exv4w1



 







Exhibit 4.1




DEAN FOODS COMPANY,

Issuer,




THE GUARANTORS LISTED ON SCHEDULE I HERETO,

Guarantors




and




THE BANK OF NEW YORK TRUST COMPANY, N.A.,

Trustee




 






INDENTURE




 






Dated as of May 15, 2006




Senior Debt Securities





 









 








Dean Foods Company

Reconciliation and tie between Trust Indenture Act of 1939

and Indenture dated as of May 15, 2006




	 	 	 	 	 
	Trust Indenture Act Section	 	Indenture Section
	 
	§310
	 	(a)(1)	 	7.10
	 
	 	(a)(2)	 	7.10
	 
	 	(a)(3)	 	Not applicable
	 
	 	(a)(4)	 	Not applicable
	 
	 	(a)(5)	 	7.10
	 
	 	(b)	 	7.03, 7.08, 7.10
	§311
	 	(a)	 	7.03
	§312
	 	(a)	 	3.04
	 
	 	(b)	 	14.02
	 
	 	(c)	 	14.02
	§313
	 	(a)(1)-(5) & (7)-(8)	 	7.06
	 
	 	(a)(6)	 	Not applicable
	 
	 	(b)(1)	 	Not applicable
	 
	 	(b)(2)	 	7.07
	 
	 	(c)	 	7.06
	 
	 	(d)	 	7.06
	§314
	 	(a)(1)-(3)	 	7.06
	 
	 	(a)(4)	 	4.05
	 
	 	(b)	 	Not applicable
	 
	 	(c)(1)	 	14.03
	 
	 	(c)(2)	 	14.03
	 
	 	(c)(3)	 	Not applicable
	 
	 	(d)	 	Not applicable
	 
	 	(e)	 	14.04
	§315
	 	(a)	 	7.01
	 
	 	(b)	 	7.05
	 
	 	(c)	 	7.02
	 
	 	(d)	 	7.02
	 
	 	(e)	 	6.12
	§316
	 	(a)(1)	 	6.04, 6.05
	 
	 	(b)	 	6.08
	 
	 	(c)	 	9.03
	§317
	 	(a)(1)	 	6.09
	 
	 	(a)(2)	 	6.10
	 
	 	(b)	 	3.05
	§318
	 	(a)	 	14.01





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





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE ONE

	DEFINITIONS AND INCORPORATION BY REFERENCE

	 
	 	 	 	 
	SECTION 1.01. Definitions
	 	 	1	 
	SECTION 1.02. Incorporation by Reference of Trust Indenture Act

	 	 	6	 
	SECTION 1.03. Rules of Construction

	 	 	7	 
	 
	 	 	 	 
	
ARTICLE TWO
	SECURITY FORMS

	 
	 	 	 	 
	SECTION 2.01. Forms Generally

	 	 	7	 
	SECTION 2.02. Book-Entry Provisions for Global Securities
	 	 	8	 
	SECTION 2.03. Restrictive Legends

	 	 	9	 
	 
	 	 	 	 
	
ARTICLE THREE
	THE SECURITIES

	 
	 	 	 	 
	SECTION 3.01. Amount Unlimited; Issuable in Series

	 	 	9	 
	SECTION 3.02. Denominations

	 	 	11	 
	SECTION 3.03. Execution, Authentication, Dating and Delivery

	 	 	11	 
	SECTION 3.04. Registrar and Paying Agent

	 	 	12	 
	SECTION 3.05. Paying Agent to Hold Money in Trust

	 	 	13	 
	SECTION 3.06. Transfer and Exchange

	 	 	13	 
	SECTION 3.07. Replacement Securities

	 	 	14	 
	SECTION 3.08. Outstanding Securities

	 	 	14	 
	SECTION 3.09. Temporary Securities

	 	 	15	 
	SECTION 3.10. Cancellation

	 	 	15	 
	SECTION 3.11. Computation of Interest

	 	 	15	 
	SECTION 3.12. CUSIP Numbers

	 	 	15	 
	SECTION 3.13. Securities in a Foreign Currency

	 	 	15	 
	 
	 	 	 	 
	
ARTICLE FOUR
	COVENANTS

	 
	 	 	 	 
	SECTION 4.01. Payment of Securities

	 	 	16	 
	SECTION 4.02. Maintenance of Office or Agency

	 	 	16	 
	SECTION 4.03. Limitation Upon Liens

	 	 	17	 
	SECTION 4.04. Limitation on Sale and Leaseback Transactions

	 	 	19	 
	SECTION 4.05. Compliance Certificates

	 	 	19	 
	SECTION 4.06. Waiver of Certain Covenants

	 	 	20	 






2









 






	 	 	 	 	 
	 	 	Page
	
ARTICLE FIVE
	SUCCESSOR CORPORATION

	 
	 	 	 	 
	SECTION 5.01. When Company May Merge, Etc.

	 	 	20	 
	SECTION 5.02. Successor Substituted

	 	 	20	 
	 
	 	 	 	 
	
ARTICLE SIX
	DEFAULT AND REMEDIES

	 
	 	 	 	 
	SECTION 6.01. Events of Default

	 	 	21	 
	SECTION 6.02. Acceleration

	 	 	22	 
	SECTION 6.03. Other Remedies

	 	 	23	 
	SECTION 6.04. Waiver of Past Defaults

	 	 	23	 
	SECTION 6.05. Control by Majority

	 	 	23	 
	SECTION 6.06. Payment of Securities on Default

	 	 	24	 
	SECTION 6.07. Limitation on Suits

	 	 	24	 
	SECTION 6.08. Rights of Holders to Receive Payment

	 	 	25	 
	SECTION 6.09. Collection Suit by Trustee

	 	 	25	 
	SECTION 6.10. Trustee May File Proofs of Claim

	 	 	25	 
	SECTION 6.11. Priorities

	 	 	25	 
	SECTION 6.12. Undertaking for Costs

	 	 	26	 
	SECTION 6.13. Restoration of Rights and Remedies

	 	 	26	 
	SECTION 6.14. Rights and Remedies Cumulative

	 	 	26	 
	SECTION 6.15. Delay or Omission Not Waiver

	 	 	26	 
	 
	 	 	 	 
	
ARTICLE SEVEN
	TRUSTEE

	 
	 	 	 	 
	SECTION 7.01. General

	 	 	27	 
	SECTION 7.02. Certain Rights of Trustee

	 	 	27	 
	SECTION 7.03. Individual Rights of Trustee

	 	 	28	 
	SECTION 7.04. Trustee’s Disclaimer

	 	 	29	 
	SECTION 7.05. Notice of Default

	 	 	29	 
	SECTION 7.06. Reports by the Company to the Trustee

	 	 	29	 
	SECTION 7.07. Reports by Trustee to Holders

	 	 	29	 
	SECTION 7.08. Compensation and Indemnity

	 	 	29	 
	SECTION 7.09. Replacement of Trustee

	 	 	30	 
	SECTION 7.10. Successor Trustee by Merger, Etc.

	 	 	31	 
	SECTION 7.11. Eligibility

	 	 	31	 
	SECTION 7.12. Money Held in Trust

	 	 	32	 
	 
	 	 	 	 
	
ARTICLE EIGHT
	SATISFACTION AND DISCHARGE OF INDENTURE

	 
	 	 	 	 
	SECTION 8.01. Satisfaction and Discharge of Securities of Any Series; Discharge of Indenture

	 	 	32	 
	SECTION 8.02. Legal Defeasance

	 	 	33	 






3









 






	 	 	 	 	 
	 	 	Page
	SECTION 8.03. Defeasance of Certain Obligations

	 	 	34	 
	SECTION 8.04. Application of Trust Money

	 	 	35	 
	SECTION 8.05. Repayment to Company

	 	 	35	 
	SECTION 8.06. Reinstatement

	 	 	36	 
	 
	 	 	 	 
	
ARTICLE NINE
	AMENDMENTS, SUPPLEMENTS AND WAIVERS

	 
	 	 	 	 
	SECTION 9.01. Without Consent of Holders

	 	 	36	 
	SECTION 9.02. With Consent of Holders

	 	 	37	 
	SECTION 9.03. Action by Holders; Record Dates

	 	 	38	 
	SECTION 9.04. Revocation and Effect of Consent

	 	 	39	 
	SECTION 9.05. Notation on or Exchange of Securities

	 	 	39	 
	SECTION 9.06. Trustee to Sign Amendments, Etc.

	 	 	39	 
	SECTION 9.07. Effect of Supplemental Indenture

	 	 	39	 
	 
	 	 	 	 
	
ARTICLE TEN
	MEETINGS OF HOLDERS

	 
	 	 	 	 
	SECTION 10.01. Purposes of Meetings

	 	 	40	 
	SECTION 10.02. Call of Meetings by Trustee

	 	 	40	 
	SECTION 10.03. Call of Meetings by Company or Holders

	 	 	40	 
	SECTION 10.04. Qualification for Voting

	 	 	41	 
	SECTION 10.05. Regulations

	 	 	41	 
	SECTION 10.06. Voting

	 	 	41	 
	 
	 	 	 	 
	
ARTICLE ELEVEN
	REDEMPTION OF SECURITIES

	 
	 	 	 	 
	SECTION 11.01. Applicability of Article

	 	 	42	 
	SECTION 11.02. Election to Redeem; Notice to Trustee

	 	 	42	 
	SECTION 11.03. Selection by Trustee of Securities to be Redeemed

	 	 	42	 
	SECTION 11.04. Notice of Redemption

	 	 	42	 
	SECTION 11.05. Deposit of Redemption Price

	 	 	43	 
	SECTION 11.06. Securities Payable on Redemption Date

	 	 	43	 
	SECTION 11.07. Securities Redeemed in Part

	 	 	44	 
	 
	 	 	 	 
	
ARTICLE TWELVE
	SINKING FUND

	 
	 	 	 	 
	SECTION 12.01. Applicability of Article

	 	 	44	 
	SECTION 12.02. Satisfaction of Sinking Fund Payments With Securities

	 	 	44	 
	SECTION 12.03. Redemption of Securities for Sinking Fund

	 	 	44	 






4









 






	 	 	 	 	 
	 	 	Page
	
ARTICLE THIRTEEN
	SUBSIDIARY GUARANTEES

	 
	 	 	 	 
	SECTION 13.01. Guarantee

	 	 	45	 
	SECTION 13.02. Limitation on Guarantor Liability

	 	 	46	 
	SECTION 13.03. Execution and Delivery of Subsidiary Guarantee

	 	 	46	 
	SECTION 13.04. Guarantors May Consolidate, etc. on Certain Terms

	 	 	47	 
	SECTION 13.05. Release

	 	 	47	 
	 
	 	 	 	 
	
ARTICLE FOURTEEN
	MISCELLANEOUS

	 
	 	 	 	 
	SECTION 14.01. Trust Indenture Act of 1939

	 	 	48	 
	SECTION 14.02. Notices

	 	 	48	 
	SECTION 14.03. Certificate and Opinion as to Conditions Precedent

	 	 	49	 
	SECTION 14.04. Statements Required in Certificate or Opinion

	 	 	49	 
	SECTION 14.05. Rules by Trustee, Paying Agent or Registrar

	 	 	49	 
	SECTION 14.06. Payment Date Other Than a Business Day

	 	 	50	 
	SECTION 14.07. Governing Law

	 	 	50	 
	SECTION 14.08. No Adverse Interpretation of Other Agreements

	 	 	50	 
	SECTION 14.09. No Recourse Against Others

	 	 	50	 
	SECTION 14.10. Successors

	 	 	50	 
	SECTION 14.11. Duplicate Originals

	 	 	50	 
	SECTION 14.12. Separability

	 	 	50	 
	SECTION 14.13. Table of Contents, Headings, Etc.

	 	 	50	 
	SECTION 14.14. Counterparts

	 	 	51	 
	SECTION 14.15. Force Majeure

	 	 	51	 
	 
	 	 	 	 
	EXHIBIT A Form of Security

	 	 	A-1	 
	EXHIBIT B Form of Notation of Subsidiary Guarantee

	 	 	B-1	 
	SCHEDULE I SCHEDULE OF GUARANTORS

	 	 	B-2	 






5









 





     INDENTURE, dated as of May 15, 2006, between DEAN FOODS COMPANY, a Delaware corporation (the
“Company”), the GUARANTORS listed on Schedule I hereto, as amended from time to time, and
THE BANK OF NEW YORK TRUST COMPANY, N.A., a national banking association, as trustee (the
“Trustee”).



RECITALS




     The Company is authorized to borrow money for its corporate purposes and to issue debentures,
notes or other evidences of indebtedness therefore; and for its corporate purposes, the Company has
determined to make and issue its debentures, notes or other evidences of indebtedness to be issued
in one or more series (the “Securities”), as herein provided, up to such principal amount
or amounts as may from time to time be authorized by or pursuant to the authority granted in one or
more resolutions of the Board of Directors. All things necessary to make this Indenture a valid
and legally binding agreement of the Company, in accordance with its terms, have been done.



     This Indenture is subject to, and shall be governed by, the provisions of the Trust Indenture
Act of 1939, as amended, that are required to be a part of and to govern indentures qualified under
the Trust Indenture Act of 1939, as amended.



AND THIS INDENTURE FURTHER WITNESSETH




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



ARTICLE ONE




DEFINITIONS AND INCORPORATION BY REFERENCE




     SECTION 1.01. Definitions.



     “Affiliate” has the meaning specified in Rule 405 of the Securities Act.



     “Agent” means any Registrar, co-Registrar, Paying Agent or authenticating agent.



     “Agent Members” has the meaning specified in Section 2.02(a).



     “Attributable Debt” means, as of any date upon which a determination of the amount
thereof shall be computed, as of any particular time, the present value, calculated using a rate of
interest implicit in such transaction determined in accordance with GAAP, of the obligation of a
lessee for rental payments during the remaining term of any lease (including any period for which
such lease has been extended or may, at the option of the lessor, be extended).



     “Authorized Newspaper” means a newspaper published in an official language of the
country of publication of general circulation in the place in connection with which the term is
used. If it shall be impractical in the opinion of the Trustee to make any publication of any
notice required hereby in an Authorized Newspaper, any publication or other notice in lieu



1









 







thereof which is made or given with the approval of the Trustee shall constitute a sufficient
publication of such notice.



     “Board of Directors” means the Board of Directors of the Company or any of the
Guarantors, as the case may be, or any duly authorized committee of such Board of Directors.



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



     “Business Day” means, except as may otherwise be provided with respect to the
Securities of any series, any day except a Saturday, Sunday or legal holiday on which banking
institutions in The City of New York are authorized or required by law, regulation or executive
order to close.



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



     “Company” means the party named as such in the first paragraph of this Indenture until
a successor replaces it pursuant to Article Five and thereafter means such successor.



     “Company Order” means a written request or order signed in the name of the Company (i)
by its Chairman, a Vice Chairman, its Chief Executive Officer, its President, a Vice President or
its Chief Financial Officer and (ii) by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary and delivered to the Trustee; provided, however, that such written request or
order may be signed by any two of the officers or directors listed in clause (i) above in lieu of
being signed by one of such officers or directors listed in such clause (i) and one of the officers
listed in clause (ii) above.



     “Consolidated Net Tangible Assets” means the aggregate amount of assets (less
applicable reserves and other properly deductible items) after deducting therefrom (i) all current
liabilities (excluding the current portion of any Funded Debt and any other current liabilities
constituting Funded Debt by reason of being extendable or renewable) and (ii) all goodwill, trade
names, trademarks, patents, unamortized debt discount and expense and other like intangibles, all
as set forth on the books and records of the Company and its Consolidated Subsidiaries and computed
in accordance with generally accepted accounting principles in the United States.



     “Consolidated Subsidiary” means a Subsidiary of the Company the accounts of which are
consolidated with those of the Company in accordance with generally accepted accounting principles
in the United States.



     “Corporate Trust Office” means the office of the Trustee at which the corporate trust
business of the Trustee shall, at any particular time, be principally administered, which office
is, at the date of this Indenture, located at 600 North Pearl Street, Suite 420, Dallas, Texas
75201, Attention: Corporate Trust Administration.



2









 





     “Default” means an event or condition the occurrence of which is, or with the lapse of
time or giving of notice or both would be, an Event of Default.



     “Depositary” means, except as may otherwise be provided with respect to the Securities
of any series, The Depository Trust Company, its nominees, and their respective successors.



     “Event of Default” has the meaning specified in Section 6.01.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Funded Debt” means all indebtedness for the repayment of money borrowed, whether or
not evidenced by a bond, debenture, note or similar instrument or agreement, having a final
maturity of more than 12 months after the date of its creation or having a final maturity of less
than 12 months after the date of its creation but by its terms being renewable or extendable beyond
12 months after such date at the option of the borrower. For the purpose of determining “Funded
Debt” of any Person, there shall be excluded any particular indebtedness if, on or prior to the
final maturity thereof, there shall have been deposited with the proper depositary in trust the
necessary funds for the payment, redemption or satisfaction of such indebtedness.



