exv4w12



 





EXHIBIT 4.12






INDENTURE




between




SYMETRA FINANCIAL CORPORATION,

as Company




and




U.S. BANK NATIONAL ASSOCIATION,

as Trustee




Dated as of October 10, 2007




Capital Efficient Notes due 2067














 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 1

	 
	 	 	 	 
	Definitions and Other Provisions of General Application

	 
	 	 	 	 
	Section 1.01. Definitions and Construction
	 	 	1	 
	Section 1.02. Compliance Certificates and Opinions
	 	 	18	 
	Section 1.03. Form of Documents Delivered to Trustee
	 	 	19	 
	Section 1.04. Acts of Holders
	 	 	19	 
	Section 1.05. Notices
	 	 	20	 
	Section 1.06. Notice to Holders; Waiver
	 	 	20	 
	Section 1.07. Headings and Table of Contents
	 	 	21	 
	Section 1.08. Severability
	 	 	21	 
	Section 1.09. Trust Indenture Act Controls
	 	 	21	 
	Section 1.10. Benefits of Indenture
	 	 	21	 
	Section 1.11. No Implied Obligations
	 	 	22	 
	Section 1.12. GOVERNING LAW
	 	 	22	 
	Section 1.13. Counterparts
	 	 	22	 
	 
	 	 	 	 
	ARTICLE 2

	 
	 	 	 	 
	The Notes

	 
	 	 	 	 
	Section 2.01. Form and Dating
	 	 	22	 
	Section 2.02. Terms of the Notes
	 	 	22	 
	Section 2.03. Rule 144A Global Notes
	 	 	36	 
	Section 2.04. Regulation S Temporary Global Notes
	 	 	37	 
	Section 2.05. General — Form of Securities
	 	 	38	 
	Section 2.06. Execution and Authentication; Issue Price; Aggregate Principal Amount
	 	 	39	 
	Section 2.07. Trustee, Security Registrar and Paying Agent
	 	 	40	 
	Section 2.08. Paying Agent to Hold Assets in Trust
	 	 	41	 
	Section 2.09. Replacement Notes
	 	 	42	 
	Section 2.10. Temporary Securities
	 	 	42	 
	Section 2.11. Cancellation
	 	 	42	 
	Section 2.12. Defaulted Interest
	 	 	43	 
	Section 2.13. Persons Deemed Owners
	 	 	44	 
	Section 2.14. CUSIP Numbers
	 	 	44	 
	Section 2.15. Deposit of Moneys
	 	 	44	 
	Section 2.16. Transfer and Exchange
	 	 	45	 
	Section 2.17. Book-Entry Provisions for Global Notes
	 	 	46	 
	Section 2.18. Restrictions on Transfer and Exchange of Notes
	 	 	47	 
	Section 2.19. Special Transfer Provisions
	 	 	52	 






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	 	 	Page	 
	ARTICLE 3

	 
	 	 	 	 
	Repayment of the Notes

	 
	 	 	 	 
	Section 3.01. Repayment
	 	 	53	 
	Section 3.02. Selection of Securities to be Repaid
	 	 	53	 
	Section 3.03. Notice of Repayment
	 	 	53	 
	Section 3.04. Deposit of Repayment Amount
	 	 	54	 
	Section 3.05. Payment of Notes Subject to Repayment
	 	 	54	 
	 
	 	 	 	 
	ARTICLE 4

	 
	 	 	 	 
	Satisfaction and Discharge

	 
	 	 	 	 
	Section 4.01. Satisfaction and Discharge of Indenture
	 	 	55	 
	Section 4.02. Application of Trust Funds; Indemnification
	 	 	57	 
	Section 4.03. Legal Defeasance and Discharge of Indenture
	 	 	57	 
	Section 4.04. Defeasance of Certain Obligations
	 	 	59	 
	 
	 	 	 	 
	ARTICLE 5

	 
	 	 	 	 
	Remedies

	 
	 	 	 	 
	Section 5.01. Events of Default
	 	 	60	 
	Section 5.02. Acceleration of Maturity; Rescission and Annulment
	 	 	61	 
	Section 5.03. Enforcement Events
	 	 	62	 
	Section 5.04. Trustee May File Proofs of Claim
	 	 	64	 
	Section 5.05. Trustee May Enforce Claims Without Possession of Notes
	 	 	64	 
	Section 5.06. Application of Money Collected
	 	 	65	 
	Section 5.07. Limitation on Suits
	 	 	65	 
	Section 5.08. Unconditional Right of Holders to Receive Principal, and Interest
	 	 	66	 
	Section 5.09. Restoration of Rights and Remedies
	 	 	66	 
	Section 5.10. Rights and Remedies Cumulative
	 	 	66	 
	Section 5.11. Delay or Omission Not Waiver
	 	 	66	 
	Section 5.12. Control by Holders
	 	 	67	 
	Section 5.13. Waiver of Past Defaults
	 	 	67	 
	Section 5.14. Undertaking for Costs
	 	 	67	 
	Section 5.15. Waiver of Stay or Extension Laws
	 	 	68	 
	Section 5.16. Notice of Defaults
	 	 	68	 
	 
	 	 	 	 
	ARTICLE 6

	 
	 	 	 	 
	The Trustee

	 
	 	 	 	 
	Section 6.01. Duties and Responsibilities of Trustee
	 	 	68	 
	Section 6.02. Reliance on Documents, Opinions, etc.
	 	 	70	 
	Section 6.03. No Responsibility for Recitals, etc.
	 	 	71	 






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	 	 	Page	 
	Section 6.04. Ownership of Notes
	 	 	71	 
	Section 6.05. Reports by Trustee to Holders
	 	 	71	 
	Section 6.06. Compensation and Indemnity
	 	 	72	 
	Section 6.07. Officers’ Certificate as Evidence
	 	 	72	 
	Section 6.08. Eligibility of Trustee
	 	 	72	 
	Section 6.09. Resignation or Removal of Trustee
	 	 	73	 
	Section 6.10. Successors
	 	 	73	 
	Section 6.11. Acknowledgement
	 	 	74	 
	Section 6.12. Merger, Consolidation, etc.
	 	 	74	 
	Section 6.13. Appointment of Authenticating Agent
	 	 	74	 
	 
	 	 	 	 
	ARTICLE 7

	 
	 	 	 	 
	Delivery of Certain Information

	 
	 	 	 	 
	Section 7.01. Delivery of Rule 144A Information and Annual Conference Call
	 	 	76	 
	Section 7.02. Reports
	 	 	76	 
	 
	 	 	 	 
	ARTICLE 8

	 
	 	 	 	 
	Successors

	 
	 	 	 	 
	Section 8.01. Merger, Consolidation, or Sale of Assets
	 	 	77	 
	Section 8.02. Successor Corporation Substituted
	 	 	78	 
	 
	 	 	 	 
	ARTICLE 9

	 
	 	 	 	 
	Amendments and Supplemental Indentures

	 
	 	 	 	 
	Section 9.01. Supplemental Indentures Without Consent of Holders
	 	 	78	 
	Section 9.02. Supplemental Indentures With Consent of Holders
	 	 	79	 
	Section 9.03. Effect of Supplemental Indentures
	 	 	81	 
	Section 9.04. Notation on Notes
	 	 	81	 
	Section 9.05. Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee
	 	 	81	 
	Section 9.06. Prohibition on Certain Amendments and Supplements
	 	 	81	 
	 
	 	 	 	 
	ARTICLE 10

	 
	 	 	 	 
	Covenants

	 
	 	 	 	 
	Section 10.01. Payment of Principal and Interest
	 	 	82	 
	Section 10.02. Maintenance of Office or Agency
	 	 	82	 
	Section 10.03. Money for Notes; Payments to Be Held in Trust
	 	 	82	 
	Section 10.04. Maintain Existence
	 	 	84	 
	Section 10.05. Statement by Officers as to Default
	 	 	84	 






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	 	 	Page	 
	ARTICLE 11

	 
	 	 	 	 
	Redemption of Notes

	 
	 	 	 	 
	Section 11.01. General
	 	 	84	 
	Section 11.02. Election to Redeem; Notice to Trustee
	 	 	84	 
	Section 11.03. Selection by Trustee of Notes to Be Redeemed
	 	 	85	 
	Section 11.04. Notice of Redemption
	 	 	85	 
	Section 11.05. Deposit of Redemption Price
	 	 	86	 
	Section 11.06. Notes Payable on Redemption Date
	 	 	86	 
	Section 11.07. Notes Redeemed in Part
	 	 	87	 
	 
	 	 	 	 
	ARTICLE 12

	 
	 	 	 	 
	Subordination

	 
	 	 	 	 
	Section 12.01. Agreement to Subordinate
	 	 	87	 
	Section 12.02. Default on Senior Indebtedness
	 	 	88	 
	Section 12.03. Liquidation; Dissolution; Bankruptcy
	 	 	88	 
	Section 12.04. Subrogation
	 	 	90	 
	Section 12.05. Trustee to Effectuate Subordination
	 	 	91	 
	Section 12.06. Notice by the Company
	 	 	91	 
	Section 12.07. Rights of the Trustee; Holders of Senior Indebtedness
	 	 	92	 
	Section 12.08. Subordination May Not Be Impaired
	 	 	93	 
	Section 12.09. Article Applicable to Paying Agents
	 	 	93	 
	Section 12.10. Defeasance of this Article
	 	 	93	 
	Section 12.11. Subordination Language to Be Included in Notes
	 	 	93	 
	 
	 	 	 	 
	ARTICLE 13

	 
	 	 	 	 
	Calculation Agency

	 
	 	 	 	 
	Section 13.01. Appointment of Calculation Agent
	 	 	94	 
	Section 13.02. Status of the Calculation Agent
	 	 	94	 
	Section 13.03. Fees and Expenses
	 	 	94	 
	Section 13.04. Rights and Liabilities of the Calculation Agent
	 	 	95	 
	Section 13.05. Duties of the Calculation Agent
	 	 	95	 
	Section 13.06. Termination, Resignation or Removal of the Calculation Agent
	 	 	95	 
	Section 13.07. Appointment of Successor Calculation Agent
	 	 	96	 
	Section 13.08. Indemnification
	 	 	96	 
	Section 13.09. Merger, Consolidation or Sale of Business by the Calculation Agent
	 	 	96	 






	 	 	 
	EXHIBITS:	 	 
	Exhibit A-1
	 	Form of Rule 144A Global Note or Regulation S Permanent Note
	Exhibit A-2
	 	Form of Regulation S Temporary Global Note
	Exhibit B
	 	Form of Legends for Notes






- iv -









 






	 	 	 
	EXHIBITS:	 	Page
	Exhibit C-1
	 	Form of Transfer Certificate Transfer to Regulation S Temporary Global Security or Regulation S Permanent

Global Security 
	Exhibit C-2
	 	Form of Transfer Certificate Transfer to Rule 144A Global Security
	Exhibit D
	 	Certificate of Beneficial Ownership
	Exhibit E
	 	Replacement Capital Covenant






- v -









 





     INDENTURE, dated as of October 10, 2007, between SYMETRA FINANCIAL CORPORATION, a corporation
organized under the laws of the State of Delaware (herein called the “Company”), having its
principal office at 777 108th Avenue NE, Bellevue, Washington 98004 and U.S. BANK
NATIONAL ASSOCIATION, as Trustee (together with any successor as Trustee hereunder, the “Trustee”)
having an office located at 1420 5th Avenue, 7th Floor, Seattle, Washington
98101.



RECITALS OF THE COMPANY




     WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance of up to $225,000,000 aggregate principal amount of its Capital Efficient
Notes due 2067 (the “Notes”) issuable as provided in this Indenture;



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



     NOW, THEREFORE, THIS INDENTURE WITNESSETH:



     For and in consideration of the premises and the purchase of the Notes by the Holders (as
defined below) thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Notes, as follows:



ARTICLE 1




Definitions and Other Provisions of General Application




     Section 1.01. Definitions and Construction.



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




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




     (2) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with United States GAAP, and, except as otherwise herein expressly
provided, the term “GAAP” with respect to any computation required or permitted hereunder
shall mean GAAP as are generally accepted at the date of such computation;




     (3) unless the context otherwise requires, any reference to “Article”, “Section” or
“Exhibit” refers to an Article or Section of or Exhibit to this Indenture;




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



 









 






     (5) all references used herein to the male gender shall include the female gender.



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



     “Additional Interest” means the interest, if any, that shall accrue on any interest on the
Notes the payment of which has not been made on the applicable Interest Payment Date and which
shall accrue at the rate per annum specified or determined as specified in Section 2.02(b) from the
applicable Interest Payment Date.



     “Additional
Notes” has the meaning set forth in Section 2.06(d).



     “Alternative Payment Mechanism” has the meaning set forth in Section 2.02(f)(i).



     “APM Commencement Date” means, with respect to any Deferral Period, the earlier of (i) the
first Interest Payment Date during such Deferral Period on which the Company elects to pay current
interest on the Notes or (ii) the fifth anniversary of the beginning of such Deferral Period.



     “APM Securities” means:




	 	(a)	 	Common Stock;
	 
	 	(b)	 	Mandatorily Convertible Preferred Stock;
	 
	 	(c)	 	Qualifying Non-Cumulative Perpetual Preferred Stock; and
	 
	 	(d)	 	Warrants exercisable for Common Stock;





provided that the Company may, without the consent of the Holders of the Notes, amend the
definition of APM Securities to eliminate Common Stock and/or Mandatorily Convertible Preferred
Stock from this definition if after the date of this Indenture, an accounting standard or
interpretive guidance of an existing standard issued by an organization or regulator that has
responsibility for establishing or interpreting accounting standards in the United States becomes
effective such that there is more than an insubstantial risk that the failure to do so would result
in a reduction in the Company’s earnings per share as calculated in accordance with generally
accepted accounting principles in the United States. The Company will promptly notify the Holders
of the Notes and the Trustee of any such change.



     “Applicable Procedures” means, with respect to any transfer or transaction involving a Global
Security or beneficial interest therein, the rules and procedures of the DTC, Euroclear and
Clearstream, as the case may be, in each case to the extent applicable to such transaction and as
in effect from time to time.



     “Applicable Rate” has the meaning set forth in Section 2.02(g)(ii).



- 2 -









 





     “Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 6.13 to
act on behalf of the Trustee to authenticate Notes, and shall initially be the Trustee.



     “Bankruptcy Event” means any of the events set forth in Section 5.01(3) or Section 5.01(4).



     “Board of Directors” means either the board of directors of the Company or any duly authorized
committee of that board duly authorized to act hereunder.



     “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, delivered to the Trustee.



     “Business Day” means any day, other than (i) a Saturday, Sunday or other day on which banking
institutions in The City of New York are authorized or required by law or executive order to remain
closed or (ii) on or after October 15, 2017, a day that is not a day on which dealings in deposits
in U.S. dollars are transacted in the London interbank market.



     “Calculation Agent” means U.S. Bank National Association, or any other firm appointed by the
Company, acting as calculation agent for the Notes.



     “Capital Stock” for any entity means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated)
shares issued by that entity.



     “Certificated Notes” means Notes that are in registered definitive form and that are not
Global Notes.



     “Clearstream” means Clearstream Banking, Société Anonyme.



     “Commercially Reasonable Efforts” has, with respect to the Scheduled Maturity Obligations, the
meaning set forth in Section 2.02(a)(vii), and with respect to the Alternative Payment Mechanism,
the meaning set forth in Section 2.02(f)(ix).



     “Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this instrument such
Commission is not existing, then its successor agency.



     “Common Stock” means the Company’s equity securities, including treasury stock and shares of
common stock sold pursuant the Company’s dividend reinvestment
plan, if any, and employee benefit plans, if any, a
security that ranks pari passu upon the Company’s liquidation, dissolution or winding up with the
Company’s common stock that tracks the performance of, or relates to the results of, a business,
unit or division of the Company, and any securities issued in exchange therefor in connection with
a merger, consolidation, binding share exchange, business combination, recapitalization or similar
event.



     “Common Stock Maximum Obligation” has the meaning set forth in Section 2.02(f)(ii).



- 3 -









 





     “Communication” has the meaning set forth in Section 13.04.



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



     “Company Request” or “Company Order” means a written request or order signed in the name of
the Company by (i) its chief executive officer, its president or a vice president and (ii) by its
treasurer, an assistant treasurer, its comptroller, its secretary or an assistant secretary, and
delivered to the Trustee.



     “Corporate Trust Office” means the office of the Trustee at which at any particular time this
Indenture shall be administered, which office, at the time of the execution of this Indenture, is
located, at 1420 5th Avenue, 7th Floor, Seattle, Washington 98101, Attention:
Symetra Financial Corporation, Capital Efficient Notes due 2067.



     “Covenant Defeasance” has the meaning set forth in Section 4.04.



     “Covered Debt” has the meaning assigned to such term in the Replacement Capital Covenant.



     “Current Price” means, for the Common Stock on any date, the closing sale price per share (or
if no closing sale price is reported, the average of the bid and ask prices or, if more than one in
either case, the average of the average bid and the average ask prices) on that date as reported in
composite transactions by the New York Stock Exchange or, if the Common Stock is not then listed on
the New York Stock Exchange, as reported by the principal U.S. securities exchange on which the
Common Stock is traded or quoted. If the Common Stock is not listed on any U.S. securities exchange
on the relevant date, the “Current Price” shall be the last quoted bid price for the Common Stock
in the over-the-counter market on the relevant date as reported by Pink Sheets LLC or a similar
organization. If the Common Stock is not so quoted, the “Current Price” shall be the average of the
mid-point of the last bid and ask prices for the Common Stock on the relevant date from each of at
least three nationally recognized independent investment banking firms selected by the Company for
this purpose. If the Common Stock is not so quoted, and if bid and ask prices for the Common Stock
are not available, the “Current Price” shall be determined by a nationally recognized independent
investment banking firm selected by the Company for this purpose.



     “Defaulted Interest” has the meaning specified in Section 2.12.



     “Deferral Period” means the period beginning on an Interest Payment Date with respect to which
the Company elects to defer Interest and ending on the earlier of (i) the tenth anniversary of that
Interest Payment Date and (ii) the next Interest Payment Date on which the Company has paid all
Deferred Interest (including Additional Interest thereon) and all other accrued and unpaid
Interest.



     “Deferred Interest” means the Interest that is deferred in accordance with the provisions of
Section 2.02(d).



- 4 -









 





     “Depositary” means, unless otherwise specified by the Company pursuant to Section 2.17(a), The
Depository Trust Company, New York, New York, or any successor thereto registered under the
Exchange Act, as amended, or other applicable statute or regulation.



     “Depositary Participant” means any member of, or participant in, the Depositary.



     “Distribution Compliance Period” means the period from and including the date hereof to and
including the date 40 days after the date hereof.



     “Distributions” means, as to a security or combination of securities, dividends, interest
payments or other income distributions to the holders thereof that are not Subsidiaries of the
Company.



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



     “Eligible Proceeds” means, with respect to each relevant Interest Payment Date, the net
proceeds (after underwriters’ or placement agents’ fees, commissions or discounts and other
expenses relating to the issuance) the Company has received during the 180-day period prior to such
Interest Payment Date from the issuance of APM Securities to persons that are not the Company’s
Subsidiaries.



     “Enforcement Event” has the meaning specified in Section 5.03.



     “Euroclear” means Euroclear S.A./N.V., and its successors or assigns, as operator of the
Euroclear system.



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



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and rules and
regulations promulgated by the Commission thereunder.



     “Final Maturity Date” means October 15, 2067.



     “Global Note” means a Note issued to evidence the Notes which 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 this Indenture and pursuant to a Company Order, which shall be
registered in the name of the Depositary or its nominee.



     “Holder” means a Person in whose name a Note is registered in the Note Register.



     “Indenture” means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more amendments or indentures supplemental hereto entered into
pursuant to the applicable provisions hereof.



     “Initial Purchasers” means the initial purchasers named in Schedule I to that certain purchase
agreement relating to the Notes, dated October 4, 2007, among the Company and J.P. Morgan
Securities Inc. and Lehman Brothers Inc., as representatives of the several Initial Purchasers.



- 5 -









 





     “Intent-Based Replacement Disclosure” has the meaning assigned to such term in the Replacement
Capital Covenant.



     “Interest” means both regularly scheduled interest payments and, to the extent applicable, any
Additional Interest.



     “Interest Payment Date” has the meaning set forth in Section 2.02(b).



     “Interest Period” means the period from and including any Interest Payment Date (or, in the
case of the first Interest Payment Date, October 10, 2007) to but excluding the next Interest
Payment Date.



     “Issue
Date” means October 10, 2007.


     “LIBOR Determination Date” means the second London Banking Day immediately preceding the first
day of the Relevant Period.



     “London Banking Day” means any day on which commercial banks are open for general business
(including dealings in deposits in U.S. dollars) in London, England.



     “Make-Whole Price” has the meaning set forth in Section 2.02(g)(ii).



     “Mandatorily Convertible Preferred Stock” has the meaning assigned to such term in the
Replacement Capital Covenant.



     “Market Disruption Event” means, for purposes of sales of APM Securities pursuant to the
Alternative Payment Mechanism or sales of Qualifying Capital Securities in connection with the
Scheduled Maturity Obligations, as applicable (collectively, the “Permitted Securities”), the
occurrence or existence of any of the following events or sets of circumstances:




     (i) the Company is required to obtain the consent or approval of its stockholders or a
regulatory body (including, without limitation, any insurance regulator or the securities
exchange) or governmental authority to issue Permitted Securities and it fails to obtain
such consent or approval notwithstanding its commercially reasonable efforts to obtain such
consent or approval;




     (ii) trading in securities generally, or shares of the Company’s securities
specifically, on the New York Stock Exchange or any other national securities exchange or
over-the-counter market on which Permitted Securities are then listed or traded shall have
been suspended or their settlement generally shall have been materially disrupted or minimum
prices shall have been established on any such exchange or market by the Commission, such
exchange or market or by any other regulatory body or governmental authority having
jurisdiction such that trading shall have been materially disrupted;




     (iii) a banking moratorium shall have been declared by the federal or state authorities
of the United States such that market trading in any of the Permitted Securities has been
materially disrupted or ceased;



- 6 -









 






     (iv) a material disruption shall have occurred in commercial banking or securities
settlement or clearance services in the United States such that market trading in any of the
Permitted Securities has been materially disrupted or ceased;




     (v) the United States shall have become engaged in hostilities, there shall have been
an escalation in hostilities involving the United States, there shall have been a
declaration of a national emergency or war by the United States or there shall have occurred
any other national or international calamity or crisis such that market trading in any of
the Permitted Securities has been materially disrupted or ceased;



     (vi) there shall have occurred such a material adverse change in general domestic or
international economic, political or financial conditions, including without limitation as a
result of terrorist activities, or the effect of international conditions on the financial
markets in the United States shall be such as to make it, in the Company’s reasonable
judgment, impracticable or inadvisable to proceed with the offer and sale of the Permitted
Securities;



     (vii) an event occurs and is continuing as a result of which the offering document for
the offer and sale of Permitted Securities would, in the Company’s reasonable judgment,
contain an untrue statement of a material fact or omit to state a material fact required to
be stated in that offering document or necessary to make the statements in that offering
document not misleading and either (a) the disclosure of that event, in the Company’s
reasonable judgment, would have a material adverse effect on its business or (b) the
disclosure relates to a previously undisclosed proposed or pending material business
transaction, the disclosure of which would impede its ability to consummate that
transaction; provided that no single suspension period described in this clause (vii) shall
exceed 90 consecutive days and multiple suspension periods described in this clause (vii)
shall not exceed an aggregate of 180 days in any 360-day period; or



     (viii) the Company reasonably believes that the offering document for the contemplated
offer and sale of registered Permitted Securities would not be in compliance with a rule or
regulation of the Commission, for reasons other than those referred to in clause (vii), and
the Company determines that it is unable to comply with such rule or regulation or such
compliance is unduly burdensome; provided that no single suspension period described in this
clause (viii) shall exceed 90 consecutive days and multiple suspension periods described in
this clause (viii) shall not exceed an aggregate of 180 days in any 360-day period.



     “Maturity” means the date on which the principal of the Notes or an installment of principal
becomes due and payable as herein provided, whether at the Scheduled Maturity Date, the Final
Maturity Date, or by declaration of acceleration, call for redemption or otherwise.



     “Note Register” means the register in which the Company, its agent or the Trustee provides for
the registration of Notes and transfers of Notes as herein provided.



     “Notes” has the meaning set forth in the recitals to this Indenture and more particularly
means any Notes authenticated and delivered under this Indenture.



- 7 -









 





     “Notice of Enforcement Event” has the meaning set forth in Section 5.03(1).



     “Notice of Redemption” has the meaning set forth in Section 11.04.



     “Notice of Repayment” has the meaning set forth Section 3.03.



     “Offering Memorandum” means the Offering Memorandum dated October 10, 2007, relating to the
sale of the Notes.



     “Officers’ Certificate” means a certificate signed by (i) the chief executive officer, the
president or a vice president, and (ii) the treasurer, an assistant treasurer, the comptroller, the
secretary or an assistant secretary, 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.



     “Original
Notes” has the meaning set forth in Section 2.06(d).



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




     (i) Notes theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;




     (ii) Notes for the payment or redemption of which money or evidences of indebtedness
(if permitted hereby) 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 Notes; provided, however, that, if such 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; and




     (iii) Notes which have been paid pursuant to Section 2.06 or in exchange for or in lieu
of which other Notes have been authenticated and delivered pursuant to this Indenture, other
than any such Notes in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a bona fide purchaser in whose hands such
Notes are valid obligations of the Company;


provided, however, that in determining whether the Holders of the requisite principal amount of the
Outstanding Notes have given any request, demand, authorization, direction, notice, consent or
waiver hereunder and for the purpose of making the calculations required by the Trust Indenture Act
Section 313, as of any date, Notes owned by the Company or any other obligor upon the Notes or any
affiliate of the Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only Notes which the
Trustee knows to be so owned shall be so disregarded. Notes so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee’s right so to act with respect to such Notes and that




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the pledgee is not the Company or any other obligor upon the Notes or any affiliate of the Company
or of such other obligor. In case of a dispute as to such right, any decision by the Trustee shall
be full protection to the Trustee absent negligence or willful misconduct. Upon request of the
Trustee, the Company shall furnish to the Trustee promptly an Officers’ Certificate listing and
identifying all Notes, if any, known by the Company to be owned or held by or for the account of
any of the above-described Persons; and, subject to Section 6.01, the Trustee shall be entitled to
accept such Officers’ Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Notes not listed therein are Outstanding for the purposes of any such determination.




     “Parity Securities” has the meaning set forth in Section 2.02(e)(ii).



     “Paying Agent” means any Person authorized by the Company (which may include the Company or
any of its affiliates) to pay the principal of (and premium, if any) or Interest on any Notes on
behalf of the Company, and shall initially be the Trustee.



     “Permitted Remedies” has the meaning assigned to such term in the Replacement Capital
Covenant.



     “Permitted Securities” has the meaning set forth in the definition of Market Disruption Event.



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



     “Physical Notes” has the meaning set forth in Section 2.05(b).



     “Place of Payment” means the place or places where the principal of (and premium, if any) and
Interest on the Notes are payable, and shall initially be the Corporate Trust Office.



     “Predecessor Note” of any particular Note means every previous Note evidencing all or a
portion of the same debt as that evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 2.09 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Note.



     “Preferred Stock” means shares of any class or series of preferred stock of the Company that
may be issued and outstanding from time to time.



     “Preferred Stock Cap” has the meaning set forth in Section 2.02(f)(ii).



     “Publicly Traded” means that the Common Stock has been listed for trading on a national
securities exchange or traded in a public over-the-counter market. For the avoidance of doubt, the
Common Stock is not, at the time of the execution of this Indenture, Publicly Traded.



     “QIB” means any “qualified institutional buyer” (as defined in Rule 144A).



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     “Qualifying
Replacement Capital Covenant” has the meaning assigned to such term in the
Replacement Capital Covenant.



     “Qualifying Capital Securities” has the meaning assigned to such term in the Replacement
Capital Covenant.



     “Qualifying Non-Cumulative Perpetual Preferred Stock” means, the Company’s non-cumulative
perpetual preferred stock that



     (a) ranks pari passu with or junior to all of the Company’s other outstanding preferred stock;
and



     (b) contains no remedies other than Permitted Remedies; and



     (c) either is (1) subject to Intent-Based Replacement Disclosure and has a provision that
prohibits the Company from making any distributions thereon upon the Company’s failure to satisfy
one or more financial tests set forth therein or (2) is subject to a replacement capital covenant
substantially similar to the Replacement Covenant or a Qualifying Replacement
Capital Covenant.



     “Rating Agency” has the meaning set forth in the definition of “Rating Agency Event.”



     “Rating Agency Event,” means that any nationally recognized statistical rating organization
within the meaning of Section 3(a)(62) under the Exchange Act that then publishes a rating for the
Company (a “Rating Agency”) amends, clarifies or changes the criteria it uses to assign equity
credit to securities such as the Notes, which amendment, clarification or change results in:




(a) the shortening of the length of time the Notes are assigned a particular level of
equity credit by that Rating Agency as compared to the length of time they would have been
assigned that level of equity credit by that Rating Agency or its predecessor on the issue
date of the Notes; or




(b) the lowering of the equity credit (including up to a lesser amount) assigned to the
Notes by that Rating Agency as compared to the equity credit assigned by that Rating Agency
or its predecessor on the issue date of the Notes.



     “Redemption Date,” when used with respect to any 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 Note to be redeemed, means the price at which
the Notes are to be redeemed, as specified in Section 2.02(g).



     “Regular Record Date” for the Interest payable on any Interest Payment Date with respect to
the Notes means (i) in the case of Notes represented by one or more Global Notes, the Business Day
preceding such Interest Payment Date and (ii) in the case of Notes not represented by one or more
Global Notes, the date which is fifteen calendar days next preceding such Interest Payment Date
(whether or not a Business Day).



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     “Regulation S Global Security” means a Regulation S Temporary Global Security or a Regulation
S Permanent Global Security.



     “Regulation S Permanent Global Security” means a permanent Global Security bearing the
applicable legends as are provided for in Exhibit B hereto and deposited with or on behalf of and
registered in the name of DTC or its nominee, issued in a denomination equal to the outstanding
principal amount of the Regulation S Temporary Global Security upon expiration of the Distribution
Compliance Period.



     “Regulation S Temporary Global Security” means a temporary Global Security bearing the
applicable legends as are provided for in Exhibit B hereto and deposited with or on behalf of and
registered in the name of DTC or its nominee, issued in a denomination equal to the outstanding
principal amount of the Securities initially sold in reliance on Rule 903 of Regulation S.



     “Relevant Period” has the meaning given to such term in the definition of Three-month LIBOR.



     “Repayment Date” has the meaning set forth in Section 2.02(a)(ii).



     “Replacement Capital Covenant” means the Replacement Capital Covenant, dated as of October 10,
2007, of the Company, as amended or supplemented from time to time. An execution copy of the
Replacement Capital Covenant in effect on the date hereof is attached hereto as Exhibit E.



     “Responsible Officer,” when used with respect to the Trustee, means any officer of the Trustee
assigned by the Trustee to administer its corporate trust matters with respect to this Indenture
(which, for the avoidance of doubt, includes without limitation, any supplemental indenture
hereto).



     “Reuters LIBOR01 Page” means the display designated as “LIBOR 01” on the Reuters 3000 Xtra (or
such other page as may replace that page on that service, or such other service as may be nominated
as the information vendor, for the purpose of displaying rates or prices comparable to the London
Interbank Offered rate for U.S. dollar deposits).



     “Rule 144A” means Rule 144A under the Securities Act (or any successor provision), as it may
be amended from time to time.



     “Rule 144A Global Note” has the meaning set forth in Section 2.03.



     “Rule 144A Information” means the information as specified pursuant to paragraph (d)(4) of
Rule 144A (or any successor provision thereto), as such provision (or successor provision) may be
amended from time to time.



     “Scheduled Maturity Date” has the meaning set forth in Section 2.02(a)(i).



     “Scheduled Maturity Obligations” means the Company’s obligations in connection with the
repayment of principal under Section 2.02(a).



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     “Securities Act” means the Securities Act of 1933 (or any successor statute), as it may be
amended from time to time.



     “Security Registrar” has the meaning set forth in Section 2.07(b).



