FORM OF SECOND SUPPLEMENTAL INDENTURE



 




Exhibit 4.2












W. R. BERKLEY CORPORATION




TO




THE BANK OF NEW YORK, as Trustee









SECOND SUPPLEMENTAL INDENTURE TO

INDENTURE DATED FEBRUARY 14, 2003

(SENIOR DEBT SECURITIES)




Dated as of September 12, 2003









5.125% Senior Notes due 2010



 







 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	 	 	Page
	 	 	 	 	

	 	 	
ARTICLE I	 	 
	 	 	 	 	 
	 	 	
Relation to Indenture; Definitions	 	 
	 	 	 	 	 
	Section 1.1.	 	
RELATION TO INDENTURE
	 	1
	Section 1.2.	 	
DEFINITIONS
	 	1
	 	 	 	 	 
	 	 	
ARTICLE II	 	 
	 	 	 	 	 
	 	 	
The Series of Securities	 	 
	 	 	 	 	 
	Section 2.1.	 	
TITLE OF THE SECURITIES
	 	2
	Section 2.2.	 	
LIMITATION ON AGGREGATE PRINCIPAL AMOUNT
	 	2
	Section 2.3.	 	
PRINCIPAL PAYMENT DATE
	 	2
	Section 2.4.	 	
INTEREST AND INTEREST RATES
	 	2
	Section 2.5.	 	
PLACE OF PAYMENT
	 	3
	Section 2.6.	 	
REDEMPTION
	 	3
	Section 2.7.	 	
DENOMINATION
	 	5
	Section 2.8.	 	
CURRENCY
	 	5
	Section 2.9.	 	
FORM OF NOTES
	 	5
	Section 2.10.	 	
REGISTRAR AND PAYING AGENT FOR THE NOTES
	 	5
	Section 2.11.	 	
SINKING FUND OBLIGATIONS
	 	5
	Section 2.12.	 	
DEFEASANCE AND COVENANT DEFEASANCE
	 	5
	Section 2.13.	 	
PAYMENT OF TAXES
	 	5
	Section 2.14.	 	
LIMITATION ON LIENS ON STOCK OF PRINCIPAL SUBSIDIARIES
	 	5
	Section 2.15.	 	
LIMITATIONS ON ISSUE OR DISPOSITION OF COMMON STOCK OF

PRINCIPAL SUBSIDIARIES
	 	6
	Section 2.16.	 	
IMMEDIATELY AVAILABLE FUNDS
	 	6
	 	 	 	 	 
	 	 	
ARTICLE III	 	 
	 	 	 	 	 
	 	 	
Miscellaneous Provisions	 	 
	 	 	 	 	 
	Section 3.1.	 	
TRUSTEE NOT RESPONSIBLE FOR RECITALS
	 	6
	Section 3.2.	 	
PAYMENT OF EXPENSES UPON RESIGNATION OR REMOVAL
	 	7
	Section 3.3.	 	
ADOPTION, RATIFICATION AND CONFIRMATION
	 	7
	Section 3.4.	 	
COUNTERPARTS
	 	7
	Section 3.5.	 	
GOVERNING LAW
	 	7




 







 





W. R. BERKLEY CORPORATION




SECOND SUPPLEMENTAL INDENTURE TO

INDENTURE DATED FEBRUARY 14, 2003

(SENIOR DEBT SECURITIES)




$150,000,000




5.125% Senior Notes due 2010



     SECOND SUPPLEMENTAL INDENTURE, dated as of September 12, 2003 between W.
R. BERKLEY CORPORATION, a Delaware corporation (the “Company”), and THE BANK OF
NEW YORK, a trust company organized under the laws of the State of New York, as
Trustee (the “Trustee”).




RECITALS



     The Company has heretofore executed and delivered to the Trustee an
indenture for senior debt securities, dated as of February 14, 2003 (the
“Indenture”), providing for the issuance from time to time of series of the
Company’s Securities.



     Section 3.1 of the Indenture provides for various matters with respect to
any series of Securities issued under the Indenture to be established in an
indenture supplemental to the Indenture.



     Section 9.1(4) of the Indenture provides for the Company and the Trustee
to enter into an indenture supplemental to the Indenture to establish the form
or terms of Securities of any series as provided by Sections 2.1 and 3.1 of the
Indenture.



     NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:



     For and in consideration of the premises and the issuance of the series of
Securities provided for herein, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities of such series, as
follows:




ARTICLE I




RELATION TO INDENTURE; DEFINITIONS



     Section 1.1. RELATION TO INDENTURE. This Second Supplemental Indenture
constitutes an integral part of the Indenture.



     Section 1.2. DEFINITIONS. For all purposes of this Second Supplemental
Indenture:



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     (a)  Capitalized terms used herein without definition shall have the
meanings specified in the Indenture;



     (b)  All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this Second
Supplemental Indenture; and



     (c)  The terms “herein,” “hereof,” “hereunder” and other words of similar
import refer to this Second Supplemental Indenture.



     (d)  “Fair Value,” when used with respect to Common Stock, means the fair
value thereof as determined in good faith by the Board of Directors.




ARTICLE II




THE SERIES OF SECURITIES



     Section 2.1. TITLE OF THE SECURITIES. There shall be a series of
Securities designated the “5.125% Senior Notes due 2010” (the “Notes”).



     Section 2.2. LIMITATION ON AGGREGATE PRINCIPAL AMOUNT. The aggregate
principal amount of the Notes shall initially be limited to $150,000,000. The
Company may, without the consent of the Holders of the Notes, issue additional
Securities having the same interest rate, maturity date and other terms as
described in the related prospectus supplement and prospectus. Any additional
Securities, together with the Notes offered by the related prospectus
supplement, will constitute a single series of Securities under the Indenture.
No additional Securities may be issued if an Event of Default under the
Indenture has occurred and is continuing with respect to the Securities.



     Section 2.3. PRINCIPAL PAYMENT DATE. The principal amount of the Notes
outstanding (together with any accrued and unpaid interest) shall be payable in
a single installment on September 30, 2010, which date shall be the Stated
Maturity of the Notes Outstanding.



     Section 2.4. INTEREST AND INTEREST RATES. The rate of interest on each
Note shall be 5.125% per annum, accruing from September 12, 2003, or from the
most recent interest payment date (each such date, an “Interest Payment Date”)
to which interest has been paid or duly provided for, payable semiannually in
arrears on March 30 and September 30 of each year commencing March 30, 2004
until the principal thereof shall have become due and payable, and until the
principal thereof is paid or duly provided for or made available for payment.
The amount of interest payable on any Interest Payment Date shall be computed
on the basis of a 360-day year of twelve 30-day months. The amount of interest
payable for any partial period shall be computed on the basis of the actual
number of days elapsed in a 360-day year of twelve 30-day months. In the event
that any date on which interest is payable on any Note is not a Business Day,
then payment of interest payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay). The interest installment so payable in
respect of any Note, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture, be paid to


2







 




 the person in whose name such Note (or one or more Predecessor Securities)
is registered at the close of business on March 15 or September 15 prior to
such Interest Payment Date. Any such interest installment not punctually paid
or duly provided for in respect of any Note shall forthwith cease to be payable
to the registered Holder on such Regular Record Date and may either be paid to
the Person in whose name such Note (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date to be fixed by the
Trustee for the payment of such Defaulted Interest, notice whereof shall be
given to the Holders of the Notes 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 Notes may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture.



     Section 2.5. PLACE OF PAYMENT. The Place of Payment where the Notes may
be presented or surrendered for payment, where the Notes may be surrendered for
registration of transfer or exchange and where notices and demand to or upon
the Company in respect of the Notes and the Indenture may be served shall be
the Corporate Trust Office of the Trustee.



     Section 2.6. REDEMPTION.



     (a)  The Company may redeem the Notes, in whole or in part, at any time at
a Redemption Price equal to the greater of (i) 100% of the principal amount of
such Securities to be redeemed or (ii) an amount, as determined by an
Independent Investment Banker, equal to the sum of the present values of the
remaining scheduled payments of principal of and interest on the securities to
be redeemed (not including any portion of such payments of interest accrued as
of the date of redemption) discounted to the Redemption Date on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Adjusted Treasury Rate, plus 25 basis points, plus, in either of the above
cases, accrued and unpaid interest thereon to, but not including, the
Redemption Date.