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



     “Global Securities” means one or more global securities in registered form,
substantially in the form set forth in Exhibit A.



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



     “Guarantors” means, subject to Section 13.05, the parties listed on Schedule I
hereto.



     “Holder” or “Securityholder” means the registered holder of any Security.



3









 





     “Indebtedness” has the meaning specified in Section 4.03.



     “Indenture” means this Indenture as originally executed or as it may be amended or
supplemented from time to time by one or more indentures supplemental to this Indenture entered
into pursuant to the applicable provisions of this Indenture, and shall include the forms and terms
of the Securities of each series as contemplated by Section 3.01.



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



     “Lien” has the meaning specified in Section 4.03.



     “Market Exchange Rate” has the meaning specified in Section 3.13.



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



     “Officer” means, with respect to the Company or any of the Guarantors, as the case may
be, (i) the Chairman of the Board of Directors, a Vice Chairman, the Chief Executive Officer, the
President, any Vice President or the Chief Financial Officer, and (ii) the Treasurer or any
Assistant Treasurer, or the Secretary or any Assistant Secretary.



     “Officers’ Certificate” means a certificate signed on behalf of the Company or any of
the Guarantors, as the case may be, by one Officer listed in clause (i) of the definition thereof
and one Officer listed in clause (ii) of the definition thereof or two officers listed in clause
(i) of the definition thereof. Each Officers’ Certificate (other than certificates provided
pursuant to TIA Section 314(a)(4)) shall include the statements provided for in TIA Section 314(e).



     “Opinion of Counsel” means a written opinion signed by legal counsel, who may be an
employee of or counsel to the Company, that meets the requirements of Section 14.04. Each
such Opinion of Counsel shall include the statements provided for in TIA Section 314(e).



     “Original Issue Date,” when used with respect to any Security (or portion thereof),
means the earlier of (i) the date of such Security or (ii) the date of any Security (or portion
thereof) for which such Security was issued (directly or indirectly) on registration of transfer,
exchange or substitution.



     “Original Issue Discount Security” means any Security that 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 6.02.



     “Paying Agent” has the meaning specified in Section 3.04, except that, for the
purposes of Article Eight, the Paying Agent shall not be the Company or a Subsidiary of the
Company or an Affiliate of any of them. The term “Paying Agent” includes any additional Paying
Agent.



4









 





     “Person” means an individual, corporation, partnership, limited liability company,
association, trust or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.



     “principal,” whenever used with reference to any Security or any portion thereof,
shall be deemed to include “and premium, if any.”



     “Principal Property” means, as of any date, any building or structure or other
facility, together with the land upon which it is erected and fixtures comprising a part thereof,
used primarily for manufacturing, processing or production (other than any pollution control
facility), in each case located in the United States and owned or leased or to be owned or leased
by the Company or any Consolidated Subsidiary, and in each case the net book value of which as of
such date exceeds 2% of the Consolidated Net Tangible Assets of the Company as shown on the
consolidated balance sheet contained in the latest filing of the Company with the Commission, other
than any such land, building, structure or other facility or portion thereof which, in the opinion
of the Board of Directors of the Company, is not of material importance to the total business
conducted by the Company and its Consolidated Subsidiaries, considered as one enterprise.



     “Record Date” for the interest payable on any Interest Payment Date on the Securities
of any series means the date specified as such in the terms of the Securities of such series, or,
if no such date is so specified, the close of business on the fifteenth calendar day (whether or
not a Business Day) immediately preceding such Interest Payment Date.



     “Registrar” has the meaning specified in Section 3.04.



     “Responsible Officer,” when used with respect to the Trustee, means any officer within
the corporate trust department of the Trustee, including any vice president, any assistant vice
president, any assistant treasurer, any trust officer or assistant trust officer or any other
officer or assistant officer, customarily performing functions similar to those performed by any of
the above-designated officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject and who shall have direct responsibility for the
administration of this Indenture.



     “sale and leaseback transaction” has the meaning specified in Section 4.04.



     “Securities” means any of the Securities, as defined in the first paragraph of the
recitals hereof, that are authenticated and delivered under this Indenture.



     “Securities Act” means the Securities Act of 1933, as amended.



     “Security Register” has the meaning specified in Section 3.04.



     “Senior Credit Agreement” means the Amended and Restated Credit Agreement, dated as of
August 13, 2004, among the Company, the Guarantors, Wachovia Bank, National Association, JPMorgan
Chase Bank, N.A., Harris Trust and Savings Bank, SunTrust Bank and the lenders party to the Credit
Agreement, including any notes, guarantees, collateral and



5









 







security documents (including mortgages, pledge agreements and other security arrangements),
instruments and agreements executed in connection therewith, and in each case as amended, restated,
modified, supplemented or refinanced from time to time, including any agreement or agreements
extending the maturity of, refinancing or otherwise restructuring (including increasing the amount
of borrowings or other Indebtedness outstanding or available to be borrowed thereunder) all or any
portion of the Indebtedness under such agreement, and any successor or replacement agreement or
agreements with the same or any other borrowers, agents, creditors, lenders or group of creditors
or lenders.



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



     “Subsidiary” means, with respect to any Person, (i) any corporation of which at least
a majority in interest of the outstanding capital stock having by the terms thereof voting power
under ordinary circumstances to elect directors of such corporation, irrespective of whether or not
at the time stock of any other class or classes of such corporation shall have or might have voting
power by reason of the happening of any contingency, is at the time, directly or indirectly, owned
or controlled by such Person, or by one or more other corporations a majority in interest of such
stock of which is similarly owned or controlled by such Person or one or more other corporations a
majority in interest of such stock of which is similarly owned or controlled, or (ii) any other
Person (other than a corporation) in which such Person, directly or indirectly, at the date of
determination thereof, has at least a majority equity ownership interest.



     “Subsidiary Guarantee” means a guarantee by each Guarantor of the Company’s
obligations under this Indenture and pursuant to the Securities, which guarantee is set forth in
Section 13.01.



     “TIA” or “Trust Indenture Act” means the Trust Indenture Act of 1939 (15 U.S.
Code §§ 77aaa-77bbbb), as in effect on the date this Indenture was executed, except as provided in
Section 9.07.



     “Trustee” means the party named as such in the first paragraph of this Indenture until
a successor replaces it in accordance with the provisions of Article Seven and thereafter
means such successor. If there shall be more than one Trustee at any one time, “Trustee” shall
mean or include each Person who is then a Trustee hereunder and, as used with respect to the
Securities of any series, shall mean only the Trustee with respect to the Securities of that
series.



     “United States Bankruptcy Code” means the Bankruptcy Reform Act of 1978, as amended
and as codified in Title 11 of the United States Code, as amended from time to time hereafter, or
any successor federal bankruptcy law.



     SECTION 1.02. Incorporation by Reference of Trust Indenture Act. Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made
a part of this Indenture. The following TIA terms used in this Indenture have the following
meanings:



6









 





“indenture securities” means the Securities;




“indenture security holder” means a Holder or a Securityholder;




“indenture to be qualified” means this Indenture;




“indenture trustee” or “institutional trustee” means the Trustee; and




“obligor” on the indenture securities means the Company or any other obligor on the
Securities.



     All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by a rule of the Commission and not otherwise defined
herein have the meanings assigned to them therein.



     SECTION 1.03. Rules of Construction. Unless the context otherwise requires:




     (i) a term has the meaning assigned to it;




     (ii) an accounting term not otherwise defined has the meaning assigned to it in
accordance with generally accepted accounting principles in the United States in effect at
the time of any computation;




     (iii) “or” is not exclusive;




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




     (v) provisions apply to successive events and transactions;




     (vi) “herein,” “hereof” and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision; and




     (vii) all references to Sections or Articles refer to Sections or Articles of this
Indenture unless otherwise indicated.



ARTICLE TWO




SECURITY FORMS




     SECTION 2.01. Forms Generally. The Securities of each series and the Trustee’s
certificate of authentication shall be substantially in the form annexed hereto as Exhibit
A, or in such other form as shall be established by or pursuant to a Board Resolution or in one
or more indentures supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this Indenture. The Securities
of each series may have notations, legends or endorsements required by law, stock exchange
agreements to which the Company is subject or usage. The Company shall approve the form of the
Securities and any notation, legend or endorsement on the Securities.



7









 





     The definitive Securities of each series shall be typed, printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other manner, including any
manner permitted by the rules of any securities exchange on which the Securities of such series may
be listed, all as determined by the Officers executing such Securities, as evidenced by their
execution of such Securities.



     SECTION 2.02. Book-Entry Provisions for Global Securities.



     (a) If the Company shall establish pursuant to Section 3.01 that the Securities of a
series are to be issued in whole or in part in one or more Global Securities, then the Company
shall execute and the Trustee shall, in accordance with Section 3.03, authenticate and
deliver a Global Security or Securities which initially shall (i) be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such Depositary, (ii) be
delivered to the Trustee as custodian for such Depositary and (iii) bear legends as set forth in
Section 2.03.



     Members of, or participants in, the Depositary (“Agent Members”) shall have no rights
under this Indenture with respect to any Global Security held on their behalf by the Depositary, or
the Trustee as its custodian, or under such Global Security, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, 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 impair, as
between the Depositary and its Agent Members, the operation of customary practices governing the
exercise of the rights of a holder of any Security.



     (b) Transfers of a Global Security shall be limited to transfers of such Global Security in
whole, but not in part, to the Depositary, its successors or their respective nominees.



     (c) If at any time the Depositary for a series of the Securities notifies the Company that it
is unwilling or unable to continue as Depositary for such series or if at any time the Depositary
for such series shall no longer be registered or in good standing under the Exchange Act, or other
applicable statute or regulation, and a successor Depositary for such series is not appointed by
the Company within 90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, this Section 2.02 shall no longer be applicable to the Securities of
such series and the Company will execute and, subject to Section 3.06, the Trustee will
authenticate and deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global Security. In addition,
the Company may at any time determine that the Securities of any series shall no longer be
represented by a Global Security and that the provisions of this Section 2.02 shall no longer apply
to the Securities of such series. In such event the Company will execute and, subject to Section
3.06, the Trustee, upon receipt of an Officers’ Certificate evidencing such determination by the
Company, will authenticate and deliver the Securities of such series in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such Global Security. Upon
the exchange of the Global Security for such Securities in definitive registered form without
coupons, in authorized denominations, the Global Security shall be



8









 







canceled by the Trustee. Such Securities in definitive registered form issued in exchange for
the Global Security pursuant to this Section 2.02(c) shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities
to the Depositary for delivery to the Persons in whose names such Securities are so registered.



     SECTION 2.03. Restrictive Legends. Each Global Security shall bear the following
legend on the face thereof:




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




THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE AND IS REGISTERED IN
THE NAME OF CEDE & CO. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFERS OF THIS GLOBAL SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN NOMINEES OF CEDE & CO. OR A SUCCESSOR
THEREOF OR SUCH SUCCESSOR’S NOMINEE.



ARTICLE THREE




THE SECURITIES




     SECTION 3.01. 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 from time to time in one or more series. Prior to the issuance
of Securities of any series, there shall be established in or pursuant to (a) one or more Board
Resolutions and set forth in an Officers’ Certificate or (b) one or more indentures supplemental
hereto:




     (i) the title of the Securities of the series, including Cusip numbers (which shall
distinguish the Securities of the series from all other Securities);




     (ii) any limit upon the aggregate principal amount of the Securities of the series that
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



9









 







of, other Securities of the series pursuant to Sections 2.02, 3.06,
3.07, 3.09, 9.05 or 11.07);




     (iii) the date or dates on which the Securities of the series may be issued;




     (iv) the date or dates on which the principal of the Securities of the series shall be
payable, or the method of determination thereof;




     (v) the rate or rates (which may be fixed or variable), or the method or methods 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
any such interest shall be payable and the Record Dates for the determination of Holders to
whom interest is payable;




     (vi) the place or places where the principal of, and interest, if any, on, the
Securities of the series shall be payable (if other than as provided in Section
4.02);




     (vii) the period or periods within which, the price or prices at 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;




     (viii) if other than the principal amount thereof, the portion of the principal amount
of the Securities of the series which shall be payable upon declaration of acceleration of
the maturity thereof pursuant to Section 6.02;




     (ix) 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 other provisions set
forth therein or at the option of a Holder thereof and the period or periods within which,
the price or prices at 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;




     (x) if other than denominations of $1,000 and any integral multiple thereof, the
denominations in which Securities of the series shall be issuable;




     (xi) the form of the Securities of the series, including any legends (if other than as
provided in Section 2.03);




     (xii) if other than U.S. dollars, the currency or currencies or units based on or
related to currencies in which Securities of the series shall be denominated and in which
payments of principal of, and any interest on, Securities of the series, or any other
amounts payable with respect thereto, shall or may be payable;




     (xiii) whether any special terms and conditions relating to the payment of additional
amounts in respect of payments on the Securities of the series shall, in the event of
certain changes in the United States federal income tax laws, apply to such Securities;



10









 






     (xiv) whether the Securities of the series are to be issuable in whole or in part in
the form of one or more Global Securities and, in such case, if other than The Depository
Trust Company, the Depositary for such Securities;




     (xv) additional Events of Default with respect to the Securities of the series, if any,
other than those set forth herein;




     (xvi) if either or both of Section 8.02 and Section 8.03 shall be
inapplicable to the Securities of the series (provided, that if no such inapplicability
shall be specified, then both Section 8.02 and Section 8.03 shall be
applicable to such Securities);




     (xvii) additional covenants with respect to Securities of the series, if any, other
than those set forth herein;




     (xviii) if other than the Trustee, the identity of the Registrar and any Paying Agent
for the Securities of the series; and




     (xix) any other terms of the Securities of the series and any other deletions from,
modifications of, or additions to this Indenture in respect of such Securities.



     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 Board Resolution and set forth in
such Officers’ Certificate or in any such indenture supplemental hereto. Unless otherwise
provided, a series may be reopened for issuances of additional Securities of such series.



     SECTION 3.02. Denominations. In the absence of any specification pursuant to
Section 3.01 with respect to the Securities of any series, the Securities of each series
shall be issuable only in registered form without coupons and only in denominations of $1,000 in
principal amount and any integral multiple thereof, and shall be payable in U.S. dollars.



     SECTION 3.03. Execution, Authentication, Dating and Delivery. The Securities shall be
executed by two Officers of the Company. The signature of these Officers on the Securities may be
by facsimile or manual signature in the name and on behalf of the Company.



     If an Officer whose signature is on a Security no longer holds that office at the time the
Trustee or authenticating agent authenticates the Security, the Security shall be valid
nevertheless.



     A Security shall not be valid until the Trustee or authenticating agent manually signs the
certificate of authentication on the Security. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.



     At any time and from time to time after the execution of this Indenture, the Company may
deliver Securities of any series executed by the Company to the Trustee for authentication,
together with a Company Order, and the Trustee or an authenticating agent shall authenticate for
original issue Securities in the aggregate principal amount specified in such Company Order;
provided, that the Trustee shall be entitled to receive the Board Resolution establishing the form
and terms of the Securities of the series pursuant to Section 3.01, if applicable, an
Officers’



11









 







Certificate of the Company and an Opinion of Counsel in connection with such authentication of
Securities. Such Company Order shall specify the amount of Securities to be authenticated and the
date on which the original issue of Securities is to be authenticated.



     Notwithstanding the provisions of this Section 3.03, if all Securities of a series are
not to be originally issued at one time, it shall not be necessary to deliver the Board Resolution,
Officers’ Certificate and Opinion of Counsel otherwise required pursuant to the immediately
preceding paragraph at or prior to the time of authentication of each Security of such series if
such documents are delivered at or prior to the time of authentication upon original issuance of
the first Security of such series to be issued.



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



     Each Security shall be dated the date of its authentication.



     SECTION 3.04. Registrar and Paying Agent. The Company shall maintain an office or
agency where Securities may be presented for registration of transfer or for exchange (the
“Registrar”), an office or agency where Securities may be presented for payment (the
“Paying Agent”) and an office or agency where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served, which shall be in the Borough of
Manhattan, The City of New York. The Company shall cause the Registrar to keep a register of the
Securities of each series and of their transfer and exchange (the “Security Register”).
The Security Register shall be in written form or any other form capable of being converted into
written form within a reasonable time. The Company may have one or more co-Registrars and one or
more additional Paying Agents.



     The Company shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture. The agreement shall implement the provisions of this Indenture that relate to such
Agent. The Company shall give prompt written notice to the Trustee of the name and address of any
such Agent and any change in the address of such Agent. If the Company fails to maintain a
Registrar, Paying Agent and/or agent for service of notices and demands, the Trustee shall act as
such Registrar, Paying Agent and/or agent for service of notices and demands. The Company may
remove any Agent upon written notice to such Agent and the Trustee; provided, that no such removal
shall become effective until (i) the acceptance of an appointment by a successor Agent to such
Agent as evidenced by an appropriate agency agreement entered into by the Company and such
successor Agent and delivered to the Trustee or (ii) notification to the Trustee that the Trustee
shall serve as such Agent until the appointment of a successor Agent in accordance with clause (i)
of this proviso. The Company, any Subsidiary of the Company or any Affiliate of any of them may
act as Paying Agent, Registrar or co-Registrar, and/or agent for service of notice and demands.



