exv4w6






Exhibit 4.6




 





FLOWERS FOODS, INC.,




 





FORM OF INDENTURE



Dated as of



 





       
     
              ,



as Trustee



 





Debt Securities



 

















 








CROSS-REFERENCE TABLE*




	 	 	 	 	 	 
	Trust Indenture Act Section	 	Indenture Section	 
	310	(a)(1) 	 	 	7.10	 
	 	(a)(2) 	 	 	7.10	 
	 	(a)(3) 	 	Not Applicable
	 	(a)(4) 	 	Not Applicable
	 	(a)(5) 	 	 	7.10	 
	 	(b) 	 	 	7.10	 
	 	(c) 	 	Not Applicable
	311	(a) 	 	 	7.11	 
	 	(b) 	 	 	7.11	 
	 	(c) 	 	Not Applicable
	312	(a) 	 	 	2.06	 
	 	(b) 	 	 	11.02	 
	 	(c) 	 	 	11.02	 
	313	(a) 	 	 	7.06	 
	 	(b)(1) 	 	Not Applicable
	 	(b)(2) 	 	 	7.06; 7.07	 
	 	(c) 	 	 	7.06; 11.01	 
	 	(d) 	 	 	7.06	 
	314	(a) 	 	 	4.02; 4.03; 11.01; 11.04	 
	 	(b) 	 	Not Applicable
	 	(c)(1) 	 	 	11.03	 
	 	(c)(2) 	 	 	11.03	 
	 	(c)(3) 	 	Not Applicable
	 	(d) 	 	Not Applicable
	 	(e) 	 	 	11.04	 
	 	(f) 	 	Not Applicable
	315	(a) 	 	 	7.01	 
	 	(b) 	 	 	7.05; 11.01	 
	 	(c) 	 	 	7.01	 
	 	(d) 	 	 	7.01	 
	 	(e) 	 	 	6.11	 
	316	(a) 	 	 	6.05	 
	 	(a)(1)(A) 	 	 	6.05	 
	 	(a)(1)(B) 	 	 	6.04	 
	 	(a)(2) 	 	Not Applicable
	 	(b) 	 	 	6.07	 
	 	(c) 	 	 	2.13	 
	317	(a)(1) 	 	 	6.08	 
	 	(a)(2) 	 	 	6.09	 
	 	(b) 	 	 	2.05	 
	318	(a) 	 	 	1.03	 








 




			
	*	 	Note: This Cross-Reference Table is not part of the Indenture.














 










TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE 1
	 	DEFINITIONS AND INCORPORATION BY REFERENCE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 1.01
	 	Definitions	 	 	1	 
	Section 1.02
	 	Other Definitions	 	 	5	 
	Section 1.03
	 	Trust Indenture Act	 	 	5	 
	Section 1.04
	 	Rules of Construction	 	 	5	 
	 
	 	 	 	 	 	 
	ARTICLE 2
	 	THE NOTES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 2.01
	 	Amount Unlimited; Issuable in Series	 	 	6	 
	Section 2.02
	 	Establishment of Terms of Series of Notes	 	 	6	 
	Section 2.03
	 	Execution and Authentication	 	 	8	 
	Section 2.04
	 	Registrar and Paying Agent; Depositary	 	 	9	 
	Section 2.05
	 	Paying Agent to Hold Money in Trust	 	 	9	 
	Section 2.06
	 	Holder Lists	 	 	10	 
	Section 2.07
	 	Transfer and Exchange	 	 	10	 
	Section 2.08
	 	Replacement Notes	 	 	10	 
	Section 2.09
	 	Outstanding Notes	 	 	11	 
	Section 2.10
	 	Treasury Notes	 	 	11	 
	Section 2.11
	 	Temporary Notes	 	 	11	 
	Section 2.12
	 	Cancellation	 	 	12	 
	Section 2.13
	 	Defaulted Interest	 	 	12	 
	Section 2.14
	 	Global Notes	 	 	12	 
	Section 2.15
	 	CUSIP Numbers	 	 	13	 
	 
	 	 	 	 	 	 
	ARTICLE 3
	 	REDEMPTION	 	 	 	 
	 
	 	 	 	 	 	 
	Section 3.01
	 	Notices to Trustee	 	 	13	 
	Section 3.02
	 	Selection of Notes to Be Redeemed	 	 	14	 
	Section 3.03
	 	Notice of Redemption	 	 	14	 
	Section 3.04
	 	Effect of Notice of Redemption	 	 	15	 
	Section 3.05
	 	Deposit of Redemption Price	 	 	15	 
	Section 3.06
	 	Notes Redeemed in Part	 	 	16	 
	 
	 	 	 	 	 	 
	ARTICLE 4
	 	COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 4.01
	 	Payment of Notes	 	 	16	 
	Section 4.02
	 	Reports	 	 	16	 
	Section 4.03
	 	Compliance Certificate	 	 	16	 
	Section 4.04
	 	Taxes	 	 	17	 
	Section 4.05
	 	Stay, Extension and Usury Laws	 	 	17	 
	Section 4.06
	 	Corporate Existence	 	 	17	 
	 
	 	 	 	 	 	 
	ARTICLE 5
	 	SUCCESSORS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 5.01
	 	Merger, Consolidation, or Sale of Assets	 	 	18	 
	Section 5.02
	 	Successor Corporation Substituted	 	 	18	 
	 
	 	 	 	 	 	 
	ARTICLE 6
	 	DEFAULTS AND REMEDIES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 6.01
	 	Events of Default	 	 	19	 
	Section 6.02
	 	Acceleration	 	 	20	 
	Section 6.03
	 	Other Remedies	 	 	21	 
	Section 6.04
	 	Waiver of Past Defaults	 	 	21	 
	Section 6.05
	 	Control by Majority	 	 	21	 






i









 






TABLE OF CONTENTS

(continued)





	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 6.06
	 	Limitation on Suits	 	 	21	 
	Section 6.07
	 	Rights of Holders of Notes to Receive Payment	 	 	22	 
	Section 6.08
	 	Collection Suit by Trustee	 	 	22	 
	Section 6.09
	 	Trustee May File Proofs of Claim	 	 	22	 
	Section 6.10
	 	Priorities	 	 	23	 
	Section 6.11
	 	Undertaking for Costs	 	 	23	 
	 
	 	 	 	 	 	 
	ARTICLE 7
TRUSTEE
	 	 	 	 
	 
	 	 	 	 	 	 
	Section 7.01
	 	Duties of Trustee	 	 	23	 
	Section 7.02
	 	Rights of Trustee	 	 	24	 
	Section 7.03
	 	Individual Rights of Trustee	 	 	25	 
	Section 7.04
	 	Trustee’s Disclaimer	 	 	25	 
	Section 7.05
	 	Notice of Defaults	 	 	26	 
	Section 7.06
	 	Reports by Trustee to Holders of the Notes	 	 	26	 
	Section 7.07
	 	Compensation and Indemnity	 	 	26	 
	Section 7.08
	 	Replacement of Trustee	 	 	27	 
	Section 7.09
	 	Successor Trustee by Merger, etc	 	 	28	 
	Section 7.10
	 	Eligibility; Disqualification	 	 	28	 
	Section 7.11
	 	Preferential Collection of Claims Against the Company	 	 	28	 
	 
	 	 	 	 	 	 
	ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
	 	 	 	 
	 
	 	 	 	 	 	 
	Section 8.01
	 	Option to Effect Legal Defeasance or Covenant Defeasance	 	 	28	 
	Section 8.02
	 	Legal Defeasance and Discharge	 	 	28	 
	Section 8.03
	 	Covenant Defeasance	 	 	29	 
	Section 8.04
	 	Conditions to Legal or Covenant Defeasance	 	 	30	 
	Section 8.05
	 	Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions	 	 	31	 
	Section 8.06
	 	Repayment to Company	 	 	31	 
	Section 8.07
	 	Reinstatement	 	 	31	 
	 
	 	 	 	 	 	 
	ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
	 	 	 	 
	 
	 	 	 	 	 	 
	Section 9.01
	 	Without Consent of Holders of Notes	 	 	32	 
	Section 9.02
	 	With Consent of Holders of Notes	 	 	33	 
	Section 9.03
	 	Compliance with Trust Indenture Act	 	 	34	 
	Section 9.04
	 	Revocation and Effect of Consents	 	 	35	 
	Section 9.05
	 	Notation on or Exchange of Notes	 	 	35	 
	Section 9.06
	 	Trustee to Sign Amendments, etc	 	 	35	 
	 
	 	 	 	 	 	 
	ARTICLE 10
SATISFACTION AND DISCHARGE
	 	 	 	 
	 
	 	 	 	 	 	 
	Section 10.01 Satisfaction and Discharge
	 	 	35	 
	Section 10.02
Application of Trust Money
	 	 	36	 
	Section 10.03
Reinstatement
	 	 	37	 
	 
	 	 	 	 	 	 
	ARTICLE 11
MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 	 	 
	Section 11.01
Notices
	 	 	37	 
	Section 11.02
Communication by Holders of Notes with Other Holders of Notes
	 	 	38	 
	Section 11.03
Certificate and Opinion as to Conditions Precedent
	 	 	38	 
	Section 11.04
Statements Required in Certificate or Opinion
	 	 	38	 
	Section 11.05
Rules by Trustee and Agents
	 	 	39	 






ii









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 11.06
	 	Recourse Against Others	 	 	39	 
	Section 11.07
	 	Governing Law; Waiver of Jury Trial	 	 	39	 
	Section 11.08
	 	No Adverse Interpretation of Other Agreements	 	 	39	 
	Section 11.09
	 	Successors	 	 	39	 
	Section 11.10
	 	Severability	 	 	40	 
	Section 11.11
	 	Counterparts	 	 	40	 
	Section 11.12
	 	Table of Contents, Headings, etc.	 	 	40	 







iii











 





     INDENTURE dated as of                                , by and between Flowers Foods, Inc., a
Georgia corporation (the “Company”), and                                          , as trustee (the
“Trustee”).



     The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its debentures, notes or other evidences of indebtedness to be
issued in one or more series (the “Notes”), as herein provided, up to such principal amount as may
from time to time be authorized in or pursuant to one or more resolutions of its Board of Directors
or by supplemental indentures or Officer’s Certificates.



     The Company and the Trustee agree as follows for the benefit of each other and for the equal
and ratable benefit of the Holders (as defined) of the Notes:



ARTICLE 1

DEFINITIONS AND INCORPORATION

BY REFERENCE



Section 1.01 Definitions.




     “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
purposes of this definition, “control,” as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies
of such Person, whether through the ownership of voting securities, by agreement or otherwise. For
purposes of this definition, the terms “controlling,” “controlled by” and “under common control
with” have correlative meanings.



     “Agent” means any Registrar, co-registrar, Paying Agent or additional paying agent.



     “Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief
of debtors.