     “Senior Indebtedness” means:




     (i) the principal of, premium, if any, interest and other payment obligations in
respect of the Company’s debt for money borrowed and debt evidenced by securities, notes,
bonds or other similar instruments issued by the Company;




     (ii) all of the Company’s capital lease obligations;




     (iii) all of the Company’s obligations issued or assumed as the deferred purchase price
of property, all of the Company’s conditional sale obligations, hedging agreements and
agreements of a similar nature and all agreements relating to any such agreements, and all
of the Company’s obligations under any title retention agreement;




     (iv) all of the Company’s obligations for reimbursement on any letter of credit,
banker’s acceptance, security purchase facility or similar credit transaction (but excluding
trade accounts payable and accrued liabilities arising in the ordinary course of business);
and




     (v) all obligations of the type referred to in clauses (i) through (iv) above of other
Persons for the payment of which the Company is responsible or liable as obligor, guarantor
or otherwise, in each case, whether created, assumed or incurred on, prior to or after the
date of this Indenture,


unless, in each case, the instrument creating that debt expressly provides that those obligations
rank pari passu in right of payment with the Notes.




     Such Senior Indebtedness shall continue to be Senior Indebtedness and be entitled to the
benefits of the subordination provisions of this Indenture irrespective of any amendment,
modification or waiver of any term of such Senior Indebtedness and notwithstanding that no express
written subordination agreement may have been entered into between the holders of such Senior
Indebtedness and the Trustee or any of the Holders.



     “Share Cap” has the meaning set forth in Section 2.02(f)(v).



     “Special Event” means a Tax Event or a Rating Agency Event.



     “Special Event Make-Whole Price” has the meaning set forth in Section 2.02(g)(ii).



     “Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 2.12(1).



     “Subsidiary” means, at any time, any Person the shares of stock or other ownership interests
of which having ordinary voting power to elect a majority of the board of directors or



- 12 -









 







other managers of such Person are at the time owned, or the management or policies of which
are otherwise at the time controlled, directly or indirectly, through one or more intermediaries
(including other Subsidiaries) by another Person.



     “Supplemental Notice” has the meaning set forth in Section 3.03.



     “Tax Event” means that the Company has requested and received an Opinion of Counsel
experienced in such matters to the effect that, as a result of any:



     (a) amendment to or change (including any officially announced proposed change) in the laws or
regulations of the United States or any political subdivision or taxing authority of or in the
United States that is enacted or becomes effective after the initial issuance of the Notes;



     (b) official administrative decision or judicial decision or administrative action or other
official pronouncement interpreting or applying those laws or regulations that is announced after
the initial issuance of the Notes; or



     (c) threatened challenge asserted in writing in connection with an audit of the Company or its
Subsidiaries, or a threatened challenge asserted in writing against any other taxpayer that has
raised capital through the issuance of securities that are substantially similar to the Notes,
which challenge becomes publicly known after the initial issuance of the Notes,



there is more than an insubstantial risk that interest payable by the Company on the Notes is not,
or within 90 days of the date of such opinion, will not be, deductible by the Company, in whole or
in part, for United States federal income tax purposes.


     “Temporary
Securities” has the meaning set forth in Section 2.10.


     “Three-month LIBOR” means, with respect to any Interest Period, the rate (expressed as a
percentage per annum) for deposits in U.S. dollars for a three-month period commencing on the first
day of that Interest Period and ending on the next Interest Payment
Date (the “Relevant Period”) that appears on Reuters LIBOR01 Page as of 11:00 a.m. (London
time) on the LIBOR Determination Date for that Interest Period. If such rate does not appear on the
Reuters LIBOR01 Page as of 11:00 a.m. (London time) on the LIBOR Determination Date for that
Interest Period, LIBOR shall be determined on the basis of the rates at which deposits in U.S.
dollars for the Relevant Period and in a principal amount of not less than $1,000,000 are offered
to prime banks in the London interbank market by four major banks in the London interbank market,
which may include affiliates of one or more of the Initial Purchasers, selected by the Calculation
Agent (after consultation with the Company), at approximately 11:00 a.m., London time on the LIBOR
Determination Date for that Interest Period. The Calculation Agent shall request the principal
London office of each such bank to provide a quotation of its rate. If at least two such quotations
are provided, Three-month LIBOR with respect to that Interest Period will be the arithmetic mean
(rounded upward if necessary to the nearest whole multiple of 0.00001%) of such quotations. If
fewer than two quotations are provided, Three-month LIBOR with respect to that Interest Period will
be the arithmetic mean (rounded upward if necessary to the nearest whole multiple of 0.00001%) of
the rates quoted by three major banks in New York City, which may include affiliates of one or more
of the Initial Purchasers, selected by the Calculation Agent (after consultation with the Company),
at approximately 11:00 a.m., New York City time, on the first day of that Interest Period for loans



- 13 -









 







in U.S. dollars to leading European banks for the Relevant Period and in a principal amount of
not less than $1,000,000. However, if fewer than three banks selected by the Calculation Agent to
provide quotations are quoting as described above, Three-month LIBOR for that Interest Period shall
be the same as Three-month LIBOR as determined for the previous Interest Period or for the Interest
Period beginning on October 15, 2017, Three-month LIBOR will be 5.24%. The establishment of
Three-month LIBOR by the Calculation Agent shall (in the absence of manifest error) be final and
binding.



     “Trading Day” means a day on which (i) there is no Market Disruption Event and (ii) trading in
securities generally occurs on the New York Stock Exchange.



     “Treasury Dealer” means a nationally recognized firm that is a primary U.S. government
securities dealer specified by the Company.



     “Treasury Price” means the bid-side price for the Treasury Security as of the third Trading
Day preceding the Redemption Date, as set forth in the daily statistical release (or any successor
release) published by the Federal Reserve Bank of New York on that Trading Day and designated
“Composite 3:30 p.m. Quotations for U.S. Government Securities,” except that: (i) if that release
(or any successor release) is not published or does not contain that price information on that
Trading Day or (ii) if the Treasury Dealer determines that the price information is not reasonably
reflective of the actual bid-side price of the Treasury Security prevailing at 3:30 p.m., New York
City time, on that Trading Day, then Treasury Price will instead mean the bid-side price for the
Treasury Security at or around 3:30 p.m., New York City time, on that Trading Day (expressed on a
next Trading Day settlement basis) as determined by the Treasury Dealer through such alternative
means as the Treasury Dealer considers to be appropriate under the circumstances.



     “Treasury Rate” means the semi-annual equivalent yield to maturity of the Treasury Security
that corresponds to the Treasury Price (calculated in accordance with standard market practice and
computed as of the second Trading Day preceding the Redemption Date).



     “Treasury Security” means the United States Treasury security that the Treasury Dealer
determines would be appropriate to use, at the time of determination and in accordance with
standard market practice, in pricing the Notes being redeemed in a tender offer based on a spread
to United States Treasury yields.



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, and in force at the
date as of which this instrument was executed; provided, however, that in the event the Trust
Indenture Act of 1939 is further amended after such date, “Trust Indenture Act” means, to the
extent required by such amendment, the Trust Indenture Act of 1939 as amended.



     “Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee
hereunder.



     “U.S. Government Obligations” means securities which are (i) direct obligations of the United
States of America for the payment of which its full faith and credit is pledged or (ii)



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obligations of a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America the payment of which is unconditionally guaranteed as to the timely
payment of principal and interest as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank or trust company which is a member of
the Federal Reserve System and having a combined capital and surplus of at least $50,000,000 as
custodian with respect to any such obligation evidenced by such depository receipt or a specific
payment of interest on or principal of any such obligation held by such custodian for the account
of the holder of a depository receipt; provided, however, 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 obligation set forth
in (i) or (ii) above or the specific payment of interest on or principal of such obligation
evidenced by such depository receipt.



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



     “Warrants” means the Company’s net share settled warrants to purchase Common Stock that:



     (a) have an exercise price greater than the Current Price of the Common Stock as of their date
of issuance; and



     (b) the Company is not entitled to redeem for cash and the holders are not entitled to require
the Company to repurchase for cash in any circumstances.



     Section 1.02. Compliance Certificates and Opinions. Upon any application or request by
the Company to the Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, 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 (other than a certificate required by Section 10.05) shall include:




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




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



- 15 -









 






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




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



     Section 1.03. Form of Documents Delivered to Trustee. In any case where several
matters are required to be certified by, or covered by an opinion of, any specified Person, it is
not necessary that all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such matters in one or
several documents.



     Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon 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 such matters is erroneous. Any certificate of counsel 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.



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



     Section 1.04. Acts of Holders: (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 an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section 1.04.



     (b) The fact and date of the execution of any such instrument or writing, or the authority of
the Person executing the same, may be presumed by the Trustee to be true, correct and existing, and
the Trustee may reasonably rely upon such instrument or writing without further investigation.



     (c) The ownership of Notes shall be proved by the Note Register.



- 16 -









 





     (d) If the Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to
a Board Resolution, fix in advance a record date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other Act or to revoke
any of the foregoing, but the Company shall have no obligation to do so. Notwithstanding Section
316(c) of the Trust Indenture Act, such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior to
the first solicitation of Holders generally in connection therewith and not later than the date
such solicitation is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act or revocation may be given before or
after such record date, but only the Holders of record at the close of business on such record date
shall be deemed to be Holders for the purposes of any such Act or revocation for the purpose of
determining whether Holders of the requisite proportion of Outstanding Notes have acted.



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



     Section 1.05. Notices. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing, shall specify this Indenture by name and date
and shall identify the Securities, and if sent to the Trustee shall be delivered or transmitted by
facsimile to PO Box
34690, Seattle, Washington 98124-1690,
Attention: General Counsel, fax 425-256-8780, with a copy to Cravath,
Swaine & Moore LLP, Worldwide Plaza, 825 Eighth Avenue, New York,
New York 10019 Attention William J. Whelan, fax 

212-474-3700. The foregoing addresses for notices or
communications may be changed by written notice given by the
addressee to each party hereto, and the addressee’s address shall be deemed changed for all purposes from and
after the giving of such notice.



     If the Trustee shall receive any notice or demand addressed to the Company by a Holder, the
Trustee shall promptly forward such notice or demand to the Company.



     Section 1.06. Notice to Holders; Waiver. Where this Indenture provides for notice to
Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such
event, at his address as it appears in the Note Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any case where notice
to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.



- 17 -









 





     If the Company mails a notice to Holders, it shall mail a copy of such notice to the Trustee
at the same time.



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



     Section 1.07. Headings and Table of Contents. The article and section headings herein
and the table of contents are for convenience and reference only and shall not affect the
construction hereof.



     Section 1.08. Severability. In case any provision in this Indenture or the 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 1.09. Trust Indenture Act Controls. 



     If any provision hereof limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such
required provision shall control. If any provision hereof modifies or excludes any provision of the
Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or excluded, as the case may be.



     Section 1.10. Benefits of Indenture. Nothing in this Indenture or in the Notes,
express or implied, shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.



     Section 1.11. No Implied Obligations. The obligations of the Company under this
Indenture and the Notes shall be without recourse to any Subsidiary, affiliate, policyholder,
director, officer or employee of the Company, and no such person shall have any liability with
respect thereto.



     Section 1.12. GOVERNING LAW. THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



     Section 1.13. Counterparts. This Indenture may be executed in one or more
counterparts, and by each party separately on a separate counterpart, and each such counterpart
when executed and delivered shall be deemed to be an original. Such counterparts shall together
constitute one and the same instrument.



- 18 -









 





ARTICLE 2




The Notes




     Section 2.01. Form and Dating. (a) The form of the Note, including the Trustee’s
certificate of authentication relating thereto, shall be substantially as set forth as Exhibit A
hereto. The Notes may have notations, legends or endorsements required by law or usage, as the
Company may determine. The Company shall approve the form of the Note and any notation, legend or
endorsement thereon. Each Note shall be dated the date of issuance and shall show the date of its
authentication. The Notes shall be in minimum denominations of $1,000 and integral multiples
thereof. The Notes will be issued at the closing of the offering only against payment in
immediately available funds.



     (b) The terms and provisions contained in the Notes annexed hereto shall constitute, and are
hereby expressly made, a part of this Indenture and, to the extent applicable, the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.



     (c) Each Note shall bear the applicable legends set forth in Exhibit B.



     Section 2.02. Terms of the Notes. The terms of the Notes shall be as follows:



     (a) Scheduled Maturity Date.




     (i) The Company is required to repay the Notes on October 15, 2037 (the “Scheduled
Maturity Date”) at their principal amount plus accrued and unpaid Interest only to the
extent that during a 180-day period ending on the date a Notice of Repayment is given
pursuant to Section 3.03, the Company has raised sufficient net proceeds from the issuance
of Qualifying Capital Securities to permit repayment of the Notes in full on the Scheduled
Maturity Date in accordance with the Replacement Capital Covenant. If the Company is unable
for any reason to raise sufficient net proceeds to repay the Notes in full on the Scheduled
Maturity Date, the Company shall (A) repay the Notes on the Scheduled Maturity Date in part
to the extent of any net proceeds so raised and (B) continue to comply with this Section
2.02(a). For the avoidance of doubt, a Repayment Date shall not constitute a Maturity for
the purposes of Section 5.01(2) hereof, unless the Company has given written notice to the
Trustee fixing such date for redemption and stating that the Company has determined to treat
that date as a Maturity, in which case such date shall constitute a Maturity for the Notes
specified in the applicable Notice of Repayment or Supplemental Notice, as the case may be.




     (ii) The Company shall use its Commercially Reasonable Efforts, subject to clause
(viii) below, to raise sufficient net proceeds from the issuance of Qualifying Capital
Securities during such 180-day period to permit repayment of the Outstanding Notes in full
on the Scheduled Maturity Date. If the Company has not raised sufficient net proceeds
pursuant to the preceding sentence to permit repayment of all principal and accrued and
unpaid Interest on the Notes on the Scheduled Maturity Date, the unpaid amount shall remain
outstanding from quarter to quarter and bear interest at Three-month



- 19 -









 







LIBOR plus 4.177%, payable quarterly in arrears on each quarterly Interest Payment Date
until repaid, and the Company shall use its Commercially Reasonable Efforts, subject to
clause (viii) below, to raise sufficient net proceeds from the issuance of Qualifying
Capital Securities during each 90-day period ending on each date Notice of Repayment is
given, on the next Interest Payment Date, and on each Interest Payment Date thereafter,
until all Notes Outstanding are repaid in full (the Scheduled Maturity Date and each such
subsequent Interest Payment Date, a “Repayment Date”). The Scheduled Maturity Obligations
shall terminate on the earlier of (A) the Interest Payment Date on which the Company has
redeemed the Notes in full in accordance with the Scheduled Maturity Obligations, (B) when
the Notes are otherwise paid in full on the Final Maturity Date or (C) upon an Event of
Default resulting in acceleration of the Notes pursuant to Section 5.02 hereof. Unless the
Scheduled Maturity Obligations shall have terminated as aforesaid and except under the
circumstances set forth in Section 2.02(a)(viii), the Company’s failure to use Commercially
Reasonable Efforts to raise sufficient proceeds from the issuance of Qualifying Capital
Securities to repay the Notes in full on a Repayment Date shall constitute a default under
clause (2) of the definition of Enforcement Event in Section 5.03, but shall in no event
constitute an Event of Default. Notwithstanding anything to the contrary herein, the Trustee
shall have no obligation to exercise any remedies with respect to any Enforcement Event
arising from such default unless directed to do so in accordance with and subject to the
conditions set forth in Section 5.12 and Section 6.02 hereof.




     (iii) Under the Replacement Capital Covenant, the Company may also repay the Notes on
the Scheduled Maturity Date in an amount determined by reference to the net cash proceeds
received from certain issuances by the Company or its Subsidiaries of certain other
securities specified in the Replacement Capital Covenant to Persons other than the Company
or its Subsidiaries. To the extent the Company so repays Notes pursuant to this Section
2.02(a)(iii), its obligation to use Commercially Reasonable Efforts to sell Qualifying
Capital Securities will be reduced by the amount repaid in compliance with the Replacement
Capital Covenant. For the avoidance of doubt, the Company’s Subsidiaries are not required to
issue any securities to enable the repayment of the Notes at the Scheduled Maturity Date,
whether pursuant to the Replacement Capital Covenant or otherwise, and the Company is not
required to issue securities other than pursuant to Section 2.02(a)(ii) above.




     (iv) Notwithstanding anything to the contrary in this Indenture, if the Company repays
the Notes pursuant to this Section 2.02(a) or redeems the Notes pursuant to Section 2.02(g)
when any Deferred Interest (including Additional Interest thereon) remains unpaid and at a
time when the Alternative Payment Mechanism is otherwise applicable, the unpaid Deferred
Interest (including Additional Interest thereon) may only be paid pursuant to the
Alternative Payment Mechanism.




     (v) Any principal amount of Notes, together with accrued and unpaid Interest, shall be
due and payable on the Final Maturity Date, regardless of the amount of Qualifying Capital
Securities or, if applicable, APM Securities, the Company shall have issued and sold by that
time.



- 20 -









 






     (vi) If any date fixed for redemption or repayment pursuant to this Section 2.02(a) is
not a Business Day, then payment of the Redemption Price or repayment of the principal
amount of the Notes due on that date shall be made on the next day that is a Business Day,
without any interest or other payment as a result of such delay.




     (vii) “Commercially Reasonable Efforts” to issue Qualifying Capital Securities means
commercially reasonable efforts by the Company to complete the offer and sale of Qualifying
Capital Securities to third parties that are not Subsidiaries of the Company in public
offerings or private placements. The Company shall not be considered to have made
Commercially Reasonable Efforts to effect a sale of Qualifying Capital Securities if it
determines not to pursue or complete the sale of Qualifying Capital Securities solely due to
pricing, coupon, dividend rate or dilution considerations.




     (viii) The Company shall be excused from its obligation to use (and shall not be
required to use) Commercially Reasonable Efforts to sell Qualifying Capital Securities to
permit repayment of the Notes on any Repayment Date, and any failure to redeem the Notes
shall not constitute a default, an Event of Default (other than on the Final Maturity Date)
or an Enforcement Event, if and to the extent the Company was not able to raise proceeds
from the issuance of Qualifying Capital Securities as a result of the occurrence of a Market
Disruption Event. The Company shall deliver to the Trustee an Officer’s Certificate (which
the Trustee shall promptly forward upon receipt to each Holder of the Notes) on the date the
related Notice of Repayment pursuant to Section 3.03 is given, or prior to the date the
related Notice of Repayment required by Section 3.03 would have been given, certifying that:




     (A) a Market Disruption Event was existing during the 180-day period preceding
the date of such certificate or, in the case of any required Repayment Date after
the Scheduled Maturity Date, the 90-day period preceding the date of such
certificate; and




     (B) either (1) the Market Disruption Event continued for the entire 180-day
period or 90-day period, as the case may be, or (2) the Market Disruption Event
continued for only part of the period, but the Company was unable after Commercially
Reasonable Efforts to raise sufficient net proceeds during the rest of that period
to permit repayment of the Notes in full.




     (ix) Net proceeds that the Company is permitted to apply to repayment of the Notes on
the Repayment Dates pursuant to this Section 2.02(a) shall be applied, first, to pay
Deferred Interest (including Additional Interest thereon) in chronological order, based on
the date each payment was first deferred, to the extent of Eligible Proceeds under the
Alternative Payment Mechanism (the amount thereof to be certified by the Company to the
Trustee in an Officers’ Certificate), second, to pay current interest that the Company is
not paying from other sources and, third, to repay the principal of Notes; provided that if
the Company is obligated to sell Qualifying Capital Securities and repay principal of or
interest on any outstanding Parity Securities in addition to the Notes, then on any date and
for any period the amount of net proceeds received by the Company from those sales and
available for such payments shall be applied first to Parity Securities



- 21 -









 







having an earlier scheduled maturity date than the Notes, and then to the Notes and
those other Parity Securities having the same scheduled maturity date as the Notes pro rata
in accordance with their respective outstanding principal amounts and none of such net
proceeds shall be applied to any other Parity Securities having a later scheduled maturity
date until the principal of and all accrued and unpaid Interest on the Notes has been paid
in full; provided, further, that if the Company raises less than $5 million of net proceeds
from the sale of Qualifying Capital Securities during the applicable 180- or 90-day period
preceding the date the applicable Notice of Repayment is given pursuant to Section 3.03, the
Company shall deliver to the Trustee an Officers’ Certificate to such effect and the Company
shall not be required to repay the Notes on such Repayment Date, but the Company shall use
those net proceeds to repay the Notes on the next Repayment Date as of which the Company has
raised at least $5 million of net proceeds; provided, further, that if the net proceeds
allocable to repay the principal of the Notes shall not be divisible by the authorized
denominations of the Notes into a whole number, the net proceeds so allocable shall be
deemed to be equal to the next lower amount divisible by such authorized denominations into
a whole number.




     (x) In the event the Company has delivered a notice to the Trustee pursuant to Section
3.01 in connection with any Repayment Date, the principal amount of Notes payable on such
Repayment Date, if any, shall be the principal amount set forth in the Notice of Repayment
accompanying such notice and such principal amount of Notes shall be repaid on such
Repayment Date pursuant to Article 3, subject to this Section 2.02(a).




     (xi) The obligation of the Company to repay the Notes pursuant to this Section 2.02(a)
on any date prior to the Final Maturity Date shall be subject to its obligations under
Article 12 to the holders of Senior Indebtedness.



     (b) Rate of Interest. The Notes will bear interest on their principal amount from and
including October 10, 2007 to but excluding October 15, 2017 at 8.300% per annum, payable
semi-annually in arrears on April 15 and October 15 of each year, beginning April 15, 2008. The
Notes will bear interest from and including October 15, 2017 at an annual rate equal to Three-month
LIBOR plus 4.177% payable quarterly in arrears on January 15, April 15, July 15 and October 15 of
each year, beginning January 15, 2018, subject to Section 2.02(d). Each semi-annual and quarterly
date on which interest is payable (including following the Scheduled Maturity Date, if applicable)
is referred to herein as an “Interest Payment Date.”



     The amount of Interest payable for any Interest Period ending on or prior to October 15, 2017
will be computed on the basis of a 360-day year of twelve 30-day months. The amount of Interest
payable for any Interest Period ending after October 15, 2017 will be computed on the basis of a
360-day year and the actual number of days elapsed. Any installment of Interest (or portion
thereof) deferred in accordance with Section 2.02(d) or otherwise unpaid shall bear Interest, to
the extent permitted by law, at the rate of interest then in effect, from the relevant Interest
Payment Date, compounded on each subsequent Interest Payment Date, until paid in accordance with
Section 2.02(d).



- 22 -









 





     If any Interest Payment Date on or prior to October 15, 2017 is not a Business Day, the
Interest payment due on that date shall be postponed to the next day that is a Business Day and no
interest shall accrue as a result of that postponement. If any Interest Payment Date after October
15, 2017 is not a Business Day, the Interest Payment Date shall be postponed to the next day that
is a Business Day and Interest will accrue to but excluding the date Interest is actually paid.
However, if any Interest Payment Date falls on a date fixed for early redemption, or other
redemption or repayment, and such day is not a Business Day, the Interest payment due on that date
shall be postponed to the next day that is a Business Day and no Interest shall accrue as a result
of that postponement.



     (c) To Whom Interest is Payable. Interest shall be payable on each Interest Payment Date to
each Person in whose name the Notes are registered at 5:00 p.m., New York City time, on the Regular
Record Date, except that Interest payable on any Notes on any Repayment Date, or Redemption Date or
the Final Maturity Date shall be paid to the Person to whom principal is paid.



     (d) Option to Defer Interest Payments.




     (i) The Company shall have the right, on one or more occasions, to elect to defer the
payment of Interest on the Notes for one or more consecutive Interest Periods that do not
exceed 10 years (which may include a combination of semi-annual and quarterly Interest
Periods), without giving rise to a default or an Event of Default or, unless otherwise
indicated below, an Enforcement Event. The Company’s right to defer Interest payments shall
end on the earlier of (A) the Final Maturity Date and (B) any repayment or redemption of the
Notes in full prior to the Final Maturity Date.




     Interest shall continue to accrue during Deferral Periods at the then-applicable
interest rate for the Notes, compounding on each Interest Payment Date, subject to
applicable law.




     (ii) The Company shall not pay Deferred Interest on the Notes (and Additional Interest
thereon) prior to the Final Maturity Date from any source other than Eligible Proceeds,
although the Company may pay current interest at all times from any available funds, and the
Company is required to pay Deferred Interest on the Notes (and Additional Interest thereon)
from all sources (including Eligible Proceeds) following an acceleration of the Notes. To
the extent that the Company applies Eligible Proceeds to pay Interest, the Company shall
allocate the proceeds first to pay Deferred Interest on the Notes (including Additional
Interest thereon) in chronological order based on the date each payment was first deferred.




     (iii) At the end of a 10-year Deferral Period, the Company shall pay all Deferred
Interest on the Notes (including Additional Interest thereon). After the Company makes all
payments of Deferred Interest, including Additional Interest thereon, the Company may again
defer Interest payments during new Deferral Periods of up to 10 years each, subject to the
requirements therefor set forth herein.



- 23 -









 






     (iv) Each Holder, by such Holder’s acceptance of the Notes, agrees that if a Bankruptcy
Event shall occur prior to the redemption or repayment of such Holder’s Notes, such Holder
shall not have a claim for, and shall have no right to receive, unpaid Deferred Interest
(including Additional Interest thereon) to the extent that such Deferred Interest (including
Additional Interest thereon) exceeds the sum of (x) Interest that relates to the earliest
two years of the portion of the Deferral Period for the Notes for which Interest has not
been paid and (y) an amount equal to such Holder’s pro rata share of the excess, if any, of
the Preferred Stock Cap over the aggregate amount of net proceeds from the sale of the
Company’s Qualifying Non-Cumulative Perpetual Preferred Stock and unconverted and
outstanding Mandatorily Convertible Preferred Stock that the Company has applied to pay
Interest on the Notes pursuant to the Alternative Payment Mechanism. To the extent such
claim for unpaid Deferred Interest (including Additional Interest thereon) exceeds the
amount set forth in clause (x), the Holders of the Notes shall be deemed to agree that the
amount they receive in respect of such excess shall not exceed the amount they would have
received had such claim ranked pari passu with the claims of the holders, if any, of the
Company’s Qualifying Non-Cumulative Perpetual Preferred Stock.




     (v) The Company shall give the Trustee written notice for each Interest Payment Date on
which payment of Interest is going to be deferred not less than 1 Business Day nor more than
60 Business Days prior to the Regular Record Date for such Interest Payment Date. However,
the Company’s failure to pay Interest on an Interest Payment Date shall constitute the
commencement of a Deferral Period with respect to the Notes unless the Company pays such
Interest within ten Business Days of the Interest Payment Date, whether or not the Company
provides a notice of deferral. For the avoidance of doubt, the non-payment of such Interest
for five Business Days does not give rise to a default hereunder.



     (e) So long as any Notes remain outstanding, if the Company has given notice of its election
to defer Interest payments but the related Deferral Period has not yet commenced, or if a Deferral
Period is continuing, then the Company shall not, and the Company shall not permit any of its
Subsidiaries to:




     (i) declare or pay any Distributions on, or redeem, purchase, acquire or make a
liquidation payment regarding, any of the Company’s Capital Stock; provided that the Company
may, at any time:




     (A) declare or pay Distributions on the Company’s Capital Stock in the form of
additional shares of its Capital Stock or warrants, options or other rights
exercisable or exchangeable for shares of its Capital Stock; provided that these
securities paid as Distributions on the Company’s Capital Stock will rank pari passu
with or junior to the Company’s Capital Stock on which the Distributions are being
paid;




     (B) declare or pay a dividend on its Capital Stock in connection with the
implementation of a stockholders’ rights plan, or issue its Capital Stock under



- 24 -









 







such a plan, or redeem or repurchase any rights with respect to its Capital
Stock distributed pursuant to such a plan;




     (C) purchase, redeem or otherwise acquire shares of its Capital Stock pursuant
to any dividend reinvestment or stockholder purchase plan or pursuant to any
employment agreement, benefit plan or similar arrangement with or for the benefit of
employees, officers, directors or consultants;




     (D) purchase, redeem or otherwise acquire fractional interests in shares of its
Capital Stock pursuant to the conversion or exchange provisions of such Capital
Stock or the security being converted or exchanged;




     (E) purchase, redeem or otherwise acquire its securities pursuant to
contractually binding agreements existing prior to the commencement of such Deferral
Period, including under a contractually binding stock repurchase plan; and




     (F) exchange, redeem or convert any class or series of its Capital Stock, or
the Capital Stock of one of its Subsidiaries, for any other class or series of its
Capital Stock, or of any class or series of its indebtedness for any class or series
of its Capital Stock.




     (ii) make any payment of principal of, or interest or premium, if any, on, or repay,
repurchase or redeem any securities that rank pari passu with the Notes (“Parity
Securities”) or junior to the Notes; provided that the Company may, at any time:




     (A) make payments of current or deferred interest in respect of Parity
Securities that are made pro rata in respect of the amounts due on such Parity
Securities and the Notes (provided that such payments are made in accordance Section
2.02(f)(viii)); and




     (B) make payments of principal in respect of Parity Securities having an
earlier scheduled maturity date than the Notes, as required under a provision of
such Parity Securities that is substantially the same as the provision described in
Section 2.02(a) and make payments in respect of Parity Securities having the same
Scheduled Maturity Date as the Notes, as required by such a provision, that are made
on a pro rata basis among one or more series of Parity Securities having such a
provision and the Notes; or




     (iii) make any guarantee payments with respect to any guarantee by the Company of debt
securities if such guarantee ranks pari passu with or junior to the Notes.




     (iv) If any Deferral Period lasts longer than one year, the Company may not redeem or
purchase nor permit any Subsidiary to purchase, any of the Capital Stock or securities that
upon the Company’s bankruptcy or liquidation rank pari passu with or junior to any of the
Company’s APM Securities issued, the proceeds of which were used to settle Deferred Interest
during such Deferral Period, until the first anniversary of the



- 25 -









 







date on which all Deferred Interest has been paid, subject to the exceptions listed
above in paragraphs (i), (ii) and (iii).




     (v) If the Company is involved in a business combination with a third party where
immediately after the consummation of such combination more than 50% of the surviving
entity’s voting securities are owned by the securityholders of the other party to the
business combination, then paragraph (iv) above will not apply to any Deferral Period that
is terminated on the next Interest Payment Date immediately following the date of
consummation of the business combination.




     (vi) For the avoidance of doubt, no terms of the Notes will be deemed to restrict in
any manner the ability of any Subsidiary of the Company to pay dividends or make any
distributions to the Company.



     (f) Alternative Payment Mechanism.




     (i) Subject to a Market Disruption Event and the conditions described in this Section
2.02(f) and the exception described in Sections 2.02(f)(vi) and (x) below, if the Company
defers Interest on the Notes, it shall be required, commencing on the relevant APM
Commencement Date, to use Commercially Reasonable Efforts to issue its APM Securities until
the Company has raised an amount of Eligible Proceeds at least equal to the aggregate amount
of accrued and unpaid Deferred Interest (including Additional Interest thereon) on the
Notes. This method of funding the payment of accrued and unpaid Deferred Interest is
referred to as the “Alternative Payment Mechanism.” The Company is required to apply
Eligible Proceeds raised during any Deferral Period pursuant to the Alternative Payment
Mechanism to pay Deferred Interest (and Additional Interest thereon) on the Notes.




     (ii) Except as provided in the last sentence of this paragraph, during the first five
years of any Deferral Period, the Company shall not be required to issue a number of shares
of its Common Stock or Warrants exercisable for a number of shares of its Common Stock in
excess of 2% of the number of shares of the Company’s outstanding Common Stock as of the
applicable APM Commencement Date (the “Common Stock Maximum Obligation”). Once the Company
reaches the Common Stock Maximum Obligation for a Deferral Period, the Company will not be
required to issue more shares of Common Stock or Warrants under the Alternative Payment
Mechanism during the first five years of that Deferral Period (including Additional Interest
thereon) even if the amount referred to in the preceding sentence subsequently increases
because of a subsequent increase in the number of outstanding shares of such Common Stock.
The Common Stock Maximum Obligation for that Deferral Period will cease to apply after the
fifth anniversary of the commencement of any Deferral Period, at which point the Company
must pay any Deferred Interest (including Additional Interest thereon), regardless of the
time at which it was deferred, using the Alternative Payment Mechanism, subject to any
Market Disruption Event. If the Common Stock Maximum Obligation for that Deferral Period has
been reached during a Deferral Period and the Company subsequently pays all Deferred
Interest (including Additional Interest thereon), the Common Stock Maximum Obligation for
that Deferral Period will cease to apply at



- 26 -









 







the termination of that Deferral Period, and will not apply again unless and until the
Company starts a new Deferral Period. The Common Stock Maximum Obligation shall apply only
if the Company is or becomes Publicly Traded during such five-year period; for the avoidance
of doubt, if the Company is not Publicly Traded on the APM Commencement Date but becomes
Publicly Traded during such five-year Deferral Period, the calculation of the number of
shares of Common Stock or Warrants exercisable for a number of shares of Common Stock in
excess of 2% of the number of shares of the Company’s outstanding Common Stock shall be
based on (i) the number of shares outstanding on the date the Company becomes Publicly
Traded rather than the APM Commencement Date and (ii) the number of shares of Common Stock
and Warrants exercisable for Common Stock issued as APM Securities on or after the date the
Company becomes Publicly Traded.




