exv4w5



 






Exhibit 4. 5



U.S. BANCORP


Floating Rate Convertible

Senior Debentures due 2035


 




INDENTURE


Dated as of December 9, 2005


 




Citibank, N.A.


TRUSTEE


U.S. Bank Trust National Association


AUTHENTICATING AGENT




 









 









U.S. BANCORP

CROSS REFERENCE SHEET*



This Cross Reference Sheet shows the location in the Indenture of the provisions inserted pursuant
to Sections 310-318(a), inclusive, of the TIA.




	 	 	 
	 	 	Sections of
	Trust Indenture Act	 	Indenture
	310(a)(1)(2)
	 	5.9
	(3)(4)
	 	Inapplicable
	(5)
	 	5.9
	(b)
	 	5.7 and 5.9
	(b)(1)(A)(C)
	 	Inapplicable
	(c)
	 	Inapplicable
	 
	 	 
	311(a)(b)
	 	5.10 and 6.3
	(c)
	 	Inapplicable
	 
	 	 
	312(a)
	 	6.1 and 6.2(a)
	(b)
	 	6.2(b)
	(c)
	 	6.2(c)
	 
	 	 
	313(a)
	 	6.3
	(b)(1)
	 	Inapplicable
	(2)
	 	6.3
	(c)
	 	15.3
	(d)
	 	6.3
	 
	 	 
	314(a)
	 	6.4, 9.4 and 15.3
	(b)
	 	Inapplicable
	(c)(1)(2)
	 	1.2
	(3)
	 	Inapplicable
	(d)
	 	Inapplicable
	(e)
	 	1.2
	 
	 	 
	315(a)(c)(d)
	 	5.1
	(b)
	 	5.5
	(e)
	 	4.14
	 
	 	 
	316(a)(1)
	 	4.12 and 4.13
	(2)
	 	Inapplicable
	(b)
	 	4.8
	(c)
	 	6.1
	 
	 	 
	317(a)
	 	4.3 and 4.4
	(b)
	 	9.3
	 
	 	 
	318(a)(c)
	 	1.5
	(b)
	 	Inapplicable








 




			
	*	 	The Cross Reference Sheet is not part of the
Indenture.






 










 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE I

	 
	 	 	 	 	 	 
	DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION

	 
	 	 	 	 	 	 
	Section 1.1

	 	Certain Terms Defined
	 	 	1	 
	Section 1.2

	 	Compliance Certificates and Opinions
	 	 	9	 
	Section 1.3

	 	Form of Documents Delivered to Trustee
	 	 	9	 
	Section 1.4

	 	Acts of Holders
	 	 	10	 
	Section 1.5

	 	Conflict with Trust Indenture Act of 1939
	 	 	10	 
	Section 1.6

	 	Effect of Headings and Table of Contents
	 	 	11	 
	Section 1.7

	 	Separability Clause
	 	 	11	 
	Section 1.8

	 	Benefits of Indenture
	 	 	11	 
	Section 1.9

	 	Legal Holidays
	 	 	11	 
	 
	 	 	 	 	 	 
	ARTICLE II

	 
	 	 	 	 	 	 
	THE SECURITIES

	 
	 	 	 	 	 	 
	Section 2.1

	 	Form and Dating
	 	 	11	 
	Section 2.2

	 	Execution and Authentication
	 	 	12	 
	Section 2.3

	 	Registrar, Paying Agent and Conversion Agent
	 	 	13	 
	Section 2.4

	 	Paying Agent to Hold Money and Securities in Trust
	 	 	13	 
	Section 2.5

	 	Transfer and Exchange
	 	 	13	 
	Section 2.6

	 	Replacement Securities
	 	 	15	 
	Section 2.7

	 	Outstanding Securities; Determinations of Holders’ Action
	 	 	15	 
	Section 2.8

	 	Temporary Securities
	 	 	16	 
	Section 2.9

	 	Cancellation
	 	 	16	 
	Section 2.10

	 	Persons Deemed Owners
	 	 	17	 
	Section 2.11

	 	Global Securities
	 	 	17	 
	Section 2.12

	 	Legends
	 	 	18	 
	Section 2.13

	 	Payment of Interest; Interest Rights Preserved
	 	 	19	 
	Section 2.14

	 	CUSIP Numbers
	 	 	21	 
	 
	 	 	 	 	 	 
	ARTICLE III

	 
	 	 	 	 	 	 
	SATISFACTION AND DISCHARGE

	Section 3.1

	 	Discharge of Liability on Securities
	 	 	21	 
	Section 3.2

	 	Repayment of Moneys Held by Trustee or Paying Agent
	 	 	21	 






i









 





	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE IV

	 
	 	 	 	 	 	 
	REMEDIES

	 
	 	 	 	 	 	 
	Section 4.1

	 	Events of Default
	 	 	22	 
	Section 4.2

	 	Acceleration of Maturity; Rescission and Annulment
	 	 	23	 
	Section 4.3

	 	Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	24	 
	Section 4.4

	 	Trustee May File Proofs of Claim
	 	 	25	 
	Section 4.5

	 	Trustee May Enforce Claims Without Possession of Securities
	 	 	25	 
	Section 4.6

	 	Application of Money Collected
	 	 	25	 
	Section 4.7

	 	Limitation on Suits
	 	 	26	 
	Section 4.8

	 	Unconditional Right of Holders to Receive Principal and Interest
	 	 	26	 
	Section 4.9

	 	Restoration of Rights and Remedies
	 	 	27	 
	Section 4.10

	 	Rights and Remedies Cumulative
	 	 	27	 
	Section 4.11

	 	Delay or Omission Not Waiver
	 	 	27	 
	Section 4.12

	 	Control by Holders
	 	 	27	 
	Section 4.13

	 	Waiver of Past Defaults
	 	 	27	 
	Section 4.14

	 	Undertaking for Costs
	 	 	28	 
	Section 4.15

	 	Waiver of Stay or Extension Laws
	 	 	28	 
	 
	 	 	 	 	 	 
	ARTICLE V

	 
	 	 	 	 	 	 
	THE TRUSTEE

	 
	 	 	 	 	 	 
	Section 5.1

	 	Duties of Trustee
	 	 	28	 
	Section 5.2

	 	Rights of Trustee
	 	 	30	 
	Section 5.3

	 	Individual Rights of Trustee
	 	 	31	 
	Section 5.4

	 	Trustee’s Disclaimer
	 	 	31	 
	Section 5.5

	 	Notice of Defaults
	 	 	31	 
	Section 5.6

	 	Compensation and Indemnity
	 	 	31	 
	Section 5.7

	 	Replacement of Trustee
	 	 	32	 
	Section 5.8

	 	Successor Trustee by Merger
	 	 	33	 
	Section 5.9

	 	Eligibility; Disqualification
	 	 	33	 
	Section 5.10

	 	Preferential Collection of Claims Against Company
	 	 	33	 
	Section 5.11

	 	Appointment of Authenticating Agent
	 	 	33	 
	 
	 	 	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 	 	 
	HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

	 
	 	 	 	 	 	 
	Section 6.1

	 	Company to Furnish Trustee Information as to Names and
Addresses of Holders
	 	 	34	 
	Section 6.2

	 	Preservation of Information; Communications to Holders
	 	 	35	 
	Section 6.3

	 	Reports by Trustee
	 	 	36	 
	Section 6.4

	 	Reports by Company
	 	 	36	 






ii









 





	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE VII

	 
	 	 	 	 	 	 
	CONSOLIDATION, MERGER, SALE OR CONVEYANCE

	 
	 	 	 	 	 	 
	Section 7.1

	 	Consolidations and Mergers of Company Permitted
Subject to Certain Conditions
	 	 	37	 
	Section 7.2

	 	Rights and Duties of Successor Corporation
	 	 	38	 
	 
	 	 	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 	 	 
	SUPPLEMENTAL INDENTURES

	 
	 	 	 	 	 	 
	Section 8.1

	 	Supplemental Indentures Without Consent of Holders
	 	 	38	 
	Section 8.2

	 	Supplemental Indentures with Consent of Holders
	 	 	39	 
	Section 8.3

	 	Execution of Supplemental Indentures
	 	 	40	 
	Section 8.4

	 	Effect of Supplemental Indentures
	 	 	40	 
	Section 8.5

	 	Reference in Securities to Supplemental Indentures
	 	 	40	 
	 
	 	 	 	 	 	 
	ARTICLE IX

	 
	 	 	 	 	 	 
	COVENANTS OF THE COMPANY

	 
	 	 	 	 	 	 
	Section 9.1

	 	Payment of Principal, Premium and Interest
	 	 	41	 
	Section 9.2

	 	Maintenance of Office or Agency
	 	 	41	 
	Section 9.3

	 	Money for Securities Payments to Be Held in Trust
	 	 	41	 
	Section 9.4

	 	Compliance Certificate
	 	 	42	 
	Section 9.5

	 	Calculation of Certain Amounts
	 	 	43	 
	Section 9.6

	 	Further Instruments and Acts
	 	 	43	 
	 
	 	 	 	 	 	 
	ARTICLE X

	 
	 	 	 	 	 	 
	REDEMPTION OF SECURITIES

	 
	 	 	 	 	 	 
	Section 10.1

	 	Right to Redeem; Notices to Trustee
	 	 	43	 
	Section 10.2

	 	Selection of Securities to Be Redeemed
	 	 	43	 
	Section 10.3

	 	Notice of Redemption
	 	 	44	 
	Section 10.4

	 	Effect of Notice of Redemption
	 	 	44	 
	Section 10.5

	 	Deposit of Redemption Price
	 	 	44	 
	Section 10.6

	 	Securities Redeemed in Part
	 	 	45	 
	 
	 	 	 	 	 	 
	ARTICLE XI

	 
	 	 	 	 	 	 
	CONVERSION

	 
	 	 	 	 	 	 
	Section 11.1

	 	Conversion Rights
	 	 	45	 
	Section 11.2

	 	Cash Settlement
	 	 	45	 
	Section 11.3

	 	Conversion Procedures
	 	 	46	 
	Section 11.4

	 	Fractional Shares
	 	 	47	 






iii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	Section 11.5

	 	Taxes on Conversion
	 	 	47	 
	Section 11.6

	 	Company to Provide Common Stock
	 	 	48	 
	Section 11.7

	 	Adjustment of Conversion Rate
	 	 	48	 
	Section 11.8

	 	Adjustment for Tax Purposes
	 	 	54	 
	Section 11.9

	 	Notice of Adjustment
	 	 	54	 
	Section 11.10

	 	Notice of Certain Transactions
	 	 	54	 
	Section 11.11

	 	Effect of Reclassification, Consolidation, Merger or Sale on Conversion
Privilege
	 	 	 54	 
	Section 11.12

	 	Trustee’s Disclaimer
	 	 	55	 
	Section 11.13

	 	Rights Issued in Respect of Common Stock Issued upon Conversion
	 	 	55	 
	Section 11.14

	 	Company Determination Final
	 	 	56	 
	 
	 	 	 	 	 	 
	ARTICLE XII

	 
	 	 	 	 	 	 
	REPAYMENT AT OPTION OF HOLDERS

	 
	 	 	 	 	 	 
	Section 12.1

	 	Applicability of Article
	 	 	56	 
	Section 12.2

	 	Effect of Purchase Notice
	 	 	57	 
	Section 12.3

	 	Deposit of Purchase Price
	 	 	58	 
	Section 12.4

	 	Securities Purchased in Part
	 	 	58	 
	Section 12.5

	 	Compliance with Securities Laws upon Purchase of Securities
	 	 	58	 
	Section 12.6

	 	Repayment to the Company
	 	 	59	 
	 
	 	 	 	 	 	 
	ARTICLE XIII

	 
	 	 	 	 	 	 
	REPAYMENT AT OPTION OF HOLDER

UPON A CHANGE IN CONTROL

	 
	 	 	 	 	 	 
	Section 13.1

	 	Right to Require Purchase
	 	 	59	 
	Section 13.2

	 	Effect of Change in Control Purchase Notice
	 	 	62	 
	Section 13.3

	 	Deposit of Change in Control Purchase Price
	 	 	63	 
	Section 13.4

	 	Securities Purchased in Part
	 	 	63	 
	Section 13.5

	 	Compliance with Securities Laws upon Purchase of Securities
	 	 	63	 
	Section 13.6

	 	Repayment to the Company
	 	 	63	 
	 
	 	 	 	 	 	 
	ARTICLE XIV

	 
	 	 	 	 	 	 
	IMMUNITY OF INCORPORATORS, SHAREHOLDERS,

OFFICERS, DIRECTORS AND EMPLOYEES

	 
	 	 	 	 	 	 
	Section 14.1

	 	Exemption from Individual Liability 	 	 	64	 
	 
	 	 	 	 	 	 
	ARTICLE XV

	 
	 	 	 	 	 	 
	MISCELLANEOUS PROVISIONS

	 
	 	 	 	 	 	 
	Section 15.1

	 	Successors and Assigns of Company Bound by Indenture
	 	 	64	 
	Section 15.2

	 	Acts of Board, Committee or Officer of Successor Corporation Valid
	 	 	64	 






iv









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	Section 15.3

	 	Required Notices or Demands
	 	 	64	 
	Section 15.4

	 	Governing Law
	 	 	65	 
	Section 15.5

	 	Indenture May Be Executed in Counterparts
	 	 	65	 
	 
	 	 	 	 	 	 
	ANNEX A

	 	Form of Global Security	 	 	 	 







v









 






     INDENTURE, dated as of the 9th day of December, 2005, among U.S. BANCORP, a Delaware
corporation (the “Company”), Citibank, N.A., as trustee (the “Trustee”) and U.S.
Bank Trust National Association (the “Authenticating Agent”).



     WHEREAS, for its lawful corporate purposes, the Company deems it necessary to issue its
securities and has duly authorized the execution and delivery of this Indenture to provide for the
issuance of its Floating Rate Convertible Senior Debentures due 2035 (the “Securities”).



     NOW, THEREFORE, THIS INDENTURE WITNESSETH:



     For and in consideration of the premises and the purchase of the Securities by the Holders (as
defined herein), it is mutually covenanted and agreed by the Company and by the Trustee, for the
equal and proportionate benefit of all Holders of the Securities, as follows:



ARTICLE I




DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION




     Section 1.1 Certain Terms Defined.



     (a) Definitions.



     “Accreted Principal Amount” when used with respect to any Security, means the Original
Principal Amount increased daily by the applicable Variable Yield. The Accreted Principal Amount
will accrete daily at the applicable Variable Yield applied to the Accreted Principal Amount of the
Security as of the day immediately preceding the most recent LIBOR Reset Date. The accretion shall
be calculated using the actual number of days elapsed from and including the LIBOR Reset Date to
but excluding the next LIBOR Reset Date divided by 360.



     “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 or cause the direction of 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.



     “Bankruptcy Law” means Title 11, United States Code, or any similar Federal or state
law for the relief of debtors.



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



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



 









 





     “Business Day” means any day other than a Saturday, a Sunday or a day on which banking
institutions in The City of New York or Wilmington, Delaware are authorized or required by law,
regulation or executive order to close, provided, solely with respect to the LIBOR Determination
Date, such day is also a London banking day.



     “Calculation Agent” for the purposes of this Indenture and the Securities, shall
initially mean the Paying Agent.



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



     “Closing Sale Price” of Common Stock on any date means the closing sale price per
share (or if no closing sale price is reported, the average of the bid and ask prices or, if more
than one in either case, the average of the average bid and the average ask prices) on such date as
reported in composite transactions for the principal United States securities exchange on which the
Common Stock is traded or, if the Common Stock is not listed on a United States national or
regional securities exchange, as reported by the National Association of Securities Dealers
Automated Quotation System.



     “Commission” means the Securities and Exchange Commission or any successor thereto.



     “Common Stock” shall mean the shares of Common Stock, $0.01 par value, of the Company
as it exists on the date of this Indenture or any other shares of Capital Stock of the Company into
which the Common Stock shall be reclassified or changed.



     “Company” means the party named as the “Company” in the first paragraph of this
Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture
and, thereafter, shall mean such successor. The foregoing sentence shall likewise apply to any
such subsequent successor or successors.



     “Company Request” or “Company Order” means a written request or order signed
in the name of the Company by any two Officers and delivered to the Trustee.



     “Conversion Price” means the dollar amount (initially $36.85) derived by dividing the
Accreted Principal Amount (which will be $1,000 until December 11, 2030) by the Conversion Rate.



     “Conversion Rate” means an initial rate of 27.1370, subject to adjustment as set forth
in Section 11.7.



     “Conversion Reference Period” means:




     (1) for Securities that are converted after the Company specifies a Redemption Date
pursuant to Section 10.3, the ten consecutive Trading Days beginning on the third Trading
Day following the Redemption Date (in the case of a partial redemption, this will apply only
to those Securities that are subject to redemption); and



2









 






     (2) in all other instances, the ten consecutive Trading Days beginning on the third
Trading Day following the Conversion Date.



     “Conversion Value” means the average of the Daily Conversion Values for each of the
ten consecutive Trading Days of the applicable Conversion Reference Period.



     “Corporate Trust Office” means the principal office of the Trustee at which at any
time its corporate trust business shall be administered, which office at the date hereof is located
at 388 Greenwich Street, 14th Floor, New York, New York 10013, Attention: Corporate Trust Services
– U.S. Bancorp Floating Rate Convertible Senior Debentures due 2035, or such other address as the
Trustee may designate from time to time by notice to the Holders and the Company, or the principal
corporate trust office of any successor Trustee (or such other address as a successor Trustee may
designate from time to time by notice to the Holders and the Company).



     “Current Market Price” on any date means the average of the daily Closing Sale Prices
per share of Common Stock for the ten consecutive Trading Days immediately prior to such date.



     “Custodian” means any receiver, trustee, assignee, liquidator, custodian or similar
official under any Bankruptcy Law.



     “Daily Conversion Value” means, with respect to any Trading Day, the product of (1)
the applicable Conversion Rate and (2) the Closing Sale Price of Common Stock on such Trading Day.



     “Daily Share Amount” means, for each Trading Day of the applicable Conversion
Reference Period, a number of shares determined by the following formula:



(Closing Sale Price on Such Trading Day * Applicable Conversion Rate) – the

Accreted Principal Amount of the Security on the Conversion Date



 



Closing Sale Price on Such Trading Day * 10




     “Default” means any event which is, or after notice or passage of time or both
would be, an Event of Default.



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



     “Global Security” or “Global Securities” means Securities that are in the form
of the Securities attached hereto as Annex A.



     “Holder” means a Person in whose name a Security is registered on the Registrar’s
books.



     “Indebtedness” means obligations (other than nonrecourse obligations) of the Company
for borrowed money or evidenced by bonds, debentures, notes or similar instruments.



3









 





     “Indenture” means this trust indenture, as amended or supplemented from time to time
in accordance with the terms hereof, including the provisions of the TIA that are deemed to be a
part hereof.



     “Initial Purchasers” means Citigroup Global Markets Inc. and Deutsche Bank Securities
Inc.



     “Interest Payment Date” means the March 11, June 11, September 11 and December 11 of
each year, beginning March 11, 2006 until December 11, 2030.



     “Interest Period” means each period for which interest is accrued, from and including
the most recent Interest Payment Date to which interest has been paid or duly made available for
payment (or December 9, 2005, if no interest has been paid or been duly made available for payment)
to, but excluding, the next succeeding Interest Payment Date or Redemption Date or Purchase Date or
Change in Control Purchase Date, as the case may be.



     “Issue Date” of any Security means the date on which the Security was originally
issued or deemed issued as set forth on the face of the Security.



     “Legal Holiday” means a day that is not a Business Day.



     “LIBOR Determination Date” means the second London banking day preceding the related
LIBOR Reset Date.



     “LIBOR Reset Date” means the March 11, June 11, September 11 and December 11 of each
year; provided that, if any LIBOR Reset Date would otherwise be a day that is not a Business Day,
such LIBOR Reset Date shall be postponed to the next succeeding Business Day, except if such
Business Day falls in the next succeeding calendar month, such LIBOR Reset Date will be the
immediately preceding Business Day.



     “Liquidated Damages” shall have the meaning set forth in the Registration Rights
Agreement, dated as of December 9, 2005, between the Company and the Initial Purchasers; provided,
however, that “Liquidated Damages” shall be due and payable only at the times, in the
amounts and to the Persons as provided in the Registration Rights Agreement.



     “London banking day” means a day on which commercial banks are open for business,
including dealings in United States dollars, in London.



     “Officer” means the Chairman of the Board, the President, any Executive Vice
President, any Senior Vice President, any Vice President, the Treasurer, the Secretary, any
Assistant Treasurer or any Assistant Secretary of the Company.



