could have been purchased by the amount of such other currency based on such quotations or
methods of determination as shall be specified pursuant to this clause (10);



          (12) if the principal of or premium, if any, or interest, if any, on the Junior Subordinated
Notes of such series are to be payable, at the election of the Company or a Holder
thereof, in a coin or currency other than that in which the Junior Subordinated Notes are
stated to be payable, the coin or currency in which payment of any amount as to which such election
is made will be payable, the period or periods within which, and the terms and conditions upon



16









 







which, such election may be made; it being understood that, for purposes of calculations under this
Indenture, any such election shall be required to be taken into account, in the manner contemplated
in clause (10) of this paragraph, only after such election shall have been made;



          (13) if the principal of or premium, if any, or interest, if any, on the Junior Subordinated
Notes of such series are to be payable, or are to be payable at the election of the Company or a
Holder thereof, in securities or other property, the type and amount of such securities or other
property, or the formula or other method or other means by which such amount shall be determined,
and the period or periods within which, and the terms and conditions upon which, any such election
may be made; it being understood that all calculations under this Indenture shall be made on the
basis of the fair market value of such securities or the fair value of such other property, in
either case determined as of the most recent practicable date, except that, in the case of any
amount of principal or interest that may be so payable at the election of the Company or a Holder,
if such election shall not yet have been made, such calculations shall be made on the basis of the
amount of principal or interest, as the case may be, that would be payable if no such election were
made;



          (14) if the amount of payments of principal of (and premium, if any) or interest (including
Additional Interest) on the Junior Subordinated Notes of the series may be determined with
reference to an index or formula, the manner in which such amounts shall be determined;



          (15) any deletions from, modifications of or additions to the Events of Default or covenants
of the Company as provided herein pertaining to the Junior Subordinated Notes of the series, and
any change in the rights of the Trustee or Holders of such series pursuant to Section 901 or 902;



          (16) any additions to the definitions currently set forth in this Indenture with respect to
such series;



          (17) whether the Junior Subordinated Notes of the series shall be issued in whole or in part
in the form of a Global Security or Securities; the terms and conditions, if any, upon which such
Global Security or Securities may be exchanged in whole or in part for certificated Junior
Subordinated Notes of such series and of like tenor of any authorized denomination and the
circumstances under which such exchange may occur, if other than in the manner provided for in
Section 203; the Depositary for such Global Security or Securities; and the form of any legend or
legends to be borne by any such Global Security in addition to or in lieu of the legend referred to
in Section 203;



          (18) to the extent not established pursuant to clause (16) of this paragraph, any limitations
on the rights of the Holders of the Junior Subordinated Notes of such series to transfer or
exchange such Junior Subordinated Notes or to obtain the registration of transfer thereof; and if a
service charge will be made for the registration of transfer or exchange of Junior Subordinated
Notes of such series, the amount or terms thereof;



          (19) the right, if any, of the Company to extend the interest payment periods of such series
of Junior Subordinated Notes, including the maximum duration of any such extension or extensions,
the Additional Interest, if any, payable on such Junior Subordinated Notes during



17









 







any extension of
the interest payment period and any notice (which shall include notice to the Trustee) that must be
given upon the exercise of such right to extend interest payment periods;



          (20) any restriction or condition on the transferability of such Junior Subordinated Notes;
and



          (21) if other than the entire principal amount thereof, the portion of the principal amount of
Junior Subordinated Notes of such series which shall be payable upon declaration of acceleration of
the Maturity thereof pursuant to Section 502;



          (22) the terms, if any, pursuant to which the Junior Subordinated Notes of such series may be
converted into or exchanged for shares of capital stock or other securities of the Company or any
other Person;



          (23) the obligations or instruments, if any, which shall be considered to be Eligible
Obligations in respect of the Junior Subordinated Notes of such series denominated in a currency
other than Dollars or in a composite currency, and any additional or alternative provisions for the
reinstatement of the Company’s indebtedness in respect of such Junior Subordinated Notes after the
satisfaction and discharge thereof as provided in Section 401;



          (24) any exceptions to Section 113, or variation in the definition of Business Day, with
respect to the Junior Subordinated Notes of such series; and



          (25) any other terms of the series.



     All Junior Subordinated Notes of any one series shall be substantially identical except as to
the date or dates from which interest, if any, shall accrue and denomination and except as may
otherwise be provided in the terms of such Junior Subordinated Notes determined or established as
provided above. All Junior Subordinated Notes of any one series need not be issued at the same
time and, unless otherwise provided, a series may be reopened for issuances of additional Junior
Subordinated Notes of such series.



Section 302. Execution, Authentication, Delivery and Dating.




     The Junior Subordinated Notes shall be executed on behalf of the Company by any two of the
following: the President, the Chief Executive Officer, any Vice President, the Chief Financial
Officer, the Treasurer or any Assistant Treasurer. The corporate seal of the Company may be
affixed thereto or reproduced thereon and attested by any Authorized Officer, the Secretary of the
Company or any Assistant Secretary of the Company. The signature of any of these officers on the
Junior Subordinated Notes may be manual or facsimile.



     Junior Subordinated Notes bearing the manual or facsimile signatures of individuals who were
at the time relevant to the authorization thereof 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 Junior Subordinated Notes or did
not hold such offices at the date of such Junior Subordinated Notes.



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     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Junior Subordinated Notes of any series executed by the Company to the Trustee
for authentication, together with a Company Order for the authentication and delivery of such
Junior Subordinated Notes, and the Trustee, in accordance with the Company Order, shall
authenticate and deliver such Junior Subordinated Notes. If all of the Junior Subordinated Notes
of any series are not to be issued at one time and if the supplemental indenture establishing such
series shall so permit, such Company Order may set forth procedures acceptable to the Trustee for
the issuance of such Junior Subordinated Notes and determining the terms of particular Junior
Subordinated Notes of such series, such as interest rate, maturity date, date of issuance and date
from which interest shall accrue. In authenticating Junior Subordinated Notes hereunder, and
accepting the additional responsibilities under this Indenture in relation to such Junior
Subordinated Notes, the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon:



          (1) an Opinion of Counsel, to the effect that the form and terms of such Junior Subordinated
Notes or the manner of determining such terms have been established in conformity with the
provisions of this Indenture; and



          (2) an Officer’s Certificate stating, to the knowledge of the signer of such certificate, that
no Event of Default with respect to any of the Junior Subordinated Notes shall have occurred and be
continuing.


The Trustee shall not be required to authenticate such Junior Subordinated Notes if the issue of
such Junior Subordinated Notes pursuant to this Indenture will affect the Trustee’s own rights,
duties or immunities under the Junior Subordinated Notes and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.




     If all the Junior Subordinated Notes of any series are not to be issued at one time, it shall
not be necessary to deliver an Opinion of Counsel and Officer’s Certificate at the time of issuance
of each such Junior Subordinated Note, but such opinion and certificate shall be delivered at or
before the time of issuance of the first Junior Subordinated Note of such series to be issued.



     Each Junior Subordinated Note shall be dated the date of its authentication.



     No Junior Subordinated Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose unless there appears on such Junior Subordinated Note a certificate
of authentication substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Junior Subordinated Note shall be conclusive evidence, and
the only evidence, that such Junior Subordinated Note has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.



Section 303. Registration, Registration of Transfer and Exchange.




     The Company shall cause to be kept at the office of the Security Registrar designated pursuant
to this Section 303 or Section 1002 a register (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 Junior Subordinated Notes and of transfers of Junior Subordinated Notes. The



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Trustee is hereby initially appointed as Security Registrar for the purpose of registering Junior
Subordinated Notes and transfers of Junior Subordinated Notes as herein provided.



     Subject to Section 203, upon surrender for registration of transfer of any Junior Subordinated
Note of any series at the office or agency maintained for such purpose for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Junior Subordinated Notes of the same series, Stated
Maturity and original issue date, of any authorized denominations and of like tenor and aggregate
principal amount.



     Subject to Section 203, Junior Subordinated Notes of any series may be exchanged, at the
option of the Holder, for Junior Subordinated Notes of the same series, Stated Maturity and
original issue date, of any authorized denominations and of like tenor and aggregate principal
amount, upon surrender of the Junior Subordinated Notes to be exchanged at any such office or
agency.



     Whenever any Junior Subordinated Notes are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Junior Subordinated Notes that the
Holder making the exchange is entitled to receive.



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



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



     No service charge shall be made for any registration of transfer or exchange of Junior
Subordinated Notes, 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 Junior Subordinated Notes, other than exchanges pursuant to Section 304, 907 or 1107
not involving any transfer.



     The Company shall not be required (i) to issue, to register the transfer of or to exchange
Junior Subordinated Notes of any series during a period of 15 days immediately preceding the date
notice is given identifying the serial numbers of the Junior Subordinated Notes of that series
called for redemption, or (ii) to issue, to register the transfer of or to exchange any Junior
Subordinated Notes so selected for redemption in whole or in part, except the unredeemed
portion of any Junior Subordinated Note being redeemed in part.



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




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Section 304. Mutilated, Destroyed, Lost and Stolen Junior Subordinated Notes.




     If any mutilated Junior Subordinated Note is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a new Junior
Subordinated Note of the same series, Stated Maturity and original issue date, and of like tenor
and principal amount and bearing a number not contemporaneously outstanding.



