exv4w4






Exhibit 4.4




MAXIM INTEGRATED PRODUCTS, INC.




WELLS FARGO BANK, NATIONAL ASSOCIATION, Trustee








Indenture



Dated
as of June 10, 2010








 









 








CROSS-REFERENCE TABLE

This Cross-Reference Table is not part of the Indenture




	 	 	 	 	 
	Trust Indenture Act of 1939 Section	 	 	 	Indenture Section
	310 (a)(1)
	 		 	7.09
	(a)(2)
	 	 	 	7.09
	(a)(3)
	 	 	 	Not applicable
	(a)(4)
	 	 	 	Not applicable
	(a)(5)
	 	 	 	7.09
	(b)
	 	 	 	7.08
	(c)
	 	 	 	Not applicable
	311 (a)
	 	 	 	*
	(b)
	 	 	 	*
	(c)
	 	 	 	Not applicable
	312 (a)
	 	 	 	5.01
	(b)
	 	 	 	*
	(c)
	 	 	 	*
	313 (a)
	 	 	 	5.03
	(b)(1)
	 	 	 	Not applicable
	(b)(2)
	 	 	 	*
	(c)
	 	 	 	*
	(d)
	 	 	 	*
	314 (a)
	 	 	 	5.02
	(b)
	 	 	 	Not applicable
	(c)(1)
	 	 	 	13.05
	(c)(2)
	 	 	 	13.05
	(c)(3)
	 	 	 	Not applicable
	(d)
	 	 	 	Not applicable
	(e)
	 	 	 	13.05
	(f)
	 	 	 	Not applicable
	315 (a)
	 	 	 	7.01
	(b)
	 	 	 	6.08
	(c)
	 	 	 	7.01
	(d)
	 	 	 	7.01
	(e)
	 	 	 	6.09
	316 (a)(1)
	 	 	 	6.01 and 6.07
	(a)(2)
	 	 	 	Not applicable
	(b)
	 	 	 	6.04
	(c)
	 	 	 	*
	317 (a)
	 	 	 	6.02
	(b)
	 	 	 	4.04(a)
	318 (a)
	 	 	 	13.08








 




			
	*	 	Automatically included under Section 318(c) of the Trust Indenture Act of 1939, as
amended.










 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 1

Definitions
	 	 	 	 
	 
	 	 	 	 
	Section 1.01. Definitions
	 	 	1	 
	 
	 	 	 	 
	ARTICLE 2

Description, Execution, Registration and Exchange of Securities
	 	 	 	 
	 
	 	 	 	 
	Section 2.01. Forms
	 	 	6	 
	Section 2.02. Amount Unlimited; Issuable in Series
	 	 	7	 
	Section 2.03. Authentication
	 	 	9	 
	Section 2.04. Date and Denomination of Securities
	 	 	10	 
	Section 2.05. Execution of Securities
	 	 	11	 
	Section 2.06. Exchange and Registration
of Transfer of Securities
	 	 	12	 
	Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities
	 	 	14	 
	Section 2.08. Temporary Securities
	 	 	15	 
	Section 2.09. Cancellation of Securities Paid, etc.
	 	 	16	 
	Section 2.10. Computation of Interest
	 	 	16	 
	Section 2.11. Form of Legend for Global Securities
	 	 	16	 
	Section 2.12. CUSIP Numbers
	 	 	17	 
	 
	 	 	 	 
	ARTICLE 3
Redemption of Securities; Sinking Funds
	 	 	 	 
	 
	 	 	 	 
	Section 3.01. Applicability of Article
	 	 	17	 
	Section 3.02. Notice of Redemption; Selection of Securities
	 	 	17	 
	Section 3.03. Payment of Securities Called for Redemption
	 	 	18	 
	Section 3.04. Satisfaction of Mandatory
Sinking Fund Payments with Securities
	 	 	19	 
	
Section 3.05. Redemption of Securities for Sinking Fund
	 	 	19	 
	Section 3.06. Repayment at the Option of the Holder
	 	 	21	 
	 
	 	 	 	 
	ARTICLE 4
Particular Covenants of the Company
	 	 	 	 
	 
	 	 	 	 
	Section 4.01. Payment of Principal, Premium and Interest
	 	 	21	 
	Section 4.02. Offices for Notices and Payments, etc.
	 	 	21	 
	Section 4.03. Appointment to Fill Vacancies in Trustee’s Office
	 	 	22	 
	Section 4.04. Provision as to Paying Agent
	 	 	22	 
	Section 4.05. Statement as to Compliance
	 	 	23	 
	Section 4.06. Additional Amounts
	 	 	23	 






 i









 






	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	Section 4.07. Calculation of Original Issue Discount
	 	 	24	 
	 
	 	 	 	 
	ARTICLE 5
Securityholder Lists and Reports by the Company and the Trustee
	 	 	 	 
	 
	 	 	 	 
	Section 5.01. Securityholder Lists
	 	 	24	 
	Section 5.02. Reports by the Company
	 	 	25	 
	Section 5.03. Reports by the Trustee
	 	 	25	 
	 
	 	 	 	 
	ARTICLE 6
Remedies of the Trustee and Securityholders on Event of Default
	 	 	 	 
	 
	 	 	 	 
	Section 6.01. Events of Default
	 	 	25	 
	Section 6.02. Payment of Securities on Default; Suit Therefor
	 	 	28	 
	Section 6.03. Application of Moneys Collected by Trustee
	 	 	30	 
	Section 6.04. Proceedings by Securityholders
	 	 	31	 
	Section 6.05. Proceedings by Trustee
	 	 	32	 
	Section 6.06. Remedies Cumulative and Continuing
	 	 	32	 
	Section 6.07. Direction of Proceedings and Waiver of Defaults by Securityholders
	 	 	33	 
	Section 6.08. Notice of Defaults
	 	 	33	 
	Section 6.09. Undertaking to Pay Costs
	 	 	34	 
	 
	 	 	 	 
	ARTICLE 7
Concerning the Trustee
	 	 	 	 
	 
	 	 	 	 
	Section 7.01. Duties and Responsibilities of Trustee
	 	 	34	 
	Section 7.02. Reliance on Documents, Opinions, etc.
	 	 	35	 
	Section 7.03. No Responsibility for Recitals, etc.
	 	 	37	 
	Section 7.04. Ownership of Securities
	 	 	37	 
	Section 7.05. Moneys to be Held in Trust
	 	 	37	 
	Section 7.06. Compensation and Expenses of Trustee
	 	 	38	 
	Section 7.07. Officers’ Certificate as Evidence
	 	 	38	 
	Section 7.08. Reserved
	 	 	39	 
	Section 7.09. Eligibility of Trustee
	 	 	39	 
	Section 7.10. Resignation or Removal of Trustee
	 	 	39	 
	Section 7.11. Acceptance by Successor Trustee
	 	 	41	 
	Section 7.12. Succession by Merger, etc.
	 	 	42	 
	Section 7.13. Other Matters Concerning the Trustee
	 	 	42	 
	Section 7.14. Appointment of Authenticating Agent
	 	 	42	 
	 
	 	 	 	 
	ARTICLE 8
Concerning the Securityholders
	 	 	 	 
	 
	 	 	 	 
	Section 8.01. Action of Securityholders
	 	 	44	 
	Section 8.02. Proof of Execution by Securityholders
	 	 	44	 






 ii









 






	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	Section 8.03. Who Are Deemed Absolute Owners
	 	 	45	 
	Section 8.04. Company-Owned Securities Disregarded
	 	 	45	 
	Section 8.05. Revocation of Consents; Future Holders Bound
	 	 	45	 
	 
	 	 	 	 
	ARTICLE 9
Supplemental Indentures
	 	 	 	 
	 
	 	 	 	 
	Section 9.01. Supplemental Indentures without Consent of Securityholders
	 	 	46	 
	Section 9.02. Supplemental Indentures with Consent of Securityholders
	 	 	47	 
	Section 9.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures
	 	 	48	 
	Section 9.04. Notation on Securities
	 	 	49	 
	Section 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished Trustee
	 	 	49	 
	 
	 	 	 	 
	ARTICLE 10
Consolidation, Merger, Sale or Conveyance
	 	 	 	 
	 
	 	 	 	 
	Section 10.01. Company May Not
Consolidate, etc., Except Under Certain Conditions
	 	 	49	 
	Section 10.02. Successor Corporation or Limited Liability Company to be Substituted
	 	 	50	 
	Section 10.03. Documents to be Given Trustee
	 	 	50	 
	 
	 	 	 	 
	ARTICLE 11
Satisfaction and Discharge of Indenture
	 	 	 	 
	 
	 	 	 	 
	Section 11.01. Discharge of Indenture
	 	 	50	 
	Section 11.02. Legal Defeasance
	 	 	51	 
	Section 11.03. Covenant Defeasance
	 	 	53	 
	Section 11.04. Deposited Moneys to be Held in Trust by Trustee; Miscellaneous Provisions
	 	 	53	 
	Section 11.05. Paying Agent to Repay Moneys Held
	 	 	53	 
	Section 11.06. Return of Unclaimed Moneys
	 	 	54	 
	Section 11.07. Reinstatement
	 	 	54	 
	 
	 	 	 	 
	ARTICLE 12
Immunity of Incorporators, Stockholders, Officers and Directors
	 	 	 	 
	 
	 	 	 	 
	Section 12.01. Indenture and Securities Solely Corporate Obligations 
	 	 	54	 
	 
	 	 	 	 
	ARTICLE 13
Miscellaneous Provisions
	 	 	 	 
	 
	 	 	 	 
	Section 13.01. Provisions Binding on Company’s Successors
	 	 	55	 
	Section 13.02. Official Acts by Successor Corporation
	 	 	55	 






 iii









 






	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	Section 13.03. Addresses for Notices, Notice to Holders, Waiver
	 	 	55	 
	Section 13.04. New York Contract; Waiver of Jury Trial; Consent to Jurisdiction and Service
	 	 	55	 
	Section 13.05. Evidence of Compliance with Conditions Precedent
	 	 	56	 
	Section 13.06. Legal Holidays
	 	 	57	 
	Section 13.07. Securities in a Specified Currency other than Dollars
	 	 	57	 
	Section 13.08. Trust Indenture Act to Control
	 	 	58	 
	Section 13.09. Table of Contents, Headings, etc.
	 	 	58	 
	Section 13.10. Execution in Counterparts
	 	 	58	 
	Section 13.11. Separability; Benefits
	 	 	58	 
	Section 13.12. Force Majeure
	 	 	58	 
	Section 13.13. U.S.A. Patriot Act
	 	 	59	 







 iv











 





     THIS INDENTURE, dated as of
June 10, 2010 between Maxim Integrated Products, Inc., a
Delaware corporation (the “Company”), and Wells Fargo Bank, National Association, a national
banking association, duly organized and existing under the laws of the United States of America
(the “Trustee”),



WITNESSETH:




     WHEREAS, the Company has duly authorized the issue from time to time of its unsecured
debentures, notes or other evidences of indebtedness to be issued in one or more series (the
“Securities”) up to such principal amount or amounts as may from time to time be authorized in
accordance with the terms of this Indenture and to provide, among other things, for the
authentication, delivery and administration thereof, the Company has duly authorized the execution
and delivery of this Indenture; and



     WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according
to its terms have been done;



     NOW, THEREFORE:



     In consideration of the premises and the purchases of the Securities by the holders thereof,
the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective holders from time to time of the Securities as follows:



ARTICLE 1

Definitions




     Section 1.01. Definitions. The terms defined in this Section 1.01 (except as herein
otherwise expressly provided or unless the context otherwise requires) for all purposes of this
Indenture shall have the respective meanings specified in this Section 1.01. All other terms used
in this Indenture which are defined in the Trust Indenture Act of 1939, as amended, or which are by
reference therein defined in the Securities Act of 1933, as amended (except as herein otherwise
expressly provided or unless the context otherwise requires), shall have the meanings assigned to
such terms in said Trust Indenture Act and in said Securities Act as in force at the date of this
Indenture as originally executed. The words “herein,” “hereof,” and “hereunder” and other words of
similar import refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision.



Authenticating Agent:




     The term “Authenticating Agent” shall mean any Person authorized by the Trustee pursuant to
Section 7.14 to act on behalf of the Trustee to authenticate Securities.



 









 





Beneficial Owner:




     The term “Beneficial Owner” shall mean a Person who is the beneficial owner of a beneficial
interest in a Global Security as reflected on the books of the Depositary or on the books of a
Person maintaining an account with such Depositary (directly as a Depositary participant or as an
indirect participant, in each case in accordance with the rules of such Depositary).



Board of Directors:




     The term “Board of Directors” shall mean the Board of Directors of the Company or any
Committee of such Board or specified officers and employees of the Company to which the powers of
such Board have been lawfully delegated.



Company:




     The term “Company” shall mean Maxim Integrated Products, Inc., a Delaware corporation, until
any successor corporation or limited liability company shall have become such pursuant to the
provisions of Article Eleven, and thereafter “Company” shall mean such successor, except as
otherwise provided in Section 10.02.



Company Order:




     The term “Company Order” shall mean a written order of the Company, signed by its President,
its Chairman or any Vice Chairman of the Board or one of its Vice Presidents and by its Treasurer,
its Controller or its Secretary.



Corporate Trust Office of the Trustee:




     The term “Corporate Trust Office of the Trustee” shall mean the address of the Trustee
specified in Section 7.13 hereof or such other address as to which the Trustee may give notice to
the Company.



Depositary:




     The term “Depositary” shall mean, with respect to Securities of any series issuable in whole
or in part in the form of one or more Global Securities, a clearing agency registered under the
Securities Exchange Act of 1934, as amended, that is designated to act as depositary for such
Securities as contemplated by Section 2.02.



Dollar:




     The term “Dollar” shall mean the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.



2









 





Event of Default:




     The term “Event of Default” shall have the meaning specified in Section 6.01.



Global Security:




     The term “Global Security” shall mean a Security that evidences all or part of the Securities
of any series and bears the legend set forth in Section 2.11 (or such legend as may be specified as
contemplated by Section 2.02 for such Securities).