     (b)  For the purposes of this Section 2.6,



     “Adjusted Treasury Rate” means, with respect to any Redemption Date:





	 	•	 	the yield, under the heading which represents the
average for the immediately preceding week, appearing in the
most recently published statistical release designated
“H.15(519)” published by the Board of Governors of the Federal
Reserve System (or any successor publication which is
published weekly by the Board of Governors of the Federal
Reserve System and which establishes yields on actively traded
United States Treasury securities adjusted to constant
maturity) under the caption “Treasury Constant Maturities,”
for the maturity corresponding to the Comparable Treasury
Issue. If no maturity is within three months before or after
the Remaining Life, yields for the two published maturities
most closely corresponding to the Comparable Treasury Issue
shall be determined and the Adjusted Treasury Rate shall be
interpolated or



3







 




	 	 	 	extrapolated from such yields on a straight line basis,
rounding to the nearest month; or
	 
	 	•	 	if such release (or any successor release) is not
published during the week preceding the calculation date or
does not contain such yields, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using 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.



     The Adjusted Treasury Rate shall be calculated on the third Business Day
preceding the Redemption Date.



     “Comparable Treasury Issue” means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the 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 securities (“Remaining Life”).



     “Comparable Treasury Price” means (i) the average of three Reference
Treasury Dealer Quotations for such Redemption Date, after excluding the
highest and lowest Reference Treasury Dealer Quotations, or (ii) if the
Independent Investment Banker obtains fewer than three such Reference Treasury
Dealer Quotations, the average of all such quotations.



     “Independent Investment Banker” means one of the Reference Treasury
Dealers appointed by us.



     “Reference Treasury Dealer” means:





	 	•	 	each of Morgan Stanley & Co. Incorporated and
Merrill Lynch, Pierce, Fenner & Smith Incorporated and their
respective successors; provided that, if any of the foregoing
ceases to be a primary U.S. Government securities dealer in
the United States (a “Primary Treasury Dealer”), the Company
shall substitute therefor another Primary Treasury Dealer; and
	 
	 	•	 	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 Independent Investment Banker, 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 Independent Investment Banker at
5:00 p.m., New York City Time, on the third Business Day preceding such
Redemption Date.



     The Company will mail a notice of redemption at least 30 days but not more
than 60 days before the Redemption Date to each holder of the notes to be
redeemed. If less than all


4







 




 of the notes are to be redeemed, the trustee will select, by such method
as it will deem fair and appropriate, including pro rata or by lot, the notes
to be redeemed in whole or in part.



     Unless the Company defaults in payment of the Redemption Price, on and
after the Redemption Date, interest will cease to accrue on the notes or
portions thereof called for redemption.



     Section 2.7. DENOMINATION. The Notes shall be issuable only in registered
form without coupons and in denominations of $1,000 and integral multiples
thereof.



     Section 2.8. CURRENCY. Principal and interest on the Notes shall be
payable in such coin or currency of the United States of America that at the
time of payment is legal tender for payment of public and private debts.



     Section 2.9. FORM OF NOTES. The Notes shall be substantially in the form
attached as EXHIBIT A hereto.



     Section 2.10. REGISTRAR AND PAYING AGENT FOR THE NOTES. The Trustee shall
serve initially as Registrar and Paying Agent for the Notes.



     Section 2.11. SINKING FUND OBLIGATIONS. The Company has no obligation to
redeem or purchase any Notes pursuant to any sinking fund or analogous
requirement or upon the happening of a specified event or at the option of a
Holder thereof.



     Section 2.12. DEFEASANCE AND COVENANT DEFEASANCE. The Company has elected
to have both Section 4.2(2) of the Indenture (relating to defeasance) and
Section 4.2(3) (relating to covenant defeasance) applied to the Notes.



     Section 2.13. PAYMENT OF TAXES. The Company will pay or discharge or
cause to be paid or discharged, before the same shall become delinquent, 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 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 or
governmental charge whose amount, applicability or validity is being contested
in good faith by appropriate proceedings or where the failure to effect such
payment is not adverse in any material respect to the Holders of the Notes.