     If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Junior Subordinated Note 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 Junior Subordinated Note has
been acquired by a bona fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Junior Subordinated
Note, a new Junior Subordinated Note of the same series, Stated Maturity and original issue date,
and of like tenor and principal amount and bearing a number not contemporaneously outstanding.



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



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



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



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



Section 305. Payment of Interest; Interest Rights Preserved.




     Unless otherwise provided as contemplated by Section 301 with respect to any series of Junior
Subordinated Notes, interest (including Additional Interest) on any Junior Subordinated Note that
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 Junior Subordinated Note (or one or more
Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest.



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     Any interest (including Additional Interest) on any Junior Subordinated Note of any series
that is payable, but is not punctually paid or duly provided for on any Interest Payment Date
(herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may
be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:



          (1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Junior Subordinated Notes 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 Junior Subordinated Note 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 to be mailed, first-class postage prepaid, to each Holder of
Junior Subordinated Notes of such series at the address of such Holder as it appears in the
Security Register, 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 Junior Subordinated Notes of
such series (or their respective Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the following Clause (2).




          (2) The Company may make payment of any Defaulted Interest (including Additional Interest, if
any) on the Junior Subordinated Notes of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Junior Subordinated Notes may be
listed, and upon such notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.




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



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Section 306. Persons Deemed Owners.




     Prior to due presentment of a Junior Subordinated Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name
such Junior Subordinated Note is registered as the absolute owner of such Junior Subordinated Note
for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section
305) interest (including Additional Interest, if any) on such Junior Subordinated Note and for all
other purposes whatsoever, whether or not such Junior Subordinated Note 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 307. Cancellation.




     All Junior Subordinated Notes 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 cancelled by the Trustee. The
Company may at any time deliver to the Trustee for cancellation any Junior Subordinated Notes
previously authenticated and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Junior Subordinated Notes so delivered shall be canceled by the Trustee. No
Junior Subordinated Notes shall be authenticated in lieu of or in exchange for any Junior
Subordinated Notes canceled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Junior Subordinated Notes held by the Trustee shall be disposed of in
accordance with a Company Order and the Trustee shall promptly deliver a certificate of disposition
to the Company.



Section 308. Computation of Interest.




     Except as otherwise specified as contemplated by Section 301 for Junior Subordinated Notes of
any series, interest on the Junior Subordinated Notes of each series shall be computed on the basis
of a 360-day year consisting of twelve 30-day months.



ARTICLE FOUR




Satisfaction and Discharge




     Section 401. Satisfaction and Discharge of Junior Subordinated Notes.



     Any Junior Subordinated Note or Junior Subordinated Notes, or any portion of the principal
amount thereof, shall be deemed to have been paid and no longer Outstanding for all purposes of
this Indenture, and the entire indebtedness of the Company in respect thereof shall be satisfied
and discharged, if there shall have been irrevocably deposited with the Trustee or any Paying Agent
(other than the Company), in trust:



     (a) money in an amount which shall be sufficient, or



     (b) in the case of a deposit made prior to the Maturity of such Junior Subordinated Notes or
portions thereof, Eligible Obligations, which shall not contain provisions permitting the
redemption or other prepayment thereof at the option of the issuer thereof, the principal of and



23









 







the interest on which when due, without any regard to reinvestment thereof, will provide moneys
which, together with the money, if any, deposited with or held by the Trustee or such Paying Agent,
shall be sufficient, or



     (c) a combination of (a) or (b) which shall be sufficient to pay when due the principal of and
premium, if any, and interest, if any, due and to become due on such Junior Subordinated Notes or
portions thereof; provided, however, that in the case of the provision for payment or redemption of
less than all the Junior Subordinated Notes of any series, such Junior Subordinated Notes or
portions thereof shall have been selected by the Security Registrar as provided herein and, in the
case of a redemption, the notice requisite to the validity of such redemption shall have been given
or irrevocable authority shall have been given by the Company to the Trustee to give such notice,
under arrangements satisfactory to the Trustee; and provided, further, that the Company shall have
delivered to the Trustee and such Paying Agent:




     (x) if such deposit shall have been made prior to the Maturity of such Junior
Subordinated Notes, a Company Order stating that the money and Eligible Obligations
deposited in accordance with this Section shall be held in trust, as provided in Section
403;




     (y) if Eligible Obligations shall have been deposited, an opinion of an independent
public accountant of nationally recognized standing or a firm of independent public
accountants of nationally recognized standing, selected by the Company, to the effect that
the other requirements set forth in clause (b) above have been satisfied; and




     (z) if such deposit shall have been made prior to the Maturity of such Junior
Subordinated Notes, an Officer’s Certificate stating the Company’s intention that, upon
delivery of such Officer’s Certificate, its indebtedness in respect of such Junior
Subordinated Notes or portions thereof will have been satisfied and discharged as contemplated in this Section.




     Upon the deposit of money or Eligible Obligations, or both, in accordance with this Section,
together with the documents required by clauses (x), (y) and (z) above, the Trustee shall, upon
Company Request, acknowledge in writing that such Junior Subordinated Notes or portions thereof are
deemed to have been paid for all purposes of this Indenture and that the entire indebtedness of the
Company in respect thereof has been satisfied and discharged as contemplated in this Section. In
the event that all of the conditions set forth in the preceding paragraph shall have been satisfied
in respect of any Junior Subordinated Notes or portions thereof except that, for any reason, the
Officer’s Certificate specified in clause (z) (if otherwise required) shall not have been
delivered, such Junior Subordinated Notes or portions thereof shall nevertheless be deemed to have
been paid for all purposes of this Indenture, and the Holders of such Junior Subordinated Notes or
portions thereof shall nevertheless be no longer entitled to the benefits of this Indenture (other
than with respect to such deposit) or of any of the covenants of the Company under Article X
(except the covenants contained in Sections 1002 and 1003) or any other covenants made in respect
of such Junior Subordinated Notes or portions thereof as
contemplated by Section 301, but the indebtedness of the Company in respect of such Junior
Subordinated Notes or portions thereof shall not be deemed to have been satisfied and discharged
prior to Maturity for any other purpose; and, upon Company Request, the Trustee shall



24









 







acknowledge
in writing that such Junior Subordinated Notes or portions thereof are deemed to have been paid for
all purposes of this Indenture.



     If payment at Stated Maturity of less than all of the Junior Subordinated Notes of any series
is to be provided for in the manner and with the effect provided in this Section, the Security
Registrar shall select such Junior Subordinated Notes, or portions of principal amount thereof, in
the manner specified by Section 1103 for selection for redemption of less than all the Junior
Subordinated Notes of a series .



     In the event that Junior Subordinated Notes which shall be deemed to have been paid for
purposes of this Indenture, and, if such is the case, in respect of which the Company’s
indebtedness shall have been satisfied and discharged, all as provided in this Section, do not
mature and are not to be redeemed within the 60-day period commencing with the date of the deposit
of moneys or Eligible Obligations, as aforesaid, the Company shall, as promptly as practicable,
give a notice, in the same manner as a notice of redemption with respect to such Junior
Subordinated Notes, to the Holders of such Junior Subordinated Notes to the effect that such
deposit has been made and the effect thereof.



     Notwithstanding that any Junior Subordinated Notes shall be deemed to have been paid for
purposes of this Indenture, as aforesaid, the obligations of the Company and the Trustee in respect
of such Junior Subordinated Notes under Sections 303, 304, 607, 614, 1002, 1003 and 1104 and this
Article shall survive.



     The Company shall pay, and shall indemnify the Trustee or any Paying Agent with which Eligible
Obligations shall have been deposited as provided in this Section against, any tax, fee or other
charge imposed on or assessed against such Eligible Obligations or the principal or interest
received in respect of such Eligible Obligations, including, but not limited to, any such tax
payable by any entity deemed, for tax purposes, to have been created as a result of such deposit.



     Anything herein to the contrary notwithstanding, (a) if, at any time after a Junior
Subordinated Note would be deemed to have been paid for purposes of this Indenture, and, if such is
the case, the Company’s indebtedness in respect thereof would be deemed to have been satisfied and
discharged, pursuant to this Section (without regard to the provisions of this paragraph), the
Trustee or any Paying Agent, as the case may be, shall be required to return the money or Eligible
Obligations, or combination thereof, deposited with it as aforesaid to the Company or its
representative under any applicable federal or state bankruptcy, insolvency or other similar law,
such Junior Subordinated Note shall thereupon be deemed retroactively not to have been paid and any
satisfaction and discharge of the Company’s indebtedness in respect thereof shall retroactively be
deemed not to have been effected, and such Junior Subordinated Note shall be deemed to remain
Outstanding and (b) any satisfaction and discharge of the Company’s indebtedness in respect of any
Junior Subordinated Notes shall be subject to the provisions of Section 403.



Section 402. 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 Junior Subordinated Notes herein



25









 







expressly provided for) and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when



          (1) no Junior Subordinated Notes remain Outstanding hereunder;




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




          (3) the Company has delivered to the Trustee an Officer’s 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;



provided, however, that if, in accordance with the last paragraph of Section 401, any Junior
Subordinated Note previously deemed to have been paid for purposes of this Indenture, shall be
deemed retroactively not to have been so paid, this Indenture shall thereupon be deemed
retroactively not to have been satisfied and discharged, as aforesaid, and to remain in full force
and effect, and the Company shall execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.