Indebtedness:



     The term “Indebtedness” of any specified Person shall mean, without duplication, any indebtedness,
whether or not contingent, in respect of borrowed money or that is evidenced by bonds, notes,
debentures or similar instruments or letters of credit (or reimbursement agreements with respect
thereto) or representing the balance deferred and unpaid of the purchase price of any Property
(including pursuant to Capital Leases), except any such balance that constitutes an accrued expense
or trade payable, if and to the extent any of the foregoing indebtedness would appear as a
liability upon an unconsolidated balance sheet of such Person (but does not include contingent
liabilities which appear only in a footnote to a balance sheet). In addition, the term
“Indebtedness” includes all of the following items, whether or not any such items would appear as a
liability on a balance sheet of the specified person in accordance with GAAP:



     (1) all Indebtedness of others secured by a lien on any asset of the specified person
(whether or not such Indebtedness is assumed by
           the specified person); and



     (2) to the extent not otherwise included, any guarantee by the specified person of
Indebtedness of any other person.



Indenture:




     The term “Indenture” shall mean this instrument as originally executed or as it may be amended
or supplemented from time to time as herein provided, and shall include the form and terms of
particular series of Securities established as contemplated hereunder.



Interest:




     The term “interest,” when used with respect to a non-interest bearing Security, means interest
payable after the principal thereof has become due and payable whether at maturity, by declaration
of acceleration, by call for redemption, pursuant to a sinking fund, or otherwise.



Officers’ Certificate:




     The term “Officers’ Certificate” shall mean a certificate signed by the President, the
Chairman or any Vice Chairman of the Board or any Vice President and by the Treasurer or any
Assistant Treasurer, the Comptroller or the Secretary or any Assistant Secretary of the Company and
delivered to the Trustee. Each such certificate shall comply with Section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 13.05 if and to the extent
required by the provisions of such Section.



Opinion of Counsel:




     The term “Opinion of Counsel” shall mean an opinion in writing signed by legal counsel, who
may be an employee of or of counsel to the Company, or may be other counsel, in any case,
satisfactory to the Trustee. Each such opinion shall comply with Section 314 of the Trust Indenture
Act of 1939 and include the statements provided for in Section 13.05 if and to the extent required
by the provisions of such Sections.



3









 





Original Issue Discount Security:




     The term “Original Issue Discount Security” shall mean any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a declaration of
acceleration of the maturity thereof pursuant to Section 6.01.



Overdue Rate:




     The term “Overdue Rate” with respect to each series of Securities shall mean the rate of
interest designated as such in the resolution of the Board of Directors or the supplemental
indenture, as the case may be, relating to such series as contemplated by Section 2.02, or if no
such rate is specified, the rate at which such Securities shall bear interest.



Person:




     The term “Person” shall mean any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or government or any agency or
political subdivision thereof.



Responsible Officer:




     The term “Responsible Officer” when used with respect to the Trustee shall mean any officer or
assistant officer of the Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any corporate trust matter
is referred because of his knowledge of and familiarity with the particular subject, and who shall
have responsibility for the administration of this Indenture.



Security or Securities; Outstanding:




     The terms “Security” or “Securities” shall mean any Security or Securities, as the case may
be, authenticated and delivered under this Indenture.



     The term “Outstanding,” when used with reference to Securities, shall, subject to the
provisions of Section 8.04, mean, as of any particular time, all Securities authenticated and
delivered by the Trustee under this Indenture, except



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



     (b) Securities, or portions thereof, for the payment or redemption of which moneys in the
necessary amount shall have been deposited in trust with the Trustee or with any paying agent
(other than the Company) or shall have been set aside and segregated in trust by the Company (if
the Company shall act as its own paying agent), provided that if such Securities are to be redeemed
prior to the maturity thereof, notice of such redemption shall have been sent as in Article



4









 




Three provided, or provision satisfactory to the Trustee shall have been made for mailing such
notice;




     (c) Securities as to which defeasance has been effected pursuant to Section 11.02; and



     (d) Securities in lieu of or in substitution for which other Securities shall have been
authenticated and delivered, or which shall have been paid, pursuant to the terms of Section 2.07,
unless proof satisfactory to the Trustee is presented that any such Securities are held by persons
in whose hands any of such Securities is a valid, binding and legal obligation of the Company.


In determining whether the holders of the requisite principal amount of Outstanding Securities have
given any request, demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security 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 6.01.




Securityholder:




     The term “Securityholder,” “holder of Securities,” or other similar terms, shall mean any
person in whose name at the time a particular Security is registered on the books of the Security
Registrar kept for that purpose in accordance with the terms hereof.



Significant Subsidiary:




     The term “Significant Subsidiary” shall have the same meaning as the definition of that term
set forth in Rule 1-02 of Regulation S-X as promulgated by the Securities and Exchange Commission.



Specified Currency:




     The term “Specified Currency” shall mean the currency in which a Security is denominated,
which may include Dollars, any foreign currency or any composite of two or more currencies.



Trust Indenture Act of 1939:




     The term “Trust Indenture Act of 1939” shall mean the Trust Indenture Act of 1939 as it was in
force at the date of execution of this Indenture, except as provided in Section 9.03.



5









 





Trustee:




     The term “Trustee” shall mean the corporation or association named as Trustee in this
Indenture and, subject to the provisions of Article 7 hereof, shall also include its successors and
assigns as Trustee hereunder. If pursuant to the provisions of this Indenture there shall be at any
time more than one Trustee hereunder, the term “Trustee” as used with respect to Securities of any
series shall mean the Trustee with respect to Securities of that series.



U.S. Government Obligations:




     The term “U.S. Government Obligations” shall have the meaning specified in Section 11.02.



ARTICLE 2

Description, Execution, Registration and Exchange of Securities




     Section 2.01. Forms. (a) The Securities of each series shall be in substantially such form
as shall be established by or pursuant to a resolution of the Board of Directors or in one or more
indentures supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this Indenture, and may have
such legends or endorsements placed thereon as the officers executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the
Securities of such series may be listed, or to conform to usage.



     (b) The resolutions adopted by the Board of Directors or in one or more indentures
supplemental hereto establishing the form and terms of the Securities of any series pursuant to
Sections 2.01 and 2.02, respectively, of this Indenture, may provide for issuance of Global
Securities. If Securities of a series are so authorized to be issued as Global Securities, any such
Global Security may provide that it shall represent that aggregate amount of Securities from time
to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect exchanges. Any endorsement of a
Global Security to reflect the amount, or any increase or decrease in the amount or changes in the
rights of holders of Securities represented thereby, shall be made in such manner and by such
person or persons as shall be specified therein.



     (c) The Trustee’s Certificate of Authentication on all Securities shall be in substantially
the following form:



     “This is one of the Securities of the series designated therein described in the
within-mentioned Indenture.



6









 





	 	 	 	 	 
	 	Wells Fargo Bank, National Association,

as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 



Dated:





     Section 2.02. Amount Unlimited; Issuable in Series. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is unlimited.



     The Securities may be issued in one or more series. There shall be established in or pursuant
to a resolution of the Board of Directors or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series:




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




     (2) any limit upon the aggregate principal amount of the Securities of the series
which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Sections 2.06, 2.07, 2.08, 3.03, 3.06
or 9.04);




     (3) the date or dates on which the principal and premium, if any, of the Securities
of the series is payable;




     (4) the rate or rates, or the method of determination thereof, at which the
Securities of the series shall bear interest, if any, the date or dates from which such
interest shall accrue, the interest payment dates on which such interest shall be payable
and, if other than as set forth in Section 2.04, the record dates for the determination of
holders to whom interest is payable;




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




     (6) the Specified Currency of the Securities of the series;




     (7) the currency or currencies in which payments on the Securities of the series are
payable, if other than the Specified Currency;




     (8) the price or prices at which, the period or periods within which and the terms
and conditions upon which Securities of the series may be redeemed, in whole or in part,
at the option of the Company, pursuant to any sinking fund or otherwise;



7









 






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




     (10) if other than denominations of $2,000 and multiples of $1,000 in excess thereof,
the denominations in which Securities of the series shall be issuable;




     (11) if other than the principal amount thereof, the portion of the principal amount
of Securities of the series which shall be payable upon declaration of acceleration of the
maturity thereof pursuant to Section 6.01;




     (12) if the principal of or interest on the Securities of the series are to be
payable, at the election of the Company or a holder thereof, in a coin or currency other
than the Specified Currency, the period or periods within which, and the terms and
conditions upon which, such election may be made;




     (13) if the amount of payments of principal of and interest on the Securities of the
series may be determined with reference to an index based on a coin or currency other than
the Specified Currency, the manner in which such amounts shall be determined;




     (14) any Events of Default with respect to the Securities of the series, if not set
forth herein;




     (15) if other than the rate of interest stated in the title of the Securities of the
series, the applicable Overdue Rate;




     (16) in the case of any series of non-interest bearing Securities, the applicable
dates for purposes of clause (a) of Section 5.01;




     (17) if other than Wells Fargo Bank, National Association is to act as Trustee for
the Securities of the series, the name and principal office of such Trustee;




     (18) if either or both of Sections 11.02 and 11.03 do not apply to any Securities of
the series;




     (19) if applicable, that any Securities of the series shall be issuable in whole or
in part in the form of one or more Global Securities and, in such case, the name of the
respective Depositaries for such Global Securities, the form of any legend or legends
which shall be borne by any such Global Security in addition to or in lieu of that set
forth in Section



8









 






2.11 and any circumstances in addition to or in lieu of those set forth in clause (2)
of Section 2.06 in which any such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global Security in whole or in part may be
registered, in the name or names of Persons other than the Depositary for such Global
Security or a nominee thereof;




     (20) any addition to the covenants set forth in Article Four which applies to
Securities of the series and whether any such covenant shall be subject to covenant
defeasance under Section 11.03; and




     (21) any other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture).



     All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to such resolution of the Board of Directors
or in any such indenture supplemental hereto.



     Notwithstanding Section 2.02(2) herein and unless otherwise expressly provided with respect to
a series of Securities, the aggregate principal amount of a series of Securities may be increased
and additional Securities of such series may be issued up to the maximum aggregate principal amount
authorized with respect to such series as increased; provided that no Event of Default with respect
to such series has occurred and is continuing; and provided
further that such additional Securities are fungible for U.S.
federal income tax purposes with the originally issued Securities of
such series.



     Section 2.03. Authentication. At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication. Except as otherwise provided in this Article 2, the
Trustee shall thereupon authenticate and deliver said Securities to the Company upon receipt of a
Company Order, signed by its President, its Chairman or any Vice Chairman of the Board or one of
its Vice Presidents and by its Treasurer, its Controller or its Secretary. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive and (subject to Section 7.01) shall be fully
protected in relying upon:




     (1) a copy of any resolution or resolutions of the Board of Directors relating
thereto and, if applicable, an appropriate record of any action taken pursuant to such
resolution, in each case certified by the Secretary or an Assistant Secretary of the
Company;




     (2) an executed supplemental indenture, if any, relating thereto;




     (3) an Officers’ Certificate prepared in accordance with Section 13.05 which shall
also state to the best knowledge of the signers of such Certificate that no Event of
Default with respect to any series of Securities shall have occurred and be continuing;
and



9









 






     (4) an Opinion of Counsel prepared in accordance with Section 13.05 to the effect



     (a) that the form of such Securities has been established by or pursuant to a resolution of
the Board of Directors or by a supplemental indenture as permitted by Section 2.01 in conformity
with the provisions of this Indenture;



     (b) that the terms of such Securities have been established by or pursuant to a resolution of
the Board of Directors or by a supplemental indenture as permitted by Section 2.02 in conformity
with the provisions of this Indenture;



     (c) that the Company has all requisite corporate power and authority to execute and deliver
such Securities;



     (d) that the execution and delivery of such Securities by the Company have been duly
authorized by all necessary corporate action on the part of the Company;



     (e) that such Securities have been duly and validly executed, and when duly authenticated by
the Trustee and issued by the Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute the legal, valid and binding obligations of the Company,
enforceable against it in accordance with their terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’
rights and remedies generally, and subject, as to enforceability, to general principles of equity,
including principles of commercial reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in equity); and



     (f) that the execution and delivery by the Company of such Securities and the performance by
the Company of its obligations thereunder will not conflict with, constitute a default under or
violate any of the terms, conditions or provisions of the organizational certificate or bylaws of
the Company.



     The Trustee shall have the right to decline to authenticate and deliver or cause to be
authenticated and delivered any Securities under this Section 2.03 if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the Trustee in good faith
shall determine that such action would expose the Trustee to personal liability to existing
Securityholders.



     Section 2.04. Date and Denomination of Securities. The Securities of each series shall be
issuable in registered form without coupons in such denominations as shall be specified as
contemplated by Section 2.02. In the absence of any such specification with respect to the
Securities of any series, the Securities of such series shall be issuable in denominations of
$2,000 and any multiple of $1,000. Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the



10









 




officers of the Company executing the same may determine with the approval of the Trustee.




     Every Security shall be dated the date of its authentication.



     The person in whose name any Security of a particular series is registered at the close of
business on any record date (as hereinafter defined) with respect to any interest payment date for
such series shall be entitled to receive the interest payable on such interest payment date
notwithstanding the cancellation of such Security upon any registration of transfer or exchange
subsequent to the record date and prior to such interest payment date; provided, however, that if
and to the extent that the Company shall default in the payment of the interest due on such
interest payment date, such defaulted interest shall be paid to the persons in whose names
Outstanding Securities of such series are registered on a subsequent record date established by
notice given by or on behalf of the Company to the holders of such Securities not less than 15 days
preceding such subsequent record date, such record date to be not less than five days preceding the
date of payment of such defaulted interest. Except as otherwise specified as contemplated by
Section 2.02 for Securities of a particular series, the term “record date” as used in this Section
2.04 with respect to any regular interest payment date, shall mean, the last day of the calendar
month preceding such interest payment date if such interest payment date is the fifteenth day of
such calendar month, and shall mean the fifteenth day of the calendar month preceding such interest
payment date if such interest payment date is the first day of a calendar month, whether or not
such day shall be a day on which banking institutions in The City of New York or place of payment
are authorized or required by law or executive order to close or remain closed.



     Interest on the Securities may at the option of the Company be paid by check mailed to the
persons entitled thereto at their respective addresses as such appear on the registry books of the
Security Registrar.