     “Officers’ Certificate” means a written certificate containing the information
specified in Section 1.2, signed in the name of the Company by any two Officers and delivered to
the Trustee. An Officers’ Certificate given pursuant to Section 9.4 shall be signed by the
principal executive, financial or accounting officer of the Company but need not contain the information
specified in Section 1.2.



4









 





     “Opinion of Counsel” means a written opinion from legal counsel containing the
information specified in Section 1.2. The counsel may be an employee of, or counsel to, the
Company.



     “Original Principal Amount” of a Security means the principal amount set forth on the
face of the Security.



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



     “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 2.6 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.



     “Redemption Date” means the date specified for redemption of the Securities in
accordance with the terms of the Securities and this Indenture.



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



     “Registrar, Paying Agent and Conversion Agent Office” means the principal office of
the Registrar, Paying Agent and Conversion Agent, at which at any time its business shall be
administered, which office at the date hereof is located at 100 Wall Street, New York, New York
10005, Attention: Patrick J. Crowley, U.S. Bank Trust National Association, or such other address
as the Registrar, Paying Agent or Conversion Agent may designate from time to time by notice to the
Holders and the Company, or the principal office of any successor Registrar, Paying Agent or
Conversion Agent.



     “Regular Record Date” means each March 1, June 1, September 1 and December 1, as the
case may be, immediately preceding the relevant Interest Payment Date.



     “Responsible Officer,” when used with respect to the Trustee, means any officer within
the corporate trust department (or any successor group), including, without limitation, any vice
president, any assistant vice president, any trust officer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above-designated officers
and also means, with respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the particular subject and, in
each case, who shall have direct responsibility for the administration of this Indenture.



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



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



5









 





     “Securities” or “Security” means any of the Company’s Floating Rate
Convertible Senior Debentures due 2035, as amended or supplemented from time to time, issued under
this Indenture.



     “Securities Act” means the Securities Act of 1933, as amended from time to time, and
the rules and regulations of the Commission promulgated thereunder.



     “Security Register” means the register maintained by the Registrar that evidences
ownership of the Securities.



     “Special Record Date” means, for the payment of any Defaulted Interest, the date fixed
by the Trustee pursuant to Section 2.13.



     “Stated Maturity,” when used with respect to any Security, means the date specified in
such Security as the fixed date on which an amount equal to the Accreted Principal Amount of such
Security is due and payable.



     “Subsidiary” means (i) a corporation, a majority of whose Capital Stock with voting
power, under ordinary circumstances, to elect directors is, at the date of determination, directly
or indirectly owned by the Company, by one or more Subsidiaries of the Company or by the Company
and one or more Subsidiaries of the Company, (ii) a partnership in which the Company or a
Subsidiary of the Company, one or more Subsidiaries of the Company or the Company and one or more
Subsidiaries of the Company holds a majority interest in the equity capital or profits of such
partnership, or (iii) any other Person (other than a corporation) in which the Company, one or more
Subsidiaries of the Company or the Company and one or more Subsidiaries of the Company, directly or
indirectly, at the date of determination, has (x) at least a majority ownership interest or (y) the
power to elect or direct the election of a majority of the directors or other governing body of
such Person.



     “Tax Original Issue Discount” means the amount of ordinary interest income on a
Security that must be accrued as original issue discount for United States federal income tax
purposes.



     “3-month LIBOR” means:



     (a) the rate for three-month deposits in United States dollars commencing on the related LIBOR
Reset Date, that appears on the Moneyline Telerate Page 3750 as of 11:00 A.M., London time, on the
LIBOR Determination Date; or



     (b) if no rate appears on the particular LIBOR Determination Date on the Moneyline Telerate
Page 3750, the rate calculated by the Calculation Agent as the arithmetic mean of at least two
offered quotations obtained by the Calculation Agent after requesting the principal London offices
of each of four major reference banks in the London interbank market to provide the Calculation
Agent with its offered quotation for deposits in United States dollars for the period of three
months, commencing on the related LIBOR Reset Date, to prime banks in the London interbank market
at approximately 11:00 A.M., London time, on that LIBOR
Determination Date and in a principal amount that is representative for a single transaction
in United Sates dollars in that market at that time; or



6









 





     (c) if fewer than two offered quotations referred to in clause (b) are provided as requested,
the rate calculated by the Calculation Agent as the arithmetic mean of the rates quoted at
approximately 11:00 A.M., New York City time, on the particular LIBOR Determination Date by three
major banks in The City of New York selected by the Calculation Agent for loans in United States
dollars to leading European banks for a period of three months and in a principal amount that is
representative for a single transaction in United States dollars in that market at that time; or



     (d) if the banks so selected by the Calculation Agent are not quoting as mentioned in clause
(c), 3-month LIBOR in effect on the particular LIBOR Determination Date.



     “TIA” means the Trust Indenture Act of 1939 as in effect on the date of this
Indenture; provided, however, that in the event the TIA is amended after such date, TIA means, to
the extent required by any such amendment, the TIA as so amended.



     “Trading Day” means a day during which trading in securities generally occurs on the
New York Stock Exchange or, if the Common Stock is not listed on the New York Stock Exchange, on
the principal other national or regional securities exchange on which the Common Stock is then
listed or, if the Common Stock is not listed on a national or regional securities exchange, on the
National Association of Securities Dealers Automated Quotation System or, if the Common Stock is
not quoted on the National Association of Securities Dealers Automated Quotation System, on the
principal other market on which the Common Stock is then traded.



     “Trustee” means the party named as the “Trustee” in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable provisions of this
Indenture and, thereafter, shall mean such successor. The foregoing sentence shall likewise apply
to any subsequent such successor or successors.



     “Variable Yield” from the Issue Date through and including December 10, 2030 will
equal 0% per annum and beginning on December 11, 2030 will be reset quarterly on each LIBOR Reset
Date to 3-month LIBOR minus 1.46% per annum; provided, however, that the Variable Yield shall in no
event be less than 0% per annum.



7









 





     (e) Other Definitions.



	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Act”
	 	 	1.4	(a)
	“Agent Members”
	 	 	2.11	(f)
	“applicants”
	 	 	6.2	(b)
	“Associate”
	 	 	13.1	(b)
	“Cash Percentage”
	 	 	11.2
	“Change in Control”
	 	 	13.1	(a)
	“Change in Control Purchase Date”
	 	 	13.1	(a)
	“Change in Control Purchase Notice”
	 	 	13.1	(c)
	“Change in Control Purchase Price”
	 	 	 13.1	(a)
	“Conversion Agent”
	 	 	2.3
	“Conversion Date”
	 	 	11.3
	“Conversion Notice”
	 	 	11.3
	“current dividend amount”
	 	 	11.7	(d)
	“Defaulted Interest”
	 	 	2.13
	“Depositary”
	 	 	2.1
	“Event of Default”
	 	 	4.1
	“Expiration Time”
	 	 	11.7	(e)
	“Legend”
	 	 	2.5	(f)
	“Notice of Default”
	 	 	4.1
	“Paying Agent”
	 	 	2.3
	“Purchase Agreement”
	 	 	2.2
	“Purchase Date”
	 	 	12.1
	“Purchase Notice”
	 	 	12.1
	“Purchase Price”
	 	 	12.1
	“Purchased Shares”
	 	 	11.7	(e)
	“QIB” or “QIBs”
	 	 	2.1
	“Reference Date”
	 	 	11.6	(c)
	“Registrar”
	 	 	2.3
	“Rights”
	 	 	11.13
	“Rights Agreement”
	 	 	11.13







8









 








     Section 1.2 Compliance Certificates and Opinions. Upon any application or request by the
Company to the Trustee to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel (which shall not be required in connection with the initial issuance) stating
that in the opinion of such counsel all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be furnished.



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




     (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 individual signing such certificate, such
individual has made such examination or investigation as is necessary to enable such
individual 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 or not, in the opinion of each such individual, such
condition or covenant has been complied with.



     Section 1.3 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 actually knows 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 (but without having made an investigation
specifically for the purpose of rendering such opinion) should know, that the certificate or
opinion or representations with respect to such matters are erroneous.



9









 





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



     Section 1.4 Acts of Holders. (a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar tenor signed by such
Holders in Person or by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the “Act” of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 5.1) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section 1.4.



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



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



     (d) 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.



     (e) The Company may, but shall not be obligated to, set a record date for purposes of
determining the identity of Holders entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture. If a record date is fixed, those Persons who were
Holders of Securities at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to take such action by vote or consent or to revoke any vote or consent
previously given, whether or not such Persons continue to be Holders after such record date. No
action approved by such vote or consent shall be taken more than six months after such record date.



     Section 1.5 Conflict with Trust Indenture Act of 1939. This Indenture is subject to, and will
be governed by, the provisions of the TIA that are required to be a part of and govern indentures
qualified under the TIA (regardless of whether or not this Indenture has been qualified
thereunder). If any provision hereof limits, qualifies or conflicts with a provision of the TIA
that



10









 







is required under the TIA to be part of and govern this Indenture, the TIA shall control. If
any provision of this Indenture modifies or excludes any provision of the TIA that may be so
modified or excluded, such provision shall be deemed either to apply to this Indenture so modified
or to be excluded, as the case may be.



     Section 1.6 Effect of Headings and Table of Contents. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the construction hereof.



     Section 1.7 Separability Clause. In case any provision in this Indenture or in any Security
shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.



     Section 1.8 Benefits of Indenture. Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their successors hereunder and
the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.



     Section 1.9 Legal Holidays. Subject to the next two succeeding sentences, if any specified
date (including a date for giving notice) on which action is to be taken under this Indenture is a
Legal Holiday, the action shall be taken on the next succeeding day that is not a Legal Holiday.
In any case where an Interest Payment Date (other than an Interest Payment Date coinciding with the
Stated Maturity or earlier Redemption Date, Purchase Date or Change in Control Purchase Date) of a
Security falls on a day that is not a Business Day, such Interest Payment Date will be postponed to
the next succeeding Business Day and no interest on such payment will accrue for the period from
and after the Interest Payment Date to such next succeeding Business Day, provided that, if such
Business Day falls in the next succeeding calendar month, the Interest Payment Date will be the
Business Day immediately preceding such Interest Payment Date. If the Stated Maturity, Redemption
Date, Purchase Date or Change in Control Purchase Date of a Security would fall on a day that is
not a Business Day, the required payment of interest, if any, and principal will be made on the
next succeeding Business Day and no interest on such payment will accrue for the period from and
after the Stated Maturity, Redemption Date, Purchase Date or Change in Control Purchase Date to
such next succeeding Business Day.



ARTICLE II




THE SECURITIES




     Section 2.1 Form and Dating. The Securities designated “Floating Rate Convertible Senior
Debentures due 2035” of the Company shall be substantially in the form set forth in Annex A hereto,
which is incorporated into and shall be deemed a part of this Indenture, with such appropriate
insertions, omissions, substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any securities exchange
or as may, consistently herewith, be determined by the Officers of the



11









 







Company executing the
Securities, as evidenced by their execution of the Securities. Each Security shall be dated the
date of its authentication.



     All of the Securities are initially being offered and sold to qualified institutional buyers
as defined in Rule 144A (collectively, “QIBs” or individually a “QIB”) in reliance
on Rule 144A under the Securities Act and shall be issued initially in the form of one or more
restricted Global Securities, which shall be deposited on behalf of the purchasers of the
Securities represented thereby with the Registrar at its Registrar, Paying Agent and Conversion
Agent Office, as custodian for the depositary, The Depository Trust Company (such depositary, or
any successor thereto, being hereinafter referred to as the “Depositary”), and registered
in the name of its nominee, Cede & Co., duly executed by the Company and authenticated by the
Trustee as hereinafter provided.



     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 Original Principal Amount of
outstanding Securities from time to time endorsed thereon and that the aggregate Original Principal
Amount of outstanding Securities represented thereby may from time to time be reduced or increased,
as appropriate, to reflect exchanges, redemptions, purchases or conversions of such Securities.
Any endorsement of a Global Security to reflect the amount of any increase or decrease in the
Original Principal Amount of outstanding Securities represented thereby shall be made by the
Registrar in accordance with the standing instructions and procedures existing between the
Depositary and the Registrar.



     Certificated Securities shall be issued only under the limited circumstances provided in
Section 2.11(b) hereof.



     Section 2.2 Execution and Authentication. The Securities shall be executed on behalf of the
Company by any Officer. The signature of any of these Officers on the Securities may be manual or
facsimile.



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



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



     The Trustee shall authenticate and deliver Securities for original issue in an aggregate
Original Principal Amount of $2,000,000,000 (up to $2,500,000,000 if the Initial Purchasers
exercise in full their option to purchase additional securities pursuant to the Purchase Agreement
dated December 5, 2005 among the Company and the Initial Purchasers (the “Purchase
Agreement”)) upon a Company Order without any further action by the Company. The



12









 







Securities
shall be issued only in registered form without coupons and only in denominations of $1,000 of
Original Principal Amount and any integral multiple thereof. The aggregate Original Principal
Amount of Securities outstanding at any time may not exceed the amount set forth in the first
sentence of this paragraph, except as provided in Section 2.6.



     Section 2.3 Registrar, Paying Agent and Conversion Agent. The Company shall maintain an
office or agency where Securities may be presented for registration of transfer or for exchange
(“Registrar”), an office or agency where Securities may be presented for purchase or
payment (“Paying Agent”) and an office or agency where Securities may be presented for
conversion (“Conversion Agent”). The Registrar shall keep a register of the Securities and
of their transfer and exchange. The Company may have one or more co-registrars, one or more
additional paying agents and one or more additional conversion agents. The term Paying Agent
includes any additional paying agent and the term Conversion Agent includes any additional
conversion agent.



     The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent,
Conversion Agent or co-registrar. The agreement shall implement the provisions of this Indenture
that relate to the duties of such agent. The Company shall notify the Trustee of the name and
address of any such agent. The Company or any Subsidiary or an Affiliate of either of them may act
as Paying Agent, Registrar, Conversion Agent or co-registrar.



     The Company initially appoints U.S. Bank Trust National Association, and U.S. Bank Trust
National Association agrees to its appointment, as Registrar, Conversion Agent and Paying Agent in
connection with the Securities.



     Section 2.4 Paying Agent to Hold Money and Securities in Trust. Except as otherwise provided
herein, on or prior to each due date of payments in respect of any Security, the Company shall
deposit with the Paying Agent a sum of money (in immediately available funds if deposited on the
due date) sufficient to make such payments when so becoming due. The Company shall require each
Paying Agent to agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders and the Trustee all money held by the Paying Agent for the making of payments in respect of
the Securities and shall notify the Trustee
of any default by the Company in making any such payment. At any time during the continuance
of any such default, the Paying Agent shall, upon the written request of the Trustee, forthwith pay
to the Trustee all money so held in trust. If the Company, a Subsidiary or an Affiliate of either
of them acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it
as a separate trust fund. The Company at any time may require a Paying Agent to pay all money held
by it to the Trustee and to account for any funds disbursed by it. Upon doing so, the Paying Agent
shall have no further liability for the money.



     Section 2.5 Transfer and Exchange. (a) Subject to Section 2.11 hereof, upon surrender for
registration of transfer of any Security, together with a written instrument of transfer
satisfactory to the Registrar duly executed by the Holder or such Holder’s attorney duly authorized
in writing, at the office or agency of the Company designated as Registrar or co-registrar pursuant
to Section 2.3, 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 any authorized
denomination or denominations, of a like aggregate Original Principal



13









 







Amount. The Company shall not
charge a service charge for any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to pay all taxes, assessments or other governmental charges that may be
imposed in connection with the transfer or exchange of the Securities from the Holder requesting
such transfer or exchange.



     The Company shall not be required to make, and the Registrar need not register, transfers or
exchanges of Securities selected for redemption (except, in the case of Securities to be redeemed
in part, the portion thereof not to be redeemed) or any Securities in respect of which a Purchase
Notice or Change in Control Purchase Notice has been given and not withdrawn by the Holder thereof
in accordance with the terms of this Indenture (except, in the case of Securities to be purchased
in part, the portion thereof not to be purchased) or any Securities for a period of 15 days before
the mailing of a notice of redemption of Securities to be redeemed.



     (b) Notwithstanding any provision to the contrary herein, so long as a Global Security remains
outstanding and is held by or on behalf of the Depositary, transfers of a Global Security, in whole
or in part, shall be made only in accordance with Section 2.11 and this Section 2.5(b). Transfers
of a Global Security shall be limited to transfers of such Global Security in whole, or in part, to
nominees of the Depositary or to a successor of the Depositary or such successor’s nominee.



     (c) Successive registrations and registrations of transfers and exchanges as aforesaid may be
made from time to time as desired, and each such registration shall be noted on the register for
the Securities.



     (d) Any Registrar appointed pursuant to Section 2.3 hereof shall provide to the Trustee such
information as the Trustee may reasonably require in connection with the delivery by such Registrar
of Securities upon transfer or exchange of Securities.



     (e) No Registrar shall be required to make registrations of transfer or exchange of Securities
during any periods designated in the text of the Securities or in this Indenture as periods during
which such registration of transfers and exchanges need not be made.



     (f) If Securities are issued upon the transfer, exchange or replacement of Securities subject
to restrictions on transfer and bearing the legends on the form of Security attached hereto as
Annex A setting forth such restrictions (collectively, the “Legend”), or if a request is
made to remove the Legend on a Security, the Securities so issued shall bear the Legend, or the
Legend shall not be removed, as the case may be, unless there is delivered to the Company and the
Registrar such satisfactory evidence, which shall include an Opinion of Counsel, as may be
reasonably required by the Company and the Registrar, that neither the Legend nor the restrictions
on transfer set forth therein are required to ensure that transfers thereof comply with the
provisions of Rule 144A or Rule 144 under the Securities Act or that such Securities are not
“restricted” within the meaning of Rule 144 under the Securities Act. Upon (i) provision of such
satisfactory evidence or (ii) notification by the Company to the Trustee and Registrar of the sale
of such Security pursuant to a registration statement that is effective at the time of such sale,
the Trustee, at the written direction of the Company, shall authenticate and deliver a Security
that does not bear the Legend. If the Legend is removed from the face of a Security and the
Security is subsequently held by an Affiliate of the Company, the Legend shall be reinstated.



14









 





     (e) Nothing in this Indenture or in the Securities shall prohibit the sale or other transfer
of any Securities (including beneficial interests in Global Securities) to the Company or any of
its Subsidiaries, which Securities shall thereupon be canceled in accordance with Section 2.9 of
this Indenture.



     Section 2.6 Replacement Securities. If (a) any mutilated Security is surrendered to the
Trustee, or (b) the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the Company and the Trustee
such security or indemnity as may be required by them to hold each 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 upon its written request the Trustee shall authenticate
and deliver, in exchange for any such mutilated Security or in lieu of any such destroyed, lost or
stolen Security, a new Security of like tenor and Original Principal Amount, 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, or is about to be purchased by the Company pursuant to Articles XII or XIII
hereof, the Company in its discretion may, instead of issuing a new Security, pay or purchase such
Security, as the case may be.



     Upon the issuance of any new Securities 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 issued pursuant to this Section in lieu of any mutilated, destroyed, lost
or stolen Security shall constitute an original additional contractual obligation of the Company,
whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with
any and all other Securities 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 2.7 Outstanding Securities; Determinations of Holders’ Action. Securities outstanding
at any time are all the Securities authenticated by the Trustee except for those canceled by it,
those delivered to it for cancellation, those delivered to it pursuant to Section 2.6 and those
described in this Section 2.7 as not outstanding. A Security does not cease to be outstanding
because the Company or an Affiliate thereof holds the Security; provided, however, that in
determining whether the Holders of the requisite Original Principal Amount of Securities have given
or concurred in any request, demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be outstanding, except that,
in determining whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of
the Trustee actually knows to be so owned shall be so



15









 







disregarded. Subject to the foregoing, only
Securities outstanding at the time of such determination shall be considered in any such
determination (including, without limitation, determinations made pursuant to Articles IV and
VIII).



     If a Security is replaced pursuant to Section 2.6, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.



     If the Paying Agent holds, in accordance with this Indenture, on a Redemption Date, or on the
Business Day following the Purchase Date or a Change in Control Purchase Date, or on Stated
Maturity, money or securities, if permitted hereunder, sufficient to pay Securities payable on that
date, then immediately after such Redemption Date, Purchase Date, Change in Control Purchase Date
or Stated Maturity, as the case may be, such Securities shall cease to be outstanding and interest,
if any, and principal on such Securities shall cease to accrue or accrete, as the case may be;
provided that if such Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made.