     “Board of Directors” means:




     (1) with respect to a corporation, the board of directors of the corporation or any
committee thereof duly authorized to act on behalf of such board;




     (2) with respect to a partnership, the board of directors or other governing body of
the general partner of the partnership;




     (3) with respect to a limited liability company, the board of directors or other
governing body, and in the absence of the same, the manager or board of managers or the
managing member or members or any controlling committee thereof; and




     (4) with respect to any other Person, the board or committee of such Person serving a
similar function.



     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by its Board of Directors or pursuant to
authorization by its Board of Directors and to be in full force and effect on the date of the
certificate (and delivered to the Trustee, if appropriate).



     “Business Day” means any day other than a Legal Holiday.



 









 





     “Capital Stock” means:




     (1) in the case of a corporation, corporate stock;




     (2) in the case of an association or business entity that is not a corporation, any
and all shares, interests, participations, rights or other equivalents (however designated)
of corporate stock;




     (3) in the case of a partnership or limited liability company, partnership interests
(whether general or limited) or membership interests; and




     (4) any other interest or participation that confers on a Person the right to receive
a share of the profits and losses of, or distributions of assets of, the issuing Person,
but excluding from all of the foregoing any debt securities convertible into Capital Stock,
whether or not such debt securities include any right of participation with Capital Stock.



     “Company” has the meaning assigned to it in the preamble to this Indenture until a successor
thereto duly assumes the obligations upon the Notes and under this Indenture, and thereafter means
such successor. The foregoing sentence will likewise apply to any subsequent such successor or
successors.



     “Corporate Trust Office of the Trustee” means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered, which office at the
date hereof is located at the address of the Trustee specified in Section 11.01 hereof, or such
other address as to which the Trustee may give notice to the Company.



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



     “Default” means any event that is, or with the passage of time or the giving of notice or both
would be, an Event of Default.



     “Depositary” means, unless otherwise provided in a Board Resolution, a supplemental indenture
or an Officer’s Certificate with respect to the Notes of any Series issuable or issued in whole or
in part in the form of one or more Global Notes, the Person specified in Section 2.04 hereof as the
Depositary with respect to such Notes, and any and all successors thereto appointed as depositary
hereunder and having become such pursuant to the applicable provision of this Indenture.



     “Discount Note” means any Note that provides for an amount less than the stated principal
amount thereof to be due and payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.02.



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



     “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the
accounting profession, which are in effect on the Issue Date.



2









 





     “Global Note” or “Global Notes” means a Note or Notes, as the case may be, in the form
established pursuant to Section 2.02 evidencing all or part of a Series of Notes, issued to the
Depositary for such Series or its nominee, and registered in the name of such Depositary or
nominee.



     “Government Securities” means securities which are (i) direct obligations of the United States
of America for the payment of which its full faith and credit is pledged or (ii) obligations of a
person controlled or supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith and credit obligation
by the United States of America, and which in the case of (i) and (ii) are not callable or
redeemable at the option of the issuer thereof, and shall also include a depository receipt issued
by a bank or trust company as custodian with respect to any such Government Securities or a
specific payment of interest on or principal of any such Government Securities held by such
custodian for the account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in respect of the
Government Securities evidenced by such depository receipt.



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



     “Indebtedness” of any person as of any date means, without duplication, all indebtedness of
such person in respect of borrowed money, including all interest, fees and expenses owed in respect
thereto (whether or not the recourse of the lender is to the whole of the assets of such person or
only to a portion thereof), or evidenced by bonds, notes, debentures or similar instruments.



     “Indenture” means this Indenture as amended or supplemented from time to time and shall
include the form and terms of particular Series of Notes established as contemplated hereunder.



     “Issue Date” means the date on which Notes of a Series are originally issued under this
Indenture.



     “Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in the City
of New York or at a place of payment are authorized or required by law, regulation or executive
order to close.



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



     “Notes” has the meaning assigned to it in the preamble to this Indenture.



     “Officer” means, with respect to the Company, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, the Secretary or any Vice-President of the Company.



     “Officer’s Certificate” means a certificate signed on behalf of the Company by an Officer that
meets the requirements of Section 11.03 hereof.



     “Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the
Trustee, that meets the requirements of Section 11.03 hereof. The counsel may be an employee of or
counsel to the Company, any Subsidiary of the Company or the Trustee.



3









 





     “Person” means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity.



     “Responsible Officer,” when used with respect to the Trustee, means any officer within the
Corporate Trust Office of the Trustee (or any successor group of the Trustee) 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 or who has direct responsibility for the administration thereof.



     “SEC” means the Securities and Exchange Commission.



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



     “Series” or “Series of Notes” means each series of debentures, notes or other debt instruments
of the Company created pursuant to Sections 2.01 and 2.02 hereof.



     “Significant Subsidiary” means any direct or indirect Subsidiary of the Company that would be
a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the Issue Date.



     “Stated Maturity” means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which the payment of interest or principal was scheduled to be
paid in the documentation governing such Indebtedness as of the Issue Date, and will not include
any contingent obligations to repay, redeem or repurchase any such interest or principal prior to
the date originally scheduled for the payment thereof.



     “Subsidiary” means, with respect to any specified Person:




     (1) any corporation, association or other business entity of which more than 50% of
the total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency and after giving effect to any voting agreement or
shareholders’ agreement that effectively transfers voting power) to vote in the election of
directors, managers or trustees of the corporation, association or other business entity is
at the time owned or controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person (or a combination thereof); and




     (2) any partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general partners of
which are that Person or one or more Subsidiaries of that Person (or any combination
thereof).



     “TIA” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb), and the
rules and regulations promulgated thereunder, as in effect on the Issue Date, except as provided in
Sections 1.03 and 9.03.



     “Trustee” has the meaning assigned to it in the preamble to this Indenture, until a successor
replaces it in accordance with the applicable provisions of this Indenture and thereafter means the
successor serving hereunder, and if at any time there is more than one such person, “Trustee” as
used with respect to the Notes of any Series shall mean the Trustee with respect to Notes of that
Series.



4









 




Section 1.02 Other Definitions.




	 	 	 
	 	 	Defined in
	Term	 	Section
	“Authentication Order”
	 	2.03
	“Covenant Defeasance”
	 	8.03
	“DTC”
	 	2.04
	“Event of Default”
	 	6.01
	“Legal Defeasance”
	 	8.02
	“Paying Agent”
	 	2.04
	“Payment Default”
	 	6.01
	“Proceeding”
	 	6.09
	“Registrar”
	 	2.04





Section 1.03 Trust Indenture Act.




     The provisions of TIA Sections 310 through 317 that impose duties on any Person (including the
provisions automatically deemed included herein unless expressly excluded by this Indenture) are a
part of and govern this Indenture upon and so long as the Indenture and Securities are subject to
the TIA. If any provision of this Indenture limits, qualifies or conflicts with such duties, the
imposed duties shall control. If a provision of the TIA requires or permits a provision of this
Indenture and the TIA provision is amended, then the Indenture provision shall be automatically
amended to like effect.


Section 1.04 Rules of Construction.




     Unless the context otherwise requires:




     (1) a term defined in the TIA and used herein without definition has the meaning
assigned to it in the TIA;




     (2) a term defined herein has the meaning assigned to it herein;




     (3) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;




     (4) “or” is not exclusive;




     (5) words in the singular include the plural, and in the plural include the singular;




     (6) “will” shall be interpreted to express a command;




     (7) provisions apply to successive events and transactions; and




     (8) references to sections of or rules under the Securities Act will be deemed to
include substitute, replacement of successor sections or rules adopted by the SEC from time
to time.



5









 





ARTICLE 2

THE NOTES



Section 2.01 Amount Unlimited; Issuable in Series.




     The aggregate principal amount of Notes that may be authenticated and delivered under this
Indenture is unlimited. The Notes may be issued in one or more Series. All Notes of a Series
shall be identical except as may be set forth in a Board Resolution, a supplemental indenture or an
Officer’s Certificate detailing the adoption of the terms thereof pursuant to the authority granted
under a Board Resolution. In the case of Notes of a Series to be issued from time to time, the
Board Resolution, supplemental indenture or Officer’s Certificate may provide for the method by
which specified terms (such as interest rate, maturity date, record date or date from which
interest shall accrue) are to be determined. Notes may differ between Series in respect of any
matters.


Section 2.02 Establishment of Terms of Series of Notes.




     At or prior to the issuance of any Notes within a Series, the following shall be established
(as to the Series generally, in the case of Section 2.02(a), and either as to such Notes within the
Series or as to the Series generally, in the case of Sections 2.02(b) through 2.02(t)) by a Board
Resolution, a supplemental indenture or an Officer’s Certificate:



     (a) the title of the Series (which shall distinguish the Notes of that particular Series from
the Notes of any other Series but which may be part of a Series of Notes previously issued);



     (b) the price or prices (expressed as a percentage of the principal amount thereof) at which
the Notes of the Series will be issued;



     (c) the denominations in which the Notes of the Series shall be issuable if other than
denominations of $2,000 and any integral multiples of $1,000 in excess of $2,000;



     (d) any limit upon the aggregate principal amount of the Notes of the Series which may be
authenticated and delivered under this Indenture (except for Notes authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Notes of the Series pursuant
to Section 2.07, 2.08, 2.11, 3.06 or 9.05);



     (e) whether the Notes of the Series will be issuable as Global Notes, the terms and
conditions, if any, upon which such Global Notes may be exchanged in whole or in part for Notes of
such Series in definitive certificates registered in the names of the individual holders thereof,
the Depositary for such Global Notes and the form of any legend or legends to be borne by any such
Global Notes in addition to or in lieu of the legend set forth in Section 2.14(c);



     (f) the date or dates on which the principal of the Notes of the Series is payable;



     (g) (i) the rate or rates, if any, at which the Notes of the Series shall bear interest (which
may be fixed or variable), (ii) the manner in which the amounts of payment of principal of or
interest, if any, on the Notes of the Series will be determined, if such amounts may be determined
by reference to any commodity or commodity, currency, stock exchange or financial index, (iii) the
date or dates from which interest, if any, shall accrue, (iv) the date or dates on which interest,
if any, on the Notes of the Series shall commence and be payable and (v) any regular or special
record date for the payment of interest, if any, on the Notes of the Series;



6









 





     (h) (i) if other than in U.S. dollars, the currency in which Notes of a Series are
denominated, which may include any foreign currency or any composite of two or more currencies, and
(ii) the currency or currencies in which payments on such Notes are payable, if other than the
currency in which such Notes are denominated;



     (i) the place or places where the principal of and interest, if any, on the Notes of the
Series shall be payable, or the method of such payment, if by wire transfer, mail or other means;



     (j) any Depositaries, interest rate calculation agents or other agents with respect to Notes
of such Series if other than those appointed herein;



     (k) if applicable, the period or periods within which, the price or prices at which and the
terms and conditions upon which the Notes of the Series may be redeemed, purchased or repaid, in
whole or in part, at the option of the Company;



     (l) the obligation, if any, of the Company to redeem, purchase or repay the Notes of the
Series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof
upon the happening of any event and the period or periods within which, the price or prices at
which and the terms and conditions upon which Notes of the Series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;



     (m) if other than the principal amount thereof, the portion of the principal amount of the
Notes of the Series that shall be payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.02;



     (n) any addition to or change in the covenants (and related defined terms) set forth in
Article 4 or 5 which applies to Notes of the Series;



     (o) any addition to or change in the Events of Default which applies to any Notes of the
Series and any change in the right of the Trustee or the requisite Holders of such Notes to declare
the principal amount thereof due and payable pursuant to Section 6.02;



     (p) the provisions relating to any security provided for the Notes of the Series;



     (q) the subordination, if any, of the Notes of the Series pursuant to this Indenture;



     (r) the form and terms of any guarantee of the Notes of the Series and the subordination, if
any, of such guarantees pursuant to this Indenture;



     (s) if and as applicable, the terms and conditions of any right to exchange for or convert
Notes of the Series into shares of common stock or other securities of the Company or another
Person; and



     (t) any other terms of the Notes of the Series.