     Section 2.05. Execution of Securities. The Securities shall be signed in the name and on
behalf of the Company by the manual or facsimile signature of its President, its Chairman of the
Board or Chief Financial Officer and its Treasurer or Assistant Treasurer, its Secretary or
Assistant Secretary. Only such Securities as shall bear thereon a certificate of authentication
substantially in the form herein recited, executed by the Trustee by the manual signature of an
authorized signatory, shall be entitled to the benefits of this Indenture or be valid or obligatory
for any purpose. Such certificate by the Trustee upon any Security executed by the Company shall be
conclusive evidence that the Security so authenticated has been duly authenticated and delivered
hereunder and that the holder is entitled to the benefits of this Indenture.



     In case any officer of the Company who shall have signed any of the Securities shall cease to
be such officer before the Securities so signed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Securities nevertheless may be authenticated and
delivered or disposed of as



11









 




though the person who signed such Securities had not ceased to be such officer of the Company;
and any Security may be signed on behalf of the Company by such persons as, at the actual date of
the execution of such Security, shall be the proper officers of the Company, although at the date
of the execution of this Indenture any such person was not such an officer.




     Section 2.06. Exchange and Registration of Transfer of Securities. Securities of any series
may be exchanged for a like aggregate principal amount of Securities of the same series of other
authorized denominations. Securities to be exchanged shall be surrendered, at the option of the
holders thereof, either at the office or agency designated and maintained by the Company for such
purpose, in accordance with the provisions of Section 4.02 or at any of such other offices or
agencies as may be designated and maintained by the Company for such purpose in accordance with the
provisions of Section 4.02, and the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor the Security or Securities which the Securityholder making the
exchange shall be entitled to receive. Each person designated by the Company pursuant to the
provisions of Section 4.02 as a person authorized to register and register transfer of the
Securities is sometimes herein referred to as a “Security Registrar”.



     The Company shall keep, at each such office or agency, a register for each series of
Securities issued hereunder (the registers of all Security Registrars being herein sometimes
collectively referred to as the “Security Register” in which, subject to such reasonable
regulations as it may prescribe, the Security Registrar shall register Securities and shall
register the transfer of Securities as in this Article 2 provided. The Security Register shall be
in written form or in any other form capable of being converted into written form within a
reasonable time. At all reasonable times the Security Registrar, if other than the Trustee, shall
be open for inspection by the Trustee. Upon due presentment for registration or registration of
transfer of any Security of any series at any designated office or agency, the Company shall
execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees
a new Security or Securities of the same series for an equal aggregate principal amount.
Registration or registration of transfer of any Security by any Security Registrar in the registry
books maintained by such Security Registrar, and delivery of such Security, duly authenticated,
shall be deemed to complete the registration or registration of transfer of such Security.



     No person shall at any time be designated as or act as a Security Registrar unless such person
is at such time empowered under applicable law to act as such under and to the extent required by
applicable law and regulations. The Trustee shall initially act as the Security Registrar.



     All Securities presented for registration of transfer or for exchange, redemption or payment
shall be duly endorsed by, or be accompanied by a written instrument or instruments of transfer or
exchange in form satisfactory to the Trustee duly executed by, the holder or his attorney duly
authorized in writing.



12









 





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



     The Company shall not be required to exchange or register a transfer of (a) any Securities of
any series for the period of 15 days next preceding the mailing of a note of redemption of
Securities of that series to be redeemed and thereafter until the date of such sending of a notice
of redemption of Securities of that series selected for redemption, or (b) any Securities selected,
called or being called for redemption in whole or in part except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.



     The provisions of clauses (1), (2), (3), (4), (5), (6) and (7) below shall apply only to
Global Securities:




     (1) Each Global Security authenticated under this Indenture shall be registered in
the name of the Depositary designated for such Global Security or a nominee thereof and
delivered to such Depositary or nominee thereof or custodian therefor, and each such
Global Security shall constitute a single Security for all purposes under this Indenture.




     (2) Notwithstanding any other provision in this Indenture, no Global Security may be
exchanged in whole or in part for Securities registered, and no transfer of a Global
Security in whole or in part may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless (A) such Depositary (i)
has notified the Company that it is unwilling or unable to continue its services as
Depositary for such Global Security and no successor Depositary has been appointed within
90 days after such notice or (ii) ceases to be a “clearing agency” registered under
Section 17A of the Securities Exchange Act of 1934 when the Depositary is required to be
so registered to act as the Depositary and so notifies the Company, and no successor
Depositary has been appointed within 90 days after such notice, (B) the Company determines
at any time that the Securities shall no longer be represented by Global Securities and
shall inform such Depositary of such determination and participants in such Depositary
elect to withdraw their beneficial interests in the Securities from such Depositary,
following notification by the Depositary of their right to do so, or (C) such exchange is
made upon request by or on behalf of the Depositary in accordance with customary
procedures, following the request of a Beneficial Owner seeking to exercise or enforce its
rights under the Securities during the continuance of an Event of Default.




     (3) Subject to clause (2) above, any exchange of a Global Security for other
Securities may be made in whole or in part, and all Securities issued in exchange for a
Global Security or any portion thereof



13









 






shall be registered in such names as the Depositary for such Global Security shall
direct in writing to the Trustee.




     (4) Every Security authenticated and delivered upon registration of transfer of, or
in exchange for or in lieu of, a Global Security or any portion thereof shall be
authenticated and delivered in the form of, and shall be, a Global Security, unless such
Security is registered in the name of a Person other than the Depositary for such Global
Security or a nominee thereof.




     (5) Subject to the provisions of clause (7) below, the registered Holder may grant
proxies and otherwise authorize any Person, including Agent Members (as defined below in
clause (7)) and Persons that may hold interests through Agent Members, to take any action
which a Holder is entitled to take under this Indenture or the Securities.




     (6) In the event of the occurrence of any of the events specified in clause (2)
above, the Company will promptly make available to the Trustee a reasonable supply of
certificated Securities in definitive, fully registered form, without interest coupons.




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



     Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities. In case any temporary or
definitive Security shall become mutilated or be destroyed, lost or stolen, the Company in the case
of a mutilated Security shall, and in the case of a lost, stolen or destroyed Security may in its
discretion, execute and, upon receipt of a Company Order, the Trustee shall authenticate and
deliver, a new Security of the same series, bearing a number not contemporaneously Outstanding, in
exchange and substitution for the mutilated Security, or in lieu of and in substitution for the
Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall
furnish to the Company and to the



14









 




Trustee such security or indemnity as may be required by them to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also furnish the Company and
to the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security
and the ownership thereof.




     Upon the issuance of any substituted Security, 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 connected therewith. In case any Security which has matured or is about to
mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing
a substituted Security, pay or authorize the payment of the same (without surrender thereof except
in the case of a mutilated Security) if the applicant for such payment shall furnish to the Company
and to the Trustee such security or indemnity as may be required by them to save each of them
harmless and, in case of destruction, loss or theft, evidence satisfactory to the Company and the
Trustee of the destruction, loss or theft of such Security and the ownership thereof.



     Every substituted Security issued pursuant to the provisions of this Section 2.07 by virtue of
the fact that any Security is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security shall be found at
any time, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of the same series duly issued hereunder. All Securities shall be
held and owned upon the express condition that the foregoing provisions are exclusive with respect
to the replacement or payment of mutilated, destroyed, lost or stolen Securities and shall preclude
(to the extent lawful) any and all other rights or remedies with respect to the replacement or
payment of negotiable instruments or other securities without their surrender.



     Section 2.08. Temporary Securities. Pending the preparation of definitive Securities of any
series the Company may execute and the Trustee shall authenticate and deliver temporary Securities
(printed, lithographed or typewritten). Temporary Securities shall be issuable in any authorized
denomination and substantially in the form of the definitive Securities in lieu of which they are
issued, but with such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every such temporary Security shall be
authenticated by the Trustee upon the same conditions and in substantially the same manner, and
with the same effect, as the definitive Securities in lieu of which they are issued. Without
unreasonable delay the Company will execute and deliver to the Trustee definitive Securities of
such series and thereupon any or all temporary Securities of such series may be surrendered in
exchange therefor, at the option of the holders thereof, either at the office or agency to be
designated and maintained by the Company for such purpose, in accordance with the provisions of
Section 4.02 or at any of such other offices or agencies as may be designated and maintained by the
Company for such purpose in accordance with the provisions of Section 4.02, and the Trustee shall
authenticate and deliver in exchange for such temporary



15









 




Securities an equal aggregate principal amount of definitive Securities of the same series.
Such exchange shall be made by the Company at its own expense and without any charge therefor.
Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of the same series authenticated and
delivered hereunder.




     Section 2.09. Cancellation of Securities Paid, etc. All Securities surrendered for the
purpose of payment, redemption, repayment, exchange or registration of transfer or for credit
against any sinking fund shall, if surrendered to the Company, any Security Registrar, any paying
agent or any other agent of the Company or of the Trustee, be delivered to the Trustee and promptly
cancelled by it, or, if surrendered to the Trustee, shall be promptly cancelled by it, and no
Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions
of this Indenture. The Trustee may dispose of cancelled Securities in accordance with its customary
procedures and at the written request of the Company, shall deliver cancelled Securities to the
Company. If the Company shall acquire any of the Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such Securities unless
and until the same are delivered to the Trustee for cancellation.



     Section 2.10. Computation of Interest. Except as otherwise specified as contemplated by
Section 2.02 for Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.



     Section 2.11. Form of Legend for Global Securities. Unless otherwise specified as
contemplated by Section 2.02 for the Securities evidenced thereby, every Global Security
authenticated and delivered hereunder shall bear a legend in substantially the following form (or
such other form as a securities exchange or Depositary may request or require):



     THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR A NOMINEE OF THE DEPOSITORY TRUST
COMPANY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN
THE DEPOSITORY TRUST COMPANY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY TO A NOMINEE
OF THE DEPOSITORY TRUST COMPANY OR BY A NOMINEE OF THE DEPOSITORY TRUST COMPANY TO THE DEPOSITORY
TRUST COMPANY OR ANOTHER NOMINEE OF THE DEPOSITORY TRUST COMPANY.



     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW



16









 




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




     Section 2.12. CUSIP Numbers. The Company in issuing the Securities may use “CUSIP” numbers
(if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of
redemption as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Securities or
as contained in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing
of any change in the “CUSIP” numbers.



ARTICLE 3

Redemption of Securities; Sinking Funds




     Section 3.01. Applicability of Article. The provisions of this Article shall be applicable,
as the case may be, (i) to the Securities of any series which are redeemable before their maturity
and (ii) to any sinking fund for the retirement of Securities of any series, in either case except
as otherwise specified as contemplated by Section 2.02 for Securities of such series.



     The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as
an “optional sinking fund payment”.



     Section 3.02. Notice of Redemption; Selection of Securities. In case the Company shall
desire to exercise any right to redeem all, or, as the case may be, any part of, the Securities of
any series in accordance with their terms, it shall fix a date for redemption and shall send a
notice of such redemption at least 30 and not more than 60 days prior to the date fixed for
redemption to the holders of Securities of such series so to be redeemed as a whole or in part at
their last addresses as the same appear on the registry books of the Security Registrar and to the
Trustee, except as the resolutions adopted by the Board of Directors to establish the terms of any
series of Securities may otherwise provide. The notice if sent in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the holder receives such notice.
In any case, failure to



17









 




give such notice or any defect in the notice to the holder of any Security of a series
designated for redemption as a whole or in part shall not affect the validity of the proceedings
for the redemption of any other Security of such series.




     Each such notice of redemption shall specify the date fixed for redemption, the redemption
price at which the Securities of such series are to be redeemed (or if not then ascertainable, the
manner of calculation thereof), the place or places of payment, that payment will be made upon
presentation and surrender of such Securities, that any interest accrued to the date fixed for
redemption will be paid as specified in said notice, and that on and after said date any interest
thereon or on the portions thereof to be redeemed will cease to accrue. Where the redemption price
is not ascertainable at the time the notice of redemption is given as aforesaid, the Company shall
notify the Trustee of said redemption price promptly after the calculation thereof. If less than
all the Securities of a series are to be redeemed the notice of redemption shall specify the number
or numbers of the Securities of that series to be redeemed. In case any Security of a series is to
be redeemed in part only, the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of that series in principal amount equal
to the unredeemed portion thereof will be issued.



     Prior to the redemption date specified in the notice of redemption given as provided in this
Section 3.02, the Company will deposit with the Trustee or with one or more paying agents (or if
the Company is acting as its own paying agent will segregate and hold in trust as provided in
Section 4.04) an amount of money sufficient to redeem on the redemption date all the Securities or
portions thereof so called for redemption, together with accrued interest to the date fixed for
redemption. If the Securities of a series are to be redeemed, the Company will give the Trustee
notice not less than 60 days (or such shorter period as may be acceptable to the Trustee) prior to
the redemption date as to the aggregate principal amount of Securities of such series to be
redeemed and the Trustee shall select or cause to be selected, in such manner as in its sole
discretion it shall deem appropriate and fair, the Securities of that series or portions thereof to
be redeemed. Securities of a series may be redeemed in part only in multiples of the smallest
authorized denomination of that series.



     Section 3.03. Payment of Securities Called for Redemption. If notice of redemption has been
given as provided in Section 3.02 or Section 3.05, the Securities or portions of Securities of the
series with respect to which such notice has been given shall become due and payable on the date
and at the place or places stated in such notice at the applicable redemption price, together with
any interest accrued to the date fixed for redemption, and on and after said date (unless the
Company shall default in the payment of such Securities or portions of such Securities, together
with any interest accrued to said date) any interest on the Securities of such series or portions
of Securities of such series so called for redemption shall cease to accrue. On presentation and
surrender of such Securities



18









 




at a place of payment in said notice specified, the said Securities or the specified portions
thereof shall be paid and redeemed by the Company at the applicable redemption price, together with
any interest accrued thereon to the date fixed for redemption; provided, however, that any
regularly scheduled installment of interest becoming due on or prior to the date fixed for
redemption shall be payable to holders of such Securities registered as such on the relevant record
date according to their terms.




     Upon presentation of any Security redeemed in part only, the Company shall execute and the
Trustee shall authenticate and deliver to the holder thereof, at the expense of the Company, a new
Security or Securities of the same series, of authorized denominations, in aggregate principal
amount equal to the unredeemed portion of the Security so presented.



     Section 3.04. Satisfaction of Mandatory Sinking Fund Payments with Securities. In lieu of
making all or any part of any mandatory sinking fund payment with respect to any Securities of a
series in cash, the Company may at its option (a) deliver to the Trustee Securities of that series
theretofore purchased or otherwise acquired by the Company, or (b) receive credit for the principal
amount of Securities of that series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities; provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for such purpose by the
Trustee at the redemption price specified in such Securities for redemption through operation of
the sinking fund and the amount of such mandatory sinking fund payment shall be reduced
accordingly.