     The Company will not be permitted, pursuant to the Alternative Payment Mechanism for
purposes of paying Deferred Interest on the Notes, to issue shares of Qualifying
Non-Cumulative Perpetual Preferred Stock or Mandatorily Convertible Preferred Stock if the
net proceeds from such issuance, together with the net proceeds of all prior issuances of
Qualifying Non-Cumulative Perpetual Preferred Stock and unconverted and outstanding
Mandatorily Convertible Preferred Stock by the Company so applied during the current and all
prior Deferral Periods, would exceed 25% of the aggregate principal amount of the Notes
issued under this Indenture (the “Preferred Stock Cap”).




     (iii) Notwithstanding clauses (i) and (ii) above, under the Alternative Payment
Mechanism, so long as the definition of “APM Securities” has not been amended to eliminate
Common Stock:




     (1) the sale of Warrants to pay Deferred Interest is an option that may
be exercised at the Company’s sole discretion, subject to the Common Stock
Maximum Obligation (if applicable),




     (2) the Company will not be obligated to sell Warrants or to apply the
proceeds of any such sale to pay Deferred Interest on the Notes, and




     (3) no class of investors of the Company, or any other party, may
require the Company to sell Warrants.




     (iv) If the Company sells Warrants to pay Deferred Interest pursuant to the Alternative
Payment Mechanism, the Company will be required to use commercially reasonable efforts,
subject to the Common Stock Maximum Obligation and the Share Cap (in each case, if
applicable), to set the terms of the Warrants so as to raise sufficient proceeds from their
issuance, together with the proceeds from any other APM Securities issued concurrently, to
pay all Deferred Interest on the Notes in accordance with the Alternative Payment Mechanism.



- 27 -









 






     (v) Except as provided in the last sentence of this paragraph, the Company may not
issue Common Stock, Warrants or Mandatorily Convertible Preferred Stock pursuant to the
Alternative Payment Mechanism to the extent that the total number of shares of Common Stock
issued or issuable upon exercise of Warrants or issuable upon conversion of Mandatorily
Convertible Preferred Stock that has been issued as APM Securities, together with all prior
issuances of Common Stock, Warrants or Mandatorily Convertible Preferred Stock as APM
Securities, would exceed 115 million shares of the Common Stock (the “Share Cap”). If the
issued and outstanding shares of the Common Stock are changed into a different number of
shares or a different class by reason of any stock split, reverse stock split, stock
dividend, reclassification, recapitalization, split-up, combination, exchange of shares or
other similar transaction, the Share Cap shall be correspondingly adjusted. The Share Cap
will apply so long as the Notes remain Outstanding. If the Share Cap has been reached and
it is not sufficient to allow the Company to pay all Deferred Interest then accrued in full,
the Company shall use commercially reasonable efforts to increase the Share Cap (i) only to
the extent that the Company can do so and simultaneously satisfy its future fixed or
contingent obligations under other securities and derivative instruments that provide for
settlement or payment in the Common Stock or (ii) if the Company cannot increase the Share
Cap as contemplated in clause (i), by requesting the Company’s Board of Directors to adopt a
resolution for stockholder vote at the Company’s next occurring annual stockholders’ meeting
to increase the number of the Company’s authorized Common Stock for purposes of satisfying
the Company’s obligations to pay Deferred Interest. The Share Cap shall apply only if the
Company becomes Publicly Traded; for the avoidance of doubt, if the Company becomes Publicly
Traded, the calculation of the number of shares of Common Stock issued or issuable upon
exercise of Warrants or issuable upon conversion of Mandatorily Convertible Preferred Stock
that has been issued as APM Securities, together with all prior issuances of Common Stock,
Warrants or Mandatorily Convertible Preferred Stock as APM Securities, shall commence as of
the date the Company becomes Publicly Traded and shall not include shares of Common Stock
issued or issuable upon exercise of Warrants or conversion of Mandatorily Convertible
Preferred Stock issued as APM Securities that were issued, if any, prior to the date the
Company became Publicly Traded.




     (vi) The Company shall be excused from its obligations under the Alternative Payment
Mechanism in respect of any Interest Payment Date if the Company provides written
certification to the Trustee (copies of which the Company will promptly forward to each
Holder of Notes) no more than 15 and no less than 10 Business Days in advance of that
Interest Payment Date certifying that:




     (A) a Market Disruption Event was existing after the immediately preceding
Interest Payment Date; and




     (B) either (x) the Market Disruption Event continued for the entire period from
the Business Day immediately following the preceding Interest Payment Date to the
Business Day immediately preceding the date on which that certification is provided
or (y) the Market Disruption Event continued for only part of this period, but the
Company was unable after using its Commercially



- 28 -









 







Reasonable Efforts to raise sufficient Eligible Proceeds during the rest of
that period to pay all accrued and unpaid Interest.




     (vii) The Company’s failure to pay Interest on the Notes in accordance with the
Alternative Payment Mechanism as required by this Indenture shall constitute a default under
clause (3) of the definition of Enforcement Event in Section 5.03, but shall constitute an
Event of Default only in the circumstances specified under Section 5.01(1). The Company’s
failure to raise Eligible Proceeds when required pursuant to Section 2.02(f) shall
constitute a default under clause (4) of the definition of Enforcement Event, but shall in
no event constitute an Event of Default. Notwithstanding anything to the contrary herein,
the Trustee shall have no obligation to exercise any remedies with respect to any
Enforcement Event arising from such default unless directed to do so in accordance with and
subject to the conditions set forth in Section 5.12 and Section 6.02(4).




     (viii) If, due to a Market Disruption Event or otherwise, the Company was able to raise
some, but not all, Eligible Proceeds necessary to pay all Deferred Interest (including
Additional Interest thereon) on any Interest Payment Date, the Company shall apply any
available Eligible Proceeds to pay Deferred Interest (including Additional Interest thereon)
on the applicable Interest Payment Date in chronological order based on the date each
payment was first deferred. If the Company has outstanding securities in addition to, and
that rank pari passu with, the Notes under which the Company is obligated to sell APM
Securities and obligated to apply such proceeds to the payment of deferred interest and
distributions, then on any date and for any period the amount of net proceeds received by
the Company from those sales and available for payment of the deferred interest and
distributions shall be applied to the Notes and those Parity Securities on a pro rata basis,
subject to the Share Cap (if applicable), the Common Stock Maximum Obligation (if
applicable) and the Preferred Stock Cap, in proportion to the total amounts that are due on
the Notes and such Parity Securities.




     (ix) “Commercially Reasonable Efforts” to sell APM Securities in accordance with the
Alternative Payment Mechanism means commercially reasonable efforts to complete the offer
and sale of APM Securities to third parties that are not Subsidiaries of the Company, which
in the event the Company is not Publicly Traded shall include the Company’s existing
stockholders, in public offerings or private placements. The Company shall not be considered
to have made Commercially Reasonable Efforts to effect a sale of the APM Securities if it
determines not to pursue or complete the sale of APM Securities solely due to pricing,
coupon, dividend rate or dilution considerations.




     (x) If the Company is involved in a business combination with a third party where
immediately after its consummation more than 50% of the surviving entity’s voting securities
are owned by the securityholders of the other party to the business combination, then the
Alternative Payment Mechanism shall not apply to any outstanding Deferred Interest
(including Additional Interest thereon) as of the date of consummation of the business
combination if the Deferred Interest (including Additional Interest thereon) is settled
prior to or on the Interest Payment Date immediately following such



- 29 -









 







consummation. The requirements and restrictions of clauses (d), (e) and (f) of this
Section 2.02 shall apply, however, to any Interest on the Notes that is deferred after such
Interest Payment Date.



     (g) Redemption.




     (i) The Company may, at its option, redeem the Notes:




     (A) in whole or in part on October 15, 2017 and on each Interest Payment Date
thereafter at a Redemption Price equal to 100% of the principal amount of the Notes
so redeemed plus accrued and unpaid Interest, including Deferred Interest, to the
Redemption Date; and




     (B) prior to October 15, 2017, (x) in whole or in part, at a Redemption Price
equal to 100% of the principal amount of the Notes so redeemed or, if greater, the
Make-Whole Price, in either case plus accrued and unpaid Interest to the Redemption
Date and (y) in whole but not in part, within 90 days after the occurrence of a
Special Event, at a Redemption Price equal to 100% of the principal amount of the
Notes so redeemed or, if greater, the Special Event Make-Whole Price, in either case
plus accrued and unpaid Interest, including Deferred Interest, to the Redemption
Date.




     (ii) “Make-Whole Price” and “Special Event Make-Whole Price” each mean the present
value of scheduled payments of principal and Interest on the Notes being redeemed from the
Redemption Date to October 15, 2017, discounted to the Redemption Date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at a discount rate equal
to the Treasury Rate plus the Applicable Rate; provided that the “Applicable Rate” shall
mean, in the case of a redemption in connection with a Special Event, 0.50%, and in all
other cases of an early redemption prior to October 15, 2017, 0.50%; provided further that
for the avoidance of doubt, pursuant to this definition, the Make-Whole Price and the
Special Event Make-Whole Price are equal amounts in this Indenture.




     (iii) If any date fixed for redemption pursuant to this clause (g) is not a Business
Day, then payment of the Redemption Price shall be made on the next day that is a Business
Day, without any Interest or other payment for the delay.




     (iv) The Make-Whole Price and the Special Event Make-Whole Price shall be determined on
the third Business Day prior to the applicable Redemption Date. The Company shall notify the
Trustee of the Make-Whole Price or the Special Event Make-Whole Price, as applicable,
promptly after the calculation thereof and the Trustee shall have no responsibility for such
calculation.




     (v) For the avoidance of doubt, if the Company redeems Notes when any Deferred Interest
(including Additional Interest thereon) remains unpaid and at a time when the Alternative
Payment Mechanism is applicable, the unpaid Deferred Interest (included Additional Interest
thereon) may only be paid pursuant to the Alternative Payment Mechanism.



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     Section 2.03. Rule 144A Global Notes.



     (a) The Notes offered and sold to QIBs in reliance on Rule 144A shall each be issued in the
form of one or more Global Notes (each, a “Rule 144A Global Note”) in registered, global form
without interest coupons, with such applicable legends as are provided for in Exhibit B hereto,
except as otherwise permitted herein.



     (b) Each Rule 144A Global Note (A) shall represent such portion of the outstanding Notes as
shall be specified therein, (B) shall provide that it shall represent the aggregate amount, as
applicable, of outstanding Notes from time to time endorsed thereon and (C) shall be registered in
the name of DTC or its nominee and deposited upon issuance with the Trustee, at its Corporate Trust
Office, as custodian for DTC, duly executed by the Company and authenticated by the Trustee as
hereinafter provided, for credit to the respective accounts at DTC of the depositaries. The
aggregate principal amount of a Rule 144A Global Note may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for DTC, as provided
herein.



     Section 2.04. Regulation S Temporary Global Notes.



     (a) The Notes offered and sold outside the United States in reliance on Regulation S shall
each be initially issued in the form of the Regulation S Temporary Global Note, which shall be
deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, as
custodian for DTC, and registered in the name of DTC or the nominee of DTC for the accounts of
designated agents holding on behalf of Euroclear or Clearstream, duly executed by the Company and
authenticated by the Authenticating Agent as hereinafter provided and shall bear such applicable
legends as are provided for in Exhibit B.



     (b) An owner of a beneficial interest in a Regulation S Temporary Global Note (or a Person
acting on behalf of such an owner) may provide to Euroclear or Clearstream, as applicable, (and
Euroclear or Clearstream will accept) a duly completed Certificate of Beneficial Ownership at any
time after the termination of the Distribution Compliance Period (it being understood that
Euroclear or Clearstream, as applicable, will not accept any such certificate during the
Distribution Compliance Period). Promptly after receipt by the Trustee of a Certificate of
Beneficial Ownership from DTC on behalf of Euroclear or Clearstream, as applicable (or other
appropriate confirmation to such effect in accordance with the Applicable Procedures), with respect
to such a beneficial interest, the Trustee will cause such beneficial interest to be exchanged for
an equivalent beneficial interest in a Regulation S Permanent Global Note, and will (x) permanently
reduce the principal amount of such Regulation S Temporary Global Note



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by the amount of such beneficial interest and (y) increase the principal amount of such
Regulation S Permanent Global Note by the amount of such beneficial interest, in each case subject
to the Applicable Procedures. Notwithstanding the previous two sentences, if after the Distribution
Compliance Period any Initial Purchaser owns a beneficial interest in a Regulation S Temporary
Global Note, such Initial Purchaser may, upon written request to the Trustee accompanied by a
certification as to its status as an Initial Purchaser and as the owner of such beneficial interest
(but without any requirement to deliver a Certificate of Beneficial Ownership), exchange such
beneficial interest for an equivalent beneficial interest in a Regulation S Permanent Global Note,
and the Trustee will comply with such request and will (x) permanently reduce the principal amount
of such Regulation S Temporary Global Note by the amount of such beneficial interest and (y)
increase the principal amount of such Regulation S Permanent Global Note by the amount of such
beneficial interest, in each case subject to the Applicable Procedures.



     (c) Upon the receipt by the Trustee of a written certificate from DTC, together with copies of
certificates from Euroclear and Clearstream certifying that they have received Certificates of
Beneficial Ownership representing 100% of the aggregate principal amount of the Regulation S
Temporary Global Note (except to the extent of any beneficial owners thereof who acquired an
interest therein during the Distribution Compliance Period pursuant to another exemption from
registration under the Securities Act and who shall take delivery of a beneficial ownership
interest in a Rule 144A Global Note) (or, in any such case, provide other appropriate confirmation
to such effect in accordance with the Applicable Procedures), the Trustee shall cancel the
Regulation S Temporary Global Note.



     (d) Each Regulation S Temporary Global Note and Regulation S Permanent Global Note (A) shall
represent such portion of the outstanding Notes as shall be specified therein, (B) shall provide
that it shall represent the aggregate amount, as applicable, of outstanding Notes from time to time
endorsed thereon and (C) shall be registered in the name of DTC or its nominee and deposited upon
issuance with the Trustee, at its Corporate Trust Office, as custodian for DTC, duly executed by
the Company and authenticated by the Trustee as hereinafter provided, for credit to the respective
accounts at DTC of the depositaries. The aggregate principal amount of each Regulation S Temporary
Global Note (or Regulation S Permanent Global Note) may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for DTC, as provided herein.



     (e) The provisions of the “Operating Procedures of the Euroclear System” and “Terms and
Conditions Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream” and
“Customer Handbook” of Clearstream shall be applicable to transfers of beneficial interests in the
Regulation S Temporary Global Note and the Regulation S Permanent Global Notes that are held by
participants through Euroclear or Clearstream.



     Section 2.05. General — Form of Securities.



     (a) Any endorsement of a Global Note to reflect the amount of any increase or decrease in the
amount of Outstanding Notes represented thereby shall be made by the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.18 hereof.



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     (b) Notes issued in exchange for interests in a Global Note pursuant to Section 2.18 may be
issued in the form of permanent Certificated Notes in registered forms in substantially the forms
set forth in Exhibit A (the “Physical Notes”), subject to such changes, deletions or additions as
the Company may approve (the approval of which shall be deemed evidenced by the signature of the
officer or officers of the Company executing such Notes).



     (c) Subject to the provisions of Section 2.18 hereof, Physical Notes may be produced in any
manner determined by the Officers of the Company executing such securities, as evidenced by their
execution of such securities. The Trustee shall register Physical Notes so issued in the name of,
and cause the same to be delivered to, such Person (or its nominee) as may be instructed by the
Company.



     (d) The Notes may also have such additional provisions, omissions, variations or substitutions
as are not inconsistent with the provisions of 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 this Indenture, any applicable law or with any rules made pursuant thereto or with
the rules of any securities exchange or governmental agency, all as may be determined by the
Officer of the Company executing such securities, as conclusively evidenced by their execution of
such securities. All Notes shall be substantially identical except as provided herein.



     (e) Subject to the provisions of this Article 2, a registered Holder in a Global Note may
grant proxies and otherwise authorize any Person to take any action that a Holder is entitled to
take under this Indenture or the Notes.



     Section 2.06. Execution and Authentication; Issue Price; Aggregate Principal Amount.



     (a) An Officer of the Company who shall have been duly authorized by all requisite corporate
actions shall execute the Notes for the Company by manual or facsimile signature.



     (b) If an Officer whose signature is on a Note was an Officer at the time of such execution
but no longer holds that office or position at the time the Trustee authenticates the Note, the
Note shall nevertheless be valid.



     (c) A Note shall not be valid or obligatory for any purpose or be entitled to the benefits of
this Indenture until an authorized signatory of the Trustee manually signs the certificate of
authentication on the Note. The signature of such representative of the Trustee shall be conclusive
evidence that the Note has been authenticated under this Indenture.



     (d) On the Issue Date, upon Company Order the Trustee shall authenticate and deliver up to an
initial maximum of $150,000,000 principal amount of Notes (the “Original Notes”). In addition, at
any time, from time to time, without notice to, or the consent of, the Holders, the Trustee shall
authenticate and deliver additional Notes of up to a maximum of $75,000,000 principal amount
(“Additional Notes”) upon receipt of a Company Order specifying the amount of Notes to be
authenticated and the date on which such securities are to be authenticated and an Officers’
Certificate of the Company certifying that all conditions precedent to the issuance, of the
Additional Notes contained herein have been complied with and that no Default or Event of Default
would occur as a result of the issuance of such Additional



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Notes and that such Additional Notes will be treated as fungible with the Original Notes and
any Additional Notes issued for U.S. federal income tax purposes. The Additional Notes and the
Trustee’s certificate of authentication relating thereto shall be substantially in the forms of
Exhibit A with all such necessary additions and deletions and shall have the same respective CUSIP
number as the Original Securities. The Notes issued as Original Notes and the Notes issued as
Additional Notes, if any, shall constitute one series for all purposes under this Indenture,
including, without limitation, amendments, waivers and redemptions.



     (e) The Notes shall be known and designated as the “Capital Efficient Notes due 2067” of the
Company and shall have the terms described in Section 2.02 above.



     (f) Interest and principal will be payable in Dollars at the agency of the Trustee’s New York
corporate trust office, which is located at 100 Wall Street, Suite 1600, New York, New York 10005
or, at the Company’s option, in the case of payments of Interest, by check mailed to the respective
addresses of the registered holders or by wire transfer.



     (g) The Notes shall not have the benefit of any sinking fund obligations.



     (h) The Trustee may appoint an Authenticating Agent reasonably acceptable to the Company to
authenticate the Notes. Unless otherwise provided in the appointment, an Authenticating Agent may
authenticate the Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An Authenticating Agent has
the same rights as an agent to deal with the Company.



     Section 2.07. Trustee, Security Registrar and Paying Agent.



     (a) The Company hereby appoints U.S. Bank National Association, as the Trustee hereunder and
U.S. Bank National Association hereby accepts such appointment. The Trustee shall have the powers
and authority granted to and conferred upon it in the Notes and hereby and such further powers and
authority to act on behalf of the Company as may be mutually agreed upon by the Company and the
Trustee, and the Trustee shall keep a copy of this Indenture available for inspection during normal
business hours at its Corporate Trust Office.



     (b) The Company shall maintain an office or agency (which shall be located in New York) where
(a) Notes may be presented or surrendered for registration of transfer or for exchange (“Security
Registrar”), (b) Notes may be presented or surrendered for payment and (c) notices and demands to
or upon the Company in respect of the Notes and this Indenture may be served. The Registrar shall
keep a register of the Notes and of their transfers and exchanges. The Company, upon notice to the
Trustee, may have one or more co-Security Registrars and one or more additional Paying Agents
reasonably acceptable to the Trustee. The Company may change the Paying Agent or Security Registrar
upon notice to all Holders.



     (c) The Company shall enter into an appropriate agency agreement with any agent not a party to
this Indenture. The Company shall notify the Trustee, in advance and in writing, of the name and
address of any such agent. If the Company fails to maintain a Security Registrar or Paying Agent,
or fails to give the foregoing notice, the Trustee shall act as such.



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     (d) The Company initially appoints the Trustee as Security Registrar and Paying Agent until
such time as the Trustee has resigned or a successor has been appointed. Any of the Security
Registrar, the Paying Agent or any other agent may resign upon 60 days’ written notice to the
Company.



     (e) The Company or any of its Subsidiaries may act as Security Registrar or Paying Agent;
provided, however, that none of the Company, its Subsidiaries or the affiliates of the foregoing
shall act as Security Registrar or Paying Agent if a Default or Event of Default has occurred and
is continuing. In addition, upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Notes.



     (f) All of the terms and provisions with respect to such powers and authority contained in the
Notes are subject to and governed by the terms and provisions hereof.



     Section 2.08. Paying Agent to Hold Assets in Trust.



     (a) The Company shall require each Paying Agent other than the Trustee to agree in writing
that each Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all assets
held by the Paying Agent for the payment of principal of, premium, if any, or Interest on, the
Notes (whether such assets have been distributed to it by the Company or any other obligor on such
securities), and shall notify the Trustee of any default by the Company (or any other obligor on
such securities) in making any such payment. The Company at any time may require a Paying Agent to
distribute all assets held by it to the Trustee and account for any assets disbursed and the
Trustee may at any time during the continuance of any payment Default, upon written request to a
Paying Agent, require such Paying Agent to distribute all assets held by it to the Trustee and to
account for any assets distributed. Upon distribution to the Trustee of all assets that shall have
been delivered by the Company to the Paying Agent and the completion of any accounting required to
be made hereunder, the Paying Agent shall have no further liability for such assets.



     (b) If the Company or any of its Subsidiaries acts as Paying Agent, it shall segregate and
hold in separate trust funds for the benefit of the Holders of the Notes all the money held by it
as Paying Agent.



     Section 2.09. Replacement Notes.



     (a) If a mutilated Note is surrendered to the Trustee or if the Holder of a Note claims that
such Note has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee
shall authenticate a replacement security if the Trustee’s requirements are met. If required by the
Trustee or the Company, such Holder must provide an indemnity bond or other indemnity, sufficient
in the reasonable judgment of the Company and the Trustee, to protect the Company, the Trustee or
any agent from any loss which any of them may suffer if a Note is replaced. The Company and the
Trustee may charge such Holder for its reasonable out-of- pocket expenses in replacing a Note.
Every replacement Note shall constitute an additional obligation of the Company.



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     (b) The provisions of this Section 2.09 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement of mutilated, destroyed, lost
or stolen Notes.



     Section 2.10. Temporary Securities.



     In lieu of formal printed Physical Notes, or until such Physical Notes are ready for delivery,
the Company may prepare and the Trustee shall authenticate temporary securities upon a written
order of the Company signed by two Officers of the Company (“Temporary Securities”). Temporary
Securities shall be substantially in the form of Physical Notes but may have variations that the
Company considers appropriate for such Temporary Securities and as shall be reasonably acceptable
to the Trustee. At the Company’s election, the Company may prepare and the Trustee shall
authenticate Physical Notes in exchange for Temporary Securities. Unless and until any such
exchange, Holders of Temporary Securities shall be entitled to all of the benefits of this
Indenture.



     Section 2.11. Cancellation. The Company at any time may deliver Notes to the Trustee
for cancellation. The Security Registrar and the Paying Agent shall forward to the Trustee any Note
surrendered to them for transfer, exchange or payment. The Trustee, or at the direction of the
Trustee, the Security Registrar or the Paying Agent, and no one else, shall cancel and, at the
written direction of the Company, shall dispose of all cancelled Securities in accordance with its
customary procedures. Certification of the destruction of all cancelled Notes shall be delivered to
the Company, upon written request, from time to time. The Company may not issue new Notes to
replace Notes that the Company has paid or delivered to the Trustee for cancellation. If the
Company shall acquire any of the Notes, such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Note unless and until the same are surrendered
to the Trustee for cancellation pursuant to this Section 2.11.



     Section 2.12. Defaulted Interest. Any Interest on any Note which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by
virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:




     (1) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Notes (or their respective Predecessor Notes) are registered at the close of
business on a special record date (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 Note
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 not be less than 10 days prior to the date of the proposed
payment. The Trustee shall promptly



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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
Notes at his address as it appears in the Note 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 Notes (or their respective Predecessor Notes) 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 on the Notes in any other
lawful manner not inconsistent with the requirements of any securities exchange on which
such 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.



     For avoidance of doubt, Defaulted Interest shall not include Deferred Interest (including
Additional Interest thereon) during any Deferral Period, but shall include Deferred Interest
(including Additional Interest thereon) to the extent such Deferred Interest (including Additional
Interest thereon) is not paid when due under the terms of this Indenture.



     Subject to the foregoing provisions of this section, each Note lawfully delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall
carry the rights to Interest accrued and unpaid, and to accrue, which were carried by such other
Note.



     Section 2.13. Persons Deemed Owners.



     Prior to due presentment for the registration of a transfer of any Note, the Trustee, the
Company and any agent of the foregoing shall deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for all purposes (including the purpose of receiving
payment of principal of and Interest on such Note; provided that Defaulted Interest shall be paid
as set forth in Section 2.12), and none of the Trustee, the Company or any agent of the foregoing
shall be affected by notice to the contrary.



     Section 2.14. CUSIP Numbers.



     The Company in issuing the Notes may use one or more “CUSIP” and/or “ISIN” numbers and, if so,
the Trustee shall use the CUSIP and/or ISIN numbers in notices of redemption or exchange as a
convenience to Holders; provided, however, that no representation is hereby deemed to be made by
the Trustee as to the correctness or accuracy of the CUSIP or ISIN numbers printed in the notice or
on the Notes, and that reliance may be placed only on the other identification numbers printed on
the Notes. The Company shall promptly notify the Trustee of any change in the CUSIP or ISIN number.



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     Section 2.15. Deposit of Moneys.



     (a) Prior to 10:00 a.m. New York time on each Interest Payment Date, Redemption Date,
Repayment Date or Final Maturity Date or any other day on which payment is due on the Notes, the
Company shall have deposited with the Paying Agent in immediately available funds money sufficient
to make cash payments, if any, due on such Interest Payment Date, Redemption Date, Repayment Date
or Final Maturity Date or such other day, as the case may be, in a timely manner which permits the
Paying Agent to remit payment to the Holders on such Interest Payment Date, Redemption Date,
Repayment Date or Final Maturity Date or such other day, as the case may be.



     (b) The Trustee shall preserve in as current a form as is reasonably practicable the most
recent list available to it of the names and addresses of all Holders. If the Trustee is not the
Security Registrar, the Company shall furnish to the Trustee at least seven Business Days before
each Interest Payment Date, and at such other times as the Trustee may request in writing, a list
in such form and as of such record date as the Trustee may reasonably require of the names and
addresses of the Holders.



     Section 2.16. Transfer and Exchange.



     (a) Subject to Section 2.17 and Section 2.18, when Notes are presented to the Security
Registrar or a co-Security Registrar with a request to register the transfer of such securities or
to exchange such securities for an equal principal amount of Notes of other authorized
denominations, the Security Registrar or co-Security Registrar shall register the transfer or make
the exchange as requested if its requirements for such transaction are met; provided, however, that
the Notes presented or surrendered for transfer or exchange shall be duly endorsed or accompanied
by a written instrument of transfer in form satisfactory to the Company and the Security Registrar
or co-Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in
writing. To permit registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Notes at the Security Registrar’s or co-Security Registrar’s written
request. No service charge shall be made for any registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith.



     (b) The Security Registrar or co-Security Registrar shall not be required to issue, or to
register the transfer or exchange of, any Note (i) during a period beginning at the opening of
business 15 days before the mailing of a Notice of Redemption pursuant to Section 11.04 and ending
at the close of business on the day of such mailing and (ii) selected for redemption in whole or in
part pursuant to Article 11, except the unredeemed portion of any Note being redeemed in part.



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



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     (d) The Trustee shall authenticate Notes in accordance with the provisions of Section 2.06
hereof.



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



     (f) Any Holder of a beneficial interest in a Global Note shall, by acceptance of such
beneficial interest, agree that transfers of beneficial interests in such Global Note may be
effected only through a book entry system maintained by the Depository, and that ownership of a
beneficial interest in the Note shall be required to be reflected in a book entry system.



     Section 2.17. Book-Entry Provisions for Global Notes.



     (a) Except as indicated below in this Section 2.17, the Notes shall be represented only by
Global Notes. The Global Notes shall be deposited with a Depositary or its custodian for such
securities (and shall be registered in the name of such Depositary or its nominee). The Depositary
for the Notes shall be DTC unless the Company appoints a successor Depositary by delivery of a
Company Order to the Trustee specifying such successor Depositary for the Notes.



     (b) All payments on a Global Note will be made by the Trustee to DTC or its nominee, as the
case may be, as the registered owner and Holder of such Global Note. In each case, the Company will
be fully discharged by payment to or to the order of such Depositary from any responsibility or
liability in respect of each amount so paid. Upon receipt of any such payment in respect of a
Global Note, DTC will credit Depositary Participants’ accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount of such Global Note
as shown on the records of DTC.



     (c) Unless and until it is exchanged in whole or in part for Physical Notes, a Global Note may
not be transferred except as a whole by the relevant Depositary or nominee thereof to another
nominee of the Depositary or to a successor of the Depositary or a nominee of such successor.



     (d) Owners of beneficial interests in Global Notes shall be entitled or required, as the case
may be, but only under the circumstances described in Section 2.18(b), to receive physical delivery
of Physical Notes.



     Section 2.18. Restrictions on Transfer and Exchange of Notes.



     (a) Transfer and Exchange of Global Notes. Notwithstanding any provisions of this Indenture or
the Notes, transfers of a Global Note, in whole or in part, transfers and exchanges of interests
therein of the kinds described in clauses (iii), (iv) through (vi) below and exchange of interests
in Global Notes or of other Notes as described in clause (vii) below, shall be made only



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in accordance with this Section 2.18(a). Transfers and exchanges subject to this Section 2.18
shall also be subject to the other provisions of the Indenture that are not inconsistent with this
Section 2.18.




     (i) General. A Global Note may not be transferred, in whole or in part, to any Person
other than DTC or a nominee thereof or a successor to DTC or its nominee, and no such
transfer to any such other Person may be registered; provided that this clause (i) shall not
prohibit any transfer of a Note that is issued in exchange for a Global Note but is not
itself a Global Note. No transfer of a Note to any Person shall be effective under this
Indenture or the Note unless and until such Note has been registered in the name of such
Person. Nothing in this Section 2.18(a)(i) shall prohibit or render ineffective any transfer
of a beneficial interest in a Global Note effected in accordance with the other provisions
of this Section 2.18(a).




     (ii) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Global Note may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Global Note in accordance with the transfer restrictions set
forth in the legend; provided, however, that prior to the expiration of the Distribution
Compliance Period, transfers of beneficial interests in the Regulation S Temporary Global
Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person (other
than an Initial Purchaser). No written orders or instructions shall be required to be
delivered to the Security Registrar to effect the transfers described in this Section
2.18(a)(ii).




     (iii) Rule 144A Global Note to Regulation S Temporary Global Note or Regulation S
Permanent Global Note. If a Holder of a beneficial interest in a Rule 144A Global Note
deposited with DTC wishes at any time to exchange its interest in such Rule 144A Global Note
for an interest in the corresponding Regulation S Temporary Global Note or Regulation S
Permanent Global Note, as applicable, or to transfer its interest in such Rule 144A Global
Note to a Person who wishes to take delivery thereof in the form of an interest in the
corresponding Regulation S Temporary Global Note or Regulation S Permanent Global Note, as
applicable, such Holder, provided such Holder or, in the case of a transfer, the transferee
is not a U.S. person, may, subject to the immediately succeeding sentence and the Applicable
Procedures, exchange or transfer, or cause the exchange or transfer of, such interest for an
equivalent beneficial interest in the corresponding Regulation S Temporary Global Note or
Regulation S Permanent Global Note, as applicable. Upon receipt by the Security Registrar of
(A) written instructions (or notice from DTC of its receipt of such instruction) given in
accordance with the Applicable Procedures from a Depositary Participant directing the
Security Registrar to credit or cause to be credited to a specified Depositary Participant’s
account a beneficial interest in the corresponding Regulation S Temporary Global Note or
Regulation S Permanent Global Note, as applicable, but not less than the minimum
denomination applicable to such Holder’s Notes, in an amount equal to the beneficial
interest in the Rule 144A Global Note to be exchanged or transferred, (B) a written order
(or notice from DTC of its receipt of such order) given in accordance with the Applicable
Procedures containing information regarding the account of the Depositary Participant and
the Euroclear or Clearstream account to be credited with, and the account of the



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Depositary Participant and the Euroclear or Clearstream account, to be debited for,
such beneficial interest and (C) a certificate in substantially the form of Exhibit C-1
attached hereto given by the transferor of such beneficial interest stating that the
exchange or transfer of such interest has been made in compliance with the transfer
restrictions applicable to the Global Notes, including that the transferor or the
transferee, as applicable, is not a U.S. person, and pursuant to and in accordance with
Regulation S, then the principal amount of the Rule 144A Global Note shall be reduced, and
the principal amount of the Regulation S Temporary Global Note or the Regulation S Permanent
Global Note, as applicable, shall be increased, by the principal amount of the beneficial
interest in the Rule 144A Global Note to be so transferred, in each case by means of an
appropriate adjustment on the records of the Security Registrar, and the Security Registrar
shall instruct DTC or its authorized representative to make a corresponding adjustment to
its records and to credit or cause to be credited to the account of the Person specified in
such instructions a beneficial interest in the Regulation S Temporary Global Note or
Regulation S Permanent Global Note, as applicable, having a principal amount equal to the
amount so transferred.