     All Notes of any one Series need not be issued at the same time and may be issued from time to
time, consistent with the terms of this Indenture, if so provided by or pursuant to the Board
Resolution, supplemental indenture or Officer’s Certificate referred to above. Unless otherwise
provided by a Board Resolution, a supplemental indenture or an Officer’s Certificate with respect
to the Notes of any Series, the Company may from time to time, without notice to or the consent of
the Holders of the Notes of such Series, create and issue additional Notes of such Series ranking
equally with all other Notes of such Series



7









 







in all respects (or in all respects other than the
payment of interest accruing prior to issue date of such additional Notes). Such additional Notes
may be consolidated and form a single Series with the Notes of such Series and have the same terms
as to status, redemption or otherwise as the Notes of such Series.



     The Notes of each Series shall be in such form as shall be established by or pursuant to a
Board Resolution, supplemental indenture or Officer’s Certificate, in each case with such
appropriate insertions, omissions, substitutions and other variations as are required or permitted
by this Indenture, and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistent herewith, be determined by the Officer executing such
Notes, as evidenced by their execution of the Notes. If the form of Notes of any Series is
established by action taken pursuant to a Board Resolution or Officer’s Certificate, a copy of an
appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the Authentication Order
contemplated by Section 2.03 for the authentication and delivery of such Notes.



     The definitive Notes shall be printed, lithographed or engraved on steel engraved borders or
may be produced in any other manner, all as determined by the Officer executing such Notes, as
evidenced by their execution of such Notes.


Section 2.03 Execution and Authentication.




     At least one Officer must sign the Notes for the Company by manual or facsimile signature.



     If an Officer whose signature is on a Note no longer holds that office at the time the Note is
authenticated, the Note will nevertheless be valid.



     A Note will not be valid until authenticated by the manual signature of the Trustee or other
authorized authenticating agent. The signature will be conclusive evidence that the Note has been
authenticated under this Indenture.



     The Trustee shall at any time, and from time to time, authenticate Notes for original issue in
the principal amount provided in the Board Resolution, supplemental indenture or Officer’s
Certificate, upon receipt by the Trustee of a written order of the Company signed by an Officer (an
“Authentication Order”). Such Authentication Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company or its duly authorized agent or
agents, which oral instructions shall be promptly confirmed in writing. Each Note shall be dated
the date of its authentication unless otherwise provided by a Board Resolution, a supplemental
indenture or an Officer’s Certificate.



     The aggregate principal amount of Notes of any Series outstanding at any time may not exceed
any limit upon the maximum principal amount for such Series set forth in the Board Resolution,
supplemental indenture or Officer’s Certificate delivered pursuant to Section 2.02, except as
provided in Section 2.08.



     Prior to the issuance of Notes of any Series, the Trustee shall have received and (subject to
Section 7.01) shall be fully protected in relying on: (a) the Board Resolution, supplemental
indenture or Officer’s Certificate establishing the form of the Notes of that Series or of Notes
within that Series and the terms of the Notes of that Series or of Notes within that Series and (b)
an Officer’s Certificate and an Opinion of Counsel complying with Section 11.03, which, in the case
of the Opinion of Counsel, shall also substantially state, unless the Trustee is otherwise
permitted to rely on an opinion delivered at closing to such effect, that such Notes, when
authenticated and delivered by the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will



8









 







constitute valid and binding obligations
of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency,
moratorium, reorganization, and other laws of general applicability relating to or affecting the
enforcement of creditors’ rights and to general principles of equity.



     The Trustee shall have the right to decline to authenticate and deliver any Notes of such
Series if the Trustee (a) being advised by counsel, determines that such action may not lawfully be
taken or (b) in good faith by its board of directors or trustees, executive committee or a trust
committee of directors and/or vice-presidents shall determine that such action would expose the
Trustee to personal liability to Holders of any then outstanding Series of Notes.



     The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes authentication by such agent.
An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate
of the Company.


Section 2.04 Registrar and Paying Agent; Depositary.




     The Company will maintain, with respect to each Series of Notes, at the place or places
specified with respect to such Series pursuant to Section 2.02 an office or agency where Notes of
such Series may be presented for registration of transfer or for exchange (“Registrar”) and an
office or agency where such Notes may be presented for payment (“Paying Agent”). The Registrar
will keep a register of such Notes and of their transfer and exchange. The Company may appoint one
or more co-registrars and one or more additional paying agents. The term “Registrar” includes any
co-registrar and the term “Paying Agent” includes any additional paying agent. The Company may
change any Paying Agent or Registrar without notice to any Holder. The Company will notify the
Trustee in writing of the name and address of any Agent not a party to this Indenture. If the
Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall
act as such. The Company or any of the Company’s Subsidiaries may act as Paying Agent or
Registrar.



     The Company hereby initially appoints The Depository Trust Company, New York, New York (“DTC”)
to act as Depositary with respect to the Global Notes for each Series.



     The Company hereby initially appoints the Trustee to act as the Registrar and Paying Agent and
to act as custodian with respect to the Global Notes for each Series unless another Registrar,
Paying Agent or custodian of Global Notes for the Depositary, as the case may be, is appointed
prior to the time Notes of that Series are first issued.


Section 2.05 Paying Agent to Hold Money in Trust.




     The Company will require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will hold in trust for the benefit of Holders of any Series or the Trustee all money
held by the Paying Agent for the payment of principal of or premium, if any, or interest on the
Notes of such Series, and will notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Company or a Subsidiary of the Company) will have no further liability for the money. If the
Company or a Subsidiary of the Company acts as Paying Agent, it will segregate and hold in a
separate trust fund for the benefit of the Holders of any Series all money held by it as Paying
Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee will
serve as Paying Agent for the Notes.



9









 




Section 2.06 Holder Lists.




     The Trustee will preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders of each Series of Notes and shall
otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company will furnish
to the Trustee at least seven Business Days before each interest payment date and at such other
times as the Trustee may request in writing a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of the Holders of each Series of Notes and the
Company shall otherwise comply with TIA § 312(a).


Section 2.07 Transfer and Exchange.




     Where Notes of a Series are presented to the Registrar or a co-registrar with a request to
register a transfer or to exchange them for an equal principal amount of Notes of the same Series,
the Registrar shall register the transfer or make the exchange if its requirements for such
transactions are met. To permit registrations of transfers and exchanges, the Trustee shall
authenticate Notes at the Registrar’s request. No service charge shall be made for any
registration of transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer tax or similar governmental
charge payable upon exchanges pursuant to Sections 2.11, 3.06 or 9.05).



     Neither the Company nor the Registrar shall be required (a) to issue, register the transfer
of, or exchange Notes of any Series for the period beginning at the opening of business 15 days
immediately preceding the mailing of a notice of redemption of Notes of that Series selected for
redemption and ending at the close of business on the day of such mailing or (b) to register the
transfer of or exchange Notes of any Series selected, called or being called for redemption as a
whole or the portion being redeemed of any such Notes selected, called or being called for
redemption in part.


Section 2.08 Replacement Notes.




     If any mutilated Note is surrendered to the Trustee or the Company or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note, the Company will issue
and the Trustee, upon receipt of an Authentication Order, will authenticate a replacement Note of
the same Series if the Trustee’s requirements are met. If required by the Trustee or the Company,
such security or indemnity must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent
from any loss that any of them may suffer if a Note is replaced. The Company may charge for its
expenses in replacing a Note.



     Every replacement Note is an additional obligation of the Company and will be entitled to all
of the benefits of this Indenture equally and proportionately with all other Notes of such Series
duly issued hereunder.



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



     Upon the issuance of any new Note under this Section 2.08, 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.



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     The provisions of this Section 2.08 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 Notes.


Section 2.09 Outstanding Notes.




     The Notes outstanding at any time are all the Notes authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation, those reductions in the interest in a
Global Note effected by the Trustee in accordance with the provisions hereof and those described in
this Section 2.09 as not outstanding. Except as set forth in Section 2.10 hereof, a Note does not
cease to be outstanding because the Company or an Affiliate of the Company holds the Note.



     If a Note is replaced pursuant to Section 2.08 hereof, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.



     If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to
be outstanding and interest on it ceases to accrue.



     If the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of
any thereof) holds, on a redemption date or maturity date of Notes of a Series, money sufficient to
pay such Notes payable on that date, then on and after that date such Notes will be deemed to be no
longer outstanding and will cease to accrue interest unless otherwise provided by a Board
Resolution, a supplemental indenture or an Officer’s Certificate with respect to such Series.



     In determining whether the Holders of the requisite principal amount of outstanding Notes have
given any request, demand, authorization, notice, direction, waiver or consent hereunder, the
principal amount of a Discount Note that shall be deemed to be outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.02.


Section 2.10 Treasury Notes.




     In determining whether the Holders of the required principal amount of Notes of a Series have
concurred in any request, demand, authorization, notice, direction, waiver or consent, Notes of a
Series owned by the Company or by any of its Affiliates, will be considered as though not
outstanding, except that for the purposes of determining whether the Trustee will be protected in
relying on any such request, demand, authorization, notice, direction, waiver or consent, only
Notes of a Series that a Responsible Officer in the Corporate Trust Office of the Trustee knows are
so owned will be so disregarded.


Section 2.11 Temporary Notes.




     Until definitive Notes are ready for delivery, the Company may prepare and the Trustee, upon
receipt of an Authentication Order, will authenticate temporary Notes. Temporary Notes will be
substantially in the form of definitive Notes but may have variations that the Company considers
appropriate for temporary Notes and as may be reasonably acceptable to the Trustee. Without
unreasonable delay, the Company will prepare and the Trustee will authenticate definitive Notes of
the same Series and date of Maturity in exchange for temporary Notes.



     Holders of temporary Notes will be entitled to all of the benefits of this Indenture.



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Section 2.12 Cancellation.




     The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent will forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else will promptly cancel all Notes
surrendered for registration of transfer, exchange, payment, replacement or cancellation and will
dispose of canceled Notes (subject to the record retention requirement of the Exchange Act) or
return them to the Company. Certification of the destruction of all canceled Notes will be
delivered to the Company. The Company may not issue new Notes to replace Notes that it has paid or
that have been delivered to the Trustee for cancellation.


Section 2.13 Defaulted Interest.