     The Company initially appoints the Trustee as Registrar, Paying Agent, authenticating agent
and agent for service of notice and demands. The Trustee shall preserve in as current a



12









 







form as is reasonably practicable the most recent list available to it of the names and
addresses of Holders and shall otherwise comply with TIA Section 312(a). If the Trustee is not the
Registrar, the Company shall furnish to the Trustee as of each Record Date and at such other times
as the Trustee may reasonably request the names and addresses of Holders as they appear in the
Security Register, including the aggregate principal amount of Securities of each series held by
each Holder.



     SECTION 3.05. Paying Agent to Hold Money in Trust. Not later than 10:00 a.m. (New
York City time) on each due date of any principal of or interest on the Securities of any series,
the Company shall deposit with the Paying Agent money in immediately available funds sufficient to
pay such principal and interest so becoming due. The Company shall require each Paying Agent other
than the Trustee to agree in writing that such Paying Agent shall hold in trust for the benefit of
the Holders or the Trustee all money held by the Paying Agent for the payment of principal of and
interest on the Securities of such series (whether such money has been paid to it by the Company or
any other obligor on the Securities of such series), and such Paying Agent shall promptly notify
the Trustee of any default by the Company (or any other obligor on the Securities of such series)
in making any such payment. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee and account for any funds disbursed, and the Trustee may at any time
during the continuance of any payment default, upon written request to a Paying Agent, require such
Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed.
Upon doing so, the Paying Agent shall have no further liability for the money so paid over to the
Trustee. If the Company or any Subsidiary of the Company or any Affiliate of any of them acts as
Paying Agent, it will, on or before each due date of any principal of or interest on the Securities
of any series, segregate and hold in a separate trust fund for the benefit of the Holders a sum of
money sufficient to pay such principal or interest so becoming due until such sum of money shall be
paid to such Holders or otherwise disposed of as provided in this Indenture, and will promptly
notify the Trustee of its action or failure to act.



     SECTION 3.06. Transfer and Exchange. The Securities of each series are issuable only
in registered form. A Holder may transfer a Security only by written application to the Registrar
stating the name of the proposed transferee and otherwise complying with the terms of this
Indenture. No such transfer shall be effected until, and such transferee shall succeed to the
rights of a Holder only upon, final acceptance and registration of the transfer by the Registrar in
the Security Register. Prior to the registration of any transfer by a Holder as provided herein,
the Company, the Trustee and any agent of the Company shall treat the Person in whose name the
Security is registered as the owner thereof for all purposes whether or not the Security shall be
overdue, and none of the Company, the Trustee or any such agent shall be affected by notice to the
contrary. Furthermore, any Holder of a Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interests in such Global Security may be effected only
through a book-entry system maintained by the Holder of such Global Security (or its agent) and
that ownership of a beneficial interest in the Global Security shall be required to be reflected in
a book entry. When Securities of any series are presented to the Registrar or a co-Registrar with
a request to register the transfer or to exchange them for an equal principal amount of Securities
of the same series of other authorized denominations, the Registrar shall register the transfer or
make the exchange as requested if its requirements for such transactions are met (including that
such Securities are duly endorsed or accompanied by a written instrument of transfer in form
satisfactory to the Trustee and Registrar duly executed by the Holder thereof or by an attorney



13









 







who is authorized in writing to act on behalf of the Holder). To permit registrations of
transfers and exchanges, the Company shall execute and the Trustee shall authenticate Securities at
the Registrar’s request. No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith (other than any such
transfer taxes or other similar governmental charge payable upon exchanges pursuant to Section
3.09 or Section 9.05).



     SECTION 3.07. Replacement Securities. If a mutilated Security is surrendered to the
Trustee or if the Holder claims that the Security has been lost, destroyed or wrongfully taken,
then, in the absence of notice to the Company or the Trustee that such Security has been acquired
by a bona fide purchaser, the Company shall issue and the Trustee shall authenticate a replacement
Security of the same series of like tenor and principal amount and bearing a number not
contemporaneously outstanding; provided, that the requirements of this Section 3.07 are
met. If required by the Trustee or the Company, an indemnity bond must be furnished that is
sufficient in the judgment of both the Trustee and the Company to protect the Company, the Trustee
or any Agent from any loss that any of them may suffer if a Security is replaced. The Company may
charge such Holder for its expenses and the expenses of the Trustee in replacing a Security. In
case any such mutilated, lost, destroyed or wrongfully taken Security has become or is about to
become due and payable, the Company in its discretion may pay such Security instead of issuing a
new Security in replacement thereof.



     Every replacement Security is an additional obligation of the Company and shall be entitled to
the benefits of this Indenture.



     SECTION 3.08. Outstanding Securities. Securities outstanding at any time are all
Securities that have been authenticated by the Trustee except for those cancelled by it, those
delivered to it for cancellation, those as to which defeasance has been effected pursuant to
Section 8.02 and those described in this Section 3.08 as not outstanding.



     If a Security is replaced pursuant to Section 3.07, it ceases to be outstanding unless
and until the Trustee and the Company receive proof satisfactory to them that the replaced Security
is held by a bona fide purchaser.



     If the Paying Agent (other than the Company or an Affiliate of the Company) holds on the
Maturity Date money sufficient to pay Securities payable on that date, then on and after that date
such Securities cease to be outstanding and interest on them shall cease to accrue.



     A Security does not cease to be outstanding because the Company or one of its Affiliates holds
such Security, provided, however, that in determining whether the Holders of the requisite
principal amount of the outstanding Securities of a series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or
any other obligor upon the Securities of such series or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee
has actual knowledge to be so owned shall be so disregarded. Securities so owned which have




14









 






been pledged in good faith may be regarded as outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.




     SECTION 3.09. Temporary Securities. Until definitive Securities of any series are
ready for delivery, the Company may prepare and execute and the Trustee shall authenticate
temporary Securities of such series. Temporary Securities shall be substantially in the form of
definitive Securities but may have insertions, substitutions, omissions and other variations
determined to be appropriate by the Officers executing the temporary Securities, as evidenced by
their execution of such temporary Securities. If temporary Securities are issued, the Company will
cause definitive Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for definitive Securities of
the same series upon surrender of the temporary Securities at the office or agency of the Company
designated for such purpose pursuant to Section 4.02, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations. Until so exchanged, the
temporary Securities shall be entitled to the same benefits under this Indenture as definitive
Securities of the same series.



     SECTION 3.10. Cancellation. The Company at any time may deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and may deliver to the Trustee for cancellation any
Securities previously authenticated hereunder which the Company has not issued and sold. The
Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for
transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for transfer,
exchange, payment or cancellation and shall dispose of them in accordance with its normal
procedure.



     SECTION 3.11. Computation of Interest. Except as otherwise specified as contemplated
by Section 3.01 for Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year consisting of twelve 30-day months.



     SECTION 3.12. CUSIP Numbers. The Company in issuing the Securities of any series may
use “CUSIP”, “Common Code” or “ISIN” numbers (if then generally in use), and the Company and the
Trustee shall use CUSIP, “Common Code” or “ISIN” numbers, as the case may be, in notices of
exchange as a convenience to Holders; provided, that any such notice shall state that no
representation is made as to the correctness of such numbers either as printed on the Securities of
such series or as contained in any notice of exchange and that reliance may be placed only on the
other identification numbers printed on the Securities of such series. The Company shall promptly
notify the Trustee of any change in “CUSIP,” “Common Code” or “ISIN” numbers for the Securities of
any series.



     SECTION 3.13. Securities in a Foreign Currency. Unless otherwise specified with
respect to the Securities of a particular series, whenever for purposes of this Indenture any
action may be taken by the Holders of a specified percentage in principal amount of Securities of
any



15









 




series or all series affected by a particular action at the time outstanding and, at such
time, there are outstanding Securities of any series which are denominated in a currency other than
U.S. 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 U.S. dollars that could
be obtained for such amount at the Market Exchange Rate. For purposes of this Section
3.13, “Market Exchange Rate” shall mean the noon U.S. dollar buying rate for that
currency for cable transfers quoted in The City of New York, as certified for customs purposes by
the Federal Reserve Bank of New York. If such Market Exchange Rate is not available for any reason
with respect to such currency, the Trustee shall use, in its sole discretion and without liability
on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available
date or quotations from one or more major banks in The City of New York or in the country of issue
of the currency in question, or such other quotations as the Trustee shall deem appropriate.




ARTICLE FOUR




COVENANTS




     SECTION 4.01. Payment of Securities. The Company shall pay the principal of and
interest on the Securities of each series on the dates and in the manner provided in the Securities
of such series and this Indenture. An installment of principal or interest shall be considered
paid on the date due if the Trustee or Paying Agent (other than the Company, a Subsidiary of the
Company or any Affiliate of any of them) holds on that date money designated for and sufficient to
pay the installment. If the Company or any Subsidiary of the Company or any Affiliate of any of
them acts as Paying Agent, an installment of principal or interest shall be considered paid on the
due date if the entity acting as Paying Agent complies with the last sentence of Section
3.05. Upon any bankruptcy or reorganization procedure relative to the Company, the Trustee
shall serve as the Paying Agent, if any, for the Securities.



     SECTION 4.02. Maintenance of Office or Agency. So long as the Securities of any
series shall have been issued and remain outstanding, the Company will maintain in the Borough of
Manhattan, The City of New York an office or agency where Securities may be surrendered for
registration of transfer or exchange or for presentation for payment and where notices and demands
to or upon the Company in respect of the Securities and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any change in the location, of
such office or agency. If at any time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the Trustee set forth in
Section 14.02.



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



16









 





     The Company hereby initially designates the Corporate Trust Office of the Trustee as such
office of the Company in accordance with Section 3.04.



     SECTION 4.03. Limitation Upon Liens. So long as any Securities of any series shall
have been issued and remain outstanding, unless the terms of any series provide otherwise, the
Company will not itself, and will not permit any Consolidated Subsidiary to, issue, assume or
guarantee any indebtedness for money borrowed which, in accordance with generally accepted
accounting principles in the United States, would be reflected on the balance sheet of the Company
or a Consolidated Subsidiary as a liability on the date as of which Indebtedness is determined
(being hereinafter in this Section 4.03 and Section 4.04 called
“Indebtedness”), secured by a mortgage, pledge, security interest or other lien or
encumbrance (any mortgage, pledge, security interest or other lien or encumbrance being hereinafter
in this Section 4.03 and Section 4.04 called a “Lien”) upon or with respect to any
Principal Property, or on any shares of capital stock of any Consolidated Subsidiary that owns a
Principal Property (unless all obligations and indebtedness thereby secured are held by the Company
or a Consolidated Subsidiary) without effectively providing that the Securities shall be secured by
such Lien equally and ratably with (or prior to) any and all other obligations and indebtedness
thereby secured, unless, after giving effect thereto, the aggregate principal amount of all such
Indebtedness secured by such a Lien of the Company or a Consolidated Subsidiary then outstanding,
plus all outstanding Attributable Debt of the Company and its Consolidated Subsidiaries in respect
of sale and leaseback transactions (as defined in Section 4.04) entered into after the date
of the issuance of the series of Securities as to which such determination is being made (other
than sale and leaseback transactions permitted by Section 4.04) would not exceed an amount
equal to 15% of Consolidated Net Tangible Assets; provided, however, that nothing contained in this
Section 4.03 shall prevent, restrict or apply to, and there shall be excluded in any
computation of secured Indebtedness under this Section 4.03, the following:



     (a) Liens existing as of the date of the issuance of Securities of any series on any property
or assets owned or leased by the Company or any Consolidated Subsidiary;



     (b) Liens on property or assets of, or on any shares of stock or Indebtedness of, any Person
existing at the time such Person becomes a Consolidated Subsidiary and not created in contemplation
of such event;



     (c) Liens (i) on any property or assets or shares of stock existing at the time of acquisition
thereof (including acquisition through merger or consolidation) and not created in contemplation of
such event or to secure the payment of all or any part of the purchase price or construction cost
thereof, or (ii) to secure any Indebtedness incurred prior to, at the time of or within 180 days
after the later of acquisition of such property or assets or shares of stock or Indebtedness or the
completion of any such construction and the commencement of operation of such property, for the
purpose of financing all or any part of the purchase price or construction cost thereof;



     (d) Liens on any property or assets to secure all or any part of the cost of development,
operation, construction, alteration, repair or improvement of all or any part of such property or
assets, or to secure Indebtedness incurred prior to, at the time of or within 180 days



17









 




after the completion of such development, operation, construction, alteration, repair or
improvement, whichever is later, for the purpose of financing all or any part of such cost;




     (e) Liens in favor of, or which secure Indebtedness owing to, the Company or a Consolidated
Subsidiary;



     (f) Liens arising from the assignment of moneys due and to become due under contracts between
the Company or any Consolidated Subsidiary and the United States of America, any State,
Commonwealth, Territory or possession thereof or any agency, department, instrumentality or
political subdivision of any thereof; or Liens in favor of the United States of America, any State,
Commonwealth, Territory or possession thereof or any agency, department, instrumentality or
political subdivision of any thereof, to secure progress, advance or other payments pursuant to any
contract or provision of any statute, or pursuant to the provisions of any contract not directly or
indirectly in connection with securing Indebtedness;



     (g) any deposit or pledge as security for the performance of any bid, tender, contract, lease
or undertaking not directly or indirectly in connection with the securing of Indebtedness; any
deposit or pledge with any governmental agency required or permitted to qualify the Company or any
Consolidated Subsidiary to conduct business, to maintain self-insurance or to obtain the benefits
of any law pertaining to worker’s compensation, unemployment insurance, pensions, social security
or similar matters, or to obtain any stay or discharge in any legal or administrative proceedings;
deposits or pledges to obtain the release of mechanics’ worker’s, repairmen’s, materialmen’s or
warehousemen’s liens on the release of property in the possession of a common carrier; any security
interest created in connection with the sale, discount or guarantee of notes, chattel mortgages,
leases, accounts receivable, trade acceptances or other paper, or contingent repurchase
obligations, arising out of sales of merchandise in the ordinary course of business; liens for
taxes not yet due and payable or being contested in good faith; any deposit or pledge in connection
with appeal or surety bonds; or other deposits or pledges similar to those referred to in this
subparagraph (g);



     (h) Liens arising by reason of any attachment, judgment, decree or order of any court or other
governmental authority, so long as any appropriate legal proceedings which may have been initiated
for review of such attachment, judgment, decree or order shall not have been finally terminated or
so long as the period within which such proceedings may be initiated shall not have expired;



     (i) Liens created after the date of this Indenture on property leased to or purchased by the
Company or any Consolidated Subsidiary after that date and securing, directly or indirectly,
obligations issued by a State, a Territory or a possession of the United States of America, or any
political subdivision of any of the foregoing, or the District of Columbia, to finance the cost of
acquisition or cost of construction of such property;



     (j) any extension, renewal, substitution or replacement (or successive extensions, renewals,
substitutions or replacements), as a whole or in part, of any Lien referred to in subparagraphs (a)
through (i) above or the Indebtedness secured thereby; provided, that (1) such extension, renewal,
substitution or replacement Lien shall be limited to all or any part of the same property or assets
or shares of stock that secured the Lien extended, renewed, substituted or



18









 




replaced (plus improvements on such property and any other property or assets not then
constituting a Principal Property) and (2) to the extent, if any, that the Indebtedness secured by
such Lien at such time is increased, the amount of such increase shall not be excluded from
Indebtedness under any computation under this Section 4.03; and




     (k) Liens securing Indebtedness or any other obligations under the Senior Credit Agreement.



     Debt created by the Company or any Consolidated Subsidiary shall not be cumulated with a
guarantee of the same Indebtedness by the Company or any other Consolidated Subsidiary for the same
financial obligation.