     Section 2.14. LIMITATION ON LIENS ON STOCK OF PRINCIPAL SUBSIDIARIES. The
Company will not, and it will not permit any Subsidiary of the Company to, at
any time directly or indirectly create, assume, incur or permit to exist any
Indebtedness secured by a pledge, lien or other encumbrance (any pledge, lien
or other encumbrance being hereinafter in this Section referred to as a “lien”)
on the voting securities of Principal Subsidiaries, or the voting securities of
a Subsidiary that owns, directly or indirectly, the voting securities of any of
the Principal Subsidiaries without making effective provision whereby the Notes
then Outstanding (and, if the Company so elects, any other Indebtedness of the
Company


5







 




 that is not subordinate to the Notes and with respect to which the
governing instruments require, or pursuant to which the Company is otherwise
obligated or required, to provide such security) shall be equally and ratably
secured with such secured Indebtedness so long as such other Indebtedness shall
be secured. For purposes of this Section 2.14 only, “Indebtedness”, in
addition to those items specified in Section 1.1 of the Indenture, shall
include any obligation of, or any such obligation guaranteed by, any Person for
the payment of amounts due under a swap agreement or other similar instrument
or agreement or foreign currency hedge exchange or similar instrument or
agreement.



     If the Company shall hereafter be required to secure the Notes equally and
ratably with any other Indebtedness pursuant to this Section, (i) the Company
will promptly deliver to the Trustee an Officer’s Certificate stating that the
foregoing covenant has been complied with, and an Opinion of Counsel stating
that in the opinion of such counsel the foregoing covenant has been complied
with and that any instruments executed by the Company or any Subsidiary of the
Company in the performance of the foregoing covenant comply with the
requirements of the foregoing covenant and (ii) the Trustee is hereby
authorized to enter into an indenture or agreement supplemental hereto and to
take such action, if any, as it may deem advisable to enable it to enforce the
rights of the holders of the Notes so secured.



     Section 2.15. LIMITATIONS ON ISSUE OR DISPOSITION OF COMMON STOCK OF
PRINCIPAL SUBSIDIARIES. As long as any of the Notes remain outstanding, the
Company will not, and will not permit any Subsidiary to, issue, sell, assign,
transfer or otherwise dispose of, directly or indirectly, any of the Common
Stock of any Principal Subsidiary (except to the Company or to one or more
Subsidiaries or for the purpose of qualifying directors); provided, however,
that this covenant shall not apply if (i) the issuance, sale, assignment,
transfer or other disposition is required to comply with the order of a court
or regulatory authority of competent jurisdiction, other than an order issued
at the request of the Company or of one of its Subsidiaries; (ii) the entire
Common Stock of a Principal Subsidiary then owned by the Company or by its
Subsidiaries is disposed of in a single transaction or in a series of related
transactions, for consideration consisting of cash or other property which is
at least equal to the Fair Value of such Common Stock; or (iii) after giving
effect to the issuance, sale, assignment, transfer or other disposition, the
Company and its Subsidiaries would own directly or indirectly at least 80% of
the issued and outstanding Common Stock of such Principal Subsidiary and such
issuance, sale, assignment, transfer or other disposition is made for
consideration consisting of cash or other property which is at least equal to
the Fair Value of such Common Stock.



     Section 2.16. IMMEDIATELY AVAILABLE FUNDS. All payments of principal and
interest shall be made in immediately available funds.




ARTICLE III




MISCELLANEOUS PROVISIONS



     Section 3.1. TRUSTEE NOT RESPONSIBLE FOR RECITALS. The recitals herein
contained are made by the Company and not by the Trustee, and the Trustee
assumes no


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 responsibility for the correctness thereof. The Trustee makes no
representation as to the validity or sufficiency of this Second Supplemental
Indenture.



     Section 3.2. PAYMENT OF EXPENSES UPON RESIGNATION OR REMOVAL. Upon
termination of this Second Supplemental Indenture or the Indenture or the
removal or resignation of the Trustee, unless otherwise stated, the Company
shall pay to the Trustee all amounts accrued to the date of such termination,
removal or resignation.



     Section 3.3. ADOPTION, RATIFICATION AND CONFIRMATION. The Indenture, as
supplemented and amended by this Second Supplemental Indenture, is in all
respects hereby adopted, ratified and confirmed.



     Section 3.4. COUNTERPARTS. This Second Supplemental Indenture may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.



     Section 3.5. GOVERNING LAW. THIS SECOND SUPPLEMENTAL INDENTURE AND EACH
NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW
YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.