     If the Company defaults in a payment of interest on a Series of Notes and such Notes provide
for the payment of default interest, the Company will pay the defaulted interest in any lawful
manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who
are Holders of such Notes on a subsequent special record date, in each case at the rate provided in
such Notes. The Company will notify the Trustee in writing of the amount of defaulted interest
proposed to be paid on each such Note and the date of the proposed payment. The Company will fix
or cause to be fixed each such special record date and payment date; provided that no such special
record date may be less than 10 days prior to the related payment date for such defaulted interest.
At least 15 days before the special record date, the Company (or, upon the written request of the
Company, the Trustee in the name and at the expense of the Company) will mail or cause to be mailed
to Holders of the Series a notice that states the special record date, the related payment date and
the amount of such interest to be paid. Subject to the foregoing, the Company may make payment of
any defaulted interest in any lawful manner deemed practicable by the Trustee and not inconsistent
with the requirements of any securities exchange on which the Notes of such Series may be listed.


Section 2.14 Global Notes.




     (a) Terms of Securities. A Board Resolution, a supplemental indenture or an Officer’s
Certificate shall establish whether the Notes of a Series shall be issued in whole or in part in
the form of one or more Global Notes and the Depositary for such Global Note or Notes.



     (b) Transfer and Exchange. Notwithstanding any provisions to the contrary contained
in Section 2.07 of the Indenture and in addition thereto, any Global Note shall be exchangeable
pursuant to Section 2.07 of the Indenture for Notes registered in the names of Holders other than
the Depositary for such Note or its nominee only if (i) the Company delivers to the Trustee a
notice from the Depositary that (A) the Depositary is no longer willing or able to continue as
depositary for any Global Note, or (B) the Depositary ceases to be a “clearing agency” registered
under Section 17A of the Exchange Act, and, in either case, the Company is unable to locate a
qualified successor within 120 days, (ii) the Company, at its option, notifies the Trustee in
writing that it elects to cause the issuance of Notes in definitive form under the Indenture, or
(iii) there has occurred and is continuing a Default or Event of Default with respect to such
Notes. Any Global Note that is exchangeable pursuant to the preceding sentence shall, upon
surrender by the Depositary of such Global Note, be exchangeable for Notes registered in such names
as the Depositary shall direct in writing in an aggregate principal amount equal to the principal
amount of the Global Note with like tenor and terms. Except as provided in this Section 2.14(b), a
Global Note may not be transferred except as a whole by the Depositary with respect to such Global
Note to a nominee of such Depositary, by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by the Depositary or any such nominee to a successor Depositary or a
nominee of such a successor Depositary.



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     (c) Legend. Any Global Note issued hereunder shall bear a legend in substantially the
following form:




“This Note is a Global Note within the meaning of the Indenture
hereinafter referred to and is registered in the name of the
Depositary or a nominee of the Depositary. This Note is
exchangeable for Notes registered in the name of a person other
than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and may not be
transferred except as a whole by the Depositary to a nominee of
the Depositary, by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such a
successor Depositary.”



     (d) Acts of Holders. The Depositary, as a Holder, may appoint agents and otherwise
authorize participants to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action which a Holder is entitled to give or take under the Indenture.



     (e) Payments. Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 2.02, payment of the principal of and interest, if
any, on any Global Note shall be made to the Holder thereof.



     (f) Consents, Declaration and Directions. Except as provided in Section 2.14(d), the
Company, the Trustee and any Agent shall treat a person as the Holder of such principal amount of
outstanding Notes of such Series represented by a Global Note as shall be specified in a written
statement of the Depositary with respect to such Global Note, for purposes of obtaining any
consents, declarations, waivers or directions required to be given by the Holders pursuant to this
Indenture.


Section 2.15 CUSIP Numbers.




     The Company in issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if
so, the Trustee shall use “CUSIP” numbers in notices 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 Notes or as contained in any notice and that reliance may be placed only on the
other elements of identification printed on the Notes, and any such notice shall not be affected by
any defect in or omission of such numbers. The Company shall promptly notify the Trustee in
writing of any change in the “CUSIP” numbers.



ARTICLE 3

REDEMPTION



Section 3.01 Notices to Trustee.




     The Company may, with respect to any Series of Notes, reserve the right to redeem the Series
of Notes or may covenant to redeem the Series of Notes or any part thereof prior to the Stated
Maturity thereof at such time and on such terms as provided for in such Notes. If a Series of
Notes is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity
thereof all or part of the Series of Notes pursuant to the terms of such Notes, it shall notify the
Trustee of the redemption date and the principal amount of Series of Notes to be redeemed. Subject
to Section 3.03, the Company shall deliver the notice to the Trustee at least 30 days before the
redemption date (or such shorter notice as may be acceptable to the Trustee).



13









 




Section 3.02 Selection of Notes to Be Redeemed.




     Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officer’s Certificate, if less than all of the Notes of a Series are to be redeemed
at any time, the Trustee will select such Notes for redemption except:




     (1) if such Notes are listed on any national securities exchange, in compliance with
the requirements of the principal national securities exchange on which such Notes are
listed;




     (2) if such Notes are not listed on any national securities exchange, in any manner
that the Trustee deems fair and appropriate, which may include selection pro rata or by
lot.



     The Trustee shall make the selection from Notes of the Series outstanding not previously
called for redemption.



     In the event of partial redemption, the particular Notes to be redeemed will be selected,
unless otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture
or an Officer’s Certificate, not less than 30 days prior to the redemption date by the Trustee from
the outstanding Notes not previously called for redemption.



     The Trustee will promptly notify the Company in writing of the Notes selected for redemption
and, in the case of any Note selected for partial redemption, the principal amount thereof to be
redeemed. Notes and portions of Notes selected will be in amounts of $2,000 and integral multiples
of $1,000 in excess of $2,000 or, with respect to Notes of any Series issuable in other
denominations pursuant to Section 2.02(c), the minimum principal denomination for each Series and
integral multiples thereof; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if less than $2,000 and/or not a
multiple of $1,000, shall be redeemed. Except as provided in the preceding sentence, provisions of
this Indenture that apply to Notes called for redemption also apply to portions of Notes called for
redemption.


Section 3.03 Notice of Redemption.




     (a) Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officer’s Certificate, at least 30 days but not more than 60 days before a
redemption date, the Company will mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered address, except that
redemption notices may be mailed more than 60 days prior to a redemption date if the notice is
issued in connection with a defeasance of the Notes of a Series or a satisfaction and discharge of
this Indenture with respect to Notes of a Series pursuant to Articles 8 or 10 hereof.



     The notice will identify the Notes to be redeemed and will state:




     (1) the clause of the Board Resolution, supplemental indenture or Officer’s
Certificate pursuant to which the redemption shall occur;




     (2) the redemption date;




     (3) the redemption price;




     (4) if any Note is being redeemed in part, the portion of the principal amount of such
Note to be redeemed and that, after the redemption date upon surrender of such Note, a new
Note



14









 




or Notes in principal amount equal to the unredeemed portion will be issued upon
cancellation of the original Note;





     (5) the name and address of the Paying Agent;




     (6) that Notes called for redemption must be surrendered to the Paying Agent to
collect the redemption price;




     (7) that, unless the Company defaults in making such redemption payment, interest on
Notes called for redemption will cease to accrue on and after the redemption date;




     (8) the paragraph of the Notes and or Section of this Indenture pursuant to which the
Notes called for redemption are being redeemed;




     (9) that no representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Notes being redeemed; and




     (10) any other information as may be required by the terms of the particular Series of
Notes being redeemed.



     At the Company’s request, the Trustee will give the notice of redemption in the Company’s name
and at the Company’s expense; provided, however, that the Company has delivered to the Trustee, at
least 30 days prior to the redemption date (or such shorter notice as may be acceptable to the
Trustee), an Officer’s Certificate requesting that the Trustee give such notice and setting forth
the information to be stated in such notice as provided in the preceding paragraph.


Section 3.04 Effect of Notice of Redemption.




     Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption become irrevocably due and payable on the redemption date at the redemption price. A
notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Notes shall
be paid at the redemption price plus accrued interest to the redemption date.


Section 3.05 Deposit of Redemption Price.




     On or before 10:00 a.m. Eastern Time on the redemption date, the Company will deposit with the
Trustee or with the Paying Agent money sufficient to pay the redemption price of and accrued
interest on all Notes to be redeemed on that date. The Trustee or the Paying Agent will promptly
return to the Company any money deposited with the Trustee or the Paying Agent by the Company in
excess of the amounts necessary to pay the redemption price of, and accrued interest on, all Notes
to be redeemed.



     If the Company complies with the provisions of the preceding paragraph, on and after the
redemption date interest will cease to accrue on the Notes or the portions of Notes of the Series
called for redemption. If a Note of a Series is redeemed on or after an interest record date but
on or prior to the related interest payment date, then any accrued and unpaid interest shall be
paid to the Person in whose name such Note was registered at the close of business on such record
date. If any Note of a Series called for redemption is not so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph, interest shall be
paid on the unpaid principal, from the redemption date until such principal is paid, and, if such
Notes provide for the payment of default interest, to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in such Notes and such Notes provide for
the payment of default interest.



15









 




Section 3.06 Notes Redeemed in Part.




     Upon surrender of a Note that is redeemed in part, the Company will issue and, upon receipt of
an Authentication Order, the Trustee will authenticate for the Holder at the expense of the Company
a new Note of the same Series equal in principal amount to the unredeemed portion of the Note
surrendered.



ARTICLE 4

COVENANTS



Section 4.01 Payment of Notes.




     The Company covenants and agrees for the benefit of the Holders of each Series of Notes that
the Company will pay or cause to be paid the principal of, premium, if any, and interest on, the
Notes of that Series on the dates and in the manner provided in such Notes and this Indenture.
Principal, premium, if any, and interest, will be considered paid on the date due if the Paying
Agent, if other than the Company or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on
the due date money deposited by the Company in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, and interest then due. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the next succeeding
Business Day, and no interest shall accrue on such payment for the intervening period.



Section 4.02 Reports.



     Unless this Section 4.02 is otherwise indicated to be inapplicable to the Notes of a
particular Series by a Board Resolution, a supplemental indenture or an Officer’s Certificate, the
Company shall deliver to the Trustee within 15 days after it files them with the SEC copies of the
annual reports and of the information, documents, and other reports (or copies of such portions of
any of the foregoing as the SEC may by rules and regulations prescribe) which the Company is
required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company
also shall comply with the other provisions of TIA Section 314(a). For the avoidance of doubt, the
Company will be deemed to have furnished such reports, information and documents referred to above
to the Trustee and the Holders if the Company, as applicable, has filed such reports with the SEC
via its Electronic Data Gathering and Retrieval System filing system and such reports are publicly
available. The Company will notify the Trustee of the filing by email or otherwise.
Notwithstanding anything in this Indenture to the contrary, the Company will not be deemed to have
failed to comply with any of its agreements under this Section 4.02 for purposes of Section 6.01(3)
until 90 days after the date any report, information or document is required to be filed with the
SEC pursuant to this covenant.