     If a Security is converted in accordance with Article XI, then from and after the time of
conversion on the Conversion Date, such Security shall cease to be outstanding and interest, if
any, and principal shall cease to accrue or accrete, as the case may be, on such Security.



     Section 2.8 Temporary Securities. Pending the preparation of definitive Securities, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as the Officers
executing such Securities may determine, as conclusively evidenced by their execution of such
Securities.



     If temporary Securities are issued, the Company will cause definitive Securities to be
prepared without unreasonable delay. After the preparation of definitive Securities, the temporary
Securities shall be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose pursuant to Section
2.3, without charge to the Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like Original Principal Amount of definitive Securities of authorized denominations.
Until so exchanged, the temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.



     Section 2.9 Cancellation. All Securities surrendered for payment, purchase by the Company
pursuant to Articles XII and XIII, conversion, redemption or registration of transfer or exchange
shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee, who shall
promptly cancel them. 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 all Securities so delivered shall be promptly canceled by the Trustee.
The Company may not issue new Securities to replace Securities it has



16









 







paid or delivered to the
Trustee for cancellation or that any Holder has converted pursuant to Article XI. No Securities
shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this
Section 2.9, except as expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of by the Trustee in accordance with its customary practice.



     Section 2.10 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 owner of such Security for the purpose of
receiving payment of principal of the Security or the payment of any Redemption Price, Purchase
Price or Change in Control Purchase Price in respect thereof, and interest thereon, for the purpose
of conversion 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 2.11 Global Securities.



     (a) Notwithstanding any other provisions of this Indenture or the Securities, transfers of a
Global Security, in whole or in part, shall be made only in accordance with Section 2.5 and this
Section 2.11. A Global Security may not be transferred, in whole or in part, to any Person other
than the Depositary or a nominee or any successor thereof, and no such transfer to any other such
Person may be registered; provided that this clause (a) shall not prohibit any transfer of a
Security that is issued in exchange for a Global Security but is not itself a Global Security. No
transfer of a Security to any Person shall be effective under this Indenture unless and until such
Security has been registered in the name of such Person.



     (b) Notwithstanding any other provisions of this Indenture or the Securities, a Global
Security shall not be exchanged in whole or in part for a Security registered in the name of any
Person other than the Depositary or one or more nominees thereof, provided that a Global Security
may be exchanged for Securities registered in the names of any Person designated by the Depositary
in the event that (i) the Depositary has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Security or such Depositary has ceased to be a “clearing
agency” registered under the Exchange Act, and a successor Depositary is not appointed by the
Company within 90 days, (ii) the Company decides to discontinue the use of the system of book-entry
transfer through the Depositary (or any successor Depositary) or (iii) an Event of Default has
occurred and is continuing with respect to the Securities. Any Global Security exchanged pursuant
to clause (i) above shall be so exchanged in whole and not in part, and any Global Security
exchanged pursuant to clause (iii) above may be exchanged in whole or from time to time in part as
directed by the Depositary. Any Security issued in exchange for a Global Security or any portion
thereof shall be a Global Security; provided that any such Security so issued that is registered in
the name of a Person other than the Depositary or a nominee thereof shall not be a Global Security.



     (c) Securities issued in exchange for a Global Security or any portion thereof (i) shall be
issued in definitive, fully registered form, without interest coupons, (ii) shall have an aggregate
Original Principal Amount equal to that of such Global Security or portion thereof for which such
Securities are to be so exchanged, (iii) shall be registered in such names and be in such



17









 







authorized denominations as the Depositary shall designate and (iv) shall bear the applicable
Legends provided for herein. Any Global Security to be exchanged in whole shall be surrendered by
the Depositary to the Registrar. With regard to any Global Security to be exchanged in part,
either such Global Security shall be so surrendered for exchange or, if the Registrar is acting as
custodian for the Depositary or its nominee with respect to such Global Security, the Original
Principal Amount thereof shall be reduced, by an amount equal to the portion thereof to be so
exchanged, by means of an appropriate adjustment made on the records of the Registrar. Upon any
such surrender or adjustment, the Registrar shall authenticate and deliver the Security issuable on
such exchange to or upon the order of the Depositary or an authorized representative thereof.



     (d) Subject to the provisions of Section 2.11(f) below, the registered Holder may grant
proxies and otherwise authorize any Person, including Agent Members (as defined below) and Persons
that may hold interests through Agent Members, to take any action which a Holder is entitled to
take under this Indenture or the Securities.



     (e) In the event of the occurrence of any of the events specified in Section 2.11(b) above,
the Company will promptly make available to the Trustee a reasonable supply of certificated
Securities in definitive, fully registered form, without interest coupons.



     (f) Neither any members of, or participants in, the Depositary (collectively, the “Agent
Members”) nor any other Persons on whose behalf Agent Members may act shall have any rights
under this Indenture with respect to any Global Security registered in the name of the Depositary
or any nominee thereof, or under any such Global Security, and the Depositary or such nominee, as
the case may be, may be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner and holder of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company or the Trustee or any agent
of the Company or the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or such nominee, as the case may be, or impair, as
between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may
act, the operation of customary practices of such Persons governing the exercise of the rights of a
holder of any Security.



     Section 2.12 Legends.



     (a) Subject to the succeeding paragraph, every Security shall be subject to the restrictions
on transfer provided in the Legend including the delivery of a certification or an Opinion of
Counsel, if so requested by the Company or the Registrar.



     (b) The restrictions imposed by the Legend upon the transferability of any Security shall
cease and terminate when such Security has been sold pursuant to an effective registration
statement under the Securities Act or transferred in compliance with Rule 144 under the Securities
Act (or any successor provision thereto) or, if earlier, upon the expiration of the holding period
applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor
provision). Any Security as to which such restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon a surrender of such Security for
exchange to the Registrar in accordance with the provisions of this Section 2.12 (accompanied,



18









 







in the event that such restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144 or any successor provision, by an opinion of counsel having substantial experience in
practice under the Securities Act and otherwise reasonably acceptable to the Company, addressed to
the Company and the Registrar and in form acceptable to the Company, to the effect that the
transfer of such Security has been made in compliance with Rule 144 or such successor provision),
be exchanged for a new Security of like tenor and aggregate Original Principal Amount, which
Security shall not bear the restrictive Legend. The Company shall inform the Trustee of the
effective date of any registration statement registering the Securities under the Securities Act.
The Trustee and the Registrar shall not be liable for any action taken or omitted to be taken by it
in good faith in accordance with the aforementioned opinion of counsel or registration statement.



     (c) As used in the preceding two paragraphs of this Section 2.12, the term “transfer”
encompasses any sale, pledge, transfer, hypothecation or other disposition of any Security.



     (d) United States Tax Legend. All Securities shall bear the following legend:




     FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE UNITED STATES INTERNAL REVENUE CODE
OF 1986, AS AMENDED, THIS SECURITY IS ISSUED WITH AN INDETERMINATE AMOUNT OF ORIGINAL ISSUE
DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. THE ISSUE DATE IS DECEMBER 9, 2005,
THE ISSUE PRICE IS $1,000 PER GLOBAL SECURITY, THE YIELD TO MATURITY IS INDETERMINATE, AND
ORIGINAL ISSUE DISCOUNT EFFECTIVELY ACCRUES AT A RATE OF THREE-MONTH LIBOR MINUS 1.46% PER
ANNUM.



     Section 2.13 Payment of Interest; Interest Rights Preserved. 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 at the office or agency of the
Company maintained for such purpose pursuant to Section 9.2; provided, however, that each
installment of interest on any Security may at the Company’s option be paid by mailing a check for
such interest, payable to or upon the written order of the Person entitled thereto pursuant to
Section 15.3, to the address of such Person as it appears on the Security Register.



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




     (1) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities (or 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 and the date of the
proposed payment, and at the same time the Company shall deposit with the



19









 






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 on or prior
to the date of the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Securities at such Holder’s
address as it appears in the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the Securities (or
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 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.



     On conversion of a Holder’s Securities, such Holder shall not receive any cash payment of
interest. The Company’s delivery to a Holder of the cash and Common Stock, if any, into which such
Holder’s Securities are convertible, together with any cash payment for fractional shares, shall be
deemed to satisfy: (i) the Company’s obligation to pay the Accreted Principal Amount of the
Security and (ii) the Company’s obligation to pay accrued but unpaid interest, if any, attributable
to the period from the most recent Interest Payment Date through the Conversion Date.



     Notwithstanding the above, if any Securities are converted after a Regular Record Date but
prior to the next succeeding Interest Payment Date, Holders of such Securities at the close of
business on such Regular Record Date shall receive the interest payable on such Securities on the
corresponding Interest Payment Date notwithstanding the conversion. Such Securities, upon
surrender for conversion, must be accompanied by funds equal to the amount of interest payable on
the Accreted Principal Amount of the Securities so converted (unless the Company has specified a
Redemption Date or a Change in Control Purchase Date that occurs after a Regular Record Date and on
or prior to the Interest Payment Date to which it relates), in which case no such payment shall be
required. Notwithstanding anything to the contrary, if the Company specifies a Redemption Date
that is in the month of December 2006, such payment also shall not be required upon the surrender
of the Securities for conversion after December 1, 2006 and prior to such Redemption Date.



20









 





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



ARTICLE III




SATISFACTION AND DISCHARGE




     Section 3.1 Discharge of Liability on Securities. When (i) the Company delivers to the
Trustee or any Paying Agent all outstanding Securities (other than Securities replaced pursuant to
Section 2.6 of the Indenture) for cancellation or (ii) all outstanding Securities have become due
and payable, whether at Stated Maturity, any Redemption Date, any Purchase Date, a Change in
Control Purchase Date, or upon conversion or otherwise, and the Company deposits with the Trustee,
any Paying Agent or the Conversion Agent, if applicable, cash or, if expressly permitted by the
terms of the Securities, a combination of cash and Common Stock sufficient to pay all amounts due
and owing on all outstanding Securities (other than Securities replaced pursuant to Section 2.6),
and if in either case the Company pays all other sums payable hereunder by the Company, then this
Indenture shall, subject to Section 5.6, cease to be of further effect, except for the
indemnification of the Trustee, which shall survive such satisfaction and discharge. The Trustee
shall join in the execution of a document prepared by the Company acknowledging satisfaction and
discharge of this Indenture on demand of the Company accompanied by an Officers’ Certificate and
Opinion of Counsel and at the reasonable cost and expense of the Company.



     Section 3.2 Repayment of Moneys Held by Trustee or Paying Agent. Any moneys deposited with
the Trustee or any Paying Agent for the payment of the principal of or interest on any Security and
not applied but remaining unclaimed by the Holders for two years after the date upon which the
principal of or interest on such Security shall have become due and payable, shall be repaid to the
Company by the Trustee or such Paying Agent on demand, and the Holder of any of the Securities
entitled to receive such payment shall thereafter look only to the Company for the payment thereof
and all liability of the Trustee or such Paying Agent with respect to such moneys shall thereupon
cease.



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ARTICLE IV




REMEDIES




     Section 4.1 Events of Default. “Event of Default,” wherever used herein with respect
to the Securities, shall mean any one of the following events:




     (a) a default in the payment of the Accreted Principal Amount, Redemption Price,
Purchase Price or Change in Control Purchase Price with respect to any Security when such
payment becomes due and payable pursuant to the terms hereof;




     (b) a default in the payment of any interest, if any, on the Securities, when the same
becomes due and payable, for a period of 30 days;




     (c) the failure by the Company to convert any Securities into cash and, if applicable,
shares of Common Stock in the amounts set forth in Section 11.2 hereof;




     (d) the failure by the Company to comply with any of its other agreements in the
Securities or this Indenture (other than those referred to in clauses (a), (b) or (c) above)
upon receipt by the Company of written notice of such default by the Trustee or by Holders
of not less than 25% in aggregate Original Principal Amount of the Securities at the time
outstanding and such failure (or failure to obtain a waiver thereof) continues for 90 days
after receipt by the Company of a Notice of Default;




     (e) the Company pursuant to, under or within the meaning of any Bankruptcy Law:




     (1) commences a voluntary case or proceeding;




     (2) consents to the entry of an order for relief against it in an involuntary
case or proceeding or the commencement of any case against it;




     (3) consents to the appointment of a Custodian of it or for any substantial
part of its property;




     (4) makes a general assignment for the benefit of its creditors;




     (5) files a petition in bankruptcy or answer or consent seeking reorganization
or relief; or




     (6) consents to the filing of such petition or the appointment of or taking
possession by a Custodian;




     and




     (f) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:



22









 






     (1) is for relief against the Company in an involuntary case or proceeding, or
adjudicates the Company insolvent or bankrupt;




     (2) appoints a Custodian of the Company or for any substantial part of the
property of the Company; or




     (3) orders the winding up or liquidation of the Company;




     and the order or decree remains unstayed and in effect for at least 60 days.



     A Default under clause (d) above is not an Event of Default until the Trustee notifies the
Company, or Holder notifies the Company and the Trustee, of the Default and the Company does not
cure such Default (and such Default is not waived) within the time specified in clause (d) above
after actual receipt of such notice. Any such notice must specify the Default, demand that it be
remedied and state that such notice is a “Notice of Default.”



     The Company shall deliver to the Trustee, within 30 days after it becomes aware of the
occurrence thereof, written notice of any event which with the giving of notice or the lapse of
time, or both, would become an Event of Default under clause (d) above, its status and what action
the Company is taking or proposes to take with respect thereto.



     Section 4.2 Acceleration of Maturity; Rescission and Annulment. If an Event of Default (other
than an Event of Default specified in Section 4.1(e) or (f)) occurs and is continuing, the Trustee,
by notice to the Company or the Holders of at least 25% in aggregate Original Principal Amount of
the Securities at the time outstanding by notice to the Company and the Trustee, may declare the
Accreted Principal Amount of the Securities as of the date of such declaration, and any accrued and
unpaid interest, if any, through the date of such declaration, on all the Securities to be
immediately due and payable. Upon such a declaration, such Accreted Principal Amount and such
accrued and unpaid interest, if any, shall be due and payable immediately. If an Event of Default
specified in Section 4.1(e) or (f) occurs and is continuing, the Accreted Principal Amount and any
accrued and unpaid interest, if any, on all the Securities through the date of the occurrence of
such Event of Default shall become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders.



     At any time after such a declaration of acceleration with respect to Securities has been made
and before a judgment or decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in aggregate Original Principal
Amount of the outstanding Securities, 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, if any, on all Securities,



23









 







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




     (C) to the extent that payment of such interest is enforceable under applicable
law, interest upon overdue interest to the date of such payment or deposit at the
rate or rates prescribed therefor in such Securities or, if no such rate or rates
are so prescribed, at the rate borne by the Securities during the period of such
default, 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




     (2) all Events of Default with respect to the Securities, other than the non-payment of
the principal of the Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 4.13.


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




     Section 4.3 Collection of Indebtedness and Suits for Enforcement by Trustee. The Company
covenants that (1) in case default shall be made in the payment of any installment of interest, if
any, on any Security, as and when the same shall become due and payable, and such default shall
have continued for a period of 30 days or (2) in case default shall be made in the payment of the
principal (including accreted principal, if any) of any Security when the same becomes due in
accordance with the terms thereof and such default shall have continued for a period of five
Business Days then, upon demand of the Trustee, the Company will pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount that then shall have become due and
payable on all such Securities for principal (including accreted principal, if any) or interest, if
any, or both, as the case may be, with interest upon the overdue principal (including accreted
principal, if any) and (to the extent that payment of such interest is enforceable under applicable
law) upon overdue installments of interest at the rate borne by the Securities during the period of
such default; and, in addition thereto, such further amount as shall be sufficient to cover
reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Trustee except as a result of its own
negligence or willful misconduct.



     If an Event of Default with respect to Securities occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the Holders of the
Securities by such appropriate judicial proceedings as the Trustee shall deem necessary 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.



24









 





     Section 4.4 Trustee May File Proofs of Claim. In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Securities or the
property of the Company or of such other obligor or their creditors, the Trustee (irrespective of
whether the Accreted Principal Amount, Redemption Price, Purchase Price, Change in Control Purchase
Price or interest, if any, in respect of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the
Company for the payment of any such amount) shall be entitled and empowered, by intervention
in such proceeding or otherwise,




     (i) to file and prove a claim for the entire Accreted Principal Amount, Redemption
Price, Purchase Price, Change in Control Purchase Price and/or interest, if any, owing and
unpaid in respect of the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding; and




     (ii) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 5.6.




     Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the 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.



     Section 4.5 Trustee May Enforce Claims Without Possession of Securities. All rights of action
and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.



     Section 4.6 Application of Money Collected. Any money collected by the Trustee pursuant to
this Article shall be applied in the following order:




     FIRST: To the payment of all amounts due the Trustee under Section 5.6;



25









 






     SECOND: To the payment of the amounts then due and unpaid for Accreted Principal
Amount, Redemption Price, Purchase Price, Change in Control Purchase Price or interest, if
any, 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; and




     THIRD: To the payment of the remainder, if any, to the Company or as a court of
competent jurisdiction may direct.



     Section 4.7 Limitation on Suits. No Holder of any Security 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 shall have previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities;




     (2) the Holders of not less than 25% in aggregate Original Principal Amount of the
outstanding Securities 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 shall have offered to the Trustee security or indemnity
satisfactory to it as it may require 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 shall have failed to institute any such proceeding; and




     (5) no direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 4.12 during such 60-day period by the Holders of a majority in
Original Principal Amount of the outstanding Securities;


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 and common benefit of all of such Holders.




     Section 4.8 Unconditional Right of Holders to Receive Principal 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 Accreted Principal Amount, Redemption Price,
Purchase Price, Change in Control Purchase Price or interest, if any, on such Security after the
respective due dates expressed in such Security, and to convert the Securities in accordance with
Article XI, and to institute suit for the enforcement of any such payment on or after such
respective dates, and such rights shall not be impaired without the consent of such Holder.



26









 





     Section 4.9 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 4.10 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 2.6, 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 4.11 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 4.12 Control by Holders. The Holders of a majority in aggregate Original Principal
Amount of the outstanding Securities 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; provided, however, that




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




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




     (3) such direction is not unduly prejudicial to the rights of Holders not taking part
in such direction; and




     (4) such direction would not subject the Trustee to personal liability, as the Trustee,
upon being advised by counsel, shall reasonably determine.



     Section 4.13 Waiver of Past Defaults. The Holders of at least a majority in aggregate Original Principal Amount of the
outstanding Securities may on behalf of the Holders of all the Securities by notice to the Trustee
waive any past default hereunder with respect to such Securities and its consequences, except a
Default:




     (1) which is an Event of Default described in Section 4.1(a), (b) or (c); or



27









 






     (2) in respect of a covenant or provision hereof which under Article VIII cannot be
modified or amended without the consent of the Holder of each outstanding Security.



     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, and the Company,
the Trustee and Holders shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other Default or impair any
right consequent thereon.



     Section 4.14 Undertaking for Costs. All parties to this Indenture agree, and each Holder of
any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; but the provisions of this Section 4.14
shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in
Original Principal Amount of the outstanding Securities, or to any suit instituted by any Holder
pursuant to Section 4.8. This Section 4.14 shall be in lieu of Section 315(e) of the TIA and such
Section 315(e) is hereby expressly excluded from this Indenture, as permitted by the TIA.



     Section 4.15 Waiver of Stay or Extension Laws. The Company covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, plead or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which would prohibit or forgive the Company from paying all or any
portion of the Accreted Principal Amount, Redemption Price, Purchase Price or Change in Control
Purchase Price or interest, if any, in respect of Securities, as contemplated herein, or which may
affect the covenants or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no such law had been
enacted.



ARTICLE V




THE TRUSTEE




     Section 5.1 Duties of Trustee. (a) If an Event of Default has occurred and is continuing,
the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same
degree of care and skill in its exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person’s own affairs.



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     (b) Except during the continuance of an Event of Default:




     (1) the Trustee need perform only those duties that are specifically set forth in this
Indenture and no others; and




     (2) 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. However, in case of any such certificates or opinions which by provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the requirements of
this Indenture (but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).



     This Section 5.1(b) shall be in lieu of Section 315(a) of the TIA and such Section 315(a) is
hereby expressly excluded from this Indenture, as permitted by the TIA.



     (c) The Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:




     (1) this paragraph (c) does not limit the effect of paragraph (b) of this Section 5.1;




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




     (3) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 4.12.



     Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections 315(d)(1), 315(d)(2) and
315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2) and 315(d)(3) are hereby expressly
excluded from this Indenture, as permitted by the TIA.



