exv4w8






EXHIBIT 4.8




 

 






ZIMMER HOLDINGS, INC.




and




WELLS FARGO BANK, NATIONAL ASSOCIATION

Trustee




 






Indenture




Dated as
of November      , 2009




Senior Debt Securities




 






 

 


















 












Certain Sections of this Indenture relating to Sections 310 through 318,

inclusive, of the Trust Indenture Act of 1939:




	 	 	 	 	 
	Trust Indenture	 	 	 
	Act Section	 	 	Indenture Section
	 	§310      	 (a)(1)	 	609

	 		 (a)(2)	 	609

	 		 (a)(3)	 	Not Applicable

	 		 (a)(4)	 	Not Applicable

	 		 (b)	 	608

	 	 	 	 	610

	 	§311      	 (a)	 	613

	 		 (b)	 	613

	 	§312      	 (a)	 	701

	 		 (b)	 	701

	 		 (c)	 	701

	 	§313      	 (a)	 	702

	 		 (b)	 	702

	 		 (c)	 	702

	 		 (d)	 	702

	 	§314      	 (a)	 	703

	 		 (a)(4)	 	101

	 	 	 	 	1004

	 		 (b)	 	Not Applicable

	 		 (c)(1)	 	102

	 		 (c)(2)	 	102

	 		 (c)(3)	 	Not Applicable

	 		 (d)	 	Not Applicable

	 		 (e)	 	102

	 	§315      	 (a)	 	601

	 		 (b)	 	602

	 		 (c)	 	601

	 		 (d)	 	601

	 		 (e)	 	514

	 	§316      	 (a)	 	101

	 		 (a)(1)(A)	 	502

	 	 	 	 	512

	 		 (a)(1)(B)	 	513

	 		 (a)(2)	 	Not Applicable

	 		 (b)	 	508

	 		 (c)	 	104

	 	§317      	 (a)(1)	 	503

	 		 (a)(2)	 	504

	 		 (b)	 	1003

	 	§318      	 (a)	 	107






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















 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	PARTIES
	 	 	1	 
	RECITALS OF THE COMPANY
	 	 	1	 
	 


	ARTICLE ONE

DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION
	 	 	 
	 


	SECTION 101. Definitions
	 	 	1	 
	SECTION 102. Compliance Certificates and Opinions
	 	 	6	 
	SECTION 103. Form of Documents Delivered to Trustee
	 	 	6	 
	SECTION 104. Acts of Holders; Record Dates
	 	 	6	 
	SECTION 105. Notices, Etc., to Trustee and Company
	 	 	8	 
	SECTION 106. Notice to Holders, Waiver
	 	 	8	 
	SECTION 107. Conflict with Trust Indenture Act
	 	 	8	 
	SECTION 108. Effect of Headings and Table of Contents
	 	 	8	 
	SECTION 109. Successors and Assigns
	 	 	8	 
	SECTION 110. Separability Clause
	 	 	8	 
	SECTION 111. Benefits of Indenture
	 	 	8	 
	SECTION 112. Governing Law
	 	 	8	 
	SECTION 113. Legal Holidays
	 	 	9	 
	SECTION 114. Force Majeure
	 	 	9	 
	 


	ARTICLE TWO

SECURITY FORMS
	 	 	 
	 


	SECTION 201. Form and Dating
	 	 	9	 
	SECTION 202. Execution and Authentication
	 	 	9	 
	SECTION 203. Transfer and Exchange
	 	 	10	 
	 


	ARTICLE THREE

THE SECURITIES
	 	 	 
	 


	SECTION 301. Amount Unlimited; Issuable in Series
	 	 	12	 
	SECTION 302. Intentionally Omitted
	 	 	14	 
	SECTION 303. Intentionally Omitted
	 	 	14	 
	SECTION 304. Temporary Securities
	 	 	14	 
	SECTION 305. Registration; Registration of Transfer and Exchange
	 	 	14	 
	SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities
	 	 	15	 
	SECTION 307. Payment of Interest; Interest Rights Preserved
	 	 	15	 
	SECTION 308. Persons Deemed Owners
	 	 	16	 
	SECTION 309. Cancellation
	 	 	16	 
	SECTION 310. Computation of Interest
	 	 	16	 
	SECTION 311. CUSIP Numbers
	 	 	16	 
	 


	ARTICLE FOUR

SATISFACTION AND DISCHARGE
	 	 	 
	 


	SECTION 401. Satisfaction and Discharge of Indenture
	 	 	16	 
	SECTION 402. Application of Trust Money
	 	 	17	 





NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part of the Indenture.















 










	 	 	 	 	 
	 	 	Page
	 


	ARTICLE FIVE

REMEDIES
	 	 	 
	 


	SECTION 501. Events of Default
	 	 	17	 
	SECTION 502. Acceleration of Maturity; Rescission and Annulment
	 	 	18	 
	SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	19	 
	SECTION 504. Trustee May File Proofs of Claim
	 	 	19	 
	SECTION 505. Trustee May Enforce Claims Without Possession of Securities
	 	 	19	 
	SECTION 506. Application of Money Collected
	 	 	20	 
	SECTION 507. Limitation on Suits
	 	 	20	 
	SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest
	 	 	20	 
	SECTION 509. Restoration of Rights and Remedies
	 	 	21	 
	SECTION 510. Rights and Remedies Cumulative
	 	 	21	 
	SECTION 511. Delay or Omission Not Waiver
	 	 	21	 
	SECTION 512. Control by Holders
	 	 	21	 
	SECTION 513. Waiver of Past Defaults
	 	 	21	 
	SECTION 514. Undertaking for Costs
	 	 	21	 
	SECTION 515. Waiver of Usury, Stay or Extension Laws
	 	 	21	 
	 


	ARTICLE SIX

THE TRUSTEE
	 	 	 
	 


	SECTION 601. Certain Duties and Responsibilities
	 	 	22	 
	SECTION 602. Notice of Defaults
	 	 	22	 
	SECTION 603. Certain Rights of Trustee
	 	 	23	 
	SECTION 604. Not Responsible for Recitals or Issuance of Securities
	 	 	24	 
	SECTION 605. May Hold Securities
	 	 	24	 
	SECTION 606. Money Held in Trust
	 	 	24	 
	SECTION 607. Compensation and Reimbursement
	 	 	24	 
	SECTION 608. Conflicting Interests
	 	 	24	 
	SECTION 609. Corporate Trustee Required; Eligibility
	 	 	25	 
	SECTION 610. Resignation and Removal; Appointment of Successor
	 	 	25	 
	SECTION 611. Acceptance of Appointment by Successor
	 	 	26	 
	SECTION 612. Merger, Conversion, Consolidation or Succession to Business
	 	 	26	 
	SECTION 613. Preferential Collection of Claims Against Company
	 	 	27	 
	SECTION 614. Appointment of Authenticating Agent
	 	 	27	 
	 


	ARTICLE SEVEN

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
	 	 	 
	 


	SECTION 701. Preservation of Information; Communications to Holders
	 	 	28	 
	SECTION 702. Reports by Trustee
	 	 	28	 
	SECTION 703. Reports by Company
	 	 	28	 
	 


	ARTICLE EIGHT

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
	 	 	 
	 


	SECTION 801. Company May Consolidate, Etc., Only on Certain Terms
	 	 	28	 
	SECTION 802. Successor Substituted
	 	 	29	 
	 


	ARTICLE NINE

SUPPLEMENTAL INDENTURES
	 	 	 
	 


	SECTION 901. Supplemental Indentures Without Consent of Holders
	 	 	29	 
	SECTION 902. Supplemental Indentures with Consent of Holders
	 	 	30	 






ii









 






	 	 	 	 	 
	 	 	Page
	SECTION 903. Execution of Supplemental Indentures
	 	 	30	 
	SECTION 904. Effect of Supplemental Indentures
	 	 	30	 
	SECTION 905. Conformity with Trust Indenture Act
	 	 	30	 
	SECTION 906. Notice of Supplemental Indenture; Reference in Securities
to Supplemental Indentures
	 	 	31	 
	 


	ARTICLE TEN

COVENANTS
	 	 	 
	 


	SECTION 1001. Payment of Principal, Premium and Interest
	 	 	31	 
	SECTION 1002. Maintenance of Office or Agency
	 	 	31	 
	SECTION 1003. Money for Securities Payments to Be Held in Trust
	 	 	31	 
	SECTION 1004. Statement by Officer as to Default
	 	 	32	 
	SECTION 1005. Existence
	 	 	32	 
	SECTION 1006. Maintenance of Properties
	 	 	32	 
	SECTION 1007. Payment of Taxes and Other Claims
	 	 	32	 
	SECTION 1008. Limitations on Liens
	 	 	33	 
	SECTION 1009. Limitations on Sale and Leaseback Transactions
	 	 	34	 
	SECTION 1010. Limitations Upon Permitting Restricted Subsidiaries Becoming Unrestricted Subsidiaries
and. Unrestricted Subsidiaries Becoming Restricted Subsidiaries
	 	 	34	 
	SECTION 1011. Waiver of Certain Covenants
	 	 	35	 
	SECTION 1012. Calculation of Original Issue Discount and Other Amounts
	 	 	35	 
	 


	ARTICLE ELEVEN

REDEMPTION OF SECURITIES
	 	 	 
	 


	SECTION 1101. Applicability of Article
	 	 	35	 
	SECTION 1102. Election to Redeem; Notice to Trustee
	 	 	35	 
	SECTION 1103. Selection by Trustee of Securities to Be Redeemed
	 	 	35	 
	SECTION 1104. Notice of Redemption
	 	 	36	 
	SECTION 1105. Deposit of Redemption Price
	 	 	36	 
	SECTION 1106. Securities Payable on Redemption Date
	 	 	36	 
	SECTION 1107. Securities Redeemed in Part
	 	 	36	 
	 


	ARTICLE TWELVE

SINKING FUNDS
	 	 	 
	 


	SECTION 1201. Applicability of Article
	 	 	37	 
	SECTION 1202. Satisfaction of Sinking Fund Payments with Securities
	 	 	37	 
	SECTION 1203. Redemption of Securities for Sinking Fund
	 	 	37	 
	 


	ARTICLE THIRTEEN

DEFEASANCE AND COVENANT DEFEASANCE
	 	 	 
	 


	SECTION 1301. Company’s Option to Effect Defeasance or Covenant Defeasance
	 	 	37	 
	SECTION 1302. Defeasance and Discharge
	 	 	37	 
	SECTION 1303. Covenant Defeasance
	 	 	38	 
	SECTION 1304. Conditions to Defeasance or Covenant Defeasance
	 	 	38	 
	SECTION 1305. Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions
	 	 	39	 
	SECTION 1306. Reinstatement
	 	 	39	 






SIGNATURES

EXHIBITS:




     Exhibit A: Form of Security



iii









 





     INDENTURE, dated as of *, between ZIMMER HOLDINGS, INC., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the “Company”), having its
principal office at 345 East Main Street, Warsaw, Indiana, and WELLS FARGO BANK, NATIONAL
ASSOCIATION, a national banking association, Trustee (herein called the “Trustee”).