     Section 3.05. Redemption of Securities for Sinking Fund. Not less than 60 days prior to each
sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an
Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for that
series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied
by payment of cash (which cash may be deposited with the Trustee or with one or more paying agents,
or if the Company is acting as its own paying agent segregated and held in trust as provided in
Section 4.04) and the portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 3.04 (which Securities, if not theretofore delivered,
will accompany such certificate) and whether the Company intends to exercise its right to make a
permitted optional sinking fund payment with respect to such series. Such Officers’ Certificate
shall also state that no Event of Default has occurred and is continuing with respect to such
series. Such certificate shall be irrevocable and upon its delivery the Company shall be obligated
to make the cash payment or payments therein referred to, if any, on or before the next succeeding
sinking fund payment date. In the case of the failure of the Company to deliver such Officers’
Certificate (or to deliver the Securities specified in this paragraph), the sinking fund payment
due on the next succeeding sinking fund payment date for that



19









 




series shall be paid entirely in cash and shall be sufficient to redeem the principal amount
of such Securities subject to a mandatory sinking fund payment without the option to deliver or
credit Securities as provided in Section 3.04 and without the right to make any optional sinking
fund payment, if any, with respect to such series.




     Any sinking fund payment or payments (mandatory or optional) made in cash plus any unused
balance of any preceding sinking fund payments made in cash which shall equal or exceed $100,000 or
the equivalent amount in the Specified Currency (if other than Dollars) (or a lesser sum if the
Company shall so request or determine) with respect to the Securities of any particular series
shall be applied by the Trustee (or by the Company if the Company is acting as its own paying
agent) on the sinking fund payment date on which such payment is made (or, if such payment is made
before a sinking fund payment date, on the next sinking fund payment date following the date of
such payment) to the redemption of such Securities at the redemption price specified in such
Securities for operation of the sinking fund together with accrued interest, if any, to the date
fixed for redemption. Any sinking fund moneys not so applied or allocated by the Trustee (or by the
Company if the Company is acting as its own paying agent) to the redemption of Securities shall be
added to the next cash sinking fund payment received by the Trustee (or if the Company is acting as
its own paying agent, segregated and held in trust as provided in Section 4.04) for such series
and, together with such payment (or such amount so segregated), shall be applied in accordance with
the provisions of this Section 3.05. Any and all sinking fund moneys with respect to the Securities
of any particular series held by the Trustee (or if the Company is acting as its own paying agent,
segregated and held in trust as provided in Section 4.04) on the last sinking fund payment date
with respect to Securities of such series and not held for the payment or redemption of particular
Securities of such series shall be applied by the Trustee (or by the Company if the Company is
acting as its own paying agent), together with other moneys, if necessary, to be deposited (or
segregated) sufficient for the purpose, to the payment of the principal of the Securities of that
series at maturity.



     The Trustee shall select or cause to be selected the Securities to be redeemed upon such
sinking fund payment date in the manner specified in the last paragraph of Section 3.02 and the
Company shall cause notice of the redemption thereof to be given in the manner provided in Section
3.02 except that the notice of redemption shall also state that the Securities are being redeemed
by operation of the sinking fund. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Section 3.03.



     On or before 10:00 a.m., New York City time on each sinking fund payment date, the Company
shall pay to the Trustee in cash (or if the Company is acting as its own paying agent will
segregate and hold in trust as provided in Section 4.04) a sum equal to any interest accrued to the
date fixed for redemption of Securities or portions thereof to be redeemed on such sinking fund
payment date pursuant to this Section.



20









 





     Neither the Trustee nor the Company shall redeem any Securities of a series with sinking fund
moneys or send any notice of redemption of such Securities by operation of the sinking fund for
such series during the continuance of a default in payment of interest, if any, on such Securities
or of any Event of Default (other than an Event of Default occurring as a consequence of this
paragraph) with respect to such Securities, except that if the notice of redemption of any such
Securities shall theretofore have been sent in accordance with the provisions hereof, the Trustee
(or the Company if the Company is acting as its own paying agent) shall redeem such Securities if
cash sufficient for that purpose shall be deposited with the Trustee (or segregated by the Company)
for that purpose in accordance with the terms of this Article. Except as aforesaid, any moneys in
the sinking fund for such series at the time when any such default or Event of Default shall occur
and any moneys thereafter paid into such sinking fund shall, during the continuance of such default
or Event of Default, be held as security for the payment of such Securities; provided, however,
that in case such default or Event of Default shall have been cured or waived as provided herein,
such moneys shall thereafter be applied on the next sinking fund payment date for such Securities
on which such moneys may be applied pursuant to the provisions of this Section.



     Section 3.06. Repayment at the Option of the Holder. Any series of Securities may be made,
by provision contained in or established pursuant to a supplemental indenture or a resolution of
the Board of Directors pursuant to Section 2.02 hereof, subject to repayment, in whole or in part,
at the option of the holder on a date or dates specified prior to maturity, at a price equal to
100% of the principal amount thereof, together with accrued interest to the date of repayment, on
such notice as may be required, provided, however, that the holder of a Security may only elect
partial repayment in an amount that will result in the portion of such Security that will remain
Outstanding after such repayment constituting an authorized denomination, or combination thereof,
of such Securities.



ARTICLE 4

Particular Covenants of the Company




     Section 4.01. Payment of Principal, Premium and Interest. The Company covenants and agrees
for the benefit of each series of Securities that it will duly and punctually pay or cause to be
paid the principal of, premium, if any, and interest, if any, on each of the Securities of that
series at the places, at the respective times and in the manner provided in such Securities.



     Section 4.02. Offices for Notices and Payments, etc. As long as any of the Securities of a
series remain Outstanding, the Company will designate and maintain an office or agency where the
Securities of that series may be presented for payment, an office or agency where the Securities of
that series may be presented for registration of transfer and for exchange as in this Indenture
provided and an office or agency where notices and demands to or upon the



21









 




Company in respect of the Securities of that series or of this Indenture may be served. In
addition to such office or offices or agency or agencies, the Company may from time to time
designate and maintain one or more additional offices or agencies within or outside the Borough of
Manhattan, The City of New York, where the Securities of that series may be presented for
registration of transfer or for exchange, and the Company may from time to time rescind such
designation, as it may deem desirable or expedient. The Company will give to the Trustee written
notice of the location of each such office or agency and of any change of location thereof. In case
the Company shall fail to maintain any such office or agency, or shall fail to give such notice of
the location or of any change in the location thereof, presentations and demands may be made and
notices may be served at the Corporate Trust Office of the Trustee.




     The Company hereby initially designates the office of the Trustee located at 625 Marquette
Avenue, MAC N9311-110, Minneapolis, MN 55479 as the office or agency of the Company, where the
Securities of each series may be presented for payment, for registration of transfer and for
exchange as in this Indenture provided and where notices and demands to or upon the Company in
respect of the Securities of each series or of this Indenture may be served.



     Section 4.03. Appointment to Fill Vacancies in Trustee’s Office. The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided
in Section 7.10, a successor trustee, so that there shall at all times be a Trustee with respect to
each series of Securities hereunder.



     Section 4.04. Provision as to Paying Agent. (a) If the Company shall appoint a paying agent
other than the Trustee with respect to the Securities of any series, it will cause such paying
agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section 4.04:




     (1) that it will hold all sums held by it as such agent for the payment of the
principal of, premium, if any, or interest, if any, on the Securities of such series
(whether such sums have been paid to it by the Company or by any other obligor on the
Securities of such series) in trust for the benefit of the holders of the Securities of
such series;




     (2) that it will give the Trustee notice of any failure by the Company (or by any
other obligor on the Securities of such series) to make any payment of the principal of,
premium, if any, or interest, if any, on the Securities of such series when the same shall
be due and payable; and




     (3) that at any time during the continuance of any failure by the Company (or by any
other obligor on the Securities of such series) specified in the preceding paragraph (2),
such payment agent will, upon



22









 






the written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by it.



     (b) If the Company shall act as its own paying agent with respect to the Securities of any
series, it will, on or before each due date of the principal of, premium, if any, or interest, if
any, on the Securities of such series, set aside, segregate and hold in trust for the benefit of
the holders of such Securities a sum sufficient to pay such principal, premium, if any, or
interest, if any, so becoming due and will promptly notify the Trustee of any failure to take such
action and of any failure by the Company (or by any other obligor on the Securities of such series)
to make any payment of the principal of, premium, if any, or interest, if any, on the Securities of
such series when the same shall become due and payable.



     (c) Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust by it, or any paying agent
hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein
contained.



     (d) Anything in this Section 4.04 to the contrary notwithstanding, the agreement to hold sums
in trust as provided in this Section 4.04 is subject to Sections 11.05 and 11.06.



     (e) Whenever the Company shall have one or more paying agents with respect to the Securities
of any series, it will, prior to 10:00 a.m., New York City time, on each due date of the principal
of, premium, if any, or interest, if any, on the Securities of such series, deposit with a
designated paying agent a sum sufficient to pay the principal, premium, if any, and interest, if
any, so becoming due, such sum to be held in trust for the benefit of the persons entitled to such
principal, premium, if any, or interest, if any, and (unless such paying agent is the Trustee) the
Company will promptly notify the Trustee of any failure so to act.



     Section 4.05. Statement as to Compliance. The Company will furnish to the Trustee on or
before May 1 in each year (beginning with the first May 1 following the first date of issuance of
any Securities under this Indenture) a brief certificate (which need not comply with Section 13.05)
from the principal executive, financial or accounting officer of the Company stating whether or not
to the best knowledge of the signer thereof the Company is in compliance (without regard to periods
of grace or notice requirements) with all conditions and covenants under this Indenture, and if the
Company shall not be in compliance, specifying such non-compliance and the nature and status
thereof of which such signer may have knowledge, as required by Section 314(a)(4) of the Trust
Indenture Act of 1939.



     Section 4.06. Additional Amounts. If the Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first interest payment date with respect to that
series of Securities and at least 10 days prior to



23









 




each date of payment of principal of, premium, if any, or interest on the Securities of that
series if there has been a change with respect to the matters set forth in the below-mentioned
Officers’ Certificate, the Company shall furnish to the Trustee and the principal paying agent, if
other than the Trustee, an Officers’ Certificate instructing the Trustee and such paying agent
whether such payment of principal of or interest on the Securities of that series shall be made to
holders of the Securities of that series without withholding or deduction for or on account of any
tax, assessment or other governmental charge described in the Securities of that series. If any
such withholding or deduction shall be required, then such Officers’ Certificate shall specify by
country the amount, if any, required to be withheld or deducted on such payments to such holders
and shall certify the fact that additional amounts will be payable and the amounts so payable to
each holder, and the Company shall pay to the Trustee or such paying agent the additional amounts
required to be paid by this Section. The Company covenants to indemnify the Trustee and any paying
agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section.




     Whenever in this Indenture there is mentioned, in any context, the payment of the principal of
or any premium, interest or any other amounts on, or in respect of, any Security of any series,
such mention shall be deemed to include mention of the payment of additional amounts provided by
the terms of such series established hereby or pursuant hereto to the extent that, in such context,
additional amounts are, were or would be payable in respect thereof pursuant to such terms, and
express mention of the payment of additional amounts (if applicable) in any provision hereof shall
not be construed as excluding the payment of additional amounts in those provisions hereof where
such express mention is not made.



     Section 4.07. Calculation of Original Issue Discount. The Company shall file with the
Trustee promptly at the end of each calendar year (i) a written notice specifying the amount of
original issue discount (including daily rates and accrual periods) accrued on outstanding
Securities as of the end of such year and (ii) such other specific information relating to such
original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended
from time to time.



ARTICLE 5

Securityholder Lists and Reports by the Company and the Trustee




     Section 5.01. Securityholder Lists. If and so long as the Trustee shall not be the Security
Registrar for the Securities of any series, the Company and any other obligor on the Securities
will furnish or cause to be furnished to the Trustee a list in such form as the Trustee may
reasonably require of the names and addresses of the holders of the Securities of such series
pursuant to Section 312 of



24









 




the Trust Indenture Act of 1939 (a) semi-annually not more than 15 days after each record date
for the payment of interest on such Securities, as hereinabove specified, as of such record date,
and on dates to be determined pursuant to Section 2.02 for non-interest bearing Securities in each
year, and (b) at such other times as the Trustee may request in writing, within ten days after
receipt by the Company of any such request as of a date not more than 15 days prior to the time
such information is furnished.




     Section 5.02. Reports by the Company. The Company covenants to file with the Trustee, within
15 days after the Company is required to file the same with the Securities and Exchange Commission,
copies of the annual reports and of the information, documents and other reports that the Company
is required to file with the Securities and Exchange Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 or pursuant to Section 314 of the Trust Indenture Act
of 1939.



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



     Section 5.03. Reports by the Trustee. Any Trustee’s report required under Section 313(a) of
the Trust Indenture Act of 1939 shall be transmitted on or before May 1 in each year beginning May
1, 2011, as provided in Section 313(c) of the Trust Indenture Act of 1939, so long as any
Securities are Outstanding hereunder, and shall be dated as of a date convenient to the Trustee no
more than 60 days prior thereto.