     (d) Every provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), (c) and (e) of this Section 5.1.



     (e) The Trustee may refuse to perform any duty or exercise any right or power or extend or
risk its own funds or otherwise incur any financial liability unless it receives indemnity
satisfactory to it against any loss, liability and expense.



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



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     Section 5.2 Rights of Trustee. The following are rights of the Trustee, subject to the
Trustee’s duties and responsibilities under the TIA:



     (a) the Trustee may conclusively rely on any document believed by it to be genuine and to have
been signed or presented by the proper Person. The Trustee need not investigate any fact or matter
stated in the document;



     (b) before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such Officers’ Certificate or Opinion of Counsel;



     (c) the Trustee may act through agents and attorneys and shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due care;



     (d) subject to the provisions of Section 5.1(c), the Trustee shall not be liable for any
action it takes or omits to take in good faith which it believes to be authorized or within its
rights or powers;



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



     (f) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the Holders, pursuant to the
provisions of this Indenture, unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred
therein or thereby;



     (g) 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 at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation;



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



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



30









 





     (j) 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 to each agent, custodian and
other Person employed to act hereunder;



     (k) the Trustee may request that the Company deliver an Officers’ 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 Officers’ Certificate may be signed by any Person
authorized to sign an Officers’ Certificate, including any Person specified as so authorized in any
such certificate previously delivered and not superseded; and



     (l) the right of the Trustee to perform any discretionary act enumerated in this Indenture
shall not be construed as a duty, and the Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance of such act.



     Section 5.3 Individual Rights of Trustee. The Trustee in its individual or any other capacity
may become the owner or pledgee of Securities and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar,
Conversion Agent or co-registrar may do the same with like rights. However, the Trustee must
comply with Sections 5.9 and 5.10.



     Section 5.4 Trustee’s Disclaimer. The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be accountable for the Company’s use or
application of the proceeds from the Securities, it shall not be responsible for any statement in
the registration statement for the Securities under the Securities Act or in the Indenture or the
Securities (other than its certificate of authentication), or the determination as to which
beneficial owners are entitled to receive any notices hereunder.



     Section 5.5 Notice of Defaults. If a Default occurs and if it is known to the Trustee, the
Trustee shall give to each Holder notice of the Default within 90 days after it occurs unless such
Default shall have been cured or waived before the giving of such notice. Except in the case of a
Default described in
Section 4.1(a), (b) or (c), the Trustee may withhold the notice if and so long as a committee
of its Responsible Officers in good faith determines that withholding the notice is in the
interests of Holders. The second sentence of this Section 5.5 shall be in lieu of the proviso to
Section 315(b) of the TIA and such proviso is hereby expressly excluded from this Indenture, as
permitted by the TIA.



     Section 5.6 Compensation and Indemnity. The Company agrees:



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



     (b) 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, advances and disbursements of its



31









 







agents
and counsel), except any such expense, disbursement or advance as shall be determined to have been
caused by its own negligence or willful misconduct; and



     (c) to fully indemnify the Trustee, its officers, employees and/or any predecessor trustee and
their agents for, and to hold them harmless against, any loss, damage, claim, liability, cost or
expense (including reasonable attorney’s fees and expenses and taxes (other than taxes based upon,
measured by or determined by the income of the Trustee)) incurred without negligence or willful
misconduct on its part, arising out of or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending itself against any claim (whether
asserted by the Company, any Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder.



     To secure the Company’s payment obligations in this Section 5.6, the Trustee shall have a lien
prior to the Securities on all money or property held or collected by the Trustee, except that held
in trust to pay the Accreted Principal Amount, Redemption Price, Purchase Price, Change in Control
Purchase Price or interest, if any, as the case may be, on particular Securities.



     The Company’s payment obligations pursuant to this Section 5.6 shall survive the discharge of
this Indenture and resignation or removal of the Trustee. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 4.1(f) or (g), the expenses, including the
reasonable fees and expenses of its counsel, are intended to constitute expenses of administration
under any Bankruptcy Law.



     Section 5.7 Replacement of Trustee. The Trustee may resign by so notifying the Company;
provided, however, no such resignation shall be effective until a successor Trustee has accepted
its appointment pursuant to this Section 5.7. The Holders of a majority in aggregate Original
Principal Amount of the Securities at the time outstanding may remove the Trustee by so notifying
the Trustee and the Company. The Company shall remove the Trustee if:



     (a) the Trustee fails to comply with Section 5.9;



     (b) the Trustee is adjudged bankrupt or insolvent;



     (c) a receiver or public officer takes charge of the Trustee or its property; or



     (d) the Trustee otherwise becomes incapable of acting.



     If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company shall promptly appoint, by resolution of its Board of Directors, a successor
Trustee.



     A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company satisfactory in form and substance to the retiring Trustee and the
Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to the Holders. The
retiring Trustee shall upon payment of its charges by the Company hereunder promptly transfer



32









 







all
property held by it as Trustee to the successor Trustee, subject to the lien provided for in
Section 5.6.



     If a successor Trustee does not take office within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee (at the expense of the Company), the Company or the Holders of
a majority in aggregate Original Principal Amount of the Securities at the time outstanding may
petition at the expense of the Company any court of competent jurisdiction for the appointment of a
successor Trustee.



     If the Trustee fails to comply with Section 5.9, any Holder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.



     Section 5.8 Successor Trustee by Merger. If the Trustee consolidates with, merges or converts
into, or transfers all or substantially all its corporate trust business or assets to another
corporation, the resulting, surviving or transferee corporation without any further act shall be
the successor Trustee.



     Section 5.9 Eligibility; Disqualification. The Trustee shall at all times satisfy the
requirements of TIA Sections 310(a)(1) and 310(b). The Trustee shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published annual report of
condition. Nothing herein contained shall prevent the Trustee from filing with the Commission the
application referred to in the penultimate paragraph of TIA Section 310(b).



     Section 5.10 Preferential Collection of Claims Against Company . The Trustee shall comply with TIA Section 311(a), excluding any creditor relationship
listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.



     Section 5.11 Appointment of Authenticating Agent. In connection with the issuance of the
Securities and at any time when any of the Securities remain outstanding the Trustee, with the
concurrence of the Company, may appoint an authenticating agent or agents (each, an
“Authenticating Agent”) which shall be authorized to act on behalf of the Trustee to
authenticate such Securities, 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. Whenever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or to the 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 bank or
trust company 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, State or District of Columbia 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
5.11, 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



33









 







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 5.11.



     Any bank or trust company into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any bank or trust company resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party, or any bank or
trust company succeeding to the corporate agency or corporate trust business of an Authenticating
Agent, shall continue to be an Authenticating Agent, provided such bank or trust company shall be
otherwise eligible under this Section 5.11, 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 5.11, the
Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and
shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders
of Securities of the series with respect to which such Authenticating Agent will serve, as their
names and addresses appear in the Security Register. Any successor Authenticating Agent, upon
acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect
as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 5.11.



     The Company agrees to pay to each Authenticating Agent from time to time, reasonable
compensation for its services under this Section 5.11.



     The Company and the Trustee hereby agree to the appointment of U.S. Bank Trust National
Association, and U.S. Bank Trust National Association agrees to be appointed, as Authenticating
Agent.



ARTICLE VI




HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY




     Section 6.1 Company to Furnish Trustee Information as to Names and Addresses of Holders. The
Company covenants and agrees that it will furnish or cause to be furnished to the Trustee:



     (a) Semi-annually, not later than June 1 and December 1 in each year, commencing June 1, 2006,
a list, in such form as the Trustee may reasonably require, of the names and addresses of the
Holders as of a date not more than 15 days prior to the time such list is furnished and



34









 





     (b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;


provided, however, that if the Trustee becomes the Registrar, no such list shall be required to be
furnished.




     Section 6.2 Preservation of Information; Communications to Holders. (a) The Trustee shall
preserve, in as current a form as is reasonably practicable, all information as to the names and
addresses of the Holders of Securities contained in the most recent list furnished to it as
provided in Section 6.1.



     The Trustee may destroy any list furnished to it as provided in Section 6.1 upon receipt of a
new list so furnished.



     (b) In case three or more Holders of Securities (hereinafter called “applicants”)
apply in writing to the Trustee, and furnish to the Trustee reasonable proof that each such
applicant has owned a Security of such series for a period of at least six months preceding the
date of such application, and such application states that the applicants desire to communicate
with other Holders of Securities with respect to their rights under this Indenture or under the
Securities, and is accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business Days after the receipt
of such application, at its election, either




     (1) afford such applicants access to the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this Section 6.2, or




     (2) inform such applicants as to the approximate number of Holders of Securities of
such series or of all series, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 6.2, and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, if any, specified in such application.



     If the Trustee shall elect not to afford such applicants access to such information, the
Trustee shall, upon the written request of such applicants, mail to each Holder of Securities whose
name and address appear in the information preserved at the time by the Trustee in accordance with
the provisions of subsection (a) of this Section 6.2, a copy of the form of proxy or other
communication which is specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary
to the best interests of the Holders of Securities, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after



35









 







notice and opportunity
for hearing, that all the objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender; otherwise the Trustee
shall be relieved of any obligation or duty to such applicants respecting their application.



     (c) Each and every Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee or any Registrar, any Paying Agent
or any Conversion Agent shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with the provisions of
subsection (b) of this Section 6.2, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under said subsection (b).



     Section 6.3 Reports by Trustee. Within 60 days after each May 5 beginning with May 15, 2006,
the Trustee shall mail to each Holder and the Company a brief report dated as of such May 15 that
complies with TIA Section 313(a), if required by such Section 313(a). The Trustee also shall
comply with TIA Section 313(b).



     A copy of each report at the time of its mailing to Holders shall be filed by the Company with
the Commission and each securities exchange, if any, on which the Securities are then
listed. The Company agrees to promptly notify the Trustee whenever the Securities become
listed on any securities exchange and of any delisting thereof.



     Section 6.4 Reports by Company. The Company shall file with the Trustee, within 15 days after
it files such annual and quarterly reports, information, documents and other reports with the
Commission, copies of its annual report and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may by rules and regulations
prescribe) which the Company is required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act. In the event the Company is at any time no longer subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, it shall continue to provide the
Trustee with reports containing substantially the same information as would have been required to
be filed with the Commission had the Company continued to have been subject to such reporting
requirements. In such event, such reports shall be provided at the times the Company would have
been required to provide reports had it continued to have been subject to such reporting
requirements. The Company also shall comply with the other provisions of TIA Section 314(a).



     Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers’ Certificates).



     If at any time while any of the Securities are “restricted securities” within the meaning of
Rule 144, the Company is no longer subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act, the Company will prepare and will furnish to any Holder, any beneficial



36









 







owner of
Securities and any prospective purchaser of Securities designated by a Holder or a beneficial owner
of Securities, promptly upon request, the information required pursuant to Rule 144A(d)(4) (or any
successor thereto) under the Securities Act in connection with the offer, sale or transfer of
Securities.



ARTICLE VII




CONSOLIDATION, MERGER, SALE OR CONVEYANCE




     Section 7.1 Consolidations and Mergers of Company Permitted Subject to Certain Conditions.
The Company shall not consolidate with or merge into any other Person or convey, transfer or lease
all or substantially all of its properties and assets to any Person, unless:



     (a) either (1) the Company shall be the continuing corporation or (2) the Person (if other
than the Company) formed by such consolidation or into which the Company is merged or the Person
that acquires by conveyance, transfer or lease all or substantially all of the properties and
assets of the Company (i) shall be duly incorporated and validly existing under the laws of the
United States or any State thereof or the District of Columbia and (ii) shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, all of the obligations of the Company under the Securities and this
Indenture;



     (b) immediately after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing;



     (c) if, as a result of such transaction, the Securities become convertible into Common Stock
or other securities issued by a third party, such third party fully and unconditionally guarantees
all obligations of the Company or such successor under the Securities, this Indenture and the
Registration Rights Agreement ;and



     (d) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction, such supplemental
indenture, comply with this Article VII and that all conditions precedent herein provided for
relating to such transaction have been satisfied.



     For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise) of the
properties and assets of one or more Subsidiaries (other than to the Company or another
Subsidiary), which, if such assets were owned by the Company, would constitute all or substantially
all of the properties and assets of the Company, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.



     The successor Person formed by such consolidation or into which the Company is merged or the
successor Person 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 had been named as the Company herein; and thereafter, except
in the case of a lease and obligations the Company may have under



37









 







a supplemental indenture pursuant
to Section 11.11, the Company shall be discharged from all obligations and covenants under this
Indenture and the Securities. Subject to Section 8.3, the Company, the Trustee and the successor
Person shall enter into a supplemental indenture to evidence the succession and substitution of
such successor Person and such discharge and release of the Company.



     Section 7.2 Rights and Duties of Successor Corporation. Upon any consolidation of the Company
with, or merger of the Company into, any other Person or any conveyance, transfer or lease of all
or substantially all of the properties and assets of the Company in accordance with Section 7.1,
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 VIII




SUPPLEMENTAL INDENTURES




     Section 8.1 Supplemental Indentures Without Consent of Holders. The Company, when authorized
by a Board Resolution, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the provisions of the TIA as in
force at the date of the execution thereof) for one or more of the following purposes:




     (1) to evidence the succession of another corporation to the Company, or successive
successions, and the assumption by the successor corporation of the covenants, agreements
and obligations of the Company under this Indenture;




     (2) to add to the covenants of the Company or to add additional rights for the benefit
of the Holders of Securities or to surrender any right or power herein conferred upon the
Company;




     (3) to cure any ambiguity, omission, defect or inconsistency herein, to correct or
supplement any provision herein or in any supplemental indenture that may be defective or
inconsistent with any other provision herein or in any supplemental indenture, or to make
such other provisions with respect to matters or questions arising under this Indenture;
provided such action shall not adversely affect the interests of the Holders of Securities
in any material respect;




     (4) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities 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 trust
hereunder;




38









 







     (5) to add any additional Events of Default for the benefit of the Holders of
Securities;




     (6) 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 definitive form,
registrable or not registrable as to principal, and to provide for exchangeability of such
Securities with Securities issued hereunder in fully registered form;




     (7) to secure the Securities; and




     (8) to comply with any requirement of the Commission in connection with the
qualification of this Indenture under the TIA.



     Any amendment described in clause (3) above made solely to conform this Indenture to the final
offering memorandum provided to investors in connection with the initial offering of the Securities
by the Company will not be deemed to adversely affect the interests of Holders of Securities in any
respect.



     The Trustee is hereby authorized to join with the Company in the execution of any such
supplemental indenture, to make any further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder.



     Any supplemental indenture authorized by the provisions of this Section 8.1 may be executed by
the Company and the Trustee without the consent of the Holders of any of the outstanding
Securities, notwithstanding any of the provisions of Section 8.2.



     Section 8.2 Supplemental Indentures with Consent of Holders. With the consent of the Holders
of at least a majority in Original Principal Amount of the outstanding Securities, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the TIA as in force at the
date of execution thereof) for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of Securities; provided, however, that no such
supplemental indenture shall




     (1) change, in an adverse manner, the rights of the Holders of the Securities to
convert the Securities;




     (2) change, in an adverse manner, the rights of the Holders of the Securities to
require the Company to repurchase their Securities on specific dates pursuant to Article XII
or upon a Change in Control pursuant to Article XIII;




     (3) change the maturity of any payment of principal of, or any installment of interest,
if any, on the Securities, or reduce the Original Principal Amount or the Accreted Principal Amount thereof or alter the manner or rate of accretion of principal
or the manner or rate of accrual of interest, if any, or any premium thereon, or change the



39









 






place of payment where, or the coin or currency in which the Securities or any premium or
interest, if any, thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Maturity thereof (or, in the case of
redemption or purchase, on or after the Redemption Date or the Purchase Date or a Change in
Control Purchase Date, as the case may be);




     (4) reduce the percentage in aggregate Original Principal Amount of the outstanding
Securities, the consent of whose Holders is required for any such modification, or the
consent of whose Holders is required for any waiver of compliance with the provisions of
this Indenture or for any waiver of an Event of Default; or




     (5) modify this Section 8.2, except to increase any percentages required for approval
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.



     Upon the request of the Company accompanied by a copy of a Board Resolution authorizing the
execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Holders as aforesaid, the Trustee shall join with the Company in the execution of
such supplemental indenture. 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 8.3 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 provided with, and (subject
to Section 5.1) shall be fully protected in relying upon, an Officers’ Certificate and an Opinion
of Counsel stating that the execution of such supplemental indenture is authorized or permitted by
this Indenture. 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 8.4 Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article, this Indenture shall be and be deemed to be
modified and amended in accordance therewith, and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the Company and the Holders
shall thereafter be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture for any and all
purposes.



     Section 8.5 Reference in Securities to Supplemental Indentures. Securities 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 so modified as to conform, in the opinion of the Trustee and the



40









 




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.




ARTICLE IX



COVENANTS OF THE COMPANY




     Section 9.1 Payment of Principal, Premium and Interest. The Company covenants and agrees that
it will duly and punctually pay or cause to be paid all payments in respect of the Securities in
accordance with the terms of the Securities and this Indenture. Any amounts to be given to the
Trustee or Paying Agent shall be deposited with the Trustee or Paying Agent by 12:00 P.M., New York
City time by the Company at the latest on the day such payment is due. Accreted Principal Amount,
Redemption Price, Purchase Price, Change in Control Purchase Price and interest, if any, shall be
considered paid on the applicable date due if on such date (or, in the case of a Purchase Price or
Change in Control Purchase Price, on the Business Day following the applicable Purchase Date or
Change in Control Purchase Date, as the case may be) the Trustee or the Paying Agent holds, in
accordance with this Indenture, money or securities, if permitted hereunder, sufficient to pay all
such amounts then due. The Company further covenants to pay any and all amounts, including,
without limitation, Liquidated Damages, as may be required pursuant to the Registration Rights
Agreement.



     Section 9.2 Maintenance of Office or Agency. The Company shall maintain an office or agency
of the Trustee, where notices and demands to or upon the Company in respect of the Securities and
this Indenture may be served. The office of the Trustee at its Corporate Trust Office shall
initially be such office or agency for said purpose. The Company shall maintain an office or
agency of the Registrar, Paying Agent and Conversion Agent where the Securities may be presented or
surrendered for payment, where the Securities may be surrendered for registration of transfer or
exchange and where the Securities may be surrendered for purchase, redemption or conversion. The
office of U.S. Bank Trust National Association at the Registrar, Paying Agent and Conversion Agent
Office shall initially be such office or agency for all of the aforesaid purposes. The Company
will give prompt written notice to the Trustee of the location, and any change in the location, of
such offices or agency. If at any time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.



     The Company may also from time to time designate one or more other offices or agencies where
the Securities 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 the Borough of
Manhattan, The City of New York for such purposes.



     Section 9.3 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 the Securities, it will, on or before each due date of the Accreted Principal Amount, Redemption Price, Purchase Price, Change in



41









 




Control Purchase Price and interest, if any, on any of the Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay such sums so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein provided. The Company
will promptly notify the Trustee of any failure by the Company to take such action or failure so to
act.




     Whenever the Company shall have one or more Paying Agents for the Securities, it will, on or
prior to each due date of the Accreted Principal Amount, Redemption Price, Purchase Price, Change
in Control Purchase Price and interest, if any, on any Securities, deposit with a Paying Agent a
sum sufficient to pay such amounts so becoming due, such sum to be held in trust for the benefit of
the Persons entitled to such amounts, and the Company will promptly notify the Trustee of its
action or failure so to act.



     The Company will cause each Paying Agent, other than the Trustee (should the Trustee ever
become a Paying Agent), 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 9.3, that such Paying
Agent will:




     (1) hold all sums held by it for the payment of the Accreted Principal Amount,
Redemption Price, Purchase Price, Change in Control Purchase Price and interest, if any, on
the Securities (whether such sums have been paid to it by the Company or by any other
obligor on the Securities) in trust for the benefit of the Persons entitled thereto;




     (2) give the Trustee notice of any failure by the Company (or any other obligor upon
the Securities) to make any payment of the Accreted Principal Amount, Redemption Price,
Purchase Price, Change in Control Purchase Price and interest, if any, on the Securities
when the same shall be due and payable; and




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



     Anything in this Section to the contrary notwithstanding, the Company may, at any time, for
the purpose of obtaining satisfaction and discharge of this Indenture, or for any other reason,
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.