RECITALS OF THE COMPANY




     The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured notes, debentures or other evidences of
Indebtedness (herein called the “Securities”), to be issued in one or more series under this
Indenture.



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



     NOW, THEREFORE, THIS INDENTURE WITNESSETH:



     For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof, as follows:



ARTICLE ONE




DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION




SECTION 101. Definitions.




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




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




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




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




     (4) unless the context otherwise requires, any reference to an “Article,” a “Section” or a
Subsection refers to an Article, a Section or a Subsection, as the case may be, of this
Indenture; and




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



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



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



     “Agent” means any Security Registrar, Paying Agent or co-registrar.



     “Attributable Debt” in respect of a Sale and Leaseback Transaction means, at the time of
determination, the present value (discounted at the imputed rate of interest of such transaction
determined in accordance with generally accepted accounting principles) of the obligation of the
lessee for net rental payments during the remaining term of the lease included in such Sale and
Leaseback Transaction (including any period for which such lease has been extended or may, at the
option of the lessor, be extended). The term “net rental payments” under any lease for any period
shall mean the sum of the rental and other payments required to be paid in such period by the
lessee thereunder, not including any amounts required to be paid by such lessee (whether or not
designated as rental or additional rental) on account of maintenance and repairs, insurance, taxes,
assessments, water rates or similar charges required to be paid by such lessee thereunder or any
amount required to be paid by lessee thereunder contingent upon the amount of maintenance and
repairs, insurance, taxes, assessments, water rates or similar charges.



1









 





     “Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 614 to
act on behalf of the Trustee to authenticate Securities of one or more series.



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



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



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



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



     “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 any Officer, and delivered to the Trustee.



     “Consolidated Net Tangible Assets” means the total amounts of assets (less depreciation and
valuation reserves and other reserves and items deductible from gross book value of specific asset
accounts under generally accepted accounting principles) which under generally accepted accounting
principles would be included on a consolidated balance sheet of the Company and its consolidated
Restricted Subsidiaries, after deducting therefrom (i) all current liabilities, excluding current
liabilities that could be classified as long-term debt under generally accepted accounting
principles and current liabilities that are by their terms extendable or renewable at the obligor’s
option to a time more than 12 months after the time as of which the amount of current liabilities
is being computed; (ii) all amounts which would be so included on such balance sheet in respect of
Investments (less applicable reserves) in Unrestricted Subsidiaries; and (iii) all trade names,
trademarks, licenses, patents, copyrights and goodwill, organizational and development costs,
deferred charges, other than prepaid items such as insurance, taxes, interest, commissions, rents
and similar items and tangible assets being amortized, and amortized debt discount and expense,
less unamortized premium.



     “Corporate Trust Office” means the office of the Trustee or the Security Registrar, as the
case may be, at which at any particular time its corporate trust business shall be principally
administered, which office as of the date of this instrument is located at 230 West Monroe Street,
Suite 2900, Chicago, Illinois 60606, Attention Corporate Trust Services, or which office is located
at such other address as the Trustee may designate from time to time by notice to the Holders and
the Company.



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



     “Covenant Defeasance” has the meaning specified in Section 1303.



     “Custodian” means the Trustee or other Securities custodian, as custodian with respect to the
Securities, each in global form, or any successor entity thereto.



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



     “Defeasance” has the meaning specified in Section 1302.



     “Definitive Security” means a certificated Security registered in the name of the Holder
thereof and issued in accordance with Section 203 hereof, substantially in the form of Exhibit A
hereto, except that such Security shall not bear the Global Security Legend and shall not have the
“Schedule of Exchanges of Interests in the Global Security” attached thereto.



     “Depository” means, with respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, a clearing agency registered under the Exchange Act that
is designated to act as Depository for such Securities as contemplated by Section 203.



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



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



2









 





     “Exempted Debt” means the sum of the following items outstanding as of the date Exempted Debt
is being determined (1) Indebtedness of the Company and its Restricted Subsidiaries secured by a
Mortgage and not permitted to exist pursuant to Section 1008(a) and (2) Attributable Debt of the
Company and its Restricted Subsidiaries in respect of all Sale and Leaseback Transactions not
permitted pursuant to Section 1009(a).



     “Expiration Date” has the meaning specified in Section 104.



     “Funded Debt” means Indebtedness which matures more than one year from the date of creation,
or which is extendable or renewable at the sole option of the obligor so that it may become payable
more than one year from such date. Funded debt does not include (1) obligations created pursuant to
leases, (2) any Indebtedness or portion thereof maturing by its terms within one year from the time
of any computation of the amount of outstanding funded debt unless such indebtedness shall be
extendable or renewable at the sole option of the obligor in such manner that it may become payable
more than one year from such time, or (3) any Indebtedness for the payment or redemption of which
money in the necessary amount shall have been deposited in trust either at or before the maturity
date thereof.



     “Global Securities” means the Securities, substantially in the form of Exhibit A hereto, as
appropriate, that bear the Global Security Legend and that have the “Schedule of Exchanges of
Interests in the Global Security” attached thereto, and that are deposited with or on behalf of and
registered in the name of the Depository, issued in accordance with Section 201 or 203 of this
Indenture.



     “Global Security Legend” means the legend set forth in Section 203(2), which is required to be
placed on all Global Securities issued under this Indenture.



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



     “Indebtedness” means indebtedness for borrowed money and indebtedness under purchase money
Mortgages or other purchase money liens or conditional sales or similar title retention agreements,
in each case where such indebtedness has been created, incurred, or assumed by such person to the
extent such indebtedness would appear as a liability upon a balance sheet of such person prepared
in accordance with generally accepted accounting principles, guarantees by such person of such
indebtedness, and indebtedness for borrowed money secured by any Mortgage, pledge or other lien or
encumbrance upon property owned by such person, even though such person has not assumed or become
liable for the payment of such indebtedness.



     “Indenture” means this instrument as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively. The term “Indenture”
shall also include the terms of particular series of Securities established as contemplated by
Section 301.



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



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



     “Investment” means and includes any investment in stock, evidences of Indebtedness, loans or
advances, however made or acquired, but shall not include accounts receivable of the Company or of
any Restricted Subsidiary arising from transactions in the ordinary course of business, or any
evidences of indebtedness, loans or advances made in connection with the sale to any Subsidiary of
accounts receivable of the Company or any Restricted Subsidiary arising from transactions in the
ordinary course of business.



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



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



     “Mortgage” has the meaning specified in Section 1008.



     “Notice of Default” means a written notice of the kind specified in Section 501(4).



     “Officer” means the Chairman of the Board, the Chief Executive Officer, the Chief Financial
Officer, the Chief Legal Officer, a President, Vice President, Treasurer, Assistant Treasurer,
Secretary or an Assistant Secretary, of the Company.



3









 





     “Officer’s Certificate” means a certificate signed on behalf of the Company by any Officer,
and delivered to the Trustee.



     “Opinion of Counsel” means a written opinion of legal counsel, who may be an employee of, or
outside counsel for, the Company, who shall be acceptable to the
Trustee, and delivered to the Trustee.



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



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




     (1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;




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




     (3) Securities as to which Defeasance has been effected pursuant to Section 1302; and




     (4) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu
of which other Securities have been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose
hands such Securities are valid obligations of the Company;


provided, however, that in determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given, made or taken any request, demand, authorization, direction,
notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an
Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the
principal thereof which would be due and payable as of such date upon acceleration of the Maturity
thereof to such date pursuant to Section 502, (B) if, as of such date, the principal amount payable
at the Stated Maturity of a Security is not determinable, the principal amount of such Security
which shall be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated in one or more
foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S.
dollar equivalent, determined as of such date in the manner provided as contemplated by Section
301, of the principal amount of such Security (or, in the case of a Security described in Clause
(A) or (B) above, of the amount determined as provided in such Clause), and (D) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent, waiver or other action, only Securities of which a Responsible Officer
of the Trustee has actual knowledge are so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.




     “Participant” means, with respect to the Depository, a Person who has an account with the
Depository.



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



     “Paying Agent Office” means the designated office of the Trustee of which the corporate trust
paying agent office of the Trustee shall, at any particular time, be administered, which office is,
at the date of this Indenture, located at 608 Second Avenue South, MAC N9303-121, Minneapolis, MN
55479, Attention Corporate Trust Operations.



     “Person” means any individual, corporation, partnership, limited liability company, joint
venture, trust, unincorporated organization or government or any agency or political subdivision of
a government or governmental agency.



     “Place of Payment”, when used with respect to the Securities of any series, means the place or
places where the principal of and any premium and interest on the Securities of that series are
payable as specified, as contemplated by Section 301.



     “Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security, and, for the purposes
of this definition, any Security authenticated and delivered under Section 306 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.



4









 





     “Principal Property” means all real property and improvements thereon owned by the Company or
a Restricted Subsidiary constituting, without limitation, any manufacturing, warehouse,
distribution or research facility and located within the United States, excluding its territories
and possessions and Puerto Rico, having a gross book value in excess of 1% of the Company’s
Consolidated Net Tangible Assets; provided that such term shall not include any manufacturing,
warehouse, distribution or research facility that the Board of Directors declares by resolution not
to be of material importance to the business of the Company and its Restricted Subsidiaries.



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



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



     “Regular Record Date” for the interest payable on any Interest Payment Date on the Securities
of any series means the date specified for that purpose as contemplated by Section 301.



     “Responsible Officer”, when used with respect to the Trustee, means any officer of the Trustee
within the Corporate Trust Department of the Trustee (or any successor unit or department of the
Trustee) located at the Corporate Trust Office of the Trustee who has direct responsibility for the
administration of this Indenture and, for the purposes of Section 601(3)(B) and Section 602 (for
the purposes of Section 315(b) of the Trust Indenture Act), shall also include any officer of the
Trustee to whom any corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.



     “Restricted Subsidiary” means Zimmer, Inc. and any other Subsidiary which, subject to Section
1005, shall be designated by the Company’s Board of Directors or by one of the Company’s duly
authorized Officers as a Restricted Subsidiary; provided that (a) the Board of Directors or duly
authorized Officers may, subject to Section 1005, designate any Unrestricted Subsidiary as a
Restricted Subsidiary and any Restricted Subsidiary (other than Zimmer, Inc.) as an Unrestricted
Subsidiary and (b) any Subsidiary of which the majority of the voting stock is owned directly or
indirectly by one or more Unrestricted Subsidiaries shall be an Unrestricted Subsidiary.