7







 


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




	 	 	 	 	 
	 	 	W. R. BERKLEY CORPORATION
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

	 	 	 	 	Name:
	 	 	 	 	Title:
	 	 	 	 	 
	 	 	THE BANK OF NEW YORK, as Trustee
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

	 	 	 	 	Name:
	 	 	 	 	Title:





8









 




EXHIBIT A




(FORM OF FACE OF NOTE)



     This Note is a global Note within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depository or a nominee of a
Depository. This Note is exchangeable for Securities registered in the name of
a person other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Note (other
than a transfer of this Note as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in limited circumstances.



     Unless this Note is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any Note
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of The Depository Trust Company and any payment
hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof,
Cede & Co., has an interest herein.




	 	 	 
	Certificate No. 2

Dated: September 12, 2003	 	
$150,000,000

CUSIP No. 084423AK8




W. R. BERKLEY CORPORATION




5.125% Senior Notes due 2010



     W. R. BERKLEY CORPORATION, a Delaware corporation (the “Company,” which
term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of ONE HUNDRED FIFTY MILLION DOLLARS AND
NO CENTS ($150,000,000.00) on September 30, 2010. The Company further promises
to pay interest on said principal sum outstanding from September 12, 2003, or
from the most recent interest payment date (each such date, an “Interest
Payment Date”) to which interest has been paid or duly provided for,
semiannually (subject to deferral as set forth herein) in arrears on March 30
and September 30 of each year commencing March 30, 2004 at the rate of 5.125%
per annum, until the principal hereof shall have become due and payable and,
until the principal hereof is paid or duly provided for or made available for
payment. The amount of interest payable on any Interest Payment Date shall be
computed on the basis of a 360-day year of twelve 30-day months. The amount of
interest payable for any partial period shall be computed on the basis of the
number of actual days elapsed in a 360-day year of twelve 30-day months. In the
event that any date on which interest is payable on this Note is not a Business
Day, then payment of interest payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay). A “Business Day,” with respect to any
Place of Payment or other location, shall mean any day other than a Saturday,
Sunday or other day on


A-1







 




 which banking institutions in such Place of Payment or other location are
authorized or obligated by law, regulation or executive order to close. The
interest installment so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on March 15 or September 15 prior to such
Interest Payment Date. Any such interest installment not punctually paid or
duly provided for shall forthwith cease to be payable to the registered Holder
on such Regular Record Date and may either be paid to the Person in whose name
this Note (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date to be fixed by the Trustee for the payment of
such Defaulted Interest, notice whereof shall be given to the Holder of this
Note 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 this Note may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in the Indenture.



     The principal of (and premium, if any) and the interest on this Note shall
be payable at the office or agency of the Company maintained for that purpose
in the United States in such coin or currency of the United States of America
that at the time of payment is legal tender for payment of public and private
debts; PROVIDED, HOWEVER, that payment of interest may be made at the option of
the Company by check mailed to the registered Holder at such address as shall
appear in the Security Register. Notwithstanding the foregoing, so long as the
Holder of this Note is Cede & Co., the payment of the principal of (and
premium, if any) and interest on this Note will be made at such place and to
such account as may be designated by Cede & Co. All payments of principal and
interest hereunder shall be made in immediately available funds.



     Reference is hereby made to the further provisions of this Note 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 Note shall
not be entitled to any benefit under the Indenture or be valid for any purpose.



A-2







 


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




	 	 	 	 	 
	 	 	W. R. BERKLEY CORPORATION
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

	 	 	 	 	Name:
	 	 	 	 	Title:




CERTIFICATE OF AUTHENTICATION



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



Dated: September 12, 2003


THE BANK OF NEW YORK,

as Trustee



	 	 	 	 	 
	By:	 	 	 	 
	 	 	

	 	 
	 	 	
Authorized Signatory	 	 



A-3







 



(FORM OF REVERSE OF NOTE)



     This Note is one of a duly authorized issue of securities of the Company,
designated as its 5.125% Senior Notes due 2010 (herein referred to as the
“Securities”), issued under and pursuant to an Indenture, dated as of February
14, 2003 between the Company and The Bank of New York, as Trustee (herein
called the “Trustee,” which term includes any successor trustee under the
Indenture), as supplemented by the Second Supplemental Indenture dated as of
September 12, 2003, between the Company and the Trustee (the Indenture as so
supplemented, the “Indenture”), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Securities, and of the terms upon
which the Securities are, and are to be, authenticated and delivered.