     (iv) Rule 144A Global Note to Rule 144A Global Note. If the Holder of a beneficial
interest in a Rule 144A Global Note wishes at any time to transfer such interest to a Person
who wishes to take delivery thereof in the form of a beneficial interest in a Rule 144A
Global Note, such transfer may be effected, subject to the Applicable Procedures, only in
accordance with the provisions of this Section 2.18(a)(iv). Upon receipt by the Security
Registrar of (A) written instructions (or notice from DTC of its receipt of such
instruction) given in accordance with the Applicable Procedures from a Depositary
Participant directing the Security Registrar, to credit or cause to be credited to a
specified Depositary Participant’s account a beneficial interest in a Rule 144A Global Note
in a principal amount equal to that of the beneficial interest in a Rule 144A Global Note to
be so transferred; (B) a written order (or notice from DTC of its receipt of such order)
given in accordance with the Applicable Procedures containing information regarding the
account of the Depositary Participant to be credited with, and the account of the Depositary
Participant to be debited for, such beneficial interest and (C) a certificate in
substantially the form set forth in Exhibit C-2 given by the transferor of such beneficial
interest, the principal amount of a Rule 144A Global Note shall be reduced, and the
principal amount of a Rule 144A Global Note shall be increased, by the principal amount of
the beneficial interest in a Rule 144A Global Note to be so transferred, in each case by
means of an appropriate adjustment on the records of the Security Registrar, and the
Security Registrar shall instruct DTC or its authorized representative to make a
corresponding adjustment to its records and to credit or cause to be credited to the account
of the Person specified in such instructions a beneficial interest in a Rule 144A Global
Note having a principal amount equal to the amount so transferred.




     (v) Regulation S Temporary Global Note or Regulation S Permanent Global Note to Rule
144A Global Note. If the Holder of a beneficial interest in a Regulation S Temporary Global
Note or a Regulation S Permanent Global Note, as applicable, wishes at any time to transfer
such interest to a Person who wishes to take delivery thereof in the form of a beneficial
interest in a Rule 144A Global Note, such transfer may be effected



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after the Distribution Compliance Period, subject to the Applicable Procedures, only in
accordance with this Section 2.18(a)(v). Upon receipt by the Security Registrar of (A)
written instructions (or notice from DTC of its receipt of such instruction) given in
accordance with the Applicable Procedures from an Depositary Participant directing the
Security Registrar to credit or cause to be credited to a specified Depositary Participant’s
account a beneficial interest in a Rule 144A Global Note in a principal amount equal to that
of the beneficial interest in a Regulation S Temporary Global Note or a Regulation S
Permanent Global Note, as applicable, to be so transferred, (B) a written order (or notice
from DTC of its receipt of such order) given in accordance with the Applicable Procedures
containing information regarding the account of the Depositary Participant to be credited
with, and the account of the Depositary Participant to be debited for, such beneficial
interest and (C) with respect to a transfer of a beneficial interest in a Regulation S
Global Note to a Person whom the transferor reasonably believes is a “qualified
institutional buyer” within the meaning of Rule 144A under the Securities Act, a certificate
in substantially the form set forth in Exhibit C-2 given by the transferor of such
beneficial interest, the principal amount of a Rule 144A Global Note shall be increased, and
the principal amount of a Regulation S Temporary Global Note or a Regulation S Permanent
Global Note, as applicable, shall be reduced, by the principal amount of the beneficial
interest in a Rule 144A Global Note to be so transferred, in each case by means of an
appropriate adjustment on the records of the Security Registrar and the Security Registrar
shall instruct DTC or its authorized representative to make a corresponding adjustment to
its records and to credit or cause to be credited to the account of the Person specified in
such instructions a beneficial interest in the Rule 144A Global Note having a principal
amount equal to the amount so transferred.




     (vi) Regulation S Permanent Global Note to Regulation S Permanent Global Note. Any
exchange of a beneficial interest in a Regulation S Temporary Global Note for a Regulation S
Permanent Global Note shall be permitted only as set forth in Section 2.04. If the Holder of
a beneficial interest in Regulation S Permanent Global Note wishes at any time to transfer
such interest to a Person who wishes to take delivery thereof in the form of a beneficial
interest in a Regulation S Permanent Global Note, such transfer may be effected, subject to
the Applicable Procedures, only in accordance with the provisions of this Section
2.18(a)(vi). Upon receipt by the Security Registrar of (A) written instructions (or notice
from DTC of its receipt of instruction) given in accordance with the Applicable Procedures
from a Depositary Participant directing the Security Registrar, to credit or cause to be
credited to a specified Depositary Participant’s account a beneficial interest in a
Regulation S Permanent Global Note in a principal amount equal to that of the beneficial
interest in a Regulation S Permanent Global Note to be so transferred; (B) a written order
(or notice from DTC of its receipt of instruction) given in accordance with the Applicable
Procedures containing information regarding the account of the Depositary Participant to be
credited with, and the account of the Depositary Participant to be debited for, such
beneficial interest and (C) a certificate in substantially the form set forth in Exhibit D;
the principal amount of a Regulation S Permanent Global Note shall be reduced, and the
principal amount of a Regulation S Permanent Global Note shall be increased, by the
principal amount of the beneficial interest in a Regulation S Permanent Global Note to be so
transferred, in each case by means of an appropriate adjustment on the records of the
Security Registrar, and the Security Registrar shall



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instruct DTC or its authorized representative to make a corresponding adjustment to its
records and to credit or cause to be credited to the account of the Person specified in such
instructions a beneficial interest in a Regulation S Permanent Global Note having a
principal amount equal to the amount so transferred.




     (vii) Exchanges of Global Note for Non-Global Note. In the event that a Global Note or
any portion thereof is exchanged for Notes other than Global Notes, such other Notes may in
turn be exchanged (on transfer or otherwise) for Notes that are not Global Notes or for
beneficial interests in a Global Note (if any is then outstanding) only in accordance with
procedures which shall be substantially consistent with the provisions of clauses (i) and
(iii) through (vi) above (including the certification requirements intended to insure that
transfers and exchanges of beneficial interests in a Global Note comply with Rule 144A, Rule
144 or Regulation S, as the case may be) and any Applicable Procedures, as may be from time
to time adopted by the Company and the Trustee. Notwithstanding anything to the contrary in
this Indenture, definitive Notes shall not be issued upon the transfer or exchange of
beneficial interests in the Regulation S Temporary Global Note except in accordance with
Section 2.04.



     (b) Global Notes. The provisions of clauses (i), (ii), (iii), and (iv) below shall apply only
to Global Notes:




     (i) General. Each Global Note authenticated under the Indenture shall be registered in
the name of the appropriate Depositary or a nominee thereof and delivered to such Depositary
or a nominee thereof or custodian therefor.




     (ii) Transfer to Persons Other than Depositary. Notwithstanding any other provision in
the Indenture or the Notes, no Global Note may be exchanged in whole or in part for Notes
registered, and no transfer of a Global Note in whole or in part may be registered, in the
name of any person other than the appropriate Depositary or a nominee thereof, unless, (A)
in the case of a Global Note, DTC notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Note, or DTC ceases to be a “clearing agency” (as
such term is defined in Section 17A of the Exchange Act) registered under the Exchange Act,
and a successor to DTC is not appointed by the Company within ninety (90) days, (B) the
Company executes and delivers to the Trustee and Security Registrar an Officers’ Certificate
stating that such Global Note shall be so exchangeable, or (C) an Event of Default has
occurred and is continuing with respect thereto and the owner of a beneficial interest
therein requests such exchange or transfer. Any Global Note exchanged pursuant to Section
2.18(a)(i) above shall be so exchanged in whole and not in part and any Global Note
exchanged pursuant to Section 2.18(a)(vii) above may be exchanged in whole or from time to
time in part as directed by DTC. Any Note issued in exchange for a Global Note or any
portion thereof shall be a Global Note, provided that any such Note so issued that is
registered in the name of a Person other than the appropriate Depositary or a nominee
thereof shall not be a Global Note.




     (iii) Global Note to Physical Note. Subject to Section 2.18(a)(vii), Physical Notes in
exchange for a Global Note or any portion thereof pursuant to clause (ii) above shall be
issued in definitive, fully registered form without interest coupons, shall have an



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aggregate principal amount equal to that of such Global Note or portion thereof to be
so exchanged, shall be registered in such names and be in such authorized denominations as
the Depositary shall designate and shall bear any legends required hereunder. Any Global
Note to be exchanged in whole shall be surrendered by the Depositary to the appropriate
Security Registrar. With regard to any Global Note to be exchanged in part, either such
Global Note shall be so surrendered for exchange or, in the case of a Global Note, if the
Trustee is acting as custodian for DTC or its nominee with respect to such Global Note, the
principal amount thereof shall be reduced, by an amount equal to the portion thereof to be
so exchanged, by means of an appropriate adjustment made on the records of the Trustee, as
Authenticating Agent, or of the Depositary. Upon any such surrender or adjustment, the
Trustee shall authenticate and deliver the Note issuable on such exchange to or upon the
order of the Depositary or an authorized representative thereof.




     (iv) Certificates. In the event of the occurrence of any of the events specified in
clause (ii) above, the Company will promptly make available to the Trustee a reasonable
supply of Physical Notes in definitive, fully registered form, without interest coupons.




     (v) No Rights of Depositary Participants in Global Note. No Depositary Participant, nor
any other Persons on whose behalf Depositary Participants may act, shall have any rights
under the Indenture with respect to any Global Note or under any Global Note, and the
Depositary or its nominee, as the case may be, may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner and Holder of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by the
Depositary or such nominee, as the case may be, or impair, as between DTC, their respective
Depositary Participants and any other person on whose behalf a Depositary Participant may
act, the operation of customary practices of such Persons governing the exercise of the
rights of a Holder.



     Section 2.19. Special Transfer Provisions.



     (a) If a Holder proposes to transfer a Note pursuant to any exemption from the registration
requirements of the Securities Act other than as provided for above, the Security Registrar shall
only register such transfer or exchange if such transferor delivers to the Security Registrar and
the Trustee an Opinion of Counsel satisfactory to the Company and the Security Registrar that such
transfer is in compliance with the Securities Act and the terms of this Indenture; provided that
the Company may, based upon the opinion of its counsel, instruct the Security Registrar by a
Company Order not to register such transfer in any case where the proposed transferee is not a QIB
or a Non-U.S. Person.



     (b) By its acceptance of any Note bearing legends, each Holder of such Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture and in the legends and agrees
that it will transfer such Note only as provided in this Indenture.




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     (c) The Security Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 2.17, 2.18 or this Section 2.19 for a period of two
years, after which time such letters, notices and other written communications shall at the written
request of the Company be delivered to the Company. The Company shall have the right to inspect and
make copies of all such letters, notices or other written communications at any reasonable time
upon the giving of reasonable prior written notice to the Security Registrar.



ARTICLE 3




Repayment of the Notes




     Section 3.01. Repayment. The Company shall, not more than 30 and not less than 15 days
prior to each Repayment Date, notify the Trustee in writing of the principal amount of Notes to be
repaid on such date pursuant to Section 2.02(a), which notice shall have attached thereto the
Notice of Repayment, which shall be given by the Trustee to the Holders as soon as practicable
thereafter. If the Company anticipates that it will repay the Notes in part, and not in full, on
any Repayment Date, the Company shall use its commercially reasonable efforts to deliver notice
pursuant to this Section 3.01 to the Trustee 30 days prior to such Repayment Date.



     Section 3.02. Selection of Securities to be Repaid. If less than all the Notes are to
be repaid on any Repayment Date (unless such repayment affects only a single Note), the particular
Notes to be repaid shall be selected not more than 30 days prior to such Repayment Date by the
Trustee in accordance with Section 11.03.



     The Trustee shall promptly notify the Company in writing of the Notes selected for partial
repayment and the principal amount thereof to be repaid. For all purposes hereof, unless the
context otherwise requires, all provisions relating to the repayment of Notes shall relate, in the
case of any Note repaid or to be repaid only in part, to the portion of the principal amount of
such Note which has been or is to be repaid. If the Company shall so direct, Notes registered in
the name of the Company or any Subsidiary thereof shall not be included in the Notes selected for
repayment.



     Section 3.03. Notice of Repayment. Notice of repayment (each a “Notice of Repayment”)
shall be given by first-class mail, postage prepaid, mailed not earlier than the 15th Business Day,
and not later than the 10th Business Day, prior to the Repayment Date, to each Holder of the Notes
to be repaid, at the address of such Holder as it appears in the Security Register; provided that
additional notices (each a “Supplemental Notice”) may be given to the Holders specifying additional
details relating to such repayment no later than the 5th Business Day prior to the Repayment Date.



     Each Notice of Repayment, to the extent not specified thereafter by any applicable
Supplemental Notice, shall identify the Notes to be repaid (including CUSIP number) and shall
state:



     (a) the Repayment Date, the price at which the Notes are to be repaid, and the amount of any
accrued Interest (including Additional Interest) thereon as of the Repayment Date;



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     (b) if less than all Outstanding Notes are to be repaid, the identification (and, in the case
of partial repayment, the respective principal amounts) of the particular Notes to be repaid;



     (c) that on the Repayment Date, the principal amount of the Notes to be repaid shall become
due and payable upon each such Note or portion thereof, and that Interest thereon shall cease to
accrue on and after said date; and



     (d) the place or places where such Notes are to be surrendered for payment of the principal
amount thereof.



     Notice of Repayment shall be given by the Trustee in the name and at the expense of the
Company and shall be irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder receives such notice. In
any case, a failure to give such notice by mail or any defect in the notice to the Holder of any
Notes designated for repayment as a whole or in part shall not affect the validity of the
proceedings for the repayment of any other Notes.



     Section 3.04. Deposit of Repayment Amount. Prior to 10:00 a.m. New York City time on
the Repayment Date specified in the Notice of Repayment, the Company shall deposit with the Trustee
or with one or more Paying Agents (or if the Company is acting as its own Paying Agent, the Company
shall segregate and hold in trust as provided in Section 10.03) an amount of money, in immediately
available funds, sufficient to pay the principal amount of, and any accrued Interest (including
Additional Interest thereon) on, all the Notes which are to be repaid on that date.



     Section 3.05. Payment of Notes Subject to Repayment. If any Notice of Repayment has
been given, the Notes or portion of the Notes with respect to which such notice has been given, or
if any Supplemental Notice is given which identifies the particular Notes to be repaid, the Notes
or portion thereof so identified, shall become due and payable on the date and at the place or
places stated in such notice. On presentation and surrender of such Notes at a Place of Payment in
said notice specified, the Notes or the specified portion thereof shall be paid by the Company at
their principal amount, together with accrued Interest (including any Additional Interest thereon)
to the Repayment Date.



     If any date fixed for repayment is not a Business Day, then repayment of the principal amount
of the Notes and accrued and unpaid interest shall be made on the next day that is a Business Day,
without any Interest or other payment for delay.



     Upon presentation of any Note repaid in part only, the Company shall execute and the Trustee,
upon receipt of a Company Order to do so, shall authenticate and make available for delivery to the
Holder thereof, at the expense of the Company, a new Note or Notes, of authorized denominations, in
aggregate principal amount equal to the portion of the Note not repaid and so presented and having
the same date of original issuance, Scheduled Maturity Date, Final Maturity Date and terms.



     If any Note called for repayment shall not be so paid upon surrender thereof, the principal of
such Note shall, until paid, bear Interest from the Repayment Date at the rate prescribed therefor
in the Note.



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ARTICLE 4




Satisfaction and Discharge




     Section 4.01. Satisfaction and Discharge of Indenture. This Indenture shall upon
Company Request cease to be of further effect with respect to the Notes (except as to (i) any
surviving rights of registration of transfer or exchange of Notes herein expressly provided for,
(ii) any rights under Sections 2.07, 2.09, 10.02 and 10.03, (iii) rights hereunder of Holders to
receive payments of principal of, and premium, if any, and Interest on, Notes, and other rights,
duties and obligations of the Holders as beneficiaries hereof with respect to the amounts, if any,
so deposited with the Trustee and (iv) the rights and immunities of the Trustee hereunder, and the
obligations of the Trustee under or as described in this Article 4), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge
of this Indenture with respect to the Notes, when:



          (1) either:





     (A) all Notes theretofore authenticated and delivered (other than (i) Notes
which have been mutilated, destroyed, lost or stolen and which have been replaced as
provided in Section 2.09 and (ii) Notes for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in Section 10.03)
have been delivered to the Trustee for cancellation; or




     (B) all Notes not theretofore delivered to the Trustee for cancellation have
become due and payable, will become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to the Trustee
and the Company has deposited or caused to be deposited with the Trustee as trust
funds in trust




     (i) money in U.S. dollars in an amount sufficient, or




     (ii) (a) U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms
will provide not later than one day before the due date of any payment
referred to in clause (B) of this subparagraph money in an amount, or (b) a
combination of such money and such U.S. Government Obligations, sufficient,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee,




to pay and discharge the entire indebtedness on the Notes not theretofore delivered
to the Trustee for cancellation, for principal (and premium, if any) and Interest to
the date of such deposit (in the case of Notes which have become due and payable) or
to the Scheduled Maturity Date, the Final Maturity Date or Redemption Date, as the
case may be;



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     (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 Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with and no deposit made
under this Section 4.01 was made in violation of Section 12.02; provided, that, such Opinion
of Counsel need not include an opinion as to the sufficiency of the funds deposited in trust
and delivered to the Trustee pursuant to this Section 4.01.



     Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 6.06, and, if money or U.S. Government Obligations shall have
been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section 4.01, the
obligations of the Trustee under Section 4.02 and the next to last paragraph of Section 10.03,
shall survive.



     Section 4.02. Application of Trust Funds; Indemnification. Subject to the provisions
of the next to last paragraph of Section 10.03, all money or U.S. Government Obligations deposited
with the Trustee pursuant to Section 4.01 and all money received by the Trustee in respect of U.S.
Government Obligations deposited with the Trustee pursuant to Section 4.01 shall be held in trust
and applied by it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and Interest for whose payment such money has been deposited with or received by
the Trustee, but such money need not be segregated from other funds except to the extent required
by law.



     (a) The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against U.S. Government Obligations deposited pursuant to Section 4.01, or
the Interest and principal received in respect of such obligations other than any amount payable by
or on behalf of Holders.



     (b) The Trustee shall deliver or pay to the Company from time to time upon Company Request any
U.S. Government Obligations or money held by it as provided in Section 4.01 which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the same opinions given to the Trustee
pursuant to Section 4.01), is then in excess of the amount thereof which then would have been
required to be deposited for the purpose for which such obligations or money was deposited or
received. Such accounting opinion shall not be required once all amounts outstanding under the
Notes and due under this Indenture have been paid in full.



     Section 4.03. Legal Defeasance and Discharge of Indenture. The Company shall be deemed
to have paid and discharged the entire indebtedness on all the Outstanding Notes on the first date
that all of the conditions set forth in the proviso below are satisfied, and the provisions of this
Indenture, as it relates to such Outstanding Notes, shall no longer be in effect (and the Trustee,
at the expense of the Company, shall at Company Request, execute proper instruments acknowledging
the same), except as to:



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     (a) the rights of Holders of Notes to receive, from the trust funds described in Section
4.03(c) hereof, (x) payment of the principal of (and premium, if any) and each installment of
principal of (and premium, if any) or Interest on the Notes when such principal or installment of
principal or Interest is due and payable in accordance with the terms of this Indenture and the
Notes and (y) the benefit of any mandatory sinking fund payments applicable to the Notes on the day
on which such payments are due and payable in accordance with the terms of this Indenture and the
Notes;



     (b) the Company’s obligations with respect to such Notes under Sections 2.07, 2.09, Section
3.05, 10.02 and 10.03; and



     (c) the obligations of the Company to the Trustee under Section 6.06;



     provided, however, that the following conditions shall have been satisfied:




     (i) the Company has or caused to be irrevocably deposited (except as provided in
Section 4.02) with the Trustee as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of the Notes,




     (A) money in U.S. Dollars in an amount sufficient, or




     (B) (1) U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will provide not later
than one day before the due date of any payment referred to in this Section 4.03(c)
money in an amount or (2) a combination of such money and such U.S. Government
Obligations, sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written certification
thereof delivered to the Trustee,


to pay and discharge the principal of (and premium, if any) and each installment of principal of
(and premium, if any) and Interest on the Outstanding Notes on the dates on which such payments are
due and payable in accordance with the terms of this Indenture and the Notes of such principal or
installment of principal or Interest or on the applicable Redemption Date;





     (ii) such deposit shall not cause the Trustee with respect to the Notes to have a
conflicting interest for purposes of the Trust Indenture Act with respect to the Notes;




     (iii) such deposit will not result in a breach or violation of, or constitute a default
under this Indenture or any other material agreement or instrument to which the Company is a
party or by which it is bound;




     (iv) no Event of Default or event which with notice or lapse of time would become an
Event of Default with respect to the Notes shall have occurred and be continuing on the date
of such deposit; and




     (v) if the deposit referred to in subparagraph (i) of this Section 4.03 is to be made
on or prior to one year from the Scheduled Maturity Date for payment of principal of the
Outstanding Notes, the Company has delivered to the Trustee an Opinion of



- 49 -









 






Counsel with no material qualifications or a favorable ruling of the United States
Internal Revenue Service, in either case to the effect that Holders of the Notes will not
recognize income, gain or loss for federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to federal income tax on the same amount and in
the same manner and at the same times, as would have been the case if such deposit,
defeasance and discharge had not occurred, and such Opinion of Counsel, in the case of
defeasance, must refer to and be based upon a letter ruling of the United States Internal
Revenue Service received by the Company, a Revenue Ruling published by the United States
Internal Revenue Service or a change in applicable federal income tax law occurring after
the date of this Indenture.



     Section 4.04. Defeasance of Certain Obligations. The Company shall be released from
its obligations under Section 8.01, and the occurrence of an event specified in Section 5.03(1)
shall not be deemed to be an Enforcement Event on and after the date the conditions set forth below
are satisfied, (“Covenant Defeasance”) if:




     (i) the Company has deposited or caused to be irrevocably deposited with the Trustee as
trust funds in trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Notes,




     (A) money in U.S. dollars in an amount sufficient, or




     (B) (1) U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will provide not later
than one day before the due date of any payment referred to in this Section 4.04
money in an amount, or (2) a combination of such money and such U.S. Government
Obligation, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee,


to pay and discharge the principal of (and premium, if any) and each installment of principal (and
premium, if any) and Interest on the Outstanding Notes on the dates on which such payments are due
and payable in accordance with the terms of this Indenture and the Notes;





     (ii) such deposit shall not cause the Trustee with respect to the Notes to have a
conflicting interest for purposes of the Trust Indenture Act with respect to the Notes;




     (iii) such deposit will not result in a breach or violation of, or constitute a default
under this Indenture or any other material agreement or instrument to which the Company is a
party or by which it is bound;




     (iv) if the deposit referred to in subparagraph (i) of this Section, 4.04 is to be made
on or prior to one year from the Scheduled Maturity Date or Final Maturity Date for payment
of principal of the Outstanding Notes, the Company has delivered to the Trustee an Opinion
of Counsel with no material qualifications or a favorable ruling of the United States
Internal Revenue Service, in either case to the effect that Holders of the Notes will not
recognize income, gain or loss for federal income tax purposes as a result of such deposit
and defeasance of certain obligations and will be subject to federal



- 50 -









 






income tax on the same amount and in the same manner and at the same times, as would
have been the case if such deposit and defeasance had not occurred; and




     (v) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
Covenant Defeasance contemplated by this Section 4.04 have been complied with.



ARTICLE 5




Remedies




     Section 5.01. Events of Default. “Event of Default” with respect to the Notes whenever
used herein means any one of the following events that has occurred and is continuing:




     (1) default in the payment of Interest (including Additional Interest thereon) in full
on any Note for a period of 30 days after the conclusion of a ten-year period following the
commencement of any Deferral Period; or




     (2) the failure to pay the principal of any Note when due and payable, whether on the
Final Maturity Date, upon redemption or upon a declaration of acceleration; or




     (3) a court having jurisdiction in the premises shall enter a decree or order for
relief in respect of the Company in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company
or for any substantial part of its property or ordering the winding up or liquidation of its
affairs, and such decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or




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



     Section 5.02. Acceleration of Maturity; Rescission and Annulment. If an Event of
Default (other than an Event of Default under Section 5.01(3) or (4)) occurs and is continuing,
then in every such case the Trustee or the Holders of at least 25% in aggregate principal amount of
the Outstanding Notes may declare the principal amount of, and accrued Interest (including
Additional Interest thereon) on, all the Notes 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.



     In case of an Event of Default under Section 5.01(3) or (4) which occurs and is continuing
with respect to the Notes, then all unpaid principal of, and accrued Interest (including



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Additional Interest thereon) on, all such Outstanding Notes shall become immediately due and
payable without any notice or other action on the part of the Trustee or the Holders of any Notes.
For the avoidance of doubt, no other default or circumstances other than the ones specifically set
forth in Section 5.01(1), (2), (3) or (4) under the Indenture shall give the Holders or the Trustee
the right to declare the principal amount of, and accrued Interest (including Additional Interest
thereon) or any other amounts on the Notes immediately due and payable.




     At any time after such a declaration of acceleration with respect to the Notes has been made
and before a judgment or decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in aggregate principal amount of
the Outstanding Notes, 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 on the Notes,




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




     (C) to the extent that payment of such Interest is lawful, Interest on overdue
Interest at the rate or rates prescribed therefor in the Notes, and




     (D) all sums paid or advanced by the Trustee and any predecessor Trustee
hereunder and all sums due the Trustee and any predecessor Trustee under Section
6.06; and




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



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



     Section 5.03. Enforcement Events. The term “Enforcement Event” whenever used herein
means any one of the following events:




     (1) default by the Company in the observance, satisfaction or performance of any of the
covenants or agreements contained in this Indenture (other than a covenant or agreement in
respect of the Notes a default in whose observance, satisfaction or performance is elsewhere
in this Section or in Section 5.01 specifically dealt with) on the part of the Company in
respect of the Notes that continues following a period of 60 days after the date on which
written notice of such failure, requiring the Company to remedy the same and stating that it
is a “Notice of Enforcement Event” hereunder, shall have been given to the Company by the
Trustee by registered mail, or to the Company and the



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Trustee by the Holders of at least a majority in the aggregate principal amount of the
Notes at the time Outstanding; or




     (2) unless the Scheduled Maturity Obligations shall have terminated in accordance with
Section 2.02(a) and except under the circumstances set forth in Section 2.02(a)(viii), the
Company’s failure to use Commercially Reasonable Efforts to raise sufficient proceeds from
the issuance of Qualifying Capital Securities to repay the Notes in full on a Repayment
Date;




     (3) the Company’s failure to pay Interest on the Notes in accordance with the
Alternative Payment Mechanism as required herein; or




     (4) the Company’s failure to raise Eligible Proceeds.



     Except as provided in the last sentence of this paragraph, if any Enforcement Event with
respect to the Notes occurs and is continuing, the Trustee may in its discretion, or at the written
request of the Holders of at least a majority in principal amount of the Outstanding Notes after
such Holders have provided the Trustee with reasonable indemnity or security as contemplated by
Article 6 shall, subject to Article 6, proceed to protect and enforce its rights and the rights of
the Holders of Notes by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific performance 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. The Company acknowledges that any failure by the Company to
comply with its obligations under Section 5.03(2) through (4) hereof may result in material
irreparable injury to Holders, for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event of any such failure,
any Holder may obtain such relief as may be required to specifically enforce the Company’s
obligations under Section 5.03(2) through (4) hereof.



     For the avoidance of doubt, an Enforcement Event shall not constitute an Event of Default
under the Indenture (other than as specifically set forth under Section 5.01(1)) and shall not give
the Holders or the Trustee the right to declare the principal amount of, and accrued Interest
(including Additional Interest thereon) or any other amounts on the Notes immediately due and
payable under any circumstances.



     Notwithstanding anything herein to the contrary, the Trustee shall have no responsibility,
including any right or obligation to exercise remedies, with respect to a default by the Company
with respect to any covenant contained herein, other than a covenant the violation of which
constitutes, or with the giving of notice or the passage of time or both, would constitute, an
Event of Default or an Enforcement Event; provided, that nothing in this paragraph shall impair the
right of the Trustee to enforce the Company’s obligations hereunder with respect to the Trustee’s
compensation, reimbursement of expenses and advances and indemnities.



     Section 5.04. 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 the property of the Company or
its creditors, the Trustee (irrespective of whether the principal of the Notes shall



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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, premium or Interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise:





     (i) 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 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 of the Holders allowed in such judicial
proceeding; and




     (ii) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.06.



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



     Section 5.05. Trustee May Enforce Claims Without Possession of Notes. All rights of
action and claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee
without the possession of any of the 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 Notes in respect of which such judgment
has been recovered.



     Section 5.06. Application of Money Collected. Any money collected by the Trustee
pursuant to this article shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal (or premium, if any)
or Interest, upon presentation of the 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 and each predecessor Trustee under
Section 6.06;



     SECOND: Subject to Article 12, to the payment of the amounts then due and unpaid for principal
of (and premium, if any) and Interest on the Notes in respect of which or for the benefit of which
such money has been collected ratably, without preference or priority of any kind,



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according to the amounts due and payable on such Notes for principal (and premium, if any) and
Interest, respectively; and




     THIRD: To the Company.



     Section 5.07. Limitation on Suits. No Holder of any Note 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) an Event of Default or Enforcement Event shall have occurred and be continuing, and
such Holder has previously given written notice to the Trustee of such continuing Event of
Default or Enforcement Event, as the case may be;




     (2) the Holders of not less than 25% in principal amount of the Outstanding Notes in
the case of an Event of Default, or a majority in principal amount of the Outstanding Notes
in the case of an Enforcement Event, shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default or Enforcement Event, as the case
may be, 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) in the case of an Event of Default, no direction inconsistent with such request
shall have been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Notes;


it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture 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 such Holders.




     Section 5.08. Unconditional Right of Holders to Receive Principal, and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Note shall have the right,
which is absolute and unconditional, to receive payment of the principal of (and premium, if any)
and (subject to Section 2.12 and to the limitation as to Interest specified in Section 2.02(d)(iv))
Interest on such Note at the times herein prescribed and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of such Holder.



     Section 5.09. Restoration of Rights and Remedies. If the Trustee or any Holder has
instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding
has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee
or to such Holder, then and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored



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



     Section 5.11. Delay or Omission Not Waiver. No delay or omission of the Trustee or of
any Holder of any Notes to exercise any right or remedy accruing upon any Event of Default or
Enforcement Event shall impair any such right or remedy or constitute a waiver of any such Event of
Default or Enforcement Event or any acquiescence therein. Every right and remedy given by this
article or by law to the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may be.



     Section 5.12. Control by Holders. The Holders of a majority in principal amount of the
Outstanding Notes shall have the right (subject to the Trustee’s right first to be indemnified for
associated costs and liabilities as provided in Article 6) 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 Notes, provided, however, that




     (1) such direction shall not be in conflict with any rule of law or with this
Indenture, expose the Trustee to personal liability or be unduly prejudicial to Holders not
joining therein; and




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



     Nothing in this Indenture shall impair the right of the Trustee to take any other action
deemed proper by the Trustee which is not inconsistent with such direction.



     Section 5.13. Waiver of Past Defaults. The Holders of not less than a majority in
principal amount of the Outstanding Notes may on behalf of the Holders of all the Notes waive any
past default hereunder and its consequences, except that the consent of each Holder of Notes
affected thereby is required to waive a default:




     (1) in the payment of the principal of (or premium, if any) or Interest on any Note; or




     (2) in respect of any provision hereof which under this Indenture cannot be modified or
amended without the consent of the Holder of each Outstanding Note affected thereby.