     “Sale and Leaseback Transaction” has the meaning specified in Section 1009.



     “Securities” means the Securities described in the first recital hereto and issued on the date
hereof. For all purposes of this Indenture, the term “Securities” shall include the Securities
initially issued on the date hereof and any other Securities issued after the date hereof under
this Indenture.



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



     “Security Register” and “Security Registrar” have the respective meanings specified in Section
305.



     “Senior Funded Debt” means all Funded Debt (except Funded Debt, the payment of which is
subordinated to the payment of the Securities).



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



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



     “Subsidiary” means any corporation of which at least a majority of the outstanding stock
having voting power under ordinary circumstances to elect a majority of the board of directors of
said corporation or business entity is at the time owned or controlled by the Company, or by the
Company and one or more subsidiaries, or by any one or more subsidiaries.



     “Trust Indenture Act” means the Trust Indenture Act of 1939 as 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 amended after such date, “Trust Indenture Act” means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.



     “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, and if at any time there is more than one such Person, “Trustee” as used with respect to
the Securities of any series shall mean the Trustee with respect to Securities of that series.



     “Unrestricted Subsidiary” means any Subsidiary other than a Restricted Subsidiary.



     “U.S. Government Obligation” has the meaning specified in Section 1304.



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



     “Wholly Owned Restricted Subsidiary” means any Restricted Subsidiary all of the outstanding
Funded Debt and capital stock of which, other than directors’ qualifying shares, is owned by the
Company and its other Wholly Owned Restricted Subsidiaries.



SECTION 102. Compliance Certificates and Opinions.




     Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be requested by the Trustee. Each such certificate or opinion shall be given in the
form of an Officer’s Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirements set forth in this Indenture.



     Every certificate (other than a certificate pursuant to Section 314(a)(4) of the Trust
Indenture Act) or opinion with respect to compliance with a condition or covenant provided for in
this Indenture shall include,




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




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




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




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



SECTION 103. Form of Documents Delivered to Trustee.




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



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



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



SECTION 104. Acts of Holders; Record Dates.




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



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



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



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



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



     The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making of (1) any Notice of
Default, (2) any declaration of acceleration referred to in Section 502, (3) any request to
institute proceedings referred to in Section 507(2) or (4) any direction referred to in Section
512, in each case with respect to Securities of such series. If any record date is set pursuant to
this paragraph, the Holders of Outstanding Securities of such series on such record date, and no
other Holders, shall be entitled to join in such notice, declaration, request or direction, whether
or not such Holders remain Holders after such record date; provided, however, that no such action
shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Securities of such series on such record date.
Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date
for any action for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action by any Person be
cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after any record date is set pursuant to
this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the Company in writing
and to each Holder of Securities of the relevant series in the manner set forth in Section 106.



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



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



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




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




     (1) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: Zimmer Holdings, Inc. Account Manager, or




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



SECTION 106. 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 sent via
electronic transmission or mailed, first-class postage prepaid, to each Holder affected by such
event, at his address as it appears in the Security Register, not later than the latest date (if
any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. In
any case where notice to Holders is sent electronically or given by mail, neither the failure to
send or mail such notice, nor any defect in any notice so sent, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such waiver.



SECTION 107. Conflict with Trust Indenture Act.




     If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act which is required under such Act or deemed to be a part of and govern this Indenture, such
required or deemed provision shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.



SECTION 108. Effect of Headings and Table of Contents.




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



SECTION 109. Successors and Assigns.




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



SECTION 110. Separability Clause.




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



SECTION 111. Benefits of Indenture.




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



SECTION 112. Governing Law.




     This Indenture and the Securities shall be governed by and construed in accordance with the
laws of the State of New York (including without limitation Section 5-1401 of the New York General
Obligations Law or any successor to such statute). The Trustee and the Company agree to submit to
the non-exclusive jurisdiction of any United States federal or state court located in the Borough
of Manhattan, in The City of New York in any action or proceeding arising out of or relating to
this Indenture or the Securities.



8









 





     The Trustee and the Company hereby knowingly, voluntarily and intentionally waive any rights
they may have to a trial by jury in respect of any litigation based hereon, or arising out of,
under or in connection with this Indenture or any course of conduct, course of dealing, statements
(whether oral or written) or actions of the Trustee or the Company relating thereto. The Company
acknowledges and agrees that it has received full and sufficient consideration for this provision
and that this provision is a material inducement for the Trustee and the Holders entering into this
Indenture.



SECTION 113. Legal Holidays.




     In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities (other than a provision of any Security which
specifically states that such provision shall apply in lieu of this Section)) payment of interest
or principal (and premium, if any) need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity; and no
interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be, if payment is made on the next succeeding Business Day.



SECTION 114. Force Majeure.




     In no event shall the Trustee be responsible or liable, nor shall the Company be responsible
or liable to the Trustee, for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control, including, without
limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software and hardware) services; it being
understood that the Trustee or the Company, as the case may be, shall use reasonable efforts which
are consistent with accepted practices to resume performance as soon as practicable under the
circumstances.



ARTICLE TWO




SECURITY FORMS




SECTION 201. Form and Dating.




     The Securities of each series and the Trustee’s certificate of authentication thereon shall be
in substantially the form set forth in Exhibit A hereto, the terms of which are incorporated in and
made a part of this Indenture, or in such other form as shall be established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are required or permitted
by this Indenture, and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depository therefor or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution thereof. If the form of
Securities of any series is established by action taken by or pursuant to a Board Resolution, a
copy of an appropriate record of such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 202 for the authentication and delivery of such Securities. Unless
otherwise provided as contemplated by Section 301 with respect to any series of Securities, each
Security shall be dated the date of its authentication. Unless otherwise provided as contemplated
by Section 301 with respect to any series of Securities, the Securities shall be issuable only in
denominations of $2,000 and integral multiples thereof.



     The Definitive Securities shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities. Securities issued in global form
shall be substantially in the form of Exhibit A attached hereto (including the Global Security
Legend thereon and the “Schedule of Exchanges of Interests in the Global Security” attached
thereto). Securities issued in definitive form shall be substantially in the form of Exhibit A
attached hereto (but without the Global Security Legend thereon and without the “Schedule of
Exchanges of Interests in the Global Security” attached thereto). Each Global Security shall
represent such of the outstanding Securities as shall be specified therein and each shall provide
that it shall represent the aggregate principal amount of outstanding Securities from time to time
endorsed thereon and that the aggregate principal amount of outstanding Securities represented
thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Security to reflect the amount of any increase or decrease
in the aggregate principal amount of outstanding Securities represented thereby shall be made by
the Trustee in accordance with instructions given by the Holder thereof as required by Section 203
hereof.



SECTION 202. Execution and Authentication.




     An Officer of the Company shall sign the Securities for the Company, by manual or facsimile
signature.



     If an Officer of the Company whose signature is on a Security no longer holds that office at
the time such Security is authenticated, such Security shall be valid nevertheless.



     A Security shall not be valid or obligatory, or entitled to any benefit under this Indenture,
unless there appears on such Security a certificate of authentication substantially in the form
provided for herein manually executed by the Trustee or an Authentication Agent. The manual
signature of the Trustee shall be conclusive evidence, and the only evidence, that such Security
has been authenticated and delivered in accordance with the terms of this Indenture and is entitled
to the benefits of this Indenture.



9









 





     The Trustee, upon a Company Order, shall authenticate and deliver Securities for original
issue in an aggregate principal amount specified in such order. Such Company Order shall specify
the principal amount of the Securities to be authenticated and the date on which the original issue
of Securities is to be authenticated. The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.



     If the form or terms of the Securities of the series have been established by or pursuant to
one or more Board Resolutions as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully
protected in relying upon, an Opinion of Counsel stating,




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




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




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



     (4)
all conditions precedent (and covenants, compliance with which
constitutes a condition precedent) under this Indenture to the
authentication and delivery of such Securities by the Trustee have
been complied with.


     If all the Securities of any Series are not to be issued at one time, it shall not be
necessary to deliver an Opinion of Counsel and an Officer’s Certificate at the time of issuance of
each Security, but such opinion and certificate, with appropriate modifications, shall be delivered
at or before the time of issuance of the first Security of such Series. After any such first
delivery, any separate written request by an Officer of the Company or any person designated in
writing by an Officer that the Trustee authenticate and deliver Securities of such Series for
original issue will be deemed to be a certification by the Company that all conditions precedent
provided for in this Indenture relating to authentication and delivery of such Securities continue
to have been complied with.



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



     Notwithstanding the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 309, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Indenture.



SECTION 203. Transfer and Exchange.





     (1) Transfer and Exchange of Global Securities. A Global Security may not be transferred as
a whole except by the Depository to a nominee of the Depository, by a nominee of the Depository
to the Depository or to another nominee of the Depository, or by the Depository or any such
nominee to a successor Depository or a nominee of such successor Depository. The Company
initially appoints The Depository Trust Company (“DTC”) to act as Depository with respect to the
Global Securities. Global Securities shall be exchanged by the Company for Definitive Securities
if:




     (A) the Company delivers to the Trustee notice from the Depository that it is unwilling
or unable to continue to act as Depository or that it is no longer a clearing agency
registered under the Exchange Act and, in either case, a successor Depository is not
appointed by the Company within 120 days after the date of such notice from the Depository;
or




     (B) the Company in its sole discretion determines that the Global Securities (in whole
but not in part) should be exchanged for Definitive Securities and delivers written notice
to such effect to the Trustee; or




     (C) there shall have occurred and be continuing an Event of Default under this
Indenture and the Trustee has received a request from the Depository or any Holder to issue
Definitive Securities.



     Upon the occurrence of any of the preceding events in (A) or (B) above, the Company will
notify the Trustee in writing that, upon surrender by the Participants of their interest in such
Global Securities, Definitive Securities will be issued to each Person that such Participants and
the Depository identify as being the beneficial owner of the related Securities. Global Securities
also may be exchanged or replaced, in whole or in part, as provided in Sections 304, 305 and 306
hereof. Except as otherwise provided above in this Section 203, every Security authenticated and
delivered in exchange for, or in lieu of, a Global Security or any portion thereof, pursuant to
this Section 203 or Sections 304, 305 or 306 hereof, shall be authenticated



10









 







and delivered in the form of, and shall be, a Global Security. A Global Security may not be
exchanged for another Security other than as provided in this Section 203(1).