     In the event there are Junior Subordinated Notes of two or more series hereunder, the Trustee
shall be required to execute an instrument acknowledging satisfaction and discharge of this
Indenture only if requested to do so with respect to Junior Subordinated Notes of all series as to
which it is Trustee and if the other conditions thereto are met. In the event there are two or
more Trustees hereunder, then the effectiveness of any such instrument shall be conditioned upon
receipt of such instruments from all Trustees hereunder.



     If, subsequent to the date a discharge is effected pursuant to this Section 402, Additional
Interest (in excess of that established as of the date such discharge is effected) becomes payable
in respect of the series of Junior Subordinated Notes discharged, in order to preserve the benefits
of the discharge established hereunder, the Company shall irrevocably deposit or cause to be
irrevocably deposited in accordance with the provisions of this Section 402, within ten Business
Days prior to the date the first payment in respect of any portion of such excess Additional
Interest becomes due, such additional funds as are necessary to satisfy the provisions of this
Section 402 as if a discharge were being effected as of the date of such subsequent deposit.
Failure to comply with the requirements of this paragraph shall result in the termination of the
benefits of the discharge established by this Section 402.



     Notwithstanding the satisfaction and discharge of this Indenture as aforesaid, the obligations
of the Company and the Trustee in respect of such Junior Subordinated Notes under Sections 303,
304, 607, 614, 1002, 1003 and 1104 and this Article shall survive.



Section 403. Application of Trust Money.




     Neither the Eligible Obligations nor the money deposited pursuant to Section 401, nor the
principal or interest payments on any such Eligible Obligations, shall be withdrawn or used for any
purpose other than, and shall be held in trust for, the payment of the principal of and premium, if
any, and interest, if any, on the Junior Subordinated Notes or portions of principal amount thereof
in respect of which such deposit was made, all subject, however, to the



26









 







provisions of Section 1003;
provided, however, that any cash received from such principal or interest payments on such Eligible
Obligations, if not then needed for such purpose, shall, to the extent practicable and upon Company
Request and delivery to the Trustee of the documents referred to in subclause (y) of clause (c) in
Section 401, be invested pursuant to a Company Order in Eligible Obligations of the type described
in clause (b) in Section 401 maturing at such times and in such amounts as shall be sufficient,
together with any other moneys and the proceeds of any other Eligible Obligations then held by the
Trustee, to pay when due the principal of and premium, if any, and interest, if any, due and to
become due on such Junior Subordinated Notes or portions thereof on and prior to the Maturity
thereof, and interest earned from such reinvestment shall be paid over to the Company as received;
and provided, further, that any moneys held in accordance with this Section on the Maturity of all
such Junior Subordinated Notes in excess of the amount required to pay the principal of and
premium, if any, and interest, if any, then due on such Junior Subordinated Notes shall be paid
over to the Company.



ARTICLE FIVE




Remedies




Section 501. Events of Default.




     “Event of Default”, wherever used herein with respect to Junior Subordinated Notes 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 or occasioned by the operation of Article Thirteen):



          (1) default in the payment of any interest upon any Junior Subordinated Note of that series
when it becomes due and payable on an Interest Payment Date other than at Maturity, including
Additional Interest (as defined in clause (ii) of the definition thereof) in respect thereof, and



          (2) continuance of such default for a period of thirty (30) days; provided, however, that (i)
a valid extension of the interest payment period by the Company pursuant to the terms of a
supplemental indenture authorizing the Junior Subordinated Notes of that series shall not
constitute a default in the payment of interest for this purpose and (ii) no such default shall be
deemed to exist if, on or prior to the date on which such interest became due, the Company shall
have made a payment sufficient to pay such interest pursuant to the Guarantee related to the
Trust Securities of the Securities Trust owning such series of Junior Subordinated Notes, and shall
have delivered a notice to the Trustee to that effect; or



          (3) default in payment of Additional Interest (as defined in clause (i) of the definition
thereof) and the continuance of such default for a period of thirty (30) days; or



          (4) default in the payment of the principal of, (or premium, if any) or interest (including
Additional Interest as defined in clause (ii) of the definition thereof) on any Junior Subordinated
Note of that series at its Maturity; provided, however, that no such default in the



27









 







payment of
principal (or premium, if any) or interest (including Additional Interest as defined in clause (ii)
of the definition thereof) shall be deemed to exist if, on or prior to the date such principal (and
premium, if any) or interest (including Additional Interest as defined in clause (ii) of the
definition thereof) became due, the Company shall have made a payment sufficient to pay such
principal (and premium, if any) or interest (including Additional Interest as defined in clause
(ii) of the definition thereof) pursuant to the Guarantee related to the Trust Securities of the
Securities Trust owning such series of Junior Subordinated Notes, and shall have delivered a notice
to the Trustee to that effect; or



          (5) default in the deposit of any sinking fund payment, when and as due by the terms of a
Junior Subordinated Note of that series and continuance of such default for a period of three
Business Days; or



          (6) 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 one or more series of Junior Subordinated Notes 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, or to the Company and the
Trustee by the Holders of at least 33% in principal amount of the Outstanding Junior Subordinated
Notes 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



          (7) the entry by a court having jurisdiction in the premises of (A) a decree or order for
relief in respect of the Company in an involuntary case or proceeding under any applicable federal
or state bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition by one or
more Persons other than the Company seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official for the
Company or for 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 90 consecutive days; or



          (8) the commencement by the Company of a case or proceeding under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to
the entry of a decree or order for relief in respect of the Company in a 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 similar
official of the Company or of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due; or



28









 







          (9) any other Event of Default provided with respect to Junior Subordinated Notes of that
series in the supplemental indenture authorizing such series.



Section 502. Acceleration of Maturity; Rescission and Annulment.




     If an Event of Default with respect to Junior Subordinated Notes 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 33% in principal amount of the Outstanding Junior Subordinated Notes of that series may
declare the principal amount (or such portion of the principal amount as may be specified in the
terms of that series) of all of the Junior Subordinated Notes of that series 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.



     At any time after such a declaration of acceleration with respect to Junior Subordinated Notes
of any series has been made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of not less than a
majority in principal amount of the Outstanding Junior Subordinated Notes of that series, by
written notice to the Company and the Trustee, may rescind and annul such declaration and its
consequences if



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




               (A) all overdue interest (including any Additional Interest) on all Junior Subordinated Notes
of that series,



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



               (C) to the extent that payment of such interest is lawful, interest upon overdue interest
(including any Additional Interest) at the rate or rates prescribed therefor in such Junior
Subordinated Notes, 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 any other amounts
due to the Trustee under Section 607; and



          (2) all Events of Default with respect to Junior Subordinated Notes of that series, other than
the non-payment of the principal of Junior Subordinated Notes of that series which have become due
solely by such declaration of acceleration, have been cured or waived as provided in Section 513.



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



29









 







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




     The Company covenants that if an Event of Default occurs under Section 501(1), (2), (3) or (4)
with respect to any Junior Subordinated Notes the Company will, upon demand of the Trustee, pay to
it, for the benefit of the Holders of such Junior Subordinated Notes, the whole amount then due and
payable on such Junior Subordinated Notes for principal (and premium, if any) and interest
(including Additional Interest, if any) and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal (and premium, if any) and on any overdue
interest (including Additional Interest, if any), at the rate or rates prescribed therefor in such
Junior Subordinated Notes, 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, and any other amounts due to the
Trustee under Section 607.



     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 so due and unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Junior Subordinated Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Junior Subordinated Notes, wherever
situated.



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




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



          (1) to file and prove a claim for the whole amount of principal (and premium, if any) and
interest owing and unpaid in respect of the Junior Subordinated Notes and to file such other papers
or documents as may be necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due to the Trustee under Section 607) and of the Holders
of Junior Subordinated Notes allowed in such judicial proceeding, and




30









 








          (2) 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 of Junior Subordinated Notes to
make such payments to the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders of Junior Subordinated Notes, to pay 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 607.




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



Section 505. Trustee May Enforce Claims Without Possession of Junior Subordinated Notes.




     All rights of action and claims under this Indenture or the Junior Subordinated Notes may be
prosecuted and enforced by the Trustee without the possession of any of the Junior Subordinated
Notes 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 Junior Subordinated Notes in respect of which such judgment has been
recovered.



Section 506. Application of Money Collected.




     Any money collected by the Trustee pursuant to this Article 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 premium, if any) or interest, upon presentation of the Junior Subordinated
Notes, and the notation thereon of the payment if only partially paid and upon surrender thereof if
fully paid:



          First: To the payment of all amounts due the Trustee under Section 607; and




          Second: Subject to Article Thirteen, to the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest (including Additional Interest, if any) on the
Junior Subordinated Notes 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 Junior Subordinated Notes for principal (and premium, if any) and interest
(including Additional Interest, if any), respectively; and




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



31









 







Section 507. Limitation on Suits.




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



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




          (2) the Holders of not less than 33% in principal amount of the Outstanding Junior
Subordinated Notes 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;




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




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




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



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




Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.