     SECTION 4.04. Limitation on Sale and Leaseback Transactions. So long as any
Securities of any series shall have been issued and remain outstanding, unless the terms of any
series provide otherwise, the Company will not itself, and will not permit any Consolidated
Subsidiary to, enter into any arrangement after the date of this Indenture with any Person (not
including the Company or any Consolidated Subsidiary) providing for the leasing by the Company or
any such Consolidated Subsidiary of any Principal Property which was or is owned by the Company or
such Consolidated Subsidiary (except for temporary leases for a term of not more than three years),
which property has been or is to be sold or transferred, more than 120 days after the later of (i)
such Principal Property has been acquired by the Company or such Consolidated Subsidiary and (ii)
completion of construction and commencement of full operation thereof, to such Person (herein
referred to as a “sale and leaseback transaction”) unless (a) the net proceeds to the
Company or such Consolidated Subsidiary from such sale or transfer equal or exceed the fair value
(as determined by the Board of Directors of the Company) of the Principal Property so leased, (b)
the Company or such Consolidated Subsidiary could incur Indebtedness secured by a Lien on the
Principal Property to be leased pursuant to Section 4.03 in an amount equal to the
Attributable Debt with respect to such sale and leaseback transaction without equally and ratably
securing the Securities or (c) the Company, within 120 days after the effective date of any such
sale and leaseback transaction, applies an amount equal to the fair value (as determined by the
Board of Directors of the Company) of the property so sold and leased back at the time of entering
into such arrangement (as determined by the Company) to (x) the prepayment or retirement of Funded
Debt (including Securities of any series constituting Funded Debt) of the Company or (y) the
acquisition of additional real property for the Company or any Consolidated Subsidiary. A sale and
leaseback transaction shall not include any such arrangement for financing air, water or noise
pollution control facilities or sewage or solid waste disposal facilities or involving industrial
development bonds which are tax-exempt pursuant to Section 103 of the United States Internal
Revenue Code, as amended (or which receive similar tax treatment under any subsequent amendments
thereto or successor laws thereof).



     SECTION 4.05. Compliance Certificates. The Company shall deliver to the Trustee on
or before a date not more than 120 days after the end of each fiscal year of the Company ending
after the date hereof, a certificate (which need not comply with Section 14.03 or
14.04) signed by the Company’s chief financial officer, principal executive officer,
principal accounting officer, senior vice president of finance or treasurer stating whether or not
the signers have knowledge of any Default or Event of Default. If the Officer of the Company
signing such certificate has knowledge of such a Default or Event of Default, the certificate shall
describe any such Default



19









 




or Event of Default and the nature and status thereof. The Company shall deliver to the
Trustee, as soon as possible and in any event within five days after the Company becomes aware of
the occurrence of any Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers’ Certificate setting forth the details of such
Event of Default or default and the action which the Company proposes to take with respect thereto.




     SECTION 4.06. Waiver of Certain Covenants. The Company may omit in any particular
instance to comply with any term, provision or condition set forth in Section 4.03 or
Section 4.04 with respect to the Securities of any series if before the time for such
compliance the Holders of at least a majority in principal amount of the outstanding Securities of
such series shall either waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or affect such term,
provision or condition, except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.



ARTICLE FIVE




SUCCESSOR CORPORATION




     SECTION 5.01. When Company May Merge, Etc. So long as the Securities of any series
shall have been issued and remain outstanding, the Company shall not consolidate with or merge into
any other Person or sell, convey, transfer or lease or otherwise dispose of all or substantially
all of its assets to any Person unless:



     (a) either the Company shall be the continuing or surviving corporation or the corporation
formed by such consolidation or into which the Company is merged or the Person which acquires by
conveyance, transfer or otherwise, or which leases, all or substantially all of the assets of the
Company shall expressly assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, the due and punctual payment of the principal of and interest on the Securities of each
series and the performance of every covenant of this Indenture on the part of the Company to be
performed or observed; and



     (b) immediately after giving effect to such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default, shall have occurred
and be continuing.



     SECTION 5.02. Successor Substituted. Upon any such consolidation or merger, or any
sale, conveyance, transfer, lease or other disposition of all or substantially all of the assets of
the Company in accordance with Section 5.01, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale, conveyance, transfer,
lease or other disposition is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein; provided, that the Company shall not be released from
its obligation to pay the principal of or interest on the Securities of each series in the case of
a lease of all or substantially all of its assets.



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ARTICLE SIX




DEFAULT AND REMEDIES




     SECTION 6.01. Events of Default. “Event of Default” with respect to the
Securities of any series, wherever used herein, means any one of the following events which shall
have occurred and be continuing (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or governmental body),
unless such event is either inapplicable to a particular series or is specifically deleted or
modified in or pursuant to the supplemental indenture or Board Resolution establishing such series
of Securities or in the form of Security for such series, as contemplated by Section 3.01:



     (a) default in the payment of any installment of interest upon any of the Securities 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



     (b) default in the payment of all or any part of the principal of (or premium, if any, on) any
of the Securities of such series as and when the same shall become due and payable either at Stated
Maturity, upon any redemption, by declaration or otherwise; or



     (c) default in the performance, or breach, of any covenant or warranty of the Company
contained in the Securities of such series or in this Indenture (other than a covenant or warranty
a default in the performance or breach of which is elsewhere in this Section 6.01
specifically dealt with or which has been expressly included in this Indenture solely for the
benefit of a series of Securities other than such series), and continuance of such default or
breach for a period of 90 days after the date on which written notice specifying such default or
breach and requiring the Company to remedy the same and stating that such notice is a “Notice of
Default” hereunder shall have been given to the Company by the Trustee, or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the outstanding Securities of such
series; or



     (d) the failure by the Company to make any payment, on or before the end of the applicable
grace period, after the maturity of any Indebtedness of the Company (including guaranteed
Indebtedness but excluding any Indebtedness that is subordinated in right of payment to the
Securities of such series) with an aggregate principal amount then outstanding in excess of $250
million or the acceleration of Indebtedness of the Company (including guaranteed Indebtedness but
excluding any Indebtedness that is subordinated in right of payment to the Securities of such
series) with an aggregate principal amount then outstanding in excess of $250 million as a result
of a default with respect to such Indebtedness, and such Indebtedness, in either case, is not
discharged or such acceleration shall not have been cured, waived, rescinded or annulled within a
period of 30 days after there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the outstanding Securities of such series, a written notice specifying such
failure to pay or acceleration and requiring the Company to cause such



21









 




acceleration to be cured, waived, rescinded or annulled or to cause such Indebtedness to be
discharged and stating that such notice is a “Notice of Default” hereunder; or




     (e) the entry by a court having jurisdiction in the premises of (i) a decree or order for
relief in respect of the Company in an involuntary case or proceeding under any applicable federal
or state bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the Company under any
applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or for all or any substantial part
of its property, or ordering the winding-up or liquidation of its affairs, and the continuance of
such decree or order for relief or any such other decree or order unstayed and in effect for a
period of 90 consecutive days; or



     (f) the commencement by the Company of a voluntary case or proceeding under any applicable
federal or state bankruptcy, insolvency reorganization or other similar law, or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company in an involuntary case or proceeding under any
such law, or the filing by it of a petition or answer or consent seeking reorganization or relief
under any applicable federal or state law, or the consent by it to the filing of such petition or
to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or for all or any substantial part of its property,
or the making by it of a general assignment for the benefit of creditors; or



     (g) any other Event of Default provided with respect to the Securities of such series.



     SECTION 6.02. Acceleration. If an Event of Default occurs and is continuing under
this Indenture with respect to the Securities of any series, then in each and every such case,
unless the principal of all of the Securities of such series shall have already become due and
payable, the Trustee for the Securities of such series or the Holders of at least 25% in principal
amount of the Securities of such series then outstanding, by written notice to the Company (and to
the Trustee if such notice is given by the Holders), may, and the Trustee at the request of such
Holders shall, declare the entire principal of (or, if the Securities of such affected series are
Original Issue Discount Securities, such portion of the principal amount as may be specified in the
terms of the Securities of such series) and accrued and unpaid interest on all of the Securities of
such series to be immediately due and payable, any provision of this Indenture or the Securities of
such series to the contrary notwithstanding. Upon a declaration of acceleration, such principal
and accrued and unpaid interest shall be immediately due and payable. In the event of a declaration
of acceleration because an Event of Default set forth in clause (c) of Section 6.01 has
occurred and is continuing, such declaration of acceleration shall be automatically rescinded and
annulled if the event of default triggering such Event of Default pursuant to clause (c) shall be
remedied or cured by the Company or waived by the Holders within 60 days after the declaration of
acceleration with respect thereto.



     At any time after such declaration of acceleration, but before a judgment or decree for the
payment of the money due has been obtained by the Trustee for the Securities of such series, the
Holders of at least a majority in principal amount of the outstanding Securities of the affected



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series by written notice to the Company and to the Trustee, may waive all past Defaults and
rescind and annul a declaration of acceleration and its consequences if (a) the Company has paid or
deposited with the Trustee a sum sufficient to pay (i) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, (ii) all overdue interest on all Securities of such series, and (iii) the
principal of any and all of the Securities of such series that have become due otherwise than by
such declaration or occurrence of acceleration and interest thereon at the rate prescribed therefor
by such Securities, (b) all existing Events of Default, other than the non-payment of the principal
of and accrued and unpaid interest on the Securities of such series that have become due solely by
such declaration of acceleration, have been cured or waived and (c) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction.




     For all purposes under this Indenture, if a portion of the principal of any Original Issue
Discount Securities shall have been accelerated and declared due and payable pursuant to the
provisions hereof, then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be
deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and
payable as a result of such acceleration, and payment of such portion of the principal thereof as
shall be due and payable as a result of such acceleration, together with interest, if any, thereon
and all other amounts owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.



     SECTION 6.03. Other Remedies. If an Event of Default occurs and is continuing with
respect to the Securities of any series, the Trustee for the Securities of such series may, and at
the direction of the Holders of at least a majority in principal amount of the outstanding
Securities of such series shall, pursue any available remedy by proceeding at law or in equity to
collect the payment of principal of or interest on the Securities of such series or to enforce the
performance of any provision of the Securities of such series or this Indenture.



     The Trustee may maintain a proceeding even if it does not possess any of the Securities of the
affected series or does not produce any of them in the proceeding.



     SECTION 6.04. Waiver of Past Defaults. Subject to Sections 6.02,
6.08 and 9.02, the Holders of at least a majority in principal amount of the
outstanding Securities of any series may waive any past or existing Default or Event of Default
with respect to the Securities of such series and its consequences, except an uncured Default in
the payment of principal of or interest on any Security of such series as specified in clause (a)
or (b) of Section 6.01 or in respect of a covenant or provision of this Indenture which
cannot be modified or amended without the consent of the Holder of each outstanding Security
affected. Upon any such waiver, such Default shall cease to exist and be deemed to have been cured
and not to have occurred, and any Event of Default arising therefrom shall be deemed to have been
cured and not to have occurred, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any right consequent
thereto.



     SECTION 6.05. Control by Majority. The Holders of at least a majority in principal
amount of the outstanding Securities of each series affected may direct the time, method and place
of conducting any proceeding for any remedy available to, or exercising any trust or power



23









 




conferred on, the Trustee for the Securities of such series; provided, that the Trustee may
refuse to follow any direction if the Trustee, being advised by counsel, determines that the
actions or proceedings so directed may not lawfully be taken or if the Trustee in good faith by its
board of directors or executive committee or a trust committee of directors or trustees and/or
Responsible Officers shall determine that the actions or proceedings so directed would involve the
Trustee in personal liability; and provided, further, that the Trustee may take any other action it
deems proper that is not inconsistent with any such direction received from Holders of Securities.




     SECTION 6.06. Payment of Securities on Default. The Company covenants that if an
Event of Default in payment of principal or interest specified in clause (a) or (b) of Section
6.01 occurs and is continuing with respect to the Securities of any series, then upon demand of
the Trustee, the Company will pay to the Trustee, for the benefit of the Holders, the whole amount
of principal and accrued interest that then shall have become due and payable on all of the
Securities of such series, together with interest upon the overdue principal and (to the extent
that payment of such interest is enforceable under applicable law) upon overdue installments of
interest, if any, at the same rate as the rate of interest specified in the Securities of such
series; and, in addition thereto, such further amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents and counsel, and all other reasonable expenses and
liabilities incurred, and all advances made, by the Trustee, except as a result of its negligence
or bad faith.



     SECTION 6.07. Limitation on Suits. A Holder may not institute any proceeding,
judicial or otherwise, with respect to this Indenture or the Securities of any series, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:




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




     (ii) the Holders of at least 25% in principal amount of the outstanding Securities of
such series shall have made a written request to the Trustee for the Securities of such
series to pursue such remedy;




     (iii) such Holder or Holders offer the Trustee indemnity satisfactory to the Trustee
against any costs, liability or expense;




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




     (v) during such 60-day period, the Holders of a majority in principal amount of the
outstanding Securities of such series do not give the Trustee a direction that is
inconsistent with the request.



     For purposes of Section 6.05 and this Section 6.07, the Trustee shall comply
with TIA Section 316(a) in making any determination of whether the Holders of the required
principal amount of outstanding Securities of any series have concurred in any request or direction
of the Trustee to pursue any remedy available to the Trustee or the Holders with respect to this
Indenture or the Securities or otherwise under the law.



24









 





     A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over such other Holder.



     SECTION 6.08. Rights of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture, the right of any Holder of a Security of any series to receive payment
of the principal of or interest on such Security or to bring suit for the enforcement of any such
payment, on or after the due date expressed in such Security, shall not be impaired or affected
without the consent of such Holder.



     SECTION 6.09. Collection Suit by Trustee. If an Event of Default in payment of
principal or interest specified in clause (a) or (b) of Section 6.01 occurs and is
continuing with respect to the Securities of any series, the Trustee for the Securities of such
series may recover judgment in its own name and as trustee of an express trust against the Company
or any other obligor of the Securities of such series for the whole amount of principal and accrued
interest remaining unpaid, together with interest on overdue principal, and such further amount as
shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, except
as a result of its negligence or bad faith.



     SECTION 6.10. Trustee May File Proofs of Claim. The Trustee for the Securities of
any series may file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.08) and the Holders of Securities of such
series allowed in any judicial proceedings relative to the Company (or any other obligor of the
Securities of such series), its creditors or its property and shall be entitled and empowered to
collect and receive any monies, securities or other property payable or deliverable upon conversion
or exchange of the Securities of such series or upon any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.08. Nothing herein contained shall be deemed to empower the
Trustee to authorize or consent to, or accept or adopt on behalf of any Holder of Securities of any
series, any plan of reorganization, arrangement, adjustment or composition affecting the Securities
of such series or the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.



     SECTION 6.11. Priorities. If the Trustee collects any money pursuant to this
Article Six, it shall pay out the money in the following order:




     First: To the payment of all reasonable costs and expenses applicable to such
collection, reasonable compensation to the Trustee, its agents, attorneys and counsel, and
all other reasonable expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith;



25









 






     Second: To Holders for amounts then due and unpaid for principal of and interest on the
Securities in respect of which or for the benefit of which such money has been collected,
with interest upon the overdue installments of interest, to the extent lawful, at the same
rate as the rate of interest on the Securities of such series, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Securities of such
series for principal and interest, respectively; and




     Third: To the Company or as a court of competent jurisdiction shall direct in a final,
non-appealable order.



     The Trustee, upon prior written notice to the Company, may fix a record date and payment date
for any payment to Holders pursuant to this Section 6.11.



     SECTION 6.12. Undertaking for Costs. In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for the Securities of any series for
any action taken or omitted by it as Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of the suit, and the court may assess reasonable costs,
including reasonable attorneys’ fees and expenses, against any party litigant in the suit having
due regard to the merits and good faith of the claims or defenses made by the party litigant. This
Section 6.12 does not apply to a suit by the Trustee for the Securities of any series, a
suit by a Holder pursuant to Section 6.08, or a suit by Holders of more than 10% in
principal amount of the outstanding Securities of any series.



     SECTION 6.13. Restoration of Rights and Remedies. If the Trustee for the Securities
of any series or any Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then, and in every such case, subject to any
determination in such proceeding, the Company, each of the Guarantors, the Trustee and the Holders
shall be restored severally and respectively to their former positions hereunder and thereafter all
rights and remedies of the Company, each of the Guarantors, the Trustee and the Holders shall
continue as though no such proceeding had been instituted.



     SECTION 6.14. Rights and Remedies Cumulative. No right or remedy herein conferred
upon or reserved to the Trustee for the Securities of any series or to the Holders is intended to
be exclusive of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment
of any other appropriate right or remedy.



     SECTION 6.15. Delay or Omission Not Waiver. No delay or omission of the Trustee for
the Securities of any series or of any Holder of Securities of any series to exercise any right or
remedy accruing upon any Event of Default occurring and continuing with respect to the Securities
of such series shall impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article Six or by
law to the Trustee for the Securities of any series or to the Holders of Securities of any series



26









 




may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.




ARTICLE SEVEN




TRUSTEE




     SECTION 7.01. General. The duties and responsibilities of the Trustee shall be as
provided by the TIA and as set forth herein. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably assured to it.
Whether or not herein expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee shall be subject to
the provisions of this Article Seven.