     (2) Legends. The following legend shall appear on the face of all Global Securities issued
under this Indenture unless specifically stated otherwise in the applicable provisions of this
Indenture:




“THIS GLOBAL SECURITY IS HELD BY AND REGISTERED IN THE NAME OF THE DEPOSITORY (AS DEFINED IN
THE INDENTURE GOVERNING 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 IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (A) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 203 OF THE INDENTURE, (B) THIS GLOBAL SECURITY MAY BE EXCHANGED PURSUANT
TO SECTION 203(1) OF THE INDENTURE, (C) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 309 OF THE INDENTURE AND (D) THIS GLOBAL SECURITY MAY
BE TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.




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




     (3) General Provisions Relating to Transfers and Exchanges.




     (A) To permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Global Securities and Definitive Securities upon the
Company’s order or at the Security Registrar’s request.




     (B) No service charge shall be made to a Holder of a Definitive Security 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 (other than any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Section 305 hereof).




     (C) The Security Registrar shall not be required to register the transfer of or
exchange any Security selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.




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




     (E) The Company shall not be required (i) to issue, to register the transfer of or to
exchange any Securities during a period beginning at the opening of business on a Business
Day 15 days before the day of any selection of Securities for redemption under Section 1103
hereof and ending at the close of business on the day of selection or (ii) to register the
transfer of or to exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part or (iii) to register
the transfer of or to exchange a Security between a record date for the payment of interest
and the next succeeding Interest Payment Date.




     (F) Prior to due presentment for the registration of a transfer of any Security, the
Trustee, any Agent and the Company may deem and treat the Person in whose name any Security
is registered as the absolute owner of such Security for the purpose of receiving payment of
principal of and interest on such Securities and for all other purposes, and none of the
Trustee, any Agent or the Company shall be affected by notice to the contrary.




     (G) The Trustee shall authenticate Global Securities and Definitive Securities upon
original issuance in accordance with the provisions of Section 202 hereof.




     (H) All certifications, certificates and Opinions of Counsel required to be submitted
to the Security Registrar pursuant to this Section 203 to effect a registration of transfer
or exchange may be submitted by facsimile with the original to follow by first class mail.



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     (4) No Obligation of the Trustee.




     (A) None of the Trustee, any Paying Agent or the Security Registrar shall have any
responsibility or obligation to any beneficial owner in a Global Security, a member of, or a
participant in the Depository or other Person with respect to the accuracy of the records of
the Depository or its nominee or of any participant or member thereof, with respect to any
ownership interest in the Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depository) of any notice
(including any notice of redemption) or the payment of any amount, under or with respect to
such Securities. All notices and communications to be given to the Holders and all payments
to be made to Holders under the Securities shall be given or made only to or upon the order
of the registered Holders (which shall be the Depository or its nominee in the case of the
Global Security). The rights of beneficial owners in the Global Security shall be exercised
only through the Depository subject to the applicable rules and procedures of the
Depository. The Trustee, any Paying Agent and the Security Registrar may rely and shall be
fully protected in relying upon information furnished by the Depository with respect to its
members, participants and any beneficial owners. The Trustee, each Paying Agent and the
Security Registrar shall be entitled to deal with any depositary (including the Depository),
and any nominee thereof, that is the Holder of any Global Security for all purposes of this
Indenture relating to such global Security (including the payment of principal, premium, if
any, and interest and additional amounts, if any, and the giving of instructions or
directions by or to the owner or holder of a beneficial ownership interest in such Global
Security) as the sole Holder of such Global Security and shall have no obligations to the
beneficial owners thereof. None of the Trustee, any Paying Agent or the Security Registrar
shall have any responsibility or liability for any acts or omissions of any such depositary
with respect to such Global Security, for the records of any such depositary, including
records in respect of beneficial ownership interests in respect of any such Global Security,
for any transactions between such depositary and any participant in such depositary or
between or among any such depositary, any such participant and/or any holder or owner of a
beneficial interest in such Global Security or for any transfers of beneficial interests in
any such Global Security.




     (B) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in any Security (including any
transfers between or among Depository participants, members or beneficial owners in the
Global Security) other than to make any required 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.



ARTICLE THREE




THE SECURITIES




SECTION 301. Amount Unlimited; Issuable in Series.




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



     The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution and, subject to Section 202, set forth, or determined in the manner provided,
in an Officer’s Certificate, or established in one or more indentures supplemental hereto, prior to
the issuance of Securities of any series,




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




     (2) any limit upon the aggregate principal amount of the Securities of the series which may
be authenticated and delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the series pursuant to Section 304, 305, 306, 906 or 1107 and except for any Securities
which, pursuant to Section 202, are deemed never to have been authenticated and delivered
hereunder);




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




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



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




     (6) the place or places where the principal of and any premium and interest on any
Securities of the series shall be payable;




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




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




     (9)
if other than denominations of $2,000 and any integral multiple thereof, the
denominations in which any Securities of the series shall be issuable;




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




     (11) if other than the currency of the United States of America, the currency, currencies
or currency units in which the principal of or any premium or interest on any Securities of the
series shall be payable and the manner of determining the equivalent thereof in the currency of
the United States of America for any purpose, including for purposes of the definition of
“Outstanding” in Section 101;




     (12) if the principal of or any premium or interest on any Securities of the series is to
be payable, at the election of the Company or the Holder thereof, in one or more currencies or
currency units other than that or those in which such Securities are stated to be payable, the
currency, currencies or currency units in which the principal of or any premium or interest on
such Securities as to which such election is made shall be payable, the periods within which and
the terms and conditions upon which such election is to be made and the amount so payable (or
the manner in which such amount shall be determined);




     (13) if other than the entire principal amount thereof, the portion of the principal amount
of any Securities of the series which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 502;




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




     (15) if applicable, that the Securities of the series, in whole or any specified part,
shall be defeasible pursuant to Section 1302 or Section 1303 or both such Sections and, if other
than by a Board Resolution, the manner in which any election by the Company to defease such
Securities shall be evidenced;




     (16) if applicable, that any Securities of the series shall be issuable in whole or in part
in the form of one or more Global Securities and, in such case, the respective Depositories for
such Global Securities, the form of any legend or legends which shall be borne by any such
Global Security in addition to or in lieu of that set forth in Section 203 and any circumstances
in addition to or in lieu of those set forth in Clause (B) of the last paragraph of Section
203(1) in which any such Global Security may be exchanged in whole or in part for Securities
registered, and any transfer of such Global Security in whole or in part may be registered, in
the name or names of Persons other than the Depository for such Global Security or a nominee
thereof;




     (17) any addition to or change in the Events of Default which applies to any Securities of
the series and any change in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable pursuant to Section 502;




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




     (19) any other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture, except as permitted by Section 901(5)).



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     All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 202) set forth, or determined in the manner provided, in the Officer’s
Certificate referred to above or in any such indenture supplemental hereto.



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



SECTION 302. Intentionally Omitted.




SECTION 303. Intentionally Omitted.




SECTION 304. Temporary Securities.




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



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



SECTION 305. Registration; Registration of Transfer and Exchange.




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



     Except as otherwise specified or contemplated by Section 301 with respect to the Securities of
any series, upon surrender for registration of transfer of any Security of such series at the
office or agency of the Company in a Place of Payment, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or transferees, one or
more new Securities of the same series, of authorized denominations and of like tenor and aggregate
principal amount.



     Except as otherwise specified or contemplated by Section 301 with respect to the Securities of
any series, any Security of such series may be exchanged at the option of the Holder, for one or
more new Securities of the same series, of authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Securities to be exchanged at any such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities that the Holder making the exchange is entitled to
receive.



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



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



     Unless otherwise specified as contemplated by Section 301 with respect to Securities of any
series, no service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of
Securities.



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




     If any mutilated security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and
of like tenor and principal amount and bearing a number not contemporaneously outstanding.



     If there shall be delivered to the Company and the Trustee (1) evidence to their satisfaction
of the destruction, loss or theft of any Security and (2) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.



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



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



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



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



SECTION 307. Payment of Interest; Interest Rights Preserved.




     Except as otherwise provided as contemplated by Section 301 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest.



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




     (1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities of such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in trust for the benefit of
the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record Date and, in the name and
at the expense of the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be given to each Holder of Securities of such
series in the manner set forth in Section 106, 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 sent, such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no longer be payable pursuant to
the following Clause (2).




     (2) The Company may make payment of any Defaulted Interest on the Securities of any series
in any other lawful manner not inconsistent with the requirements of any securities exchange on
which such Securities 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.



15









 





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



SECTION 308. Persons Deemed Owners.




     Prior to due presentment of a Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name such Security is
registered as the absolute owner of such Security for the purpose of receiving payment of principal
of and premium, if any, and (subject to Sections 305 and 307) interest, if any, on such Security
and for all other purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.



SECTION 309. Cancellation.




     All Securities surrendered for payment, redemption, registration of transfer or exchange or
for credit against any sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder and all Securities so delivered shall be promptly cancelled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed in accordance with the Trustee’s then
customary procedures. If requested by the Company, certification of the cancellation of all
surrendered Securities shall be delivered to the Company.



SECTION 310. Computation of Interest.




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



SECTION 311. CUSIP Numbers.




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



ARTICLE FOUR




SATISFACTION AND DISCHARGE




SECTION 401. Satisfaction and Discharge of Indenture.




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




     (1) either




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




     (B) all such Securities not theretofore delivered to the Trustee for cancellation




     (i) have become due and payable, or




     (ii) will become due and payable at their Stated Maturity within one year, or



16









 






     (iii) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company,




and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be
deposited with the Trustee as trust funds, in trust for such purpose, money in an amount
entirely in cash or U.S. Government Obligations, or a combination
thereof, in the opinion of a nationally recognized firm of
independent public accountants expressed in written certification
thereof delivered to the Trustee, sufficient to pay and discharge the entire Indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal and any premium and interest to the
date of such deposit (in the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;




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




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


Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 607, the obligations of the Trustee to any Authenticating Agent under
Section 614 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of
Clause (1) of this Section, the obligations of the Trustee under Section 402 and the last paragraph
of Section 1003 shall survive.




SECTION 402. Application of Trust Money.




     Subject to the provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal and any premium and interest for whose payment
such money has been deposited with the Trustee.



ARTICLE FIVE




REMEDIES




SECTION 501. Events of Default.