     Notwithstanding any other provision in this Indenture but subject to Article Thirteen, (1) the
Holder of any Junior Subordinated Notes shall have the right, which is absolute and unconditional,
to receive payment of the principal of (and premium, if any) and (subject to Section 305) interest
(including any Additional Interest) on such Junior Subordinated Note on the due dates expressed in
such Junior Subordinated Note (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; and (2) so long as the Junior Subordinated Notes of any series
are held by a Securities Trust, a registered holder of preferred securities issued by such
Securities Trust may institute a legal proceeding directly against the Company, without first
instituting a legal proceeding directly against or requesting or directing that action be taken by
the Property Trustee of such Securities Trust or any other Person, for enforcement of payment to
such registered holder of principal of or interest on Junior Subordinated Notes of such series
having a principal amount equal to the aggregate stated liquidation amount of such preferred
securities of such registered holder on or after the due dates therefor specified or provided for
in the Junior Subordinated Notes of such series.



32









 





Section 509. Restoration of Rights and Remedies.




     If the Trustee or any Holder of a Junior Subordinated Note 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 of Junior Subordinated Notes shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.



Section 510. Rights and Remedies Cumulative.




     Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Junior Subordinated Notes in the last paragraph of Section 304, no right
or remedy herein conferred upon or reserved to the Trustee or to the Holders of Junior Subordinated
Notes 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 511. Delay or Omission Not Waiver.




     No delay or omission of the Trustee or of any Holder of any Junior Subordinated Note to
exercise any right or remedy 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 of Junior Subordinated
Notes may be exercised from time to time, and as often as may be deemed expedient, by the Trustee
or by the Holders of Junior Subordinated Notes.



Section 512. Control by Holders of Junior Subordinated Notes.




     The Holders of not less than a majority in principal amount of the Outstanding Junior
Subordinated Notes 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 Junior Subordinated Notes of such series, provided
that



          (1) such direction shall not be in conflict with any rule of law or with this Indenture, and
could not involve the Trustee in personal liability in circumstances where reasonable indemnity
would not be adequate, and




          (2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.




33









 








Section 513. Waiver of Past Defaults.




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



          (1) in the payment of the principal of (or premium, if any) or interest (including Additional
Interest) on any Junior Subordinated Note of such series, or




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




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



Section 514. Undertaking for Costs.




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



Section 515. Waiver of 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
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.



34









 





ARTICLE SIX




The Trustee




Section 601. Certain Duties and Responsibilities.




     (a) Except during the continuance of an Event of Default with respect to Junior Subordinated
Notes of any series,



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




          (2) in the absence of bad faith on its part, the Trustee may, with respect to Junior
Subordinated Notes of such series, 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.




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



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



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



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



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



          (4) no provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its duties



35









 







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 602. Notice of Defaults.




     Within 90 days after the occurrence of any default hereunder with respect to the Junior
Subordinated Notes of any series, the Trustee shall transmit by mail to all Holders of Junior
Subordinated Notes of such series entitled to receive reports pursuant to Section 313(c) of the
Trust Indenture Act, notice of all defaults hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the case of a default in the
payment of the principal of (or premium, if any) or interest (including Additional Interest) on any
Junior Subordinated Note of such series or in the payment of any sinking fund installment with
respect to Junior Subordinated Notes of such series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or a trust
committee of directors or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders of Junior Subordinated Notes of such
series; and provided, further, that in the case of any default of the character specified in
Section 501(5) with respect to Junior Subordinated Notes of such series, no such notice to Holders
shall be given until at least 60 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 Junior Subordinated Notes of such series.



Section 603. Certain Rights of Trustee.




     Subject to the provisions of Section 601:



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



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



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



     (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;



36









 





     (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 of Junior Subordinated Notes
of any series pursuant to this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity 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 not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder; and



     (h) the Trustee shall not be charged with knowledge of any Event of Default with respect to
the Junior Subordinated Notes of any series for which it is acting as Trustee unless either (1) a
Responsible Officer of the Trustee assigned to the Corporate Trustee Administration Department and
agency group of the Trustee (or any successor division or department of the Trustee) shall have
actual knowledge of the Event of Default or (2) written notice of such Event of Default shall have
been given to the Trustee by the Company, any other obligor on such Junior Subordinated Notes or by
any Holder of such Junior Subordinated Notes.



Section 604. Not Responsible for Recitals or Issuance of Junior Subordinated Notes.




     The recitals contained herein and in the Junior Subordinated Notes (except the Trustee’s
certificates of authentication) shall be taken as the statements of the Company, and the Trustee or
any Authenticating Agent assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Junior Subordinated
Notes. The Trustee or any Authenticating Agent shall not be accountable for the use or application
by the Company of Junior Subordinated Notes or the proceeds thereof.



     The Trustee shall not be deemed to owe any fiduciary duty to the holders of Trust Securities
and shall be entitled to rely on the delivery to it of a written notice by a Person representing
himself to be a holder of a Trust Security to establish that such Person is such a holder. The
Trustee may conclusively rely on an Officer’s Certificate as evidence that the holders of the
necessary percentage of liquidation preference of Trust Securities have taken any action
contemplated hereunder and shall have no duty to investigate the truth or accuracy of any statement
contained therein.



Section 605. May Hold Junior Subordinated Notes.




     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



37









 







pledgee of
Junior Subordinated Notes and, subject to Sections 608 and 613, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.



Section 606. Money Held in Trust.




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



Section 607. Compensation and Reimbursement.




     The Company agrees



          (1) 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);




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




          (3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence, willful misconduct or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts hereunder, including the
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.




     As security for the performance of the obligations of the Company under this Section the
Trustee shall have a lien prior to the Junior Subordinated Notes upon all property and funds held
or collected by the Trustee as such, except funds held in trust for the payment of principal of,
premium, if any, or interest, if any, on particular Junior Subordinated Notes.



Section 608. Disqualification; Conflicting Interests.




     If the Trustee has or shall acquire any conflicting interest, within the meaning of the Trust
Indenture Act, it shall, within 90 days after ascertaining that it has such conflicting interest,
either eliminate such conflicting interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being trustee under                     .



38









 





Section 609. Corporate Trustee Required; Eligibility.




     There shall at all times be a Trustee hereunder which shall 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 exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000, subject to supervision or examination by federal or state
authority and qualified and eligible under this Article and otherwise permitted by the Trust
Indenture Act to act as Trustee under an Indenture qualified under the Trust Indenture Act. If
such corporation 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 corporation shall be deemed to be its combined
capital surplus as set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in this Article.



Section 610. Resignation and Removal; Appointment of Successor.




     (a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section 611.



     (b) The Trustee may resign at any time with respect to the Junior Subordinated Notes 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 611 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 Junior
Subordinated Notes of such series.



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



     (d) If at any time:



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



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



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


then, in any such case, (i) the Company, by a Board Resolution, may remove the Trustee with respect
to all Junior Subordinated Notes, or (ii) subject to Section 514, any Holder of a Junior


39









 






Subordinated Note who has been a bona fide Holder of a Junior Subordinated Note for at least six
months may, on behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the r(emoval o(f the Trustee with respect to all Junior Subordinated Notes 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 Junior Subordinated Notes
of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Junior Subordinated Notes of that or
those series (it being understood that any such successor Trustee may be appointed with
respect to the Junior Subordinated Notes of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Junior Subordinated Notes of any particular
series) and shall comply with the applicable requirements of Section 611. If, within one year
after such resignation, removal or incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Junior Subordinated Notes of any series shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Junior Subordinated Notes 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 611, become the successor Trustee with respect to the Junior Subordinated Notes of such
series and to that extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Junior Subordinated Notes of any series shall have been so
appointed by the Company or the Holders of Junior Subordinated Notes and accepted appointment in
the manner required by Section 611, any Holder of a Junior Subordinated Note who has been a bona
fide Holder of a Junior Subordinated Note 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 Junior Subordinated Notes of such series.



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



Section 611. Acceptance of Appointment by Successor.




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



40









 





     (b) In case of the appointment hereunder of a successor Trustee with respect to the Junior
Subordinated Notes of one or more (but not all) series, the Company, the retiring Trustee and each
successor Trustee with respect to the Junior Subordinated Notes of one or more series shall execute
and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Junior Subordinated Notes of that or those
series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Junior Subordinated Notes, 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 Junior Subordinated Notes of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Junior Subordinated
Notes of that or those series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Junior Subordinated Notes 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 paragraph (a) or (b) of this Section, as the case may
be.



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



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




     Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all 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 Junior Subordinated Notes 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 Junior Subordinated Notes so



41









 







authenticated with the
same effect as if such successor Trustee had itself authenticated such Junior Subordinated Notes.



Section 613. Preferential Collection of Claims Against Company.




     If and when the Trustee shall be or become a creditor of the Company (or any other obligor
upon the Junior Subordinated Notes), 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). For purposes of Section 311(b)(4) and (6) of the Trust Indenture Act:



     (a) “cash transaction” means any transaction in which full payment for goods or securities
sold is made within seven days after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks or bankers and payable upon demand; and



     (b) “self-liquidating paper” means any draft, bill of exchange, acceptance or obligation which
is made, drawn, negotiated or incurred by the Company (or any such obligor) for the purpose of
financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to, possession of, or a lien upon,
the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods,
wares or merchandise previously constituting the security, provided the security is received by the
Trustee simultaneously with the creation of the creditor relationship with the Company (or any such
obligor) arising from the making, drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.