     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 their covenants hereunder (as to which the Trustee is entitled to
conclusively rely exclusively on an Officer’s Certificate).


Section 4.03 Compliance Certificate.




     (a) The Company shall deliver to the Trustee, within 120 days after the end of each fiscal
year of the Company, a brief certificate of the principal executive officer, principal financial
officer or principal accounting officer of the Company stating that in the course of performing
their duties as officers of the Company a review of the activities of the Company and the Company’s
Subsidiaries during the preceding fiscal year has been made under the supervision of the signing
officers with a view to



16









 







determining whether the Company has kept, observed, performed and fulfilled
its obligations under this Indenture, and further stating, as to each such officer signing such
certificate, that to the best of his or her knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this Indenture (or, if
a Default or Event of Default has occurred, describing all such Defaults or Events of Default of
which he or she may have knowledge and what action the Company is taking or proposes to take with
respect thereto) and that to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or interest, if any, on the
Notes is prohibited or if such event has occurred, a description of the event and what action the
Company is taking or proposes to take with respect thereto.



     (b) So long as any of the Notes are outstanding, the Company will deliver to the Trustee,
promptly upon any Officer becoming aware of any Default or Event of Default, an Officer’s
Certificate specifying such Default or Event of Default and what action the Company is taking or
propose to take with respect thereto; provided, however, that no notice need be delivered under
this Section 4.03(b) if the Default or Event of Default has been cured prior to the time delivery
of notice would have otherwise been required.


Section 4.04 Taxes.




     The Company will pay, and will cause each of its Subsidiaries to pay, prior to delinquency,
all material taxes, assessments and governmental levies except such as are contested in good faith
and by appropriate proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders of the Notes.


Section 4.05 Stay, Extension and Usury 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, extension or usury law wherever enacted, now or at any time hereafter in force, that 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, by resort to any such law, 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 has been enacted.


Section 4.06 Corporate Existence.




     Subject to Article 5 hereof, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect:




     (1) its corporate existence, and the corporate, partnership, limited liability company
or other existence of each of its Significant Subsidiaries, in accordance with the
respective organizational documents (as the same may be amended from time to time) of the
Company or any such Significant Subsidiary; and




     (2) the rights (charter and statutory), licenses and franchises of the Company and its
Significant Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or other
existence of any of its Significant Subsidiaries, if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the business of the
Company and its Subsidiaries, taken as a



17









 






whole, and that the loss thereof is not adverse in
any material respect to the Holders of the Notes or such action is otherwise permitted by
this Indenture.



ARTICLE 5

SUCCESSORS



Section 5.01 Merger, Consolidation, or Sale of Assets.




     Unless this Section 5.01 is otherwise indicated to be inapplicable to the Notes of a
particular Series by a Board Resolution, a supplemental indenture or an Officer’s Certificate, the
Company will not: (i) consolidate or merge with or into another Person or (ii) sell, assign,
transfer, convey, lease or otherwise dispose of all or substantially all of the properties or
assets of the Company and its Subsidiaries taken as a whole, in one or more related transactions,
to another Person, unless:




     (1) either:




     (A) the Company is the surviving entity; or




     (B) the Person formed by or surviving any such consolidation or merger (if
other than the Company) or to which such sale, assignment, transfer, conveyance,
lease or other disposition has been made is a corporation, partnership or limited
liability company organized or existing under the laws of the United States, any
state of the United States or the District of Columbia;




     (2) the Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, conveyance, lease or other
disposition has been made assumes all the obligations of the Company under the Notes and
this Indenture pursuant to agreements reasonably satisfactory to the Trustee; and




     (3) immediately after such transaction, no Default or Event of Default exists (other
than in the case of (i) a merger of the Company with an Affiliate solely for the purpose of
reincorporating the Company in another jurisdiction or (ii) any consolidation or merger, or
any sale, assignment, transfer, conveyance, lease or other disposition of assets between or
among the Company and its Subsidiaries).


Section 5.02 Successor Corporation Substituted.




     Upon any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or
other disposition of all or substantially all of the properties or assets of the Company and its
Subsidiaries, taken as a whole, in a transaction that is subject to, and that complies with the
provisions of, Section 5.01 hereof, the successor Person formed by such consolidation or into or
with which the Company is merged or to which such sale, assignment, transfer, conveyance, lease or
other disposition is made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, assignment, transfer, conveyance, lease or other disposition,
the provisions of this Indenture referring to the “Company” shall refer instead to the successor
Person and not to the Company), 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;
provided, however, that the predecessor Company shall not be relieved from the obligation to pay
the principal of and premium, if any, and interest on the Notes in the case of such a sale,
assignment, transfer, conveyance, lease or other disposition.



18









 





ARTICLE 6

DEFAULTS AND REMEDIES



Section 6.01 Events of Default.




     “Event of Default,” wherever used herein with respect to Notes of any Series, means any one of
the following events, unless in the establishing Board Resolution, supplemental indenture or
Officer’s Certificate it is provided that such Series shall not have the benefit of said Event of
Default:




     (1) default for 30 days in the payment when due of interest with respect to the Notes
of that Series;




     (2) default in the payment when due (at Maturity, upon redemption or otherwise) of the
principal of, or premium, if any, on, the Notes of that Series;




     (3) failure by the Company to comply with any of the other covenants in this Indenture
(other than a covenant that has been included in this Indenture solely for the benefit of a
Series of Notes other than that Series) and such failure continues for the period and after
the notice specified below;




     (4) default under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money borrowed by
the Company, whether such Indebtedness now exists, or is created after the Issue Date, if
that default




     (A) is caused by a failure to pay principal of, or interest or premium, if
any, on, such Indebtedness prior to the expiration of the grace period provided in
such Indebtedness following the Stated Maturity of such Indebtedness (a “Payment
Default”); or




     (B) results in the acceleration of such Indebtedness prior to its Stated
Maturity,




and, in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates such amount as may be
set forth in a Board Resolution, a supplemental indenture or an Officer’s Certificate for a
particular Series of Notes;




     (5) the Company or any of its Significant Subsidiaries or any group of Subsidiaries of
the Company that, taken together, would constitute a Significant Subsidiary, pursuant to or
within the meaning of Bankruptcy Law




     (A) commences a voluntary case;




     (B) consents to the entry of an order for relief against it in an involuntary
case;




     (C) consents to the appointment of a Custodian of it or for all or
substantially all of its property;




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



19









 






     (E) generally is not paying its debts as they become due;




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




     (A) is for relief against the Company or any of its Significant Subsidiaries
or any group of Subsidiaries of the Company that, taken together, would constitute
a Significant Subsidiary in an involuntary case;




     (B) appoints a Custodian of the Company or any of its Significant Subsidiaries
or any group of Subsidiaries of the Company that, taken together, would constitute
a Significant Subsidiary or for all or substantially all of the property of the
Company or any of its Significant Subsidiaries or any group of Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary; or




     (C) orders the liquidation of the Company or any of Significant Subsidiaries
or any group of Subsidiaries of the Company that, taken together, would constitute
a Significant Subsidiary,



     and the order or decree remains unstayed and in effect for 60 consecutive days;




     (7) any other Event of Default provided with respect to Notes of that Series, which is
specified in a Board Resolution, a supplemental indenture or an Officer’s Certificate, in
accordance with Section 2.02(t).



     A Default under clause (3) shall not be an Event of Default until the Trustee notifies the
Company, or the holders of at least 25% in aggregate principal amount of the Notes of that Series
then outstanding voting as a single class notify the Company and the Trustee, of the Default and
the Company does not cure the Default or it is not waived within 60 days after the receipt of the
notice. The notice must specify the Default, demand that it be remedied to the extent consistent
with law and state that the notice is a “Notice of Default.”


Section 6.02 Acceleration.




     In the case of an Event of Default with respect to Notes of any Series at the time outstanding
specified in clause (5) or (6) of Section 6.01 hereof with respect to the Company all outstanding
Notes of such Series will become due and payable immediately without further action or notice. If
any other Event of Default with respect to Notes of any Series at the time outstanding occurs and
is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount (or, if any
Notes of that Series are Discount Notes, such portion of the principal amount as may be specified
in the terms of such Notes) of the then outstanding Notes of such Series may declare all such Notes
to be due and payable immediately.



     Upon any such declaration, the Notes of such Series shall become due and payable immediately.



     The Holders of a majority in aggregate principal amount of the then outstanding Notes of such
Series by written notice to the Trustee may, on behalf of all of the Holders of such Notes, rescind
any declaration or acceleration and its consequences (other than with respect to an Event of
Default specified in clauses (5) or (6) of Section 6.01 relating to the Company), if the rescission
would not conflict with any judgment or decree and if all existing Events of Default with respect
to such Notes (except nonpayment of principal, premium, if any, or interest that has become due
solely because of the acceleration) have been cured or waived.



20









 




Section 6.03 Other Remedies.




     If an Event of Default with respect to the Notes of a Series occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and
interest on such Notes or to enforce the performance of any provision of such Notes or this
Indenture.



     The Trustee may maintain a proceeding with respect to the Notes of a Series even if it does
not possess any of such Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an
Event of Default with respect to the Notes of a Series shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default with respect to such Notes. All
remedies are cumulative to the extent permitted by law.


Section 6.04 Waiver of Past Defaults.




     Holders of a majority in aggregate principal amount of the then outstanding Notes of a Series
by notice to the Trustee may on behalf of the Holders of all of such Notes waive an existing
Default or Event of Default with respect to such Notes and its consequences hereunder, except a
continuing Default or Event of Default with respect to such Notes in the payment of the principal
of, premium, if any, or interest on, such Notes. Upon any such waiver, such Default with respect
to such Notes shall cease to exist, and any Event of Default with respect to such Notes arising
therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default with respect to such Notes or impair any
right with respect to such Notes consequent thereon.


Section 6.05 Control by Majority.




     Holders of a majority in aggregate principal amount of the then outstanding Notes of a Series
may direct the time, method and place of conducting any proceeding for exercising any remedy
available to the Trustee or exercising any trust or power conferred on it. However, the Trustee
may refuse to follow any direction that conflicts with law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of other Holders of Notes of such Series or that
may involve the Trustee in personal liability.


Section 6.06 Limitation on Suits.




     A Holder of Notes of a Series may pursue a remedy with respect to this Indenture or the Notes
of such Series only if:




     (1) such Holder has previously given the Trustee written notice that an Event of
Default with respect to such Notes is continuing;




     (2) Holders of at least 25% in aggregate principal amount of the then outstanding
Notes of such Series make a written request to the Trustee to pursue the remedy;




     (3) such Holder or Holders offer and, if requested, provide to the Trustee security or
indemnity reasonably satisfactory to the Trustee against any loss, liability or expense;




     (4) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer of security or indemnity; and



21









 






     (5) during such 60-day period, Holders of a majority in aggregate principal amount of
the then outstanding Notes of such Series do not give the Trustee a direction inconsistent
with such request.



     A Holder of a Note of a particular Series may not use this Indenture to prejudice the rights
of another Holder of a Note of that Series or to obtain a preference or priority over another
Holder of a Note of that Series.