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




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




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




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




     (4) default in the performance, or breach, of any covenant or warranty of the Company in
this Indenture (other than a covenant or warranty a default in whose performance or whose breach
is elsewhere in this Section specifically dealt with or which has expressly been included in
this Indenture solely for the benefit of series of Securities other than that series), and
continuance of such default or breach for a period of 60 days after there has been given, by
registered or certified mail, or sent by a national courier service
that provides next day delivery, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be remedied and stating
that such notice is a “Notice of Default” hereunder; or




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



17









 






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




     (7) any other Event of Default provided as contemplated by Section 301 or 901 herein with
respect to Securities of that series.



SECTION 502. Acceleration of Maturity; Rescission and Annulment.




     If an Event of Default (other than an Event of Default specified in Section 501(5) or 501(6))
with respect to Securities of any series at the time Outstanding occurs and is continuing, then in
every such case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount of all the Securities of
that series (or, if any Securities of that series are Original Issue Discount Securities, such
portion of the principal amount of such Securities as may be specified by the terms thereof) to be
due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by
Holders), and upon any such declaration such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default specified in Section 501(5) or 501(6) with
respect to Securities of any series at the time Outstanding occurs, the principal amount of all the
Securities of that series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be specified by the
terms thereof) shall automatically, and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and payable.




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




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




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



18









 






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




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




     (D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and all other
amounts due the Trustee under Section 607; and




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



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



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




     The Company covenants that if




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




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


and such default is continuing, the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and payable on such Securities
for principal and any premium and interest and, to the extent that payment of such interest shall
be legally enforceable, interest on any overdue principal and premium and on any overdue interest,
at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and all other amounts due the Trustee under Section 607.




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



SECTION 504. Trustee May File Proofs of Claim.




     In case of any judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and all other amounts due the Trustee under Section 607) allowed in any such proceeding.
In particular, the Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to the Holders, to pay
to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607. To the extent that the payment of any such compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607 hereof
out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a lien on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or otherwise.


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



SECTION 505. Trustee May Enforce Claims Without Possession of Securities.




     All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such



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proceeding instituted by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders of the Securities in respect of which such judgment has been
recovered.



SECTION 506. Application of Money Collected.




     Any money collected by the Trustee pursuant to this Article and, after an Event of Default,
any money or other property distributable in respect of the Company’s obligations under this
Indenture, shall be applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium or interest, upon
presentation of the Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:



     FIRST: To the payment of all amounts due the Trustee (including any predecessor Trustee) under
Section 607;



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



     THIRD: To the Company or to such party as a court of competent jurisdiction shall direct;


provided, however, in the event that default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a period of 30 days, or
default is made in the payment of the principal of or premium, if any, on any Security on the
Stated Maturity Date or Redemption Date thereof, the Trustee may reserve from any money collected
pursuant to this Article an amount sufficient, in the reasonable determination of the Trustee, to
cover the expenses, disbursements and advances of the Trustee that may be incurred thereafter.




     The Trustee may fix a record date for the payment of any amounts to Holders pursuant to this
Section.



SECTION 507. Limitation on Suits.




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




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




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




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




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




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


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




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




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



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SECTION 509. Restoration of Rights and Remedies.




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



SECTION 510. Rights and Remedies Cumulative.




     Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 306, 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 511. Delay or Omission Not Waiver.




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



SECTION 512. Control by Holders.




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




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




     (2)
such direction shall not involve the Trustee in personal liability,
or would be unduly prejudicial to Holders of Securities not joining
in such direction, it being understood that the Trustee shall have no
duty to ascertain whether such actions or forbearances are unduly prejudicial to
such Holders; and




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



SECTION 513. Waiver of Past Defaults.




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




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




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



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



SECTION 514. Undertaking for Costs.




     In any suit for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such suit, and may
assess costs against any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, however, that neither this Section nor the Trust Indenture Act shall be
deemed to authorize any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company.



SECTION 515. Waiver of Usury, Stay or Extension Laws.




     The Company covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to the



21









 







extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such power as though no
such law had been enacted.



ARTICLE SIX




THE TRUSTEE




SECTION 601. Certain Duties and Responsibilities.





     (1) Except during the continuance of an Event of Default with respect to any series of
Securities,




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




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




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




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




     (A) this Subsection shall not be construed to limit the effect of Subsections (1) and
(4) of this Section;




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




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




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




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



SECTION 602. Notice of Defaults.




     If a default occurs and is continuing hereunder with respect to Securities of any series and
is known to a Responsible Officer of the Trustee, the Trustee shall give the Holders of
Securities of such series notice of such default as and to the extent provided by the Trust
Indenture Act, unless such default has been cured or waived; provided, however, that in the case of any
default of the character specified in Section 501(4) with respect to Securities of such series, no
such notice to Holders need be given until at least 30 days after the occurrence thereof. Except in
the case of a default or Event of Default in payment of principal of, premium, if any, or interest
on any Security, or in the payment of any sinking fund installment, the Trustee may withhold such
notice if and so long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interest of the Holders of the Securities. For the purpose of this
Section, the term “default” means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.



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SECTION 603. Certain Rights of Trustee.




     Subject to the provisions of Section 601:




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




     (2) before the Trustee acts or refrains from acting in administering this Indenture, it may
require an Officer’s Certificate or an Opinion of Counsel, or both, and the Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on such certificate or
opinion;




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




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




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




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




     (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;




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




     (9) the Trustee shall not be deemed to have notice or be charged with knowledge of any
default (within the meaning of Section 602) or Event of Default with respect to the Securities
of any series for which it is acting as Trustee unless written notice of such default or Event
of Default, as the case may be, is received by the Trustee at the Corporate Trust Office of the
Trustee from the Company, any other obligor upon such Securities or by any Holder of such
Securities, and such notice references the Securities and this Indenture;




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




     (11) the Trustee may request that the Company deliver an Officer’s Certificate setting
forth the names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any
persons authorized to sign an Officer’s Certificate, including any person specified as so
authorized in any such certificate previously delivered and not superseded;




     (12) the permissive right of the Trustee hereunder to take or omit to take any action shall
not be construed as a duty; and




     (13) anything in this Indenture notwithstanding, in no event shall the Trustee be liable
for special, indirect, punitive or consequential loss or damage of any kind whatsoever
(including but not limited to loss of profit), even if the Company has been advised as to the
likelihood of such loss or damage and regardless of the form of action.



23









 





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




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



SECTION 605. May Hold Securities.




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



SECTION 606. Money Held in Trust.




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



SECTION 607. Compensation and Reimbursement.




     The Company agrees




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




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




     (3) to the fullest extent permitted by law, to indemnify each of the Trustee, or any
predecessor Trustee, and their respective officers, employees, directors, shareholders and
agents, for, and to hold them harmless against, any and all loss, damage, claim, liability or
expense, including taxes (other than taxes based upon, measured by or determined by the income
of the Trustee or any predecessor Trustee), incurred without negligence or willful
misconduct on its part, arising out of or in connection with the acceptance or administration of
the trusts and its duties under this Indenture, including the enforcement of this provision,
including the reasonable costs and expenses of defending (including the reasonable compensation
and the expense and disbursements of its agents and counsel) themselves against any claim or
liability in connection with the exercise or performance of any of its powers or duties
hereunder.



     As security for the performance of the obligations of the Company under this Section, the
Trustee shall have a lien prior to the Securities upon all property and funds held or collected by
the Trustee as such, other than funds held in trust under Section 402.



     In addition and without prejudice to the rights provided to the Trustee under any of the
provisions of this Indenture, when the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(5) or Section 501(6), the expenses (including the
reasonable charges and expenses of its counsel) and the compensation for the services are intended
to constitute expenses of administration under any applicable Federal and State bankruptcy,
insolvency or other similar law.



     The Company’s obligations under this Section 607 and the lien referred to in this Section 607
shall survive the resignation or removal of the Trustee, the discharge of the Company’s obligations
under Articles Four and Thirteen of this Indenture and/or the termination of this Indenture.



     “Trustee” for purposes of this Section 607 shall include any predecessor Trustee; provided,
however, that the negligence, bad faith or willful misconduct of any Trustee hereunder shall not
affect the rights of any other Trustee hereunder.



SECTION 608. Conflicting Interests.




     If the Trustee has or shall acquire a conflicting interest within the meaning of Section
310(b) of the Trust Indenture Act, the Trustee shall eliminate such interest, apply to the
Commission for permission to continue as trustee (if any of the



24









 







Securities are registered pursuant to the Securities Act) or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest
by virtue of being a trustee under this Indenture, in its capacity as trustee in respect of the
Securities of any series, in its capacity as trustee in respect of the Securities of any other
series or any other indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Company are outstanding. Nothing herein shall
prevent the Trustee from filing with the Commission the application referred to in the second to
last paragraph of Section 310(b) of the Trust Indenture Act.



SECTION 609. Corporate Trustee Required; Eligibility.




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



SECTION 610. Resignation and Removal; Appointment of Successor.




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



     The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may, at the expense of the Company,
petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.



     The Trustee may be removed at any time with respect to the Securities of any series by Act of
the Holders of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company. If the instrument of acceptance by a successor Trustee
required by Section 611 shall not have been delivered to the Trustee within 30 days after the
Trustee’s receipt of such notice of removal, the departing Trustee may, at the expense of the
Company, petition any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.



     If at any time:




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




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




     (3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then, in any such case, (A) the Company
by a Board Resolution may remove the Trustee with respect to all Securities, or (B) subject to
Section 514, any Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and the appointment
of a successor Trustee or Trustees.



     If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Securities of one or more series,
the Company shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series and
that at any time there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 611. If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series delivered to the Company and the
retiring Trustee,



25









 







the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted appointment in the manner
required by Section 611, any Holder who has been a bona fide Holder of a Security of such series
for at least six months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.



     The Company shall give notice of each resignation and each removal of the Trustee with respect
to the Securities of any series and each appointment of a successor Trustee with respect to the
Securities of any series to all Holders of Securities of such series in the manner provided in
Section 106. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.



SECTION 611. Acceptance of Appointment by Successor.




     In case of the appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by such retiring Trustee
hereunder; subject, nevertheless, to its lien provided for in Section 607.



     In case of the appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be necessary, to
provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it
being understood that nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee hereunder with respect
to the Securities of that or those series to which the appointment of such successor Trustee
relates; subject, nevertheless, to its lien provided for in Section 607.



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



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



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




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



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SECTION 613. Preferential Collection of Claims Against Company.




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



SECTION 614. Appointment of Authenticating Agent.




     The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent 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 all or
substantially all of 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 give
notice of such appointment in the manner provided in Section 106 to all Holders of Securities of
the series with respect to which such Authenticating Agent will serve. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers
and duties of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under
the provisions of this Section.



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



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



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




	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	[
	 	 	 	]
	 

	 	 	 	 	 	 	 	 	 	 
	Dated:

	 	 	 	 	 	 	 	as Trustee	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	As Authenticating Agent	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Authorized Officer	 	 






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ARTICLE SEVEN




HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY




SECTION 701. Preservation of Information; Communications to Holders.




     The Trustee shall preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders received by the Trustee in its capacity as Security Registrar.



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



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



SECTION 702. Reports by Trustee.




     So long as any Securities remain outstanding, the Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by
Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty days after each
September 1 following the date of this Indenture deliver to Holders a brief report, dated as of
such September 1, which complies with the provisions of such Section 313(a) (but if no event
described in Section 313(a) has occurred within the 12 months preceding the reporting date, no such
report need be transmitted). The Trustee also shall comply with Section 313(b)(2) of the Trust
Indenture Act and shall also transmit by mail all reports as required by Section 313(c) of the
Trust Indenture Act.



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



SECTION 703. Reports by Company.




     The Company shall file with the Trustee, and transmit to Holders, such information, documents
and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant to such Act; provided, however, that any such
information, documents or reports required to be filed with the Commission pursuant to Section 13
or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is
actually filed with the Commission. Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee’s receipt of same shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on an Officer’s Certificate).



ARTICLE EIGHT




CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE




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




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




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



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




     (3) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or lease 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 and the execution and delivery of such
supplemental indenture have been complied with.



SECTION 802. Successor Substituted.




     Upon any consolidation of the Company with, or merger of the Company into, any other Person or
any conveyance, transfer or lease of the properties and assets of the Company substantially as an
entirety in accordance with Section 801, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.



ARTICLE NINE




SUPPLEMENTAL INDENTURES




SECTION 901. Supplemental Indentures Without Consent of Holders.




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




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




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




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




     (4) to add to or change any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the issuance of Securities in uncertificated form; or




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




     (6) to secure the Securities; or




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




     (8) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of
Section 611;




     (9) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture, provided that such action pursuant
to this Clause (9) shall not adversely affect the interests of the Holders of Securities of any
series; or



29









 






     (10) to comply with the requirements of the Commission either to effect or maintain the
qualifications of this Indenture under the Trust Indenture Act.



SECTION 902. Supplemental Indentures with Consent of Holders.




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




     (1) change the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security or any other Security which would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or
change any Place of Payment where, or the coin or currency in which, any Security or any premium
or interest thereon is payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or




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




     (3) modify any of the provisions of this Section, Section 513, or Section 1008, except to
increase any such percentage or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be deemed to require the consent
of any Holder with respect to changes in the references to “the Trustee” and concomitant changes
in this Section and Section 1008, or the deletion of this proviso, in accordance with the
requirements of Sections 611 and 901(8).



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



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



SECTION 903. Execution of Supplemental Indentures.




     In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise.



SECTION 904. Effect of Supplemental Indentures.




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



SECTION 905. Conformity with Trust Indenture Act.




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



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SECTION 906. Notice of Supplemental Indenture; Reference in Securities to Supplemental Indentures.




     After any supplemental indenture entered into pursuant to this Article becomes effective, the
Company shall send to Holders a notice briefly describing such supplemental indenture. The failure
to give such notice to all Holders, or any defect therein, shall not impair or affect the validity
of any such supplemental indenture under this Article.



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



ARTICLE TEN




COVENANTS




SECTION 1001. Payment of Principal, Premium and Interest.




     The Company covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of and any premium and interest on the Securities of that
series in accordance with the terms of the Securities and this
Indenture by depositing money in immediately available funds with the Trustee or other Paying Agent and
designated for and sufficient to pay all principal, premium, if any, and interest then due, at the
place and in the manner specified in this Indenture and in the Securities of such series on or
before 10:00 a.m., New York City time on the due date.




SECTION 1002. Maintenance of Office or Agency.




     The Company will maintain in each Place of Payment for any series of Securities an office or
agency (which may be an office of the Trustee or an affiliate of the Trustee, Security Registrar or
Co-Security Registrar) where Securities of that series may be presented or surrendered for payment,
where Securities of that series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company 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 or Paying Agent Office of the Trustee. The Company hereby initially
designates the Paying Agent Office of the Trustee as such office or agency of the Company where
Securities may be surrendered for registration of transfer or exchange or for presentation for
payment. The Company hereby initially designates the Corporate Trust Office of the Trustee, as
such office where notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served.



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



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




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



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



     The Company will cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the Securities of that series)
in the making of any payment in respect of the Securities of that series, upon the written request
of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.



31









 





     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.



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



SECTION 1004. Statement by Officer as to Default.




     The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company ending after the date hereof, an Officer’s
Certificate (that need not comply with Section 102), one signer
of which must be the Company’s principal executive officer,
principal financial officer or principal accounting officer, 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 (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they may have knowledge.
The Company shall, so long as any of the Securities are Outstanding, deliver to the Trustee,
forthwith and in any event within five business days upon any executive officer of the Company
becoming aware of any default or Event of Default in respect of the performance or observance of
any covenant, agreement or condition contained in this Indenture or the Securities, but in any
event not later than 20 Business Days after the occurrence thereof, an Officer’s Certificate
specifying the nature and status such default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.



SECTION 1005. Existence.




     Subject to Article Eight, 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 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 1006. Maintenance of Properties.




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



SECTION 1007. Payment of Taxes and Other Claims.




     The Company will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon the
Company or any Subsidiary or upon the income, profits or property of the Company or any Subsidiary,
and (2) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a
lien upon the property of the Company or any Subsidiary; provided, however, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in good faith by
appropriate proceedings.



32









 





SECTION
1008. Limitations on Liens.





     (a) The Company will not, and will not permit any Restricted Subsidiary to, issue, assume
or guarantee any Indebtedness secured by any mortgage, security interest, pledge, lien or other
encumbrance (such mortgages, security interests, pledges, liens and other encumbrances being
hereinafter called a “Mortgage” or “Mortgages”) upon any Principal Property of the Company or
any Restricted Subsidiary, whether such Principal Property is now owned or hereafter acquired,
without in any such case effectively providing concurrently with the issuance, assumption or
guarantee of any such Indebtedness that the Securities (together with, if the Company shall so
determine, any other Indebtedness ranking equally with such Securities other than Securities not
having the benefit of this provision) shall be secured equally and ratably with such
Indebtedness; provided, however, that the foregoing restrictions shall not
prevent, restrict or apply to:




     (i) (A) The giving, simultaneous with or within 180 days after the later of (1) the
acquisition or completion of construction or completion of substantial reconstruction,
renovation, remodeling, expansion or improvement (each a “substantial improvement”) of such
property, or (2) the placing in operation of such property after the acquisition or
completion of any such construction or substantial improvement, of any purchase money
Mortgage on such property (including security for inventory financing in the ordinary course
of business and vendors’ rights under purchase contracts under an agreement whereby title is
retained for the purpose of securing the purchase price thereof) whether occurring prior to
or after the date of this Indenture, or (B) the acquiring hereafter of property not
theretofore owned by the Company or such Restricted Subsidiary subject to any then existing
Mortgage securing Indebtedness (whether or not assumed), including, in each case,
Indebtedness incurred for reimbursement of funds previously expended for any such purpose;
provided, however, that, in each case, (y) such Mortgage is limited to any
or all of (1) such acquired or constructed property or substantial improvement (including
accretions thereto), (2) the real property on which any construction or substantial
improvement occurs or (3) with respect to distribution centers, any equipment used directly
in the operation of, or the business conducted on, the real property on which any
construction or substantial improvement occurs, and (z) the total amount of the Indebtedness
secured by such Mortgage, together with all other Indebtedness to Persons other than the
Company or a Restricted Subsidiary secured by Mortgages on such property, shall not exceed
the lesser of (A) the total cost of such Mortgaged property, including any such construction
or substantial improvement, to the Company or a Restricted Subsidiary or (B) the fair market
value thereof immediately following the acquisition, construction or substantial improvement
thereof by the Company or a Restricted Subsidiary;




     (ii) The giving by the Company or a Restricted Subsidiary of a Mortgage on real
property or on equipment used directly in the operation of, or the business conducted on,
such Mortgaged real property which is the sole security for Indebtedness (1) incurred within
three years after the latest of (A) the date of issuance of the first Series of Securities
hereunder, (B) the date of acquisition of such real property or (C) the date of completion
of construction or substantial improvement made thereon, (2) incurred for the purpose of
reimbursing itself for the cost of acquisition and/or cost of improvement of such real
property and equipment, (3) the amount of which does not exceed the lesser of the aggregate
cost of such real property, improvements and equipment or the fair market value thereof, and
(4) the holder of which shall be entitled to enforce payment of such Indebtedness solely by
resorting to the security therefor, without any liability on the part of the Company or such
Restricted Subsidiary for any deficiency;




     (iii) Any Mortgage (1) existing on the date of this Indenture, (2) on the assets of a
Restricted Subsidiary existing on the date it became a Subsidiary or (3) on the assets of a
Subsidiary that is newly designated as a Restricted Subsidiary, if such Mortgage would have
been permitted under this Section 1008(a) if such Mortgage was created while such Subsidiary
was a Restricted Subsidiary;




     (iv) Any Mortgage given in favor of the Company or any Restricted Subsidiary;




     (v) Any Mortgage given as security for the Indebtedness issued hereunder; or




     (vi) Any Mortgage incurred in connection with any refinancing, extension, renewal or
replacement of Indebtedness secured by a Mortgage permitted under clauses (i) to (v) above;
provided, that the principal amount of the extended, renewed, refinanced or replaced
Indebtedness does not exceed the principal amount of the Indebtedness so refinanced,
extended, renewed or replaced, plus transaction costs and fees, and that such Mortgage
applies only to the same property or assets subject to the prior permitted Mortgage (and, in
the case of real property improvements).




     (b) Notwithstanding the provisions of subsection (a) of this Section 1008, the Company or
any Restricted Subsidiary may, in addition to Mortgages permitted by subsection (a) of this
Section 1008, create or assume and renew, extend or replace Mortgages which would otherwise be
subject to such subsection (a), provided that at the time of such



33









 







creation, assumption, renewal, extension or replacement, and after giving effect thereto,
Exempted Debt does not exceed 15% of Consolidated Net Tangible Assets.



SECTION
1009. Limitations on Sale and Leaseback Transactions.





     (a) Without equally and ratably securing the Securities (together with, if the Company so
determines, any other Indebtedness ranking equally with the Securities other than Securities not
having the benefit of this provision), the Company will not, nor will it permit any Restricted
Subsidiary to, enter into any arrangement with any Person providing for the leasing by the
Company or any Restricted Subsidiary of any Principal Property now owned or hereafter acquired
that has been or is to be sold or transferred by the Company or such Restricted Subsidiary to
such Person with the intention of taking back a lease of such property (a “Sale and Leaseback
Transaction”) unless the terms of such sale or transfer have been determined by the Board of
Directors to be fair and arm’s-length and




     (i) within 180 days after the receipt of the proceeds of such sale or transfer, the
Company or such Restricted Subsidiary applies an amount equal to the greater of the net
proceeds of such sale or transfer or the fair value of such Principal Property at the time
of such sale or transfer to the prepayment or retirement (other than any mandatory
prepayment or retirement) of Senior Funded Debt of the Company or any Restricted Subsidiary,
or




     (ii) the Company or such Restricted Subsidiary would be entitled, at the effective date
of such sale or transfer, to incur Indebtedness secured by a Mortgage on such Principal
Property, in an amount at least equal to the Attributable Debt in respect thereof, without
equally and ratably securing the Securities pursuant to the provisions of Section 1008,
above.




     The foregoing restriction shall not apply to (w) any Sale and Leaseback Transaction for a
term of not more than three years including renewals, (x) any Sale and Leaseback Transaction
with respect to Principal Property if a binding commitment is entered into with respect to said
Sale and Leaseback Transaction within three years after the latest of (1) the date of issuance
of the first Series of Securities hereunder or (2) the date when such Principal Property was
acquired, (y) any Sale and Leaseback Transaction with respect to Principal Property if a binding
commitment with respect thereto is entered into within 180 days after the later of the date such
property was acquired and, if applicable, the date such property was first placed in operation,
or (z) any Sale and Leaseback Transaction between the Company and any Restricted Subsidiary or
between Restricted Subsidiaries provided that the lessor shall be the Company or a Wholly Owned
Restricted Subsidiary.




     (b) Notwithstanding the provisions of subsection (a) of this Section 1009, the Company or
any Restricted Subsidiary may, in addition to Sale and Leaseback Transactions permitted by
subsection (a) of this Section 1009, enter into Sale and Leaseback Transactions without any
obligation to retire any Senior Funded Debt of the Company or a Restricted Subsidiary; provided
that, at the time of entering into such Sale and Leaseback Transactions, and after giving effect
thereto, Exempted Debt does not exceed 15% of Consolidated Net Tangible Assets.



SECTION 1010. Limitations Upon Permitting Restricted Subsidiaries to Become Unrestricted
Subsidiaries and Unrestricted Subsidiaries to Become Restricted Subsidiaries.





     (a) The Company will not permit any Restricted Subsidiary to be designated as or otherwise
to become an Unrestricted Subsidiary unless immediately after such Restricted Subsidiary becomes
an Unrestricted Subsidiary, such Unrestricted Subsidiary will not own, directly or indirectly,
any capital stock of any other Restricted Subsidiary or any Mortgage on property of any other
Restricted Subsidiary.




     (b) The Company will not permit any Unrestricted Subsidiary that has previously been a
Restricted Subsidiary to be designated as a Restricted Subsidiary unless such Unrestricted
Subsidiary shall not, at any time after it ceased to be a Restricted Subsidiary, have
participated in any Sale and Leaseback Transaction involving any Principal Property owned by
such Subsidiary, the Company or any Restricted Subsidiary (other than in a transaction permitted
under Section 1009 for such Subsidiary if it had been a Restricted Subsidiary at the time),
unless the Principal Property involved in such transaction shall no longer be leased by the
Company or any Restricted Subsidiary or such Subsidiary or shall be owned by the Company or a
Wholly Owned Restricted Subsidiary;




     (c) Promptly after the adoption of any Board Resolution designating a Restricted Subsidiary
as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary, or the
making of an election by a duly authorized Officer of the Company to effect any such designation,
a copy of such Board Resolution or a written statement as to such designation signed by such
Officer shall be filed with the Trustee, together with an Officer’s Certificate stating that
the provisions of this Section 1010 have been complied with in connection with such designation,
and, in case of the designation of a Restricted Subsidiary as an Unrestricted Subsidiary,
setting forth the name of each other Subsidiary (if any) that has become an Unrestricted
Subsidiary as a result of such designation.



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SECTION 1011. Waiver of Certain Covenants.




     Except as otherwise specified as contemplated by Section 301 for Securities of such series,
the Company may, with respect to the Securities of any series, omit in any particular instance to
comply with any term, provision or condition set forth in any covenant provided pursuant to Section
301(18), 901(2) or 901(7) for the benefit of the Holders of such series, if before the time for
such compliance the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall remain in full
force and effect.



SECTION
1012. Calculation of Original Issue Discount and Other
Amounts.




     The Company shall provide to the Trustee on a timely basis such information as the Trustee
requires to enable the Trustee to prepare and file any form required to be submitted by the Company
with the Internal Revenue Service and the Holders of the Notes relating to original issue discount,
including, without limitation, Form 1099-OID or any successor form. The Company will be responsible for making calculations called for under the Securities. These
calculations include, but are not limited to, determination of Redemption Price, make-whole
amounts, if any, and other amounts payable on the Securities, if any. The Company will make the
calculations in good faith and, absent manifest error, its calculations will be final and binding
on the Holders of the Securities. The Company will provide a schedule of its calculations to the
Trustee when applicable, and the Trustee is entitled to rely conclusively on the accuracy of the
Company’s calculations without independent verification.


ARTICLE ELEVEN




REDEMPTION OF SECURITIES




SECTION 1101. Applicability of Article.




     Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 301
for such Securities) in accordance with this Article.



SECTION 1102. Election to Redeem; Notice to Trustee.




     The election of the Company to redeem any Securities shall be evidenced by a Board Resolution
or in another manner specified as contemplated by Section 301 for such Securities. In case of any
redemption at the election of the Company of less than all the Securities of any series (including
any such redemption affecting only a single Security), the Company shall, not less than 45 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee of such Redemption Date and the Redemption Price, of the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officer’s Certificate evidencing compliance with such
restriction. If the Redemption Price is not known at the time such notice is to be given, the actual Redemption
Price, calculated as described in the terms of the Securities to be redeemed, will be set forth in
an Officer’s Certificate of the Company delivered to the Trustee no later than two Business Days
prior to the Redemption Date.


SECTION 1103. Selection by Trustee of Securities to Be Redeemed.




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



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



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



35









 





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



SECTION 1104. Notice of Redemption.




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



     All notices of redemption shall state:




     (1) the Redemption Date,




     (2) the Redemption Price,




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




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




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




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




     (7) the CUSIP and/or other similar number as contemplated by Section 311.



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



SECTION 1105. Deposit of Redemption Price.




     On or 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 Section 1003) an amount of money sufficient to
pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.



SECTION 1106. Securities Payable on Redemption Date.




     Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date; provided, however, that,
unless otherwise specified as contemplated by Section 301, installments of interest whose Stated
Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of business on the relevant
Record Dates according to their terms and the provisions of Section 307.



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



SECTION 1107. Securities Redeemed in Part.




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



36









 





ARTICLE TWELVE




SINKING FUNDS




SECTION 1201. Applicability of Article.




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



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



SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.




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



SECTION 1203. Redemption of Securities for Sinking Fund.




     Not less than 90 days prior to each sinking fund payment date for any Securities, the Company
will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing
sinking fund payment for such Securities pursuant to the terms of such Securities, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which
is to be satisfied by delivering and crediting Securities pursuant to Section 1202 and will also
deliver to the Trustee any Securities to be so delivered. Not less than 45 days prior to each such
sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date, subject to and in the manner specified in Section 1103, and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1106 and 1107.



ARTICLE THIRTEEN




DEFEASANCE AND COVENANT DEFEASANCE




SECTION 1301. Company’s Option to Effect Defeasance or Covenant Defeasance.




     The Company may elect, at its option at any time, to have Section 1302 or Section 1303 applied
to any Securities or any series of Securities, as the case may be, designated pursuant to Section
301 as being defeasible pursuant to such Section 1302 or 1303, in accordance with any applicable
requirements provided pursuant to Section 301 and upon compliance with the conditions set forth
below in this Article. Any such election shall be evidenced by a Board Resolution or in another
manner specified as contemplated by Section 301 for such Securities.



SECTION 1302. Defeasance and Discharge.




     Upon the Company’s exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, the Company shall be deemed to have
been discharged from its obligations with respect to such Securities as provided in this Section on
and after the date the conditions set forth in Section 1304 are satisfied (hereinafter called
“Defeasance”). For this purpose, such Defeasance means that the Company shall be deemed to have
paid and discharged the entire Indebtedness represented by such Securities and to have satisfied
all its other obligations under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), subject to the following which shall survive until otherwise terminated or
discharged hereunder: (1) the rights of Holders of such Securities to receive, solely from the
trust fund described in Section 1304 and as more fully set forth in such Section, payments in
respect of the principal of and any premium and



37









 







interest on such Securities when payments are due, (2) the Company’s obligations with respect
to such Securities under Sections 304, 305, 306, 1002 and 1003 and with respect to the Trustee,
including but not limited to those under Section 607, (3) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (4) this Article. Subject to compliance with this Article,
the Company may exercise its option (if any) to have this Section applied to any Securities
notwithstanding the prior exercise of its option (if any) to have Section 1303 applied to such
Securities.



SECTION 1303. Covenant Defeasance.




     Upon the Company’s exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, (1) the Company shall be released from
its obligations under Sections 1008 through 1010, inclusive, and any covenants provided pursuant to
Sections 301(18), 901(2) or 901(7) for the benefit of the Holders of such Securities and (2) the
occurrence of any event specified in Sections 501(4) (with
respect to any of Sections 1008 through
1010, inclusive, and any such covenants provided pursuant to Section 301(18), 901(2) or 901(7)) and
501(7) shall be deemed not to be or result in an Event of Default, in each case with respect to
such Securities as provided in this Section on and after the date the conditions set forth in
Section 1304 are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such
Covenant Defeasance means that, with respect to such Securities, the Company may omit to comply
with and shall have no liability in respect of any term, condition or limitation set forth in any
such specified Section (to the extent so specified in the case of Section 501(4)), whether directly
or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.



SECTION 1304. Conditions to Defeasance or Covenant Defeasance.