Section 614. Appointment of Authenticating Agent.




     At any time when any of the Junior Subordinated Notes remain Outstanding the Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of Junior Subordinated
Notes that shall be authorized to act on behalf of the Trustee to authenticate Junior Subordinated
Notes of such series issued upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 304, and Junior Subordinated Notes 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 Junior Subordinated Notes 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



42









 







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



     Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to 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.



     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 mail
written notice of such appointment by first-class mail, postage prepaid, to all Holders of Junior
Subordinated Notes, if any, of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers
and duties of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under
the provisions of this Section.



     The 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 607.



     The provisions of Sections 306, 604 and 605 shall be applicable to each Authenticating Agent.



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



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



	 	 	 	 	 
	 	 	

 	 
	 	 	As Trustee 	 
	 	 	 
	 	By:  	 	 
	 	 	As Authenticating Agent 	 
	 	 	 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




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ARTICLE SEVEN




Holders’ Lists and Reports by Trustee and Company




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




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



     (a) semi-annually, not later than June 1 and December 1, in each year, a list, in such form as
the Trustee may reasonably require, containing all the information in the possession or control of
the Company, or any of its Paying Agents other than the Trustee, as to the names and addresses of
the Holders of Junior Subordinated Notes as of the preceding May 15 or November 15, 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 the most
recent Regular Record Date;


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




Section 702. Preservation of Information; Communications to Holders.




     (a) The Trustee shall comply with the obligations imposed on it pursuant to Section 312 of the
Trust Indenture Act.



     (b) Every Holder of Junior Subordinated Notes, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of
them shall be held accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Junior Subordinated Notes in accordance with Section 312(b) of the
Trust Indenture Act, regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant to a request made
under Section 312(b) of the Trust Indenture Act.



Section 703. Reports by Trustee.




     (a) Within 60 days after May 15 of each year commencing with the first May 15 after the first
issuance of Junior Subordinated Notes pursuant to this Indenture, if required by Section 313(a) of
the Trust Indenture Act, the Trustee shall transmit a brief report dated as of such May 15 with
respect to any of the events specified in such Section 313(a) that may have occurred since the
later of the immediately preceding May 15 and the date of this Indenture.



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



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



44









 





Section 704. Reports by Company.




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



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




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




          (3) transmit, within 30 days after the filing thereof with the Trustee, to the Holders of
Junior Subordinated Notes, in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, such summaries of any information, documents and reports required to be filed by the
Company pursuant to paragraphs (1) and (2) of this Section 704 as may be required by rules and
regulations prescribed from time to time by the Commission; and




          (4) notify the Trustee when and as the Junior Subordinated Notes of any series become admitted
to trading on any national securities exchange.




ARTICLE EIGHT




Consolidation, Merger, Conveyance, Transfer or Lease




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




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



          (1) in case the Company shall consolidate with or merge into another corporation or convey,
transfer or lease its properties and assets substantially as an entirety to
any Person, the corporation formed by such consolidation or into which the Company is merged
or the Person which acquires by conveyance or transfer, or which leases, the properties and assets
of the Company substantially as an entirety shall be a corporation organized and existing under the
laws of the United States of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the principal of




45









 







(and premium, if
any) and interest (including Additional Interest) on all the Junior Subordinated Notes and the
performance of every covenant of this Indenture on the part of the Company to be performed or
observed;




          (2) immediately after giving effect to such transactions, 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




          (3) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or lease complies with
this Article and that all conditions precedent herein provided for relating to such transaction
have been complied with.




     Notwithstanding the foregoing, the Company may merge or consolidate with or transfer all or
substantially all of its assets to an Affiliate that has no significant assets or liabilities and
was formed solely for the purpose of changing the jurisdiction of organization of the Company or
the form of organization of the Company; provided that the amount of indebtedness of the Company is
not increased thereby; and provided, further that the successor assumes all obligations of the
Company under this Indenture.



Section 802. Successor Corporation Substituted.




     Upon any consolidation by the Company with or merger by the Company into any corporation or
any conveyance, transfer or lease of the properties and assets of the Company substantially as an
entirety in accordance with Section 801, the successor corporation 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 corporation had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the Junior Subordinated Notes.



ARTICLE NINE




Supplemental Indentures




Section 901. Supplemental Indentures Without Consent of Holders.




     Without the consent of any Holders of Junior Subordinated Notes, the Company and the Trustee,
at any time and from time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:



          (1) to evidence the succession of another corporation to the Company and the assumption by any
such successor of the covenants of the Company herein and in the Junior Subordinated Notes; or




          (2) to add to the covenants of the Company for the benefit of the Holders of all or any series
of Junior Subordinated Notes (and if such covenants are to be for the benefit of



46









 







less than all series of Junior Subordinated Notes, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or power herein conferred upon the
Company; or



          (3) to add any additional Events of Default; or




          (4) to add to or change any of the provisions of this Indenture or to change or eliminate any
restrictions on the payment of principal (or premium, if any) on Junior Subordinated Notes,
provided any such action shall not adversely affect the interests of the Holders of Junior
Subordinated Notes of any series in any material respect; or




          (5) to change or eliminate any of the provisions of this Indenture with respect to any series
of Junior Subordinated Notes theretofore unissued; or




          (6) to secure the Junior Subordinated Notes; or




          (7) to establish the form or terms of Junior Subordinated Notes of any series as permitted by
Sections 201 and 301; or




          (8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee
with respect to the Junior Subordinated Notes 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 611(b); or




          (9) to supplement any of the provisions of this Indenture to such extent as shall be necessary
to permit or facilitate the discharge of any series of Junior Subordinated Notes pursuant to
Section 401; provided that any such action shall not adversely affect the interests of the Holders
of Junior Subordinated Notes of such series in any material respect; or




          (10) to cure any ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make provisions with respect to matters or
questions arising under this Indenture, provided such action shall not adversely affect the
interests of the Holders of Junior Subordinated Notes of any series or holders of outstanding Trust
Securities in any material respect; or




          (11) subject to Section 903(a), to make any change in Article Thirteen that would limit or
terminate the benefits available to any holder of Senior Indebtedness under such Article; or




          (12) to comply with the rules or regulations of any securities exchange or automated quotation
system on which any of the Junior Subordinated Notes may be listed or traded; or




          (13) to modify, eliminate or add to the provisions of this Indenture to such extent as shall
be necessary to effect the qualification of this Indenture under the Trust Indenture Act or under
any similar federal statute hereafter enacted, and to add to this Indenture such other provisions
as may be expressly required by the Trust Indenture Act.




47









 








Section 902. Supplemental Indentures With Consent of Holders.




     With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Junior Subordinated Notes 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 Junior
Subordinated Notes of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each Outstanding Junior
Subordinated Note affected thereby,



          (1) change the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Junior Subordinated Note, or reduce the principal amount thereof or the rate of
interest (including Additional Interest) thereon or any premium payable upon the redemption
thereof, or change the method of calculating the rate of interest thereon, 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




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




          (3) modify any of the provisions of this Section 902, Section 513 or Section 1008, 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 Junior Subordinated
Note affected thereby, provided, however, that this clause shall not be deemed to require the
consent of any Holder of a Junior Subordinated Note with respect to changes in the references to
“the Trustee” and concomitant changes in this Section and Section 1008, or the deletion of this
proviso, in accordance with the requirements of Sections 611(b) and 901(8), or




          (4) modify the provisions of this Indenture with respect to the subordination of the Junior
Subordinated Notes in a manner adverse to such Holder.




Section 903. General Provisions Regarding Supplemental Indenture.




     (a) A supplemental indenture entered into pursuant to Section 901 or Section 902 may not make
any change that adversely affects the rights under Article Thirteen of any holder of Senior
Indebtedness then outstanding unless the holders of such Senior Indebtedness (or any group or
representative thereof authorized to give a consent) consent to such change.



     (b) 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 Junior Subordinated Notes, or which modifies the rights of the Holders of Junior
Subordinated Notes of such series with respect to such covenant or other provision,



48









 




shall be deemed
not to affect the rights under this Indenture of the Holders of Junior Subordinated Notes of any
other series.




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



Section 904. 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 601) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee’s own rights, duties, immunities or
liabilities under this Indenture or otherwise.



Section 905. 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 Junior Subordinated Notes theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.



Section 906. Conformity With Trust Indenture Act.




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



Section 907. Reference in Junior Subordinated Notes to Supplemental Indentures.




     Junior Subordinated Notes 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 Junior Subordinated Notes 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 Junior Subordinated Notes of such series.



ARTICLE TEN




Covenants




Section 1001. Payment of Principal and Interest.




     The Company covenants and agrees for the benefit of each series of Junior Subordinated Notes
that it will duly and punctually pay the principal of (and premium, if any) and interest, including
Additional Interest (subject to the right of the Company to extend an interest payment



49









 




period
pursuant to the terms of a supplemental indenture authorizing the Junior Subordinated Notes of that
series), on the Junior Subordinated Notes of that series in accordance with the terms of the Junior
Subordinated Notes and this Indenture.




Section 1002. Maintenance of Office or Agency.