     Section 9.4 Compliance Certificate. The Company will deliver to the Trustee, on or before a
date not more than 120 days after the end of each fiscal year beginning in the fiscal year 2006, an
Officers’ Certificate, one of the signers of which shall be the principal financial, principal
accounting or principal executive officer of the Company, stating, as to each officer signing such
certificate, whether or not to the best of his knowledge the Company is in default in the
performance and observance of any of the terms, provisions and conditions hereof (without
regard to any period of grace or requirement of notice provided hereunder), and, if the
Company



42









 




shall be in default, specifying all such defaults and the nature thereof of which he may
have knowledge.




     Section 9.5 Calculation of Certain Amounts. The Company shall file with the Trustee, within
30 days following the end of each calendar year, a written notice specifying (a) the amount of Tax
Original Issue Discount (including the daily rates and accrual periods) accrued on outstanding
Securities as of the end of such year and (b) such other specific information relating to such Tax
Original Issue Discount as may then be relevant under the Internal Revenue Code of 1986, as amended
from time to time.



     Section 9.6 Further Instruments and Acts. The Company will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper or as the Trustee may
request to carry out more effectively the purposes of this Indenture.



ARTICLE X



REDEMPTION OF SECURITIES




     Section 10.1 Right to Redeem; Notices to Trustee. The Company, at its option, may redeem the
Securities at any time on or after December 11, 2006. If the Company elects to redeem Securities
pursuant to the applicable provisions of the Securities, it shall notify the Trustee in writing of
the Redemption Date, the Accreted Principal Amount of Securities to be redeemed, the Redemption
Price, the percentage of the Daily Share Amount that will be settled in cash, if any, and the
Conversion Value.



     The Company shall give the notice to the Trustee provided for in this Section 10.1 by a
Company Order, at least 30 days before the Redemption Date.



     Section 10.2 Selection of Securities to Be Redeemed. If less than all the Securities are to
be redeemed, the Registrar shall select the Securities to be redeemed pro rata or by lot or by any
other method the Registrar considers fair and appropriate (so long as such method is not prohibited
by the rules of any stock exchange on which the Securities are then listed). The Registrar shall
make the selection at least 15 days but not more than 60 days before the Redemption Date from
outstanding Securities not previously called for redemption. The Registrar may select for
redemption portions of the Original Principal Amount of Securities that have denominations larger
than $1,000. Securities and portions of Securities the Registrar selects shall be in Original
Principal Amounts of $1,000 or an integral multiple of $1,000. Provisions of this Indenture that
apply to Securities called for redemption also apply to portions of Securities called for
redemption. The Registrar shall notify the Company promptly of the Securities or portions of
Securities to be redeemed.



     If any Security selected for partial redemption is converted in part before termination of the
conversion right with respect to the portion of the Security so selected, the converted portion of
such Security shall be deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted during a selection of Securities to be redeemed may be treated
by the Registrar as outstanding for the purpose of such selection.



43









 





     Section 10.3 Notice of Redemption. At least 30 days but not more than 60 days before a
Redemption Date, the Company shall mail a notice of redemption by first-class mail, postage
prepaid, to each Holder of Securities to be redeemed.



     The notice shall identify the Securities to be redeemed and shall at a minimum state:



     (a) the Redemption Date;



     (b) the Redemption Price, or if then not ascertainable, the manner of calculation thereof, and
accrued and unpaid interest, if any, payable on the Redemption Date;



     (c) the percentage of the Daily Share Amount that will be settled in cash, if any;



     (d) the dates and manner in which the Conversion Value shall be calculated;



     (e) the name and address of the Paying Agent and Conversion Agent;



     (f) that Securities called for redemption may be converted at any time before 5:00 P.M., New
York City time, on the Business Day immediately preceding the Redemption Date;



     (g) that Holders who want to convert Securities must satisfy the requirements set forth in the
applicable provisions of the Securities;



     (h) that Securities called for redemption must be surrendered to the Paying Agent to collect
the Redemption Price;



     (i) if fewer than all the outstanding Securities are to be redeemed, the certificate number
and original principal amounts of the particular Securities to be redeemed;



     (j) that, unless the Company defaults in making payment of such Redemption Price, principal on
the Securities called for redemption will cease to accrete and interest, if any, will cease to
accrue on and after the Redemption Date; and



     (k) the CUSIP number of the Securities.



     At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at the Company’s expense, provided that the Company makes such request at least three
Business Days prior to such notice of redemption.



     Section 10.4 Effect of Notice of Redemption. Once notice of redemption is given, Securities
called for redemption become due and payable on the Redemption Date and at the Redemption Price
stated in the notice except for Securities which are converted in accordance with the terms of this
Indenture. Upon surrender to the Paying Agent, such Securities shall be paid at the Redemption
Price stated in the notice.



     Section 10.5 Deposit of Redemption Price. Prior to 12:00 P.M., New York City time on the
Redemption Date, the Company shall deposit with the Paying Agent (or if the Company or a Subsidiary
or an Affiliate of either of them is the Paying Agent, shall segregate and hold in



44









 







trust) money sufficient to pay the Redemption Price, together with interest, if any, accrued
and unpaid to the Redemption Date, of all Securities to be redeemed on that date other than
Securities or portions of Securities called for redemption which on or prior thereto have been
delivered by the Company to the Trustee for cancellation or have been converted.



     Section 10.6 Securities Redeemed in Part. Upon surrender of a Security that is redeemed in
part, the Company shall execute and the Trustee shall authenticate and deliver to the Holder a new
Security in an authorized denomination equal in Original Principal Amount to the unredeemed portion
of the Security surrendered.



ARTICLE XI



CONVERSION




     Section 11.1 Conversion Rights. The Securities shall be convertible at any time on or prior
to December 11, 2035 in accordance with their terms and in accordance with and subject to this
Article XI into cash and a number of shares, if any, of Common Stock per $1,000 Original Principal
Amount of Securities surrendered for conversion, subject to the right of the Company to deliver
cash in lieu of all or a portion of such shares of Common Stock, together with any payment for
fractional shares, as described below.



     In respect of each $1,000 Original Principal Amount of Securities surrendered for conversion,
the Company will deliver (1) cash in an amount equal to the lesser of (i) the Accreted Principal
Amount of such Security as of the Conversion Date and (ii) the Conversion Value and (2) if the
Conversion Value is greater than the Accreted Principal Amount of such Security as of the
Conversion Date, a number of shares of Common Stock equal to the sum of the Daily Share Amounts for
each of the ten consecutive Trading Days in the applicable Conversion Reference Period, subject to
the right of the Company to deliver cash in lieu of all or a portion of such shares of Common Stock
pursuant to Section 11.2.



     Section 11.2 Cash Settlement. On any day prior to the first Trading Day of the applicable
Conversion Reference Period, the Company may specify a percentage of the Daily Share Amount that
will be settled in cash (the “Cash Percentage”) by delivering a written notice to the
Conversion Agent setting forth such percentage. If the Company elects to specify a Cash
Percentage, the amount of cash that it will deliver in respect of each Trading Day in the
applicable Conversion Reference Period will equal the product of (i) the Cash Percentage, (ii) the
Daily Share Amount for such Trading Day and (iii) the Closing Sale Price of the Common Stock for
such Trading Day. The number of shares of Common Stock deliverable in respect of each Trading Day
in the applicable Conversion Reference Period will be a percentage of the Daily Share Amount equal
to 100% minus the Cash Percentage. If the Company does not specify a Cash Percentage by the start
of the applicable Conversion Reference Period, the Company must settle 100% of the Daily Share
Amount for each Trading Day in the applicable Conversion Reference Period with shares of Common
Stock; provided, however, that the Company will pay cash in lieu of fractional shares otherwise
issuable upon conversion of such Security.



45









 





     Section 11.3 Conversion Procedures. To convert a Security, a Holder must (a) complete and
manually sign the notice on the back of the Security which states that such Holder wishes to
convert a Security (the “Conversion Notice”) or a facsimile of the Conversion Notice and
deliver such notice to a Conversion Agent, (b) surrender the Security to a Conversion Agent, (c)
furnish appropriate endorsements and transfer documents if required by the Registrar or a
Conversion Agent and (d) pay any transfer or similar tax, if required. The date on which such
Holder satisfies the foregoing requirements is the “Conversion Date.”



     As soon as practicable following the end of the applicable Conversion Reference Period, the
Company shall deliver to the Holder, through the Conversion Agent, the amount of cash due to a
Holder upon conversion, together with a certificate for the number of shares of Common Stock, if
any, then due and any cash payment for fractional shares pursuant to Section 11.4. Anything herein
to the contrary notwithstanding, in the case of Global Securities, Conversion Notices may be
delivered and such Securities may be surrendered for conversion in accordance with the applicable
procedures of the Depositary as in effect from time to time. The Person in whose name the Common
Stock certificate, if any, is registered shall be deemed to be a shareholder of record at the close
of business on the date on which the applicable Conversion Value is determined with respect to the
applicable Conversion Reference Period; provided, however, that no surrender of a Security on any
date when the stock transfer books of the Company are closed shall be effective to constitute the
Person or Persons entitled to receive the shares of Common Stock, if any, upon such conversion as
the record holder or holders of such shares of Common Stock on such date.



     No payment or adjustment shall be made for dividends on, or other distributions with respect
to, any Common Stock except as provided in this Article. On conversion of a Security prior to
December 10, 2030, except as provided below in the case of certain Securities or portions thereof
called for redemption, that portion of accrued and unpaid interest, if any, on the converted
Security attributable to the period from the most recent Interest Payment Date (or, if no Interest
Payment Date has occurred, from the Issue Date) through the Conversion Date shall not be canceled,
extinguished or forfeited, but rather shall be deemed to be paid in full to the Holder thereof
through the delivery of cash and Common Stock, if any, (together with the cash payment, if any, in
lieu of fractional shares), in exchange for the Security being converted pursuant to the provisions
hereof, and cash, together with the fair market value of such shares of Common Stock, if any,
(together with any such cash payment in lieu of fractional shares), shall be treated as issued, to
the extent thereof, first in exchange for accrued and unpaid interest, if any, accrued through the
Conversion Date and the balance, if any, of such cash payment, together with the fair market value
of such Common Stock, if any, shall be treated as issued in exchange for the Original Principal
Amount of the Security being converted pursuant to the provisions hereof.



     On conversion of a Security on or after December 11, 2030, the accretion of the principal
amount attributable to the period from and including December 10, 2030, through the Conversion
Date, including (except as provided below) accrued interest, if any, with respect to the converted
Security shall not be canceled, extinguished or forfeited, but rather shall be deemed to be paid in
full to the Holder thereof through the delivery of cash and Common Stock, if any, (together with
the cash payment, if any, in lieu of fractional shares) in exchange for the Security being
converted pursuant to the provisions hereof; and the cash, together with the fair



46









 







market value of such shares, of Common Stock, if any, (together with any such cash payment in
lieu of fractional shares) shall be treated as issued, to the extent thereof, first in exchange for
the accretion of the principal amount from the Issue Date through the Conversion Date and accrued
interest, if any, and the balance of any such cash payment and the fair market value of such Common
Stock, if any, shall be treated as issued in exchange for the Original Principal Amount of the
Security being converted pursuant to the provisions hereof.



     If a Holder converts more than one Security at the same time, the cash payment and the number
of shares, if any, of Common Stock issuable upon the conversion shall be based on the aggregate
Original Principal Amount of Securities converted.



     Upon surrender of a Security that is converted in part, the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder, a new Security equal in Original Principal
Amount to the Original Principal Amount of the unconverted portion of the Security surrendered.



     If any Securities are converted after a Regular Record Date but prior to the next succeeding
Interest Payment Date, Holders of such Securities at the close of business on such Regular Record
Date shall receive the interest payable on such Securities on the corresponding Interest Payment
Date notwithstanding the conversion. Such Securities, upon surrender for conversion, must be
accompanied by funds equal to the amount of interest payable on the Accreted Principal Amount of
the Securities so converted (unless the Company has specified a Redemption Date or a Change in
Control Purchase Date that occurs after a Regular Record Date and on or prior to the Interest
Payment Date to which it relates), in which case no such payment shall be required.
Notwithstanding anything to the contrary, if the Company specifies a Redemption Date that is in the
month of December 2006, such payment also shall not be required upon the surrender of Securities
for conversion after December 1, 2006 and prior to such Redemption Date.



     Section 11.4 Fractional Shares. The Company shall not issue a fractional share of Common
Stock upon conversion of a Security. Instead, the Company will deliver cash for the current market
value of the fractional share. The current market value of a fractional share of Common Stock
shall be determined, to the nearest 1/1,000th of a share, by multiplying the Closing Sale Price of
one share of the Company’s Common Stock in effect on the applicable date by the fractional amount
and rounding the product to the nearest whole cent.



     Section 11.5 Taxes on Conversion. If a Holder converts a Security, the Company shall pay any
documentary, stamp or similar issue or transfer tax due on the issue of shares, if any, of Common
Stock upon such conversion. However, the Holder shall pay any such tax that is due because the
Holder requests the shares, if any, to be issued in a name other than the Holder’s name. The
Conversion Agent may refuse to deliver the certificate, if any, representing the Common Stock being
issued in a name other than the Holder’s name until the Conversion Agent receives a sum sufficient
to pay any tax which will be due because the shares, if any, are to be issued in a name other than
the Holder’s name. Nothing herein shall preclude any tax withholding required by law or
regulation.



47









 





     Section 11.6 Company to Provide Common Stock. The Company shall, prior to the issuance of any
Securities under this Article, and from time to time as may be necessary, reserve, out of its
authorized but unissued Common Stock, a sufficient number of shares of Common Stock to permit the
conversion of all Securities outstanding into shares of Common Stock assuming the Conversion Rate
in effect. Any shares of Common Stock delivered upon conversion of the Securities shall be newly
issued shares, shall be duly authorized, validly issued, fully paid and nonassessable and shall be
free from preemptive rights and free of any lien or adverse claim.



     The Company will endeavor promptly to comply with all federal and state securities laws
regulating the registration of the offer and delivery of shares of Common Stock, if any, to a
converting Holder upon conversion of Securities.



     If any shares of Common Stock which would be issuable upon conversion of Securities hereunder
require registration with or approval of any governmental authority before such shares or
securities may be issued upon such conversion, the Company will in good faith and as expeditiously
as possible endeavor to cause such shares or securities to be duly registered or approved, as the
case may be. The Company further covenants that so long as the Common Stock shall be listed on The
New York Stock Exchange, the Company will, if permitted by the rules of such exchange, list and
keep listed all Common Stock issuable upon conversion of the Securities, and the Company will
endeavor to list the shares of Common Stock required to be delivered upon conversion of the
Securities prior to such delivery upon any other national securities exchange upon which the
outstanding Common Stock is listed at the time of such delivery.



     Section 11.7 Adjustment of Conversion Rate



     (a) In case the Company shall, while any of the Securities are outstanding, (i) pay a dividend
or make a distribution with respect to its Common Stock in shares of Common Stock, (ii) subdivide
its outstanding shares of Common Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares or (iv) issue by recapitalization or reclassification of its shares of
Common Stock any shares of Capital Stock of the Company, then the Conversion Rate in effect
immediately prior to such action shall be adjusted so that the Holders of any Securities thereafter
surrendered for conversion shall be entitled to receive the number of shares of Capital Stock of
the Company which such Holder would have owned immediately following such action had such
Securities been converted immediately prior thereto. An adjustment made pursuant to this Section
11.7(a) shall become effective immediately after the record date in the case of a dividend or other
distribution and shall become effective immediately after the effective date in case of a
subdivision, combination, recapitalization or reclassification (or immediately after the record
date if a record date shall have been established for such event); provided, however, that in the
event that such dividend or distribution is not so paid or made, or such subdivision, combination,
recapitalization or reclassification is not effected, the Conversion Rate shall again be adjusted
to be the Conversion Rate which would then be in effect but for such proposed transaction. If, as
a result of an adjustment made pursuant to this Section 11.7(a), the Holder of any Security
thereafter surrendered for conversion shall become entitled to receive shares of two or more
classes or series of Capital Stock of the Company, the Board of Directors (whose determination
shall be conclusive and shall be



48









 







described in a Board Resolution filed with the Trustee) shall determine the allocation of the
adjusted Conversion Rate between or among shares of such classes or series of Capital Stock.



     (b) In case the Company shall, while any of the Securities are outstanding, issue rights or
warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of
Common Stock at a price per share less than the Current Market Price per share of Common Stock on
such record date, then the Conversion Rate for the Securities shall be adjusted so that the same
shall equal the ratio determined by multiplying the Conversion Rate in effect immediately prior to
the date of issuance of such rights or warrants by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding on the date of issuance of such rights or warrants
plus the number of additional shares of Common Stock offered for subscription or purchase, and of
which the denominator shall be the number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants plus the number of shares which the aggregate offering price of
the total number of shares so offered for subscription or purchase would purchase at such Current
Market Price. Such adjustment shall become effective immediately after the record date for the
determination of shareholders entitled to receive such rights or warrants. For the purposes of
this Section 11.7(b), the number of shares of Common Stock at any time outstanding shall not
include shares held in the treasury of the Company. The Company shall not issue any rights or
warrants in respect of the shares of Common Stock held in the treasury of the Company. In case any
rights or warrants referred to in this Section 11.7(b) in respect of which an adjustment shall have
been made shall expire unexercised after the same shall have been distributed or issued by the
Company, the Conversion Rate shall be readjusted at the time of such expiration to the Conversion
Rate that would have been in effect if no adjustment had been made in respect of such unexercised
rights or warrants. If the Company shall at any time issue two or more securities as a unit and
one or more of such securities shall be rights or warrants for Common Stock subject to this Section
11.7(b), the consideration allocated to each such security shall be determined in good faith by the
Board of Directors whose determination shall be conclusive and described in an Officers’
Certificate filed with the Trustee.



     (c) In case the Company shall, by dividend or otherwise, distribute to all holders of its
Common Stock evidences of its indebtedness, shares of any class or series of its Capital Stock,
cash or assets (including securities and shares of the Company’s Subsidiaries, but excluding any
dividend or distribution referred to in Section 11.7(a), any rights or warrants referred to in
Section 11.7(b), and any dividend or distribution paid exclusively in cash described in Section
11.7(d)) then the Conversion Rate shall be increased so that the same shall equal the ratio
determined by multiplying the Conversion Rate in effect immediately prior to the effectiveness of
the Conversion Rate increase contemplated by this Section 11.7(c) by a fraction of which the
numerator shall be the Current Market Price per share of Common Stock on the date fixed for the
payment of such distribution (the “Reference Date”), and of which the denominator shall be
the Current Market Price per share of the Common Stock on the Reference Date less the fair market
value (as determined in good faith by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution), on the Reference Date, of the portion of the
evidences of indebtedness, shares of Capital Stock, cash and assets so distributed applicable to
one share of Common Stock, such increase to become effective immediately prior to the opening of
business on the day following the Reference Date. In the event that such dividend or



49









 







distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the
Conversion Rate which would then be in effect if such dividend or distribution had not occurred.



     If the Board of Directors determines the fair market value of any distribution for purposes of
this Section 11.7(c) by reference to the actual or when issued trading market for any securities
comprising such distribution, it must in doing so consider the prices in such market over the same
period used in computing the Current Market Price per share of Common Stock. If the Board of
Directors determines the Fair Market Value of any distribution for purposes of this Section 9.3(d)
by reference to the actual or when issued trading market for any distributed assets comprising all
or part of such distribution, it must in doing so consider the prices in such market over the same
period (the “Reference Period”) used in computing the Current Market Price pursuant to
Section 9.3(g) to the extent possible, unless the Board of Directors determines in good faith that
determining the Fair Market Value during the Reference Period would not be in the best interest of
the Holders.



     Notwithstanding the foregoing, in the event any such distribution consists of shares of
capital stock of, or similar equity interests in, one or more of the Company’s Subsidiaries (a
“Spin-Off”), the Conversion Rate shall be increased so that the same shall be equal to the
rate determined by multiplying the Conversion Rate in effect immediately prior to the close of
business on the Record Date with respect to such distribution by a fraction:



          (1) the numerator of which shall be the Current Market Price of the Common Stock (determined
as set forth in the third and fourth succeeding sentences), plus the Fair Market Value on such date
of the portion of the distributed assets so distributed applicable to one share of Common Stock
(determined on the basis of the number of shares of Common Stock outstanding on the record date)
(determined as set forth in the third and fourth succeeding sentences); and



          (2) the denominator of which shall be the Current Market Price on such date.



     Such increase shall become effective immediately prior to the opening of business on the day
following the last Trading Day of the Spin-Off Valuation Period. In the event that such dividend
or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the
Conversion Rate which would then be in effect if such dividend or distribution had not been
declared. In the case of a Spin-Off, the Fair Market Value of the securities to be distributed
shall equal the average of the closing sale prices of such securities on the principal securities
market on which such securities are traded for the five consecutive Trading Days commencing on and
including the sixth day of trading of those securities after the effectiveness of the Spin-Off (the
“Spin-Off Valuation Period”), and the Current Market Price shall be measured for the same
period. In the event, however, that an underwritten initial public offering of the securities in
the Spin-Off occurs simultaneously with the Spin-Off, Fair Market Value of the securities
distributed in the Spin-Off shall mean the initial public offering price of such securities and the
Current Market Price shall mean the Sale Price for the Common Stock on the same Trading Day.



     Rights or warrants distributed by the Company to all holders of its shares of Common Stock
entitling them to subscribe for or purchase shares of the Company’s capital stock (either initially
or under certain circumstances), which rights or warrants, until the occurrence of a




50










 





specified event or events (“Trigger Event”), (i) are deemed to be transferred with such shares of
Common Stock, (ii) are not exercisable and (iii) are also issued in respect of future issuances of
shares of Common Stock shall be deemed not to have been distributed for purposes of this Section
9.3(d) (and no adjustment to the Conversion Rate under this Section 9.3(d) will be required) until
the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent
events, upon the occurrence of which such right or warrant shall become exercisable to purchase
different distributed assets, evidences of indebtedness or other assets, or entitle the holder to
purchase a different number or amount of the foregoing or to purchase any of the foregoing at a
different purchase price, then the occurrence of each such event shall be deemed to be the date of
issuance and record date with respect to a new right or warrant (and a termination or expiration of
the existing right or warrant without exercise by the holder thereof). In addition, in the event
of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other
event (of the type described in the preceding sentence) with respect thereto, that resulted in an
adjustment to the Conversion Rate under this Section 9.3(d)):





     (1) in the case of any such rights or warrants which shall all have been redeemed or
repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted
upon such final redemption or repurchase to give effect to such distribution or Trigger
Event, as the case may be, as though it were a cash distribution, equal to the per share
redemption or repurchase price received by a holder of shares of Common Stock with respect
to such rights or warrants (assuming such holder had retained such rights or warrants), made
to all holders of shares of Common Stock as of the date of such redemption or repurchase;
and




     (2) in the case of such rights or warrants which shall have expired or been terminated without
exercise, the Conversion Rate shall be readjusted as if such rights and warrants had never been
issued.



     For purposes of this Section 11.7(c), any dividend or distribution that includes cash,
evidences of indebtedness or other assets and shares of Common Stock or rights or warrants to
subscribe for or purchase shares of Common Stock shall be deemed instead to be (1) a dividend or
distribution of the evidences of indebtedness, cash or assets other than such shares of Common
Stock or such rights or warrants (making any Conversion Rate increase required by this Section
11.7(c)) immediately followed by (2) a dividend or distribution of such shares of Common Stock or
such rights or warrants (making any further Conversion Rate increase required by Section 11.7(a) or
11.7(b)), except (A) the Reference Date of such dividend or distribution as defined in this Section
11.7(c) shall be substituted as (a) “the record date in the case of a dividend or other
distribution,” (b) “the record date for the determination of holders entitled to receive such
rights or warrants,” and (c) “the date fixed for such determination” within the meaning of Sections
11.7(a) and 11.7(b), and (B) any shares of Common Stock included in
such dividend or distribution shall not be deemed outstanding for purposes of computing any
adjustment of the Conversion Rate in Section 11.7(a).



     (d) In case the Company shall, by dividend or otherwise, distribute to all holders of its
Common Stock, cash (excluding any cash (1) that is distributed as part of a distribution referred
to in Section 11.7(c), and (2) distributed as part of any quarterly cash dividend on Common Stock
in any quarter to the extent that such quarterly cash dividend per share of Common Stock



51









 




does not
exceed $0.30 (the “current dividend amount”), then and in each such case, immediately after
the close of business on such date of payment, the Conversion Rate shall be increased so that the
same shall equal the price determined by multiplying the Conversion Rate in effect immediately
prior to the close of business on such record date by a fraction:





     (i) the numerator of which shall be equal to the Current Market Price on such record
date, and




     (ii) the denominator of which shall be equal to the Current Market Price on the record
date less an amount equal to the amount of the cash distributed (and not excluded as
provided above) applicable to one share of Common Stock.



     The current dividend amount is subject to adjustment on a basis inversely proportional to the
Conversion Rate, provided that no adjustment will be made to the current dividend amount in respect
of any cash dividend or other distribution that results in an adjustment to the Conversion Rate
pursuant to this Section 11.7(d).



     If an adjustment is required to be made under this Section 11.7(d) as a result of a
distribution that is a quarterly dividend, the adjustment shall be based upon the amount by which
the distribution exceeds the amount of the quarterly cash dividend permitted to be excluded
pursuant to this Section 11.7(d). If an adjustment is required to be made under this Section
11.7(d) as a result of a distribution that is not a quarterly dividend, the adjustment shall be
based upon the full amount of the distribution.



     In the event that such dividend or distribution is not so paid or made, the Conversion Rate
shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or
distribution had not been declared.



     (e) In case the Company or any of its Subsidiaries pays the Holder of the Common Stock in
respect of a tender offer or exchange offer by the Company or any of its Subsidiaries for shares of
Common Stock to the extent that the cash and fair market value of any other consideration included
in the payment per share of Common Stock exceeds the Closing Sale Price per share of Common Stock
on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant
to such tender offer or exchange offer (the “Expiration Time”), then, and in each such
case, the Conversion Rate shall be adjusted so that the same shall equal the price determined by
multiplying the Conversion Rate in effect immediately prior to the close of business on the date of
the Expiration Time by a fraction:




     (i) the numerator of which shall be the sum of (x) the fair market value (determined as
aforesaid) of the aggregate consideration payable to stockholders based on the acceptance
(up to any maximum specified in the terms of the tender offer or exchange
offer) of all shares validly tendered or exchanged and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as
the “Purchased Shares”) and (y) the product of the number of shares of Common Stock
outstanding (less any Purchased Shares) at the Expiration Time and
the closing price of the
Common Stock on the Trading Day next succeeding the Expiration Time, and



52









 






     (ii) the denominator of which shall be the number of shares of Common Stock outstanding
(including any tendered or exchanged shares) at the Expiration Time multiplied by the
closing price of the Common Stock on the Trading Day next succeeding the Expiration Time.


Such increase (if any) shall become effective immediately prior to the opening of business on the
day following the Expiration Time. In the event that the Company is obligated to purchase shares
pursuant to any such tender offer or exchange offer, but the Company is permanently prevented by
applicable law from effecting any such purchases or all such purchases are rescinded, the
Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if
such tender offer or exchange offer had not been made.




     (f) The Company may make such increases in the Conversion Rate, in addition to those required
by Subsections (a) through (e): (i) in the event of a taxable distribution to Holders of Common
Stock that results in an adjustment of the Conversion Rate, or (ii) if the Board of Directors has
made a determination that such increase would be in the best interest of the Company. Whenever the
Conversion Rate is increased pursuant to the preceding sentence, the Company shall mail to Holders
of record a notice of the increase at least fifteen days prior to the date the increased Conversion
Rate takes effect, and such notice shall state the increased Conversion Rate and the period it
shall be in effect.



     (g) Anything in this Section 11.7 to the contrary notwithstanding, no adjustment of the
Conversion Rate will be made upon: (a) the issuance of any shares of Common Stock pursuant to any
present or future plan providing for the reinvestment of dividends or interest payable on
securities of the Company and the investment of additional optional amounts in shares of Common
Stock under any such plan, or (b) the issuance of any shares of Common Stock or options or rights
pursuant to any present or future employee benefit plan or program, or (c) the issuance of any
shares of Common Stock pursuant to any option, warrant, right or any exercisable, exchangeable or
convertible security outstanding as of the date on which the Securities are first issued, or (d)
the issuance of rights under any shareholder rights plan, or (e) a change in the par value or a
change to no par value of the Common Stock. To the extent the Securities become convertible into
cash, no adjustments need be made thereafter as to the cash and interest will not accrue on the
cash.



     (h) No adjustment in the Conversion Rate shall be required unless such adjustment would
require an increase or decrease of at least 1% in the Conversion Rate; provided, however, that any
adjustments which by reason of this Section 11.7(h) are not required to be made shall be carried
forward, regardless of whether the aggregate adjustment is less than 1% (a) annually on the
anniversary of the first date of issue of the Securities and otherwise (b)(1) five Business Days
prior to the maturity of the Securities (whether at Stated Maturity or otherwise) or (2) five
Business Days prior to the Redemption Date, Purchase Date or Change in Control Purchase
Date, unless such adjustment has already been made. The adjusted Conversion Rate will be
rounded to four decimal places.



     (i) Except as described in the provisions above, the Conversion Rate will not be adjusted for
any issuance by the Company of Common Stock or convertible or exchangeable Securities or rights to
purchase the Common Stock or convertible or exchangeable securities.



53









 





     Section 11.8 Adjustment for Tax Purposes. The Company shall be entitled to make such
adjustments in the Conversion Rate, in addition to those required by Section 11.7, as in its
discretion it shall determine to be advisable in order that any stock dividends, subdivisions of
shares, distributions of rights to purchase stock or securities or distributions of securities
convertible into or exchangeable for stock hereafter made by the Company to its stockholders shall
not be taxable.



     Section 11.9 Notice of Adjustment. Whenever the Conversion Rate is adjusted, the Company
shall promptly mail to Holders a notice of the adjustment and file with the Trustee an Officers’
Certificate specifying the adjusted Conversion Rate and briefly stating the facts requiring the
adjustment and the manner of computing it.



     Section 11.10 Notice of Certain Transactions. In the event that:



     (1) the Company takes any action which would require an adjustment in the Conversion Rate;



     (2) the Company takes any action that requires a supplemental indenture pursuant to Section
11.11; or



     (3) there is a dissolution or liquidation of the Company;


the Company shall mail to Holders and file with the Trustee a notice stating the proposed record or
effective date, as the case may be. The Company shall mail the notice at least fifteen days before
such date. Failure to mail such notice or any defect therein shall not affect the validity of any
transaction referred to in clause (1), (2) or (3) of this Section 11.10.




     Section 11.11 Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege.
If any of the following shall occur, namely: (a) any reclassification or change of shares of Common
Stock issuable upon conversion of the Securities (other than a change in par value, or from par
value to no par value, or from no par value to par value, or as a result of a subdivision or
combination); (b) any consolidation or merger in which the Company is a party consolidating with
another entity or merging with or into another entity, other than a merger in which the Company is
the continuing corporation and which does not result in any reclassification of, or
change (other than a change in par value, or from par value to no par value, or from no par value
to par value, or as a result of a subdivision or combination) in, outstanding shares of Common
Stock; (c) any sale or conveyance of all or substantially all of the property and assets of the
Company to any Person, (other than any sale or conveyance of all or substantially all of the assets
of the Company in a transaction in which the holders of Common Stock immediately prior to such
transaction do not receive securities, cash or other assets of the Company or any other Person) or
(d) or any statutory share exchange, then the Company, or such successor, purchaser or transferee,
as the case may be, shall, as a condition precedent to such reclassification, change,
consolidation, merger, sale, conveyance or share exchange, execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security may convert it into the kind and
amount of securities, cash or other assets which such Holder would have received immediately after
the reclassification, change, consolidation, merger, sale, conveyance, or share exchange if such
Holder had converted the Security solely into Common



54









 




Stock, based on the applicable Conversion
Rate, immediately before the effective date of the transaction, assuming (to the extent applicable)
that such Holder (i) was not a constituent Person or an Affiliate of a constituent Person to such
transaction; and (ii) assuming such Holder received for its Common Stock proportionally the kind or
amount of securities, cash or other property receivable in such transaction by all holders of
Common Stock in the aggregate. The supplemental indenture shall provide for adjustments that shall
be as nearly equivalent as may be practical to the adjustments provided for in this Article XI and
shall provide that Sections 11.1 and 11.2 shall continue to apply following any such transaction.
If, in the case of any such consolidation, merger, sale or conveyance, the stock or other
securities and property (including cash) receivable thereupon by a holder of Common Stock include
shares of stock or other securities and property of a Person other than the successor, purchaser or
transferee, as the case may be, in such consolidation, merger, sale or conveyance, then such
supplemental indenture shall also be executed by such other Person and shall contain such
additional provisions to protect the interests of the Holders of the Securities as the Board of
Directors shall reasonably consider necessary by reason of the foregoing. The successor Company
shall mail to Holders a notice briefly describing the supplemental indenture.




     If this Section applies, neither Section 11.7(a) nor 11.7(b) applies.



     Section 11.12 Trustee’s Disclaimer. The Trustee shall have no duty to determine when an
adjustment under this Article should be made, how it should be made or what such adjustment should
be, but may accept as conclusive evidence of that fact or the correctness of any such adjustment,
and shall be protected in relying upon, an Officers’ Certificate including the Officers’
Certificate with respect thereto which the Company is obligated to file with the Trustee pursuant
to Section 11.7. The Trustee makes no representation as to the validity or value of any securities
or assets issued upon conversion of Securities, and the Trustee shall not be responsible for the
Company’s failure to comply with any provisions of this Article.



     The Trustee shall not be under any responsibility to determine the correctness of any
provisions contained in any supplemental indenture executed pursuant to Section 11.11, but may
accept as conclusive evidence of the correctness thereof, and shall be fully protected in relying
upon, the Officers’ Certificate with respect thereto which the Company is obligated to file
with the Trustee pursuant to Section 11.7.



     Section 11.13 Rights Issued in Respect of Common Stock Issued upon Conversion. Each share of
Common Stock issued upon conversion of Securities, if any, pursuant to this Article XI shall be
entitled to receive the appropriate number of Common Stock or preferred stock purchase rights, as
the case may be (the “Rights”), if any, that shares of Common Stock are entitled to receive
and the certificates representing the Common Stock, if any, issued upon such conversion shall bear
such legends, if any, in each case as may be provided by the terms of any shareholder rights
agreement adopted by the Company, as the same may be amended from time to time (in each case, a
“Rights Agreement”). Provided that such Rights Agreement requires that each share of
Common Stock, if any, issued upon conversion of Securities be entitled to receive such Rights,
then, notwithstanding anything else to the contrary in this Article XI, there shall not be any
adjustment to the conversion privilege or Conversion Rate as a result of the issuance of Rights,
the distribution of separate certificates representing the Rights, or the termination or
invalidation of such Rights.



55









 





     Section 11.14 Company Determination Final. Any determination that the Company or the Board of
Directors must make pursuant to Section 11.2, 11.3, 11.7, 11.8 or 11.11 shall be conclusive.



ARTICLE XII




REPAYMENT AT OPTION OF HOLDERS




     Section 12.1 Applicability of Article. Repayment of Securities before their Stated Maturity
at the option of Holders thereof shall be made in accordance with the terms of such Securities and
in accordance with this Article. The Company shall be required to purchase Securities in
accordance with this Article XII.



     Securities shall be purchased by the Company for cash at a purchase price equal to 100% of the
Accreted Principal Amount thereof (the “Purchase Price”) plus accrued and unpaid interest
to, but excluding, such Purchase Date, if any, on December 11, 2006, March 11, 2007, June 11, 2007,
September 11, 2007, December 11, 2007, 2010, 2015, 2020, 2025 and 2030, or if such day is not a
Business Day, on the immediate succeeding Business Day, (each, a “Purchase Date”), at the
option of the Holder thereof, upon:



     (1) delivery to the Paying Agent by the Holder of a written notice of purchase (a
“Purchase Notice”) at any time from the opening of business on the date that is 21 Business
Days prior to a Purchase Date until the close of business on the Business Day immediately preceding
such Purchase Date stating:




     (A) if a certificated Security has been issued, the certificate number of the Security which
the Holder will deliver to be purchased or if not, such information as may be required under
applicable procedures of the Depositary,




     (B) the portion of the Original Principal Amount of the Security which the Holder will deliver
to be purchased, which portion must be an integral multiple of $1,000, and




     (C) that such Security shall be purchased as of the Purchase Date pursuant to the terms and
conditions specified under the paragraph “Purchase by the Company at the Option of the Holder” of
the Securities and in this Indenture, and



     (2) delivery of such Security to the Paying Agent prior to, on or after the Purchase Date
(together with all necessary endorsements) at the offices of the Paying Agent, such delivery being
a condition to receipt by the Holder of the Purchase Price therefor; provided, however, that such
Purchase Price shall be so paid pursuant to this Article only if the Security so delivered to the
Paying Agent shall conform in all respects to the description thereof in the related Purchase
Notice.



     The Company shall purchase from the Holder thereof, pursuant to this Article, a portion of the
Original Principal Amount in an integral multiple of $1,000. Provisions of this Indenture that
apply to the purchase of all of a Security also apply to the purchase of such portion of such
Security.



56









 





     Any purchase by the Company contemplated pursuant to the provisions of this Article shall be
consummated by the delivery of the Purchase Price to be received by the Holder promptly following
the later of the Purchase Date and the time of delivery of the Security.



     Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Purchase Notice contemplated by this Section 12.1 shall have the right to withdraw such Purchase
Notice at any time prior to the close of business on the Business Day immediately preceding the
Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with
Section 12.2.



     The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice
or written notice of withdrawal therefrom.



     The Company may, at its option, specify additional dates on which Holders will have the right
to require it to purchase Securities upon written notice to the Trustee and the Holders. Such
notice shall specify the additional dates upon which the Company shall be required to purchase the
Securities at the option of the Holders and shall be delivered to the Trustee and the Holders no
less than 25 Business Days prior to the earliest Purchase Date specified in such notice.



     Section 12.2 Effect of Purchase Notice. Upon receipt by the Paying Agent of the Purchase
Notice specified in Section 12.1, the Holder of the Security in respect of which such Purchase
Notice was given shall (unless such Purchase Notice is withdrawn as specified in the following two
paragraphs) thereafter be entitled to receive solely the Purchase Price with respect to such
Security. Such Purchase Price shall be
paid to such Holder, subject to receipt of funds by the Paying Agent, promptly following the
later of (x) the Purchase Date with respect to such Security (provided the conditions in Section
12.1 have been satisfied) and (y) the time of delivery of such Security to the Paying Agent by the
Holder thereof in the manner required by Section 12.1. Securities in respect of which a Purchase
Notice has been given by the Holder thereof may not be converted pursuant to Article XI hereof on
or after the date of the delivery of such Purchase Notice unless such Purchase Notice has first
been validly withdrawn as specified in the following two paragraphs.



     A Purchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the
office of the Paying Agent in accordance with the Purchase Notice at any time prior to the close of
business on the Business Day immediately preceding the applicable Purchase Date specifying:




     (1) if certificated Securities have been issued, the certificate number of the Security
in respect of which such notice of withdrawal is being submitted, or if not, such
information as may be required under appropriate procedures of the Depositary;




     (2) the Original Principal Amount of the Security with respect to which such notice of
withdrawal is being submitted; and




     (3) the Original Principal Amount, if any, of such Security which remains subject to
the original Purchase Notice and which has been or will be delivered for purchase by the
Company.



57









 





     There shall be no purchase of any Securities pursuant to this Article if there has occurred
(prior to, on or after, as the case may be, the giving, by the Holders of such Securities, of the
required Purchase Notice) and is continuing an Event of Default (other than a default in the
payment of the Purchase Price with respect to such Securities). The Paying Agent will promptly
return to the respective Holders thereof any Securities (x) with respect to which a Purchase Notice
has been withdrawn in compliance with this Indenture, or (y) held by it during the continuance of
an Event of Default (other than a default in the payment of the Purchase Price with respect to such
Securities) in which case, upon such return, the Purchase Notice with respect thereto shall be
deemed to have been withdrawn.



     Section 12.3 Deposit of Purchase Price. Prior to 11:00 A.M., New York City time on the
Purchase Date, the Company shall deposit with the Trustee or with the Paying Agent an amount of
money (in immediately available funds if deposited on such Business Day), sufficient to pay the
aggregate Purchase Price of all of the Securities or portions thereof which are to be purchased as
of the Purchase Date. The manner in which the deposit required by this Section 12.5 is made by the
Company shall be at the option of the Company, provided, however, that such deposit shall be made
in a manner such that the Trustee or a Paying Agent shall have immediately available funds on the
Purchase Date.



     If a Paying Agent holds, in accordance with the terms hereof, money sufficient to pay the
Purchase Price of any Security for which a Purchase Notice has been tendered and not withdrawn in
accordance with this Indenture on the Business Day following the Purchase Date, then, immediately
after the Purchase Date, such Security will cease to be outstanding, interest, if
any, will cease to accrue and the rights of the Holder in respect thereof shall terminate
(other than the right to receive the Purchase Price as aforesaid).



     Section 12.4 Securities Purchased in Part. Any Security which is to be purchased only in part
shall be surrendered at the office of the Paying Agent (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form satisfactory to the
Company or the Trustee duly executed by, the Holder thereof or such Holder’s 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 except for any taxes to be paid by
the Holder in the event a Security is registered under a new name, a new Security or Securities, of
any authorized denomination as requested by such Holder in aggregate Original Principal Amount
equal to, and in exchange for, the portion of the Original Principal Amount of the Security so
surrendered which is not purchased.



     Section 12.5 Compliance with Securities Laws upon Purchase of Securities. In connection with
any offer to purchase or purchase of Securities under this Article (provided that such offer or
purchase constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which term, as used
herein, includes any successor provision thereto) under the Exchange Act at the time of such offer
or purchase), the Company shall (i) comply with Rule 13e-4 under the Exchange Act, (ii) file the
related Schedule TO (or any successor schedule, form or report), if required, under the Exchange
Act, and (iii) otherwise comply with all applicable Federal and state securities laws so as to
permit the rights and obligations under this Article to be exercised in the time and in the manner
specified in this Article.



58









 





     Section 12.6 Repayment to the Company. The Trustee and the Paying Agent shall return to the
Company any cash that remains unclaimed for two years, subject to applicable unclaimed property
law, together with interest, if any, thereon held by them for the payment of the Purchase Price;
provided, however, that to the extent that the aggregate amount of cash deposited by the Company
pursuant to Section 12.5 exceeds the aggregate Purchase Price of the Securities or portions thereof
which the Company is obligated to purchase as of the Purchase Date, then promptly after the
Business Day following the Purchase Date, the Trustee shall return any such excess to the Company
together with interest, if any, thereon. Thereafter, any Holder entitled to payment must look to
the Company for payment as general creditors, unless an applicable abandoned property law
designates another Person.



ARTICLE XIII




REPAYMENT AT OPTION OF HOLDER

UPON A CHANGE IN CONTROL




     Section 13.1 Right to Require Purchase. (a) If at any time that Securities remain
outstanding there shall occur a Change in Control, Securities shall be purchased by the Company in
integral multiples of $1,000 Original Principal Amount at the option of the Holders thereof as of
the date specified by the Company that is between 20 and 35 days following notice by the Company of
the occurrence of the Change in Control pursuant to clause (b) below (the “Change in Control
Purchase Date”) subject to satisfaction by or on behalf of any Holder of the requirements set
forth in subsection (c) of this Section 13.1. The purchase price of such Securities (the
“Change in Control Purchase Price”) shall be equal to 100% of the Accreted Principal Amount
of the Securities to be purchased plus accrued and unpaid interest to, but excluding, the Change in
Control Purchase Date, if any.



     A “Change in Control” shall be deemed to have occurred at such time as either of the
following events shall occur:




     (1) there shall be consummated any consolidation or merger of the Company pursuant to
which the Common Stock would be converted into cash, securities or other property, in each
case other than a consolidation or merger of the Company in which the holders of the Common
Stock immediately prior to the consolidation or merger have, directly or indirectly, at
least a majority of the total voting power of all classes of Capital Stock of the continuing
or surviving corporation immediately after such consolidation or merger; or




     (2) there is a report filed on Schedule 13D or TO (or any successor schedule, form or
report) pursuant to the Exchange Act, disclosing that any Person, including such Person’s
Affiliates or Associates (for the purposes of this Section 13.1 only, as the term “Person”
is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the
beneficial owner (as the term “beneficial owner” is defined under Rule 13d-3 or any
successor rule or regulation promulgated under the Exchange Act) of 50% or more of the
voting power of the Common Stock or other Capital Stock into which the Common Stock is
reclassified or changed; provided, however, that a Person shall not be deemed



59









 






beneficial owner of, or to own beneficially, (A) any securities tendered pursuant to a tender or
exchange offer made by or on behalf of such Person or any of such Person’s Affiliates or
Associates until such tendered securities are accepted for purchase or exchange thereunder,
or (B) any securities if such beneficial ownership (i) arises solely as a result of a
revocable proxy delivered in response to a proxy or consent solicitation made pursuant to
the applicable rules and regulations under the Exchange Act, and (ii) is not also then
reportable on Schedule 13D (or any successor schedule) under the Exchange Act.



       Notwithstanding the foregoing provisions of this Section 13.1, a Change in Control shall not
be deemed to have occurred by virtue of the Company, any Subsidiary, any employee stock
ownership plan or any other employee benefit plan of the Company or any Subsidiary, or any
Person holding Common Stock for or pursuant to the terms of any such employee benefit plan, filing
or becoming obligated to file a report under or in response to Schedule 13D or Schedule TO (or any
successor schedule, form or report) under the Exchange Act disclosing beneficial ownership by it of
shares of Common Stock, whether in excess of 50% or otherwise.



     “Associate” shall have the meaning ascribed to such term in Rule 12b-2 of the General
Rules and Regulations under the Exchange Act, as in effect on the date hereof.



     (a) Within five Business Days after the occurrence of a Change in Control, the Company shall
mail a written notice (upon which the Trustee shall have no liability in relying) of the Change in
Control to the Trustee and to each Holder. The notice shall include the form of a Change in
Control Purchase Notice to be completed by the Holder and shall state:




     (1) the date of such Change in Control and, briefly, the events causing such Change in
Control;




     (2) the date by which the Change in Control Purchase Notice pursuant to this Section
13.1 must be given;




     (3) the Change in Control Purchase Date;




     (4) the Change in Control Purchase Price that will be accrued and payable with respect
to the Securities as of the Change in Control Purchase Date;




     (5) briefly, the conversion rights of the Securities;




     (6) the name and address of each Paying Agent and Conversion Agent;




     (7) the Conversion Rate then in effect and any expected adjustments thereto;




     (8) that Securities as to which a Change in Control Purchase Notice has been given may
be converted into cash and Common Stock, if any, pursuant to Article XI only to the extent
that the Change in Control Purchase Notice has been withdrawn in accordance with the terms
of this Indenture;



60









 






     (9) the procedures that the Holder must follow to exercise rights under this Section
13.1;




     (10) the procedures for withdrawing a Change in Control Purchase Notice, including a
form of notice of withdrawal;




     (11) that the Holder must satisfy the requirements set forth in the Securities in order
to convert the Securities; and




     (12) the last date on which the purchase right may be exercised.



     If any of the Securities is in the form of a Global Security, then the Company shall modify
such notice to the extent necessary to accord with the procedures of the Depositary applicable to
the purchase of Global Securities.



     (b) A Holder may exercise its rights specified in subsection (a) of this Section 13.1 upon
delivery of a written notice (which shall be in substantially the form included as an attachment to
the Securities and which may be delivered by letter, overnight courier, hand delivery, facsimile
transmission or in any other written form and, in the case of Global Securities, may be delivered
electronically or by other means in accordance with the Depositary’s customary procedures) of the
exercise of such rights (a “Change in Control Purchase Notice”) to any Paying Agent at any
time prior to the close of business on the Business Day immediately preceding the Change in Control
Purchase Date.



     The delivery of such Security to any Paying Agent (together with all necessary endorsements)
at the office of such Paying Agent shall be a condition to the receipt by the Holder of the Change
in Control Purchase Price.



     The Company shall purchase from the Holder thereof, pursuant to this Section 13.1, a portion
of a Security if the Original Principal Amount of such portion is $1,000 or an integral multiple of
$1,000. Provisions of this Indenture that apply to the purchase of all of a Security pursuant to
Sections 13.1 through 13.6 also apply to the purchase of such portion of such Security.



     Any purchase by the Company contemplated pursuant to the provisions of this Section 13.1 shall
be consummated by the delivery of the consideration to be received by the Holder promptly following
the later of the Change in Control Purchase Date and the time of delivery of the Security to the
Paying Agent in accordance with this Section 13.1.



     Notwithstanding anything herein to the contrary, any Holder delivering to a Paying Agent the
Change in Control Purchase Notice contemplated by this subsection (c) shall have the right to
withdraw such Change in Control Purchase Notice in whole or as to a portion thereof that is an
Original Principal Amount of $1,000 or an integral multiple thereof at any time prior to the close
of business on the Business Day immediately preceding the Change in Control Purchase Date by
delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 13.2.



     A Paying Agent shall promptly notify the Company of the receipt by it of any Change in Control
Purchase Notice or written withdrawal thereof.



61









 





     Anything herein to the contrary notwithstanding, in the case of Global Securities, any Change
in Control Purchase Notice may be delivered or withdrawn and such Securities may be surrendered or
delivered for purchase in accordance with the applicable procedures of the Depositary as in effect
from time to time.



     Section 13.2 Effect of Change in Control Purchase Notice. Upon receipt by any Paying Agent of
the Change in Control Purchase Notice specified in Section 13.1(c), the Holder of the Security in
respect of which such Change in Control Purchase Notice was given shall (unless such Change in
Control Purchase Notice is withdrawn
as specified below) thereafter be entitled to receive the Change in Control Purchase Price
with respect to such Security. Such Change in Control Purchase Price shall be paid to such Holder
promptly following the later of (a) the Change in Control Purchase Date with respect to such
Security (provided the conditions in Section 13.1(c) have been satisfied) and (b) the time of
delivery of such Security to a Paying Agent by the Holder thereof in the manner required by Section
13.1(c). Securities in respect of which a Change in Control Purchase Notice has been given by the
Holder thereof may not be converted into Common Stock on or after the date of the delivery of such
Change in Control Purchase Notice unless such Change in Control Purchase Notice has first been
validly withdrawn as specified in the following paragraph.



     A Change in Control Purchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Paying Agent in accordance with the Change in Control
Purchase Notice at any time prior to the close of business on the applicable Change in Control
Purchase Date specifying:




     (1) if a certificated Security has been issued, the certificate number of the
Securities in respect of which such notice of withdrawal is being submitted, or, if no
certificated Security has been issued, such information as required by the Depositary;




     (2) the Original Principal Amount, in integral multiples of $1,000, of the Securities
with respect to which such notice of withdrawal is being submitted; and




     (3) the Original Principal Amount, if any, of such Securities which remain subject to
the original Change in Control Purchase Notice and which has been or will be delivered for
purchase by the Company.



     There shall be no purchase of any Securities pursuant to this Article if there has occurred
(prior to, on or after, as the case may be, the giving, by the Holders of such Securities, of the
required Change in Control Purchase Notice) and is continuing an Event of Default (other than a
default in the payment of the Change in Control Purchase Price with respect to such Securities).
The Paying Agent will promptly return to the respective Holders thereof any Securities (x) with
respect to which a Change in Control Purchase Notice has been withdrawn in compliance with this
Indenture, or (y) held by it during the continuance of an Event of Default (other than a default in
the payment of the Change in Control Purchase Price with respect to such Securities) in which case,
upon either such return, the Change in Control Purchase Notice with respect thereto shall be deemed
to have been withdrawn.



62









 





     Section 13.3 Deposit of Change in Control Purchase Price. On or before 11:00 A.M., New York
City time, on the Change in Control Purchase Date, the Company shall deposit with the Trustee or
with a Paying Agent (other than the Company or an Affiliate of the Company) an amount of money (in
immediately available funds if deposited on such Business Day) sufficient to pay the aggregate
Change in Control Purchase Price of all the Securities or portions thereof that are to be purchased
as of such Change in Control Purchase Date. The manner in which the deposit required by this
Section 13.3 is made by the Company shall be at the option of the Company, provided, however, that
such deposit
shall be made in a manner such that the Trustee or a Paying Agent shall have immediately
available funds on the Change in Control Purchase Date.



     If a Paying Agent holds, in accordance with the terms hereof, money sufficient to pay the
Change in Control Purchase Price of any Security for which a Change in Control Purchase Notice has
been tendered and not withdrawn in accordance with this Indenture on the Business Day following the
Change in Control Purchase Date then, immediately following the Change in Control Purchase Date,
such Security will cease to be outstanding, interest will cease to accrue and the rights of the
Holder in respect thereof shall terminate (other than the right to receive the interest thereon).
The Company shall publicly announce the Accreted Principal Amount of Securities purchased as a
result of such Change in Control on or as soon as practicable after the Change in Control Purchase
Date.



     Section 13.4 Securities Purchased in Part. Any Security that is to be purchased only in part
shall be surrendered at the office of a Paying Agent and promptly after the Change in Control
Purchase Date the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge (other than amounts to be paid in respect of
applicable transfer taxes), a new Security or Securities, of such authorized denomination or
denominations in integral multiples of $1,000 as may be requested by such Holder, in aggregate
Original Principal Amount equal to, and in exchange for, the portion of the Original Principal
Amount of the Security so surrendered that is not purchased.



     Section 13.5 Compliance with Securities Laws upon Purchase of Securities. In connection with
any offer to purchase or purchase of Securities under this Article (provided that such offer or
purchase constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which term, as used
herein, includes any successor provision thereto) under the Exchange Act at the time of such offer
or purchase), the Company shall (i) comply with Rule 13e-4 under the Exchange Act, (ii) file the
related Schedule TO (or any successor schedule, form or report), if required, under the Exchange
Act, and (iii) otherwise comply with all applicable Federal and state securities laws so as to
permit the rights and obligations under this Article XIII to be exercised in the time and in the
manner specified in this Article XIII.



     Section 13.6 Repayment to the Company. The Trustee and the Paying Agent shall return to the
Company any cash that remains unclaimed for two years, subject to applicable unclaimed property
law, together with interest, if any, thereon held by them for the payment of the Change in Control
Purchase Price; provided, however, that, to the extent the aggregate amount of cash deposited by
the Company pursuant to Section 13.3 exceeds the aggregate Change in Control Purchase Price of the
Securities or portions thereof which the Company is obligated to purchase as of the Change in
Control Purchase Date, then on the Business Day



63









 




following the Purchase Date, the Trustee shall
return any such excess to the Company together with interest, if any, thereon. Thereafter, any
Holder entitled to payment must look to the Company for payment as a general creditor, unless an
applicable abandoned property law designates another Person.




ARTICLE XIV




IMMUNITY OF INCORPORATORS, SHAREHOLDERS,

OFFICERS, DIRECTORS AND EMPLOYEES




     Section 14.1 Exemption from Individual Liability. No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator, shareholder, officer, director
or employee, in such capacity, past, present or future, of the Company or of any successor
corporation, either directly or through the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely corporate
obligations of the Company, and that no such personal liability whatever shall attach to, or is or
shall be incurred by, the incorporators, shareholders, officers, directors or employees, in such
capacity, of the Company or of any successor corporation, or any of them, as a result of the
creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants
or agreements contained in this Indenture or in any of the Securities or implied therefrom; and
that any and all such personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such incorporator, shareholder,
officer, director or employee, in such capacity, as a result of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this Indenture and the
issue of such Securities.



ARTICLE XV




MISCELLANEOUS PROVISIONS




     Section 15.1 Successors and Assigns of Company Bound by Indenture. All the covenants,
stipulations, promises and agreements in this Indenture contained by or on behalf of the Company
shall bind its successors and assigns, whether so expressed or not.



     Section 15.2 Acts of Board, Committee or Officer of Successor Corporation Valid. Any act or
proceeding by any provision of this Indenture authorized or required to be done or performed by any
board, committee or officer of the Company shall and may be done and performed with like force and
effect by the like board, committee or officer of any corporation that shall at that time be the
successor of the Company.



     Section 15.3 Required Notices or Demands. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by the



64









 




Holders to or on
the Company may be given or served by being deposited postage prepaid in a post office letter box
in the United States
addressed (until another address is filed by the Company with the Trustee), as follows: U.S.
Bancorp, 800 Nicollet Mall, Minneapolis, Minnesota, 55402, Attention: Corporate Secretary. Any
notice, direction, request or demand by the Company or by any Holder to or upon the Trustee may be
given or made, for all purposes, by being deposited postage prepaid in a post office letter box in
the United States addressed to the Corporate Trust Office of the Trustee. Any notice required or
permitted to be mailed to a Holder by the Company or the Trustee pursuant to the provisions of this
Indenture shall be deemed to be properly mailed by being deposited postage prepaid in a post office
letter box in the United States addressed to such Holder at the address of such Holder as shown on
the Security Register. In any case, where notice to Holders is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders.




     Where this Indenture provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.



     In the event that, by reason of the suspension of or irregularities in regular mail service,
it shall be impractical to mail notice of any event to Holders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving such notice as shall
be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.



     Section 15.4 Governing Law. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE AND
THE SECURITIES.



     Section 15.5 Indenture May Be Executed in Counterparts. This Indenture may be executed in any
number of counterparts, each of which when so executed shall be deemed an original; and all such
counterparts shall together constitute but one and the same instrument.




65










 






     IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed this Indenture
on behalf of the respective parties hereto as of the date first above written.



	 	 	 	 	 	 	 
	 	 	U.S. BANCORP
	 
	 	 	 	 	 	 
	 

	 	By:
	 	               
	 	/s/ Daryl N. Bible
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Daryl N. Bible
	 

	 	 	 	Title:
	 	Executive Vice President and
Treasurer






	 	 	 	 	 	 	 
	 	 	CITIBANK, N.A., as Trustee
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Nancy Forte
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Nancy Forte
	 

	 	 	 	Title:
	 	Assistant Vice President






	 	 	 	 	 	 	 
	 	 	U.S. BANK TRUST NATIONAL
	 	 	    ASSOCIATION, as Authenticating Agent.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Patrick J. Crowley
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Patrick J. Crowley
	 

	 	 	 	Title:
	 	Vice President






 









 






Annex A




FORM OF FACE OF GLOBAL SECURITY




     FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE UNITED STATES INTERNAL REVENUE CODE OF
1986, AS AMENDED, THIS SECURITY IS ISSUED WITH AN INDETERMINATE AMOUNT OF ORIGINAL ISSUE DISCOUNT
FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. THE ISSUE DATE IS DECEMBER 9, 2005, THE ISSUE PRICE
IS $1,000 PER GLOBAL SECURITY, THE YIELD TO MATURITY IS INDETERMINATE, AND ORIGINAL ISSUE DISCOUNT
EFFECTIVELY ACCRUES AT A RATE OF THREE-MONTH LIBOR MINUS 1.46% PER ANNUM.



     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY 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 THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.



     TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.



     THIS SECURITY AND ANY SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY
STATE SECURITIES LAWS. NEITHER THIS SECURITY, ANY SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION
OF THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.



     THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS TWO
YEARS AFTER THE LAST DATE ON WHICH ANY SECURITIES WERE ORIGINALLY ISSUED AND THE LAST DATE ON WHICH
THE COMPANY OR ANY AFFILIATE OF THE COMPANY



A-1









 







WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE COMPANY
OR ANY SUBSIDIARY OR AFFILIATE THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (C) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE RIGHTS OF THE COMPANY AND THE WITHIN MENTIONED
TRUSTEE PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO THIS CLAUSE (D) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.



     THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON SATISFACTION OF THE CONDITIONS
SPECIFIED IN THE INDENTURE.



A-2









 





U.S. BANCORP




Floating Rate Convertible Senior Debentures due 2035




	 	 	 
	No. R-1

	 	Original Principal Amount: $2,000,000,000
	Issue Date: December 9, 2005

	 	CUSIP: 902973AL0






     U.S. BANCORP, a Delaware corporation (the “Company”), for value received, hereby promises to
pay to Cede & Co., or registered assigns, the Accreted Principal Amount of this Security, as
specified on the reverse side of this Security, on December 11, 2035.



     This Security shall bear interest as specified on the reverse side of this Security. This
Security is convertible as specified on the reverse side of this Security.



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



A-3









 





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




	 	 	 	 	 
	 	U.S. BANCORP

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 
	Attest:
	 	 
	 
	 	 
	 

Name:

	 	 
	Title:
	 	 






CERTIFICATE OF AUTHENTICATION



The undersigned, as Authenticating Agent,

certifies that this is one of the Securities referred

to in the within-mentioned Indenture.




U.S. BANK TRUST NATIONAL ASSOCIATION, as Authenticating Agent




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






Dated: December 9, 2005





A-4









 






FORM OF REVERSE SIDE OF SECURITY




Floating Rate Convertible Senior Debentures due 2035




     This Security is one of a duly authorized issue of securities of the Company (herein called
the “Securities”) limited in aggregate Original Principal Amount to $2,000,000,000 (or up
to $2,500,000,000 if the Initial Purchasers exercise in full their option to purchase additional
Securities pursuant to the Purchase Agreement), issued under an Indenture, dated as of December 9,
2005 (the “Indenture”), among the Company, Citibank, N.A., as Trustee (the
“Trustee”, which term includes any successor trustee under the Indenture), and U.S. Bank
Trust National Association as Authenticating Agent (as defined in the Indenture), which term
includes any successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the 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. Capitalized terms used and not otherwise defined in this Security are used as defined
in the Indenture.



1. Interest; Calculation of 3-month LIBOR




     This Security will bear interest at the rate per annum equal to 3-month LIBOR, reset quarterly
on each LIBOR Reset Date, as defined below, minus 1.46% (initially 2.99688%) on the Original
Principal Amount from December 9, 2005, or from the most recent date to which interest has been
paid as provided for, until December 11, 2030, provided that such yield will never be less than 0%
per annum. During each period, interest will be payable quarterly in arrears on March 11, June 11,
September 11 and December 11 of each year (each, an “Interest Payment Date”) beginning
March 11, 2006. Interest on this Security shall be calculated on the basis of a 360-day year and
the actual number of days elapsed during the related Interest Period (as defined below). Interest
payable on this Security on any Interest Payment Date will include interest accrued from, and
including, the most recent Interest Payment Date to which interest has been paid or duly made
available for payment on this Security (or December 9, 2005, if no interest has been paid or been
duly made available for payment) to, but excluding, such Interest Payment Date or Redemption Date
or Purchase Date or Change in Control Purchase Date, as the case may be (an “Interest
Period”). 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 March 1, June 1, September 1 and December 1, as
the case may be, immediately preceding the relevant Interest Payment Date. Any interest which is
payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the registered Holder hereof on the relevant Regular Record Date
by virtue of having been such Holder, and may 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 Company, notice whereof shall be
given to the Holders of Securities not less than 10 days



A-5









 




prior to such Special Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, all as more fully provided in the
Indenture.




     “3-month LIBOR,” as determined by the Calculation Agent, means:



     (a) the rate for three-month deposits in United States dollars commencing on the related LIBOR
Reset Date, that appears on the Moneyline Telerate Page 3750 as of 11:00 A.M., London time, on the
LIBOR Determination Date; or



     (b) if no rate appears on the particular LIBOR Determination Date on the Moneyline Telerate
Page 3750, the rate calculated by the Calculation Agent as the arithmetic mean of at least two
offered quotations obtained by the Calculation Agent after requesting the principal London offices
of each of four major reference banks in the London interbank market to provide the Calculation
Agent with its offered quotation for deposits in United States dollars for the period of three
months, commencing on the related LIBOR Reset Date, to prime banks in the London interbank market
at approximately 11:00 A.M., London time, on that LIBOR Determination Date and in a principal
amount that is representative for a single transaction in United Sates dollars in that market at
that time; or



     (c) if fewer than two offered quotations referred to in clause (b) are provided as requested,
the rate calculated by the Calculation Agent as the arithmetic mean of the rates quoted at
approximately 11:00 A.M., New York City time, on the particular LIBOR Determination Date by three
major banks in The City of New York selected by the Calculation Agent for loans in United States
dollars to leading European banks for a period of three months and in a principal amount that is
representative for a single transaction in United States dollars in that market at that time; or



     (d) if the banks so selected by the Calculation Agent are not quoting as mentioned in clause
(c), 3-month LIBOR in effect on the particular LIBOR Determination Date.



     “LIBOR Determination Date” means the second London banking day preceding the related
LIBOR Reset Date.



     “LIBOR Reset Date” means March 11, June 11, September 11 and December 11 of each year;
provided that, if any LIBOR Reset Date would otherwise be a day that is not a Business Day, such
LIBOR Reset Date shall be postponed to the next succeeding Business Day, except if such Business
Day falls in the next succeeding calendar month, such LIBOR Reset Date will be the immediately
preceding Business Day.



     “London banking day” means a day on which commercial banks are open for business,
including dealings in United States dollars, in London.



     “Moneyline Telerate Page 3750” means the display on Moneyline Telerate (or any
successor service) on such page (or any other page as may replace such page on such service) for
the purpose of displaying the London interbank rates of major banks for United States dollars.



A-6









 





2. Principal Accretion




     Beginning on December 11, 2030, this Security shall not bear interest. Instead, on December
11, 2035 (the “Stated Maturity”) or any earlier Redemption Date, Purchase Date or Change in
Control Purchase Date, the Holder will receive the Accreted Principal Amount of this Security on
such date, which will be equal to the Original Principal Amount of this Security increased daily by
the Variable Yield applied to the Accreted Principal Amount of this Security as of the day
immediately preceding the most recent LIBOR Reset Date. The Variable Yield will be reset quarterly
on each LIBOR Reset Date to a rate of 3-month LIBOR, minus 1.46% per annum. Regardless of the
level of 3-month LIBOR, the Variable Yield will never be less than 0% per annum. The Variable
Yield will be calculated using the actual number of days elapsed between the LIBOR Reset Dates
divided by 360. The Accreted Principal Amount payable on this Security will include principal
accreted from, and including, December 11, 2030 to, but excluding, the Stated Maturity or earlier
Redemption Date, Purchase Date or Change in Control Purchase Date, as the case may be.



3. Interest on Overdue Amounts




     If the Accreted Principal Amount hereof or any portion of such Accreted Principal Amount is
not paid when due (whether upon acceleration pursuant to Section 4.2 of the Indenture, upon the
dates set for payment of the Redemption Price, Purchase Price, Change in Control Purchase Price or
upon the Stated Maturity of this Security) or if interest due hereon, if any, (or any portion of
such interest), is not paid when due, then in each such case the overdue amount shall, to the
extent permitted by law, bear interest at the rate of interest payable as set forth in paragraph 1
of this Security, compounded quarterly, which interest shall accrue from the date such overdue
amount was originally due to the date payment of such amount, including interest thereon, has been
made or duly provided for. All such interest shall be payable as set forth in the Indenture.



4. Method of Payment




     Subject to the terms and conditions of the Indenture, the Company will make payments in
respect of Redemption Price, Purchase Price, Change in Control Purchase Price and at Stated
Maturity to Holders who surrender Securities to a Paying Agent to collect such payments in respect
of the Securities. The Company will pay cash amounts in money of the United States that at the
time of payment is legal tender for payment of public and private debts. However, the Company may
make such cash payments by check payable in such money; provided that payment by wire transfer of
immediately available funds will be required with respect to principal of and interest, if any, on
all Global Securities and all other Securities the Holders of which shall have provided wire
transfer instructions to the Company or the Paying Agent. If any Interest Payment Date (other than
an Interest Payment Date coinciding with the Stated Maturity or earlier Redemption Date or Purchase
Date) falls on a day that is not a Business Day, such Interest Payment Date will be postponed to
the next succeeding Business Day and no interest on such payment will accrue for the period from
and after the Interest Payment Date to such next succeeding Business Day, provided that, if such
Business Day falls in the next succeeding calendar month, the Interest Payment Date will be the
Business Day immediately preceding such



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Interest Payment Date. If the Stated Maturity, Redemption Date, Purchase Date or Change of
Control Purchase Date of this Security falls on a day that is not a Business Day, the required
payment of interest, if any, and principal will be made on the next succeeding Business Day and no
interest on such payment will accrue for the period from and after the Stated Maturity, Redemption
Date, Purchase Date or Change of Control Purchase Date to such next succeeding Business Day.



5. Paying Agent, Calculation Agent, Conversion Agent and Registrar




     U.S. Bank Trust National Association will initially act as Paying Agent, Calculation Agent,
Conversion Agent and Registrar. The Company may appoint and change any Paying Agent, Calculation
Agent, Conversion Agent, Registrar or co-registrar without notice, other than notice to the
Trustee, except that the Company will maintain at least one Paying Agent in the State of New York,
City of New York, Borough of Manhattan. The Company or any of its Subsidiaries or any of their
Affiliates may act as Paying Agent, Calculation Agent, Conversion Agent, Registrar or co-registrar.



6. Indenture




     The terms of the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as in effect from time to time (the
“TIA”) (regardless of whether or not the Indenture has been qualified thereunder). The Securities
are subject to all such terms, and Holders are referred to the Indenture and the TIA for a
statement of those terms.



     The Securities are general unsecured obligations of the Company limited to $2,000,000,000
aggregate Original Principal Amount (or up to $2,500,000,000 if the Initial Purchasers exercise in
full their option to purchase additional Securities pursuant to the Purchase Agreement). The
Indenture does not limit other indebtedness of the Company, secured or unsecured.



7. Redemption at the Option of the Company




     No sinking fund is provided for the Securities. Prior to December 11, 2006, the Securities
will not be redeemable at the option of the Company. Beginning on December 11, 2006, the
Securities are redeemable in whole, or from time to time in part, for cash at the option of the
Company at a Redemption Price equal to 100% of the Accreted Principal Amount of the Securities,
plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date.



     If the Company redeems less than all of the outstanding Securities, the Registrar will select
the Securities to be redeemed (i) by lot; (ii) pro rata; or (iii) by another method the Registrar
considers fair and appropriate. If the Registrar selects a portion of a Holder’s Securities for
partial redemption and the Holder converts a portion of the same Securities, the converted portion
shall be deemed to be from the portion selected for redemption. Holders of Securities called for
redemption may convert their Securities until 5:00 P.M., New York City time, on the Business Day
immediately preceding the Redemption Date.



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8. Notice of Redemption




     Notice of redemption will be mailed at least 30 days but not more than 60 days before the
Redemption Date to each Holder of Securities to be redeemed at the Holder’s registered address. If
money sufficient to pay the Redemption Price of all Securities (or portions thereof) to be redeemed
on the Redemption Date is deposited with the Paying Agent prior to or on the Redemption Date,
immediately after such Redemption Date interest shall cease to accrue on such Securities or
portions thereof. Securities in denominations larger than $1,000 Original Principal Amount may be
redeemed in part but only in integral multiples of $1,000 Original Principal Amount.



9. Purchase By the Company at the Option of the Holder




     Subject to the terms and conditions of the Indenture, the Company shall purchase for cash, at
the option of the Holder, all or a portion of the Securities held by such Holder on December 11,
2006, March 11, 2007, June 11, 2007, September 11, 2007, December 11, 2007, 2010, 2015, 2020, 2025
and 2030, or, if such day is not a Business Day, on the immediate succeeding Business Day, at a
Purchase Price equal to 100% of the Accreted Principal Amount thereof, plus accrued and unpaid
interest, if any, to, but excluding, the Purchase Date, upon delivery of a Purchase Notice
containing the information set forth in the Indenture, at any time from the opening of business on
the date that is 21 Business Days prior to such Purchase Date until the close of business on the
Business Day immediately preceding such Purchase Date and upon delivery of the Securities to the
Paying Agent by the Holder as set forth in the Indenture.



     At the option of the Holder and subject to the terms and conditions of the Indenture, the
Company shall purchase all or a portion of the Securities held by such Holder as of the date
specified by the Company that is between 20 and 35 days following the delivery by the Company of
the notice of a Change in Control for a Change in Control Purchase Price equal to 100% of the
Accreted Principal Amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the
Change in Control Purchase Date.



     Holders have the right to withdraw any Purchase Notice or Change in Control Purchase Notice,
as the case may be, by delivering to the Paying Agent a written notice of withdrawal in accordance
with the provisions of the Indenture.



     If cash sufficient to pay the Purchase Price or Change in Control Purchase Price, as the case
may be, of all Securities or portions thereof to be purchased as of the Purchase Date or the Change
in Control Purchase Date, as the case may be, is deposited with the Paying Agent on the Business
Day following the Purchase Date or the Change in Control Purchase Date, as the case may be, all
interest ceases to accrue on such Securities (or portions thereof) immediately after such Purchase
Date or Change in Control Purchase Date, as the case may be, and the Holder thereof shall have no
other rights as such (other than the right to receive the Purchase Price or Change in Control
Purchase Price, as the case may be, upon surrender of such Security).



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10. Conversion




     Subject to the terms of the Indenture, the Holder of a Security may convert the Security into
an amount of cash and shares of Common Stock, if any, as set forth in Section 11.1 of the
Indenture, subject to the obligation of the Company to settle any such conversion as described in
Section 11.2 of the Indenture. A Security in respect of which a Holder has delivered a Purchase
Notice or a Change in Control Purchase Notice exercising the option of such Holder to require the
Company to purchase such Security may be converted only if such notice of exercise is withdrawn in
accordance with the terms of the Indenture.



     The Company shall deliver cash or a check in lieu of any fractional share of Common Stock.



     A Holder may convert a portion of a Security if the Original Principal Amount of such portion
is $1,000 or an integral multiple of $1,000. No payment or adjustment shall be made for dividends
on the Common Stock except as provided in the Indenture.



     Securities or portions thereof surrendered for conversion during the period from the close of
business on any Regular Record Date immediately preceding any Interest Payment Date to the opening
of business on such Interest Payment Date shall be accompanied by payment to the Company or its
order, in New York Clearing House funds or other funds acceptable to the Company, of an amount
equal to the interest payable on such Interest Payment Date on the Original Principal Amount of
Securities or portions thereof being surrendered for conversion, unless the Company has specified a
Redemption Date or a Change in Control Purchase Date that occurs after a Regular Record Date and on
or prior to the Interest Payment Date to which it relates, in which case no such payment shall be
required. Notwithstanding anything to the contrary, if the Company specifies a Redemption Date
that is in the month of December 2006, such payment also shall not be required upon the surrender
of Securities for conversion after December 1, 2006 and prior to such Redemption Date.



     To convert a Security, a Holder must (a) complete and manually sign the Conversion Notice set
forth below and deliver such notice to a Conversion Agent, (b) surrender the Security to the
Conversion Agent, (c) furnish appropriate endorsements and transfer documents (including any
certification that may be required under applicable law) if required by the Conversion Agent, and
(d) pay any transfer or similar tax, if required; or, if this is a Global Security, comply with the
applicable conversion procedures of the Depositary.



     The Conversion Rate will be adjusted under the Indenture in the event the Company shall, while
any of the Securities are outstanding, pay dividends or make distributions on Common Stock payable
in Common Stock; subdivide its outstanding shares of Common Stock; combine its outstanding shares
of Common Stock into a smaller number of shares; or issue by recapitalization or reclassification
of its shares of Common Stock any shares of Capital Stock of the Company; issue rights or warrants
to holders of Common Stock entitling them to subscribe for or purchase shares of Common Stock; pay
dividends or other distributions to all holders of Common Stock of shares of Capital Stock or
evidences of indebtedness or assets; pay dividends or other distributions consisting exclusively of
cash to all holders of Common Stock; and purchase shares of Common Stock pursuant to a tender offer
or exchange offer, all as more fully provided in the Indenture.



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11. Denominations; Transfer; Exchange




     The Securities are in fully registered form, without coupons, in denominations of $1,000
Original Principal Amount and integral multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not transfer or exchange any
Securities selected for redemption (except, in the case of a Security to be redeemed in part, the
portion of the Security not to be redeemed) or any Securities in respect of which a Purchase Notice
or Change in Control Purchase Notice has been given and not withdrawn (except, in the case of a
Security to be purchased in part, the portion of the Security not to be purchased) or any
Securities for a period of 15 days before the mailing of a notice of redemption of Securities to be
redeemed.



12. Persons Deemed Owners




     The registered Holder of this Security may be treated as the owner of this Security for all
purposes.



13. Unclaimed Money or Securities




     The Trustee and the Paying Agent shall return to the Company upon written request any money or
securities held by them for the payment of any amount with respect to the Securities that remains
unclaimed for two years subject to applicable unclaimed property law. After return to the Company,
Holders entitled to the money or securities must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another Person.



14. Amendment; Waiver




     Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Securities
may be amended with the written consent of the Holders of at least a majority in aggregate Original
Principal Amount of the Securities at the time outstanding and (ii) certain Defaults may be waived
with the written consent of the Holders of a majority in aggregate Original Principal Amount of the
Securities at the time outstanding. The Company and the Trustee may amend the Indenture under
certain circumstances without the consent of the Holder, as described in the Indenture.



15. Defaults and Remedies




     Under the Indenture, Events of Default include (i) a default in the payment of the Accreted
Principal Amount, Redemption Price, Purchase Price or Change in Control Purchase Price with respect
to any Security when such payment becomes due and payable; (ii) a default in the payment of any
interest, if any, on the Securities, when the same becomes due and payable, for a period of 30
days; (iii) failure by the Company to convert any Securities into cash and, if applicable, shares
of Common Stock in the amounts set forth in the Indenture; (iv) failure by the Company to comply
with any of its other agreements in the Indenture or the Securities, subject to



A-11









 







written notice by the Trustee or by Holders of not less than 25% in aggregate Original
Principal Amount of the Securities at the time outstanding, and the Company’s failure to cure (or
obtain a waiver of) such default within 90 days after receipt by the Company of such notice; and
(v) certain events of bankruptcy or insolvency. If an Event of Default occurs and is continuing,
the Trustee, or the Holders of at least 25% in aggregate Original Principal Amount of the
Securities at the time outstanding, may declare all the Securities to be due and payable
immediately. Certain events of bankruptcy or insolvency are Events of Default that will result in
the Securities becoming due and payable immediately upon the occurrence of such Events of Default.



     Holders may not enforce the Indenture or the Securities except as provided in the Indenture.
The Trustee may refuse to enforce the Indenture or the Securities unless it receives security or
indemnity satisfactory to it against any loss, liability or expense. Subject to certain
limitations, Holders of a majority in aggregate Original Principal Amount of the Securities at the
time outstanding may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders notice of any continuing Default (except a Default in payment of amounts
specified in clause (i), (ii) or (iii) above) if it determines that withholding notice is in their
interests.



16. Trustee Dealings with the Company




     Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Securities and may otherwise
deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise
deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.



17. No Recourse Against Others




     A director, officer, employee or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. By accepting a
Security, each Holder waives and releases all such liability. The waiver and release are part of
the consideration for the issue of the Securities.



18. Authentication




     This Security shall not be valid until an authorized signatory of the Trustee manually signs
the Certificate of Authentication on the other side of this Security.



19. Abbreviations




     Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM
(=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with right of
survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).



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20. GOVERNING LAW




     THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS SECURITY.



     The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture.


U.S. BANCORP

800 Nicollet Mall

Minneapolis, Minnesota 55402

Telephone No. (612) 303-0799

Facsimile No. (612) 303-7881

Attention: Corporate Secretary





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ASSIGNMENT FORM




To assign this Security, fill in the form below:




I or we assign and transfer this Security to




	 	 	 	 	 
	                                                                                                                                                                
	 	 	 	 
	 
	 	 	 	 
	                                                                                                                                                                
	 	 	 	 
	(Insert assignee’s soc. sec. or tax ID no.)
	 	 	 	 
	                                                                                                                                                                
	 	 	 	 
	 
	 	 	 	 
	                                                                                                                                                                
	 	 	 	 
	(Print or type assignee’s name, address and zip code)
	 	 	 	 
	 
	 	 	 	 
	and irrevocably appoint                                                                                                                     
agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.
	 
	 	 	 	 
	Date:                                         
	 	 	 	 






 









 





CONVERSION NOTICE



To convert this Security, check the box: o



To convert only part of this Security, state the Original Principal Amount to be converted
(which must be $1,000 or an integral multiple of $1,000): $                                                             



If you want the stock certificate made out in another Person’s name, fill in the form below:




	 
	                                                                                                                                                                

	 

	(Insert other Person’s soc. sec. or tax ID no.)

	 

	                                                                                                                                                                

	 

	                                                                                                                                                                

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

	 

	Your

	Signature:                                                             *

	 

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









 




			
	*	 	Your signature must be guaranteed by an “eligible guarantor institution” meeting the requirements
of the Trustee, which requirements include membership or participation in the Security Transfer
Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined
by the Trustee in addition to, or in substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.





 









 





     OPTION OF HOLDER TO ELECT PURCHASE ON CHANGE IN CONTROL


If you want to elect to have this Security purchased, in whole or in part, by the
Company pursuant to Section 13.1 of the Indenture, check the
following box: o



If you want to have only part of this Security purchased by the Company, state the
Original Principal Amount you want to be purchased (must be $1,000 or a multiple of
$1,000):
$                                                            



If this notice is attached to a certificated Security, the Security certificate numbers:



                                                                                                                                                                



You agree by the presentation of this notice to provide any further information as may
be required under applicable procedures of The Depository Trust Company.



Your
Signature:                                                             *



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






 




			
	*	 	Your signature must be guaranteed by an “eligible guarantor institution” meeting the requirements
of the Trustee, which requirements include membership or participation in the Security Transfer
Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined
by the Trustee in addition to, or in substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.






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