     SECTION 7.02. Certain Rights of Trustee. Subject to TIA Sections 315(a) through (d):




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




     (ii) before the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel, which shall conform to Section 14.04. The
Trustee shall not be liable for any action it takes or omits to take in good faith in
reliance on such certificate or opinion;




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




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




     (v) the Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within its rights or powers, provided, that the
Trustee’s conduct does not constitute negligence or bad faith;




     (vi) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed)



27









 






may, in the absence of bad faith on its part, conclusively rely upon an Officers’
Certificate;




     (vii) the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Company personally or by agent or attorney
at the expense of the Company and shall incur no liability of any kind by reason of such
inquiry or investigation;




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




     (ix) the Trustee for the Securities of any series shall not be deemed to have notice of
any Default or Event of Default with respect to the Securities of such series 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 Corporate Trust
Office of the Trustee, and such notice references the Securities of such series and this
Indenture;




     (x) 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;




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




     (xii) in no event shall the Trustee be responsible or liable for special, indirect, 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.



     SECTION 7.03. Individual Rights of Trustee. The Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities and may otherwise deal with the
Company or its Affiliates with the same rights it would have if it were not the Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to TIA Sections 310(b) and 311.



28









 





     SECTION 7.04. Trustee’s Disclaimer. The Trustee (i) makes no representation as to
the validity or adequacy of this Indenture or the Securities, (ii) shall not be accountable for the
Company’s use or application of the proceeds from the Securities and (iii) shall not be responsible
for any statement in any Security other than its certificate of authentication.



     SECTION 7.05. Notice of Default. If any Default or any Event of Default occurs and
is continuing with respect to the Securities of any series and if such Default or Event of Default
is known to a Responsible Officer of the Trustee for the Securities of such series, the Trustee
shall mail to each Holder in the manner and to the extent provided in TIA Section 313(c) notice of
the Default or Event of Default within 90 days after it occurs, unless such Default or Event of
Default has been cured; provided, however, that, except in the case of a default in the payment of
the principal of or interest on any Security of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interest of the Holders of the Securities of such
series.



     SECTION 7.06. Reports by the Company to the Trustee. The Company shall provide to
the Trustee such documents, reports and information as are required by TIA Section 314, if any, in
the form, in the manner and at the times required by TIA Section 314. 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 7.07. Reports by Trustee to Holders. Within 60 days after each May 15,
beginning with the May 15 following the date of the issuance of Securities of any series under this
Indenture, the Trustee shall mail to each Holder as provided in TIA Section 313(c) a brief report,
if and as required by TIA Section 313(a), dated as of such May 15.



     A copy of each report at the time of its mailing to the Holders of Securities shall be mailed
to the Company and filed with the Commission and each stock exchange on which the Securities of any
series are listed in accordance with TIA Section 313(d). The Company shall promptly notify the
Trustee when the Securities of any series are listed on any stock exchange or of any delisting
thereof.



     SECTION 7.08. Compensation and Indemnity. The Company shall pay to the Trustee for
the Securities of each series such compensation as shall be agreed upon in writing for its services
hereunder. The compensation of the Trustee shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee for the Securities of each
series upon request for all reasonable disbursements, expenses and advances incurred or made by the
Trustee without negligence or bad faith on its part. Such expenses shall include the reasonable
compensation and expenses of the Trustee’s agents and counsel.



     The Company shall indemnify the Trustee for the Securities of each series and any predecessor
trustee for, and hold it harmless against, any and all loss, claim, damage or liability



29









 




or expense incurred by it without negligence or bad faith on its part in connection with the
acceptance or administration of this Indenture and its duties under this Indenture and the
Securities of such series, including the costs and expenses of defending itself against any claim
or liability and of complying with any process served upon it or any of its officers in connection
with the exercise or performance of any of its powers or duties under this Indenture and the
Securities of such series. The Trustee shall notify the Company promptly of any claim of which a
Responsible Officer receives written notice for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company of its obligations hereunder, unless
the Company is materially prejudiced thereby. The Company shall defend the claim and the Trustee
shall cooperate in the defense. Unless otherwise set forth herein, the Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent, which consent shall not be unreasonably
withheld.




     To secure the Company’s payment obligations in this Section 7.08, the Trustee for the
Securities of each series shall have a lien prior to the Securities of such series on all money or
property held or collected by the Trustee, in its capacity as Trustee, except money or property
held in trust to pay principal of and interest on particular Securities.



     If the Trustee for the Securities of any series incurs expenses or renders services after the
occurrence of an Event of Default specified in clause (e) or (f) of Section 6.01, the
expenses and the compensation for the services will be intended to constitute expenses of
administration under Title 11 of the United States Bankruptcy Code or any applicable federal or
state law for the relief of debtors.



     The provisions of this Section 7.08 shall survive the termination of this Indenture
and the resignation and removal of the Trustee.



     The Trustee shall comply with the provisions of TIA Section 313(b)(2) to the extent
applicable.



     SECTION 7.09. Replacement of Trustee. A resignation or removal of the Trustee and
appointment of a successor Trustee shall become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section 7.09.



     The Trustee for the Securities of any series may resign at any time by so notifying the
Company in writing at least 30 days prior to the date of the proposed resignation. The Holders of
a majority in principal amount of the outstanding Securities of any series may at any time remove
the Trustee for the Securities of such series by so notifying the Trustee and may appoint a
successor Trustee. The Company may remove the Trustee for the Securities of any series if: (i) the
Trustee is no longer eligible under Section 7.11; (ii) the Trustee is adjudged a bankrupt
or an insolvent; (iii) a receiver or other public officer takes charge of the Trustee or its
property; or (iv) the Trustee becomes incapable of acting.



     If the Trustee for the Securities of any series resigns or is removed, or if a vacancy exists
in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee.
Within one year after the successor Trustee takes office, the Holders of a majority in principal



30









 




amount of the outstanding Securities of such series may appoint a successor Trustee to replace
the successor Trustee appointed by the Company. If the successor Trustee does not deliver its
written acceptance required by the next succeeding paragraph of this Section 7.09 within 30
days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the outstanding Securities of such series may, at the
expense of the Company, petition any court of competent jurisdiction for the appointment of a
successor Trustee.




     A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after the delivery of such written acceptance, subject to
the lien provided in Section 7.08, (i) the retiring Trustee shall upon payment of its
charges transfer all property held by it as Trustee to the successor Trustee, (ii) the resignation
or removal of the retiring Trustee shall become effective and (iii) the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. A successor Trustee
shall mail notice of its succession to each Holder of Securities of the affected series. No
successor Trustee shall accept its appointment unless at the time of such acceptance such successor
Trustee shall be qualified and eligible under this Article Seven.



     If the Trustee for the Securities of any series is no longer eligible under Section
7.11 or shall fail to comply with TIA Section 310(b), any Holder of Securities of such series
who satisfies the requirements of TIA Section 310(b) may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. If at any
time the Trustee for the Securities of any series 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 provided in this Section 7.09.



     The Company shall give notice of any resignation and any removal of the Trustee for the
Securities of any series and each appointment of a successor Trustee to all Holders of Securities
of such series. Each notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.



     Notwithstanding replacement of the Trustee pursuant to this Section 7.09, the
Company’s obligation under Section 7.08 shall continue for the benefit of the retiring
Trustee.



     SECTION 7.10. Successor Trustee by Merger, Etc. If the Trustee for the Securities of
any series consolidates with, merges or converts into, or transfers all or substantially all of its
corporate trust business to, another corporation or national banking association, the resulting,
surviving or transferee corporation or national banking association without any further act shall
be the successor Trustee with the same effect as if the successor Trustee had been named as the
Trustee herein, provided, that such corporation shall be otherwise qualified and eligible under
this Article Seven.



     SECTION 7.11. Eligibility. This Indenture shall always have a Trustee who satisfies
the requirements of TIA Section 310(a)(1) and Section 310(a)(5). The Trustee shall have a combined
capital and surplus of at least $50 million as set forth in its most recent published annual report
of condition that is subject to the requirements of applicable federal or state supervising or
examining authority. If at any time the Trustee for the Securities of any series



31









 




shall cease to be eligible in accordance with the provisions of this Section 7.11, the
Trustee shall resign immediately in the manner and with the effect specified in this Article
Seven.




     SECTION 7.12. Money Held in Trust. The Trustee shall not be liable for interest on
any money received by it except as the Trustee may agree with the Company. Money held in trust by
the Trustee need not be segregated from other funds except to the extent required by law and except
for money held in trust under Article Eight.



ARTICLE EIGHT




SATISFACTION AND DISCHARGE OF INDENTURE




     SECTION 8.01. Satisfaction and Discharge of Securities of Any Series; Discharge of
Indenture.



     (a) Except as otherwise provided in this Section 8.01, the Company may terminate its
obligations under the outstanding Securities of any series and this Indenture with respect to the
Securities of such series if:




     (i) all outstanding Securities of such series previously authenticated and delivered
(other than destroyed, lost or stolen Securities that have been replaced or Securities that
are paid pursuant to Section 4.01 or Securities for whose payment money or
securities have theretofore been held in trust and thereafter repaid to the Company, as
provided in Section 8.05) have been delivered to the Trustee for cancellation and
the Company has paid all sums payable by it hereunder; or




     (ii) (A) the Securities of such series mature within one year, (B) the Securities of
such series are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, (C) the Company irrevocably deposits
in trust with the Trustee during such one-year period, under the terms of an irrevocable
trust agreement in form and substance satisfactory to the Trustee, as trust funds solely for
the benefit of the Holders of Securities of such series for that purpose, money or
Government Obligations sufficient (in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the
Trustee), without consideration of any reinvestment of any interest thereon, to pay
principal and interest on the Securities of such series to maturity, and to pay all other
sums payable by it hereunder, (D) no Default or Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the date of such deposit,
(E) such deposit will not result in a breach or violation of, or constitute a default under,
this Indenture or any other agreement or instrument to which the Company is a party or by
which it is bound and (F) 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 satisfaction and discharge of the outstanding Securities of such
series and this Indenture with respect to the Securities of such series have been complied
with.



32









 





     With respect to the foregoing clause (i), the Company’s obligations under Section 7.08
shall survive. With respect to the foregoing clause (ii), the Company’s obligations in
Sections 2.02, 2.03, 3.03, 3.07, 4.01, 4.02,
7.08, 7.09, 8.04, 8.05 and 8.06 shall survive until the
Securities of such series are no longer outstanding. After any such irrevocable deposit, the
Trustee upon request shall acknowledge in writing the discharge of the Company’s obligations under
the Securities of such series and this Indenture with respect to the Securities of such series
except for those surviving obligations specified above.



     (b) Upon compliance by the Company with the provisions of clause (a) of this Section
8.01 as to the satisfaction and discharge of each series of Securities issued hereunder, and if
the Company has paid or caused to be paid all other sums payable under this Indenture, this
Indenture shall cease to be of any further effect (except as otherwise provided herein). The
Trustee upon request shall acknowledge in writing the satisfaction and discharge of this Indenture.



     SECTION 8.02. Legal Defeasance. Except as otherwise provided for the Securities of
any series, the Company will be deemed to have paid and will be discharged from any and all
obligations in respect of the Securities of any series on the 91st day after the date of the
deposit referred to in clause (a) of this Section 8.02, and the provisions of this
Indenture will no longer be in effect with respect to the Securities of such series, and the
Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same if:



     (a) the Company has irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of Section 7.11) and conveyed all
right, title and interest to the Trustee for the benefit of the Holders of Securities of such
series, under the terms of an irrevocable trust agreement in form and substance satisfactory to the
Trustee as trust funds in trust, specifically pledged to the Trustee for the benefit of such
Holders as security for payment of the principal of and interest, if any, on the Securities of such
series, and dedicated solely to, the benefit of such Holders, in and to (1) money in an amount, (2)
Government Obligations that, through the payment of interest and principal in respect thereof in
accordance with their terms, will provide, not later than one day before the due date of any
payment referred to in this clause (a), money in an amount or (3) a combination thereof in an
amount sufficient, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay and discharge,
without consideration of the reinvestment of such interest and after payment of all federal, state
and local taxes or other charges and assessments in respect thereof payable by the Trustee, the
principal of and interest on the outstanding Securities of such series on the Stated Maturity of
such principal or interest; provided, that the Trustee shall have been irrevocably instructed to
apply such money or the proceeds of such Government Obligations to the payment of such principal
and interest with respect to the Securities of such series;



     (b) the Company has delivered to the Trustee either (x) an Opinion of Counsel to the effect
that Holders of Securities of such series will not recognize income, gain or loss for federal
income tax purposes as a result of the Company’s exercise of its option under this Section
8.02 and will be subject to federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such option had not been exercised, which Opinion of
Counsel shall be based upon (and accompanied by a copy of) a ruling of the Internal Revenue



33









 




Service to the same effect unless there has been a change in applicable federal income tax law
after the Original Issue Date of such Securities such that a ruling is no longer required or (y) a
ruling directed to the Trustee received from the Internal Revenue Service to the same effect as the
aforementioned Opinion of Counsel;




     (c) immediately after giving effect to such deposit, on a pro forma basis, no Default or Event
of Default with respect to the Securities of such series shall have occurred and be continuing on
the date of such deposit or, insofar as Sections 6.01(e) and 6.01(f) are concerned,
at any time during the period ending on the 91st day after such date of such deposit; and



     (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 contemplated by this Section 8.02 have been complied with.



     Notwithstanding the foregoing, prior to the end of the 91-day period referred to in clause (c)
of this Section 8.02, none of the Company’s obligations under this Indenture with respect
to the Securities of such series shall be discharged. Subsequent to the end of such 91-day period
with respect to this Section 8.02, the Company’s obligations in Sections 2.02,
2.03, 3.03, 3.07, 8.04, 8.05, 8.06 and the rights,
powers, trusts, duties and immunities of the Trustee hereunder shall survive such satisfaction and
discharge until the Securities of such series are no longer outstanding.



     After any such irrevocable deposit, the Trustee upon request shall acknowledge in writing the
discharge of the Company’s obligations under the Securities of such series and this Indenture with
respect to the Securities of such series except for those surviving obligations in the immediately
preceding paragraph.



     SECTION 8.03. Defeasance of Certain Obligations. Except as otherwise provided for
the Securities of any series, the Company may omit to comply with any term, provision or condition
set forth in Sections 4.03, 4.04, 4.05 and 5.01 and clause (c) of
Section 6.01 and a breach with respect to Sections 4.03, 4.04, 4.05
and 5.01, and clause (c) of Section 6.01 shall be deemed not to be an Event of
Default, in each case with respect to the outstanding Securities of any series if:




     (i) with reference to this Section 8.03, the Company has irrevocably deposited
or caused to be irrevocably deposited with the Trustee (or another trustee satisfying the
requirements of Section 7.11) and conveyed all right, title and interest to the
Trustee for the benefit of the Holders of Securities of such series, under the terms of an
irrevocable trust agreement in form and substance satisfactory to the Trustee as trust funds
in trust, specifically pledged to the Trustee for the benefit of such Holders as security
for payment of the principal of and interest, if any, on the Securities of such series, and
dedicated solely to, the benefit of such Holders, in and to (A) money in an amount, (B)
Government Obligations that, through the payment of interest and principal in respect
thereof in accordance with their terms, will provide, not later than one day before the due
date of any payment referred to in this clause (i), money in an amount or (C) a combination
thereof in an amount sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification




34










 








thereof delivered to the Trustee, to pay and discharge, without consideration of the
reinvestment of such interest and after payment of all federal, state and local taxes or
other charges and assessments in respect thereof payable by the Trustee, the principal of
and interest on the outstanding Securities of such series on the Stated Maturity of such
principal or interest; provided, that the Trustee shall have been irrevocably instructed to
apply such money or the proceeds of such Government Obligations to the payment of such
principal and interest with respect to the Securities of such series;




     (ii) the Company has delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of Securities of such series will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and defeasance of such covenants and Events
of Default and will be subject to federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such deposit and defeasance had
not occurred;




     (iii) immediately after giving effect to such deposit on a pro forma basis, no Default
or Event of Default with respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit or, insofar as Sections 6.01(e) and
6.01(f) are concerned, at any time during the period ending on the 91st day after
such date of such deposit;




     (iv) if the Securities of such series are then listed on a national securities
exchange, the Company has delivered to the Trustee an Opinion of Counsel to the effect that
the Securities of such series will not be delisted as a result of such deposit, defeasance
and discharge; and




     (v) 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 contemplated by this Section 8.03 have been complied with.



     SECTION 8.04. Application of Trust Money. Subject to Section 8.06, the
Trustee or Paying Agent shall hold in trust money or Government Obligations deposited with it
pursuant to Section 8.01, 8.02 or 8.03, as the case may be, and shall apply
the deposited money and the money from Government Obligations in accordance with the Securities of
the applicable series and this Indenture to the payment of principal of and interest on the
Securities of such series; but such money need not be segregated from other funds except to the
extent required by law.