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



     Section 5.14. Undertaking for Costs. All parties to this Indenture agree, and each
Holder of any Note by its 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
5.14 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 Notes, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or Interest on any Notes on or
after the Final Maturity Date expressed in such Note (or, in the case of redemption, on or after
the Redemption Date).



     Section 5.15. 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.



     Section 5.16. Notice of Defaults. Within 90 days after the occurrence of a default or
Event of Default or Enforcement Event hereunder is known to the Responsible Officer of the Trustee,
the Trustee shall transmit by mail to all Holders of Notes, as their names and addresses appear in
the Note Register, notice of such default hereunder, 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 Note, 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
determines that the withholding of such notice is in the interest of the Holders of Notes. For the
purpose of this Section 5.16, the term “default” means any event which is, or after notice or lapse
of time or both would become, an Event of Default or Enforcement Event.



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ARTICLE 6




The Trustee




     Section 6.01. Duties and Responsibilities of Trustee. With respect to the Holders of
the Notes issued hereunder, the Trustee, prior to the occurrence of an Event of Default or an
Enforcement Event with respect to the Notes known to the Trustee and after the curing or waiving of
all Events of Default or Enforcement Events which may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture. In case an Event of
Default or an Enforcement Event with respect to the Notes known to the Trustee has occurred (which
has not been cured or waived) the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own affairs.



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




     (1) prior to the occurrence of an Event of Default or an Enforcement Event with respect
to the Notes known to the Trustee and after the curing or waiving of all Events of Default
or Enforcement Events which may have occurred: (a) the duties and obligations of the Trustee
with respect to the Notes shall be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and (b) in the absence of
bad faith, gross negligence or willful misconduct on the part of the Trustee, the Trustee
may conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically 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;




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




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




     (4) none of the provisions of this Indenture shall be construed as requiring the
Trustee to expend or risk its own funds or otherwise to incur any personal financial
liability in the performance of any of its duties hereunder, or in the exercise of any of
its



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rights or powers, if there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not reasonably assured to
it.



     Section 6.02. Reliance on Documents, Opinions, etc. Subject to the provisions of
Section 6.01:




     (1) the Trustee may rely and shall be protected in acting or refraining from acting
upon any Board Resolution, Officers’ Certificate, statement, instrument, Opinion of Counsel,
opinion, report, notice, request, direction, consent, order, or other paper or document
believed by it to be genuine and to have been signed or presented by the proper party or
parties;




     (2) any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an instrument signed in the name of the Company by the chief
executive officer, its president or one of its vice presidents or its secretary, assistant
secretary, treasurer or assistant treasurer (unless other evidence in respect thereof be
herein specifically prescribed); and any resolution of the Board of Directors may be
evidenced to the Trustee by a copy thereof certified by the Secretary, an Assistant
Secretary or an attesting secretary of the Company (unless other evidence in respect thereof
be herein specifically prescribed);




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




     (4) the Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of the Holders,
pursuant to the provisions of 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 therein or thereby;




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




     (6) the Trustee shall not be bound to make any inquiry or investigation into the facts
or matters stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, note or other paper or document unless
requested in writing so to do by the Holders of a majority in aggregate principal amount of
the Outstanding Notes; provided, however, that if the payment within a reasonable time to
the Trustee of the costs and expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security conferred upon it by the terms of this Indenture, the Trustee
may require reasonable indemnity against such costs, expenses or liabilities as a condition
to so proceeding; and the reasonable expense of such investigation shall be paid



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by the Company, or, if paid by the Trustee, shall be repaid by the Company upon demand;




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




     (8) the Trustee shall not be charged with knowledge of any default, Event of Default or
Enforcement Event unless and except to the extent either (1) a Responsible Officer of the
Trustee shall have actual knowledge of such default, Event of Default or Enforcement Event,
or (2) written notice of such default, Event of Default or Enforcement Event shall have been
given to the Trustee at the Corporate Trust Office, which notice makes reference to the
Notes or this Indenture.



     Section 6.03. No Responsibility for Recitals, etc. The recitals contained herein and
in the Notes shall be taken as the statements of the Company (except in the Trustee’s certificates
of authentication), and the Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this Indenture or the Notes,
provided that the Trustee shall not be relieved of its duty to authenticate Notes only as
authorized by this Indenture. The Trustee shall not be accountable for the use or application by
the Company of any of the Notes or of the proceeds thereof.



     Section 6.04. Ownership of Notes. The Trustee and any agent of the Company or of the
Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes with the
same rights it would have if it were not Trustee or such agent.



     Section 6.05. Reports by Trustee to Holders. As promptly as practicable after each
May 15 beginning with the May 15 following the date of this Indenture, the Trustee shall mail to
each Holder a brief report dated as of such May 15 that complies with 313(a) of the Trust Indenture
Act, if required by such 313(a) of the Trust Indenture Act. The Trustee also shall comply with
Section 313(b) of the Trust Indenture Act. The Trustee shall also transmit by mail all reports
required by Section 313(c) of the Trust Indenture Act.



     Section 6.06. Compensation and Indemnity. The Trustee shall be entitled to such
compensation as shall be agreed with the Company for all services rendered by them hereunder, and
the Company agrees promptly to pay such compensation and to reimburse the Trustee for the
reasonable out-of-pocket expenses (including reasonable counsel fees and expenses) incurred by them
in connection with or arising out of their services hereunder or the issuance of the Notes. The
Company also agrees to indemnify the Trustee for, and to hold them harmless against, any loss,
damages, claim, liability or expense (including reasonable counsel fees and expenses), incurred
without negligence or bad faith, arising out of or in connection with their acting as Trustee
hereunder, as well as the reasonable costs and expenses of defending against any claim of liability
in the premises. The obligations of the Company under this Section 6.06 shall survive the
termination of this Agreement, payment of all the Notes or the resignation or removal of the
Trustee. The Trustee shall promptly notify the Company of any claim for which the Trustee may seek
indemnity, including costs and expenses of defending the relevant party against any claim



- 60 -









 




for liability arising from the exercise or performance of any of its powers or duties
hereunder. The Company shall not be obligated to pay for any settlement of any such claim made
without its consent. To secure the Company’s payment obligations in this Section 6.06, the Trustee
shall have a lien prior to the Notes on all money or property held or collected by the Trustee, in
its capacity as Trustee, except money or property held in trust to pay principal of, premium, if
any, and interest on particular Notes.




     Section 6.07. Officers’ Certificate as Evidence. Subject to the provisions of Sections
6.01 and 6.02, whenever in the administration of the provisions of this Indenture the Trustee shall
deem it necessary or desirable that a matter be proved or established prior to taking, omitting or
suffering any action to be taken hereunder, such matter (unless other evidence in respect thereof
be herein specifically prescribed) may, in the absence of gross negligence or bad faith on the part
of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate
delivered to the Trustee, and such certificate, in the absence of gross negligence or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action taken, omitted or
suffered by it under the provisions of this Indenture upon the faith thereof.



     Section 6.08. Eligibility of Trustee. The Trustee hereunder shall at all times be a
corporation organized and doing business under the laws of the United States or any state thereof
or the District of Columbia, which (a) is authorized under such laws to exercise corporate trust
powers and (b) is subject to supervision or examination by Federal or State authority and (c) shall
have at all times a combined capital and surplus of not less than $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law, or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this Section 6.07, the
combined capital and surplus of such corporation at any time shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. In case at
any time the Trustee shall cease to be eligible in accordance with the provisions of this Section
6.07, the Trustee shall resign immediately in the manner and with the effect specified in Section
6.08.



     Section 6.09. Resignation or Removal of Trustee. The Trustee may at any time resign by
giving written notice to the Company of such intention on its part, specifying the date on which
its desired resignation shall become effective, provided that such date shall not be less than 60
days from the date on which such notice is given, unless the Company agrees to accept shorter
notice. The Trustee hereunder may be removed at any time by the filing with it of an instrument in
writing signed on behalf of the Company and specifying such removal and the date when it shall
become effective. The Holders of a majority in aggregate principal amount of the Outstanding Notes
may remove the Trustee as Trustee by notifying the removed Trustee and the Company. Notwithstanding
the dates of effectiveness of resignation or removal, as the case may be, to be specified in
accordance with the preceding sentences, such resignation or removal shall take effect only upon
the appointment by the Company, as hereinafter provided, of a successor Trustee (which, to qualify
as such, shall for all purposes hereunder be a corporation organized and doing business under the
laws of the United States of America or any state thereof or the District of Columbia, in good
standing and having and acting, either itself or through an affiliate, through an established place
of business in the Borough of Manhattan, The City of New York, authorized under such laws to
exercise corporate trust powers and having a combined capital and



- 61 -









 




surplus in excess of $50,000,000) and the acceptance of such appointment by such successor
Trustee. Upon its resignation or removal, the Trustee shall be entitled to payment by the Company
pursuant to Section 6.06 hereof of compensation for services rendered and to reimbursement of
reasonable out-of-pocket expenses incurred hereunder.




     Section 6.10. Successors. In case at any time the Trustee (or any Paying Agent if such
Paying Agent is the only Paying Agent located in a place where, by the terms of the Notes or this
Indenture, the Company is required to maintain a Paying Agent) shall resign, or shall be removed,
or shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or shall file a
voluntary petition in bankruptcy or make an assignment for the benefit of its creditors or consent
to the appointment of a receiver of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they severally mature, or if a receiver of it or
of all or any substantial part of its property shall be appointed, or if an order of any court
shall be entered approving any petition filed by or against it under the provisions of applicable
receivership, bankruptcy, insolvency or other similar legislation, or if any public officer shall
take charge or control of it or of its property or affairs, for the purpose of rehabilitation,
conservation or liquidation, a successor Trustee or Paying Agent, as the case may be, qualified as
aforesaid, shall be appointed by the Company by an instrument in writing, filed with the successor
Trustee or Paying Agent, as the case may be, and the predecessor Trustee or Paying Agent, as the
case may be. Upon the appointment as aforesaid of a successor Trustee or Paying Agent, as the case
may be, and acceptance by such successor of such appointment, the Trustee or Paying Agent, as the
case may be, so succeeded shall cease to be Trustee or Paying Agent, as the case may be, hereunder.
Within one year after the successor Trustee or Paying Agent, as the case may be, takes office, the
Holders of a majority in aggregate principal amount of the Notes may appoint a successor Trustee to
replace the successor Trustee appointed by the Company. If no successor Trustee or other Paying
Agent, as the case may be, shall have been so appointed by the Company and shall have accepted
appointment as hereinafter provided within 60 days after such resignation, removal or
disqualification, and, in the case of such other Paying Agent, if such other Paying Agent is the
only Paying Agent located in a place where, by the terms of the Notes or this Indenture, the
Company is required to maintain a Paying Agent, then any Holder of a Note who has been a bona fide
Holder of a Note for at least six months (which Note, in the case of such other Paying Agent, is
referred to in this sentence), on behalf of himself and all others similarly situated, or the
Trustee, may petition any court of competent jurisdiction for the appointment of a successor
trustee or paying agent, as the case may be. The Company shall give prompt written notice to each
other Paying Agent of the appointment of a successor Trustee.



     Section 6.11. Acknowledgement. Any successor Trustee appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an instrument accepting such
appointment hereunder, and thereupon such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties
and obligations of such predecessor with like effect as if originally named as Trustee hereunder
and all provisions hereof shall be binding on such successor Trustee, and such predecessor, upon
payment of its compensation and reimbursement of its disbursements then unpaid, shall thereupon
become obligated to transfer, deliver and pay over, and such successor Trustee shall be entitled to
receive, all monies, securities, books, records or other property on deposit with or held by such
predecessor as Trustee hereunder.



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     Section 6.12. Merger, Consolidation, etc. Any bank or trust company into which the
Trustee hereunder may be merged, or resulting from any merger or consolidation to which the Trustee
shall be a party, or to which the Trustee shall sell or otherwise transfer all or substantially all
of its corporate trust business, provided that it shall be qualified as aforesaid, shall be the
successor Trustee under this Indenture without the execution or filing of any paper or any further
act on the part of any of the parties hereto.



     Section 6.13. Appointment of Authenticating Agent. The Trustee may appoint an
Authenticating Agent or Agents which shall be authorized to act on behalf of the Trustee to
authenticate Notes issued upon original issue and upon exchange, registration of transfer, partial
conversion or partial redemption or repayment or pursuant to Section 2.06, and 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 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 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 as their
names and addresses appear in the Note 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.



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     The Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section.



     If an appointment is made pursuant to this Section, the Notes may have endorsed thereon, in
addition to the Trustee’s certificate of authentication, an alternative certificate of
authentication in the following form:



     “This is one of the Notes referred to in the within-mentioned Indenture.


U.S. BANK NATIONAL ASSOCIATION,

as Trustee




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

As Authenticating Agent
	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory”	 	 






ARTICLE 7




Delivery of Certain Information




     Section 7.01. Delivery of Rule 144A Information and Annual Conference Call.



     At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act and for
so long there be any Outstanding Notes, the Company shall, (i) upon the request of a Holder,
promptly furnish or cause to be furnished Rule 144A Information to such Holder or to a prospective
purchaser of such a Note who is designated by such Holder in order to permit compliance by such
Holder with Rule 144A under the Act in connection with the resale of such Note by such Holder and
(ii) no later than 90 days after the end of each fiscal year of the Company, conduct a conference
call for Holders with respect to the Company’s financial condition and results of operations for
such fiscal year. The Company shall send notice to Holders in accordance with Section 1.06
regarding the time, date and access information for such conference call no fewer than 15 Business
Days prior to such conference call.



     Section 7.02. Reports.



     (a) At any time when the Company is subject to Section 13 or 15(d) of the Exchange Act, the
Company covenants and agrees to provide to the Trustee such reports, information and documents, if
any, filed with the Commission.



     (b) Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein,



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including the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates).




ARTICLE 8




Successors




     Section 8.01. Merger, Consolidation, or Sale of Assets. As long as any Notes are
outstanding, the Company shall not consolidate or merge with or into any other Person or convey,
transfer, lease, sell or assign all or substantially all of its properties and assets to another
Person, unless:




     (i) either (A) the Company is the continuing Person or (B) both (x) the successor
Person expressly assumes by an indenture supplemental hereto executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal
of, and premium, if any, and Interest on the Notes, and the performance of every other
covenant of this Indenture on the part of the Company to be performed or observed; and (y)
the Person formed by the consolidation or into which the Company is merged or the Person
that acquires all or substantially all of the properties and assets of the Company is a
corporation or limited liability company organized and validly existing under the laws of
the United States, any State or the District of Columbia;




     (ii) immediately after giving effect to such transaction, no Event of Default and no
event that, after notice or lapse of time or both, would become an Event of Default shall
have happened and be continuing; and




     (iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion
of Counsel, each stating that such transaction and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture, comply with this Article
and that all conditions precedent herein provided for relating to such transaction have been
complied with.



     Section 8.02. Successor Corporation Substituted. Upon any consolidation of the Company
with, or merger of the Company into, any other Person or any conveyance, transfer, lease, sale or
assignment of all or substantially all of the properties and assets of the Company in accordance
with Section 8.01, the successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease or sale or assignment is made shall succeed
to, and be substituted for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Notes.



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ARTICLE 9




Amendments and Supplemental Indentures




     Section 9.01. Supplemental Indentures Without Consent of Holders. Subject to Section
9.06, the Company, when authorized by a Board Resolution, and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto for one or more of the
following purposes:



     (a) to evidence the succession of another Person to the Company, or successive successions,
and the assumption by the successor Person of the covenants, agreements and obligations of the
Company under the Indenture and the Notes pursuant to Article 8 hereof; provided that the event
giving rise to such succession was otherwise in accordance with the provisions set forth in this
Indenture;



     (b) to add to the covenants of the Company such further covenants, restrictions, conditions or
provisions for the benefit of the Holders of the Notes or to surrender any right or power herein
conferred upon the Company;



     (c) to amend the definition of “APM Securities” to eliminate Common Stock and/or Mandatorily
Convertible Preferred Stock from such definition, subject to the conditions specified under the
proviso of the definition of “APM Securities”;



     (d) to make any changes that would provide any additional rights or benefits to the Holders;



     (e) to increase the Share Cap;



     (f) to provide for the issuance of Additional Notes in accordance with the provisions of this
Indenture;



     (g) to evidence and provide for the acceptance of appointment by a successor trustee with
respect to the Notes;



     (h) to provide any guarantee of the Notes;



     (i) to cure any ambiguity or omission, to correct or supplement any provision herein which may
be defective or inconsistent with any other provision herein; or



     (j) to make any other provisions with respect to matters or questions arising under this
Indenture, in each case, which shall not be inconsistent with the provisions herein, provided such
action shall not adversely affect the interests of the Holders in any material respect.



     No amendment to this Indenture or the Notes made solely to conform this Indenture to the
description of the Notes contained in the Offering Memorandum will be deemed to adversely affect
the interests of the Holders.



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     The Trustee is hereby authorized to join with the Company in the execution of any such
supplemental indenture, to make any further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer and assignment of any property thereunder,
but the Trustee shall not be obligated to, but may in its discretion, enter into any such
supplemental indenture which affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.



     Any supplemental indenture authorized by the provisions of this Section 9.01 may be executed
by the Company and the Trustee without the consent of the Holders of any of the Notes at the time
Outstanding, notwithstanding any of the provisions of Section 9.02.



     After an amendment under this Section 9.01 becomes effective, the Company shall mail to
Holders of the Notes a notice briefly describing such amendment. The failure to give such notice
to all Holders of Notes, or any defect therein, shall not impair or affect the validity of an
amendment under this Section 9.01.



     Section 9.02. Supplemental Indentures With Consent of Holders. Subject to Section
9.06, with the consent (evidenced as provided in Section 1.04)
of the Holders of not less than a majority in the
aggregate principal amount of the Notes at the time Outstanding, the Company and the Trustee may
from time to time and at any time 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 any supplemental indenture or of modifying in any manner the rights of the
Holders of the Notes, and the Company shall not modify or supplement the Replacement Capital
Covenant in a manner to impose additional restrictions on the type or amount of Qualifying Capital
Securities that the Company may include for purposes of determining when repayment, redemption or
purchase of the Notes is permitted without obtaining the consent of at least a majority of the
Holders of the Notes. However, no such supplemental indenture shall, with respect to each Note held
by a non-consenting Holder:



     (a) change the Scheduled Maturity Date or the Final Maturity Date of the principal of, or any
installment of Interest on, any Note, or reduce the principal amount thereof or the rate of
interest thereon, alter the manner of calculation of Interest payable or extend the time for
payment of Interest on any Note;



     (b) reduce the percentage in principal amount of the Notes the consent of whose Holders of
Outstanding Notes is required for any supplement or amendment to this Indenture, or the consent of
whose Holders of Outstanding Notes is required for any waiver provided for in this Indenture;



     (c) modify the interest rate reset provisions of any Note;



     (d) reduce the Redemption Price of the Notes, or change the time at which the Notes may or
must be redeemed or purchased, or change any place of payment where any Note or Interest thereon is
payable;



     (e) make any change to the abilities of Holders to enforce their rights under this Indenture
or the Notes; or



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     (f) make any change in the provisions of the Indenture relating to waivers of past defaults or
the rights of holders of Notes to receive payments of principal of, premium, if any, or Interest,
or Additional Interest, if any, on the Notes,


without, in the case of each of the foregoing clauses (a) through (f), the consent of the Holder of
each Note so affected.




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



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



     After an amendment under this Section 9.02 becomes effective, the Company shall mail to
Holders of the Notes a notice briefly describing such amendments. The failure to give such notice
to all Holders of Notes, or any affect therein, shall not impair or affect the validity of any
amendment under this Section 9.02.



     Section 9.03. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article 9, this Indenture shall be deemed
to be modified and amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the
Holders of the Notes shall thereafter be determined, exercised and enforced hereunder subject in
all respects to such modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.



     Section 9.04. Notation on Notes. Notes authenticated and delivered after the execution
of any supplemental indenture pursuant to the provisions of this Article 9 may bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Notes so modified as to conform, in the opinion of
the Trustee and the Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company, authenticated by the Trustee
and delivered in exchange for the Notes then Outstanding.



     Section 9.05. Evidence of Compliance of Supplemental Indenture to Be Furnished
Trustee. The Trustee, subject to the provisions of Sections 6.01 and 6.02, may require delivery
to it, and shall be protected from liability in relying upon, an Officers’ Certificate and an
Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article 9.



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     Section 9.06. Prohibition on Certain Amendments and Supplements. Notwithstanding any
provision contained in this Article 9, neither the Company nor the Trustee may amend or supplement
the Indenture or the Notes to add Events of Default or other acceleration events.



ARTICLE 10




Covenants




     Section 10.01. Payment of Principal and Interest. Subject to Section 2.02(d), the
Company covenants and agrees for the benefit of the Notes that it will duly and punctually pay the
principal of (and premium, if any) and Interest on the Notes in accordance with the terms of the
Notes and this Indenture. At the option of the Company, payment of principal (and premium, if any)
and Interest on the Notes may be made either by wire transfer or (subject to collection) by check
mailed to the address of the Person entitled thereto at such address as shall appear in the Note
Register; provided that, in connection with payment by wire transfer, the Paying Agent shall have
received appropriate wire transfer instructions at least five Business Days prior to the applicable
payment date.



     Section 10.02. Maintenance of Office or Agency. The Company will maintain in each
Place of Payment an office or agency where the Notes may be presented or surrendered for payment,
registration of transfer or exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company hereby initially appoints the
Trustee its office or agency for each of said purposes. The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and demands.



     The Company may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in each Place of
Payment for such purposes. 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 10.03. Money for Notes; Payments to Be Held in Trust. If the Company shall at
any time act as its own Paying Agent with respect to the Notes, it will, on or before each due date
of the principal of (and premium, if any) or Interest on the Notes, 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 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.



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     Whenever the Company shall have one or more Paying Agents for the Notes, it will, on or prior
to each due date of the principal of (and premium, if any) or Interest on the Notes, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or Interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to such principal (and
premium, if any) or Interest, 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 other than the Trustee to execute and deliver to the
Trustee a written instrument in which such Paying 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 on the Notes 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 Notes) in the making of any payment of principal (and premium, if any) or Interest on
the Notes; 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 on any Note and
remaining unclaimed for two years after such principal (and premium, if any) or Interest 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 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 published in the English language, customarily published on each Business Day
and of general circulation in the City, County and State of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be less than 30 days
from the date of such mailing or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.



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     Section 10.04. Maintain Existence. Subject to Article 8, the Company will do or cause
to be done all things necessary to preserve and keep in full force and effect its existence, rights
(charter and statutory) and franchises; provided, however, that the Company shall not be required
to preserve any such right or franchise if the Board of Directors or senior management of the
Company shall determine that the preservation thereof is no longer desirable in the conduct of the
business of the Company and that the loss thereof is not disadvantageous in any material respect to
the Holders.



     Section 10.05. Statement by Officers as to Default. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company ending after the date
hereof, a certificate of the principal executive officer, principal financial officer or principal
accounting officer of the Company stating whether or not to the best knowledge of the signer
thereof the Company is in default in the performance and observance of any of the terms, provisions
and conditions of this Indenture, and if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.



ARTICLE 11




Redemption of Notes




     Section 11.01. General. The Notes shall be redeemable in accordance with Section
2.02(g) and this Article 11. Repayment of the Notes under Section 2.02(a) shall be in accordance
with Article 3 of this Indenture. In addition, the Company may purchase, acquire or otherwise hold
Notes.



     Section 11.02. Election to Redeem; Notice to Trustee. The election of the Company to
redeem any Notes shall be evidenced by a Board Resolution. In case of any redemption of the Notes
in whole or in part under Section 2.02(g) of this Indenture, the Company shall, at least 2 Business
Days prior to the date that Notice of Redemption is required to be given to Holders under Section
11.04 (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing
of such Redemption Date and of the principal amount of Notes to be redeemed, such notice to be
accompanied by an Officers’ Certificate stating that no defaults in the payment of Interest or
Events of Default with respect to the Notes have occurred (which have not been waived or cured). In
the case of any redemption of Notes (x) prior to the expiration of any restriction on such
redemption provided in the terms of such Notes or elsewhere in this Indenture or (y) pursuant to an
election of the Company which is subject to a condition specified in the terms of such Notes or
elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate
evidencing compliance with such restriction or condition.



     Section 11.03. Selection by Trustee of Notes to Be Redeemed. If less than all the
Notes are to be redeemed, the particular Notes to be redeemed shall be selected not more than 30
days prior to the Redemption Date by the Trustee, from the Outstanding Notes not previously called
for redemption, by such method as the Trustee in its sole discretion shall deem fair and
appropriate and which may provide for the selection or redemption of portions (equal to authorized
denominations for Notes) of the principal amount of Notes of a denomination larger than the minimum
authorized denomination for Notes.



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     The Trustee shall promptly notify the Company in writing of the Notes selected for redemption
and, in the case of any 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 Notes shall relate, in the case of any Notes redeemed or to be
redeemed only in part, to the portion of the principal amount of such Notes which has been or is to
be redeemed.



     Section 11.04. Notice of Redemption. Notice of Redemption shall be given by
first-class mail, postage prepaid, or by facsimile electronic transmission, mailed or transmitted
not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Notes to be
redeemed, at the Holder’s address appearing in the Note Register (“Notice of Redemption”). Any
notice which is mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not such Holder receives the notice. Failure to give notice by mail, or any
defect in the notice to any such Holder in respect of any Note, shall not affect the validity of
the proceedings for the redemption of any other Note.



     All notices of redemption shall state:




     (1) the Redemption Date;




     (2) the Redemption Price and any accrued Interest, or if the Redemption Price is not
then ascertainable, the manner of calculation thereof;




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




     (4) that on the Redemption Date, the Redemption Price and any accrued Interest will
become due and payable upon each such Note to be redeemed;




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




     (6) the CUSIP number and, if applicable, the ISIN number, of the Notes being redeemed.



     Notice of Redemption of Notes to be redeemed at the election of the Company shall be given by
the Company or, upon Company Request, by the Trustee to each Holder of the Notes to be redeemed in
the name and at the expense of the Company, provided that the Company makes such request to the
Trustee in writing at least 2 Business Days prior (unless the Trustee agrees to a shorter period)
to the date by which such Notice of Redemption must be given to Holders in accordance with this
Section 11.04.



     Section 11.05. Deposit of Redemption Price. Prior to 10:00 a.m. New York City time,
on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as provided in



- 72 -









 




Section 10.03) an amount of money, in funds immediately available on the due date, sufficient
to pay the Redemption Price. Promptly after the calculation of the Redemption Price, the Company
will give the Trustee and any Paying Agent written notice thereof.




     Section 11.06. Notes Payable on Redemption Date. Notice of redemption having been
given as aforesaid, the Notes so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date (unless the Company
shall default in the payment of the Redemption Price) such Notes shall cease to bear Interest. Upon
surrender of any such Note for redemption in accordance with said notice, such Note shall be paid
by the Company at the Redemption Price and in accordance with Section 2.02(c).



     If any 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 Note.



     The Trustee shall not redeem any Notes pursuant to this Article (unless all Outstanding Notes
are to be redeemed) or mail or give any notice of redemption of Notes during the continuance of an
Event of Default hereunder known to the Trustee, except that, where the mailing of notice of
redemption of any Notes shall theretofore have been made, the Trustee shall redeem or cause to be
redeemed such Notes, provided, however, that it shall have received from the Company a sum
sufficient for such redemption. Except as aforesaid, any moneys theretofore or thereafter received
by the Trustee shall, during the continuance of such Event of Default, be deemed to have been
collected under Article 5 and held for the payment of all Notes. In case such Event of Default
shall have been waived as provided in Section 5.13 or the default cured on or before the 60th day
preceding the Redemption Date, such moneys shall thereafter be applied in accordance with the
provisions of this Article.



     Section 11.07. Notes Redeemed in Part. Any Note which is to be redeemed only in part
shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Note without service charge, a new Note or Notes, 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 Note so surrendered.



ARTICLE 12




Subordination




     Section 12.01. Agreement to Subordinate.



     (a) The Company covenants and agrees, and each Holder of Notes issued hereunder by such
Holder’s acceptance thereof likewise covenants and agrees, that all Notes shall be issued



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subject to the provisions of this Article 12; and each Holder of a Note, whether upon original
issue or upon transfer or assignment thereof, accepts and agrees to be bound by such provisions.




     (b) The payment by the Company of the principal of (and premium, if any), and Interest
(including Deferred Interest) on, and all other amounts owing in respect of the Notes issued
hereunder, which amounts shall not include certain amounts of Interest upon a Bankruptcy Event as
set forth in Section 2.02(d)(iv), shall, to the extent and in the manner hereinafter set forth, be
subordinated and junior in right of payment to the prior payment in full in cash of the principal
of, Interest on and all other amounts owing in respect of all Senior Indebtedness of the Company,
whether outstanding at the date of this Indenture or thereafter incurred, and shall rank pari passu
with the Company’s trade accounts payable, accrued liabilities arising in the ordinary course of
business and any debt that by its terms ranks pari passu with the Notes.



     (c) No provision of this article shall prevent the occurrence of any default or Event of
Default or Enforcement Event hereunder.



     Section 12.02. Default on Senior Indebtedness.



     (a) No payment of any kind or character by or on behalf of the Company with respect to
principal of (and premium, if any), Interest on or other amounts owing in respect of the Notes or
to acquire any of the Notes for cash, property or otherwise, whether pursuant to the terms of the
Notes on the Final Maturity Date or upon acceleration, by way of repurchase, redemption, defeasance
or otherwise, will be made if, at the time of such payment, any default occurs and is continuing in
the payment when due, whether at maturity, upon any redemption, by declaration or otherwise, of
principal of, interest on, unpaid drawings for letters of credit issued in respect of, or regularly
accruing fees with respect to, any Senior Indebtedness, and such default shall not have been cured
or waived or the benefits of this Section 12.02(a) waived by or on behalf of the holders of such
Senior Indebtedness.



     (b) In the event that, notwithstanding the foregoing, any payment shall be received by the
Trustee when such payment is prohibited by Section 12.02(a), such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of such Senior Indebtedness
or their respective representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, as calculated by the Company, to the extent necessary to pay such Senior
Indebtedness in full, in cash, after giving effect to any concurrent payment or distribution to or
for the benefit of the holders of such Senior Indebtedness, before any payment or distribution is
made to the Holders or to the Trustee.



     Section 12.03. Liquidation; Dissolution; Bankruptcy.



     (a) Upon any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to creditors upon any total or partial dissolution,
winding-up, liquidation or reorganization of the Company, whether voluntary or involuntary,
assignment for the benefit of creditors or marshalling of the Company’s assets, or in bankruptcy,
insolvency, receivership or other similar proceedings relating to the Company or its assets,
whether voluntary or involuntary, all principal, premium, if any, and interest and all other



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amounts due or to become due regarding all Senior Indebtedness of the Company shall first be
paid in full in cash, or such payment duly provided for to the satisfaction of the holders of the
Senior Indebtedness, before any payment or distribution of any kind or character is made on account
of any principal of (premium, if any), Interest on or other amounts owing in respect of the Notes,
or for the acquisition of any of the Notes for cash, property or otherwise; and upon any such
dissolution, winding-up, liquidation or reorganization, any payment by the Company, or distribution
of assets of the Company of any kind or character whether in cash, property or securities, which
the Holders or the Trustee would be entitled to receive from the Company, except for the provisions
of this Article, shall be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution, or by the Holders
or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior
Indebtedness of the Company or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing such Senior Indebtedness may have
been issued, as their respective interests may appear, as calculated by the Company, to the extent
necessary to pay such Senior Indebtedness in full in cash, or to cause such payment to be duly
provided for to the satisfaction of the holders of the Senior Indebtedness, after giving effect to
any concurrent payment or distribution to or for the benefit of the holders of such Senior
Indebtedness, before any payment or distribution is made to the Holders or to the Trustee;




     (b) In the event that, notwithstanding Section 12.03(a), any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or securities, prohibited by
Section 12.03(a), shall be received by the Trustee before all Senior Indebtedness of the Company is
paid in full, or provision is made for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of such Senior Indebtedness or their respective representatives, or to
the trustee or trustees under any indenture pursuant to which any instruments evidencing such
Senior Indebtedness may have been issued, as their respective interests may appear, as calculated
by the Company, to the extent necessary to pay such Senior Indebtedness in full, in cash, after
giving effect to any concurrent payment or distribution to or for the benefit of the holders of
such Senior Indebtedness, before any payment or distribution is made to the Holders or to the
Trustee.