     The Company or its Affiliate will maintain an office or agency where Junior Subordinated Notes
of each series may be presented or surrendered for payment, where Junior Subordinated Notes 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 Junior Subordinated Notes of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency in respect of any series of Junior Subordinated Notes
or shall fail to furnish the Trustee with the address thereof, such presentations and surrenders of
Junior Subordinated Notes of that series may be made and 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 such respective presentations, surrenders, notices and demands.



     The Company may also from time to time designate one or more other offices or agencies where
the Junior Subordinated Notes 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. The Company
will give prompt written notice to the Trustee of any such designation or rescission and of
any change in the location of any such other office or agency.



Section 1003. Money for Junior Subordinated Notes Payments to be Held in Trust.




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



     Whenever the Company shall have one or more Paying Agents for any series of Junior
Subordinated Notes, it will, prior to each due date of the principal of (and premium, if any) or
interest (including Additional Interest, if any) on any Junior Subordinated Notes of that series,
deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest
(including Additional Interest, if any) so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest (including Additional
Interest, if any), and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.



     The Company will cause each Paying Agent for any series of Junior Subordinated Notes other
than the Trustee to execute and deliver to the Trustee an instrument in which such Paying



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Agent
shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent
will:




          (1) hold all sums held by it for the payment of the principal of (and premium, if any) or
interest (including Additional Interest, if any) on Junior Subordinated Notes of that 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;




          (2) give the Trustee notice of any default by the Company (or any other obligor upon the
Junior Subordinated Notes of that series) in the making of any payment of principal of (and
premium, if any) or interest (including Additional Interest, if any) on the Junior Subordinated
Notes of that series; and




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




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



     Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or interest (including Additional
Interest, if any) on any Junior Subordinated Note of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest (including Additional Interest, if
any) has become due and payable shall be paid to the Company on Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such Junior Subordinated
Note 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 of general circulation in New
York City 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 1004. Additional Interest.




     If the Junior Subordinated Notes of a series provide for the payment of Additional Interest
(for purposes of this Section 1004, as defined in clause (i) of the definition thereof) to the
Holders of such Junior Subordinated Notes, then the Company shall pay to each Holder of such
Securities the Additional Interest as provided therein.



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     Except as otherwise provided in or pursuant to this Indenture, if the Junior Subordinated
Notes of a series provide for the payment of Additional Interest, at least 10 days prior to the
first Interest Payment Date with respect to that series of Junior Subordinated Notes upon which
such Additional Interest shall be payable (or, if the Junior Subordinated Notes of that series
shall not bear interest prior to Maturity, the first day on which a payment of principal and any
premium is made), and at least 10 days prior to each date of payment of principal and any premium
or interest if there has been any change with respect to the matters set forth in the
below-mentioned Officer’s Certificate, the Company will furnish the Trustee and the Company’s
Paying Agents, if other than the Trustee or the Company, with an Officer’s Certificate stating the
amount of the Additional Interest payable per minimum authorized denomination of such Junior
Subordinated Notes (and, if such Additional Interest is payable only with respect to particular
Junior Subordinated Notes, then the names of the Holders of such Junior Subordinated Notes).



Section 1005. Corporate Existence.




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



Section 1006. Limitations on Dividend and Certain Other Payments.




     The Company covenants, for the benefit of the Holders of each series of Junior Subordinated
Notes, that, subject to the next succeeding sentence, (a) the Company shall not declare or pay any
dividend or make any distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock, and (b) the Company shall not make
any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt
securities (including guarantees other than the Guarantee with respect to the series of Trust
Securities, if any, related to such series of Junior Subordinated Notes) issued by the Company
which rank pari passu with or junior to the Junior Subordinated Notes, (a) if at such time the
Company shall have given notice of its election to extend an interest payment period for such
series of Junior Subordinated Notes and such extension shall be continuing, (b) if at such time the
Company shall be in default with respect to its payment or other obligations under the Guarantee
with respect to the series of Trust Securities, if any, related to such series of Junior
Subordinated Notes, or (c) if at such time an Event of Default hereunder with respect to such
series of Junior Subordinated Notes shall have occurred and be continuing. The preceding sentence,
however, shall not restrict (i) any of the actions described in the preceding sentence resulting
from any reclassification of the Company’s capital stock or the exchange or conversion of one class
or series of the Company’s capital stock for another class or series of the Company’s capital
stock, or (ii) the purchase of fractional interests in shares of the Company’s capital stock
pursuant to the conversion or exchange provisions of such capital stock or the security being
converted or exchanged.



Section 1007. Statement as to Compliance.




     (a) The Company shall deliver to the Trustee, within 120 days after the end of each fiscal
year, a written statement, which need not comply with Section 102, signed by the principal
executive officer, the principal financial officer or the principal accounting officer of the
Company, as to his or her knowledge of the Company’s compliance with all conditions and



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covenants
under this Indenture. For purposes of this Section 1007, such compliance shall be determined
without regard to any period of grace or requirement of notice under this Indenture.




     (b) The Company shall deliver to the Trustee, no later than the Business Day on which the
event occurs, written notice of the liquidation, dissolution or winding-up of a Securities Trust if
such liquidation, dissolution or winding-up would occur earlier than the Stated Maturity of the
Junior Subordinated Notes owned by such Securities Trust.



     (c) The Company shall deliver to the Trustee, within five days after the occurrence thereof,
written notice of any event which after notice or lapse of time or both would become an Event of
Default pursuant to Section 501.



Section 1008. Waiver of Certain Covenants.




     The Company may omit in any particular instance to comply with any term, provision or
condition set forth in Sections 1005 and 1006 with respect to the Junior Subordinated Notes of any
series if before the time for such compliance the Holders of at least a majority in principal
amount of the Outstanding Junior Subordinated Notes 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.



ARTICLE ELEVEN




Redemption of Junior Subordinated Notes




Section 1101. Applicability of Article.




     Junior Subordinated Notes 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 301 for Junior Subordinated Notes of any series) in accordance with this
Article.



Section 1102. Election to Redeem; Notice to Trustee.




     The election of the Company to redeem any Junior Subordinated Notes shall be evidenced by a
Board Resolution or an Officer’s Certificate. The Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee
and the related Property Trustee), notify the Trustee and the related Property Trustee in writing
of such Redemption Date and of the principal amount of Junior Subordinated Notes of such series to
be redeemed. In the case of any redemption of Junior Subordinated Notes (i) prior to the
expiration of any restriction on such redemption provided in the terms of such Junior Subordinated
Notes or elsewhere in this Indenture, or (ii) pursuant to an election of the Company which is
subject to a condition specified in the terms of such Junior Subordinated Notes, the Company shall
furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction or
condition.



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Section 1103. Selection by Trustee of Junior Subordinated Notes to be Redeemed.




     If the Junior Subordinated Notes are registered in the name of only one Holder, any partial
redemptions shall be pro rata. If the Junior Subordinated Notes are held in definitive form by
more than one Holder and if less than all the Junior Subordinated Notes of any series are to be
redeemed, the particular Junior Subordinated Notes to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Junior Subordinated
Notes of such series not previously called for redemption, by lot or other such method as the
Trustee shall deem fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Junior Subordinated Notes of that series
or any integral multiple thereof) of the principal amount of Junior Subordinated Notes of such
series of a denomination larger than the minimum authorized denomination for Junior Subordinated
Notes of that series.



     The Trustee shall promptly notify the Company in writing of the Junior Subordinated Notes
selected for redemption and, in the case of any Junior Subordinated Notes selected for partial
redemption, the principal amount thereof to be redeemed.



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



Section 1104. Notice of Redemption.




     Unless otherwise indicated in the supplemental indenture relating to any series of Junior
Subordinated Notes, notice of redemption shall be given in the manner provided in Section 106 to
the Holders of Junior Subordinated Notes to be redeemed not less than 30 nor more than 60 days
prior to the Redemption Date.



     All notices of redemption shall state:



          (1) the Redemption Date,




          (2) the Redemption Price,




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




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




          (5) the place or places where such Junior Subordinated Notes are to be surrendered for payment
of the Redemption Price, and




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




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     Unless otherwise specified with respect to any series of Junior Subordinated Notes, in
accordance with Section 301, with respect to any redemption of Junior Subordinated Notes at the
election of the Company or any redemption which is contingent on the occurrence or nonoccurrence of
an event or condition which cannot be ascertained prior to the time a
redemption notice is required to be given hereunder, such notice may state that such
redemption shall be conditional upon receipt by the Trustee or the Paying Agent or Agents for such
Junior Subordinated Notes, on or prior to the date fixed for such redemption, of money sufficient
to pay the Redemption Price of such Junior Subordinated Notes and accrued interest, if any, thereon
to the Redemption Date (or direction from the Company to apply such money for the payment of such
Junior Subordinated Notes, if such money shall have been deposited with the Trustee or Paying Agent
or Agents upon the condition that the Trustee or Paying Agent or Agents will apply such money only
at the direction of the Company) and that if such money shall not have been so received (or if such
money shall have been received but the Trustee or the Paying Agent or Agents have been directed by
the Company not to apply such money to redeem such Junior Subordinated Notes) such notice shall be
of no force or effect and the Company shall not be required to redeem such Junior Subordinated
Notes; provided, however, that conditional notice shall not be given if upon the giving of notice,
such Junior Subordinated Notes shall be deemed to have been paid in accordance with Section 401.
In the event that such notice of redemption contains such a condition and such money is not so
received, or the Trustee or Paying Agent or Agents have been directed by the Company not to apply
such money to the redemption of such Junior Subordinated Notes, the redemption shall not be made,
and within a reasonable time thereafter notice shall be given, in the manner in which the notice of
redemption was given, that such money was not so received or that the Trustee or Paying Agent or
Agents have been directed by the Company not to redeem such Junior Subordinated Notes and such
redemption was not required to be made, and the Trustee or Paying Agent or Agents for the Junior
Subordinated Notes otherwise to have been redeemed shall promptly return to the Holders thereof any
of such Junior Subordinated Notes which had been surrendered for payment upon such redemption.