ARTICLE 6

Remedies of the Trustee and Securityholders on Event of Default




     Section 6.01. Events of Default. The term “Event of Default” whenever used herein with
respect to Securities of any series means any one of the following events and such other events as
may be established with respect to the Securities of such series as contemplated by Section 2.02
hereof, continued for the period of time, if any, and after the giving of notice, if any,
designated in this Indenture or as may be established with respect to such Securities as
contemplated by Section 2.02 hereof, as the case may be, unless it is either inapplicable or is
specifically deleted or modified in the applicable resolution of the Board of Directors or in the
supplemental indenture under which such series of Securities is issued, as the case may be, as
contemplated by Section 2.02:



     (a) default in the payment of any installment of interest upon any Security of such series as
and when the same shall become due and payable, and continuance of such default for a period of 30
days; or



25









 





     (b) default in the payment of the principal of, or premium, if any, on any Security of such
series as and when the same shall become due and payable whether at maturity, upon redemption, by
declaration, repayment or otherwise; or



     (c) default in the making or satisfaction of any sinking fund payment or analogous obligation
as and when the same shall become due and payable by the terms of the Securities of such series; or



     (d) failure on the part of the Company duly to observe or perform any other of the covenants
or agreements on the part of the Company in respect of the Securities of such series contained in
this Indenture (other than a covenant or agreement in respect of the Securities of such series a
default in whose observance or performance is elsewhere in this Section 6.01 specifically dealt
with) continued for a period of 90 days after the date on which written notice of such failure,
requiring the Company to remedy the same, shall have been given to the Company by the Trustee by
registered mail or overnight delivery, or to the Company and the Trustee by the holders of at least twenty-five percent
in aggregate principal amount of the Securities of such series at the time Outstanding; or



     (e) an event of default with respect to any other series of Securities issued or hereafter
issued pursuant to this Indenture or as defined in any indenture or instrument evidencing or under
which the Company has at the date of this Indenture or shall hereafter have outstanding any
Indebtedness shall happen and be continuing and such other series of Securities
or such Indebtedness, as the case may be, shall have been accelerated so that the same shall be or
become due and payable prior to the date on which the same would otherwise have become due and
payable, and the aggregate principal amount of any Indebtedness with respect to which such
acceleration has occurred exceeds $50,000,000, without such
Indebtedness being discharged or the acceleration having been rescinded or
annulled within 30 days after written notice thereof shall have been given to the Company by the
Trustee or to the Company and the Trustee by the holders of at least twenty-five percent in
aggregate principal amount of the Securities of such series at the time Outstanding; provided,
however, that if such event of default with respect to such other
series of Securities or other Indebtedness, as the case may be, shall be remedied or cured by the Company, or
waived by the holders of such other series of Securities or of such Indebtedness, as the case may
be, then the Event of Default hereunder by reason thereof shall be deemed likewise to have been
thereupon remedied, cured or waived without further action upon the part of either the Trustee or
any of the Securityholders of such series; and provided further that, subject to the provisions of
Sections 6.08 and 7.01, the Trustee shall not be charged with knowledge of any such event of
default or any remedy, cure or waiver thereof or any such acceleration unless written notice
thereof shall have been given to the Trustee by the Company, by a holder or an agent of a holder of
any Securities of such other series or of any such Indebtedness, as the case may be, or by the
Trustee then acting under this Indenture with respect to such other series of Securities or under
any other indenture or instrument, as the case may be, under which such event of default shall have
occurred, or by the holders of at least



26









 




twenty-five percent in aggregate principal amount of the Securities of such series at the time
Outstanding; or




     (f) a decree or order by a court having jurisdiction in the premises shall have been entered
adjudging the Company or any of its Significant Subsidiaries bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization of the Company or any of its Significant
Subsidiaries under the Federal Bankruptcy Code or any other similar applicable Federal or State
law, and such decree or order shall have continued undischarged and
unstayed for a period of 90
days; or a decree or order of a court having jurisdiction in the premises for the appointment of a
receiver or liquidator or trustee or assignee (or other similar official) in bankruptcy or
insolvency of the Company or any of its Significant Subsidiaries or of all or substantially all of
the property of the Company or any of its Significant Subsidiaries, or for the winding up or
liquidation of the affairs of the Company or any of its Significant Subsidiaries, shall have been
entered, and such decree or order shall have continued undischarged
and unstayed for a period of 90
days; or



     (g) the Company or any of its Significant Subsidiaries shall institute proceedings to be
adjudicated a voluntary bankrupt, or shall consent to the filing of a bankruptcy proceeding against
the Company or such Significant Subsidiary, or shall file a petition or answer or consent seeking
reorganization under the Federal Bankruptcy Code or any other similar applicable Federal or State
law, or shall consent to the filing of any such petition, or shall consent to the appointment of a
receiver or liquidator or trustee or assignee (or other similar official) in bankruptcy or
insolvency of it or of its property, or shall make an assignment for the benefit of creditors, or
shall admit in writing the inability of the Company or such Significant Subsidiary to pay its debts
generally as they become due; or



     (h) any other Event of Default provided in the applicable resolution of the Board of Directors
or in the supplemental indenture under which such series of Securities is issued, as the case may
be, as contemplated by Section 2.02.



     The Trustee shall not be charged with knowledge of the identity of a Significant Subsidiary of
the Company unless it shall have received written notice from the Company or a Securityholder
identifying such Significant Subsidiary as such.



     If an Event of Default as contemplated by Sections 6.01(f) or 6.01(g) occurs, the principal
amount (or, if the Securities of such series are Original Issue Discount Securities, such portions
of the principal amount as may be specified in the terms of such series) with respect to Securities
of any series at the time Outstanding will become due and payable immediately. If any other Event
of Default with respect to Securities of any series at the time Outstanding occurs and is
continuing, then and in each and every such case, unless the principal of all of the Securities of
such series shall have already become due and payable, either the Trustee or the holders of not
less than twenty-five percent in aggregate principal



27









 




amount of the Securities of such series then Outstanding hereunder, by notice in writing to
the Company (and to the Trustee if given by Securityholders of such series), may declare the
principal amount (or, if the Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such series) of all the
Securities of such series to be due and payable immediately, and upon any such declaration the same
shall become and shall be immediately due and payable, anything in this Indenture or in the
Securities of such series contained to the contrary notwithstanding. This provision, however, is
subject to the condition that if, at any time after the principal amount (or, if the Securities of
such series are Original Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) of the Securities of any series shall have been so declared
or otherwise become due and payable, and before any judgment or decree for the payment of the
moneys due shall have been obtained or entered as hereinafter provided, the Company shall pay or
shall deposit with the Trustee a sum sufficient to pay all matured installments of interest, if
any, upon all of the Securities of such series and the principal of, and premium, if any, on any
and all Securities of such series which shall have become due otherwise than by acceleration (with
interest on overdue installments of interest (to the extent that payment of such interest is
enforceable under applicable law) and on such principal at the Overdue Rate applicable to such
series, to the date of such payment or deposit) and all amounts payable to the Trustee pursuant to
the provisions of Section 7.06, and any and all defaults under this Indenture with respect to such
series of Securities, other than the nonpayment of principal of and accrued interest on Securities
of such series which shall have become due solely by acceleration, shall have been remedied or
cured or waived or provision shall have been made therefor to the satisfaction of the Trustee —
then and in every such case the holders of a majority in aggregate principal amount of the
Securities of such series then Outstanding, by written notice to the Company and to the Trustee,
may waive all defaults with respect to such series and rescind and annul such declaration or
acceleration and its consequences; but no such waiver or rescission and annulment shall extend to
or shall affect any subsequent default or shall impair any right consequent thereon.




     In case the Trustee shall have proceeded to enforce any right under this Indenture and such
proceeding shall have been discontinued or abandoned because of such rescission or annulment or for
any other reason or shall have been determined adversely to the Trustee, then and in every such
case the Company and the Trustee shall be restored respectively to their several positions and
rights hereunder, and all rights, remedies and powers of the Company and the Trustee shall continue
as though no such proceeding had been taken.



     Section 6.02. Payment of Securities on Default; Suit Therefor. The Company covenants that
(a) in case default shall be made in the payment of any installment of interest upon any Security
of any series as and when the same shall become due and payable, and such default shall have
continued for a period of 30 days, (b) in case default shall be made in the payment of the
principal of, or



28









 




premium, if any, on any Security of any series as and when the same shall become due and
payable, whether at maturity of the Securities of that series or upon redemption or by declaration,
repayment or otherwise or (c) in case of default in the making or satisfaction of any sinking fund
payment or analogous obligation when the same becomes due by the terms of the Securities of any
series — then, the Company will pay to the Trustee, for the benefit of the holder of any such
Security (or holders of any series of Securities in the case of clause (c) above) the whole amount
that then shall have become due and payable on any such Security (or Securities of any such series
in the case of clause (c) above) for principal, premium, if any, and interest, if any, with
interest upon the overdue principal and premium, if any, and (to the extent that payment of such
interest is enforceable under applicable law) upon the overdue installments of interest, if any, at
the Overdue Rate applicable to any such Security (or Securities of any such series in the case of
clause (c) above); and, in addition thereto, such further amount as shall be sufficient to cover
costs and expenses of collection, and any further amounts payable to the Trustee pursuant to the
provisions of Section 7.06.




     In case the Company shall fail forthwith to pay such amounts, the Trustee, in its own name and
as trustee of any express trust, shall be entitled and empowered to institute any actions or
proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and may enforce any such judgment or
final decree against the Company or any other obligor upon such Securities and collect in the
manner provided by law out of the property of the Company or any other obligor on such Securities
wherever situated the moneys adjudged or decreed to be payable.



     In case there shall be pending proceedings for the bankruptcy, for the insolvency or for the
reorganization of the Company or any other obligor on the Securities of any series under the
Federal Bankruptcy Code or any other similar applicable Federal or State law, or in case a receiver
or trustee (or other similar official) shall have been appointed for the property of the Company or
such other obligor, or in the case of any other similar judicial proceedings relative to the
Company or other obligor on the Securities of any series, or to the creditors or property of the
Company or such other obligor, the Trustee, irrespective of whether the principal of the Securities
of any series shall then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this
Section 6.02, shall be entitled and empowered, by intervention in such proceedings or otherwise, to
file and prove a claim or claims for the whole amount of principal (or, if the Securities of any
series are Original Issue Discount Securities, such portion of the principal amount as may be due
and payable with respect to such series pursuant to a declaration in accordance with Section 6.01),
premium, if any, and interest, if any, owing and unpaid in respect of the Securities of any series
and, in case of any judicial proceedings, 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 and of the
Securityholders of any series allowed in such judicial



29









 




proceedings relative to the Company or any other obligor on the Securities of any series, its
or their creditors, or its or their property, and to collect and receive any moneys or other
property payable or deliverable on any such claims, and to distribute the same after the deduction
of costs and expenses of collection, and any further amounts payable to the Trustee pursuant to the
provisions of Section 7.06 and incurred by it up to the date of such distribution; and any
receiver, assignee or trustee (or other similar official) in bankruptcy or reorganization is hereby
authorized by each of the Securityholders 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 Securityholders, to
pay to the Trustee costs and expenses of collection and any further amounts payable to the Trustee
pursuant to the provisions of Section 7.06 and incurred by it up to the date of such distribution.




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



     All rights of action and of asserting claims under this Indenture, or under the Securities of
any series, may be enforced by the Trustee without the possession of any of the Securities of such
series or the production thereof in any trial or other proceeding relative thereto, and any such
suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall be for the ratable benefit of the holders of the
Securities in respect of which such action was taken. In any proceedings brought by the Trustee
(and also any proceedings in which a declaratory judgment of a court may be sought as to the
interpretation or construction of any provision of this Indenture, to which the Trustee shall be a
party) the Trustee shall be held to represent all the holders of the Securities to which such
proceedings relate, and it shall not be necessary to make any holders of such Securities parties to
any such proceedings.



     Section 6.03. Application of Moneys Collected by Trustee. Any moneys or property collected
by the Trustee pursuant to this Article and, if an Event of Default has occurred and is continuing,
any money or other property distributable in respect of the Company’s obligations under the
Indenture shall be applied in the order following, at the date or dates fixed by the Trustee for
the distribution of such moneys, upon presentation of the several Securities in respect of which
moneys have been collected, and the notation thereon of the payment, if only partially paid, and
upon surrender thereof if fully paid:




     FIRST: To the payment of all amounts due the Trustee pursuant to the provisions of
Section 7.06;




30











 






     SECOND: In case the principal of the Outstanding Securities in respect of which
such moneys have been collected shall not have become due (at maturity, upon redemption,
by declaration, repayment or otherwise) and be unpaid, to the payment of interest, if any,
on such Securities, in the order of the maturity of the installments of such interest,
with interest (to the extent that such interest has been collected by the Trustee) upon
the overdue installments of interest at the Overdue Rate applicable to such Securities,
such payments to be made ratably to the person entitled thereto;




     THIRD: In case the principal of the Outstanding Securities in respect of which such
moneys have been collected shall have become due (at maturity, upon redemption, by
declaration, repayment or otherwise), to the payment of the whole amount then owing and
unpaid upon such Securities for principal, premium, if any, and interest, if any, with
interest on the overdue principal, and premium, if any, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of interest, if any,
at the Overdue Rate applicable to such Securities; and in case such moneys shall be
insufficient to pay in full the whole amounts so due and unpaid upon such Securities, then
to the payment of such principal, premium, if any, and interest, if any, without
preference or priority of principal, and premium, if any, over interest, if any, or of
interest, if any, over principal, and premium, if any, or of any installment of interest,
if any, over any other installment of interest, if any, or of any such Security over any
other such Security, ratably to the aggregate of such principal, premium, if any, and
accrued and unpaid interest, if any; and




     FOURTH: To the payment of the remainder, if any, to the Company, its successors or
assigns, or to whosoever may be lawfully entitled to receive the same, or as a court of
competent jurisdiction may direct.



     Section 6.04. Proceedings by Securityholders. No holder of any Security of any series shall
have any right by virtue of or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or with respect to this Indenture or
for the appointment of a receiver or trustee (or other similar official), or for any other remedy
hereunder, unless (i) such holder previously shall have given to the Trustee written notice of an
Event of Default with respect to Securities of such series and of the continuance thereof, as
hereinbefore provided, (ii) the holders of not less than twenty-five percent in aggregate principal
amount of the Securities of such series then Outstanding shall have made written request upon the
Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall
have offered to the Trustee such indemnity reasonably satisfactory to it as it may require against
the costs, expenses and liabilities to be incurred therein or thereby, and (iii) the Trustee for 60
days after its receipt of such notice, request and offer of indemnity,



31









 




shall not have received from the holders of a majority in principal amount of the Securities
of such series then Outstanding a direction inconsistent with that request, and shall have
neglected or refused to institute any such action, suit or proceeding, it being understood and
intended, and being expressly covenanted by the taker and holder of every Security with every other
taker and holder and the Trustee, that no one or more holders of Securities of such series shall
have any right in any manner whatever by virtue or by availing of any provision of this Indenture
to affect, disturb or prejudice the rights of any other holder of Securities of such series, or to
obtain or seek to obtain priority over or preference to any other such holder, or to enforce any
right under this Indenture, except in the matter herein provided and for the equal, ratable and
common benefit of all holders of Securities of such series (it being understood that the Trustee
does not have an affirmative duty to ascertain whether or not such actions or forbearances are
unduly prejudicial to such Holders).