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



     The Company may redeem the Securities, in whole or in part, at any
time at a Redemption Price equal to the greater of (i) 100% of the
principal amount of such Securities to be redeemed or (ii) an amount, as
determined by an Independent Investment Banker, the sum of the present
values of the remaining scheduled payments of principal of and interest
thereon on the securities to be redeemed (not including any portion of
such payments of interest accrued to the date of redemption) discounted
to the Redemption Date on a semiannual basis assuming a 360-day year
consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus
25 basis points, plus, in either of the above cases, accrued and unpaid
interest thereon to the Redemption Date.



     “Adjusted Treasury Rate” means, with respect to any Redemption Date:





	 	•	 	the yield, under the heading which represents the
average for the immediately preceding week, appearing in the
most recently published statistical release designated
“H.15(519)” published by the Board of Governors of the Federal
Reserve System (or any successor publication which is
published weekly by the Board of Governors of the Federal
Reserve System and which establishes yields on actively traded
United States Treasury securities adjusted to constant
maturity) under the caption “Treasury Constant Maturities,”
for the maturity corresponding to the Comparable Treasury
Issue. If no maturity is within three months before or after
the Remaining Life, yields for the two published maturities
most closely corresponding to the Comparable Treasury Issue
shall be determined and the Adjusted Treasury Rate shall be
interpolated or extrapolated from such yields on a straight
line basis, rounding to the nearest month; or
	 
	 	•	 	if such release (or any successor release) is not
published during the week preceding the calculation date or
does not contain such yields, the rate per annum equal to the
semiannual equivalent yield to maturity of the 



A-4







 





	 	 	 	Comparable
Treasury Issue, calculated using 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.



     The Adjusted Treasury Rate shall be calculated on the third Business Day
preceding the Redemption Date.



     “Comparable Treasury Issue” means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the securities to be redeemed that would be used, 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 securities (“Remaining Life”).



     “Comparable Treasury Price” means (i) the average of three Reference
Treasury Dealer Quotations for such Redemption Date, after excluding the
highest and lowest Reference Treasury Dealer Quotations, or (ii) if the
Independent Investment Banker obtains fewer than three such Reference Treasury
Dealer Quotations, the average of all such quotations.



     “Independent Investment Banker” means one of the Reference Treasury
Dealers appointed by us.



     “Reference Treasury Dealer” means:





	 	•	 	each of Morgan Stanley & Co. Incorporated and
Merrill Lynch, Pierce, Fenner & Smith Incorporated, and their
respective successors; provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government
securities dealer in the United States (a “Primary Treasury
Dealer”), the Company shall substitute therefor another
Primary Treasury Dealer; and
	 
	 	•	 	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 Independent Investment Banker, 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 Independent Investment Banker at
5:00 p.m., New York City Time, on the third Business Day preceding such
Redemption Date.



     The Company will mail a notice of redemption at least 30 days but not more
than 60 days before the Redemption Date to each holder of the securities to be
redeemed. If less than all of the securities are to be redeemed, the Trustee
will select, by such method as it will deem fair and appropriate, including pro
rata or by lot, the securities to be redeemed in whole or in part.



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     Unless we default in payment of the Redemption Price, on and after the
Redemption Date, interest will cease to accrue on the securities or portions
thereof called for redemption.



     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, with the effect and subject to the
conditions provided in the Indenture.



     The Indenture contains provisions for satisfaction, discharge and
defeasance at any time of the entire indebtedness of this Note upon compliance
by the Company with certain conditions set forth in the Indenture.



     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
of each series at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting 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 Note shall be conclusive and binding upon such Holder and
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange therefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note. No
reference herein to the Indenture and no provision of this Note or of the
Indenture (other than Section 4.2 of the Indenture) shall alter or impair the
obligation of the Company to pay the principal and interest on the Note 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 Note is registrable in the Security Register,
upon surrender of this Note for registration of transfer at the office or
agency of the Company maintained under Section 10.2 of the Indenture duly
endorsed by, or accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder hereof or his or her attorney duly authorized in writing, and thereupon
one or more new Securities of this series, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated
transferee or transferees. No service charge shall be made for any such
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.



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



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



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



     THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND
THE SECURITIES WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.





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