     SECTION 8.05. Repayment to Company. Subject to Sections 7.08, 8.01,
8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to the Company
upon request set forth in an Officers’ Certificate any excess money held by them at any time and
thereupon shall be relieved from all liability with respect to such money. The Trustee and the
Paying Agent shall pay to the Company upon request any money held by them with respect to the
Securities of any series for the payment of principal or interest that remains unclaimed for two
years; provided, that the Trustee or Paying Agent before being required to make any payment may
cause to be published at the expense of the Company once in a newspaper of general circulation in
The City of New York or mail to each Holder of Securities of such series entitled to such money at
such Holder’s address (as set forth in the Security Register) notice that such money remains
unclaimed and that



35









 







after a date specified therein (which shall be at least 30 days from the date of such
publication or mailing) any unclaimed balance of such money then remaining will be repaid to the
Company. After payment to the Company, Holders of Securities of such series entitled to such money
must look to the Company or the Guarantors, as the case may be, for payment as general creditors
unless an applicable law designates another Person, and all liability of the Trustee and such
Paying Agent with respect to such money shall cease.



     SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is unable to apply any
money or Government Obligations in accordance with Section 8.01, 8.02 or
8.03, as the case may be, by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company’s obligations under this Indenture and the Securities of the
applicable series shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.01, 8.02 or 8.03, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply all such money or Government Obligations in
accordance with Section 8.01, 8.02 or 8.03, as the case may be; provided,
that, if the Company has made any payment of principal of or interest on any Securities of such
series because of the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the money or Government
Obligations held by the Trustee or Paying Agent.



ARTICLE NINE




AMENDMENTS, SUPPLEMENTS AND WAIVERS




     SECTION 9.01. Without Consent of Holders. The Company, when authorized by a
resolution of its Board of Directors (as evidenced by a Board Resolution delivered to the Trustee),
each of the Guarantors and the Trustee may amend or supplement this Indenture or the Securities
without notice to or the consent of any Holder:




     (i) to cure any ambiguity, defect or inconsistency in this Indenture;




     (ii) to comply with Article Five;




     (iii) to comply with any requirements of the Commission in connection with any
qualification of this Indenture under the TIA;




     (iv) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee;




     (v) to provide for uncertificated Securities in addition to or in place of certificated
Securities;




     (vi) to add to the covenants of the Company for the protection of the Holders of
Securities of any series, to add any additional Events of Default with respect to the
Securities of any series, or to surrender any right or power conferred upon the Company;




     (vii) to convey, transfer, assign, mortgage or pledge to the Trustee as security for
the Securities of one or more series any property or assets;



36









 






     (viii) to allow any Guarantor to execute a supplemental indenture in respect of a
Subsidiary Guarantee;




     (ix) to establish the terms of Securities of any series as permitted by Section
3.01; or




     (x) to make any change that, in the good faith opinion of the Board of Directors of the
Company, as evidenced by a Board Resolution, does not materially and adversely affect the
rights of any Holder.



     SECTION 9.02. With Consent of Holders. Subject to Sections 6.04 and
6.08 and without prior notice to the Holders, the Company, when authorized by its Board of
Directors (as evidenced by a Board Resolution delivered to the Trustee), each of the Guarantors and
the Trustee may amend this Indenture and the Securities of any series with the written consent of
the Holders of a majority in principal amount of the Securities of each affected series then
outstanding (voting as one class), and the Holders of a majority in principal amount of the
Securities of each affected series then outstanding (voting as one class) by written notice to the
Trustee may waive future compliance by the Company with any provision of this Indenture or the
Securities of such series.



     Notwithstanding the provisions of this Section 9.02, without the consent of each
Holder affected, an amendment or waiver, including a waiver pursuant to Section 6.04, may
not:




     (i) extend the Stated Maturity of the principal of, or any installment of principal or
interest on, any Security;




     (ii) reduce the principal amount of or rate of interest on any Security, or any amount
payable upon redemption thereof, except as provided in this Indenture or the Securities of
the applicable series;




     (iii) reduce the amount of the principal of an Original Issue Discount Security that
would be payable upon an acceleration of the maturity thereof pursuant to Section
6.02;




     (iv) change any place or currency of payment of principal of or interest on any
Security;




     (v) impair the right to institute suit for the enforcement of any payment on or after
the Stated Maturity on any Security;




     (vi) reduce the percentage or principal amount of outstanding Securities of any series
the consent of whose Holders is necessary to modify or amend this Indenture or to waive
compliance with certain provisions of or certain Defaults under this Indenture;




     (vii) waive an uncured default in the payment of principal of or interest on any
Security; or



37









 






     (viii) modify any of the provisions of this Section 9.02, except to increase
any such percentage or to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each outstanding Security affected
thereby.



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



     After an amendment, supplement or waiver under this Section 9.02 becomes effective,
the Company shall mail to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. The Company will mail supplemental indentures to Holders upon request. Any
failure of the Company to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver.



     SECTION 9.03. Action by Holders; Record Dates. Whenever in this Indenture it is
provided that the Holders of a specified principal amount of the outstanding Securities of any
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 amount have joined therein may be evidenced (a) by
any instrument or any number of instruments of similar tenor executed by such Holders in person or
by agent or proxy appointed in writing, or (b) the record of the Holders voting in favor thereof at
any meeting of the Holders duly called and held in accordance with the provisions of Article
Ten, or (c) any combination of such instrument or instruments and any such record of such a
meeting of the Holders.



     Subject to the provisions of Sections 7.02 and 10.05, proof of the execution
of any instrument by a Holder or its agent or proxy shall be sufficient if the ownership of the
Securities shall be proved by (a) the Security Register or by a certificate of the Registrar; or
(b) in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or
in any other manner which the Trustee may deem sufficient.



     The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement or waiver. If a record
date is fixed, then, notwithstanding the first paragraph of this Section 9.03, those
Persons who were Holders at such record date (or their duly designated proxies) and only those
Persons shall be entitled to consent to such amendment, supplement or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders after such record
date. No such consent shall be valid or effective for more than 90 days after such record date.



     After an amendment, supplement or waiver becomes effective, it shall bind every Holder of
Securities of the affected series unless it is of the type described in the second paragraph of
Section 9.02. In case of an amendment or waiver of the type described in the second
paragraph of Section 9.02, the amendment or waiver shall bind each Holder who has consented
to it and every subsequent Holder of a Security that evidences the same indebtedness as the
Security of the consenting Holder.



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     SECTION 9.04. Revocation and Effect of Consent. Until an amendment, supplement or
waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder and
every subsequent Holder of a Security or portion of a Security that evidences the same debt as the
Security of the consenting Holder, even if notation of the consent is not made on any Security.
However, any such Holder or subsequent Holder may revoke the consent as to its Security or portion
of its Security. Such revocation shall be effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes effective. An amendment,
supplement or waiver shall become effective on receipt by the Trustee of written consents from the
Holders of the requisite percentage in principal amount of the outstanding Securities of the
affected series.



     SECTION 9.05. Notation on or Exchange of Securities. If an amendment, supplement or
waiver changes the terms of a Security of any series, the Trustee may require the Holder to deliver
such Security to the Trustee. At the Company’s expense, the Trustee may place an appropriate
notation on such Security about the changed terms and return it to the Holder, and the Trustee may
place an appropriate notation on any Security of such series thereafter authenticated.
Alternatively, if the Company or the Trustee so determines, the Company in exchange for such
Security shall issue and the Trustee shall authenticate a new Security of such series that reflects
the changed terms. Failure to make the appropriate notation, or issue a new Security, shall not
affect the validity and effect of such amendment, supplement or waiver.



     SECTION 9.06. Trustee to Sign Amendments, Etc. The Trustee shall be provided with,
and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of
any amendment, supplement or waiver authorized pursuant to this Article Nine is authorized
or permitted by this Indenture and that it will be valid and binding upon the Company. Subject to
the preceding sentence, the Trustee shall sign such amendment, supplement or waiver if the same
does not adversely affect the rights, duties, liabilities or immunities of the Trustee. The
Trustee may, but shall not be obligated to, execute any such amendment, supplement or waiver that
affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.



     SECTION 9.07. Effect of Supplemental Indenture. Every supplemental indenture
executed pursuant to this Article Nine shall conform to the requirements of the TIA as then
in effect. Upon the execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall be deemed 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, the Guarantors and the Holders of Securities of each series affected thereby
shall thereafter be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all of 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.



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ARTICLE TEN




MEETINGS OF HOLDERS




     SECTION 10.01. Purposes of Meetings. A meeting of the Holders of Securities of any
series may be called at any time and from time to time pursuant to the provisions of this
Article Ten for any of the following purposes:




     (i) to give any notice to the Company or to the Trustee for the Securities of such
series, or to give any directions to the Trustee for the Securities of such series, or to
waive any Default or Event of Default with respect to the Securities of such series
hereunder and its consequences, or to take any other action authorized to be taken by the
Holders of Securities of such series pursuant to any of the provisions of Article
Six;




     (ii) to remove the Trustee for the Securities of such series and appoint a successor
trustee pursuant to the provisions of Article Seven;




     (iii) to consent to any amendment, supplement or waiver pursuant to the provisions of
Section 9.02; or




     (iv) to take any other action authorized to be taken by or on behalf of the Holders of
any specified principal amount of the outstanding Securities of such series under any other
provision of this Indenture or under applicable law.



     SECTION 10.02. Call of Meetings by Trustee. The Trustee for the Securities of any
series may at any time call a meeting of the Holders of Securities of such series to take any
action specified in Section 10.01, to be held at such time and at such place in the Borough
of Manhattan, The City of New York, as the Trustee shall determine. Notice of every meeting of the
Holders of Securities of any series, setting forth the time and place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given (a) to all Holders of
Securities of such series then outstanding, by publication at least twice in an Authorized
Newspaper in the Borough of Manhattan, The City of New York prior to the date fixed for the
meeting, the first publication, in each case, to be not less than 20 nor more than 180 days prior
to the date fixed for the meeting and the last publication to be not more than five days prior to
the date fixed for the meeting and (b) to all Holders of Securities of such series then outstanding
who have filed their names and addresses with the Trustee, by mailing such notice to such Holders
at such addresses, not less than 20 nor more than 180 days prior to the date fixed for the meeting.
Failure of any Holder or Holders to receive such notice or any defect therein shall in no case
affect the validity of any action taken at such meeting. Any meeting of the Holders of Securities
of any series shall be valid without notice if the Holders of all Securities of such series then
outstanding, the Company and the Trustee are present in person or by proxy or shall have waived
notice thereof before or after the meeting.



     SECTION 10.03. Call of Meetings by Company or Holders. In case at any time the
Company, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the
Securities of all or any series then outstanding, as the case may be, shall have requested the
Trustee to call a meeting of the Holders to take any action authorized in Section 10.01, by



40









 







written request setting forth in reasonable detail the action proposed to be taken at the
meeting, the Trustee shall not have mailed or published as provided in Section 10.02, the
notice of such meeting within 30 days after receipt of such request, then the Company or the
Holders of Securities of such series in the amount above specified may determine the time and the
place in said Borough of Manhattan for such meeting and may call such meeting to take any action
authorized in Section 10.01, by mailing or publishing notice thereof as provided in
Section 10.02.



     SECTION 10.04. Qualification for Voting. To be entitled to vote at any meeting of
the Holders a Person shall be a Holder of one or more Securities of the series with respect to
which such meeting is being held or a Person appointed by an instrument in writing as proxy by such
Holder. The only Persons who shall be entitled to be present or to speak at any meeting of the
Holders shall be the Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the Company and its
counsel.



     SECTION 10.05. Regulations. Notwithstanding any other provisions of this Indenture,
the Trustee for the Securities of any series may make such reasonable regulations as it may deem
advisable for any meeting of the Holders of Securities of such series, in regard to proof of the
holding of Securities of such series and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters concerning the conduct
of the meeting as the Trustee shall think fit.



     The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the Company or by the Holders of Securities of such
series as provided in Section 10.03, in which case the Company or the Holders calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of the Holders of a
majority in principal amount of the Securities represented at the meeting and entitled to vote.



     Subject to the provisions of Section 9.03, at any meeting of the Holders, each Holder
or proxy shall be entitled to one vote for each 1,000 (in the currency or currency unit in which
such Securities are denominated) principal amount at maturity of outstanding Securities held or
represented by such Holder; provided, however, that no vote shall be cast or counted at any meeting
in respect of any Security challenged as not outstanding and ruled by the chairman of the meeting
not to be outstanding. The chairman of the meeting shall have no right to vote except as a Holder
or proxy. Any meeting of the Holders duly called pursuant to the provisions of Section
10.02 or 10.03 may be adjourned from time to time, and the meeting may be held as so
adjourned without further notice.



     SECTION 10.06. Voting. The vote upon any resolution submitted to any meeting of the
Holders shall be by written ballot on which shall be subscribed the signatures of the Holders or
proxies and on which shall be inscribed the identifying number or numbers or to which shall be
attached a list of identifying numbers of the Securities held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who shall count all



41









 







votes cast at the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of the Holders shall be prepared by the
secretary of the meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons
having knowledge of the facts setting forth a copy of the notice of the meeting and showing that
said notice was mailed as provided in Section 10.02. The record shall be signed and
verified by the permanent chairman and secretary of the meeting and one of the duplicates shall be
delivered to the Company and the other to the Trustee for the Securities of the series with respect
to which such meeting is being held to be preserved by the Trustee, the latter to have attached
hereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive
evidence of the matters therein stated.



ARTICLE ELEVEN




REDEMPTION OF SECURITIES




     SECTION 11.01. Applicability of Article. The provisions of this Article
Eleven shall be applicable to the Securities of any series that are redeemable before their
Stated Maturity, except as otherwise specified as contemplated by Section 3.01 for the
Securities of such series.



     SECTION 11.02. Election to Redeem; Notice to Trustee. The election of the Company to
redeem any Securities shall be evidenced by, or pursuant to, a Board Resolution. In case of any
redemption at the election of the Company of less than all of the Securities of any series, the
Company shall, at least 45 days prior to the date fixed for redemption (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such redemption date and of the
principal amount of Securities of such series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers’ Certificate evidencing compliance with such restriction.



     SECTION 11.03. Selection by Trustee of Securities to be Redeemed. If fewer than all
of the Securities of any series are to be redeemed, the Trustee shall select, not more than 75 days
prior to the redemption date and in such manner as in its sole discretion it shall deem appropriate
and fair, the Securities of such series or portions thereof (equal to the minimum authorized
denomination for Securities of such series or any integral multiple thereof, except as otherwise
provided with respect to the Securities of such series) to be redeemed. The Trustee shall promptly
notify the Company in writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be redeemed.



     SECTION 11.04. Notice of Redemption. Notice of redemption shall be given by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the
redemption date, to each Holder of Securities to be redeemed, at such Holder’s address appearing in
the Security Register. The notice provided in the manner herein specified shall be conclusively
presumed to have been duly given, whether or not the Holder receives such notice. In any case,
failure to give such notice or any defect in the notice to the Holder of any Security



42









 







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:




     (i) the redemption date;




     (ii) the redemption price;




     (iii) if less than all of the outstanding Securities of any series are to be redeemed,
the identification (and, in the case of partial redemption, the principal amounts) of the
particular Securities to be redeemed;




     (iv) that on the redemption date the redemption price will become due and payable upon
each such Security to be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date;




     (v) the place or places where such Securities are to be surrendered for payment of the
redemption price;




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




     (vii) the CUSIP number, if any, of the Securities to be redeemed.



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



     SECTION 11.05. Deposit of Redemption Price. On or prior to any redemption date, the
Company shall deposit with the Trustee or with one or more Paying Agents an amount of money in the
currency or currency unit in which the Securities of such series are payable (except as otherwise
specified as contemplated by Section 3.01 for the Securities of such series) sufficient to
redeem on such redemption date all of the Securities or portions thereof so called for redemption
at the applicable redemption price, together with accrued interest to such redemption date. If the
Company is acting as its own Paying Agent, it will segregate such amount and hold it in trust as
provided in the last sentence of Section 3.05.



     SECTION 11.06. Securities Payable on Redemption Date. If notice of redemption has
been given as above provided, the Securities or portions of Securities of the series specified in
such notice shall become due and payable on the redemption date and at the place or places stated
in such notice at the applicable redemption price, together with any interest accrued to such
redemption date, and on and after said redemption date (unless the Company shall default in the
payment of such Securities at the applicable redemption price, together with any interest accrued
to said redemption date), any interest on the Securities or portions of Securities of any series so
called for redemption shall cease to accrue. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Company at the applicable
redemption price, together with any interest accrued thereon to the applicable redemption date, in
the currency or currency unit in which the Securities of such series are



43









 







payable (except as otherwise specified as contemplated by Section 3.01 for the
Securities of such series); provided, however, that installments of interest whose Stated Maturity
is on or prior to the redemption date shall be payable to the Holders of such Securities, or one or
more predecessor Securities, registered as such at the close of business on the relevant Record
Dates according to their terms.



     If any Security surrendered for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid, bear interest from the redemption date at the rate
prescribed therefor in such Security.



     SECTION 11.07. Securities Redeemed in Part. Upon surrender of any Security which is
to be redeemed in part only, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge, a new Security or Securities of
such series of authorized denominations, in aggregate principal amount equal to the unredeemed
portion of the Securities so surrendered.