     Notwithstanding any other provisions in this Indenture, however, the right of any holder of
any Security to receive payment of the principal of, premium, if any, and interest, if any, on such
Security, on or after the respective due dates expressed in such Security, or upon redemption, by
declaration, repayment or otherwise, or to institute 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, and no provision of the Securities of any series or of this Indenture shall alter or impair
the obligation of the Company, which is absolute and unconditional, to pay the principal of,
premium, if any, and interest, if any, on the Securities of such series at the respective places,
at the respective times, at the respective rates and in the coin or currency, therein and herein
prescribed.



     Section 6.05. Proceedings by Trustee. In case of an Event of Default hereunder the Trustee
may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by
such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any of such rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to
enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.



     Section 6.06. Remedies Cumulative and Continuing. All powers and remedies given by this
Article 6 to the Trustee or to the Securityholders of any series shall, to the extent permitted by
law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies
available to the Trustee or the holders of such Securities, by judicial proceedings or otherwise,
to enforce the performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any holder of any such Securities to
exercise any right or power accruing upon any default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a waiver of any such default or an
acquiescence



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therein; and, subject to the provisions of Section 6.04, every power and remedy given by this
Article Six or by law to the Trustee or to the Securityholders of any series may be exercised from
time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders
of such series.




     Section 6.07. Direction of Proceedings and Waiver of Defaults by Securityholders. (a) The
holders of a majority in aggregate principal amount of the Securities of any series at the time
Outstanding shall have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee,
with respect to the Securities of such series; provided, however, that (subject to the provisions
of Section 7.01) the Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, determines that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith shall determine that the action or proceeding so
directed would involve the Trustee in personal liability.



     (b) Prior to any acceleration or declaration accelerating the maturity of the Securities of
any series, the holders of a majority in aggregate principal amount of the Securities of such
series at the time Outstanding may on behalf of the holders of all of the Securities of such series
waive any past default or Event of Default with respect to such series and its consequences except
a default in the payment of interest, if any, on, or the principal of or premium, if any, on any
Security of such series, or in the payment of any sinking fund installment or analogous obligation
with respect to Securities of such series, or in respect of a covenant or provision hereof which
under Section 9.02 cannot be modified or amended without the consent of the holder of each Security
affected. Upon any such waiver the Company, the Trustee and the holders of the Securities of that
series shall be restored to their former positions and rights hereunder, respectively; but no such
waiver shall extend to any subsequent or other default or Event of Default or impair any right
consequent thereon. Whenever any default or Event of Default hereunder shall have been waived as
permitted by this Section 6.07(b), said default or Event of Default shall for all purposes of the
Securities of such series and this Indenture be deemed to have been cured and to be not continuing.



     Section 6.08. Notice of Defaults. The Trustee shall, within 90 days after the occurrence of
a default with respect to the Securities of any series, send to all holders of Securities of such
series, as the names and addresses of such holders appear upon the registry books of the Company,
notice of all defaults with respect to such series actually known to a Responsible Officer or the
Trustee, unless such defaults shall have been cured or waived before the giving of such notice (the
term “defaults” for the purpose of this Section 6.08 being hereby defined to be the events
specified in Section 6.01 or established with respect to such Securities as contemplated by Section
2.02, not including the periods of grace, if any, provided for therein or established with respect
to such Securities as contemplated by Section 2.02 and irrespective of the giving of the notices
specified in clauses (d)



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and (e) of Section 6.01 or established with respect to such Securities as contemplated by
Section 2.02); provided, however, that except in the case of default in the payment of the
principal of, premium, if any, or interest, if any, on any of the Securities of such series or in
the making of any sinking fund installment or analogous obligation with respect to such series, the
Trustee shall be protected in withholding such notice if and so long as the Trustee in good faith
determines that the withholding of such notice is in the interest of the holders of Securities of
such series.




     Section 6.09. Undertaking to Pay Costs. All parties to this Indenture agree, and each holder
of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken, omitted or suffered by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; but the provisions of this Section 6.09
shall not apply (i) to any suit instituted by the Trustee, (ii) to any suit instituted by any
holder of Securities of any series or group of such holders, holding in the aggregate more than ten
percent in principal amount of the Outstanding Securities of such series or (iii) to any suit
instituted by any Securityholder for the enforcement of the payment of the principal of, premium,
if any, or interest, if any, on any Security (A) on or after the due date expressed in such
Security, (B) on or after the date fixed for redemption or repayment or (C) after such Security
shall have become due by declaration.



ARTICLE 7

Concerning the Trustee




     Section 7.01. Duties and Responsibilities of Trustee. With respect to the holders of any
series of Securities issued hereunder, the Trustee, prior to the occurrence of an Event of Default
with respect to the Securities of such series and after the curing or waiving of all Events of
Default which may have occurred with respect to such series, undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or waived) the Trustee
shall exercise such of the rights and powers vested in it by this Indenture with respect to such
series, and use the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person’s own affairs.



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



34









 





     (a) prior to the occurrence of an Event of Default with respect to the Securities of a series
and after the curing or waiving of all Events of Default with respect to such series which may have
occurred:




     (1) the duties and obligations of the Trustee with respect to the Securities of a
series shall be determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and




     (2) in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any such certificates
or opinions which by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture (but need not confirm or investigate
the accuracy of mathematical calculations or other facts stated therein);



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



     (c) the Trustee shall not be liable with respect to any action taken, omitted or suffered to
be taken by it in good faith in accordance with the direction of the holders of Securities of any
series pursuant to Section 6.07 relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to Securities of such series.



     None of the provisions of this Indenture shall be construed as requiring the Trustee to expend
or risk its own funds or otherwise to incur any personal financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be
reasonable grounds for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.



     The provisions of this Section 7.01 are in furtherance of and subject to Section 315 of the
Trust Indenture Act of 1939.



     Section 7.02. Reliance on Documents, Opinions, etc. In furtherance of and subject to the
Trust Indenture Act of 1939, and subject to the provisions of Section 7.01:



35









 





     (a) the Trustee may conclusively rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;



     (b) any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by a Company Order (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors of the Company may be
evidenced to the Trustee by a copy thereof certified by the Secretary, an Assistant Secretary or an
Attesting Secretary of the Company;



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



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



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



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



     (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys,



36









 




and the Trustee shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;




     (h) in no event shall the Trustee be responsible or liable for special, indirect, punitive 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;



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



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



     (k) the Trustee shall not be required to give any bond or surety in respect of the performance
of its powers and duties hereunder; and



     (l) the Trustee may request that the Company deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified actions pursuant to
this Indenture.



     Section 7.03. No Responsibility for Recitals, etc. The recitals contained herein and in the
Securities shall be taken as the statements of the Company (except in the Trustee’s certificates of
authentication), and the Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this Indenture or the
Securities, provided that the Trustee shall not be relieved of its duty to authenticate Securities
only as authorized by this Indenture. The Trustee shall not be accountable for the use or
application by the Company or any of the Securities or of the proceeds thereof.



     Section 7.04. Ownership of Securities. The Trustee and any agent of the Company or of the
Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not Trustee or such agent.



     Section 7.05. Moneys to be Held in Trust. Subject to the provisions of Sections 11.05 and
11.06 hereof, all moneys received by the Trustee or any paying agent shall, until used or applied
as herein provided, be held in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. Neither the Trustee nor any
paying agent shall be under any liability for interest on any moneys received by it



37









 




hereunder except such as it may agree in writing with the Company to pay thereon. So long as
no Event of Default shall have occurred and be continuing, all interest allowed on any such moneys
shall be paid from time to time upon the receipt by the Trustee of a Company Order.




     Section 7.06. Compensation and Expenses of Trustee. The Company covenants and agrees to pay
to the Trustee from time to time, and the Trustee shall be entitled to, such compensation as agreed
among the parties in writing (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) as shall be agreed in writing between the Company
and the Trustee and, except as otherwise expressly provided, the Company will pay or reimburse the
Trustee upon its request for all expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including the compensation and
the expenses and disbursements of its counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its negligence or willful
misconduct. If any property other than cash shall at any time be subject to the lien of this
Indenture, the Trustee, if and to the extent authorized by a receivership or bankruptcy court of
competent jurisdiction or by the supplemental instrument subjecting such property to such lien,
shall be entitled to make advances for the purpose of preserving such property or of discharging
tax liens or other prior liens or encumbrances thereon. The Company also covenants to indemnify
each of the Trustee and any predecessor trustee for, and to hold it harmless against, any and all
loss, liability, damage, claim or expense incurred without negligence or willful misconduct on the
part of the Trustee, arising out of or in connection with the acceptance or administration of this
trust and its duties hereunder, including the costs and expenses of defending itself against any
claim (whether asserted by the Company, a Holder or any other Person) of liability in the premises.
The obligations of the Company under this Section 7.06 to compensate and indemnify the Trustee and
to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture. Such additional indebtedness shall be secured by a lien prior to that of the Securities
upon all property and funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the holders of particular Securities. When the Trustee incurs expenses or
renders services in connection with an Event of Default specified in Section 6.01(f) or Section
6.01(g), the expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of administration under any
applicable Federal or state bankruptcy, insolvency or other similar law.



     Section 7.07. Officers’ Certificate as Evidence. Subject to the provisions of Sections 7.01
and 7.02, whenever in the administration of the provisions of this Indenture the Trustee shall deem
it necessary or desirable that a matter be proved or established prior to taking, omitting or
suffering any action to be taken hereunder, such matter (unless other evidence in respect thereof
be herein specifically prescribed) may, in the absence of negligence or willful misconduct



38









 




on the part of the Trustee, be deemed to be conclusively proved and established by an
Officers’ Certificate delivered to the Trustee, and such certificate, in the absence of negligence
or willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any
action taken, omitted or suffered by it under the provisions of this Indenture upon the faith
thereof.




     Section 7.08. Reserved.



     Section 7.09. Eligibility of Trustee. The Trustee hereunder shall at all times be a
corporation organized and doing business under the laws of the United States or any state, which
(a) is authorized under such laws to exercise corporate trust powers and (b) is subject to
supervision or examination by Federal or State authority and (c) shall have at all times a combined
capital and surplus of not less than fifty million dollars. If such corporation publishes reports
of condition at least annually, pursuant to law, or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 7.09, the combined
capital and surplus of such corporation at any time shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this Section 7.09, the
Trustee shall resign immediately in the manner and with the effect specified in Section 7.10.



     The provisions of this Section 7.09 are in furtherance of and subject to Section 310(a) of the
Trust Indenture Act of 1939.



     Section 7.10. Resignation or Removal of Trustee. (a) The Trustee, or any trustee or trustees
hereafter appointed, may at any time resign with respect to any one or more or all series of
Securities by giving written notice of resignation to the Company. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee or trustees with respect to the
applicable series by written instrument, in duplicate, executed by order of the Board of Directors
of the Company, one copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. If no successor trustee shall have been so appointed with respect to
any series and have accepted appointment within 60 days after the giving of such notice of
resignation, the resigning Trustee, at the expense of the Company, may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has
been a bona fide holder of a Security or Securities of the applicable series for at least six
months may, subject to the provisions of Section 6.09, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.



     (b) In case at any time any of the following shall occur —




     (1) the Trustee shall fail to comply with the provisions of Section 310(b) of the
Trust Indenture Act of 1939 with respect to any



39









 






series of Securities after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Security or Securities of such series
for at least six months, or




     (2) the Trustee shall cease to be eligible in accordance with the provisions of
Section 7.09 and Section 310(a) of the Trust Indenture Act of 1939 with respect to any
series of Securities and shall fail to resign after written request therefor by the
Company or by any such Securityholder, or




     (3) the Trustee shall become incapable of acting with respect to any series of
Securities, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or
of its property shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of rehabilitation, conservation
or liquidation —


then, in any such case, the Company may remove the Trustee with respect to such series and appoint
a successor trustee with respect to such series by written instrument, in duplicate, executed by
order of the Board of Directors of the Company, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of
Section 315(e) of the Trust Indenture Act of 1939, any Securityholder who has been a bona fide
holder of a Security or Securities of such series for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor trustee with respect to such series. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee with respect to such series.




     (c) The holders of a majority in aggregate principal amount of the Securities of one or more
series (each series voting as a class) or all series at the time Outstanding may at any time remove
the Trustee with respect to the applicable series or all series, as the case may be, and appoint
with respect to the applicable series or all series, as the case may be, a successor trustee by
written notice of such action to the Company, the Trustee and the successor trustee.



     If no successor Trustee shall have been so appointed with respect to any series and have
accepted appointment within 60 days after the giving of such notice of removal, the Trustee being
removed may petition, at the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee.



     (d) Any resignation or removal of the Trustee with respect to any series and any appointment
of a successor trustee with respect to such series pursuant to any of the provisions of this
Section 7.10 shall become effective upon acceptance of appointment by the successor trustee as
provided in Section 7.11.



40









 





     (e) No predecessor Trustee shall be liable for the acts or omissions of any successor Trustee.



     Section 7.11. Acceptance by Successor Trustee. Any successor trustee appointed as provided
in Section 7.10 shall execute, acknowledge and deliver to the Company and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the resignation or
removal of the predecessor trustee with respect to any or all applicable series shall become
effective and such successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, duties and obligations with respect to such series of its
predecessor hereunder, with like effect as if originally named as trustee herein; but,
nevertheless, on the written request of the Company or of the successor trustee, the trustee
ceasing to act shall, upon payment (or due provision therefor) of any amounts then due it pursuant
to the provisions of Section 7.06, execute and deliver an instrument transferring to such successor
trustee all the rights and powers with respect to such series of the trustee so ceasing to act.
Upon request of any such successor trustee, the Company shall execute any and all instruments in
writing in order more fully and certainly to vest in and confirm to such successor trustee all such
rights and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon all property
or funds held or collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 7.06.



     In case of the appointment hereunder of a successor trustee with respect to the Securities of
one or more (but not all) series, the Company, the predecessor trustee and each successor trustee
with respect to the Securities of any applicable series shall execute and deliver an indenture
supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the predecessor trustee with respect
to the Securities of any series as to which the predecessor trustee is not retiring shall continue
to be vested in the predecessor trustee, and shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that each such trustee
shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such trustee.