Section 6.07 Rights of Holders of Notes to Receive Payment.




     Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal of and premium, if any, and interest on the Note, on or after the
respective due dates expressed in the Note, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected without the consent of
such Holder.


Section 6.08 Collection Suit by Trustee.




     If an Event of Default specified in Section 6.01(1) or (2) hereof occurs and is continuing
with respect to Notes of a Series, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of principal of and
premium, if any, and interest remaining unpaid on, such Notes and, if such Notes provide for the
payment of default interest, interest on overdue principal and, to the extent lawful, interest and
such further amount as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel.


Section 6.09 Trustee May File Proofs of Claim.




     The Trustee is authorized to file such proofs of claim and 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 the Holders of the Notes allowed in any liquidation, dissolution, bankruptcy,
insolvency, reorganization, receivership or similar proceeding under Bankruptcy Law, an assignment
for the benefit of creditors, any marshalling of assets or liabilities, or winding up or
dissolution, not including any transaction permitted by and made in compliance with Article 5 (each
of the foregoing, a “Proceeding”) and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or deliverable on any such claims, and any Custodian
in any 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 to it for the reasonable and documented compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any
and all distributions, dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan of reorganization
or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any Proceeding.



22









 




Section 6.10 Priorities.




     If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in
the following order:




     First: to the Trustee, its agents and attorneys for amounts due under Section 7.07
hereof, including payment of all reasonable compensation, expenses and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of collection;




     Second: to Holders of Notes for amounts due and unpaid on the Notes for principal,
premium, if any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal, premium, if any, and
interest, respectively; and




     Third: to the Company or to such party as a court of competent jurisdiction shall
direct.



     The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.10.


Section 6.11 Undertaking for Costs.




     In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable and
documented attorneys’ fees, against any party litigant in the suit, having due regard to the merits
and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not
apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a
suit by Holders of more than 10% in aggregate principal amount of the then outstanding Notes of any
Series.



ARTICLE 7

TRUSTEE



Section 7.01 Duties of Trustee.




     (a) If an Event of Default has occurred and is continuing, the Trustee will exercise such of
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.



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




     (1) the duties of the Trustee will be determined solely by the express
provisions of this Indenture and the Trustee need perform only those duties that
are specifically set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture against the Trustee; and




     (2) in the absence of bad faith, willful misconduct or negligence 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




23











 






conforming to the requirements of this Indenture. However, the Trustee will
examine the certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.



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




     (1) this paragraph does not limit the effect of paragraph (b) of this Section
7.01;




     (2) the Trustee will 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 will not be liable with respect to any action it takes or omits
to take with respect to Notes of any Series in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.



     (d) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this Section 7.01.



     (e) No provision of this Indenture will require the Trustee to expend or risk its own funds or
incur any liability. The Trustee will be under no obligation to exercise any of its rights and
powers under this Indenture at the request or demand of any Holders, unless the Holders have
offered to the Trustee security and indemnity satisfactory to it against any loss, liability or
expense.



     (f) The Trustee will not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.


Section 7.02 Rights of Trustee.




     (a) The Trustee may conclusively rely upon 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 Officer’s Certificate
or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits
to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee
may consult with counsel and the written advice of such counsel or any Opinion of Counsel will be
full and complete authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.



     (c) The Trustee may act through its attorneys and agents and will not be responsible for the
misconduct or negligence of any agent appointed with due care.



     (d) The Trustee will not be liable for any action it takes or omits to take in good faith that
it believes to be authorized or within the rights or powers conferred upon it by this Indenture;
provided, however, that the Trustee’s conduct does not constitute willful misconduct or negligence.



24









 





     (e) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from the Company will be sufficient if signed by an Officer.



     (f) The Trustee will be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders unless such Holders have
offered to the Trustee reasonable indemnity or security against the losses, liabilities and
expenses that might be incurred by it in compliance with such request or direction.



     (g) 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 such a default is received by a Responsible Officer of the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.



     (h) The rights, privileges, protections, immunities and benefits given to the Trustee,
including 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.



     (i) The Trustee shall not be deemed to have knowledge of any fact or matter unless such fact
or matter is known to a Responsible Officer of the Trustee.



     (j) Whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may request, and in the absence
of bad faith, willful misconduct or negligence on its part, rely upon an Officer’s Certificate and
an Opinion of Counsel.



     (k) In no event shall the Trustee be responsible or liable for special, indirect, punitive,
incidental or consequential loss or damage of any kind whatsoever (including, but not limited to,
loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss
or damage and regardless of the form of action; provided, however, that the Trustee’s conduct does
not constitute bad faith, willful misconduct or negligence.



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


Section 7.03 Individual Rights of Trustee.




     The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Company or any Affiliate of the Company with the same rights it
would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee (if this Indenture has been qualified under the TIA) or resign. Any Agent may
do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11
hereof.


Section 7.04 Trustee’s Disclaimer.




     The Trustee will not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the
proceeds from the Notes or any money paid to the Company or upon the Company ‘s direction under any
provision of this



25









 




Indenture, it will not be responsible for the use or application of any money received by any
Paying Agent other than the Trustee, and it will not be responsible for any statement or recital
herein or any statement in the Notes or any other document in connection with the sale of the Notes
or pursuant to this Indenture other than its certificate of authentication.



Section 7.05 Notice of Defaults.




     If a Default or Event of Default occurs and is continuing with respect to the Notes of a
Series and if it is known to the Trustee, the Trustee will mail to Holders of such Notes a notice
of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default
or Event of Default in payment of principal of or premium, if any, or interest on any Note of a
Series, 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 the Holders of
such Notes.


Section 7.06 Reports by Trustee to Holders of the Notes.




     (a) Within 60 days after each May 15 beginning with the May 15 following the Issue Date, and
for so long as Notes of a Series remain outstanding, the Trustee will mail to the Holders of such
Notes a brief report dated as of such reporting date that complies with TIA § 313(a) (but if no
event described in TIA § 313(a) has occurred within the twelve months preceding the reporting date,
no report need be transmitted). The Trustee also will comply with TIA § 313(b)(2). The Trustee
will transmit by mail all reports as required by TIA § 313(c).



     (b) A copy of each report at the time of its mailing to the Holders of Notes of a Series will
be mailed by the Trustee to the Company and filed by the Trustee with the SEC and each stock
exchange on which such Notes are listed in accordance with TIA § 313(d). The Company will promptly
notify the Trustee when Notes of any Series are listed on any stock exchange.


Section 7.07 Compensation and Indemnity.




     (a) The Company will pay to the Trustee from time to time reasonable compensation for its
acceptance of this Indenture and services hereunder. The Trustee’s compensation will not be
limited by any law on compensation of a trustee of an express trust. The Company will reimburse
the Trustee promptly upon request for all reasonable and documented disbursements, advances and
expenses incurred or made by it in addition to the compensation for its services. Such expenses
will include the reasonable and documented compensation, disbursements and expenses of the
Trustee’s agents and counsel.



     (b) The Company will indemnify the Trustee against any and all losses, liabilities or expenses
incurred by it arising out of or in connection with the acceptance or administration of its duties
under this Indenture, including the reasonable and documented costs and expenses of enforcing this
Indenture against the Company (including this Section 7.07) and 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, except to the extent any such
loss, liability or expense may be attributable to its bad faith, willful misconduct or negligence.
The Trustee will notify the Company promptly of any claim for which it may seek indemnity. Failure
by the Trustee to so notify the Company will not relieve the Company of its obligations hereunder.
The Company will defend the claim and the Trustee will cooperate in the defense. The Trustee may
have separate counsel and the Company will pay the reasonable and documented fees and expenses of
such counsel. The Company need not pay for any settlement made without its consent, which consent
will not be unreasonably withheld.



26









 





     (c) The obligations of the Company under this Section 7.07 will survive the satisfaction and
discharge of this Indenture.



     (d) To secure the Company’s payment obligations in this Section 7.07, the Trustee will have a
lien prior to the Notes of a Series on all money or property held or collected by the Trustee,
except that held in trust to pay principal and interest on particular Notes of such Series. Such
lien will survive the satisfaction and discharge of this Indenture.



     (e) When the Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(5) or (6) hereof occurs, the expenses and the compensation for the services
(including the fees and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.



     (f) The Trustee will comply with the provisions of TIA § 313(b)(2) to the extent applicable.


Section 7.08 Replacement of Trustee.




     (a) A resignation or removal of the Trustee and appointment of a successor Trustee will become
effective only upon the successor Trustee’s acceptance of appointment as provided in this Section
7.08.



     (b) The Trustee may resign with respect to the Notes of one or more Series in writing at any
time and be discharged from the trust hereby created by so notifying the Company. The Holders of a
majority in aggregate principal amount of the then outstanding Notes of a Series may remove the
Trustee with respect to such Series by so notifying the Trustee and the Company in writing. The
Company may remove the Trustee with respect to the Notes of one or more Series if:




     (1) the Trustee fails to comply with Section 7.10 hereof;




     (2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;




     (3) a Custodian or public officer takes charge of the Trustee or its property; or




     (4) the Trustee becomes incapable of acting.



     (c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for
any reason, the Company will promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then
outstanding Notes of a Series may appoint a successor Trustee to replace the successor Trustee
appointed by the Company with respect to such Series.



     (d) If a successor Trustee with respect to the Notes of a Series does not take office within
60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company, or the
Holders of at least 10% in aggregate principal amount of the then outstanding Notes of such Series
may petition any court of competent jurisdiction for the appointment of a successor Trustee.



     (e) If the Trustee with respect to the Notes of a Series, after written request by any Holder
of the applicable Series who has been a Holder for at least six months, fails to comply with
Section 7.10 hereof, such Holder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.



27









 





     (f) A successor Trustee will deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee will
become effective, and the successor Trustee will have all the rights, powers and duties of the
Trustee with respect to each Series of Notes for which it is acting as Trustee under this
Indenture. The successor Trustee will mail a notice of its succession to Holders of each such
Series. The retiring Trustee will promptly transfer all property held by it as Trustee to the
successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to
the lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company’s obligations under Section 7.07 hereof will continue for the
benefit of the retiring Trustee with respect to expenses and liabilities incurred by it prior to
such replacement.


Section 7.09 Successor Trustee by Merger, etc.




     If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another Person, the successor Person without any further act will
be the successor Trustee.


Section 7.10 Eligibility; Disqualification.




     There will at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $100.0
million as set forth in its most recent published annual report of condition.



     This Indenture will always have a Trustee who satisfies the requirements of TIA § 310(a)(1),
(2) and (5). The Trustee is subject to TIA § 310(b).


Section 7.11 Preferential Collection of Claims Against the Company.




     The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA §
311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent
indicated therein.



ARTICLE 8

LEGAL DEFEASANCE AND COVENANT DEFEASANCE



Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.