     The following shall be the conditions to the application of Section 1302 or Section 1303 to
any Securities or any series of Securities, as the case may be:




     (1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee
(or another trustee which satisfies the requirements contemplated by Section 609 and agrees to
comply with the provisions of this Article applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security for, and dedicated
solely to, the benefits of the Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day before the due date
of any payment, money in an amount, or (C) a combination thereof, in each case sufficient, in
the opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the
principal of and any premium and interest on such Securities on the respective Stated Maturities
or on the applicable redemption date, as the case may be, in accordance with the terms of this
Indenture and such Securities. As used herein, “U.S. Government Obligation” means (i) any
security which is (x) a direct obligation of the United States of America for the payment of
which the full faith and credit of the United States of America is pledged or (y) an obligation
of a Person controlled or supervised by and acting as an agency or instrumentality of the United
States of America the full and timely payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (x) or (y), is not callable or
redeemable at the option of the issuer thereof, and (ii) any depositary receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S.
Government Obligation which is specified in Clause (i) above and held by such bank for the
account of the holder of such depositary receipt, or with respect to any specific payment of
principal of or interest on any U.S. Government Obligation which is so specified and held;
provided, 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 depositary receipt from any amount
received by the custodian in respect of the U.S. Government Obligation or the specific payment
of principal or interest evidenced by such depositary receipt.




     (2) In the event of an election to have Section 1302 apply to any Securities or any series
of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this instrument, there has been a
change in the applicable Federal income tax law, in either case (A) or (B) to the effect that,
and based thereon such opinion shall confirm that, the Holders of such Securities will not
recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance
and discharge to be effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as would be the case if
such deposit, Defeasance and discharge were not to occur.




     (3) In the event of an election to have Section 1303 apply to any Securities or any series
of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant



38









 







Defeasance to be effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as would be the case if
such deposit and Covenant Defeasance were not to occur.




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




     (5) No event which is, or after notice or lapse of time or both would become, an Event of
Default with respect to such Securities or any other Securities shall have occurred and be
continuing at the time of such deposit or, with regard to any such event specified in Sections
501(5) and (6), at any time on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after such 90th day).




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




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




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




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



SECTION 1305. Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous
Provisions.



     Subject to the provisions of the last paragraph of Section 1003, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this Section and Section 1306, the Trustee and any such other trustee are
referred to collectively as the “Trustee”) pursuant to Section 1304 in respect of any Securities
shall be held in trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders
of such Securities, of all sums due and to become due thereon in respect of principal and any
premium and interest, but money so held in trust need not be segregated from other funds except to
the extent required by law.



     The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 1304 or the
principal and interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of Outstanding Securities.



     Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company from time to time upon Company Request any money or U.S. Government Obligations held by
it as provided in Section 1304 with respect to any Securities which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities. This provision shall not authorize the sale by the
Trustee of any U.S. Government Obligations held under this Indenture.



SECTION 1306. Reinstatement.




     If the Trustee or the Paying Agent is unable to apply any money in accordance with this
Article with respect to any Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, then the
obligations under this Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as though no deposit had
occurred pursuant to this Article with respect to such Securities, until such time as the Trustee
or Paying Agent is permitted to apply all money held in trust pursuant to Section 1305 with respect
to such Securities in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the
Holders of such Securities to receive such payment from the money so held in trust.



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



39









 





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



	 	 	 	 	 	 	 
	 	 	ZIMMER HOLDINGS, INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Attest:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Trustee
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






40









 






EXHIBIT A




[FORM OF FACE OF SECURITY]




ZIMMER HOLDINGS, INC.




[Global Securities Legend]



THIS GLOBAL SECURITY IS HELD BY AND REGISTERED IN THE NAME OF THE DEPOSITORY (AS DEFINED IN THE
INDENTURE GOVERNING 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 IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (A) THE
TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 203 OF THE INDENTURE,
(B) THIS GLOBAL SECURITY MAY BE EXCHANGED PURSUANT TO SECTION 203(a) OF THE INDENTURE, (C) THIS
GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 309 OF THE
INDENTURE AND (D) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE PRIOR
WRITTEN CONSENT OF THE COMPANY.



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




A-1









 








[Form of Face of Security]




ZIMMER HOLDINGS, INC.




[Designation of Series]




CUSIP No.                     


[Other No.                     ]




No.                      $                    




     Zimmer Holdings, Inc., a corporation duly organized and existing under the laws of the State
of Delaware (herein called the “Company”, which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay to          
        , or registered assigns, the principal sum of          
Dollars [for Global Note insert in parentheses (or such other lesser or greater amount set
forth on the Schedule of Exchanges of Interests in the Global Security attached hereto)] on           
[if the Security is to bear interest prior to Maturity, insert
o, and to pay interest thereon from or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on           
and in            each year,            commencing           
        , at the rate of            % per annum, until the principal hereof is paid or made
available for payment [if applicable, insert o, provided, however that any principal and
premium, and any such installment of interest, which is overdue shall bear interest at the rate of
     % per annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or made available for
payment, and such interest shall be payable on demand). The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be
paid to the Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest, which shall be                
the            or            (whether or
not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holder of Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said Indenture.][if the Security
is not to bear interest prior to Maturity, insert o. The principal of this Security shall not
bear interest except in the case of a default in payment of principal upon acceleration, upon
redemption or at Stated Maturity and in such case the overdue principal and any overdue premium
shall bear interest at the rate of            % per annum (to the extent that the payment of such
interest shall be legally enforceable), from the dates such amounts are due until they are paid or
made available for payment. Interest on any overdue principal or premium shall be payable on
demand. [Any such interest on overdue principal or premium which is not paid on demand shall bear
interest at the rate of            % per annum (to the extent that the payment of such interest on
interest shall be legally enforceable), from the date of such demand until the amount so demanded
is paid or made available for payment. Interest on any overdue interest shall be payable on
demand.]]



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



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



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



A-2









 





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



	 	 	 	 	 	 	 
	 	 	ZIMMER HOLDINGS, INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






	 	 	 
	Attest:
	 	 
	 
	 	 
	 

Name:

	 	 
	Title:
	 	 






A-3









 






CERTIFICATE OF AUTHENTICATION




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



Dated:




	 	 	 	 	 
	 	Wells Fargo Bank, National Association

as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 



A-4









 






	 	 	 	 	 



[Form of Reverse of Security]





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



     [If applicable, insert o The Securities of this series are subject to redemption at any
time, upon not less than 30 days’ and not more than 60 days’ notice by mail, as a whole or from
time to time in part, at the election of the Company [if applicable, insert o (provided,
however, that, if the Company shall have elected pursuant to the Indenture to defease [the entire
Indebtedness of this Security] [or] [certain restrictive covenants and Events of Defaults with
respect to this Security], prior to making such election to redeem the Securities it shall have
deposited in trust amounts sufficient to pay the Redemption Price)], on any date prior to their
Stated Maturity at a Redemption Price equal to the greater of (i) 100% of the principal amount of
such Securities to be redeemed, plus accrued interest thereon to the Redemption Date and (ii) the
sum of the present values of the Remaining Scheduled Payments (as defined below) of the notes to be
redeemed, discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate (as defined below), plus [            ]
basis points, plus accrued and unpaid interest thereon to the Redemption Date.



     “Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date. 


     
“Comparable Treasury Issue” means the United
States Treasury security selected by the Quotation Agent as having a maturity comparable to the
remaining term of the series of notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining term of such notes. 


     
“Comparable Treasury
Price” means, with respect to any redemption date, (1) the average of four Reference Treasury
Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, (2) if the  Company can only obtain less than four such Reference
Treasury Dealer Quotations, the average of all such quotations or
(3) if the Company can only
obtain one Reference Treasury Dealer Quotation, such quotation. 



     “Quotation Agent” means the
Reference Treasury Dealer appointed by us. 

     “Reference Treasury Dealer” means (1) each of        and
       (or their
respective affiliates that are Primary Treasury Dealers) and their respective successors; provided,
however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer
in New York City (a “Primary Treasury Dealer”), we will substitute therefor another Primary
Treasury Dealer, and (2) any other Primary Treasury Dealer selected by the Company. 


     
“Reference Treasury
Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date,
the average, as determined by the  Company, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) quoted in writing to
the Company  by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third business
day preceding such redemption date.


     
“Remaining Scheduled Payments” means, with
respect to each note to be redeemed, the remaining scheduled payments of the principal thereof and
interest thereon that would be due after the related Redemption Date for such redemption; provided,
however, that, if such Redemption Date is not an Interest Payment Date with respect to such note,
the amount of the next succeeding scheduled interest payment thereon will be reduced by the amount
of interest accrued thereon to such Redemption Date.]



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



A-5









 





	 	 	 	 	 	 	 	 	 	 	 	 	 
	Year	 	Redemption Price	 	 	Year	 	 	Redemption Price	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 




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




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



	 	 	 	 	 
	 	 	Redemption Price for	 	Redemption Price for
	 	 	Redemption through	 	Redemption Otherwise
	 	 	Operation of the	 	than through Operation of
	Year	 	Sinking Fund	 	the Sinking Fund
	 
	 	 	 	 




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




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



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



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



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



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



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



A-6









 







of the Company’s obligations in respect of the payment of the principal of and premium and
interest, if any, on the Securities of this series shall terminate.]



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



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



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



     As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security may be registered and this Security may be exchanged as provided in the
Indenture.



     The Securities of this series are issuable only in registered form without coupons in
denominations of $2,000 and any integral multiple thereof.



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



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



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



A-7










 





ASSIGNMENT FORM





To assign this Security, fill in the form below:




I or we assign and transfer this Security to:




 




(Insert assignee’s social security or tax I.D. no.)




 





 





 





 





(Print or type assignee’s name, address and zip code)



and irrevocably appoint                                          as agent to
transfer this Security on the books of the Company. The agent may substitute another to act for
him.




 





	 	 	 
	Your Signature:
	 	 
	 

	 	 
	 

	 	(Sign exactly as your name appears on the other side of this Security)






	 	 	 
	Your Name:
	 	 
	 

	 	 





Date:                     




	 	 	 	 	 
	Signature Guarantee:

	 	 	 	*
	 

	 	 	 	 







*NOTICE: The Signature must be guaranteed by an Institution which is a member of one of the
following recognized signature Guarantee Programs: (i) The Securities Transfer Agent Medallion
Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock
Exchange Medallion Program (SEMP); or (iv) such other guarantee program acceptable to the Trustee.




A-8









 









[TO BE ATTACHED TO GLOBAL SECURITIES]




SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY



     The following exchanges of an interest in this Global Security for an interest in another Global
Security or for a Definitive Security, or exchanges of an interest in another Global Security or a
Definitive Security for an interest in this Global Security have been made:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Amount of decrease	 	 	Amount of increase	 	 	Principal Amount of this	 	 	Signature of authorized	 
	 	 	in Principal Amount of	 	 	in Principal Amount of	 	 	Global Security following	 	 	signatory of Trustee or	 
	Date of Exchange	 	this Global Security	 	 	this Global Security	 	 	such decrease or increase	 	 	Securities Custodian	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






A-9