     No successor trustee with respect to a series of Securities shall accept appointment as
provided in this Section 7.11 unless at the time of such acceptance such successor trustee shall,
with respect to such series, be qualified under Section 310(b) of the Trust Indenture Act of 1939
and eligible under the provisions of Section 7.09.



     Upon acceptance of appointment by a successor trustee with respect to any series as provided
in this Section 7.11, the successor Trustee shall send notice of the succession of such trustee
hereunder to the holders of Securities of such series



41









 




at their addresses as they shall appear on the registry books of the Security Registrar.




     Section 7.12. Succession by Merger, etc. Any Person into which the Trustee may be merged or
converted or with which it may be consolidated, or any Person resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any Person succeeding to all or
substantially all of the corporate trust business of the Trustee, shall be the successor to the
Trustee hereunder, provided such Person shall be qualified under Section 310(b) of the Trust
Indenture Act of 1939 and eligible under the provisions of Section 7.09, without the execution or
filing of any paper or any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding.



     In case at the time such successor to the Trustee shall succeed to the trust created by this
Indenture with respect to one or more series of Securities, any of such Securities shall have been
authenticated but not delivered, any such successor to the Trustee by merger, conversion or
consolidation may adopt the certificate of authentication of any predecessor trustee, and deliver
such Security so authenticated; and in case at that time any of such Securities shall not have been
authenticated, any successor to the Trustee may authenticate such Securities either in the name of
such successor to the Trustee or, if such successor to the Trustee is a successor by merger,
conversion or consolidation the name of any predecessor hereunder; and in all such cases such
certificate shall have the full force which it is anywhere in such Securities or in this Indenture
provided that the certificate of the Trustee shall have.



     Section 7.13. Other Matters Concerning the Trustee. The principal corporate trust office of
the Trustee at the date of this Indenture is located at 625 Marquette Avenue, MAC N9311-110,
Minneapolis, MN 55479 Attn: Corporate Trust Services, Maxim Account Manager.



     Section 7.14. Appointment of Authenticating Agent. The Trustee may appoint an Authenticating
Agent or Agents which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon original issue and upon exchange, registration of transfer, partial
conversion or partial redemption or pursuant to Section 2.07, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia, authorized under such laws
to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000
and subject to



42









 




supervision or examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in this Section.




     Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.



     An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the provisions of this
Section.



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



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



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     This is one of the Securities described in the within-mentioned Indenture.



	 	 	 	 	 
	 	Wells Fargo Bank, National Association, as Trustee

 	 
	 	 	,
	 	as Authenticating Agent 	 
	
	
	
	
	
	
	
	
	
	
	
	
	
	
	
	

	 	By:  	 	 
	 	 	Authorized Signatory	 
	 	 	 	 
	 



Dated:




ARTICLE 8

Concerning the Securityholders





     Section 8.01. Action of Securityholders. Whenever in this Indenture it is provided that the
holders of a specified percentage in aggregate principal amount of the Securities of any or all
series may take any action (including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action) the fact that at the time of taking
any such action the holders of such specified percentage have joined therein may be evidenced (a)
by any instrument or any number of instruments of similar tenor executed by such Securityholders in
person or by agent or proxy appointed in writing, or (b) by the record of such holders of
Securities voting in favor thereof at any meeting of such Securityholders duly called and held or
(c) by a combination of such instrument or instruments and any such record of such a meeting of
such Securityholders.



     Section 8.02. Proof of Execution by Securityholders. Subject to the provisions of Sections
7.01 and 7.02, proof of the execution of any instrument by a Securityholder or his agent or proxy
shall be sufficient if made in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be reasonably satisfactory to the Trustee. The
ownership of Securities shall be proved by the registry books of the Security Registrar.



     The record of any Securityholders’ meeting shall be proved in such manner as may be prescribed
by or as shall be reasonably satisfactory to the Trustee.



     The Company may set a record date for purposes of determining the identity of holders of
Securities of any series entitled to vote or consent to or revoke any action referred to in Section
8.01, which record date may be set at any time or from time to time by notice to the Trustee, for
any date or dates (in the case of any adjournment or reconsideration) not more than 60 days nor
less than five days prior to the proposed date of such vote or consent, and thereafter,
notwithstanding any other provisions hereof, with respect to Securities of any series, only holders
of Securities of such series of record on such record date shall be entitled to so vote or give
such consent or revoke such vote or consent.



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     Section 8.03. Who Are Deemed Absolute Owners. The Company, the Trustee and any agent of the
Company or of the Trustee may deem the person in whose name any Security shall be registered upon
the books of the Security Registrar to be, and may treat him as, the owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of the principal of,
premium, if any, and (subject to Section 2.04) interest, if any, on such Security and for all other
purposes; and neither the Company nor the Trustee nor any agent of the Company or of the Trustee
shall be affected by any notice to the contrary. All such payments so made to any holder for the
time being, or upon his order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any such Security.



     No Beneficial Owner of a beneficial interest in any Global Security held on its behalf by a
Depositary shall have any rights under this Indenture with respect to such Global Security, and
such Depositary may be treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the owner of such Security for all purposes whatsoever. None of the Company, the Trustee
or any agent of the Company or the Trustee will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership interests of a
Global Security or maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.



     Section 8.04. Company-Owned Securities Disregarded. In determining whether the holders of
the requisite aggregate principal amount of Securities have concurred in any demand, request,
notice, direction, consent or waiver under this Indenture, Securities which are owned by the
Company or any other obligor on the Securities with respect to which such determination is being
made or by any person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on the Securities with respect to
which such determination is being made shall be disregarded and deemed not to be Outstanding for
the purpose of any such determination; provided, that for the purposes of determining whether the
Trustee shall be protected in relying on any such demand, request, notice, direction, consent or
waiver only Securities which a Responsible Officer of the Trustee actually knows are so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section 8.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee’s right to vote such Securities and that the pledgee is not
a person directly or indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In the case of a dispute as to such right, any
decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.



     Section 8.05. Revocation of Consents; Future Holders Bound. At any time prior to (but not
after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by
the holders of the percentage in aggregate



45









 




principal amount of the Securities of any or all series, as the case may be, specified in this
Indenture in connection with such action, any holder of a Security which is shown by the evidence
to be included in the Securities the holders of which have consented to such action may, by filing
written notice with the Trustee at its principal office and upon proof of holding as provided in
Section 8.02, revoke such action so far as concerns such Security. Except as aforesaid any such
action taken by the holder of any Security shall be conclusive and binding upon such holder and
upon all future holders of such Security, irrespective of whether or not any notation in regard
thereto is made upon such Security or any Security issued in exchange or substitution therefor.




ARTICLE 9

Supplemental Indentures




     Section 9.01. Supplemental Indentures without Consent of Securityholders. The Company, when
authorized by resolution of the Board of Directors, and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto for one or more of the following
purposes:



     (a) to evidence the succession of another Person to the Company, or successive successions,
and the assumption by the successor Person of the covenants, agreements and obligations of the
Company pursuant to Article 11 hereof;



     (b) to add to the covenants of the Company such further covenants, restrictions, conditions or
provisions for the protection of the holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of Securities, stating that such
covenants are expressly being included for the benefit of such series) as the Board of Directors of
the Company and the Trustee shall consider to be for the protection of the holders of such
Securities, and to make the occurrence, or the occurrence and continuance, of a default in any of
such additional covenants, restrictions, conditions or provisions a default or an Event of Default
permitting the enforcement of all or any of the several remedies provided in this Indenture as
herein set forth; provided, however, that in respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default;



     (c) to establish the forms or terms of Securities of any series as permitted by Sections 2.01
and 2.02;



     (d) to cure any ambiguity or to correct or supplement any provision contained herein or in any
supplemental indenture which may be defective or inconsistent with any other provision contained
herein or in any supplemental



46









 




indenture, or to make such other provisions in regard to matters or questions arising under
this Indenture which shall not adversely affect the interests of the holders of any Securities;
provided, however, that any amendment made solely to conform the provisions of this Indenture to
the description of the Securities contained in the prospectus or other offering document pursuant
to which the Securities were sold will not be deemed to adversely affect the interests of the
holders of the Securities, as evidenced by an Officers’ Certificate stating that such text
constitutes an unintended conflict with the description of the corresponding provision in the
offering document;




     (e) to modify or amend this Indenture to permit the qualification of this Indenture or any
indentures supplemental hereto under the Trust Indenture Act of 1939, as amended;



     (f) to add guarantees with respect to the Securities of any series or to secure the Securities
of any series; and



     (g) to evidence and provide for the acceptance of appointment hereunder by a successor or
separate trustee with respect to the Securities of one or more series or to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, pursuant to the requirements of
Section 7.11 or pursuant to Section 2.02(17).



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



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



     Section 9.02. Supplemental Indentures with Consent of Securityholders. With the consent
(evidenced as provided in Sections 8.01 and 8.02) of the holders of a majority in the aggregate
principal amount of the Securities of each series (each series voting as a class) affected by such
supplemental indenture at the time Outstanding, the Company and the Trustee may from time to time
and at any time enter into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions of this Indenture
or any supplemental indenture or of modifying in any manner the rights of the holders of the
Securities or each such series; provided, however, that no such supplemental indenture shall (i)
change the stated maturity



47









 




of principal of, or any installment of principal of or interest on, any Security, (ii) reduce
the rate of or extend the time of payment of interest, if any, on any Security, or alter the manner
of calculation of interest payable on any Security (except as part of any remarketing of the
Securities of any series, or any interest rate reset with respect thereto in each case in
accordance with the terms thereof), (iii) reduce the principal amount or premium, if any, on any
Security, (iv) make the principal amount or premium, if any, or interest, if any, on any Security,
payable in any coin or currency other than that provided in any Security, (v) reduce the percentage
in principal amount of Securities of any series, the holders of which are required to consent to
any such supplemental indenture or any waiver of any past default or Event of Default pursuant to
Section 6.07(b), (vi) change any place of payment where the Securities of any series or interest
thereon is payable, (vii) impair the right of any holder of a Security to institute suit for any
such payment, or reduce the amount of the principal of an Original Issue Discount Security that
would be due and payable upon an acceleration of the maturity thereof pursuant to Section 6.01 or
adversely affect the right of repayment, if any, at the option of the holder, or extend the time,
or reduce the amount of any payment to any sinking fund or analogous obligation relating to any
Security, or (viii) modify any provision of Section 6.07(b) or 9.02 (except to increase any such
percentage or to provide that certain other provisions of the Indenture cannot be modified or
waived without the consent of the holder of each Security so affected), without, in the case of
each of the foregoing clauses (i) through (viii), the consent of the holder of each Security so
affected. A supplemental indenture which changes or eliminates any covenant or other provision of
this Indenture which has expressly been included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the holders of Securities of any other series.




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



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



     Section 9.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures. Any
supplemental indenture executed pursuant to the provisions of this Article 10 shall comply with the
Trust Indenture Act of 1939, as



48









 




then in effect. Upon the execution of any supplemental indenture pursuant to the provisions of
this Article Ten, this Indenture shall be deemed to be modified and amended in accordance therewith
and the respective rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of the Securities shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all purposes.




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



     Section 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished Trustee. The
Trustee, subject to the provisions of Sections 7.01 and 7.02, shall receive an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant hereto complies with the requirements of this Article Ten.



ARTICLE 10

Consolidation, Merger, Sale or Conveyance




     Section 10.01. Company May Not Consolidate, etc., Except Under Certain Conditions. The
Company covenants that it will not merge or consolidate with any other Person or sell, convey,
transfer or otherwise dispose of all or substantially all of its assets to any other Person, unless
(i) either the Company shall be the continuing corporation, or the successor Person (if other than
the Company) shall be a corporation or a limited liability company organized and existing under the
laws of the United States of America or a state thereof or the District of Columbia and such
corporation or limited liability company, as the case may be, shall expressly assume the due and
punctual payment of the principal of, and premium, if any, and interest, if any, on all the
Securities according to their tenor, and the due and punctual performance and observance of all of
the covenants and conditions of this Indenture to be performed by the Company by supplemental
indenture, executed and delivered to the Trustee by such corporation or limited liability company,
as the case may be, and (ii) the Company or such successor corporation or limited liability
company, as the case may be, shall not, immediately after such merger or consolidation, or such
sale, conveyance, transfer or other disposition, be in default in the performance of any



49









 




such covenant or condition. In the event of any such merger, consolidation, sale, conveyance
(other than by way of lease), transfer or other disposition, the predecessor company may be
dissolved, wound up and liquidated at any time thereafter.




     Section 10.02. Successor Corporation or Limited Liability Company to be Substituted. In case
of any such merger, consolidation, sale, conveyance (other than by way of lease), transfer or other
disposition, and upon any such assumption by the successor corporation or limited liability
company, such successor corporation or limited liability company shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein as the Company,
and the Company shall be relieved of any further obligation under this Indenture and under the
Securities. Such successor corporation or limited liability company thereupon may cause to be
signed, and may issue either in its own name or in the name of Maxim Integrated Products, Inc., any
or all of the Securities issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the written order of such successor corporation or
limited liability company, instead of the Company, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers of the Company to
the Trustee for authentication, and any Securities which such successor corporation or limited
liability company thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in accordance with the
terms of this Indenture as though all of such Securities had been issued at the date of the
execution hereof.



     In case of any such merger, consolidation, sale, conveyance, transfer or other disposition,
such changes in phraseology and form (but not in substance) may be made in the Securities
thereafter to be issued as may be appropriate.



     Section 10.03. Documents to be Given Trustee. The Trustee, subject to the provisions of
Sections 7.01 and 7.02, shall receive an Officers’ Certificate and an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale, conveyance, transfer or other
disposition, and any such assumption, comply with the provisions of this Article 11.