     (c) For purposes of this Article 12, the words “cash, property or securities” shall not be
deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the
Company or any other corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this Article with respect to
the Notes to the payment of all Senior Indebtedness of the Company that may at the time be
outstanding; provided, however, that (i) such Senior Indebtedness is assumed by the new
corporation, if any, resulting from any such reorganization or readjustment, and (ii) the rights of
the holders of such 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 limited liability company or the liquidation or dissolution of
the Company following the conveyance, transfer, sale or assignment of all or substantially all of
the properties and assets of the Company, to another corporation or limited liability company upon
the terms and conditions provided for in Article 8 of this Indenture shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this



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Section 12.03 if such other corporation or limited liability company shall, as part of such
consolidation, merger, conveyance, transfer, sale or assignment, comply with the conditions stated
in Article 8 of this Indenture. Nothing in Section 12.02 or in this Section 12.03 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 6.06 of this Indenture.




     Section 12.04. Subrogation.



     (a) Subject to the payment in full of all Senior Indebtedness of the Company then outstanding,
the rights of the Holders shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or securities of the Company
applicable to such Senior Indebtedness until the principal of and premium, if any, and Interest on
the Notes shall be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of such Senior Indebtedness of any cash, property or securities to
which the Holders or the Trustee would be entitled except for the provisions of this Article 12,
and no payment over pursuant to the provisions of this Article 12 to or for the benefit of the
holders of such Senior Indebtedness by Holders or the Trustee, shall, as between the Company, its
creditors other than holders of Senior Indebtedness, and the Holders, be deemed to be a payment by
the Company to or on account of such Senior Indebtedness. It is understood that the provisions of
this Article 12 are and are intended solely for the purposes of defining the relative rights of the
Holders, on the one hand, and the holders of such Senior Indebtedness, on the other hand.



     (b) Nothing contained in this Article 12 or elsewhere in this Indenture or in the Notes is
intended to or shall impair, as between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders the principal of (premium, if any) and Interest on the Notes as and when the
same shall become due and payable in accordance with their terms, or is intended to or shall affect
the relative rights of the Holders and the creditors of the Company other than the holders of
Senior Indebtedness nor shall anything herein or therein prevent the Trustee or any Holder of Notes
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 such Senior
Indebtedness in respect of cash, property or securities of the Company received upon the exercise
of any such remedy.



     (c) Upon any payment or distribution of assets of the Company referred to in this Article 12,
the Trustee, subject to the provisions of Section 6.01 of this Indenture, and the Holders shall be
entitled to rely conclusively upon any order or decree made by any court of competent jurisdiction
in which such dissolution, winding-up, liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidation trustee, agent or other Person
making such payment or distribution, delivered to the Trustee or the Holders, for the purposes of
ascertaining the Persons entitled to participate in such distribution, the holders of Senior
Indebtedness and other indebtedness of the Company the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this
article.



     Section 12.05. Trustee to Effectuate Subordination. Each Holder of Notes by such
Holder’s acceptance thereof authorizes the Trustee on such Holder’s behalf, if so directed by the



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Company, to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article 12 and appoints the Trustee such Holder’s attorney-in-fact
for any and all such purposes.




     Section 12.06. Notice by the Company.



     (a) 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 Notes pursuant to the provisions of this Article 12. Notwithstanding the
provisions of this Article 12 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 Notes pursuant to the provisions of this Article
12, unless and until a Responsible Officer of the Trustee shall have received written notice
thereof from the Company or a Holder or holders of Senior Indebtedness or from any representative
or trustee therefor; and before the receipt of any such written notice, the Trustee, subject to the
provisions of Section 6.01 of this Indenture, shall be entitled in all respects to assume that no
such facts exist; provided, however, that if the Trustee shall not have received the notice
provided for in this Section 12.06(a) 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 Interest on any Note), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to receive such money and
to apply the same to the purposes for which such money was 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.



     (b) The Trustee, subject to the provisions of Section 6.01 of this Indenture, shall be
entitled to conclusively rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Senior Indebtedness (or a trustee or representative on behalf of such
holder), to establish that such notice has been given by a holder of such Senior Indebtedness or a
trustee or representative on behalf of any such holder or holders. In the event that the Trustee
determines in good faith that further evidence is required with respect to the right of any Person
as a holder of such Senior Indebtedness to participate in any payment or distribution pursuant to
this Article 12, the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article 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 12.07. Rights of the Trustee; Holders of Senior Indebtedness.



     (a) The Trustee in its individual capacity shall be entitled to all the rights set forth in
this Article 12 in respect of any Senior Indebtedness at any time held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder.



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     (b) With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or
to observe only such of its covenants and obligations as are specifically set forth in this Article
12 and no implied covenants or obligations with respect to the holders of such Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of such Senior Indebtedness and, subject to the provisions of Section
6.01 of this Indenture, the Trustee shall not be liable to any holder of such Senior Indebtedness
if it shall pay over or deliver to Holders, the Company or any other Person money or assets to
which any holder of such Senior Indebtedness shall be entitled by virtue of this Article 12 or
otherwise.



     (c) Nothing in this Article 12 shall be applicable to any payments made or owing to the
Trustee pursuant to or as described in Section 6.06.



     Section 12.08. Subordination May Not Be Impaired.



     (a) No right of any present or future holder of any Senior Indebtedness of the Company to
enforce subordination provided in this Article 12 shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act or failure to act,
in good faith, by any such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof that any such
holder may have or otherwise be charged with.



     (b) Without in any way limiting the generality of the foregoing paragraph, the holders of
Senior Indebtedness of the Company may, at any time and from time to time, without the consent of
or notice to the Trustee or the Holders, without incurring responsibility to the Holders and
without impairing or releasing the subordination provided in this Article 12 or the obligations
hereunder of the Holders to the holders of such Senior Indebtedness, do any one or more of the
following: (i) change the manner, place or terms of payment or extend the time of payment of, or
renew or alter, such Senior Indebtedness, or otherwise amend or supplement in any manner such
Senior Indebtedness or any instrument evidencing the same or any agreement under which such Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing such Senior Indebtedness; (iii) release any Person liable
in any manner for the collection of such Senior Indebtedness; and (iv) exercise or refrain from
exercising or waive any rights against the Company and any other Person.



     (c) Each present and future holder of Senior Indebtedness shall be entitled to the benefit of
the provisions of this Article notwithstanding that such holder is not a party to this Indenture.



     Section 12.09. Article Applicable to Paying Agents. In case at any time any Paying
Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder,
the term “Trustee” as used in this Article 12 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 12 in addition to
or in place of the Trustee; provided, however, that this Section 12.09 shall not apply to the
Company or any affiliate of the Company if it or such affiliate acts as Paying Agent.



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     Section 12.10. Defeasance of this Article. Notwithstanding anything contained herein
to the contrary, payments from cash or the proceeds of U.S. Government Obligations held in trust
under Article 4 hereof by the Trustee and which were deposited in accordance with the terms of
Article 4 hereof and not in violation of Section 12.02 hereof for the payment of principal of and
premium, if any, and Interest on the Notes shall not be subordinated to the prior payment of any
Senior Indebtedness or subject to the restrictions set forth in this Article, and none of the
Holders or the Trustee shall be obligated to pay over any such amount to the Company or any holder
of Senior Indebtedness or any representative or trustee therefor or any other creditor of the
Company.



     Section 12.11. Subordination Language to Be Included in Notes. Each Note shall contain
a subordination provision which will be substantially in the following form:




“The Notes are subordinated in right of payment, in the manner and
to the extent set forth in the Indenture, to the prior payment in
full in cash of all Senior Indebtedness (as defined in the
Indenture). Each Holder of this Note, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes the
Trustee on his behalf, if so directed by the Company, to take such
actions as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes. Each Holder hereof,
by his acceptance hereof, waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by
each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon
said provisions.”



ARTICLE 13




Calculation Agency




     Section 13.01. Appointment of Calculation Agent. Upon the terms and subject to the
conditions set forth herein, the Company hereby appoints the Trustee as the Calculation Agent
hereunder and the Trustee hereby accepts such appointment. The Calculation Agent hereby agrees to
calculate the interest rates (the “Interest Rates”) on the Notes in the manner and at the times
provided in this Indenture. The Calculation Agent shall exercise due care to determine the Interest
Rates on the Notes and shall communicate the same to the Company, the Depositary or other
applicable depositary and any paying agent identified to it in writing promptly after each such
determination. The Calculation Agent will, upon the written request of a Holder of a Note, provide
(i) the Interest Rate then in effect with respect to such Note and (ii) if determined, the Interest
Rate with respect to such Note which will become effective for the next Interest Period.



     Section 13.02. Status of the Calculation Agent. Any acts taken by the Calculation
Agent under this Article 13, including specifically, but without limitation, the calculation of any
Interest Rate for the Notes, shall be deemed to have been taken by the Calculation Agent solely in
its



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capacity as an agent acting on behalf of the Company and shall not create or imply any
obligation to, or any agency or trust relationship with, any of the Holders of the Notes.




     Section 13.03. Fees and Expenses. The Calculation Agent shall be entitled to such
compensation for all services as Calculation Agent rendered under this Agreement in accordance with
its schedule of fees and charges provided to the Company on or before the date hereof. The Company
agrees to pay such fees and charges and shall reimburse the Calculation Agent for all reasonable
out-of-pocket expenses, disbursements and advances (including reasonable legal fees and expenses)
incurred or made by the Calculation Agent in connection with the services rendered by it under this
Article 13.



     Section 13.04. Rights and Liabilities of the Calculation Agent. In the absence of
gross negligence or willful misconduct, the Calculation Agent, its directors, officers, employees
and agents shall be protected and shall incur no liability for or in respect of, any action taken,
omitted to be taken or suffered by it in reliance upon the terms of the Notes or any order, written
instruction, notice, request, direction, statement, certificate, consent, report, affidavit or
other instrument, paper, document or communication (each a “Communication”) reasonably believed by
it in good faith to be genuine. Any Communication from the Company or given by it and sent,
delivered or directed to the Calculation Agent under, pursuant to or as permitted by any provision
of this Article 13 shall be sufficient for purposes of this Article 13 if such Communication is in
writing and signed by any officer of the Company. The Calculation Agent may consult with counsel
satisfactory to it and the written advice of such counsel shall constitute full and complete
authorization and protection of the Calculation Agent with respect to any action taken, omitted to
be taken or suffered by it hereunder in good faith and in accordance with and in reliance upon the
written advice of such counsel. The Calculation Agent shall not be liable for any error resulting
from use of or reliance on a source or publication required to be used by the Calculation Agent in
determining an Interest Rate as provided in this Indenture. Neither the Calculation Agent nor its
directors, officers, employees or agents shall be liable to the Company for any action taken,
omitted to be taken or suffered by it hereunder, except in the case of gross negligence or willful
misconduct.



     Section 13.05. Duties of the Calculation Agent. The duties and obligations of the
Calculation Agent shall be determined solely by the express provisions of this Article 13 and no
implied covenants or obligations shall be read into this Article 13 against the Calculation Agent.
The Calculation Agent may perform any duties hereunder directly or by or through agents or
attorneys and the Calculation Agent shall not be responsible for any misconduct or negligence on
the part of any agent or attorney appointed with due care by it hereunder.



     Section 13.06. Termination, Resignation or Removal of the Calculation Agent. The
Calculation Agent may at any time terminate its appointment as Calculation Agent by giving written
notice to the Company specifying the date on which its desired resignation shall become effective;
provided, however, that such notice shall be given no less than sixty (60) days prior to said
effective date unless the Calculation Agent and the Company otherwise agree in writing. The Company
may terminate the appointment of the Calculation Agent at any time by giving written notice to the
Calculation Agent and specifying the effective date of such termination which shall be at least
thirty (30) days after the date of notice and shall not be less than fifteen (15) days prior to the
next Interest Payment Date. No termination by either the Calculation Agent



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or the Company shall become effective prior to the date of the appointment by the Company of a
successor Calculation Agent and the acceptance of such appointment by such successor Calculation
Agent as provided in Section 13.07 hereof. Upon termination by either party pursuant to the
provisions of this Section, the Calculation Agent shall be entitled to the payment of any
compensation owed to it by the Company hereunder and to the reimbursement of all reasonable
out-of-pocket expenses incurred in connection with the services rendered by it hereunder, as
provided by Section 13.03 hereof. The provisions of Section 13.04 and Section 13.08 hereof shall
remain in effect following termination by either party.




     Section 13.07. Appointment of Successor Calculation Agent. In the event of the
termination of the appointment of the Calculation Agent pursuant to Section 13.06 hereof, the
Company shall promptly appoint a successor Calculation Agent. Any successor Calculation Agent
appointed by the Company shall execute and deliver to the original Calculation Agent and the
Company an instrument accepting such appointment. Thereupon, such successor Calculation Agent
shall, without any further act, deed or conveyance, become vested with all the authority, rights,
powers, immunities, duties and obligations of the Calculation Agent with like effect as if
originally named as Calculation Agent hereunder. Upon the acceptance of such appointment, the
original Calculation Agent shall be obligated to transfer and deliver to the successor Calculation
Agent such relevant records or copies thereof maintained by the Calculation Agent in connection
with the performance of its obligations hereunder. In the event of a change in the Calculation
Agent, holders of the Notes will be informed of such change in the manner provided for in this
Indenture.



     Section 13.08. Indemnification. The Corporation shall indemnify and hold harmless the
Calculation Agent and its officers, directors, employees, representatives and agents to the same
extent provided in Section 6.05 hereof.



     Section 13.09. Merger, Consolidation or Sale of Business by the Calculation Agent. Any
Person into which the Calculation Agent may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or consolidation to which
Calculation Agent shall be a party, or any Person succeeding to all or substantially all of the
corporate trust business of the Calculation Agent, shall be successor to the Calculation Agent
hereunder without the execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.



[Signature pages follow]




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



	 	 	 	 	 
	 	SYMETRA FINANCIAL CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	Margaret A. Meister 	 
	 	 	Title:  	Executive Vice President and Chief Financial Officer 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION, as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	Carolyn Whalen 	 
	 	 	Title:  	Vice President 	 
	 




 









 





EXHIBIT A-1




FORM OF RULE 144A GLOBAL NOTE OR REGULATION S PERMANENT NOTE




(FACE OF NOTE)




[Restricted Securities Legend]1

[Global Securities Legend]




	 	 	 	 	 	 	 
	 

	 	[CUSIP No. 87151QAB2
	 	[CUSIP No. U79664AB1
	 	 
	 

	 	ISIN No. US87151QAB23] 2
	 	ISIN No. USU79664AB19]3	 	 






SYMETRA FINANCIAL CORPORATION




CAPITAL EFFICIENT NOTES DUE 2067




No.                     




     SYMETRA FINANCIAL CORPORATION, a corporation organized under the laws of the State of Delaware
(hereinafter called the “Company,” which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay [Cede & Co.] or its
registered assigns, the principal amount of
$          , which
amount may be increased or decreased from
time to time on Schedule I hereto on October 15, 2067 (the “Final Maturity Date”); provided that
the principal amount of, and all accrued and unpaid Interest on, this Security shall be payable in
full on October 15, 2037 (the “Scheduled Maturity Date”) or any subsequent Interest Payment Date to
the extent, and subject to the conditions, set forth in the Indenture; provided further that, if
any date fixed for redemption or repayment is not a Business Day, redemption or repayment of the
principal amount will be made on the next day that is a Business Day, without any Interest or other
payment as a result of such delay.





 




			
	1	 	To be inserted in any Regulation S Global Security or
Rule 144A Global Note unless pursuant to its terms, the legend may be removed.
	 
	2	 	To be inserted in any Rule 144A Global Note.
	 
	3	 	To be inserted in any Regulation S Global Note.





A-1-1




 









 





     The Company further promises to pay Interest on said principal amount from October 10, 2007 or
from the most recent Interest Payment Date for which Interest has been paid or duly provided for.
This Security shall bear Interest (i) from and including October 10, 2007 to but excluding October
15, 2017 (or if earlier, until the principal hereof is paid in full), at the annual rate of 8.300%,
payable, and subject to deferral, in each case as set forth in the Indenture, and (ii) from and
including October 15, 2017 to but excluding the Final Maturity Date (or if earlier, until the
principal hereof is paid in full), at an annual rate equal to Three-month LIBOR plus 4.177%,
payable, and subject to deferral, in each case as set forth in the Indenture.



     The Company shall have the right, at any time and from time to time prior to the Final
Maturity Date to defer the payment of Interest on this Security as set forth in, and subject to the
conditions specified in, the Indenture.



     Each Holder, by such Holder’s acceptance hereof, agrees that if a Bankruptcy Event shall occur
prior to the redemption or repayment of this Security, such Holder shall not have a claim for, and
shall have no right to receive, unpaid Deferred Interest (including Additional Interest thereon) to
the extent that such Deferred Interest (including Additional Interest thereon) exceeds the sum of
(x) Interest that relates to the earliest two years of the portion of the Deferral Period for the
Notes for which Interest has not been paid (including Additional Interest thereon) and (y) an
amount equal to such Holder’s pro rata share of the excess, if any, of the Preferred Stock Cap over
the aggregate amount of net proceeds from the sale of the Company’s Qualifying Non-Cumulative
Perpetual Preferred Stock and unconverted and outstanding Mandatorily Convertible Preferred Stock
that the Company has applied to pay Interest on the Notes pursuant to the Alternative Payment
Mechanism. To the extent that such claim for unpaid Deferred Interest (including Additional
Interest thereon) exceeds the amount set forth in clause (x), the Holders shall be deemed to agree
that the amount they receive in respect of such excess shall not exceed the amount they would have
received had such claim ranked pari passu with the claims of the holders, if any, of the Company’s
Qualifying Non-Cumulative Perpetual Preferred Stock.



     The Company may, at its option and subject to the terms and conditions of the Indenture and
Article 11 of the Indenture, redeem this Security (A) in whole or in part on October 15, 2017 and
on each Interest Payment Date thereafter at a Redemption Price equal to 100% of the principal
amount of this Security plus accrued and unpaid Interest to the Redemption Date, and (B) prior to
October 15, 2017, (i) in whole or in part, at a Redemption Price equal to 100% of the principal
amount of this Security or, if greater, a Make-Whole Price specified in the Indenture, in either
case plus accrued and unpaid Interest to the Redemption Date, and (ii) in whole but not in part,
within 90 days after the occurrence of a Special Event, at a Redemption Price equal to 100% of the
principal amount of this Security or, if greater, a Special Event Make-Whole Price specified in the
Indenture, in either case plus accrued and unpaid Interest to the Redemption Date.



     The Securities are subordinated in right of payment, in the manner and to the extent set forth
in the Indenture, to the prior payment in full of all Senior Indebtedness (as defined in the
Indenture). Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound
by such provisions, (b) authorizes the Trustee on his behalf, if so directed by the Company, to
take such actions as may be necessary or appropriate to effectuate the subordination so provided
and (c) appoints the Trustee his attorney-in-fact for any and all such purposes. Each Holder



A-1-2




 









 




hereof, by his acceptance hereof, waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon said provisions.




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



     This Security is a duly authorized security of the Company (herein called the “Security”),
issued under an Indenture, dated as of October 10, 2007 (herein called the “Indenture”), between
the Company and U.S. Bank National Association, as Trustee (herein called the “Trustee,” which term
includes any successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Trustee, the Company and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be, authenticated and
delivered.



     All terms used in this Security that are defined in the Indenture shall have the meanings
assigned to them in the Indenture, as the case may be.



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



A-1-3




 









 





     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.



	 	 	 	 	 
	 	SYMETRA FINANCIAL CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated: October 10, 2007





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



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 



Dated: October 10, 2007




A-1-4





 









 





REVERSE OF SECURITY




     As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer or exchange at the office or agency of the Company maintained under
Section 10.02 of the Indenture duly endorsed by, or accompanied by written instrument of transfer
in form satisfactory to the Company and the Security Registrar or co-Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees. No service charge
shall be made for any such registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in
connection therewith.



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



     The Security is issuable only in registered form without coupons in denominations of $1,000
and any integral multiple thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for like aggregate principal amount
of Securities of a different authorized denomination, as requested by the Holder surrendering the
same.



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



     THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.



A-1-5




 









 





SCHEDULE I



SCHEDULE
OF INCREASES OR DECREASES



Principal
amount of Note outstanding represented by this Security as of October 10, 2007: $[                    ]




     Thereafter,
the following increases or decreases have been made:



	 	 	 	 	 	 	 	 	 
	 	 	Increase in			 	 	 	Notation Made by or
	Date of Redemption	 	Principal		Decrease in	 	Principal Amount	 	on Behalf of the
	or Repurchase	 	Amount		Principal Amount	 	Remaining	 	Trustee
	 
	 	 		 	 	 	 	 






A-1-6




 









 








EXHIBIT A-2




FORM OF REGULATION S TEMPORARY GLOBAL NOTE




(FACE OF NOTE)




[Temporary Global Security Legend]

[Global Securities Legend]




               CUSIP No.

               ISIN No.




SYMETRA FINANCIAL CORPORATION




CAPITAL EFFICIENT NOTES DUE 2067




No.                     




     SYMETRA FINANCIAL CORPORATION, a corporation organized under the laws of the State of Delaware
(hereinafter called the “Company,” which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay [Cede & Co.] or its
registered assigns, the principal amount of
$                   ,
which amount may be increased or decreased from
time to time on Schedule I hereto on October 15, 2067 (the “Final Maturity Date”); provided that
the principal amount of, and all accrued and unpaid Interest on, this Security shall be payable in
full on October 15, 2037 (the “Scheduled Maturity Date”) or any subsequent Interest Payment Date to
the extent, and subject to the conditions, set forth in the Indenture; provided further that, if
any date fixed for redemption or repayment is not a Business Day; redemption or repayment of the
principal amount will be made on the next day that is a Business Day, without any Interest or other
payment as a result of such delay.



     The Company further promises to pay Interest on said principal amount from October 10, 2007 or
from the most recent Interest Payment Date for which Interest has been paid or duly provided for.
This Security shall bear Interest (i) from and including October 10, 2007 to but excluding October
15, 2017 (or if earlier, until the principal hereof is paid in full), at the annual rate of 8.300%,
payable, and subject to deferral, in each case as set forth in the Indenture, and (ii) from and
including October 15, 2017 to but excluding the Final Maturity Date (or if earlier, until the
principal hereof is paid in full), at an annual rate equal to Three-month LIBOR plus 4.177%,
payable, and subject to deferral, in each case as set forth in the Indenture.



A-2-1




 









 





     The Company shall have the right, at any time and from time to time prior to the Final
Maturity Date to defer the payment of Interest on this Security as set forth in, and subject to the
conditions specified in, the Indenture.



     Each Holder, by such Holder’s acceptance hereof, agrees that if a Bankruptcy Event shall occur
prior to the redemption or repayment of this Security, such Holder shall not have a claim for, and
shall have no right to receive, unpaid Deferred Interest (including Additional Interest thereon) to
the extent that such Deferred Interest (including Additional Interest thereon) exceeds the sum of
(x) Interest that relates to the earliest two years of the portion of the Deferral Period for the
Notes for which Interest has not been paid (including Additional Interest thereon) and (y) an
amount equal to such Holder’s pro rata share of the excess, if any, of the Preferred Stock Cap over
the aggregate amount of net proceeds from the sale of the Company’s Qualifying Non-Cumulative
Perpetual Preferred Stock and unconverted and outstanding Mandatorily Convertible Preferred Stock
that the Company has applied to pay Interest on the Notes pursuant to the Alternative Payment
Mechanism. To the extent that such claim for unpaid Deferred Interest (including Additional
Interest thereon) exceeds the amount set forth in clause (x), the Holders shall be deemed to agree
that the amount they receive in respect of such excess shall not exceed the amount they would have
received had such claim ranked pari passu with the claims of the holders, if any, of the Company’s
Qualifying Non-Cumulative Perpetual Preferred Stock.



     The Company may, at its option and subject to the terms and conditions of the Indenture and
Article 11 of the Indenture, redeem this Security (A) in whole or in part on October 15, 2017 and
on each Interest Payment Date thereafter at a Redemption Price equal to 100% of the principal
amount of this Security plus accrued and unpaid Interest to the Redemption Date, and (B) prior to
October 15, 2017, (i) in whole or in part, at a Redemption Price equal to 100% of the principal
amount of this Security or, if greater, a Make-Whole Price specified in the Indenture, in either
case plus accrued and unpaid Interest to the Redemption Date, and (ii) in whole but not in part,
within 90 days after the occurrence of a Special Event, at a Redemption Price equal to 100% of the
principal amount of this Security or, if greater, a Special Event Make-Whole Price specified in the
Indenture, in either case plus accrued and unpaid Interest to the Redemption Date.



     The Securities are subordinated in right of payment, in the manner and to the extent set forth
in the Indenture, to the prior payment in full of all Senior Indebtedness (as defined in the
Indenture). Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound
by such provisions, (b) authorizes the Trustee on his behalf, if so directed by the Company, to
take such actions as may be necessary or appropriate to effectuate the subordination so provided
and (c) appoints the Trustee his attorney-in-fact for any and all such purposes. Each Holder
hereof, by his acceptance hereof, waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon said provisions.



     On any exchange or purchase, as applicable, and cancellation of any of the Securities
represented by this Temporary Global Note, details of such purchase and cancellation shall be
entered by or on behalf of the Company in the records of the Trustee and the Depositary, and
cancellation shall be signed by or on behalf of the Company. Upon any such exchange or



A-2-2




 









 




purchase, as applicable, and cancellation, the principal amount of this Temporary Global Note
and the Securities represented by this Temporary Global Note shall be reduced by the principal
amount so exchanged or purchased and cancelled.




     An owner of a beneficial interest in this Regulation S Temporary Global Note (or a Person
acting on behalf of such an owner) may provide to Euroclear or Clearstream, as applicable, (and
Euroclear or Clearstream will accept) a duly completed Certificate of Beneficial Ownership at any
time after the termination of the Distribution Compliance Period (it being understood that
Euroclear or Clearstream, as applicable, will not accept any such certificate during the
Distribution Compliance Period). Promptly after receipt by the Trustee of a Certificate of
Beneficial Ownership from DTC on behalf of Euroclear or Clearstream, as applicable (or other
appropriate confirmation to such effect in accordance with the Applicable Procedures), with respect
to such a beneficial interest, the Trustee will cause such beneficial interest to be exchanged for
an equivalent beneficial interest in a Regulation S Permanent Global Note, and will (x) permanently
reduce the principal amount of such Regulation S Temporary Global Note by the amount of this
beneficial interest and (y) increase the principal amount of such Regulation S Permanent Global
Note by the amount of such beneficial interest, in each case subject to the Applicable Procedures.
Notwithstanding the previous two sentences, if after the Distribution Compliance Period any Initial
Purchaser owns a beneficial interest in this Regulation S Temporary Global Note, such Initial
Purchaser may, upon written request to the Trustee accompanied by a certification as to its status
as an Initial Purchaser and as the owner of such beneficial interest (but without any requirement
to deliver a Certificate of Beneficial Ownership), exchange such beneficial interest for an
equivalent beneficial interest in a Regulation S Permanent Global Note, and the Trustee will comply
with such request and will (x) permanently reduce the principal amount of such Regulation S
Temporary Global Note by the amount of such beneficial interest and (y) increase the principal
amount of such Regulation S Permanent Global Note by the amount of such beneficial interest, in
each case subject to the Applicable Procedures.



     Upon the receipt by the Trustee of a written certificate from DTC, together with copies of
certificates from Euroclear and Clearstream certifying that they have received Certificates of
Beneficial Ownership representing 100% of the aggregate principal amount of this Regulation S
Temporary Global Note (except to the extent of any beneficial owners thereof who acquired an
interest therein during the Distribution Compliance Period pursuant to another exemption from
registration under the Securities Act and who shall take delivery of a beneficial ownership
interest in a Rule 144A Global Note) (or, in any such case, offer appropriate confirmation to such
effect in accordance with the Applicable Procedures), the Trustee shall cancel this Regulation S
Temporary Global Note.



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



     This Security is a duly authorized security of the Company (herein called the “Security”),
issued under an Indenture, dated as of October 10, 2007 (herein called the “Indenture”), between
the Company and U.S. Bank National Association, as Trustee (herein called the “Trustee,” which term
includes any successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the



A-2-3




 









 




respective rights, limitations of rights, duties and immunities thereunder of the Trustee, the
Company and the Holders of the Securities, and of the terms upon which the Securities are, and are
to be, authenticated and delivered.




     All terms used in this Security that are defined in the Indenture shall have the meanings
assigned to them in the Indenture, as the case may be.



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



A-2-4




 









 





     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.



	 	 	 	 	 
	 	SYMETRA FINANCIAL CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated: October 10, 2007





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



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 



Dated: October 10, 2007




A-2-5





 









 





REVERSE OF SECURITY




     As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer or exchange at the office or agency of the Company maintained under
Section 10.02 of the Indenture duly endorsed by, or accompanied by written instrument of transfer
in form satisfactory to the Company and the Security Registrar or co-Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees. No service charge
shall be made for any such registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in
connection therewith.



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



     The Security is issuable only in registered form without coupons in denominations of $1,000
and any integral multiple thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for like aggregate principal amount
of Securities of a different authorized denomination, as requested by the Holder surrendering the
same.



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




     THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.



A-2-6





 











 





SCHEDULE I




SCHEDULE
OF INCREASES OR DECREASES



Principal
amount of Note outstanding represented by this Security as of October 10, 2007: $[                    ]




     Thereafter,
the following increases or decreases have been made:



	 	 	 	 	 	 	 	 	 
	 	 	Increase in			 	 	 	Notation Made by or
	Date of Redemption	 	Principal		Decrease in	 	Principal Amount	 	on Behalf of the
	or Repurchase	 	Amount		Principal Amount	 	Remaining	 	Trustee
	 
	 	 		 	 	 	 	 





A-2-7









 





EXHIBIT B




FORM OF LEGENDS FOR NOTES




[Global Securities Legend]




     THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR
DEPOSITORY. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY
OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES.
DESCRIBED IN THE INDENTURE.



     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF THE DEPOSITORY OR A NOMINEE OF THE DEPOSITORY OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO ITS
NOMINEE OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, A NOMINEE OF THE DEPOSITORY, HAS AN INTEREST HEREIN.



[Restricted Securities Legend]




     THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH
IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER: (1) REPRESENTS THAT (A)
IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), OR (B)
IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE
HOLDING PERIOD APPLICABLE TO SALES OF THIS SECURITY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR
ANY SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO SYMETRA
FINANCIAL CORPORATION OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE



B-1









 




SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH
TRANSFER), OR (E) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT;
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IF THE PROPOSED TRANSFEREE IS A PURCHASER WHO IS NOT A
QUALIFIED INSTITUTIONAL BUYER OR A U.S. PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF
THE TRANSFER OF THIS SECURITY PURSUANT TO CLAUSE 2(D) ABOVE OR UPON ANY TRANSFER OF THIS SECURITY
UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION). AS USED IN THIS SECURITY,
THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.




[Temporary Global Security Legend]




     THIS SECURITY IS A TEMPORARY GLOBAL SECURITY. PRIOR TO THE EXPIRATION OF THE DISTRIBUTION
COMPLIANCE PERIOD APPLICABLE HERETO, BENEFICIAL INTERESTS HEREIN MAY NOT BE HELD BY ANY PERSON
OTHER THAN (1) A NON-U.S. PERSON OR (2) A U.S. PERSON WHO PURCHASED SUCH INTEREST IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT PURSUANT TO RULE 144A THEREUNDER. BENEFICIAL
INTERESTS HEREIN ARE NOT EXCHANGEABLE FOR PHYSICAL SECURITIES OTHER THAN A PERMANENT GLOBAL
SECURITY IN ACCORDANCE WITH THE TERMS OF THE INDENTURE. TERMS IN THIS LEGEND ARE USED AS USED IN
REGULATION S UNDER THE SECURITIES ACT.



     NO BENEFICIAL OWNERS OF THIS TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
PRINCIPAL OR INTEREST HEREON UNTIL SUCH BENEFICIAL INTEREST IS EXCHANGED OR TRANSFERRED FOR AN
INTEREST IN ANOTHER NOTE.




B-2









 








EXHIBIT C-1




FORM OF TRANSFER CERTIFICATE

TRANSFER TO

REGULATION S TEMPORARY GLOBAL SECURITY

OR

REGULATION S PERMANENT GLOBAL SECURITY

(Transfers pursuant to Sections 2.18(a)(iii) and (iv)

of the Indenture)




U.S. Bank National Association

Corporate Trust Services

1420 5th Avenue, 7th Floor

Seattle, WA  98101

Attention: Symetra Financial Corporation, Capital Efficient Notes due
2067




Attn: Symetra Financial Corporation Administrator




      Re:      SYMETRA FINANCIAL CORPORATION


Capital Efficient Notes due 2067 (the “Securities”)




     Reference is hereby made to the Indenture dated as of October 10, 2007 (the “Indenture”)
between Symetra Financial Corporation, as Company, and U.S. Bank National Association, as Trustee.
Terms used but not defined herein and defined in Regulation S under the U.S. Securities Act of 1933
(the “Securities Act”) or in the Indenture shall have the meanings given to them in Regulation S or
the Indenture, as the case may be.



     This certificate relates to U.S.$                      principal amount of Securities, which are
evidenced by the following certificate(s) (the “Specified Securities”):



     CUSIP No(s). U79664AB1



     ISIN No(s). USU79664AB19



     CERTIFICATE No(s).                     



     The person in whose name this certificate is executed below (the “Undersigned”) hereby
certifies that either (i) it is the sole beneficial owner of the Specified Securities or (ii) it is
acting on behalf of all the beneficial owners of the Specified Securities and is duly authorized by
them to do so. Such beneficial owner or owners are referred to herein collectively as the “Owner.”
If the Specified Securities are represented by a Global Security, they are held through the
appropriate Depositary or a Depositary Participant in the name of the Undersigned, as or on behalf
of the Owner.



C-1-1









 





     The Owner has requested that the Specified Securities be transferred to a person (the
“Transferee”) who will take delivery in the form of an interest in a Regulation S Global Security.
In connection with such transfer, the Owner hereby certifies that such transfer is being effected
in accordance with Regulation S under the Securities Act and with all applicable securities laws of
the states of the United States and other jurisdictions. Accordingly, the Owner hereby further
certifies as follows:



     1. the offer of the Specified Securities was not made to a person in the United States;



     2. either: (a) at the time the buy order was originated, the Transferee was outside the
United States or the Owner and any person acting on its behalf reasonably believed that the
Transferee was outside the United States; or (b) the transaction is being executed in, on or
through the facilities of the Eurobond market, as regulated by the Association of International
Bond Dealers, or another designated offshore securities market and neither the Owner nor any person
acting on its behalf knows that the transactions have been prearranged with a buyer in the United
States;



     3. no directed selling efforts have been made in the United States by or on behalf of the
Owner or any affiliate thereof;



     4. the transaction is not part of a plan or scheme to evade the registration requirements of
the Securities Act; and



     In addition, if the sale is made during a restricted period and the provisions of Rule
903(b)(3) or Rule 904(b)(l) of Regulation S are applicable thereto, the Owner confirms that such
sale has been made in accordance with the applicable provisions of Rule 903(b)(3) or Rule
904(b)(1), as the case may be.



     This certificate and the statements contained herein are made for your benefit and the benefit
of the Company and the Initial Purchasers under the Purchase Agreement.



	 	 	 	 	 	 	 
	 	 	 	 	 
	Dated:	 	(Print the name of the Undersigned, as
such term is defined in the second
paragraph of this certificate.)	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	(If the Undersigned is a corporation,
partnership or fiduciary, the title of the
person signing on behalf of the Undersigned
must be stated.)	 	 






C-1-2









 





EXHIBIT C-2




FORM OF TRANSFER CERTIFICATE

TRANSFER TO

RULE 144A GLOBAL SECURITY

(Transfers to QIBs Pursuant to Sections 2.18(a)(v) and (vi)

of the Indenture)




U.S. Bank National Association

Corporate Trust Services

1420 5th Avenue, 7th Floor

Seattle, WA  98101

Attention: Symetra Financial Corporation, Capital Efficient Notes due
2067




Attn: Symetra Financial Corporation Administrator



      Re:       SYMETRA FINANCIAL CORPORATION


Capital Efficient Notes due 2067 (the “Securities”)




     Reference is hereby made to the Indenture dated as of October 10, 2007 (the “Indenture”)
between Symetra Financial Corporation, as Company, and U.S. Bank National Association , as Trustee.
Terms used but not defined herein and defined in Regulation S under the U.S. Securities Act of 1933
(the “Securities Act”) or in the Indenture shall have the meanings given to them in Regulation S or
the Indenture, as the case may be.



     This certificate relates to U.S.$                      principal amount of Securities, which are
evidenced by the following certificate(s) (the “Specified Securities”):



     CUSIP No(s). 87151QAB2



     ISIN No(s). US87151QAB23



     CERTIFICATE No(s).                     



     The person in whose name this certificate is executed below (the “Undersigned”) hereby
certifies that either (i) it is the sole beneficial owner of the Specified Securities or (ii) it is
acting on behalf of all the beneficial owners of the Specified Securities and is duly authorized by
them to do so. Such beneficial owner or owners are referred to herein collectively as the “Owner.”
If the Specified Securities are represented by a Global Security, they are held through the
appropriate Depositary or a Depositary Participant in the name of the Undersigned, as or on behalf
of the Owner.



     The Owner has requested that the Specified Securities be transferred to a person (the
“Transferee”) who will take delivery in the form of an interest in a Rule 144A Global Security. In
connection with such transfer, the Owner hereby certifies that such transfer is being effected in
accordance with Rule 144A under the Securities Act and with all applicable securities laws of



C-2-1









 







the states of the United States and other jurisdictions. Accordingly, the Owner hereby further
certifies as follows:



     (1) the Specified Securities are being transferred to a person that the Owner and any person
acting on its behalf reasonably believe is a “qualified institutional buyer” within the meaning of
Rule 144A, acquiring for its own account or for the account of a qualified institutional buyer; and



     (2) the Owner and any person acting on its behalf have taken reasonable steps to ensure that
the Transferee is aware that the Owner may be relying on Rule 144A in connection with the transfer.



     This certificate and the statements contained herein are made for your benefit and the benefit
of the Company and the Initial Purchasers under the Purchase Agreement.



	 	 	 	 	 	 	 
	 	 	 	 	 
	Dated:	 	(Print the name of the Undersigned, as
such term is defined in the second
paragraph of this certificate.)	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	(If the Undersigned is a corporation,
partnership or fiduciary, the title of the
person signing on behalf of the Undersigned
must be stated.)	 	 







C-2-2









 








EXHIBIT D




Certificate of Beneficial Ownership




	 	 	 	 	 	 	 
	 

	 	To:
	 	[Euroclear
	 	Bank S.A./N.V., as operator of the Euroclear System] OR
	 
	 	 	 	 	 	 
	 

	 	 	 	[Clearstream
	 	Banking, société anonyme]
	 
	 	 	 	 	 	 
	 

	 	 	 	Re:
	 	Symetra Financial Corporation

Capital Efficient Notes due 2067 (the “Notes”)

Issued under the Indenture dated as of

October 10, 2007 relating to the Notes






Ladies and Gentlemen:




     We
are the beneficial owner of $                      principal amount of Notes issued under the Indenture and represented by a Regulation S Temporary Global Note (as defined in the
Indenture).



     We hereby certify as follows:



     [CHECK A OR B AS APPLICABLE.]



	 	 	 	 	 	 	 
	 

	 	o  
	 	A.
	 	We are a non-U.S. person (within the meaning of Regulation S under
the Securities Act of 1933, as amended).
	 
	 	 	 	 	 	 
	 

	 	o  
	 	B.
	 	We are a U.S. person (within the meaning of Regulation S under the
Securities Act of 1933, as amended) that purchased the Notes in a
transaction that did not require registration under the Securities Act of
1933, as amended.






     You and the Company are entitled to rely upon this Certificate and are irrevocably authorized
to produce this Certificate or a copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered hereby.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	[NAME OF BENEFICIAL OWNER]	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 

Name:
	 	 
	 

	 	 	 	 	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 	 	Address:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 






D-1









 





EXHIBIT E




REPLACEMENT CAPITAL COVENANT





E-1











 





     REPLACEMENT CAPITAL COVENANT, dated as of October 10, 2007 (this “Replacement Capital
Covenant”), by Symetra Financial Corporation, a Delaware corporation (together with its successors
and assigns, the “Corporation”), in favor of and for the benefit of each Covered Debtholder (as
defined below).



RECITALS




     A. On the date hereof, the Corporation is issuing $150,000,000 aggregate principal amount of
its Capital Efficient Notes due 2067 (the “CENts”).



     B. This Replacement Capital Covenant is the “Replacement Capital Covenant” referred to in the
Corporation’s Offering Memorandum dated October 10, 2007 relating to the CENts.



     C. The Corporation is entering into and disclosing the content of this Replacement Capital
Covenant in the manner provided below with the intent that the covenants provided for in this
Replacement Capital Covenant be enforceable by each Covered Debtholder and that the Corporation be
estopped from disregarding the covenants in this Replacement Capital Covenant, in each case to the
fullest extent permitted by applicable law.



     D. The Corporation acknowledges that reliance by each Covered Debtholder upon the covenants in
this Replacement Capital Covenant is reasonable and foreseeable by the Corporation and that, were
the Corporation to disregard its covenants in this Replacement Capital Covenant, each Covered
Debtholder would have sustained an injury as a result of its reliance on such covenants.



     NOW, THEREFORE, the Corporation hereby covenants and agrees as follows in favor of and for the
benefit of each Covered Debtholder.



SECTION 1. Definitions




     Capitalized terms used in this Replacement Capital Covenant (including the Recitals) have the
meanings set forth in Schedule I hereto.



SECTION 2. Limitations on Repayment, Redemption and Purchase of CENts




     The Corporation hereby promises and covenants to and for the benefit of each Covered
Debtholder that the Corporation shall not repay, redeem or purchase, nor shall any Subsidiary of
the Corporation purchase, any of the CENts prior to the Termination Date except to the extent that
the principal amount repaid or the applicable redemption or purchase price does not exceed the sum
of the Applicable Percentages of the following amounts:




     (i) the aggregate amount of net cash proceeds received by the Corporation and its
Subsidiaries since the most recent Measurement Date (without double counting proceeds
received in any prior Measurement Period) from the sale of Replacement Capital Securities to
Persons other than the Company and its Subsidiaries, plus



     (ii) the product of the Current Stock Market Price of any Common Stock that the
Corporation and its Subsidiaries have issued (determined as of the date of issuance) to
Persons other than the Company and its Subsidiaries in connection with the conversion of any
convertible or exchangeable securities, other than securities for which the Corporation or
any of its Subsidiaries has received equity credit from any NRSRO, multiplied by the number
of shares of Common Stock so issued, since the most recent Measurement Date (without double
counting proceeds received in any prior Measurement Period).



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For purposes of this Replacement Capital Covenant, the terms “repay” and “repayment” include the
defeasance by the Corporation of the CENts as well as the satisfaction and discharge of its
obligations under the Indenture with respect to the CENts.




SECTION 3. Covered Debt




     (a) The Corporation represents and warrants that the Initial Covered Debt is Eligible Debt.



     (b) On or during the 30-day period immediately preceding any Redesignation Date with respect
to the Covered Debt then in effect, the Corporation shall identify the series of Eligible Debt that
will become the Covered Debt on and after such Redesignation Date in accordance with the following
procedures:




     (i) the Corporation shall identify each series of its then-outstanding long-term
indebtedness for money borrowed that is Eligible Debt;




     (ii) if only one series of the Corporation’s then outstanding long-term indebtedness
for money borrowed is Eligible Debt, such series shall become the Covered Debt commencing on
the related Redesignation Date;




     (iii) if the Corporation has more than one outstanding series of long-term indebtedness
for money borrowed that is Eligible Debt, then the Corporation shall identify the series
that has the latest occurring final maturity date as of the date the Corporation is applying
the procedures in this Section 3(b) and such series shall become the Covered Debt on the
related Redesignation Date;




     (iv) the series of outstanding long-term indebtedness for money borrowed that is
determined to be Covered Debt pursuant to clause (ii) or (iii) above shall be the Covered
Debt for purposes of this Replacement Capital Covenant for the period commencing on the
related Redesignation Date and continuing to but excluding the Redesignation Date as of
which a new series of outstanding long-term indebtedness for money borrowed is next
determined to be the Covered Debt pursuant to the procedures set forth in this Section 3(b);
and




     (v) in connection with such identification of a new series of Covered Debt, the
Corporation shall, as provided for in Section 3(c), (i) if the Corporation is a reporting
company under the Securities Exchange Act (a “Reporting Company”), give a notice and file
with the Commission a current report on Form 8-K (or any successor form) including or
incorporating by reference this Replacement Capital Covenant as an exhibit, and (ii) if the
Corporation is not a Reporting Company, follow the procedures provided in Section 3(c)(iv) ,
each within the time frame provided for in Section 3(c).



     (c) Notice. In order to give effect to the intent of the Corporation described in Recital C,
the Corporation covenants that:




     (i) simultaneously with the execution of this Replacement Capital Covenant or as soon
as practicable after the date hereof, it shall (x) give notice to the Holders of the Initial
Covered Debt, in the manner provided in the indenture relating to the Initial Covered Debt,
of this Replacement



2









 







Capital Covenant and the rights granted to such Holders hereunder and (y) cause a
notice of the execution of this Replacement Capital Covenant to be posted on the Bloomberg
screen for the Initial Covered Debt and each similar third-party vendor’s screen the
Corporation reasonably believes is appropriate (each an “Investor Screen”) and cause a
hyperlink to a definitive copy of this Replacement Capital Covenant to be included on the
Investor Screen for the Initial Covered Debt, in each case to the extent permitted by
Bloomberg or such similar third-party vendor, as the case may be;




     (ii) if the Corporation is a Reporting Company, the Corporation shall include in each
annual report filed with the Commission on Form 10-K (or any successor form) under the
Securities Exchange Act a description of the covenant set forth in Section 2 and identify
the series of long-term indebtedness for borrowed money that is Covered Debt as of the date
such Form 10-K (or such successor form) is filed with the Commission;




     (iii) if a series of the Corporation’s long-term indebtedness for money borrowed (1)
becomes Covered Debt or (2) ceases to be Covered Debt, the Corporation shall give notice of
such occurrence within 30 days to the holders of such long-term indebtedness for money
borrowed in the manner provided for in the indenture, fiscal agency agreement or other
instrument under which such long-term indebtedness for money borrowed was issued and, if the
Corporation is a Reporting Company, report such change in a current report on Form 8-K (or
any successor form) including or incorporating by reference this Replacement Capital
Covenant, and in the Corporation’s next annual report on Form 10-K (or any successor form) ,
as applicable;




     (iv) if, and only if, the Corporation is not a Reporting Company, the Corporation shall
(x) post on its website the information otherwise required to be included in Securities
Exchange Act filings pursuant to clauses (ii) and (iii) of this Section 3(c) and (y) cause a
notice of the execution of this Replacement Capital Covenant to be posted on the applicable
Investor Screen and cause a hyperlink to a definitive copy of this Replacement Capital
Covenant to be included on the Investor Screen for each series of Covered Debt, in each case
to the extent permitted by Bloomberg or such similar third-party vendor, as the case may be;
and




     (v) promptly upon request by any Holder of Covered Debt, the Corporation shall provide
such Holder with a copy of this Replacement Capital Covenant as executed.



     (d) The Corporation agrees that, if at any time the Covered Debt is held by a trust (for
example, where the Covered Debt is part of an issuance of trust preferred securities), a holder of
the securities issued by such trust may enforce (including by instituting legal proceedings) this
Replacement Capital Covenant directly against the Corporation as though such holder owned Covered
Debt directly, and such holder shall be deemed to be a holder of “Covered Debt” for purposes of
this Replacement Capital Covenant for so long as the indebtedness held by such trust remains
Covered Debt hereunder.



SECTION 4. Termination, Amendment and Waiver




     (a) The obligations of the Corporation pursuant to this Replacement Capital Covenant shall
remain in full force and effect until the earliest date (the “Termination Date”) to occur of:



3









 






     (i) the date, if any, on which the Holders of a majority in principal amount of the
then-effective series of Covered Debt consent or agree in writing to the termination of this
Replacement Capital Covenant and the obligations of the Corporation hereunder;




     (ii) the date on which the Corporation ceases to have any series of outstanding
Eligible Senior Debt or Eligible Subordinated Debt (in each case without giving effect to
the rating requirement in clause (b) of the definition of each such term);




     (iii) October 15, 2047 or, if earlier, the date on which the CENts are otherwise
repaid, redeemed or purchased in full in accordance with this Replacement Capital Covenant;
and




     (iv) the date on which the CENts become accelerated due to the occurrence of an event
of default.


From and after the Termination Date, the obligations of the Corporation pursuant to this
Replacement Capital Covenant shall be of no further force and effect.




     (b) This Replacement Capital Covenant may be amended or supplemented from time to time by a
written instrument signed by the Corporation with the consent of the Holders of at least a majority
in principal amount of the then-effective series of Covered Debt, provided that this Replacement
Capital Covenant may be amended or supplemented from time to time by a written instrument signed
only by the Corporation (and without the consent of any Covered Debtholder) if:




     (i) such amendment or supplement eliminates Common Stock, Warrants, Mandatorily
Convertible Preferred Stock and/or Debt Exchangeable for Common Equity as a Replacement
Capital Security and, in the case of this clause (i), after the date of this Replacement
Capital Covenant, an accounting standard or interpretive guidance of an existing accounting
standard issued by an organization or regulator that has responsibility for establishing or
interpreting accounting standards in the United States becomes effective such that there is
more than an insubstantial risk that failure to eliminate Common Stock, Warrants,
Mandatorily Convertible Preferred Stock and/or Debt Exchangeable for Common Equity as a
Replacement Capital Security would result in a reduction in the Corporation’s earnings per
share as calculated in accordance with generally accepted accounting principles in the
United States;




     (ii) such amendment or supplement is not adverse to the Holders of the then-effective
series of Covered Debt and an officer of the Corporation has delivered to the Holders of the
then-effective series of Covered Debt in the manner provided for in the indenture, fiscal
agency agreement or other instrument with respect to such Covered Debt a written certificate
stating that, in his or her determination, such amendment or supplement is not adverse to
the Holders of the then-effective series of Covered Debt; or




     (iii) the effect of such amendment or supplement is solely to impose additional
restrictions on, or eliminate (subject to clause (i) in the circumstances where it applies)
certain of, the types of securities qualifying as Replacement Capital Securities, and an
officer of the Corporation has delivered to the Holders of the then-effective series of
Covered Debt in the manner provided for in the



4









 







indenture, fiscal agency agreement or other instrument with respect to such Covered
Debt a written certificate to that effect.


For the avoidance of doubt, an amendment or supplement that adds new types of Qualifying Capital
Securities or modifies the requirements of the Qualifying Capital Securities described herein would
not be adverse to the rights of the Covered Debtholders if, following such amendment or supplement,
this Replacement Capital Covenant would satisfy clause (ii) of the definition of Qualifying
Replacement Capital Covenant.




     (c) For purposes of Sections 4(a) and 4(b), the Holders whose consent or agreement is required
to terminate, amend or supplement the obligations of the Corporation under this Replacement Capital
Covenant shall be the Holders of the then-effective Covered Debt as of a record date established by
the Corporation that is not more than 30 days prior to the date on which the Corporation proposes
that such termination, amendment or supplement becomes effective.



SECTION 5. Miscellaneous




     (a) This Replacement Capital Covenant shall be governed by and construed in accordance with
the laws of the State of New York.



     (b) This Replacement Capital Covenant shall be binding upon the Corporation and its successors
and assigns and shall inure to the benefit of the Covered Debtholders as they exist from
time-to-time (it being understood and agreed by the Corporation that any Person who is a Covered
Debtholder shall retain its status as a Covered Debtholder for so long as the series of long-term
indebtedness for borrowed money owned by such Person is Covered Debt and if such Person initiates
an action, claim or proceeding to enforce its rights under this Replacement Capital Covenant after
the Corporation has violated its covenants in Section 2 and before the series of long-term
indebtedness for money borrowed held by such Person is no longer Covered Debt, such Person’s rights
under this Replacement Capital Covenant shall not terminate by reason of such series of long-term
indebtedness for money borrowed no longer being Covered Debt).



     (c) All demands, notices, requests and other communications to the Corporation under this
Replacement Capital Covenant shall be deemed to have been duly given and made if in writing and (i)
if served by personal delivery upon the Corporation, on the day so delivered (or, if such day is
not a Business Day, the next succeeding Business Day), or (ii) if delivered by registered post or
certified mail, return receipt requested, or sent to the Corporation by a national or international
courier service, on the date of receipt by the Corporation (or, if such date of receipt is not a
Business Day, the next succeeding Business Day), and in each case to the Corporation at the address
set forth below, or at such other address as the Corporation may thereafter notify to Covered
Debtholders or post on its website as the address for notices under this Replacement Capital
Covenant:


Symetra Financial Corporation

PO Box 34690

Seattle, Washington 98124-1690

Attention: [          ]


[Remainder of Page Intentionally Left Blank]




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     IN WITNESS WHEREOF, the Corporation has caused this Replacement Capital Covenant to be
executed by its duly authorized officer, as of the day and year first above written.



	 	 	 	 	 	 	 	 	 
	 	 	SYMETRA FINANCIAL CORPORATION	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Margaret A. Meister	 	 
	 	 	 	 	Title:	 	Executive Vice President and Chief Financial Officer






 









 





SCHEDULE I




DEFINITIONS




     “Alternative Payment Mechanism” means, with respect to any Qualifying Capital Securities,
provisions in the related transaction documents permitting the Corporation, in its sole discretion,
to defer or skip in whole or in part payment of Distributions on such Qualifying Capital Securities
for one or more consecutive Distribution Periods not to exceed ten years and requiring the
Corporation to issue (or use Commercially Reasonable Efforts to issue) one or more types of APM
Qualifying Securities raising eligible proceeds at least equal to the deferred Distributions on
such Qualifying Capital Securities and apply the proceeds to pay unpaid Distributions on such
Qualifying Capital Securities, commencing on the earlier of (x) the first Distribution Date after
commencement of a deferral period on which the Corporation pays current Distributions on such
Qualifying Capital Securities and (y) the fifth anniversary of the commencement of such deferral
period, and that:



     (i) define “eligible proceeds” to mean, for purposes of such Alternative Payment Mechanism,
the net proceeds (after underwriters’ or placement agents’ fees, commissions or discounts and other
expenses relating to the issuance or sale of the relevant securities, where applicable, and
including the fair market value of property received by the Corporation or any of its Subsidiaries
as consideration for such APM Qualifying Securities) that the Corporation has received during the
180 days prior to the related Distribution Date from the issuance of APM Qualifying Securities, up
to the Preferred Cap in the case of APM Qualifying Securities that are Qualifying Non-Cumulative
Preferred Stock or Mandatorily Convertible Preferred Stock;



     (ii) permit the Corporation to pay current Distributions on any Distribution Date out of any
source of funds but (x) require the Corporation to pay deferred Distributions only out of eligible
proceeds and (y) prohibit the Corporation from paying deferred Distributions out of any source of
funds other than eligible proceeds;



     (iii) if deferral of Distributions continues for more than one year (or such shorter period as
provided for in the terms of such securities), require the Corporation and its Subsidiaries not to
repay, redeem or purchase any of its securities that rank junior to or pari passu with any APM
Qualifying Securities on a bankruptcy or liquidation of the Corporation the proceeds of which were
used to settle deferred interest during the relevant deferral period until at least one year after
all deferred Distributions have been paid (a “Repurchase Restriction”), other than the following
(none of which shall be restricted or prohibited by a Repurchase Restriction):




     (A) purchases of such securities by the Corporation’s Subsidiaries in connection with
the distribution thereof or market-making or other secondary-market activities;




     (B) purchases, redemptions or other acquisitions of Common Stock in connection with
any employment contract, benefit plan or other similar arrangement with or for the benefit
of employees, officers, directors or consultants; or



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     (C) purchases of Common Stock pursuant to a contractually binding requirement to buy
Common Stock entered into prior to the beginning of the related deferral period, including
under a contractually binding stock repurchase plan;



     (iv) may include a provision that, notwithstanding the Common Cap and the Preferred Cap, for
purposes of paying deferred Distributions, limits the Corporation’s ability to sell Common Stock,
Warrants or Mandatorily Convertible Preferred Stock above the Share Cap;



     (v) in the case of Qualifying Capital Securities other than Qualifying Non-Cumulative
Preferred Stock, include a Bankruptcy Claim Limitation Provision;



     (vi) permit the Corporation, at its option, to provide that if it is involved in a merger,
consolidation, amalgamation, binding stock exchange or conveyance, transfer or lease of assets
substantially as an entirety to any other person or a similar transaction (a “Business
Combination”) where immediately after the consummation of the Business Combination more than 50% of
the voting stock of the surviving entity of the Business Combination or the Person to whom all or
substantially all of the Corporation’s assets have been transferred, conveyed or leased is owned,
directly or indirectly, by the stockholders of the other party to the Business Combination, then
clauses (i) through (iii) of this definition will not apply to any deferral period that is
terminated on the next Distribution Date following the date of the Business Combination;



     (vii) limit the obligation of the Corporation to issue (or use Commercially Reasonable Efforts
to issue) APM Qualifying Securities that are Common Stock and Warrants to settle deferred
Distributions pursuant to the Alternative Payment Mechanism either (A) during the first five years
of any deferral period or (B) before an anniversary of the commencement of any deferral period that
is not earlier than the fifth such anniversary and not later than the ninth such anniversary (as
designated in the terms of such Qualifying Capital Securities) with respect to deferred
Distributions attributable to the first five years of such deferral period, either:




     (X) to an aggregate amount of such securities, the net proceeds from the issuance of
which is equal to 2% of the product of the average of the Current Stock Market Price of the
Common Stock on the ten consecutive trading days ending on the fourth trading day
immediately preceding the date of issuance multiplied by the total number of issued and
outstanding shares of Common Stock as of the date of the Corporation’s most recent publicly
available consolidated financial statements; or




     (Y) to a number of shares of Common Stock and Warrants, in the aggregate, not in excess
of 2% of the outstanding number of shares of Common Stock (such limitation set forth in (X)
or (Y), the “Common Cap”); and



     (viii) limit the right of the Corporation to issue APM Qualifying Securities that are
Qualifying Non-Cumulative Preferred Stock and Mandatorily Convertible Preferred Stock to settle
deferred Distributions pursuant to the Alternative Payment Mechanism to an aggregate amount of
Qualifying Non-Cumulative Preferred Stock and still-outstanding Mandatorily Convertible Preferred
Stock, the net



I-2









 







proceeds from the issuance of which with respect to all deferral periods is equal to 25% of
the liquidation or principal amount of such Qualifying Capital Securities (the “Preferred Cap”);



provided (and it being understood) that:





     (A) the Corporation shall not be obligated to issue (or use Commercially Reasonable
Efforts to issue) APM Qualifying Securities for so long as a Market Disruption Event has
occurred and is continuing;




     (B) if, due to a Market Disruption Event or otherwise, the Corporation is able to raise
and apply some, but not all, of the eligible proceeds necessary to pay all deferred
Distributions on any Distribution Date, the Corporation will apply any available eligible
proceeds to pay accrued and unpaid Distributions on the applicable Distribution Date in
chronological order subject to the Common Cap, Preferred Cap and Share Cap, as applicable;
and




     (C) if the Corporation has outstanding more than one class or series of securities
under which it is obligated to sell a type of APM Qualifying Securities and apply some part
of the proceeds to the payment of deferred Distributions, then on any date and for any
period the amount of net proceeds received by the Corporation from those sales and available
for payment of deferred Distributions on such securities shall be applied to such securities
on a pro rata basis up to the Common Cap, the Preferred Cap and the Share Cap, as
applicable, in proportion to the total amounts that are due on such securities.



     “APM Qualifying Securities” means, with respect to an Alternative Payment Mechanism, or
any Mandatory Trigger Provision, one or more of the following (as designated in the transaction
documents for any Qualifying Capital Securities that include an Alternative Payment Mechanism
or a Mandatory Trigger Provision, as applicable):



     (i) Common Stock;



     (ii) Warrants;



     (iii) Qualifying Non-Cumulative Preferred Stock; or



     (iii) Mandatorily Convertible Preferred Stock;


provided (and it being understood) that (i) if the APM Qualifying Securities for any Alternative
Payment Mechanism or Mandatory Trigger Provision include both Common Stock and Warrants, such
Alternative Payment Mechanism or Mandatory Trigger Provision may permit, but need not require, the
Corporation to issue Warrants and (ii) such Alternative Payment Mechanism or Mandatory Trigger
Provision may permit, but need not require, the Corporation to issue Mandatorily Convertible
Preferred Stock.




     “Applicable Percentage” means:



I-3









 





     (i) in the case of any Common Stock or Warrants, (a) 133.33% with respect to any repayment,
redemption or purchase prior to October 15, 2017, (b) 200% with respect to any repayment,
redemption or purchase on or after October 15, 2017 and prior to October 15, 2037 and (c) 400% with
respect to any repayment, redemption or purchase on or after October 15, 2037;



     (ii) in the case of any Mandatorily Convertible Preferred Stock, Debt Exchangeable for Common
Equity, Debt Exchangeable for Preferred Equity or any Qualifying Capital Securities described in
clause (i) of the definition of such term, (a) 100% with respect to any repayment, redemption or
purchase prior to October 15, 2037 and (b) 300% with respect to any repayment, redemption or
purchase on or after October 15, 2037;



     (iii) in the case of any Qualifying Capital Securities described in clause (ii) of the
definition of such term, (a) 100% with respect to any repayment, redemption or purchase prior to
October 15, 2037 and (b) 200% with respect to any repayment, redemption or purchase on or after
October 15, 2037; and



     (iv) in the case of any Qualifying Capital Securities described in clause (iii) of the
definition of such term, 100%.



     “Bankruptcy Claim Limitation Provision” means, with respect to any Qualifying Capital
Securities that have an Alternative Payment Mechanism or a Mandatory Trigger Provision, provisions
that, upon any liquidation, dissolution, winding up or reorganization or in connection with any
insolvency, receivership or proceeding under any bankruptcy law with respect to the issuer, limit
the claim of the holders of such securities to Distributions that accumulate during (A) any
deferral period, in the case of securities that have an Alternative Payment Mechanism or (B) any
period in which the issuer fails to satisfy one or more financial tests set forth in the terms of
such securities or related transaction agreements, in the case of securities that have a Mandatory
Trigger Provision, to:



     (i) in the case of Qualifying Capital Securities that have an Alternative Payment Mechanism or
Mandatory Trigger Provision with respect to which the APM Qualifying Securities do not include
Qualifying Non-Cumulative Preferred Stock or Mandatorily Convertible Preferred Stock, 25% of the
stated or principal amount of such Qualifying Capital Securities then outstanding; and



     (ii) in the case of any other Qualifying Capital Securities, an amount not in excess of the
sum of (x) the first two years of accumulated and unpaid Distributions and (y) an amount equal to
the excess, if any, of the Preferred Cap over the aggregate amount of net proceeds from the sale of
Qualifying Non-Cumulative Preferred Stock and Mandatorily Convertible Preferred Stock that is still
outstanding that the issuer has applied to pay such Distributions pursuant to the Alternative
Payment Mechanism or the Mandatory Trigger Provision; provided that the holders of such Qualifying
Capital Securities are deemed to agree that, to the extent the remaining claim exceeds the amount
set forth in clause (x), the amount they receive in respect of such excess shall not exceed the
amount they would have received the claim for such excess ranked pari passu with the interests of
the holders, if any, of Qualifying Non-Cumulative Preferred Stock.



     “Business Combination” has the meaning specified in clause (vi) of the definition of
Alternative Payment Mechanism.



I-4









 





     “Business Day” means each day other than (a) a Saturday or Sunday or (b) a day on which
banking institutions in The City of New York are authorized or required by law or executive order
to remain closed.



     “CENts” has the meaning specified in Recital A.



     “Commercially Reasonable Efforts” means, for purposes of selling APM Qualifying Securities,
commercially reasonable efforts to complete the offer and sale of APM Qualifying Securities to
third parties that are not Subsidiaries of the Corporation, which in the event the Corporation is
not publicly traded shall include the Corporation’s existing stockholders, in public offerings or
private placements. The Corporation shall not be considered to have made Commercially Reasonable
Efforts to effect a sale of APM Qualifying Securities if it determines not to pursue or complete
such sale solely due to pricing, coupon, dividend rate or dilution considerations.



     “Commission” means the United States Securities and Exchange Commission.



     “Common Cap” has the meaning specified in clause (vii) of the definition of Alternative
Payment Mechanism.



     “Common Stock” means (i) common stock of the Corporation, including common stock issued
pursuant to any dividend reinvestment plan or employee benefit plan of the Corporation, (ii) a
security of the Corporation, ranking upon the Corporation’s liquidation, dissolution or winding up
junior to its Qualifying Non-Cumulative Preferred Stock and pari passu with its Common Stock, that
tracks the performance of, or relates to the results of, a business, unit or division of the
Corporation, and (iii) any securities issued in exchange for the securities described in clause (i)
or (ii) above in connection with a Business Combination.



     “Corporation” has the meaning specified in the introduction to this instrument.



     “Covered Debt” means (a) at the date of this Replacement Capital Covenant and continuing to
but excluding the first Redesignation Date, the Initial Covered Debt and (b) thereafter, commencing
with each Redesignation Date and continuing to but excluding the next succeeding Redesignation
Date, the Eligible Debt identified pursuant to Section 3(b) as the Covered Debt for such period.



     “Covered Debtholder” means each Person to the extent that that Person holds (whether as a
Holder or a beneficial owner holding through a participant in a clearing agency) long-term
indebtedness for money borrowed of the Corporation during the period that such long-term
indebtedness for money borrowed is Covered Debt.



     “Current Stock Market Price” means, with respect to the Common Stock on any date:



     (i) the closing sale price per share (or if no closing sale price is reported, the average of
the bid and ask prices or, if more than one in either case, the average of the average bid and the
average ask prices) on that date as reported in composite transactions by the New York Stock
Exchange;



     (ii) if the Common Stock is not then listed on the New York Stock Exchange, as reported by the
principal U.S. securities exchange on which the Common Stock is traded or quoted on the relevant
date;



I-5









 





     (iii) if the Common Stock is not listed on any U.S. securities exchange on the relevant date,
the last quoted bid price for the Common Stock in the over-the-counter market on the relevant date
as reported by Pink Sheets LLC or similar organization;



     (iv) if the Common Stock is not so quoted, the average of the mid-point of the last bid and
ask prices for the Common Stock on the relevant date from each of at least three nationally
recognized independent investment banking firms selected by the Corporation for this purpose; or



     (v) if the Common Stock has no bid and ask price, the price per share determined by a
nationally recognized independent investment banking firm selected by the Corporation for this
purpose.



     “Debt Exchangeable for Common Equity” means a security or combination of securities that:



     (i) gives the holder a beneficial interest in (a) subordinated debt securities of the
Corporation that are not redeemable prior to the settlement date of a related stock purchase
contract and (b) a fractional interest in the related stock purchase contract for a share of Common
Stock that will be settled in three years or less, with the number of shares of Common Stock
purchasable pursuant to such stock purchase contract to be within a range established at the time
of issuance of such subordinated debt securities, subject to customary anti-dilution adjustments;



     (ii) provides that the holders directly or indirectly grant the Corporation a security
interest in such subordinated debt securities and their proceeds (including any substitute
collateral permitted under the transaction documents) to secure the holders’ direct or indirect
obligation to purchase Common Stock pursuant to such stock purchase contracts;



     (iii) includes a remarketing feature pursuant to which such subordinated debt securities are
remarketed to new investors commencing not later than the last Distribution Date that is at least
one month prior to the settlement date of the stock purchase contract; and



     (iv) provides for the proceeds raised in the remarketing to be used to purchase Common Stock
under the stock purchase contracts and, if there has not been a successful remarketing by the
settlement date of the stock purchase contract, provides that the stock purchase contracts will be
settled by the Corporation exercising its remedies as a secured party with respect to the
subordinated debt securities or other collateral directly or indirectly pledged by holders in the
Debt Exchangeable for Common Equity.



     “Debt Exchangeable for Preferred Equity” means a security or combination of securities
(together in this definition, “such securities”) that:



     (i) gives the holder a beneficial interest in (a) subordinated debt securities of the
Corporation or one of its Subsidiaries (in this definition, the “issuer”) that include a provision
permitting the issuer to defer Distributions in whole or in part on such securities for one or more
Distribution Periods of up to at least seven years without any remedies other than Permitted
Remedies and that are the most junior subordinated debt of the issuer (or rank pari passu with the
most junior subordinated debt of the issuer) and (b) an interest in a stock purchase contract that
obligates the holder to acquire a beneficial interest in the Company’s Qualifying Non-Cumulative
Preferred Stock;



I-6









 





     (ii) provides that the holders directly or indirectly grant to the Corporation a security
interest in such subordinated debt securities and their proceeds (including any substitute
collateral permitted under the transaction documents) to secure the investors’ direct or indirect
obligation to purchase Qualifying Non-Cumulative Preferred Stock pursuant to such stock purchase
contracts;



     (iii) includes a remarketing feature pursuant to which such subordinated debt securities are
remarketed to new investors commencing not later than the first Distribution Date that is at least
five years after the date of issuance of such securities or earlier in the event of an early
settlement event based on (a) the dissolution of the issuer of such Debt Exchangeable for Preferred
Equity or (b) one or more financial tests set forth in the terms of the instrument governing such
Debt Exchangeable for Preferred Equity;



     (iv) provides for the proceeds raised in the remarketing to be used to purchase Qualifying
Non-Cumulative Preferred Stock under the stock purchase contracts and, if there has not been a
successful remarketing by the first Distribution Date that is six years after the date of issuance
of such securities, provides that the stock purchase contracts will be settled by the Corporation
exercising its rights as a secured creditor with respect to the subordinated debt securities or
other collateral directly or indirectly pledged by investors in the Debt Exchangeable for Preferred
Equity;



     (v) includes a Qualifying Replacement Capital Covenant that will apply to such securities and
to any Qualifying Non-Cumulative Preferred Stock issued pursuant to the stock purchase contracts;
provided that such Qualifying Replacement Capital Covenant will not include Debt Exchangeable for
Common Equity or Debt Exchangeable for Preferred Equity as “Replacement Capital Securities”; and



     (vi) if applicable, after the issuance of such Qualifying Non-Cumulative Preferred Stock,
provides the holders with a beneficial interest in such Qualifying Non-Cumulative Preferred Stock.



     “Distribution Date” means, as to any Qualifying Capital Securities, Debt Exchangeable for
Common Equity or Debt Exchangeable for Preferred Equity, the dates on which Distributions on such
securities are scheduled to be made.



     “Distribution Period” means, as to any Qualifying Capital Securities, Debt Exchangeable for
Common Equity or Debt Exchangeable for Preferred Equity, each period from and including a
Distribution Date for such securities to but excluding the next succeeding Distribution Date for
such securities.



     “Distribution Rate Step-Up” means, as to any Qualifying Capital Securities, Debt Exchangeable
for Common Equity or Debt Exchangeable for Preferred Equity, that the rate at which Distributions
accrue or are paid on such securities increases over time (including by an increase in the fixed
rate of Distributions in the case of securities that accrue and pay Distributions at a fixed rate
or by an increase in the margin above the applicable index in the case of securities that accrue
and pay Distributions based upon a margin above an index, but not including an increase in the rate
of Distributions merely because the index used in calculating such rate increases).



     “Distributions” means, as to any Qualifying Capital Securities, Debt Exchangeable for Common
Equity or Debt Exchangeable for Preferred Equity, dividends, interest or other income distributions
to the holders thereof that are not Subsidiaries of the Corporation.



I-7









 





     “Eligible Debt” means, at any time, Eligible Subordinated Debt or, if no Eligible Subordinated
Debt is then outstanding, Eligible Senior Debt.



     “Eligible Senior Debt” means, at any time in respect of any issuer, each series of outstanding
unsecured long-term indebtedness for money borrowed of such issuer that:



     (a) upon a bankruptcy, liquidation, dissolution or winding up of the issuer, ranks most senior
among the issuer’s then outstanding classes of unsecured indebtedness for money borrowed;



     (b) is then assigned a rating by at least one NRSRO (provided that this clause (b) shall apply
on a Redesignation Date only if on such date the issuer has outstanding senior long-term
indebtedness for money borrowed that satisfies the requirements of clauses (a), (c) and (d) that is
then assigned a rating by at least one NRSRO);



     (c) has an outstanding principal amount of not less than $100,000,000; and



     (d) was issued through or with the assistance of a commercial or investment banking firm or
firms acting as underwriters, initial purchasers or placement or distribution agents.



     For purposes of this definition as applied to securities with a CUSIP number, each issuance of
long-term indebtedness for money borrowed that has (or, if such indebtedness is held by a trust or
other intermediate entity established directly or indirectly by the issuer, the securities of such
intermediate entity that have) a separate CUSIP number shall be deemed to be a series of the
issuer’s long-term indebtedness for money borrowed that is separate from each other series of such
indebtedness.



     “Eligible Subordinated Debt” means, at any time in respect of any issuer, each series of the
issuer’s then-outstanding unsecured long-term indebtedness for money borrowed that:



     (a) upon a bankruptcy, liquidation, dissolution or winding up of the issuer, ranks subordinate
to the issuer’s then outstanding series of unsecured indebtedness for money borrowed that ranks
most senior and ranks senior to the CENts;



     (b) is then assigned a rating by at least one NRSRO (provided that this clause (b) shall apply
on a Redesignation Date only if on such date the issuer has outstanding subordinated long-term
indebtedness for money borrowed that satisfies the requirements in clauses (a), (c) and (d) that is
then assigned a rating by at least one NRSRO);



     (c) has an outstanding principal amount of not less than $100,000,000; and



     (d) was issued through or with the assistance of a commercial or investment banking firm or
firms acting as underwriters, initial purchasers or placement or distribution agents.



     For purposes of this definition as applied to securities with a CUSIP number, each issuance of
long-term indebtedness for money borrowed that has (or, if such indebtedness is held by a trust or
other intermediate entity established directly or indirectly by the issuer, the securities of such
intermediate entity that have) a separate CUSIP number shall be deemed to be a series of the
issuer’s long-term indebtedness for money borrowed that is separate from each other series of such
indebtedness.



     “Holder” means, as to the Covered Debt then in effect, each holder of such Covered Debt as
reflected on the securities register maintained by or on behalf of the Corporation with respect to
such Covered Debt and each beneficial owner holding through a participant in a clearing agency.



I-8









 





     “Indenture” means the Indenture, dated October 10, 2007, between the Corporation and U.S. Bank
National Association, as Trustee.



     “Initial Covered Debt” means the Corporation’s 6.125% Senior Notes due April 1, 2016, which
have CUSIP No. 87151QAA4.



     “Intent-Based Replacement Disclosure” means, as to any Qualifying Non-Cumulative Preferred
Stock or Qualifying Capital Securities, that the issuer has publicly stated its intention, either
in the prospectus or other offering document under which such securities were initially offered for
sale or in filings with the Commission made by the issuer under the Securities Exchange Act prior
to or contemporaneously with the issuance of such securities, that the issuer and its subsidiaries,
to the extent such securities provide the issuer with equity credit for purposes of rating by an
NRSRO, will repay, redeem or purchase such securities only with the proceeds of replacement capital
securities that have terms and provisions at the time of repayment, redemption or purchase that are
as or more equity-like than the securities then being repaid, redeemed or purchased, raised within
180 days prior to the applicable repayment, redemption or purchase date.



     “Investor Screen” has the meaning specified in Section 3(c)(i).



     “Mandatorily Convertible Preferred Stock” means cumulative preferred stock with (a) no
prepayment obligation on the part of the issuer thereof, whether at the election of the holders or
otherwise, and (b) a requirement that such preferred stock convert into common stock of the issuer
within three years from the date of its issuance at a conversion ratio within a range established
at the time of issuance of such preferred stock, subject to customary anti-dilution adjustments.



     “Mandatory Trigger Provision” means, as to any Qualifying Capital Securities, provisions in
the terms thereof or of the related transaction agreements that:



     (i) require the issuer of such securities to make payment of Distributions on such securities
within two years of a failure of the issuer to satisfy one or more financial tests set forth in the
terms of such securities or related transaction agreements, provided that such payment shall be
made only with the net proceeds from the issue and sale of APM Qualifying Securities, such that the
net proceeds of such issue and sale are at least equal to the amount of unpaid Distributions on
such securities (including all deferred and accumulated amounts) and the terms of such securities
or related transaction agreements require the application of the net proceeds of such issue and
sale to pay such unpaid Distributions, provided further that (a) if the Mandatory Trigger Provision
does not require the issuance and sale within one year of such failure, the amount of Common Stock
and/or Warrants the net proceeds of which the issuer must apply to pay such Distributions pursuant
to such provision may not exceed the Common Cap and (b) the amount of Qualifying Non-Cumulative
Preferred Stock and still outstanding Mandatorily Convertible Preferred Stock the net proceeds of
which the issuer may apply to pay such Distributions pursuant to such provision may not exceed the
Preferred Cap;



     (ii) if the provisions described in clause (i) above do not require such issuance and sale
within one year of such failure, include a Repurchase Restriction;



     (iii) prohibit the issuer of such securities from redeeming or purchasing any of its
securities ranking upon the Corporation’s liquidation, dissolution or winding up junior to or pari
passu with any APM Qualifying Securities the proceeds of which were used to settle deferred
interest during the relevant



I-9









 







Deferral Period prior to the date six months after the issuer applies the net proceeds of the
sales described in (i) to pay such deferred Distributions in full; and



     (iv) include a Bankruptcy Claim Limitation Provision;



provided (and it being understood) that:





     (A) the issuer will not be obligated to issue (or use Commercially Reasonable Efforts
to issue) APM Qualifying Securities for so long as a Market Disruption Event has occurred
and is continuing;




     (B) if, due to a Market Disruption Event or otherwise, the issuer is able to raise and
apply some, but not all, of the eligible proceeds necessary to pay all deferred
Distributions on any Distribution Date, the issuer will apply any available eligible
proceeds to pay accrued and unpaid Distributions on the applicable Distribution Date in
chronological order subject to the Common Cap, Preferred Cap and Share Cap, as applicable;
and




     (C) if the issuer has outstanding more than one class or series of securities under
which it is obligated to sell a type of APM Qualifying Securities and applies some part of
the proceeds to the payment of deferred Distributions, then on any date and for any period
the amount of net proceeds received by the issuer from those sales and available for payment
of deferred Distributions on such securities shall be applied to such securities on a pro
rata basis up to the Common Cap and the Preferred Cap, as applicable, in proportion to the
total amounts that are due on such securities.


No remedy other than Permitted Remedies will arise by the terms of such securities or related
transaction agreements in favor of the holders of such Qualifying Capital Securities as a result of
the issuer’s failure to pay Distributions because of the Mandatory Trigger Provision until
Distributions have been deferred for one or more Distribution Periods that total together at least
ten years.




     “Market Disruption Event” means the occurrence or existence of any of the following events or
sets of circumstances:



     (i) trading in securities generally, or shares of the Corporation’s securities specifically,
on the New York Stock Exchange or any other national securities exchange, or in the
over-the-counter market on which APM Qualifying Securities are then listed or traded shall have
been suspended or the settlement of such trading generally shall have been materially disrupted or
minimum prices shall have been established on any such exchange or market by the Commission, the
relevant exchange or by any other regulatory body or governmental agency having jurisdiction such
that trading shall have been materially disrupted;



     (ii) the Corporation would be required to obtain the consent or approval of the Corporation’s
shareholders or a regulatory body (including, without limitation, any securities exchange) or
governmental authority to issue or sell APM Qualifying Securities pursuant to the Alternative
Payment



I-10









 







Mechanism and that consent or approval has not yet been obtained notwithstanding the
Corporation’s Commercially Reasonable Efforts to obtain that consent or approval;



     (iii) a banking moratorium shall have been declared by the federal or state authorities of the
United States such that the issuance of, or market trading in, the APM Qualifying Securities has
been disrupted or ceased;



     (iv) a material disruption shall have occurred in commercial banking or securities settlement
or clearance services in the United States such that the issuance of, or market trading in, the APM
Qualifying Securities has been disrupted or ceased;



     (v) the United States shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States, there shall have been a declaration of a
national emergency or war by the United States or there shall have occurred any other national or
international calamity or crisis such that the issuance of, or market trading in, the APM
Qualifying Securities has been disrupted or ceased;



     (vi) there shall have occurred such a material adverse change in general domestic or
international economic, political or financial conditions, including without limitation as a result
of terrorist activities, or the effect of international conditions on the financial markets in the
United States shall be such that the issuance of, or market trading in, the APM Qualifying
Securities has been materially disrupted;



     (vii) an event occurs and is continuing as a result of which the offering document for the
offer and sale of APM Qualifying Securities would, in the reasonable judgment of the Corporation,
contain an untrue statement of a material fact or omit to state a material fact required to be
stated in that offering document or necessary to make the statements in that offering document not
misleading and either (a) the disclosure of that event at such time, in the reasonable judgment of
the Corporation, is not otherwise required by law and would have a material adverse effect on the
Corporation or (b) the disclosure relates to a previously undisclosed proposed or pending material
business transaction, provided that no single suspension period described in this clause (vii)
shall exceed 90 consecutive days and multiple suspension periods described in this clause (vii)
shall not exceed an aggregate of 180 days in any 360-day period; or



     (viii) the Corporation reasonably believes that the offering document for the offer and the
sale of APM Qualifying Securities would not be in compliance with a rule or regulation of the
Commission (for reasons other than those described in clause (vii) above) and the Corporation
determines that it is unable to comply with such rule or regulation or such compliance is unduly
burdensome, provided that no single suspension period described in this clause (viii) shall exceed
90 consecutive days and multiple suspension periods described in this clause (viii) shall not
exceed an aggregate of 180 days in any 360-day period.



     The definition of “Market Disruption Event” as used in any Replacement Capital Securities may
include less than all of the paragraphs outlined above, as determined by the Corporation at the
time of issuance of such securities, and in the case of clauses (i), (ii) and (iii) above, as
applicable to a circumstance where the Corporation would otherwise endeavor to issue preferred
stock, shall be limited



I-11









 







to circumstances affecting markets where the Corporation’s preferred stock traded or where a
listing for their trading is being sought.



     “Measurement Date” means (a) with respect to any repayment, redemption or purchase of the
CENts on or prior to the Scheduled Maturity Date, the date that is 180 days prior to delivery of
notice of such repayment or redemption or the date of such purchase; and (b) with respect to any
repayment, redemption or purchase of the CENts after the Scheduled Maturity Date, the date that is
90 days prior to the date of such repayment, redemption or purchase, except that, if during the
90-day (or any shorter) period preceding the date that is 90 days prior to the date of such
repayment, redemption or purchase, the Corporation or its Subsidiaries issued Replacement Capital
Securities to Persons other than the Corporation and its Subsidiaries but no repayment, redemption
or purchase was made pursuant to Section 2 in connection therewith, the date upon which such 90-day
(or shorter) period began.



     “Measurement Period” means, with respect to any date on which notice of repayment or
redemption is delivered with respect to the CENts or on which the Corporation purchases, or any
Subsidiary of the Corporation purchases, any CENts, the period beginning on the Measurement Date
with respect to such notice or purchase date and ending on such notice or purchase date, as the
case may be. Measurement Periods cannot run concurrently.



     “No Payment Provision” means a provision or provisions in the transaction documents for
securities (referred to in this definition as “such securities”) that include the following:



     (i) an Alternative Payment Mechanism; and



     (ii) an Optional Deferral Provision modified and supplemented from the general definition of
that term to provide that the issuer of such securities may, in its sole discretion, defer in whole
or in part payment of Distributions on such securities for one or more consecutive Distribution
Periods of up to five years or, if a Market Disruption Event has occurred and is continuing, ten
years, without any remedy other than Permitted Remedies and the obligations (and limitations on
obligations) described in the definition of “Alternative Payment Mechanism” applying.



     “Non-Cumulative” means, with respect to any Qualifying Capital Securities, that the issuer may
elect not to make any number of periodic Distributions without any remedy arising under the terms
of the securities or related agreements in favor of the holders, other than one or more Permitted
Remedies.



     “NRSRO” means a nationally recognized statistical rating organization within the meaning of
Section 3(a)(62) under the Securities Exchange Act.



     “Optional Deferral Provision” means, as to any Qualifying Capital Securities, a provision in
the terms thereof or of the related transaction agreements to the effect that:



     (i) (a) the issuer of such Qualifying Capital Securities may, in its sole discretion, defer in
whole or in part payment of Distributions on such securities for one or more consecutive
Distribution Periods of up to five years or, if a Market Disruption Event is continuing, ten years,
without any remedy other than Permitted Remedies and (b) such Qualifying Capital Securities are
subject to an Alternative Payment Mechanism (provided that such Alternative Payment Mechanism need
not apply during the first five years of any deferral period and need not include a Common Cap,
Preferred Cap, Share Cap, Bankruptcy Claims Limitation Provision or Repurchase Restriction); or



I-12









 





     (ii) the issuer of such Qualifying Capital Securities may, in its sole discretion, defer or
skip in whole or in part payment of Distributions on such securities for one or more consecutive
Distribution Periods of up to ten years without any remedy other than Permitted Remedies.



     “Permitted Remedies” means, with respect to any securities, one or more of the following
remedies:



     (i) rights in favor of the holders of such securities permitting such holders to elect one or
more directors of the issuer (including any such rights required by the listing requirements of any
stock or securities exchange on which such securities may be listed or traded); and



     (ii) complete or partial prohibitions on the issuer paying Distributions on or repurchasing
common stock or other securities that rank pari passu with or junior as to Distributions to such
securities for so long as distributions on such securities, including unpaid distributions, remain
unpaid.



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



     “Preferred Cap” has the meaning specified in clause (viii) of the definition of Alternative
Payment Mechanism.



     “Qualifying Capital Securities” means securities or combinations of securities (other than
Common Stock, Warrants, Mandatorily Convertible Preferred Stock, Debt Exchangeable for Common
Equity and Debt Exchangeable for Preferred Equity) that, in the determination of the Corporation’s
Board of Directors reasonably construing the definitions and other terms of this Replacement
Capital Covenant, meet one of the following criteria:



     (i) in connection with any repayment, redemption or purchase of CENts prior to October 15,
2017:




     (A) securities issued by the Corporation or its Subsidiaries that (1) rank pari passu
with or junior to the CENts upon the liquidation, dissolution or winding up of the
Corporation, (2) have no maturity or a maturity of at least 60 years and (3) either:




     (x) (I) are subject to a Qualifying Replacement Capital Covenant and (II) have
a No Payment Provision or are Non-Cumulative, or




     (y) (I) have a Mandatory Trigger Provision and are subject to Intent-Based
Replacement Disclosure and (II) have an Optional Deferral Provision or a No Payment
Provision;




     (B) preferred stock issued by the Corporation or its Subsidiaries that (1) are
Non-Cumulative, (2) have no prepayment obligation on the part of the issuer thereof, whether
at the election of the holders or otherwise, (3) have no maturity or a maturity of at least
60 years and (4) either:



I-13









 






     (x) are subject to a Qualifying Replacement Capital Covenant, or




     (y) have a Mandatory Trigger Provision and are subject to Intent-Based
Replacement Disclosure; or




     (C) securities issued by the Corporation or its Subsidiaries that (1) rank pari passu
or junior to the CENts upon the liquidation, dissolution or winding up of the Corporation,
(2) have no maturity or a maturity of at least 40 years, (3) are subject to a Qualifying
Replacement Capital Covenant and (4) have an Optional Deferral Provision and a Mandatory
Trigger Provision; or



     (ii) in connection with any repayment, redemption or purchase of CENts at any time on or after
October 15, 2017 but prior to October 15, 2037:




     (A) securities described under clause (i) of this definition that would be Qualifying
Capital Securities prior to October 15, 2017;




     (B) securities issued by the Corporation or its Subsidiaries that (1) rank pari passu
with or junior to the CENts upon a liquidation, dissolution or winding up of the
Corporation, (2) have no maturity or a maturity of at least 60 years, (3) are subject to a
Qualifying Replacement Capital Covenant and (4) have an Optional Deferral Provision;




     (C) securities issued by the Corporation or its Subsidiaries that (1) rank pari passu
with or junior to the CENts upon a liquidation, dissolution or winding up of the
Corporation, (2) have no maturity or a maturity of at least 60 years, (3) are Non-Cumulative
or have a No Payment Provision and (4) are subject to Intent-Based Replacement Disclosure;




     (D) securities issued by the Corporation or its Subsidiaries that (1) rank pari passu
with or junior to the CENts upon a liquidation, dissolution or winding up of the
Corporation, (2) have no maturity or a maturity of at least 40 years, (3) are Non-Cumulative
or have a No Payment Provision and (4) are subject to a Qualifying Replacement Capital
Covenant;




     (E) securities issued by the Corporation or its Subsidiaries that (1) rank pari passu
with or junior to the CENts upon a liquidation, dissolution or winding up of the
Corporation, (2) have no maturity or a maturity of at least 40 years, (3) have an Optional
Deferral Provision and a Mandatory Trigger Provision and (4) are subject to Intent-Based
Replacement Disclosure;




     (F) securities issued by the Corporation or its Subsidiaries that (1) rank pari passu
with or junior to the CENts upon a liquidation, dissolution or winding-up of the
Corporation, (2) have no maturity or a maturity of at least 25 years, (3) are subject to a
Qualifying Replacement Capital Covenant and (4) have an Optional Deferral Provision and a
Mandatory Trigger Provision;



I-14









 






     (G) cumulative preferred stock issued by the Corporation or its Subsidiaries that (1)
have no prepayment obligation on the part of the issuer thereof, whether at the election of
the holders or otherwise, (2) have no maturity or a maturity of at least 60 years and (3)
are subject to a Qualifying Replacement Capital Covenant; or




     (H) securities issued by the Corporation or its Subsidiaries that (1) rank (i) senior
to the CENts and securities that are pari passu with the CENts but (ii) junior to all other
debt securities of the Corporation (other than (x) the CENts and securities that are pari
passu with the CENts and (y) securities that are pari passu with such Qualifying Capital
Securities) upon its liquidation, dissolution or winding-up, and (2) either:




     (x) have no maturity or a maturity of at least 60 years and either (I) are (a)
Non-Cumulative or subject to a No Payment Provision and (b) subject to a Qualifying
Replacement Capital Covenant or (II) have a Mandatory Trigger Provision and an
Optional Deferral Provision and are subject to Intent-Based Replacement Disclosure,
or




     (y) have no maturity or a maturity of at least 40 years, are subject to a
Qualifying Replacement Capital Covenant and have a Mandatory Trigger Provision and
an Optional Deferral Provision; or



     (iii) in connection with any repayment, redemption or purchase of CENts at any time on or
after October 15, 2037:




     (A) securities described under clause (ii) of this definition that would be Qualifying
Capital Securities on or after October 15, 2017 but prior to October 15, 2037;




     (B) securities issued by the Corporation or its Subsidiaries that (1) rank pari passu
with or junior to the CENts upon a liquidation, dissolution or winding up of the
Corporation, (2) have an Optional Deferral Provision and (3) either:




     (x) have no maturity or a maturity of at least 60 years and are subject to
Intent-Based Replacement Disclosure, or




     (y) have no maturity or a maturity of at least 40 years and are subject to a
Qualifying Replacement Capital Covenant;




     (C) securities issued by the Corporation or its Subsidiaries that (1) rank pari passu
with or junior to the CENts upon a liquidation, dissolution or winding up of the
Corporation, (2) have no maturity or a maturity of at least 40 years and are subject to
Intent-Based Replacement Disclosure and (3) are Non-Cumulative or have a No Payment
Provision;




     (D) securities issued by the Corporation or its Subsidiaries that (1) rank senior to
the CENts and securities that are pari passu with the CENts but junior to all other debt
securities of the Corporation (other than (x) the CENts and securities that are pari passu
with the CENts and (y) securities that are pari passu with such Qualifying Capital
Securities) upon its liquidation, dissolution or winding-up, and (2) either:



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     (x) have no maturity or a maturity of at least 60 years and either (i) have an
Optional Deferral Provision and are subject to a Qualifying Replacement Capital
Covenant or (ii) (a) are Non-Cumulative or have a No Payment Provision and (b) are
subject to Intent-Based Replacement Disclosure, or




     (y) have no maturity or a maturity of at least 40 years and either (i) (a) are
Non-Cumulative or have a No Payment Provision and (b) are subject to a Qualifying
Replacement Capital Covenant or (ii) are subject to Intent-Based Replacement
Disclosure and have a Mandatory Trigger Provision and an Optional Deferral
Provision; or




     (E) cumulative preferred stock issued by the Corporation or its Subsidiaries that
either (1) have no maturity or a maturity of at least 60 years and are subject to
Intent-Based Replacement Disclosure or (2) have a maturity of at least 40 years and are
subject to a Qualifying Replacement Capital Covenant.


Notwithstanding the foregoing, no securities or combination of securities will be included in
Qualifying Capital Securities if such securities (i) applying the tests set forth above, are
required to include Intent-Based Replacement Disclosure and (ii) include a Distribution Rate
Step-Up.




     “Qualifying Non-Cumulative Preferred Stock” means non-cumulative preferred stock of the
Corporation that rank pari passu with or junior to all other preferred stock of the Corporation,
are perpetual and are subject to (a) a Qualifying Replacement Capital Covenant or (b) both (i)
mandatory suspension of dividends in the event the Corporation breaches certain financial metrics
specified in the offering documents relating to such preferred stock and (ii) Intent-Based
Replacement Disclosure, provided that with respect to both clauses (a) and (b) the transaction
documents shall provide for no remedies as a consequence of non-payment of Distributions other than
Permitted Remedies.



     “Qualifying Replacement Capital Covenant” means a replacement capital covenant that is
substantially similar to this Replacement Capital Covenant or a replacement capital covenant, as
identified by the Corporation’s Board of Directors acting in good faith and in its reasonable
discretion and reasonably construing the definitions and other terms of this Replacement Capital
Covenant, (i) entered into by a company that at the time it enters into such replacement capital
covenant is a reporting company under the Securities Exchange Act and (ii) that restricts the
related issuer from repaying, redeeming or purchasing, and its Subsidiaries from purchasing,
identified securities, except to the extent of the applicable percentage of the net proceeds from
the issuance of specified replacement capital securities that have terms and provisions at the time
of repayment, redemption or purchase that are as or more equity-like than the securities then being
repaid, redeemed or purchased within the 180-day period prior to the applicable repayment,
redemption or purchase date; provided that the term of such replacement capital covenant shall be
determined at the time of issuance of the related Replacement Capital Securities taking into
account the other characteristics of such securities but in no event shall be earlier than October
15, 2037.



     “Redesignation Date” means, as to the Covered Debt in effect at any time, the earliest of (a)
the date that is two years prior to the final maturity date of such Covered Debt, (b) if the
Corporation elects to redeem, repay or purchase, or the Corporation or a Subsidiary of the
Corporation elects to repurchase, such Covered Debt either in whole or in part with the consequence
that after giving effect to such redemption, repayment, purchase or repurchase the outstanding
principal amount of such Covered Debt is less than $100,000,000, the applicable redemption,
repayment, purchase or repurchase date and (c) if such Covered Debt is not Eligible Subordinated
Debt of the Corporation, the date on which the Corporation issues long-term indebtedness for money
borrowed that is Eligible Subordinated Debt.



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     “Replacement Capital Covenant” has the meaning specified in the introduction to this
instrument.



     “Replacement Capital Securities” means Common Stock, Warrants, Mandatorily Convertible
Preferred Stock, Debt Exchangeable for Common Equity, Debt Exchangeable for Preferred Equity and
Qualifying Capital Securities.



     “Reporting Company” has the meaning specified in Section 3(b).



     “Repurchase Restriction” has the meaning specified in clause (iii) of the definition of
Alternative Payment Mechanism.



     “Scheduled Maturity Date” has the meaning specified in the Indenture.



     “Securities Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Share Cap” means, with respect to any Qualifying Capital Securities, a limit on the total
number of Common Stock that may be issued by the Corporation pursuant to the Alternative Payment
Mechanism with respect to such Qualifying Capital Securities or on the total number of Common Stock
underlying all Warrants and Mandatorily Convertible Preferred Stock that may be issued by the
Corporation pursuant to such Alternative Payment Mechanism, provided that the product of such Share
Cap and the Market Value of the Common Stock as of the date of issuance of such Qualifying Capital
Securities shall not represent a lower proportion of the aggregate principal or liquidation amount,
as applicable, of such Qualifying Capital Securities than the product of the Share Cap applicable
to the CENts and the Current Stock Market Price of the Common Stock as of the date of issuance of
such CENts represents of the aggregate principal amount of such CENts at the time of issuance.



     “Subsidiary” means, at any time, any Person the shares of stock or other ownership interests
of which having ordinary voting power to elect a majority of the board of directors or other
managers of such Person are at the time owned, or the management or policies of which are otherwise
at the time controlled, directly or indirectly through one or more intermediaries (including other
Subsidiaries) or both, by another Person.



     “Termination Date” has the meaning specified in Section 4(a).



     “Warrants” means any net share-settled warrants to purchase the Common Stock that (i) have an
exercise price greater than the Current Stock Market Price of the Common Stock as of their date of
issuance, and (ii) the Corporation is not entitled to redeem for cash and the holders of which are
not entitled to require the Corporation to purchase for cash in any circumstances. The Corporation
will publicly state its intention, either in the prospectus or other offering document under which
the Qualifying Capital Securities including an Alternative Payment Mechanism or Mandatory Trigger
Provision with respect to which Warrants are an APM Qualifying Security were initially offered for
sale or in filings with the Commission made by the issuer under the Securities Exchange Act prior
to or contemporaneously with the issuance of such Qualifying Capital Securities, that any Warrants
issued in accordance with such Alternative Payment Mechanism or Mandatory Trigger Provision will
have exercise prices at least 10% above the Current Stock Market Price of its Common Stock on the
date of issuance.




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