     Notice of redemption of Junior Subordinated Notes to be redeemed at the election of the
Company, and any notice of non-satisfaction of a condition for redemption as aforesaid, 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. Notice of mandatory redemption of Junior Subordinated Notes shall be given by the
Trustee in the name and at the expense of the Company.



Section 1105. Deposit of Redemption Price.




     Except as otherwise provided in a supplemental indenture pursuant to Section 301, prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company or its Affiliate is acting as its own Paying Agent, segregate and hold in trust as provided
in Section 1003) an amount of money sufficient to pay the Redemption Price of and accrued interest,
if any, on all the Junior Subordinated Notes which are to be redeemed on that date.



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Section 1106. Junior Subordinated Notes Payable on Redemption Date.




     Notice of redemption having been given as aforesaid, the Junior Subordinated Notes so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein
specified together with any accrued interest (including any Additional Interest) thereon,
and from and after such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Junior Subordinated Notes shall cease to bear interest.
Upon surrender of any such Junior Subordinated Note for redemption in accordance with such notice,
such Junior Subordinated Note shall be paid by the Company at the Redemption Price, together with
accrued interest, if any, and any Additional Interest to the Redemption Date; provided, however,
that, except as otherwise provided in a supplemental indenture pursuant to Section 301,
installments of interest on Junior Subordinated Notes whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Junior Subordinated Notes, 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 305.



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



Section 1107. Junior Subordinated Notes Redeemed in Part.




     Any Junior Subordinated Note that is to be redeemed only in part shall be surrendered at an
office or agency of the Company 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 Junior
Subordinated Note without service charge, a new Junior Subordinated Note of the same series, Stated
Maturity and original issue date 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 Junior Subordinated Note so surrendered.



ARTICLE TWELVE




Sinking Funds




Section 1201. Applicability of Article.




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



     The minimum amount of any sinking fund payment provided for by the terms of Junior
Subordinated Notes of any series is herein referred to as a “mandatory sinking fund payment”, and
any payment in excess of such minimum amount provided for by the terms of Junior Subordinated Notes
of any series is herein referred to as an “optional sinking fund payment”. If provided for by the
terms of Junior Subordinated Notes of any series, the cash amount of any



56









 




sinking fund payment may
be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Junior Subordinated Notes of any series as
provided for by the terms of Junior Subordinated Notes of such series.




Section 1202. Satisfaction of Sinking Fund Payments With Junior Subordinated Notes.




     The Company (1) may deliver Outstanding Junior Subordinated Notes of a series (other than any
previously called for redemption), and (2) may apply as a credit Junior Subordinated Notes of a
series which have been redeemed either at the election of the Company pursuant to the terms of such
Junior Subordinated Notes or through the application of permitted optional sinking fund payments
pursuant to the terms of such Junior Subordinated Notes, in each case in satisfaction of all or any
part of any sinking fund payment with respect to the Junior Subordinated Notes of such series
required to be made pursuant to the terms of such Junior Subordinated Notes as provided for by the
terms of such series; provided that such Junior Subordinated Notes have not been previously so
credited. Such Junior Subordinated Notes shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Junior Subordinated Notes for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.



Section 1203. Redemption of Junior Subordinated Notes for Sinking Fund.




     Not less than 60 days prior to each sinking fund payment date for any series of Junior
Subordinated Notes, the Company will deliver to the Trustee an Officer’s Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting Junior Subordinated Notes of
that series pursuant to Section 1202 and stating the basis for such credit and that such Junior
Subordinated Notes have not previously been so credited and will also deliver to the Trustee any
Junior Subordinated Notes to be so delivered. Not less than 30 days before each such sinking fund
payment date the Trustee shall select the Junior Subordinated Notes to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company in the manner
provided in Section 1104. Such notice having been duly given, the redemption of such Junior
Subordinated Notes shall be made upon the terms and in the manner stated in Sections 1106 and 1107.



ARTICLE THIRTEEN




Subordination




Section 1301. Junior Subordinated Notes Subordinate to Senior Indebtedness.




     The Company covenants and agrees, and each Holder of a Junior Subordinated Note, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article (subject to Article Four), the payment of the principal of,
premium, if any, and interest (including Additional Interest) on each and all of the Junior



57









 




Subordinated Notes are hereby expressly made subordinate and subject in right of payment to the
prior payment in full in cash of all Senior Indebtedness.




Section 1302. Payment of Proceeds Upon Dissolution, Etc.




     Upon any payment or distribution of assets of the Company to creditors upon any liquidation,
dissolution, winding-up, reorganization, assignment for the benefit of creditors, marshalling of
assets or liabilities or any bankruptcy, insolvency or similar proceedings of the Company (each
such event, if any, referred to as a “Proceeding”), the holders of Senior Indebtedness shall be
entitled to receive payment in full of all amounts due on or to become due on or in respect of all
Senior Indebtedness (including any interest accruing thereon after the commencement of any such
Proceeding, whether or not allowed as a claim against the Company in such Proceeding), before the
Holders of the Junior Subordinated Notes are entitled to receive any payment or distribution
(excluding any payment described in Section 1309) on account of the principal of, premium, if any,
or interest (including Additional Interest, if any) on the Junior Subordinated Notes or on account
of any purchase, redemption or other acquisition of Junior Subordinated Notes by the Company (all
such payments, distributions, purchases, redemptions and acquisitions, whether or not in connection
with a Proceeding, herein referred to, individually and collectively, as a “Payment”).



     In the event that, notwithstanding the foregoing, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, prohibited by the
foregoing shall be received by the Trustee or the Holders of the Junior Subordinated Notes before
all Senior Indebtedness is paid in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders of Senior



     Indebtedness or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any such Senior Indebtedness may have been issued, as their respective
interests may appear, as calculated by the Company, for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay all Senior Indebtedness in full in
accordance with its terms, after giving effect to any concurrent payment or distribution to or for
the holders of such Senior Indebtedness.



     For purposes of this Article, “assets of the Company” shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article with respect to the Junior
Subordinated Notes to the payment of all Senior Indebtedness that may at the time be
outstanding; provided, however, that (i) the Senior Indebtedness is assumed by the new
corporation, if any, resulting from any such reorganization or readjustment, and (ii) the rights of
the holders of the Senior Indebtedness are not, without the consent of such holders, altered by
such reorganization or readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided for in Article Eight hereof shall not be deemed
a dissolution, winding-up, liquidation or reorganization for the purposes of this



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Section 1302 if
such other corporation shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions stated in Article Eight hereof. Nothing in Section 1303 or in this
Section 1302 shall apply to claims of, or payments to, the Trustee under or pursuant to Section
607.




Section 1303. No Payment When Senior Indebtedness in Default.




     No payment of any principal, including redemption payments, if any, premium, if any, or
interest on (including Additional Interest) the Junior Subordinated Notes shall be made if



               (i) any Senior Indebtedness is not paid when due whether at the stated maturity of any such
payment or by call for redemption and any applicable grace period with respect to such default has
ended, with such default remaining uncured and such default has not been waived or otherwise ceased
to exist;



               (ii) the maturity of any Senior Indebtedness has been accelerated because of a default; or



               (iii) notice has been given of the exercise of an option to require repayment, mandatory
payment or prepayment or otherwise.



     In the event that, notwithstanding the foregoing, the Company shall make any Payment to the
Trustee or any Holder prohibited by the foregoing provisions of this Section, then in such event
such Payment shall be held in trust and paid over and delivered forthwith to the holders of the
Senior Indebtedness.



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



Section 1304. Payment Permitted if No Default.




     Nothing contained in this Article or elsewhere in this Indenture or in any of the Junior
Subordinated Notes shall prevent the Company, at any time except during the pendency of any
Proceeding referred to in Section 1302 hereof or under the conditions described in Section 1303
hereof, from making Payments. Nothing in this Article shall have any effect on the right of the
Holders or the Trustee to accelerate the maturity of the Junior Subordinated Notes upon the
occurrence of an Event of Default, but, in that event, no payment may be made in violation of the
provisions of this Article with respect to the Junior Subordinated Notes. If payment of the Junior
Subordinated Notes is accelerated because of an Event of Default, the Company shall promptly
notify the holders of the Senior Indebtedness (or their representatives) of such acceleration.



Section 1305. Subrogation to Rights of Holders of Senior Indebtedness.