ARTICLE TWELVE




SINKING FUND




     SECTION 12.01. Applicability of Article. The provisions of this Article
Twelve shall be applicable to any sinking fund for the retirement of Securities of a series,
except as otherwise specified as contemplated by Section 3.01 for Securities of such
series.



     The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is hereinafter referred to as a “mandatory sinking fund payment,” and any payment in excess
of such minimum amount provided for by the terms of the Securities of any series is herein referred
to as an “optional sinking fund payment.” If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction as provided in
Section 12.02. Each sinking fund payment shall be applied to the redemption of Securities
of any series as provided for by the terms of Securities of such series.



     SECTION 12.02. Satisfaction of Sinking Fund Payments With Securities. The Company
may (1) deliver Securities of a series (other than any Securities previously called for redemption)
and (2) apply as a credit Securities of a series which have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the Securities of such
series required to be made pursuant to the terms of such Securities as provided for by 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 sinking fund payment shall be reduced accordingly.



     SECTION 12.03. 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



44









 







payment for such series pursuant to the terms of such series, the portion thereof, if any,
which is to be satisfied by payment of cash in the currency or currency unit in which the
Securities of such series are payable (except as otherwise specified as contemplated by Section
3.01 for the Securities of such series) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of such series pursuant to Section 12.02
and will deliver to the Trustee any Securities to be so delivered (which have not been previously
delivered). Not less than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed on such sinking fund payment date in the manner specified in
Section 11.03 and cause notice of the redemption thereof to be given in the name of and at
the expense of the Company in the manner provided in Section 11.04. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.06 and 11.07.



ARTICLE THIRTEEN




SUBSIDIARY GUARANTEES




     SECTION 13.01. Guarantee. Subject to this Article Thirteen, each of the
Guarantors hereby agrees, jointly and severally, to unconditionally guarantee to each Holder of a
Security authenticated and delivered by the Trustee and to the Trustee and its successors and
assigns, irrespective of the validity and enforceability of this Indenture, the Securities or the
obligations of the Company hereunder or thereunder, that: (a) the principal of, and interest, if
any, on, the Securities will be promptly paid in full when due, whether at Stated Maturity, by
acceleration, redemption, purchase or otherwise, and (b) all other obligations of the Company to
the Holders or the Trustee under the Indenture and the Securities will be fully and punctually
performed within the grace period set forth in Section 6.01(c), if applicable. Failing
payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason,
the Guarantors shall be jointly and severally obligated to pay the same immediately. Each
Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.



     The Guarantors hereby agree that their obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of the Securities
with respect to any provisions hereof or thereof, the recovery of any judgment against the Company,
any action to enforce the same or any other circumstance which might otherwise constitute a legal
or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be
discharged except by complete performance of the obligations contained in the Securities and this
Indenture.



     If any Holder or the Trustee is required by any court or otherwise to return to the Company,
the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation
to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder,
this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force
and effect.



45









 





     Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to
the Holders of Securities in respect of any obligations guaranteed hereby until payment in full of
all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors,
on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Six for the
purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event
of any declaration of acceleration of such obligations as provided in Article Six, such
obligations (whether or not due and payable) shall forthwith become due and payable by such
Guarantor for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to
seek contribution from any non-paying Guarantor so long as the exercise of such right does not
impair the rights of the Holders under the Subsidiary Guarantee.



     SECTION 13.02. Limitation on Guarantor Liability. Each Guarantor and, by its
acceptance of Securities, each Holder hereby confirms that it is the intention of all such parties
that the Subsidiary Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of any federal or state bankruptcy law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any
Subsidiary Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the
Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited so that,
after giving effect to such maximum amount and all other contingent and fixed liabilities of such
Guarantor that are relevant under such laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under this Article Thirteen, will not
result in the obligations of such Guarantor under its Subsidiary Guarantee constituting a
fraudulent transfer or conveyance.



     SECTION 13.03. Execution and Delivery of Subsidiary Guarantee. To evidence its
Subsidiary Guarantee set forth in Section 13.01, each Guarantor hereby agrees that the
Securities shall bear a notation substantially in the form annexed hereto as Exhibit B
stating that such Securities are guaranteed by the Guarantors in accordance with this Article
Thirteen and may be released upon the terms and conditions set forth in this Indenture.



     Each Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section 13.01
shall remain in full force and effect notwithstanding any failure to endorse on each Security a
notation of such Subsidiary Guarantee.



     If an Officer of a Guarantor whose signature is on this Indenture no longer holds that office
at the time the Trustee authenticates the Security on which a Subsidiary Guarantee is endorsed,
such Subsidiary Guarantee shall be valid nevertheless.



     The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Subsidiary Guarantees set forth in this Indenture on behalf of the
Guarantors.



     In the event that a Subsidiary of the Company (other than a Guarantor) becomes a guarantor
under the Senior Credit Agreement subsequent to the date of this Indenture, the



46









 







Company shall cause such Subsidiary to become a Guarantor and to execute a supplemental
indenture to this Indenture and Subsidiary Guarantee within 10 Business Days of the date when such
event occurs.



     SECTION 13.04. Guarantors May Consolidate, etc. on Certain Terms. Except as
otherwise provided in Section 13.05, no Guarantor may consolidate with or merge with or
into (unless such Guarantor is the surviving Person) another Person unless:



     (a) subject to Section 13.05, the Person formed by or surviving any such consolidation
or merger (if other than a Guarantor or the Company) unconditionally assumes all of the obligations
of such Guarantor under the Securities and this Indenture, pursuant to a supplemental indenture in
form and substance reasonably satisfactory to the Trustee, on the terms set forth herein or
therein; and



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



     In case of any such consolidation or merger, and upon the assumption by the successor Person,
by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the due and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Guarantor, such successor Person shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor
and such predecessor Guarantor shall be discharged from its obligations under the Securities and
this Indenture.



     Except as set forth in Articles Four and Five, and notwithstanding clauses (a)
and (b) above, nothing contained in this Indenture or in any of the Securities shall prevent any
consolidation or merger of a Guarantor with or into the Company or another Guarantor, or shall
prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.



     SECTION 13.05. Release. To the extent that a Guarantor is released as a guarantor
under the Senior Credit Agreement or the Senior Credit Agreement is refinanced without such
Guarantor being a guarantor under the new credit facility, or in the event the Senior Credit
Agreement is otherwise terminated, then such Guarantor (in the event of a termination of the Senior
Credit Agreement, all Guarantors) will be released and relieved of any obligations under its
Subsidiary Guarantee to the same extent that such Guarantor was released and relieved of any
obligations under the Senior Credit Agreement. Upon delivery by the Company to the Trustee of an
Officers’ Certificate to the effect that such release has occurred in accordance with the
provisions of this Indenture, the Trustee shall execute any documents reasonably required in order
to evidence the release of any Guarantor from its obligations under its Subsidiary Guarantee.



     Any Guarantor not released from its obligations under its Subsidiary Guarantee shall remain
liable for the full amount of the principal of, and interest, if any, on, the Securities and for
the other obligations of any Guarantor under this Indenture as provided in this Article
Thirteen.



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ARTICLE FOURTEEN




MISCELLANEOUS




     SECTION 14.01. Trust Indenture Act of 1939. This Indenture shall be subject to the
provisions of the TIA that are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.



     SECTION 14.02. Notices. Any notice or communication shall be sufficiently given if
in writing and delivered in person, mailed by first-class mail or sent by telecopier transmission
addressed as follows:



     if to the Company and/or any Guarantor:


Dean Foods Company

2515 McKinney Avenue

Suite 1200

Dallas, Texas 75201

Telephone: (214) 303-3400

Fax: (214) 303-3499

Attention: Treasurer




     if to the Trustee:


600 North Pearl Street, Suite 420

Dallas, Texas 75201

Fax: (214) 880-8241

Attention: Corporate Trust Administration




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



     Any notice or communication mailed to a Holder shall be mailed to it at its address as it
appears on the Security Register by first-class mail and shall be sufficiently given to such Holder
if so mailed within the time prescribed. Any notice or communication shall also be so mailed to
any Person described in TIA Section 313(c), to the extent required by the TIA. Copies of any such
communication or notice to a Holder shall also be mailed to the Trustee and each Agent at the same
time.



     Failure to mail a notice or communication to a Holder as provided herein or any defect in any
such notice or communication shall not affect its sufficiency with respect to other Holders.
Except for a notice to the Trustee, which is deemed given only when received, and except as
otherwise provided in this Indenture, if a notice or communication is mailed in the manner provided
in this Section 14.02, it is duly given, whether or not the addressee receives it.



     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



48









 







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
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.



     Holders may communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture or the Securities. The Company, the Trustee, the Registrar and
anyone else shall have the protection of TIA Section 312(c).



     SECTION 14.03. Certificate and Opinion as to Conditions Precedent. Upon any request
or application by the Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:




     (i) an Officers’ Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the proposed action
have been complied with; and




     (ii) an Opinion of Counsel stating that, in the opinion of such Counsel, all such
conditions precedent, if any, have been complied with.



     SECTION 14.04. Statements Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a condition or covenant provided for in this Indenture
shall include:




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




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




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




     (iv) a statement as to whether or not, in the opinion of each such Person, such
condition or covenant has been complied with; provided, however, that, with respect to
matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate or certificates
of public officials.



     SECTION 14.05. Rules by Trustee, Paying Agent or Registrar. The Trustee may make
reasonable rules for action by or at a meeting of Holders. The Paying Agent or Registrar may make
reasonable rules for its functions.



49









 





     SECTION 14.06. Payment Date Other Than a Business Day. If any Interest Payment Date
or the Maturity Date shall not be a Business Day, then payment of principal of or interest on the
Securities of any series will be made on the next succeeding Business Day with the same force and
effect as if made on the date such payment was due, and no interest will accrue on such payment for
the period from and after such Interest Payment Date or the Maturity Date to the date of such
payment on the next succeeding Business Day.



     SECTION 14.07. Governing Law. This Indenture and the Securities shall be governed
by, and construed in accordance with, the laws of the State of New York. The Trustee, the Company,
the Guarantors and the Holders agree to submit to the jurisdiction of the courts of the State of
New York in any action or proceeding arising out of or relating to this Indenture or the
Securities.



     SECTION 14.08. No Adverse Interpretation of Other Agreements. This Indenture may not
be used to interpret another indenture, loan or debt agreement of the Company or any Subsidiary of
the Company. Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.



     SECTION 14.09. No Recourse Against Others. No recourse for the payment of the
principal of, or interest on, any of the Securities, 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
or any Guarantor contained in this Indenture or in any of the Securities, or because of the
creation of any indebtedness represented thereby, shall be had against any incorporator or against
any past, present or future partner, stockholder, other equityholder, officer, director, employee
or controlling Person, as such, of the Company or any Guarantor or of any successor Person, either
directly or through the Company or any Guarantor or any successor Person, 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.



     SECTION 14.10. Successors. All agreements of the Company in this Indenture and the
Securities shall bind its successors. All agreements of the Trustee in this Indenture shall bind
its successor. All agreements of each Guarantor in this Indenture shall bind its successors,
except as otherwise provided in Section 13.05.



     SECTION 14.11. Duplicate Originals. The parties may sign any number of copies of
this Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.



     SECTION 14.12. Separability. In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.



     SECTION 14.13. Table of Contents, Headings, Etc. The table of contents and headings
of the Articles and Sections of this Indenture have been inserted for convenience of reference



50









 







only, are not to be considered a part hereof and shall in no way modify or restrict any of the
terms and provisions hereof.



     SECTION 14.14. Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original and all of which taken together shall constitute
one and the same instrument.



     SECTION 14.15. 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 in the banking industry to resume
performance as soon as practicable under the circumstances.



51









 





SIGNATURES




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



	 	 	 	 	 
	 	DEAN FOODS COMPANY

 	 
	 	By:  	/s/ Cory M. Olson
 	 
	 	 	Name:  	Cory M. Olson 	 
	 	 	Title:  	Senior Vice President –

Investor Relations and Treasurer 	 



52









 






	 	 	 	 	 



	 	 	 
	 

	 	31 LOGISTICS, LLC
	 

	 	ALTA-DENA CERTIFIED DAIRY, LLC
	 

	 	BARBER ICE CREAM, LLC
	 

	 	BARBER MILK, LLC
	 

	 	BERKELEY FARMS, LLC
	 

	 	BROUGHTON FOODS, LLC
	 

	 	COUNTRY DELITE FARMS, LLC
	 

	 	COUNTRY FRESH, LLC
	 

	 	CREAMLAND DAIRIES, LLC
	 

	 	DAIRY FRESH, LLC
	 

	 	DEAN DAIRY HOLDINGS, LLC
	 

	 	DEAN DAIRY PRODUCTS COMPANY, LLC
	 

	 	DEAN EAST, LLC
	 

	 	DEAN EAST II, LLC
	 

	 	DEAN FOODS COMPANY OF CALIFORNIA, LLC
	 

	 	DEAN FOODS COMPANY OF INDIANA, LLC
	 

	 	DEAN FOODS NORTH CENTRAL, LLC
	 

	 	DEAN ILLINOIS DAIRIES, LLC
	 

	 	DEAN MILK COMPANY, LLC
	 

	 	DEAN PUERTO RICO HOLDINGS, LLC
	 

	 	DEAN SoCAL, LLC
	 

	 	DEAN WEST, LLC
	 

	 	DEAN WEST II, LLC
	 

	 	DIPS GP II, LLC
	 

	 	FAIRMONT DAIRY, LLC
	 

	 	GANDY’S DAIRIES, LLC
	 

	 	GARELICK FARMS, LLC
	 

	 	GOLDEN VALLEY DAIRY, LLC
	 

	 	INTERNATIONAL DAIRY HOLDINGS, LLC
	 

	 	KOHLER MIX SPECIALTIES OF MINNESOTA, LLC
	 

	 	KOHLER MIX SPECIALTIES, LLC
	 

	 	LAND-O-SUN DAIRIES, LLC
	 

	 	LOUIS TRAUTH DAIRY, LLC
	 

	 	MAYFIELD DAIRY FARMS, LLC
	 

	 	McARTHUR DAIRY, LLC
	 

	 	MELODY FARMS, L.L.C.
	 

	 	MIDWEST ICE CREAM COMPANY, LLC
	 

	 	MODEL DAIRY, LLC
	 

	 	MORNINGSTAR FOODS, LLC
	 

	 	NEW ENGLAND DAIRIES, LLC
	 

	 	PET O’FALLON, LLC






53









 






	 	 	 
	 

	 	PURITY DAIRIES, LLC
	 

	 	REITER DAIRY, LLC
	 

	 	ROBINSON DAIRY, LLC
	 

	 	SCHENKEL’S ALL-STAR DAIRY, LLC
	 

	 	SCHENKEL’S ALL-STAR DELIVERY, LLC
	 

	 	SFG MANAGEMENT LIMITED
	 

	 	LIABILITY COMPANY
	 

	 	SHENANDOAH’S PRIDE, LLC
	 

	 	SUIZA DAIRY GROUP, LLC
	 

	 	SULPHUR SPRINGS CULTURED
	 

	 	SPECIALTIES, LLC
	 

	 	SWISS II, LLC
	 

	 	SWISS PREMIUM DAIRY, LLC
	 

	 	TERRACE DAIRY, LLC
	 

	 	T.G. LEE FOODS, LLC
	 

	 	VERIFINE DAIRY PRODUCTS OF SHEBOYGAN, LLC






	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Cory M. Olson
	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Cory M. Olson	 	 
	 

	 	 	 	Vice President and Treasurer	 	 






54









 






	 	 	 	 	 	 	 
	 	 	DEAN INTERNATIONAL HOLDING COMPANY	 	 
	 	 	DEAN MANAGEMENT CORPORATION	 	 
	 	 	DEAN TRANSPORTATION, INC.	 	 
	 	 	DIPS GP, INC.	 	 
	 	 	ELGIN BLENDERS, INCORPORATED	 	 
	 	 	HORIZON ORGANIC DAIRY, IDAHO FARM, INC.	 	 
	 	 	HORIZON ORGANIC DAIRY, MARYLAND FARM, INC.	 	 
	 	 	HORIZON ORGANIC HOLDING CORPORATION	 	 
	 	 	HORIZON ORGANIC INTERNATIONAL, INC.	 	 
	 	 	LIBERTY DAIRY COMPANY	 	 
	 	 	MARATHON DAIRY INVESTMENT CORP.	 	 
	 	 	MEADOW BROOK DAIRY COMPANY	 	 
	 	 	TUSCAN/LEHIGH DAIRIES, INC.	 	 
	 	 	WHITE WAVE, INC.	 	 
	 	 	WHITEWAVE FOODS COMPANY	 	 
	 	 	WHITEWAVE SERVICES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Cory M. Olson 
	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Cory M. Olson	 	 
	 

	 	 	 	Vice President and Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	DEAN HOLDING COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Cory M. Olson	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Cory. M. Olson	 	 
	 

	 	 	 	Senior Vice President	 	 
	 

	 	 	 	Investor Relations and Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	DEAN INTELLECTUAL PROPERTY SERVICES II, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	BY:
	 	DIPS GP II, LLC, its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Cory M. Olson	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Cory M. Olson	 	 
	 

	 	 	 	Vice President and Treasurer	 	 






55









 






	 	 	 	 	 	 	 
	 	 	DEAN INTELLECTUAL PROPERTY SERVICES, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	BY:
	 	DIPS GP, INC., its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Cory M. Olson	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Cory M. Olson	 	 
	 

	 	 	 	Vice President and Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	DEAN LEGACY BRANDS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Cory M. Olson	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Cory M. Olson	 	 
	 

	 	 	 	Vice President and Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	SOUTHERN FOODS GROUP, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	BY:
	 	SFG MANAGEMENT LIMITED
 LIABILITY COMPANY,
its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 /s/ Cory M. Olson	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Cory M. Olson	 	 
	 

	 	 	 	Vice President and Treasurer	 	 






56









 






	 	 	 	 	 	 	 
	 	 	DIPS LIMITED PARTNER II	 	 
	 	 	DIPS LIMITED PARTNER	 	 
	 	 	SOUTHERN FOODS HOLDINGS	 	 
	 
	 	 	 	 	 	 
	 

	 	BY:
	 	THE CAPITAL TRUST COMPANY OF DELAWARE, as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Beth L. Peoples	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Beth L. Peoples	 	 
	 

	 	 	 	Attorney In Fact	 	 






57









 






	 	 	 	 	 
	 	THE BANK OF NEW YORK TRUST COMPANY, N.A.