ARTICLE 11

Satisfaction and Discharge of Indenture




     Section 11.01. Discharge of Indenture. When (a) the Company shall deliver to the Trustee for
cancellation all Securities theretofore authenticated (other than any Securities which shall have
been destroyed, lost or stolen or in lieu of or in substitution for which other Securities shall
have been authenticated and delivered, or which shall have been paid, pursuant to the provisions of
Section 2.07 or Securities for whose payment money has theretofore been



50









 




deposited in trust and thereafter repaid to the Company as provided in Section 11.06) and not
theretofore cancelled, or (b) all the Securities not theretofore cancelled or delivered to the
Trustee for cancellation shall have become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit
with the Trustee, in trust, funds sufficient to pay at maturity or upon redemption all of the
Securities (other than any (i) Securities which shall have been destroyed, lost or stolen and in
lieu of or in substitution for which other Securities shall have been authenticated and delivered,
or which shall have been paid, pursuant to the provisions of Section 2.07 or (ii) Securities for
whose payment money has theretofore been deposited in trust and thereafter repaid to the Company as
provided in Section 11.06) not theretofore cancelled or delivered to the Trustee for cancellation,
including principal, premium, if any, and interest, if any, due or to become due to such date of
maturity or date fixed for redemption, as the case may be, and if in either case the Company shall
also pay or cause to be paid all other sums payable hereunder by the Company, then this Indenture
shall cease to be of further effect (except as to (i) rights of registration of transfer and
exchange of Securities, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities, (iii) rights of holders to receive payments of principal thereof and interest thereon,
and remaining rights of the holders to receive mandatory sinking fund payments, if any, (iv) the
rights, obligations and immunities of the Trustee hereunder and (v) the rights of the
Securityholders as beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them), and the Trustee, on demand of the Company accompanied by an
Officers’ Certificate and an Opinion of Counsel and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction of and discharging this Indenture, the
Company, however, hereby agreeing to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred by the Trustee in connection with this Indenture or the
Securities.




     Section 11.02. Legal Defeasance. On the 91st day following the deposit referred to in clause
(a) below, the Company will be deemed to have paid and will be discharged from its obligations in
respect of the Securities of the series with respect to which such deposit shall have been made and
the Indenture with respect to such Securities, other than (i) the rights of the Securityholders of
Outstanding Securities of such series to receive, solely from the trust fund described in clause
(a), payments in respect of the principal of and interest on such securities when such payments are
due and (ii) its obligations in Article Two and Sections 4.02, 7.06, 7.10, 11.06; and 12.07
provided the following conditions have been satisfied:



     (a) The Company has irrevocably deposited in trust with the Trustee, as trust funds solely for
the benefit of the Securityholders of such series, money sufficient, or U.S. Government
Obligations, the principal of and interest on which shall be sufficient, or a combination thereof
sufficient, in the opinion of a nationally recognized firm of independent public accountants
delivered to the



51









 




Trustee, without consideration of any reinvestment, to pay principal of, premium, if any, and
interest, if any, on the Securities of such series to maturity or redemption, as the case may be,
provided that any redemption before maturity has been irrevocably provided for under arrangements
satisfactory to the Trustee.




     (b) The deposit will not result in a breach or violation of, or constitute a default under,
the Indenture or any other agreement or instrument to which the Company is a party or by which it
is bound.



     (c) The Company has delivered to the Trustee either (x) a ruling received from the Internal
Revenue Service to the effect that the holders of the Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of the defeasance and will be
subject to federal income tax on the same amount and in the same manner and at the same times as
would otherwise have been the case or (y) an Opinion of Counsel, based on a change in law after the
date of the Indenture, to the same effect as the ruling described in clause (x).



     (d) The Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, in each case stating that all conditions precedent provided for herein relating to the
defeasance have been complied with.



     Prior to the end of the 91-day period, none of the Company’s obligations under the Indenture
with respect to the Securities of such series will be discharged. Thereafter, the Trustee, upon the
request and at the cost and expense of the Company, will acknowledge in writing the discharge of
the Company’s obligations under the Securities of such series and the Indenture with respect to
such series except for the surviving obligations specified above.



     As used herein, “U.S. Government Obligation” means (x) any security which is (i) a direct
obligation of the United States of America for the payment of which its full faith and credit is
pledged or (ii) an obligation 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, which, in either case (i) or
(ii), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933) as custodian
with respect to any U.S. Government Obligation which is specified in clause (x) above and held by
such bank for the account of the holder of such depositary receipt, or with respect to any specific
payment of principal of or interest on any U.S. Government Obligation which is so specified and
held, provided that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific payment of principal
or interest evidenced by such depositary receipt.



52









 





     Section 11.03. Covenant Defeasance. After the 91st day following the deposit referred to in
clause (a) with respect to the Securities of a series, the Company’s obligations set forth in the
covenant or covenants for such series of Securities established as contemplated by Section 2.02(20)
will terminate, and clauses (d) (to the extent relating to such covenant or covenants), (e) and (h)
of Section 6.01 will no longer constitute Events of Default with respect to the Securities of a
series, provided the following conditions have been satisfied:



     (a) the Company has complied with clauses (a), (b) and (d) of Section 11.02; and



     (b) the Company has delivered to the Trustee an Opinion of Counsel to the effect that the
holders of the Securities of such series will not recognize income, gain or loss for Federal income
tax purposes as a result of the defeasance and will be subject to Federal income tax on the same
amount and in the same manner and at the same times as would otherwise have been the case.



     Except as specifically stated above, none of the Company’s obligations under the Indenture
will be discharged.



     Section 11.04. Deposited Moneys to be Held in Trust by Trustee; Miscellaneous Provisions.
All moneys and U.S. Government Obligations (including the proceeds thereof) deposited with the
Trustee pursuant to the provisions of, Section 11.02 or 11.03 shall be held in trust and applied by
it to the payment, either directly or through any paying agent (including the Company if acting as
its own paying agent), to the holders of the particular Securities for payment or redemption of
which such moneys or U.S. Government Obligations have been deposited with the Trustee, of all sums
due and to become due thereon for principal, premium, if any, and interest, if any.



     The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 11.01 or 11.03
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 Securities.



     Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company from time to time upon request of the Company any money or U.S. Government Obligations
held by it as provided in Section 11.02 or 11.03 with respect to any Securities which, in the
opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount thereof which would
then be required to be deposited to effect the legal defeasance or covenant defeasance, as the case
may be, with respect to such Securities.



     Section 11.05. Paying Agent to Repay Moneys Held. Upon the satisfaction and discharge of
this Indenture all moneys then held by any paying



53









 




agent of the Securities (other than the Trustee) shall, upon receipt of a Company Order, be
repaid to the Company or paid to the Trustee, and thereupon such paying agent shall be released
from all further liability with respect to such moneys.




     Section 11.06. Return of Unclaimed Moneys. Any moneys deposited with or paid to the Trustee
for payment of the principal of, premium, if any, or interest, if any, on Securities of any series
and not applied but remaining unclaimed by the holders of Securities of that series for two years
after the date upon which the principal of, premium, if any, or interest, if any, on such
Securities, as the case may be, shall have become due and payable, shall be repaid to the Company
by the Trustee on written demand; and the holder of any such Securities shall thereafter look only
to the Company for any payment which such holder may be entitled to collect and all liability of
the Trustee with respect to such money shall thereupon cease.



     Section 11.07. Reinstatement. If and for so long as the Trustee is unable to apply any money
or U.S. Government Obligations held in trust pursuant to Section 11.01, 11.02 or 11.03 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, the Company’s obligations under
the Indenture and the Securities will be reinstated as though no such deposit in trust had been
made. If the Company makes any payment of principal of or interest on any Securities because of the
reinstatement of its obligations, it will be subrogated to the rights of the Securityholders of
such Securities to receive such payment from the money or U.S. Government Obligations held in
trust.



ARTICLE 12

Immunity of Incorporators, Stockholders, Officers and Directors




     Section 12.01. Indenture and Securities Solely Corporate Obligations. No recourse for the
payment of the principal of, premium, if any, or interest, if any, on any Security, or for any
claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any supplemental indenture, or in any
Security, or because of the creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a consideration for, the execution
of this Indenture and the issue of the Securities.



54









 





ARTICLE 13

Miscellaneous Provisions




     Section 13.01. Provisions Binding on Company’s Successors. All the covenants, stipulations,
promises and agreements in this Indenture contained by the Company shall bind its successors and
assigns whether so expressed or not.



     Section 13.02. Official Acts by Successor Corporation. Any act or proceeding by any
provision of this Indenture authorized or required to be done or performed by any board, committee
or officer of the Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any corporation that shall at the time be the lawful sole
successor of the Company.



     Section 13.03. Addresses for Notices, Notice to Holders, Waiver. Any notice or demand which
by any provision of this Indenture is required or permitted to be given or served by the Trustee or
by the holders of Securities on the Company may be given or served by being deposited postage
prepaid by first class mail in a post office letter box addressed (until another address is filed
by the Company with the Trustee) to Maxim Integrated Products, Inc., 120 San Gabriel Drive,
Sunnyvale, California 94086. Any notice, direction, request or demand by any Securityholder to or
upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if
given or made in writing at the Corporate Trust Office, as specified in Section 7.13 hereof.



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



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



     Section 13.04. New York Contract; Waiver of Jury Trial; Consent to Jurisdiction and Service.
This Indenture and each Security shall be deemed to be



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a contract made under the laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of said State, without regard to conflicts of laws principles
thereof.




     EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.



     To the fullest extent permitted by applicable law, the Company hereby irrevocably submits to
the jurisdiction of any Federal or State court located in the Borough of Manhattan in The City of
New York, New York in any suit, action or proceeding based on or arising out of or relating to this
Indenture or any Securities and irrevocably agrees that all claims in respect of such suit or
proceeding may be determined in any such court. The Company irrevocably waives, to the fullest
extent permitted by law, any objection which it may have to the laying of the venue of any such
suit, action or proceeding brought in an inconvenient forum. The Company agrees that final
judgment in any such suit, action or proceeding brought in such a court shall be conclusive and
binding upon the Company, and may be enforced in any courts to the jurisdiction of which the
Company is subject by a suit upon such judgment, provided, that service of process is effected upon
the Company in accordance with applicable law. To the extent the Company has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service of notice, attachment
prior to judgment, attachment in aid of execution, executor or otherwise) with respect to itself or
its property, the Company hereby irrevocably waives such immunity in respect of its obligations
under this Indenture to the extent permitted by law.



     Section 13.05. Evidence of Compliance with Conditions Precedent. Upon any application or
demand by the Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to



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the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with and an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions precedent have been
complied with.




     Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture shall include:
(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 opinion contained in such certificate or opinion are based; (3) a
statement that, in the opinion of such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.



     Section 13.06. Legal Holidays. In any case where the date of maturity of interest, if any,
on or principal of, or premium, if any, on the Securities or the date fixed for redemption or
repayment of any Security will be in The City of New York, New York or place of payment, a
Saturday, a Sunday, a legal holiday or a day on which banking institutions are authorized or
required by law or executive order to close or remain closed, then payment of such interest, if
any, on or principal of or premium, if any, on the Securities need not be made on such date but may
be made on the next succeeding day not in such city, a Saturday, a Sunday, a legal holiday or a day
on which banking institutions are authorized or required by law or executive order to close or
remain closed, with the same force and effect as if made on the date of maturity or a date fixed
for redemption or repayment, and no interest shall accrue for the period from and after such date.



     Section 13.07. Securities in a Specified Currency other than Dollars. Unless otherwise
specified as contemplated by Section 2.02 with respect to a particular series of Securities,
whenever for purposes of this Indenture any action may be taken by the holders of a specified
percentage in aggregate principal amount of Securities of all series or all series affected by a
particular action at the time Outstanding and, at such time, there are Outstanding any Securities
of any series which are denominated in a Specified Currency other than Dollars then the principal
amount of Securities of such series which shall be deemed to be Outstanding for the purpose of
taking such action shall be that amount of Dollars that could be obtained for such amount of such
Specified Currency at the Market Exchange Rate. For purposes of this Section 13.07, Market Exchange
Rate shall mean the noon Dollar buying rate in New York City for cable transfers of the Specified
Currency published by the Federal Reserve Bank of New York. If such Market Exchange Rate is not
available for any reason with respect to such Specified Currency, the Company shall use, in its
sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of
New York or such other quotations as the Trustee shall deem appropriate. The provisions of this



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paragraph shall apply in determining the equivalent principal amount in respect of Securities
of a series denominated in a Specified Currency other than Dollars in connection with any action
taken by holders of Securities pursuant to the terms of this Indenture, including, without
limitation, any determination contemplated in Section 6.01(d) or (e).




     All decisions and determination of the Company regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in its sole discretion
and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all
purposes and irrevocably binding upon all Securityholders.



     Section 13.08. Trust Indenture Act to Control. If and to the extent that any provision of
this Indenture limits, qualifies or conflicts with the duties imposed by, or with another provision
(an “incorporated provision”) included in this Indenture by operation of, Sections 310 to 318,
inclusive, of the Trust Indenture Act of 1939, such imposed duties or incorporated provision shall
control.



     Section 13.09. Table of Contents, Headings, etc. The table of contents and the titles and
headings of the articles and sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way modify or restrict any
of the terms or provisions hereof.



     Section 13.10. Execution in Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument. The exchange of copies of this Indenture and of signature pages
by facsimile or PDF transmission shall constitute effective execution and delivery of this
Indenture as to the parties hereto and may be used in lieu of the original Indenture for all
purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be
their original signatures for all purposes.



     Section 13.11. Separability; Benefits. In case any one or more of the provisions contained
in this Indenture or in the Securities shall for any reason be held to be invalid, illegal or
unenforceable, in any respect, then, to the extent permitted by law, such invalidity, illegality or
unenforceability of the remaining provisions shall not in any way be affected or impaired thereby.



     Section 13.12. Force Majeure. In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices



58









 




in the banking industry to resume performance as soon as practicable under the circumstances.




     Section 13.13. U.S.A. Patriot Act. The parties hereto acknowledge that in accordance with
Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to
help fight the funding of terrorism and money laundering, is required to obtain, verify, and record
information that identifies each person or legal entity that establishes a relationship or opens an
account with the Trustee. The parties to this Indenture agree that they will provide the Trustee
with such information as it may request in order for the Trustee to satisfy the requirements of the
U.S.A. Patriot Act.



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



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     IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as
of June 10, 2010.



	 	 	 	 	 
	 	MAXIM INTEGRATED PRODUCTS, INC.

 	 
	 	By 	 /s/ Bruce Kiddoo	 
	 	 	Name: 	 Bruce Kiddoo	 
	 	 	Title: 	 Senior Vice President and Chief
Financial Officer	 
	 



	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL 

ASSOCIATION, AS TRUSTEE

 	 
	 	By  	/s/ Lynn M. Steiner	 
	 	 	Name:  	Lynn M. Steiner 	 
	 	 	Title:  	Vice President 	 
	 




[Signature Page to Base Indenture]