     The rights of the Holders of the Junior Subordinated Notes shall be subrogated to the rights
of the holders of such Senior Indebtedness to receive payments and distributions of cash, property
and securities applicable to the Senior Indebtedness until the principal of, premium, if any, and
interest (including Additional Interest) on the Junior Subordinated Notes shall be paid in full.
For purposes of such subrogation, no payments or distributions to the holders of the



59









 




Senior
Indebtedness of any cash, property or securities to which the Holders of the Junior Subordinated
Notes or the Trustee would be entitled except for the provisions of this Article, and no payments
pursuant to the provisions of this Article to the holders of Senior Indebtedness by Holders of the
Junior Subordinated Notes or the Trustee, shall, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Junior Subordinated Notes, be deemed to be a
payment or distribution by the Company to or on account of the Senior Indebtedness.




Section 1306. Provisions Solely to Define Relative Rights.




     The provisions of this Article are and are intended solely for the purpose of defining the
relative rights of the Holders on the one hand and the holders of Senior Indebtedness on the other
hand. Nothing contained in this Article or elsewhere in this Indenture or in the Junior
Subordinated Notes is intended to or shall (a) impair, as among the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Junior Subordinated Notes, the
obligation of the Company, which is absolute and unconditional (and which, subject to the rights
under this Article of the holders of Senior Indebtedness, is intended to rank equally with all
other general obligations of the Company), to pay to the Holders of the Junior Subordinated Notes
the principal of, premium, if any, and interest (including Additional Interest) on the Junior
Subordinated Notes as and when the same shall become due and payable in accordance with their
terms; or (b) affect the relative rights against the Company of the Holders of the Junior
Subordinated Notes and creditors of the Company other than the holders of Senior Indebtedness; or
(c) prevent the Trustee or the Holder of any Junior Subordinated Note from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if
any, under this Article of the holders of Senior Indebtedness to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder or, under the conditions
specified in Section 1303, to prevent any payment prohibited by such Section or enforce their
rights pursuant to the penultimate paragraph in Section 1303.



Section 1307. Trustee to Effectuate Subordination.




     Each Holder of a Junior Subordinated Note by his acceptance thereof authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee his attorney-in-fact
for any and all such purposes, including, in the event of any dissolution, winding-up,
liquidation or reorganization of the Company, whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the timely filing of a claim for the unpaid balance of the indebtedness
of the Company owing to such Holder in the form required in such proceedings and the causing of
such claim to be approved.



Section 1308. No Waiver of Subordination Provisions.




     No right of any present or future holder of any Senior Indebtedness to enforce the
subordination provisions provided herein shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of the Company or by any act or any failure to act, in good
faith, by any such holder, or by any noncompliance by the Company with the terms, provisions



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and
covenants of this Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.




     Without in any way limiting the generality of the foregoing paragraph, the holders of Senior
Indebtedness may, at any time and from time to time, without the consent of or notice to the
Trustee or the Holders of the Junior Subordinated Notes, without incurring responsibility to the
Holders of the Junior Subordinated Notes and without impairing or releasing the subordination
provided in this Article or the obligations hereunder of the Holders of the Junior Subordinated
Notes to the holders of Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is outstanding; (ii) permit
the Company to borrow, repay and then reborrow any or all of the Senior Indebtedness; (iii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (iv) release any Person liable in any manner for the collection of Senior
Indebtedness; (v) exercise or refrain from exercising any rights against the Company and any other
Person; or (vi) apply any sums received by them to Senior Indebtedness.



Section 1309. Trust Moneys Not Subordinated.




     Notwithstanding anything contained herein to the contrary, payments from money held in trust
by the Trustee under Article Four for the payment of the principal of, premium, if any, and
interest (including Additional Interest) on any series of Junior Subordinated Notes shall not be
subordinated to the prior payment of any Senior Indebtedness or subject to the restrictions set
forth in this Article and no Holder of such Junior Subordinated Notes nor the Trustee shall be
obligated to pay over such amount to the Company, any holder of Senior Indebtedness (or a
designated representative of such holder) or any other creditor of the Company.



Section 1310. Notice to the Trustee.




     The Company shall give prompt written notice to a Responsible Officer of the Trustee of any
fact known to the Company that would prohibit the making of any payment of monies to or
by the Trustee in respect of the Junior Subordinated Notes pursuant to the provisions of this
Article. Notwithstanding the provisions of this Article or any other provision of this Indenture,
the Trustee shall not be charged with knowledge of the existence of any facts that would prohibit
the making of any payment of monies to or by the Trustee in respect of the Junior Subordinated
Notes pursuant to the provisions of this Article unless and until a Responsible Officer of the
Trustee shall have received written notice thereof at the Corporate Trust Office of the Trustee
from the Company or a holder or holders of Senior Indebtedness or from any trustee therefor; and
before the receipt of any such written notice, the Trustee, subject to the provisions of Section
601, shall be entitled in all respects to assume that no such facts exist; provided, however, that
if the Trustee shall not have received the notice provided for in this Section 1310 at least two
Business Days prior to the date upon which, by the terms hereof, any money may become payable for
any purpose (including, without limitation, the payment of the principal of (or premium, if any) or
interest on any Junior Subordinated Note), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to



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




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



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




     Upon any payment or distribution of assets of the Company referred to in this Article, the
Trustee, subject to the provisions of Section 601 hereof, and the Holders of the Junior
Subordinated Notes shall be entitled to rely upon any order or decree entered by any court of
competent jurisdiction in which such Proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent
or other Person making such payment or distribution, delivered to the Trustee or to the Holders of
Junior Subordinated Notes, for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of the Senior Indebtedness, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article, provided that the foregoing shall apply only if such court has been apprised of
the provisions of this Article.



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




     Subject to the provisions of Section 601, the Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness and shall not be liable to any such holders if it shall
in good faith mistakenly pay over or distribute to Holders of Junior Subordinated Notes or to the
Company or to any other Person cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article or otherwise.



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




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



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



Section 1314. Article Applicable to Paying Agents.




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



Section 1315. Reliance by Holders of Senior Indebtedness on Subordination Provisions.




     Each Holder by accepting a Junior Subordinated Note acknowledges and agrees that the foregoing
subordination provisions are, and are intended to be, an inducement and a consideration to each
holder of any Senior Indebtedness, whether such Senior Indebtedness was created or acquired before
or after the issuance of the Junior Subordinated Notes, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness and such holder of Senior Indebtedness shall be deemed
conclusively to have relied on such subordination provisions in acquiring and continuing to hold,
or to continue to hold, such Senior Indebtedness.



ARTICLE FOURTEEN




Miscellaneous Provisions




Section 1401. No Recourse Against Others.




     An incorporator or any past, present or future director, officer, employee or stockholder, as
such, of the Company shall not have any liability for any obligations of the Company under the
Junior Subordinated Notes or this Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation. By accepting a Junior Subordinated Note, each Holder shall
waive and release all such liability. Such waiver and release shall be part of the consideration
for the issue of the Junior Subordinated Notes.



Section 1402. Set-Off.




     Notwithstanding anything to the contrary in this Indenture or in any Junior Subordinated Note
of any series, prior to the dissolution of any Securities Trust that has issued Trust Securities
related to a series of Junior Subordinated Notes, the Company shall have the right to set-off and
apply against any payment it is otherwise required to make hereunder or thereunder with respect to
the principal of or interest (including any Additional Interest) on the Junior Subordinated Notes
of such series with and to the extent the Company has theretofore made, or is concurrently on the
date of such payment making, a payment with respect to the Trust Securities of the series related
to such series of Junior Subordinated Notes under the applicable Guarantee. Contemporaneously
with, or as promptly as practicable after, any such payment under such Guarantee, the Company shall
deliver to the Trustee an Officer’s Certificate (upon which the Trustee shall be entitled to rely
conclusively without any requirement to investigate the facts



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contained therein) to the effect that
such payment has been made and that, as a result of such payment, the corresponding payment under
the related series of Junior Subordinated Notes has been set-off in accordance with this Section
1402.




Section 1403. Assignment; Binding Effect.




     The Company shall have the right at all times to assign any of its rights or obligations under
this Indenture to a direct or indirect wholly-owned subsidiary of the Company, provided that, in
the event of any such assignment, the Company shall remain primarily liable for the performance of
all such obligations. This Indenture may also be assigned by the Company in connection with a
transaction described in Article Eight. This Indenture shall be binding upon and inure to the
benefit of the Company, the Trustee, the Holders, any Security Registrar, Paying Agent, and
Authenticating Agent and, to the extent specifically set forth herein, the holders of Senior
Indebtedness and their respective successors and assigns. The provisions of clause (2) of Section
508 and Section 1006 are for the benefit of the holders of the series of Trust Securities referred
to therein and, prior to the dissolution of the related Securities Trust, may be enforced by such
holders. A holder of a Trust Security shall not have the right, as such a holder, to enforce any
other provision of this Indenture.



Section 1404. Additional Interest.




     Whenever there is mentioned in this Indenture, in any context, the payment of the principal
of, premium, if any, or interest on, or in respect of, any Junior Subordinated Note of
any series, such mention shall be deemed to include mention of the payment of Additional
Interest provided for by the terms of such series of Junior Subordinated Notes to the extent that,
in such context, Additional Interest is, were or would be payable in respect thereof pursuant to
such terms, and express mention of the payment of Additional Interest in any provisions hereof
shall not be construed as excluding Additional Interest in those provisions hereof where such
express mention is not made.



     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.



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



	 	 	 	 	 
	 	PG&E CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	 	 
	 	Trustee 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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