     Unless this Section 8.01 is otherwise indicated to be inapplicable to the Notes of a
particular Series by a Board Resolution, a supplemental indenture or an Officer’s Certificate, the
Company may at any time, at the option of its Board of Directors evidenced by a resolution set
forth in an Officer’s Certificate, elect to have either Section 8.02 or Section 8.03 hereof be
applied to all outstanding Notes of a Series upon compliance with the conditions set forth below in
this Article 8.


Section 8.02 Legal Defeasance and Discharge.




     Unless this Section 8.02 is otherwise indicated to be inapplicable to the Notes of a
particular Series by a Board Resolution, a supplemental indenture or an Officer’s Certificate, upon
the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the
Company will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be
deemed to have been discharged



28









 




from its obligations with respect to all outstanding Notes of such Series on the date the
conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose,
Legal Defeasance means that the Company will be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes of such Series, which will thereafter be deemed
to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this
Indenture referred to in clauses (1) and (2) below, and to have satisfied all their other
obligations under such Notes of such Series and this Indenture (and the Trustee, on demand of and
at the expense of the Company, shall execute proper instruments acknowledging the same), except for
the following provisions which will survive until otherwise terminated or discharged hereunder:





     (1) the rights of Holders of outstanding Notes of such Series to receive payments in
respect of the principal of or premium, if any, or interest on such Notes when such payments
are due from the trust referred to in Section 8.04 hereof;




     (2) the Company’s obligations with respect to such Notes under Article 2 and Section
4.02 hereof;




     (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s obligations in connection therewith; and




     (4) this Article 8.



     Subject to compliance with this Article 8, the Company may exercise its option under this
Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.


Section 8.03 Covenant Defeasance.




     Unless this Section 8.03 is otherwise indicated to be inapplicable to the Notes of a
particular Series by a Board Resolution, a supplemental indenture or an Officer’s Certificate, upon
the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the
Company will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be
released from its obligations under the covenants contained in Sections 4.05, 4.06 and 5.01 hereof
as well as any additional covenants for a particular Series of Notes contained in a Board
Resolution, a supplemental indenture or an Officer’s Certificate delivered pursuant to Section
2.02(t) with respect to the outstanding Notes of such Series on and after the date the conditions
set forth in Section 8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”), and the Notes
of such Series will thereafter be deemed not “outstanding” for the purposes of any direction,
waiver, consent or declaration or act of Holders of such Series (and the consequences of any
thereof) in connection with such covenants, but will continue to be deemed “outstanding” for all
other purposes hereunder (it being understood that such Notes will not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes of such Series, the Company may omit to comply with and will have no liability in
respect of any term, condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any
reference in any such covenant to any other provision herein or in any other document and such
omission to comply will not constitute a Default or an Event of Default under Section 6.01 hereof,
but, except as specified above, the remainder of this Indenture and such Notes of such Series will
be unaffected thereby. In addition, upon the Company’s exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, Sections 6.01(3) through 6.01(6) hereof will not constitute Events of Default.



29









 




Section 8.04 Conditions to Legal or Covenant Defeasance.




     In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02
or Section 8.03 hereof:




     (1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders of such Series, cash in U.S. dollars, Government Securities, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized
investment bank, appraisal firm, or firm of independent public accountants, to pay the
principal of and premium, if any, and interest on the outstanding Notes of such Series on
the stated date for payment thereof or on the applicable redemption date, as the case may
be, and the Company must specify whether the Notes of such Series are being defeased to such
stated date for payment or to a particular redemption date;




     (2) in the case of an election under Section 8.02 hereof, the Company must deliver to
the Trustee an Opinion of Counsel confirming that:




     (A) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling; or




     (B) since the Issue Date, there has been a change in the applicable federal
income tax law,




in either case to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of the outstanding Notes of such Series will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such Legal Defeasance had not occurred;




     (3) in the case of an election under Section 8.03 hereof, the Company must deliver to
the Trustee an Opinion of Counsel confirming that the Holders of the outstanding Notes of
such Series will not recognize income, gain or loss for federal income tax purposes as a
result of such Covenant Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;




     (4) no Default or Event of Default with respect to Notes of such Series shall have
occurred and be continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such deposit and the grant of
any lien securing such borrowing);




     (5) such Legal Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under, any material agreement or instrument (other
than this Indenture) to which the Company or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries is bound;




     (6) the Company must deliver to the Trustee an Officer’s Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders of Notes of
such Series over the other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding any creditors of the Company; and



30









 






     (7) the Company must deliver to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.


Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous
Provisions.




     Subject to Section 8.06 hereof, all money and Government Securities (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding Notes of
such Series will be held in trust and applied by the Trustee, in accordance with the provisions of
such Notes and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company or Subsidiary of the Company acting as Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, but such money need not be segregated from other funds
except to the extent required by law.



     The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or Government Securities deposited pursuant to Section 8.04 hereof or
the principal and interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of the outstanding Notes of such Series.



     Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to
the Company from time to time upon the request of the Company any money or Government Securities
held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are in excess of the
amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance
or Covenant Defeasance.


Section 8.06 Repayment to Company.




     Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or premium, if any, or interest on any Note of such
Series and remaining unclaimed for two years after such principal, premium or interest has become
due and payable shall be paid to the Company on its request or (if then held by the Company) will
be discharged from such trust; and the Holder of such Note will thereafter be permitted to look
only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee thereof, will thereupon
cease.


Section 8.07 Reinstatement.




     If the Trustee or Paying Agent is unable to apply any money or Government Securities in
accordance with Sections 8.02 or 8.03 hereof, as the case may be, by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the Company’s obligations under this Indenture and
the Notes of the applicable Series will be revived and reinstated as though no deposit had occurred
pursuant to Sections 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Sections 8.02 or 8.03 hereof, as the case may
be; provided that if the Company makes any payment of principal of or premium, if any, or interest
on any Note of such Series following the reinstatement of its obligations, the Company will be
subrogated to the rights of the Holders of such Notes to receive such payment from the money or
Government Securities held by the Trustee or Paying Agent.



31









 





ARTICLE 9

AMENDMENT, SUPPLEMENT AND WAIVER



Section 9.01 Without Consent of Holders of Notes.




     Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officer’s Certificate, notwithstanding Section 9.02 of this Indenture, the Company
and the Trustee may amend or supplement this Indenture or the Notes of one or more Series without
the consent of any Holder of such Notes:




     (1) to cure any ambiguity, defect or inconsistency;




     (2) to comply with Article 5;




     (3) to provide for uncertificated Notes in addition to or in place of certificated
Notes;




     (4) to evidence the assumption of the Company’s obligations under this Indenture and
the Notes by a successor thereto in the case of a consolidation or merger or a sale,
assignment, transfer, conveyance, lease or other disposition of all or substantially all of
the properties or assets of the Company’s and its Subsidiaries, taken as a whole;




     (5) to comply with the provisions of any clearing agency, clearing corporation or
clearing system, or the requirements of the Trustee or the registrar, relating to transfers
and exchanges of the Notes pursuant to this Indenture;




     (6) to make any change that would provide any additional rights or benefits to the
Holders of the Notes of a Series, that would surrender any right, power or option conferred
by this Indenture on the Company or that does not adversely affect in any material respect
the legal rights of any Holder of such Notes;




     (7) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA;




     (8) to conform the text of this Indenture (only with respect to such Series) or any
Board Resolution, supplemental indenture or Officer’s Certificate with respect to the Notes
of such Series to the description of notes contained in the offering document pursuant to
which such Notes were offered;




     (9) to provide for the issuance of and establish the form and terms and conditions of
Notes of any Series as permitted by this Indenture;




     (10) in the case of subordinated Notes, to make any change in the provisions of this
Indenture or any supplemental indenture relating to subordination that would limit or
terminate the benefits available to any holder of senior Indebtedness under such provisions;
provided that such change is made in accordance with the provisions of such senior
Indebtedness;




     (11) to add to, change or eliminate any of the provisions of this Indenture with
respect to Notes of a Series; although no such addition, change or elimination may apply to
Notes of a Series created prior to the execution of such amendment and entitled to the
benefit of such provision, nor may any such amendment modify the legal rights of a Holder of
any such Note with respect to such provision, unless the amendment becomes effective only
when there is no



32









 







outstanding Note of a Series created prior to such amendment and entitled to the
benefit of such provision;




     (12) to secure the Company’s obligations under the Notes and this Indenture;




     (13) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Notes of one or more Series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or




     (14) to allow any guarantor to execute a supplemental indenture and/or a note guarantee
with respect to the Notes.



     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the Company
in the execution of such amended or supplemental indenture and make any further appropriate
agreements and stipulations that may be therein contained unless such amended or supplemental
indenture directly affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but will not be obligated to, enter
into such amended or supplemental Indenture.


Section 9.02 With Consent of Holders of Notes.




     (a) Except as provided below in this Section 9.02, the Company and the Trustee may amend or
supplement this Indenture and the Notes of a Series with the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes of such Series voting as a
single class (including, without limitation, consents obtained in connection with a tender offer or
exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any
existing Default or Event of Default (other than a Default or Event of Default in the payment of
the principal of or premium, if any, or interest on the Notes, except a payment default resulting
from an acceleration that has been rescinded) or compliance with any provision of this Indenture or
the Notes may be waived with the consent of the Holders of a majority in aggregate principal amount
of the then outstanding Notes of such Series voting as a single class (including, without
limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase
of, the Notes). Section 2.09 hereof shall determine which Notes are considered to be “outstanding”
for purposes of this Section 9.02.



     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, upon receipt by the
Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the
Trustee will join with the Company in the execution of such amended or supplemental indenture and
make any further appropriate agreements and stipulations that may be therein contained unless such
amended or supplemental indenture directly affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its discretion, but will not be
obligated to, enter into such amended or supplemental Indenture.



     It is not necessary for the consent of the Holders of Notes under this Section 9.02 to approve
the particular form of any proposed amendment, supplemental indenture or waiver, but it is
sufficient if such consent approves the substance thereof.



33









 





     After an amendment, supplemental indenture or waiver under this Section 9.02 becomes
effective, the Company will mail to the Holders of Notes affected thereby a notice briefly
describing the amendment, supplemental indenture or waiver. Any failure of the Company to mail
such notice, or any defect therein, will not, however, in any way impair or affect the validity of
any such amendment, supplemental indenture or waiver. Subject to Sections 6.04 and 6.07 hereof,
the Holders of a majority in aggregate principal amount of the Notes of a Series then outstanding
voting as a single class may waive compliance in a particular instance by the Company with any
provision of this Indenture or such Notes.