 	 
	 	By:  	/s/ John C. Stohlmann
 	 
	 	 	Name:  	John C. Stohlmann 	 
	 	 	Title:  	Vice President 	 
	 




58









 







EXHIBIT A




FORM OF SECURITY





	 	 	[Each Global Security shall also bear the following legend:
	 
	 	 	UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
	 
	 	 	THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE AND IS REGISTERED IN
THE NAME OF CEDE & CO. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFERS OF THIS GLOBAL SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN NOMINEES OF CEDE & CO. OR A SUCCESSOR
THEREOF OR SUCH SUCCESSOR’S NOMINEE.]
	 
	 	 	[If the Security is an Original Issue Discount Security, insert the following:
	 
	 	 	FOR PURPOSES OF SECTION 1272 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (“THE CODE”),
THE AMOUNT OF ORIGINAL ISSUE DISCOUNT (AS DEFINED IN SECTION 1273(A)(1) OF THE CODE AND
TREASURY REGULATION SECTION 1.1273-1(A)) WITH RESPECT TO THIS SECURITY IS                     , THE ISSUE
DATE (AS DEFINED IN SECTION 1275(A)(2) OF THE CODE AND TREASURY REGULATION SECTION
1.1273-2(A)(2)) OF THIS SECURITY IS                     , THE ISSUE PRICE (AS DEFINED IN SECTION 1273(B)
OF THE CODE AND TREASURY REGULATION SECTION 1.1273-2(A)) OF THIS SECURITY IS                     , AND
THE YIELD TO MATURITY (AS DEFINED IN TREASURY REGULATION SECTION 1.1272-1(B)) OF THIS
SECURITY IS                     .]




A-1









 











[FACE OF SECURITY]




DEAN FOODS COMPANY




[Title of Security]




[CUSIP] [Common Code] [ISIN] [                    ]




 




			
	No. ___
	 	Principal Amount $                    






          Dean Foods Company, a Delaware corporation (the “Company,” which term includes any
successor under the Indenture hereinafter referred to), for value received, promises to pay to
                    , or its registered assigns, the principal sum of                      [dollars]
([$]                    )
on                     , ___ [If the Security is to bear interest prior to maturity,
insert—, and to pay interest thereon from                      or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semiannually on                      and                      in
each year, commencing
                    , ___ at the rate of ___% per annum, until the principal hereof is
paid or made available for payment [If applicable insert—, and (to the extent that the payment of
such interest shall be legally enforceable) at the rate of ___% per annum on any overdue principal
and on any overdue installment of interest]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the
Holder in whose name this Security (or one or more predecessor Securities) is registered at the
close of business on the Record Date for such interest, which shall be the                      or                     
(whether or not a Business Day), as the case may be, next preceding such Interest Payment Date.].




          [If the Security is not to bear interest prior to maturity, insert—The principal of
this Security shall not bear interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and, in such case, the overdue principal of
this Security shall bear interest at the rate of      % per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of such default in
payment to the date payment of such principal has been made or duly provided for. Interest on any
overdue principal shall be payable on demand. Any such interest on any overdue principal that is
not so paid on demand shall bear interest at the rate of ___% per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly provided for, and
such interest shall also be payable on demand.]




          The Company will pay principal [and, as provided above, interest] in money of the [United
States] that at the time of payment is legal tender for payment of public and private debts.
However, the Company may pay principal and interest by its check payable in such money. It may
mail an interest check to a Holder’s registered address (as reflected in the Security Register).
If any Interest Payment Date or the Maturity Date falls on a day that is not a Business Day, the
payment of principal and interest will be made on the next succeeding Business Day as if made on
the date such payment was due, and no interest will accrue on
such


A-2









 






payment for the period from and after the Interest Payment Date or Maturity Date to the date
of such payment on the next succeeding Business Day.




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




          Additional provisions of this Security are set forth on the other side of this Security.




A-3









 








          IN WITNESS WHEREOF, the Company has caused this Security to be signed manually or by facsimile
by its duly authorized officers.




	 	 	 	 	 	 	 
	 	 	DEAN FOODS COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






TRUSTEE’S CERTIFICATE OF AUTHENTICATION




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




	 	 	 	 	 	 	 
	Date: ___, ___
	 	 	 	 	 	 
	 	 	The Bank of New York Trust Company, N.A., as

Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	     Authorized Signatory	 	 






A-4









 






[REVERSE SIDE OF SECURITY]




DEAN FOODS COMPANY




[Title of Security]




1. Indenture.




     This Security is one of a duly authorized issue of debentures, notes or other evidence of
indebtedness (hereinafter called the “Securities”) of the Company of the series hereinafter
specified, which series is initially limited in aggregate principal amount to [$]                    , all
of such Securities issued and to be issued under an Indenture dated as of                     , 2006 (the
“Indenture”) among the Company, the guarantors party thereto (the “Guarantors”) and
The Bank of New York Trust Company, N.A., a national banking association, as trustee (the
“Trustee”). Capitalized terms herein are used as defined in the Indenture unless otherwise
indicated. The terms of the Securities include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act. The Securities are subject to all such
terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of all
such terms. To the extent permitted by applicable law, in the event of any inconsistency between
the terms of this Security and the terms of the Indenture, the terms of the Indenture shall
control.



     As provided in the Indenture, the Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may mature at different
times, may bear interest, if any, at different rates, may be subject to different redemption
provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may
be subject to different covenants and Events of Default and may otherwise vary as in the Indenture
provided or permitted. This Security is one of a series of Securities designated pursuant thereto
as                                         .



     The Securities are general unsecured obligations of the Company.



     The Company may, subject to Article Four of the Indenture and applicable law, issue additional
Securities of any series under the Indenture.



2. Paying Agent, Calculation Agent and Registrar.




     Initially, the Trustee will act as authenticating agent, Paying Agent and Registrar. The
Company may change any authenticating agent, Paying Agent or Registrar without notice. The
Company, any Subsidiary or any Affiliate of any of them may act as Paying Agent, Registrar or
co-Registrar.



3. Redemption.




     [The Securities of this series are not redeemable prior to the Maturity Date.] [The Securities
of this series may be redeemed at any time [on or after ___, ___], as a whole or in part, at
the option of the Company, upon mailing notice of such redemption not less than 30 and not more
than 60 days to the Holders thereof, at a redemption price equal to                                         .]



A-5









 





4. Guarantees.




     The Guarantors have unconditionally guaranteed the due and punctual payment of the principal,
and interest, if any, on, the Securities of this series when and as the same shall become due and
payable, whether at Stated Maturity, upon any redemption, by declaration or otherwise in the manner
and to the extent set forth in the Indenture. The Subsidiary Guarantees will irrevocably terminate
upon the terms and conditions set forth in the Indenture.



5. Denominations; Transfer; Exchange.




     The Securities of this series are in registered form without coupons in denominations of
[$1,000] of principal amount and multiples of [$1,000] in excess thereof. A Holder may register
the transfer or exchange of Securities in accordance with the Indenture. The Registrar may require
a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture.



6. Persons Deemed Owners.




     A Holder shall be treated as the owner of a Security for all purposes.



7. Unclaimed Money.




     If money for the payment of principal or interest remains unclaimed for two years, the Trustee
and the Paying Agent will pay the money back to the Company at its request. After that, Holders
entitled to the money must look to the Company for payment, unless an abandoned property law
designates another Person, and all liability of the Trustee and such Paying Agent with respect to
such money shall cease. In no event will interest accrue on such unclaimed monies.



8. Discharge Prior to Maturity.




     In accordance with the terms of the Indenture, if the Company deposits with the Trustee money
or Government Obligations sufficient to pay the then outstanding principal of and accrued and
unpaid interest on the Securities of this series (a) the Company will be discharged from the
Securities of this series and the Indenture with respect to the Securities of this series, except
in certain circumstances for certain provisions thereof, and (b) the Company will be discharged
from certain covenants set forth in the Indenture.



9. Amendment; Supplement; Waiver.




     Subject to certain exceptions, (a) the Indenture or the Securities of this series may be
amended or supplemented with the consent of the Holders of at least a majority in principal amount
of the Securities of this series then outstanding and (b) any past or existing Default or Event of
Default or compliance with any provision may be waived with the consent of the Holders of at least
a majority in principal amount of the Securities of this series then outstanding. Without notice
to or the consent of any Holder, the parties thereto may amend or supplement the Indenture or the
Securities of this series to, among other things, cure any ambiguity, defect or



A-6









 




inconsistency and make any change that does not materially and adversely affect the rights of
any Holder.




10. Restrictive Covenants.




     The Indenture imposes certain limitations on the ability of the Company, among other things,
to (a) create liens upon any principal property, (b) engage in sale and leaseback transactions or
(c) merge, consolidate, transfer, lease or otherwise dispose of substantially all of its assets.
On or before a date not more than 120 days after the end of each fiscal year, the Company shall
deliver to the Trustee an Officers’ Certificate stating whether or not the signers thereof know of
any Default or Event of Default under such restrictive covenants.



11. Successor Persons.




     When a successor Person or other entity assumes all the obligations of its predecessor under
the Securities and the Indenture, the predecessor Person will be released from those obligations.



12. Defaults and Remedies.




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



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



13. Defeasance.




     The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of
the Company on this security and (b) certain restrictive covenants and the related Events of
Default, upon compliance by the Company with certain conditions set forth therein, which provisions
apply to this Security



14. Trustee Dealings with the Company.




     The Trustee under the Indenture, in its individual or any other capacity, may make loans to,
accept deposits from and perform services for the Company, any Guarantor or their respective
Affiliates and may otherwise deal with the Company, any Guarantor or their respective Affiliates as
if it were not the Trustee.



A-7









 





15. No Recourse Against Others.




     No incorporator or any past, present or future partner, stockholder, other equity holder,
officer, director, employee or controlling Person, as such, of the Company or any Guarantor or of
any successor Person shall have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the issuance of the
Securities.



16. Authentication.




     This Security shall not be valid until the Trustee or authenticating agent signs the
certificate of authentication on the other side of this Security.



17. Abbreviations.




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



18. Governing Law.




     This Security shall be governed by, and construed in accordance with, the laws of the State of
New York. The Trustee, the Company, each of the Guarantors and the Holders agree to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding arising out of or
relating to the Securities.



     The Company will furnish a copy of the Indenture to any Holder upon written request and
without charge. Requests may be made to Dean Foods Company, 2515 McKinney Avenue, Suite 1200,
Dallas, Texas 75201; Attention: Treasurer.



A-8









 





ASSIGNMENT FORM




	 	 	 
	I or we assign and transfer this Security to:
	 	 
	 

	 	 




Insert social security or other identifying number of assignee



 



 





Print or type name, address and zip code of assignee





 






 




 





	 	 	 	 	 
	and irrevocably appoint

	 	 	 	, as agent, to transfer this Security
	 

	 	 

	 	 





on the books of the Company.



The agent may substitute another to act for him.




	 	 	 	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Signed	 	 
	 

	 	 	 	 	 	 	 	 
	 

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





Signature Guarantee*:                                         











 




			
	*	 	The Holder’s signature must be guaranteed by a member firm of a registered national securities
exchange or of the National Association of Securities Dealers, Inc., a commercial bank or trust
company having an office or correspondent in the United States or an “eligible guarantor
institution” as defined by Rule l7Ad-15 under the Exchange Act.




A-9









 










EXHIBIT B




Form of Notation of Subsidiary Guarantee




     For value received, each Guarantor (which term includes any successor Person under the
Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture dated as of ___, 2006 (the
“Indenture”) by and among the Company, the Guarantors listed on Schedule I thereto and
The Bank of New York Trust Company, N.A., a national banking association, as trustee (the
“Trustee”), (a) the due and punctual payment of the principal of, and interest, if any, on,
the Securities when due, whether at Stated Maturity, by acceleration, redemption, purchase or
otherwise, and (b) the full and punctual performance of all other obligations of the Company to the
Holders or the Trustee under the Indenture and the Securities within the grace period set forth in
Section 6.01(c) of the Indenture, if applicable. The obligations of the Guarantors to the Holders
of Securities and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are
expressly set forth in Article Thirteen of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Subsidiary Guarantee, including provisions relating to the
release or termination of the Subsidiary Guarantee(s). Each Holder of Securities, by accepting the
same, agrees to and shall be bound by such provisions.



	 	 	 	 	 	 	 
	 	 	[GUARANTOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	          Name:	 	 
	 

	 	 	 	          Title:	 	 
	Dated: ___
	 	 	 	 	 	 






B-1









 






SCHEDULE I




SCHEDULE OF GUARANTORS




31 Logistics, LLC

Alta-Dena Certified Dairy, LLC

Barber Ice Cream, LLC

Barber Milk, LLC

Berkeley Farms, LLC

Broughton Foods, LLC

Country Delite Farms, LLC

Country Fresh, LLC

Creamland Dairies, LLC

Dairy Fresh, LLC

Dean Dairy Holdings, LLC

Dean Dairy Products Company, LLC

Dean East, LLC

Dean East II, LLC

Dean Foods Company of California, LLC

Dean Foods Company of Indiana, LLC

Dean Foods North Central, LLC

Dean Holding Company

Dean Illinois Dairies, LLC

Dean Intellectual Property Services II, L.P.

Dean Intellectual Property Services, L.P.

Dean International Holding Company

Dean Legacy Brands, Inc.

Dean Management Corporation

Dean Milk Company, LLC

Dean Puerto Rico Holdings, LLC

Dean SoCal, LLC

Dean Transportation, Inc.

Dean West, LLC

Dean West II, LLC

DIPS GP II, LLC

DIP GP, Inc.

DIPS Limited Partner II

DIPS Limited Partner

Elgin Blenders, Incorporated

Fairmont Dairy, LLC

Gandy’s Dairies, LLC

Garelick Farms, LLC

Golden Valley Dairy, LLC

Horizon Organic Dairy, Idaho Farm, Inc.

Horizon Organic Dairy, Maryland Farm, Inc.

Horizon Organic Holding Corporation

Horizon Organic International, Inc.

International Dairy Holdings, LLC




B-2









 





Kohler Mix Specialties of Minnesota, LLC

Kohler Mix Specialties, LLC

Land-O-Sun Dairies, LLC

Liberty Dairy Company

Louis Trauth Dairy, LLC

Marathon Dairy Investment Corp.

Mayfield Dairy Farms, LLC

McArthur Dairy, LLC

Meadow Brook Dairy Company

Melody Farms, L.L.C.

Midwest Ice Cream Company, LLC

Model Dairy, LLC

Morningstar Foods, LLC

New England Dairies, LLC

Pet O’Fallon, LLC

Purity Dairies, LLC

Reiter Dairy, LLC

Robinson Dairy, LLC

Schenkel’s All-Star Dairy, LLC

Schenkel’s All-Star Delivery, LLC

SFG Management Limited Liability Company

Shenandoah’s Pride, LLC

Southern Foods Group, L.P.

Southern Foods Holdings

Suiza Dairy Group, LLC

Sulphur Springs Cultured Specialties, LLC

Swiss II, LLC

Swiss Premium Dairy, LLC

T.G. Lee Foods, LLC

Terrace Dairy, LLC

Tuscan/Lehigh Dairies, Inc.

Verifine Dairy Products of Sheboygan, LLC

White Wave, Inc.

WhiteWave Foods Company

WhiteWave Services, Inc.





B-3