     (b) Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officer’s Certificate, without the consent of each Holder of Notes
affected (whether in aggregate holding a majority in principal amount of Notes of such Series or
not), an amendment, supplemental indenture or waiver may not be made that, as to any non-consenting
Holder of Notes:




     (1) reduces the percentage of principal amount of outstanding Notes whose Holders must
consent to an amendment, supplemental indenture or waiver;




     (2) reduces the rate of interest on any Note;




     (3) reduces the principal amount of or the premium, if any, on any Note or changes the
Stated Maturity of any Note;




     (4) changes the place, manner or currency of payment of principal of, or premium, if
any, or interest on, any Note;




     (5) makes any change in the provisions of this Indenture relating to seniority or
subordination of any Note that adversely affects the rights of any Holder under such
provisions;




     (6) reduces the principal amount of Discount Notes payable upon acceleration of the
maturity thereof;




     (7) waives a Default or Event of Default in the payment of the principal of or premium,
if any, or interest on the Notes (except a rescission of acceleration of the Notes of any
Series by the Holders of at least a majority in principal amount of the outstanding Notes of
such Series and a waiver of the payment default that resulted from such acceleration);




     (8) makes any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of Holders of Notes to receive payments of principal of or premium,
if any, or interest on the Notes;




     (9) waives a redemption payment with respect to any Note or changes any of the
provisions with respect to the redemption of any Notes; or




     (10) makes any change in the amendment and waiver provisions of this Section 9.02(b).


Section 9.03 Compliance with Trust Indenture Act.




     Every amendment or supplemental indenture to this Indenture or the Notes of one or more Series
will be set forth in an amended or supplemental indenture that complies with the TIA as then in
effect.



34









 




Section 9.04 Revocation and Effect of Consents.




     Until an amendment, supplemental indenture or waiver becomes effective, a consent to it by a
Holder of a Note is a continuing consent by the Holder of such Note and every subsequent Holder of
such Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even
if notation of the consent is not made on such Note. However, any such Holder of a Note or
subsequent Holder of such Note may revoke the consent as to its Note if the Trustee receives
written notice of revocation before the date the amendment, supplemental indenture or waiver
becomes effective. An amendment, supplemental indenture or waiver becomes effective in accordance
with its terms and thereafter binds every Holder of each Series affected by such amendment,
supplemental indenture or waiver unless it is of the type described in any of clauses (1) through
(10) of Section 9.02(b) (as such Section 9.02(b) may be amended or supplemented from time to time
in accordance with this Indenture), in which the amendment, supplemental indenture or waiver shall
bind each Holder of a Note who has consented to it and every subsequent Holder of a Note or portion
of a Note that evidences the same debt as the consenting Holder’s Note.


Section 9.05 Notation on or Exchange of Notes.




     The Trustee may place an appropriate notation about an amendment, supplemental indenture or
waiver on any Note of such Series thereafter authenticated. The Company in exchange for all Notes
of that Series may issue and the Trustee shall, upon receipt of an Authentication Order,
authenticate new Notes of that Series that reflect the amendment, supplemental indenture or waiver.



     Failure to make the appropriate notation or issue a new Note of that Series will not affect
the validity and effect of such amendment, supplemental indenture or waiver.


Section 9.06 Trustee to Sign Amendments, etc.




     The Trustee will sign any amended or supplemental indenture authorized pursuant to this
Article 9 if the amendment or supplemental indenture does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. In executing any amended or supplemental indenture, the
Trustee will be entitled to receive and (subject to Section 7.01 hereof) will be fully protected in
relying upon, in addition to the documents required by Section 11.04 hereof, an Officer’s
Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture.



ARTICLE 10

SATISFACTION AND DISCHARGE



Section 10.01 Satisfaction and Discharge.




     Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officer’s Certificate, this Indenture will be discharged and will cease
to be of further effect (except as hereinafter provided in this Section 10.01) with respect to the
Notes of a Series and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to all Notes of such Series issued
hereunder, when:




     (1) either:




     (a) all Notes of such Series that have been authenticated and, except lost,
stolen or destroyed Notes of such Series that have been replaced or paid and Notes of



35









 







such Series for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company,
have been delivered to the Trustee for cancellation; or




     (b) all Notes of such Series that have not been delivered to the Trustee for
cancellation




     1. have become due and payable,




     2. will become due and payable at their Stated Maturity within one
year,




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




     4. are deemed paid and discharged pursuant to Section 8.02 hereof,




and the Company, in the case of 1, 2 or 3 above, has irrevocably deposited or caused
to be deposited with the Trustee as trust funds in trust solely for the benefit of
the Holders of Notes of such Series, cash in U.S. dollars, Government Securities, or
a combination thereof, in such amounts as will be sufficient, without consideration
of any reinvestment of interest, to pay and discharge the entire Indebtedness on
such Notes not delivered to the Trustee for cancellation, including all principal,
premium, if any, and interest (in the case of Notes of such Series that have become
due and payable on or prior to the date of such deposit) or to the Stated Maturity
or redemption date, as the case may be;




     (2) the Company has paid or caused to be paid all sums payable by it under this
Indenture with respect to Notes of such Series; and




     (3) the Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes of such Series at
maturity or on the redemption date, as the case may be.


In addition, Company must deliver an Officer’s Certificate and an Opinion of Counsel to the Trustee
stating that all conditions precedent to satisfaction and discharge of Notes of such Series have
been satisfied.




     Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited
with the Trustee pursuant to clause (1) of this Section 10.01, the provisions of Sections 2.04,
2.07, 2.08, 8.06 and 10.02 hereof and this Section 10.01 will survive. In addition, nothing in
this Section 10.01 will be deemed to discharge those provisions of Section 7.07 hereof, that, by
their terms, survive the satisfaction and discharge of this Indenture with respect to Notes of such
Series.


Section 10.02 Application of Trust Money.




     Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee
pursuant to Section 10.01 hereof with respect to the Notes of a Series shall be held in trust and
applied by it, in accordance with the provisions of the Notes of such Series and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal,
premium, if any, and interest for



36









 




whose payment such money has been deposited with the Trustee; but such money need not be
segregated from other funds except to the extent required by law.



Section 10.03 Reinstatement.




     If the Trustee or Paying Agent is unable to apply any money or Government Securities in
accordance with Section 10.01 or 10.02 hereof by reason of any legal proceeding or by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company’s obligations under this Indenture with respect to
Notes of such Series and the Notes of such Series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 10.01 or 10.02 hereof until such time as the Trustee or
such Paying Agent is permitted to apply all such money in accordance with Section 10.01 or 10.02
hereof; provided that if the Company has made any payment of principal of or premium, if any, or
interest on any Notes of such Series following of the reinstatement of its obligations, the Company
will be subrogated to the rights of the Holders of such Notes to receive such payment from the
money or Government Securities held by the Trustee or Paying Agent.



ARTICLE 11

MISCELLANEOUS



Section 11.01 Notices.




     Any notice or communication by the Company or the Trustee to the others is duly given if in
writing and delivered in Person or by first class mail (registered or certified, return receipt
requested), facsimile transmission or overnight air courier guaranteeing next day delivery, to the
others’ address:



	 	 	 	 	 

	 

	 	If to the Company:	 	 
	 
	 	 	 	 
	 

	 	 	 	Flowers Foods, Inc.
	 

	 	 	 	1919 Flowers Circle
	 

	 	 	 	Thomasville, GA 31757
	 

	 	 	 	Facsimile No.: (229) 225-5426
	 

	 	 	 	Attention: Stephen R. Avera, Esq.
	 
	 	 	 	 
	 

	 	With a copy to:	 	 
	 

	 	 	 	Jones Day
	 

	 	 	 	1420 Peachtree Street, N.E., Suite 800
	 

	 	 	 	Atlanta, Georgia 30309-3053
	 

	 	 	 	Facsimile No.: (404) 581-8330
	 

	 	 	 	Attention: Sterling A. Spainhour, Jr., Esq.
	 
	 	 	 	 
	 

	 	If to the Trustee:	 	 
	 
	 	 	 	 
	 

	 	 	 	Facsimile No.:
	 

	 	 	 	Attention:
	 

	 	With a copy to:	 	 
	 
	 	 	 	 
	 

	 	 	 	Facsimile No.:






37









 






Attention:




     The Company or the Trustee, by notice to the others, may designate additional or different
addresses for subsequent notices or communications.



     All notices and communications (other than those sent to Holders) will be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by
facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.



     Any notice or communication to a Holder will be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or communication will also be
so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder of a Series or any defect in it will not affect its
sufficiency with respect to other Holders of that or any other Series.



     If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.



     If the Company mails a notice or communication to Holders, it will mail a copy to the Trustee
and each Agent at the same time.


Section 11.02 Communication by Holders of Notes with Other Holders of Notes.




     Holders of a Series may communicate pursuant to TIA § 312(b) with other Holders of that or any
other Series with respect to their rights under this Indenture or the Notes of that Series or all
Series. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA §
312(c).


Section 11.03 Certificate and Opinion as to Conditions Precedent.




     Upon any request or application by the Company to the Trustee to take any action under this
Indenture (other than in connection with the Authentication Order, dated the date hereof, and
delivered to the Trustee in connection with the issuance of the Notes), the Company shall furnish
to the Trustee:




     (1) an Officer’s Certificate in form and substance reasonably satisfactory to the
Trustee (which must include the statements set forth in Section 11.04 hereof) stating that,
in the opinion of the signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied; and




     (2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which must include the statements set forth in Section 11.04 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants have been satisfied.


Section 11.04 Statements Required in Certificate or Opinion.




     Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) must comply
with the provisions of TIA § 314(e) and must include:



38









 






     (1) a statement that the Person making such certificate or opinion has read such
covenant or condition;




     (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 such Person, he or she has made such
examination or investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been satisfied; and




     (4) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied; provided that an Opinion of Counsel can rely as to matters of
fact on an Officer’s Certificate or a certificate of a public official.


Section 11.05 Rules by Trustee and Agents.




     The Trustee may make reasonable rules for action by or at a meeting of Holders of one or more
Series. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements
for its functions.


Section 11.06 Recourse Against Others.




     No past, present or future director, manager, officer, employee, incorporator, member,
shareholder or agent of the Company, as such, will have any liability for any obligations of the
Company under the this Indenture or the Notes or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and
releases all such liability. The waiver and release are part of the consideration for issuance of
the Notes.


Section 11.07 Governing Law; Waiver of Jury Trial.




     THIS INDENTURE AND THE NOTES WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK. THE COMPANY AND THE TRUSTEE, AND EACH HOLDER OF A NOTE BY ITS ACCEPTANCE
THEREOF, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL
RIGHTS IT MAY HAVE TO TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.


Section 11.08 No Adverse Interpretation of Other Agreements.




     This Indenture may not be used to interpret any other indenture, loan or debt agreement of the
Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.


Section 11.09 Successors.




     All agreements of the Company in this Indenture and the Notes will bind its successors. All
agreements of the Trustee in this Indenture will bind its successors.



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Section 11.10 Severability.




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


Section 11.11 Counterparts.




     The parties may sign any number of copies of this Indenture and in separate counterparts, each
of which will be deemed to be an original and all of them together shall constitute one and the
same agreement.


Section 11.12 Table of Contents, Headings, etc.




     The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this
Indenture are for convenience of reference only, are not to be considered a part of this Indenture
and will in no way modify or restrict any of the terms or provisions hereof.



[Signatures on following pages]



40









 





SIGNATURES



Dated as of




	 	 	 	 	 
	THE COMPANY:	 	 
	 	Flowers Foods, Inc.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



B-1









 






	 	 	 	 	 



	 	 	 	 	 
	 	TRUSTEE:

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: