EX-4(D)






Exhibit 4(d)


 

 






H.J. HEINZ COMPANY




 



INDENTURE




Dated as of July 15, 2008

 






Union Bank of California, N.A.,

Trustee




 

 







 









 








TABLE OF CONTENTS



 




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE 1
	 	 	 	 
	Definitions and Other Provisions of General Application
	 	 	 	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. Compliance Certificates and Opinions
	 	 	9	 
	Section 1.03. Form of Documents Delivered to Trustee
	 	 	9	 
	Section 1.04. Acts of Holders
	 	 	10	 
	Section 1.05. Notices, Etc., to Trustee and Company
	 	 	12	 
	Section 1.06. Notice to Holders; Waiver
	 	 	13	 
	Section 1.07. Language of Notices, Etc
	 	 	13	 
	Section 1.08. Conflict With Trust Indenture Act
	 	 	13	 
	Section 1.09. Effect of Headings and Table of Contents
	 	 	14	 
	Section 1.10. Successors and Assigns
	 	 	14	 
	Section 1.11. Separability Clause
	 	 	14	 
	Section 1.12. Benefits of Indenture
	 	 	14	 
	Section 1.13. Governing Law
	 	 	14	 
	Section 1.14. Legal Holidays
	 	 	14	 
	Section 1.15. Computations
	 	 	14	 
	 
	 	 	 	 
	ARTICLE 2
	 	 	 	 
	Security Forms
	 	 	 	 
	 
	 	 	 	 
	Section 2.01. Forms Generally
	 	 	15	 
	Section 2.02. Form of Trustee’s Certificate of Authentication
	 	 	16	 
	Section 2.03. Form of Legend for Global Securities
	 	 	16	 
	 
	 	 	 	 
	ARTICLE 3
	 	 	 	 
	The Securities
	 	 	 	 
	 
	 	 	 	 
	Section 3.01. Amount Unlimited; Issuable in Series
	 	 	17	 
	Section 3.02. Denominations
	 	 	19	 
	Section 3.03. Execution, Authentication, Delivery and Dating
	 	 	19	 
	Section 3.04. Temporary Securities
	 	 	21	 
	Section 3.05. Registration, Registration of Transfer and Exchange
	 	 	22	 
	Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities
	 	 	24	 
	Section 3.07. Payment of Interest; Interest Rights Preserved
	 	 	25	 
	Section 3.08. Persons Deemed Owners
	 	 	26	 
	Section 3.09. Cancellation
	 	 	26	 
	Section 3.10. Computation of Interest
	 	 	27	 
	Section 3.11. CUSIP Numbers
	 	 	27	 






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	 	 	Page	 
	 
	 
	ARTICLE 4
	 	 	 	 
	Satisfaction and Discharge
	 	 	 	 
	 
	 	 	 	 
	Section 4.01. Satisfaction and Discharge of Indenture
	 	 	27	 
	Section 4.02. Application of Trust Money
	 	 	28	 
	Section 4.03. Discharge and Defeasance of Securities of Any Series
	 	 	29	 
	Section 4.04. Reinstatement
	 	 	31	 
	 
	 	 	 	 
	ARTICLE 5
	 	 	 	 
	Remedies
	 	 	 	 
	 
	 	 	 	 
	Section 5.01. Events of Default
	 	 	31	 
	Section 5.02. Acceleration of Maturity; Rescission and Annulment
	 	 	32	 
	Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	33	 
	Section 5.04. Trustee May Enforce Claims
	 	 	34	 
	Section 5.05. Trustee May Enforce Claims Without Possession of Securities
	 	 	35	 
	Section 5.06. Application of Money Collected
	 	 	35	 
	Section 5.07. Limitation on Suits
	 	 	35	 
	Section 5.08. Unconditional Rights of Holders to Receive Principal, Premium and Interest
	 	 	36	 
	Section 5.09. Restoration of Rights and Remedies
	 	 	36	 
	Section 5.10. Rights and Remedies Cumulative
	 	 	37	 
	Section 5.11. Delay or Omission Not Waiver
	 	 	37	 
	Section 5.12. Control by Holders
	 	 	37	 
	Section 5.13. Waiver of Past Defaults
	 	 	37	 
	Section 5.14. Undertaking for Costs
	 	 	38	 
	Section 5.15. Waiver of Stay or Extension Laws
	 	 	38	 
	 
	 	 	 	 
	ARTICLE 6
	 	 	 	 
	The Trustee
	 	 	 	 
	 
	 	 	 	 
	Section 6.01. Certain Duties and Responsibilities
	 	 	38	 
	Section 6.02. Notice of Defaults
	 	 	40	 
	Section 6.03. Certain Rights of Trustee
	 	 	40	 
	Section 6.04. Not Responsible for Recitals or Issuance of Securities
	 	 	42	 
	Section 6.05. May Hold Securities
	 	 	42	 
	Section 6.06. Money Held in Trust
	 	 	42	 
	Section 6.07. Compensation and Reimbursement
	 	 	42	 
	Section 6.08. Disqualification; Conflicting Interests
	 	 	43	 
	Section 6.09. Corporate Trustee Required; Eligibility
	 	 	43	 
	Section 6.10. Resignation and Removal; Appointment of a Successor
	 	 	43	 
	Section 6.11. Acceptance of Appointment by Successor
	 	 	45	 
	Section 6.12. Merger, Conversion, Consolidation or Succession to Business
	 	 	46	 
	Section 6.13. Preferential Collection of Claims Against Company
	 	 	47	 
	Section 6.14. Appointment of Authenticating Agent
	 	 	47	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE 7
	 	 	 	 
	Holders’ Lists and Reports by Trustee and Company
	 	 	 	 
	 
	 	 	 	 
	Section 7.01. Company to Furnish Trustee Names and Addresses of Holders of Securities
	 	 	48	 
	Section 7.02. Preservation of Information; Communications to Holders
	 	 	49	 
	Section 7.03. Reports by the Trustee
	 	 	49	 
	Section 7.04. Reports by Company
	 	 	50	 
	 
	 	 	 	 
	ARTICLE 8
	 	 	 	 
	Consolidation, Merger, Conveyance, Transfer or Lease
	 	 	 	 
	 
	 	 	 	 
	Section 8.01. Company May Consolidate, Etc., Only on Certain Terms
	 	 	51	 
	Section 8.02. Successor Substituted
	 	 	51	 
	 
	 	 	 	 
	ARTICLE 9
	 	 	 	 
	Supplemental Indentures
	 	 	 	 
	 
	 	 	 	 
	Section 9.01. Supplemental Indentures Without Consent of Holders
	 	 	52	 
	Section 9.02. Supplemental Indentures With Consent of Holders
	 	 	53	 
	Section 9.03. Execution of Supplemental Indentures
	 	 	54	 
	Section 9.04. Effect of Supplemental Indentures
	 	 	54	 
	Section 9.05. Conformity With Trust Indenture Act
	 	 	54	 
	Section 9.06. Reference in Securities to Supplemental Indentures
	 	 	55	 
	 
	 	 	 	 
	ARTICLE 10
	 	 	 	 
	Covenants
	 	 	 	 
	 
	 	 	 	 
	Section 10.01. Payment of Principal, Premium and Interest
	 	 	55	 
	Section 10.02. Maintenance of Office or Agency
	 	 	55	 
	Section 10.03. Money for Security Payments to Be Held in Trust
	 	 	56	 
	Section 10.04. Restrictions on Secured Debt
	 	 	57	 
	Section 10.05. Statement as to Compliance
	 	 	59	 
	Section 10.06. Corporate Existence
	 	 	59	 
	Section 10.07. Waiver of Certain Covenants
	 	 	59	 
	Section 10.08. Additional Amounts
	 	 	59	 
	 
	 	 	 	 
	ARTICLE 11
	 	 	 	 
	Redemption of Securities
	 	 	 	 
	 
	 	 	 	 
	Section 11.01. Applicability of This Article
	 	 	60	 
	Section 11.02. Election to Redeem; Notice to Trustee
	 	 	60	 
	Section 11.03. Selection by Trustee of Securities to Be Redeemed
	 	 	61	 
	Section 11.04. Notice of Redemption
	 	 	61	 
	Section 11.05. Deposit of Redemption Price
	 	 	62	 
	Section 11.06. Securities Payable on Redemption Date
	 	 	62	 
	Section 11.07. Securities Redeemed in Part
	 	 	63	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	 
	 
	ARTICLE 12
	 	 	 	 
	Sinking Funds
	 	 	 	 
	 
	 	 	 	 
	Section 12.01. Applicability of Article
	 	 	63	 
	Section 12.02. Satisfaction of Sinking Fund Payments With Securities
	 	 	63	 
	Section 12.03. Redemption of Securities for Sinking Fund
	 	 	64	 
	 
	 	 	 	 
	ARTICLE 13
	 	 	 	 
	Meetings of the Holders of Securities
	 	 	 	 
	 
	 	 	 	 
	Section 13.01. Purposes for Which Meetings May Be Called
	 	 	64	 
	Section 13.02. Call, Notice and Place of Meetings
	 	 	64	 
	Section 13.03. Persons Entitled to Vote at Meetings
	 	 	65	 
	Section 13.04. Quorum; Action
	 	 	65	 
	Section 13.05. Determination of Voting Rights; Conduct and Adjournment of
Meeting
	 	 	66	 
	Section 13.06. Counting Votes and Recording Action of Meetings
	 	 	67	 
	 
	 	 	 	 
	Exhibit A. Form of Security
	 	 	 	 







iv











 





     INDENTURE, dated as of July 15, 2008, from H.J. HEINZ COMPANY, a Pennsylvania corporation
(hereinafter called the “Company”) having its principal office at 1 PPG Place, Pittsburgh,
Pennsylvania 15222, to Union Bank of California, N.A., a national banking association existing
under the laws of the United States of America (hereinafter called the “Trustee”).



RECITALS OF THE COMPANY




     The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured debentures, notes or other evidences of
indebtedness (hereinafter called the “Securities”), to be issued in one or more series as in this
Indenture provided. All things necessary to make this Indenture a valid agreement of the Company,
in accordance with its terms, have been done.



     NOW, THEREFORE, THIS INDENTURE 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 of the Securities or of a series thereof, as follows:



ARTICLE 1

Definitions and Other Provisions of General Application




     Section 1.01. Definitions. For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:



     (a) the terms defined in this Article have the meanings assigned to them in this Article, and
include the plural as well as the singular;



     (b) all other terms used herein which are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to them therein;



     (c) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles in the United States, and, except as
otherwise herein expressly provided, the term “generally accepted accounting principles” with
respect to any computation required or permitted hereunder shall mean such accounting principles
which are generally accepted in the United States at the date or time of such computation;



     (d) unless the context otherwise requires, any reference to an “Article” or a “Section” refers
to an Article or Section, as the case may be, of this Indenture; and



 









 





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



     Certain terms, used principally in Article Six, are defined in that Article.



     “Act”, when used with respect to any Holder, has the meaning specified in Section 1.04.



     “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.



     “Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 6.14 to
act on behalf of the Trustee to authenticate securities.



     “Authorized Officer”, when used with respect to the Company, means the Chairman of the Board,
the Vice Chairman of the Board, the President, a Vice President and Chief Executive Officer, the
chief financial officer, the chief legal officer, the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company.



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



     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by 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”, when used with respect to any Place of Payment or any other particular
location referred to in the Indenture or in the Securities, means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in that Place of Payment or
other location are authorized or obligated by law or executive order to close, unless otherwise
specified for a particular series of Securities.



     “Capital Stock”, as applied to the stock of any corporation, means the capital stock of every
class whether now or hereafter authorized, regardless of whether such capital stock shall be
limited to a fixed sum or percentage with respect to the rights of the holders thereof to
participate in dividends and in the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of such corporation.



2









 





     “Commission” means the Securities and Exchange commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, or if at any time after the execution of this
instrument such Commission is not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such time.



     “Company” means the Person named as the “Company” in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Company” shall mean such successor Person.



     “Company Request” and “Company Order” mean, respectively, a written request or order signed in
the name of the Company by one or more Authorized Officers of the Company, and delivered to the
Trustee.



     “Consolidated Net Assets” means total assets after deducting therefrom all current liabilities
as set forth on the most recent balance sheet of the Company and its consolidated subsidiaries and
computed in accordance with generally accepted accounting principles.



     “Corporate Trust Office” means the principal corporate trust office of the Trustee at which,
at any particular time, its corporate trust business shall be administered, which office at the
date hereof is located at 551 Madison Avenue, 11th Floor, New York, NY 10022, Attn:
Corporate Trust Dept.



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



     “Default Interest” has the meaning specified in Section 3.07.



     “Depositary” means the Person that is designated by the Company in Article 3 to act as
depositary for any series of Securities with respect to such series (or any successor to such
depositary).



     “Dollar or $” means a dollar or other equivalent unit in such coin or currency of the United
States as at the time shall be legal tender for the payment of public and private debts.



     “DTC” means The Depository Trust Company or a nominee thereof or successor thereto.



     “Event of Default” has the meaning specified in Section 5.01.



     “Exchange Act” means the United States Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.



     “Funded Debt” means (i) all indebtedness for money borrowed having a maturity of more than 12
months from the date as of which the determination is



3









 







made or having a maturity of 12 months or less but by its terms being renewable or extendible
beyond 12 months from such date at the option of the borrower and (ii) rental obligations payable
more than 12 months from such date under leases which are capitalized in accordance with generally
accepted accounting principles (such rental obligations to be included as Funded Debt at the amount
so capitalized and to be included for the purposes of the definition of Consolidated Net Assets
both as an asset and as Funded Debt at the amount so capitalized).



     “Global Security” means a Security that evidences all or part of a series of Securities issued
to the Depositary or its nominee for such series, and registered in the name of such Depositary or
its nominee and bearing the legend set forth in Section 2.03.



     “Holder” means the Person in whose name the Security is registered in the Security Register.



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



     “Interest”, when used with respect to an original Issue Discount Security which by its terms
bears interest only after Maturity, means interest payable after Maturity.



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



     “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the date hereof
and from time to time hereafter, and any successor statute.



     “Maturity”, 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.



     “Notice of Default” means a written notice of the kind specified in Section 5.01.



     “Officer’s Certificate” means a certificate signed by one or more officers of the Company and
delivered to the Trustee.



     “Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel
to the Company or may be other counsel satisfactory to the Trustee.



4









 





     “Original Issue Date” means the date of issuance specified as such in each Security.



     “Original Issue Discount Security” means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the Stated
Maturity thereof pursuant to Section 5.02.



     “Outstanding”, when used with respect to Securities of all Series or Securities of any series
means, as of the date of determination, all such Securities theretofore authenticated and delivered
under this Indenture, except:




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




     (ii) Such Securities or portions thereof for whose payment or redemption (A) money in
the necessary amount has been theretofore deposited in trust with the Trustee or any
Paying Agent (other than the Company) or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of such Securities and
any coupons appertaining thereto or (B) U.S. Government Obligations as contemplated by
Section 4.03 in the necessary amount have been theretofore deposited in satisfaction of
the requirements of Section 4.03 with the Trustee (or another trustee satisfying the
requirements of Section 6.09) in trust for the Holders of such Securities and any coupons
thereto appertaining in accordance with Section 4.02; provided that, if such Securities
are to be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made; and




     (iii) such Securities which have been paid pursuant to Section 3.06 or in exchange
for or in lieu of which other Securities have been authenticated and delivered pursuant to
this Indenture other than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are held by a
protected purchaser in whose hands such Securities are valid obligations of the Company;


provided, however, that in determining whether the Holders of the requisite principal amount of
such Outstanding Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder or whether a quorum is present at a meeting of Holders of such
Securities, (i) the principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal thereof that would be due and payable as of the
date of such determination upon acceleration of the Stated Maturity thereof pursuant to Section
5.02, (ii) the principal amount of Securities denominated in more than one currency (including
composite currencies) shall be the Dollar equivalent (determined, unless otherwise provided as
contemplated by Section




5









 







3.01, on the basis of the spot rate of exchange, on the date of such determination, for any
currency other than Dollars as determined by the Company or by an authorized exchange rate agent
and evidenced to the Trustee by an Officer’s Certificate) of the principal amount (or, in the case
of an Original Issue Discount Security, the Dollar equivalent on the date of such determination of
the amount determined as provided in (i) above) of such Securities, and (iii) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether
the Trustee shall be protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, or upon any such determination as to the presence of a quorum only
Securities which a Responsible Officer of the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have 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 such other obligor. For purposes of clause (ii) above, an
exchange rate agent may be authorized in advance or from time to time by the Company, and may be
the Trustee. Any such determination by the Company or by any such exchange rate agent shall be
conclusive and binding on all Holders of Securities and related coupons, if any, and the Trustee,
and neither the Company nor such exchange rate agent shall be liable therefor in the absence of bad
faith.




     “Paying Agent” means the Trustee or any Person (including the Company) authorized by the
Company to pay the principal of (and premium, if any) or interest, if any, on any securities on
behalf of the Company.



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



     “Place of Payment”, when used with respect to any series of Securities or any coupons, means
the place or places where, subject to the provisions of Section 10.02, the principal of (and
premium, if any) and interest, if any, on the Securities of that series are payable as specified as
contemplated by Section 3.01.



     “Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security or the Security to which the mutilated,
destroyed, lost or stolen coupon appertains, as the case may be, shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security or the Security to which the
mutilated, destroyed, lost or stolen coupon appertains, as the case may be.



6









 





     “Principal Property” means any manufacturing or processing plant or warehouse owned at the
date hereof or hereafter acquired by the Company or any Restricted Subsidiary of the Company which
is located within the United States and the gross book value (including related land and
improvements thereon and all machinery and equipment included therein without deduction of any
depreciation reserves) of which on the date as of which the determination is being made exceeds 2%
of Consolidated Net Assets, other than (i) any such manufacturing or processing plant or warehouse
or any portion thereof (together with the land on which it is erected and fixtures comprising a
part thereof) which is financed by industrial development bonds which are tax exempt pursuant to
Section 1.03 of the Internal Revenue Code (or which receive similar tax treatment under any
subsequent amendments thereto or any successor laws thereof or under any other similar statute of
the United States), (ii) any property which in the opinion of the Board of Directors is not of
material importance to the total business conducted by the Company as an entirety or (iii) any
portion of a particular property which is similarly found not to be of material importance to the
use or operation of such property.



     “Redemption Date”, when used with respect to any Security to be redeemed, means the date fixed
for such redemption by or pursuant to this Indenture.



     “Redemption Price”, when used with respect to any Security to be redeemed, means the price at
which it is to be redeemed pursuant to this Indenture (including any premium with respect thereto).



     “Regular Record Date” for the interest payable on any Interest Payment Date on the Securities
of any series means the date specified for that purpose as contemplated by Section 3.01.



     “Responsible Officer”, when used with respect to the Trustee, means any officer within the
Corporate Trust Department (or any successor group of the Trustee) to whom any corporate trust
matter is referred having direct responsibility for the administration of this Indenture, and also
means, any other officer because of his knowledge of and familiarity with the particular subject.



     “Restricted Subsidiary” means a Subsidiary of the Company (i) substantially all the property
of which is located, or substantially all the business of which is carried on, within the United
States and (ii) which owns a Principal Property.



     “Securities” has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture substantially in
the form for Securities set forth in Exhibit A or established pursuant to Section 2.01.



     “Securities Act” means the United States Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.



7









 





     “Security Register” and “Security Registrar” have the respective meanings specified in Section
3.05.



     “Special Record Date” for the payment of any Defaulted Interest on the Securities of any
series means a date fixed by the Trustee pursuant to Section 3.07.



     “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 or a coupon representing
such installment of interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.



     “Subsidiary” means any corporation more than 50% of the outstanding Voting Stock of which at
the time of determination is owned, directly or indirectly, by the Company and/or one or more other
Subsidiaries.



     “Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument
until a successor trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to
the Securities of any series shall mean the Trustee with respect to Securities of that series.



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended and as in force at the
date as of which this instrument was executed, except as provided in Section 9.05; provided,
however, that in the event that the Trust Indenture Act of 1939 is amended after such date, “Trust
Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939
as so amended.



     “United States” means the United States of America (including the States and the District of
Columbia), its territories and possessions and other areas subject to its jurisdiction.



     “U.S. Government Obligations” means securities which are (i) direct obligations of the United
States of America for the payment of which its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not callable or redeemable
at the option of the issuer thereof, and shall also include a depository receipt issued by a bank
or trust company as custodian with respect to any such obligation evidenced by such depository
receipt or a specific payment of interest on or principal of any such 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
obligation set forth in (i) or (ii) above or the specific



8









 







payment of interest on or principal of such obligation evidenced by such depository receipt.



     “Voting Stock” means Capital Stock of a corporation of the class or classes having general
voting power under ordinary circumstances to elect at least a majority of the board of directors,
managers or trustees of such corporation (irrespective of whether or not at the time stock of any
other class or classes shall have or might have voting power upon the occurrence of any
contingency).



     Section 1.02. Compliance Certificates and Opinions. Upon any application or request by the
Company to the Trustee to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been complied with and an
opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if
any, have been complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or opinion need be
furnished.



     Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than certificates provided pursuant to Subsection Section 7.04(d))
shall include:




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




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




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




     (d) a statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.



     Section 1.03. Form of Documents Delivered to Trustee. In any case where several matters are
required to be certified by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or several documents.



9









 





     Any certificate or Opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or opinion is based are
erroneous.



     Any such certificate or opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an Authorized Officer or
Authorized Officers of the Company stating that the information with respect to such factual
matters is in the possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations with respect to
such matters are erroneous.



     Any certificate or opinion of an officer of the Company or of counsel may be based, insofar as
it relates to accounting matters, upon a certificate or opinion of or representations by an
accountant or firm of accountants in the employ of the Company or otherwise, unless such officer or
counsel, as the case may be, knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the accounting matters upon which such
certificate or opinion may be based are erroneous.



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



     Section 1.04. Acts of Holders. (a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar tenor signed by such
Holders in person or by agent duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments or record, or
both, are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or
instruments or so voting at any such meeting. Proof of execution of any such instrument or of a
writing appointing any such agent or proxy, or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of
the Trustee and the Company and any agent of the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in the manner provided
in Section 13.06.



10









 





     (b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of any notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by an officer of a corporation or association or a member of a partnership, or an official of a
public or governmental body, on behalf of such corporation, association, partnership or public or
governmental body or by a fiduciary, such certificate or affidavit shall also constitute sufficient
proof of his authority. The fact and date of the execution by any Person of any such instrument or
writing, or the authority of the Person executing the same, may also be proved in any other manner
which shall be satisfactory to the Trustee.



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



     (d) Any request, demand, authorization, direction, notice, consent, waiver or other action by
the Holder of any Security shall bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such Security.



     (e) The Company may, but shall not be obligated to, set any day as a record date for the
purpose of determining the Holders of Outstanding Securities entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders of Securities, provided that the
Company may not set a record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or direction referred to in
the next paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities on such record date, and no other Holders, shall be entitled to take the
relevant action, whether or not such Holders remain Holders after such record date; provided that
no such action shall be effective hereunder unless taken on or prior to the applicable Expiration
Date (as defined below) by Holders of the requisite principal amount of Outstanding Securities on
such record date. Nothing in this paragraph shall be construed to prevent the Company from setting
a new record date for any action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with no action by any
Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities
on the date such action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to
each Holder of Securities in the manner set forth in Section 1.06.



11









 





     (f) The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities entitled to join in the giving or making of (i) any Notice of Default, (ii)
any declaration of acceleration referred to in Section 5.02, (iii) any request to institute
proceedings referred to in Section 5.07(b) or (iv) any direction referred to in Section 5.12. If
any record date is set pursuant to this paragraph, the Holders of Outstanding Securities on such
record date, and no other Holders, shall be entitled to join in such notice, declaration, request
or direction, whether or not such Holders remain Holders after such record date; provided that no
such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities on such record date.
Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date
for any action for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action by any Person be
cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of Outstanding Securities on the date
such action is taken. Promptly after any record date is set pursuant to this paragraph, the
Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder
of Securities in the manner set forth in Section 1.06.



     (g) With respect to any record date set pursuant to this Section, the party hereto which sets
such record dates may designate any day as the “Expiration Date” and from time to time may change
the Expiration Date to any earlier or later day; provided that no such change shall be effective
unless notice of the proposed new Expiration Date is given to the other party hereto in writing,
and to each Holder of Securities in the manner set forth in Section 1.06, on or prior to the
existing Expiration Date. If an Expiration Date is not designated with respect to any record date
set pursuant to this Section, the party hereto which set such record date shall be deemed to have
initially designated the 180th day after such record date as the Expiration Date with respect
thereto, subject to its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the
applicable record date.



     Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with
regard to any particular Security may do so with regard to all or any part of the principal amount
of such Security or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.



     Section 1.05. Notices, Etc., to Trustee and Company. Any request, demand, authorization,
direction, notice, consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,



12









 





     (a) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, which, as of the date of this Indenture, is: 551 Madison Avenue, 11th
Floor, New York, New York 10022, Attn: Corporate Trust Department; or



     (b) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to it at the address of its principal office specified in
the first paragraph of this instrument, to the attention of the Corporate Secretary or at any other
address previously furnished in writing to the Trustee by the Company.



     Neither the Company nor the Trustee shall be deemed to have received any such notice, demand,
authorization, direction, notice, consent, waiver or Act of Holders unless given, furnished or
filed as provided in this Section 1.05.



     Section 1.06. Notice to Holders; Waiver. Except as otherwise expressly provided herein,
where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently
given to Holders of Securities if in writing and mailed, first-class postage prepaid, to each
Holder of a Security affected by such event, at his address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date, prescribed for the giving
of such notice.



     If, by reason of the suspension of regular mail service, it shall be impracticable to mail
notice of any event to Holders of Securities when such notice is required to be given pursuant to
any provision of this Indenture, then such manner of giving such notice as shall be acceptable to
the Trustee shall constitute sufficient giving of such notice. In any case where notice to Holders
of Securities is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Security shall affect the sufficiency of such
notice with respect to other Holders of Securities.



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



     Section 1.07. Language of Notices, Etc. Any request, demand, authorization, direction,
notice, consent, waiver, Act of Holders or other document required or permitted under this
Indenture shall be in the English language, except that any published notice may be in an official
language of the country of publication.



     Section 1.08. Conflict With Trust Indenture Act. If any provision hereof limits, qualifies
or conflicts with any obligation or requirement included or



13









 







deemed included herein by operation of the Trust Indenture Act, such obligation or requirement
of the Trust Indenture Act shall control.



     Section 1.09. Effect of Headings and Table of Contents. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect the construction
hereof.



     Section 1.10. Successors and Assigns. All covenants and agreements in this Indenture and the
Securities by the Company shall bind its successors and assigns, whether so expressed or not.



     Section 1.11. Separability Clause. In case any provision in this Indenture or the Securities
or coupons shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.



     Section 1.12. Benefits of Indenture. Nothing in this Indenture or the Securities or coupons,
expressed or implied, shall give to any Person, other than the parties hereto, their successors
hereunder and the Holders of Securities or coupons, any benefit or any legal or equitable right,
remedy or claim under this Indenture.



     Section 1.13. Governing Law. This Indenture and the Securities and any coupons shall be
governed by and construed in accordance with the laws of the State of New York without giving
effect to the conflicts of laws provisions thereof. This Indenture is also subject to the
provisions of the Trust Indenture Act that are required to be part of this Indenture and shall, to
the extent applicable, be governed by such provisions.



     Section 1.14. Legal Holidays. In any case where any Interest Payment Date, Redemption Date
or Stated Maturity or Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities or coupons other
than a provision in the Securities of any series which specifically states that such provision
shall apply in lieu of this Section) payment of principal (and premium, if any) or interest, if
any, need not be made at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity or Maturity, provided that no interest
shall accrue on the amount so payable for the period from and after such Interest Payment Date,
Redemption Date, Stated Maturity or Maturity, as the case may be.



     Section 1.15. Computations.



     Unless otherwise specifically provided, the certificate or opinion of any independent firm of
public accountants of recognized standing selected by the Board of Directors shall be conclusive
evidence of the correctness of any



14









 







computation made under the provisions of this Indenture. The Company shall furnish to the
Trustee upon its request a copy of any such certificate or opinion.



ARTICLE 2

Security Forms




     Section 2.01. Forms Generally. The Securities of each series shall be in substantially the
form set forth in Exhibit A to this Indenture, or in such other form (including temporary or
permanent global form) as shall be established in one or more indentures supplemental hereto or
approved from time to time by or pursuant to a Board Resolution in accordance with Section 3.01, in
each case with such appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be required to comply with
the rules of any securities exchange or Depositary thereof, or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their execution of the
Securities. If the forms of Securities of any series (or the form of any such temporary or
permanent global Security) are established by action taken pursuant to a Board Resolution, a copy
of an appropriate record of such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.03 for the authentication and delivery of such securities or
coupons (or any such temporary or permanent global Security).



     The Trustee’s certificate of authentication shall be substantially in the form set forth in
this Article.



     Unless otherwise provided as contemplated by Section 3.01 with respect to any series of
Securities, the Securities of each series shall be issuable in registered form without coupons.



     The definitive Securities shall be printed, lithographed or engraved or produced by any
combination of these methods on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities and coupons, if any, as evidenced by their
execution of such Securities.



15









 





     Section 2.02. Form of Trustee’s Certificate of Authentication. The Trustee’s certificate of
authentication shall be in substantially the following form:



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



	 	 	 	 	 
	 	Union Bank of California, N.A.,

as Trustee

 	 
	 	By:  	
 	 
	 	 	Authorized Officer 	 
	 	 	 	 
	 




     Section 2.03. Form of Legend for Global Securities. Every Global Security authenticated and
delivered hereunder shall, in addition to the provisions contained in Exhibit A, bear a legend in
substantially the following form:



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



THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF DTC OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE
OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR SUCH NOMINEE, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.




16











 





ARTICLE 3

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 in one or more series. There shall be established in or pursuant
to a Board Resolution, and, subject to Section 3.03, set forth in an Officer’s Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance of Securities of
any Series,




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




     (b) any limit upon the aggregate principal amount of the Securities of the series
which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Sections 3.04, 3.05, 3.06, 9.06 or
11.07);




     (c) the Stated Maturity or Maturities on which the principal of the Securities of the
series is payable or the method of determination thereof;




     (d) the rate or rates (which may be fixed or floating) at which the Securities of the
series shall bear interest, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be payable and the Regular
Record Date for the interest payable on Securities on any Interest Payment Date or the
formula or method by which such rate or rates, or date or dates may be determined;




     (e) the place or places where, subject to the provisions of Section 10.02, the
principal of (and premium, if any) and interest, if any, on Securities of the series shall
be payable, any Securities of the series may be surrendered for registration of transfer,
Securities of the series may be surrendered for exchange and notices and demands to or
upon the Company in respect of the Securities of the series and this Indenture may be
served;




     (f) 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;




     (g) the obligation, if any, of the Company to redeem or purchase Securities of the
series pursuant to any sinking fund or analogous
provisions 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



17









 







upon which securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;




     (h) the denominations in which any Securities of the series shall be issuable, if
other than denominations of $2,000 and any higher integral multiples of $1,000;




     (i) if other than the principal amount thereof, the portion of the principal amount
of Securities of the series which shall be payable upon declaration of acceleration of the
Stated Maturity thereof pursuant to Section 5.02;




     (j) any paying agents, transfer agents, registrars or any other agents with respect
to the Securities of the series;




     (k) the currency or currencies, including composite currencies, in which payment of
the principal of (and premium, if any) and interest, if any, on such Securities shall be
payable if other than the currency of the United States;




     (l) if the principal of (and premium, if any), or interest, if any, on such
Securities are to be payable, at the election of the Company or any Holder thereof, in a
coin or currency or currencies, including composite currencies, other than that or those
in which such Securities are stated to be payable, the coin or currency or currencies,
including composite currencies, in which payment of the principal of (and premium, if
any), or interest, if any, on Securities of such series as to which such election is made
shall be payable, and the period or periods within which, and the terms and conditions
upon which, such election may be made;




     (m) if such Securities are to be denominated in more than one currency, including
composite currencies, the basis of determining the equivalent price in the currency of the
United States (if other than as set forth in the definition of Outstanding) for purposes
of determining the voting rights of Holders of such Securities under this Indenture;




     (n) if the amount of payments of principal of (and premium, if any), or portions
thereof, or interest, if any, on such Securities may be determined with reference to an
index, formula or other method, the manner in which such amounts shall be determined;




     (o) whether any Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be issuable in permanent
global form and, if so, whether beneficial owners of interests in any such permanent
global Security may exchange such interests for Securities of such series and of like
tenor of any
authorized form and denomination and the circumstances under which any



18









 







such exchanges
may occur, if other than in the manner provided in Section 3.05;




     (p) the applicability of Section 4.03 of this Indenture to the Securities of such
series; and




     (q) any other terms of or provisions applicable to the series (which terms and
provisions shall not be inconsistent with the provisions of this Indenture).



     All Securities of any one series and any coupons appertaining thereto shall be substantially
identical except as to denomination and except as may otherwise be provided in or pursuant to such
Board Resolution referred to above and (subject to Section 3.03) set forth in such Officer’s
Certificate or in any such indenture supplemental hereto. All Securities of one series need not be
issued at the same time and, unless otherwise provided, a series may be reopened for issuances of
additional Securities of such series. Securities may differ between series in respect of any
matters.



     If any of the terms of the Securities of any series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officer’s Certificate setting forth the terms of the Securities of such series.



     Section 3.02. Denominations. The Securities of each series shall be in registered form
without coupons and shall be issuable in denominations of $2,000 and any higher integral multiples
of $1,000, unless otherwise specified as contemplated by Section 3.01.



     Section 3.03. Execution, Authentication, Delivery and Dating. The Securities shall be
executed on behalf of the Company by its Chairman of the Board, President and Chief Executive
Officer, any Senior Vice President, any Vice President or the Treasurer. The signature of any of
these officers on the Securities may be manual or facsimile.



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



     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver
such Securities. If any
Security shall be represented by a permanent global Security, then, for purposes



19









 







of this Section and Section 3.04, the notation of a beneficial owner’s interest therein upon original
issuance of such Security or upon exchange of a portion of a temporary global Security shall be
deemed to be delivery in connection with its original issuance of such beneficial owner’s interest
in such permanent global Security.



     If the forms or terms of the Securities of the series and any related coupons have been
established in or pursuant to one or more Board Resolutions as permitted by Sections 2.01 and 3.01,
in authenticating such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to
Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating,




     (a) if the forms of such Securities and any coupons have been established by or
pursuant to a Board Resolution as permitted by Section 2.01, that such forms have been
established in conformity with the provisions of this Indenture;




     (b) if the terms of such Securities and any coupons have been established by or
pursuant to a Board Resolution as permitted by Section 3.01, that such terms have been
established in conformity with the provisions of this Indenture; and




     (c) that such Securities, when authenticated and delivered by the Trustee and issued
by the Company in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the Company, enforceable
in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting the
enforcement of creditors’ rights and to general equity principles.



     If such forms or terms have been so established, the Trustee shall not be required to
authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the Securities and this Indenture or will
otherwise affect the Trustee in a manner which is not reasonably acceptable to the Trustee.



     Notwithstanding the provisions of Section 3.01 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not be necessary to
deliver the Officer’s Certificate otherwise required pursuant to Section 3.01 or the Company Order
and Opinion of Counsel otherwise required pursuant to such 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 authentication upon original issuance of the first Security of such series to be issued.



20









 





     A Company Order delivered in the circumstances set forth in the preceding paragraph may
provide that Securities which are the subject thereof will be authenticated and delivered by the
Trustee on original issue from time to time upon the written order of persons designated in such
Company Order and that such persons are authorized to determine, consistent with the Officer’s
Certificate referred to in Section 3.01 or any applicable supplemental indenture, such terms and
conditions of said Securities as are specified in such Company Order, provided the foregoing
procedure is acceptable to the Trustee.



     Each Security shall be dated the date of its authentication.



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



     Minor typographical and other minor errors in the text of any Security shall not affect the
validity and enforceability of such Security if it has been duly authenticated and delivered by the
Trustee.



     Except in the case of Securities of any series as to which it is specified, as contemplated by
Section 3.01, that such Securities shall be issued initially in individual certificated form, the
Company shall execute and the Trustee shall authenticate and deliver one or more Global Securities
with respect to each series of Securities that (i) shall represent an aggregate amount equal to the
aggregate principal amount of the initially issued Securities of such series, (ii) shall be
registered in the name of the Depositary or the nominee of the Depositary, (iii) shall be delivered
by the Trustee to the Depositary or pursuant to the Depositary’s instruction, (iv) shall bear a
legend substantially in the form required in Section 2.03 and (v) shall bear such other legends or
endorsements as contemplated by Section 2.01.



     Section 3.04. Temporary Securities. Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, in registered form and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.



     If temporary Securities of any series are issued, the Company will cause definitive securities
of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary



21









 







Securities of such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of the Company
maintained pursuant to Section 10.02 in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like
aggregate principal amount of definitive Securities of the same series and of like tenor of
authorized denominations. Until so exchanged the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive Securities of such
series.



     Section 3.05. Registration, Registration of Transfer and Exchange. The Company shall cause
to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such
office and in any other office or agency to be maintained by the Company in accordance with Section
10.02 being herein sometimes collectively referred to as the “Security Register”) in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers and exchanges of Securities. The Trustee is hereby appointed
“Security Registrar” for the purpose of registering Securities and transfers of Securities as
herein provided.



     Upon surrender for registration of transfer of any Security of any series at the office or
agency maintained pursuant to Section 10.02 for such purpose in a Place of Payment for that series,
the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor.



     Notwithstanding any other provision of this Section, unless and until it is exchanged in whole
or in part for the individual Securities represented thereby, a Global Security representing all or
a portion of the Securities may not be transferred except as a whole by the Depositary to a nominee
of such Depositary, or by a nominee of such Depositary to such Depositary or another nominee of
such Depositary, or by such Depositary or any such nominee to a successor Depositary or nominee of
such successor Depositary.



     At the option of the Holder, Securities of any series may be exchanged for other Securities of
the same series, of any authorized denominations and of a like aggregate principal amount and
tenor, upon surrender of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is entitled to
receive.



     If at any time the Depositary notifies the Company that it is unwilling or unable to continue
as Depositary or if at any time the Depositary shall cease to be a clearing agency registered under
the Exchange Act as provided in Section 3.03, the Company shall appoint a successor Depositary. If
a successor Depositary is



22









 







not appointed by the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of individual Securities, will authenticate and make
available for delivery, individual Securities in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing the Securities in exchange for
such Global Security or Securities.



     The Company may at any time and in its sole discretion determine that individual Securities
issued in the form of one or more Global Securities shall no longer be represented by such Global
Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of individual Securities, will authenticate and
make available for delivery, individual Securities in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing the Securities in exchange for
such Global Security or Securities.



     The Depositary may surrender a Global Security in exchange in whole or in part for individual
Securities on such terms as are acceptable to the Company, the Trustee and such Depositary.
Thereupon, the Company shall execute, and the Trustee shall authenticate and make available for
delivery, without service charge:



     (a) to each Person specified by such Depositary a new individual Security or Securities of any
authorized denomination as requested by such Person in aggregate principal amount equal to and in
exchange for such Person’s beneficial interest in the Global Security; and



     (b) to such Depositary a new Global Security in a denomination equal to the difference, if
any, between the principal amount of the surrendered Global Security and the aggregate principal
amount of individual Securities delivered to Holders thereof.



     Upon the exchange of a Global Security for individual Securities in an aggregate principal
amount equal to the principal amount of such Global Security, such Global Security shall be
canceled by the Trustee. Individual Securities issued in exchange for a Global Security pursuant
to this Section shall be registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall make available for
delivery such individual Securities to the Persons in whose names such Securities are so
registered.



     All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.



23









 





     Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Security Registrar) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.



     No service charge shall be made to a Holder for any registration of transfer or exchange of
Securities, but the Company or the Trustee may require payment of a sum sufficient to cover any
tax, assessment or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges pursuant to Sections 3.04,
9.06 or 11.07 or Article 12 not involving any transfer.



     Neither the Company nor the Trustee shall be required, pursuant to the provisions of this
Section: (i) to issue, register the transfer of or exchange any Security of any series during a
period beginning at the opening of business 15 Business Days before the day of the mailing of a
notice of redemption of any such Securities selected for redemption of Securities pursuant to
Article Eleven and ending at the close of business on the day of such mailing of notice of
redemption; or (ii) to register the transfer of or exchange any Security so selected for redemption
in whole or in part, except, in the case of any Security to be redeemed in part, any portion
thereof that is not redeemed.



     Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security is
surrendered to the Trustee, together with such security or indemnity as may be required by the
Company or the Trustee, to save each of them harmless, the Company shall execute, and the Trustee
shall authenticate and deliver in exchange therefor, a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously outstanding.



     If there shall have been delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security or coupon, and (ii) such security or
indemnity as may be required by them to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security or coupon has been acquired by a protected
purchaser, the Company shall execute and upon its written request the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security , a new Security of the same
series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding.



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



     Upon the issuance of any new Security under this Section, the Company or the Trustee may
require the payment of a sum sufficient to cover any tax or



24









 







other governmental charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.



     Every new Security of any series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and any such new Security shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series duly issued hereunder.



     The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.



     Section 3.07. Payment of Interest; Interest Rights Preserved.



     Interest on any Security of any series which is payable, and is timely paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one
or more Predecessor Securities) is registered at the close of business on the Regular Record Date
for such interest in respect of Securities of such series. The initial payment of interest on any
Security of any series which is issued between a Regular Record Date and the related Interest
Payment Date shall be payable as provided in such Security or in the Board Resolution pursuant to
Section 3.01 with respect to the related series of Securities.



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



     (a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities of such series in respect of which interest is in default (or their respective
Predecessor Securities) are registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest as provided in this
clause. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10



25









 







days prior to the date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first class, postage prepaid, to each Holder of a Security of such series at the address of
such Holder as it appears in the Security Register not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be payable pursuant to the
following clause (b).



     (b) The Company may make payment of any Defaulted Interest on the Securities of any series in
any other lawful manner not inconsistent with the requirements of any securities exchange on which
the Securities of the series in respect of which interest is in default may be listed, and upon
such notice as may be required by such exchange (or by the Trustee if the Securities are not
listed), if, after notice given by the Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by the Trustee.



     Subject to the foregoing provisions of this Section and Section 3.05, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried
by such other Security.



     Section 3.08. Persons Deemed Owners. The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to
Sections 3.05 and 3.07) interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.



     None of the Company, the Trustee nor any agent of the Company or the Trustee will have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Security or maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.



     Section 3.09. Cancellation. All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee and such Securities
and coupons shall be promptly



26









 







cancelled by the Trustee. The Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the Company may have acquired
in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities and coupons held by the Trustee shall be destroyed by the Trustee in
accordance with its customary procedures unless other instructions are furnished to the Trustee by
a Company Order.



     Section 3.10. Computation of Interest. Except as otherwise specified as contemplated by
Section 3.01 for the Securities of any series, interest, if any, on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.



     Section 3.11. CUSIP Numbers. The Company in issuing Securities may use “CUSIP” numbers (if
then generally in use), and, if so, the Trustee shall use the “CUSIP” number for the Securities in
notices to the Holders as a convenience to such Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such notice shall not be affected by any
defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of
any changes in the “CUSIP” numbers.



ARTICLE 4

Satisfaction and Discharge




     Section 4.01. Satisfaction and Discharge of Indenture. This Indenture shall upon Company
Request cease to be of further effect with respect to any series of Securities (except as to any
surviving rights of registration of transfer or exchange of Securities of such series herein
expressly provided for or in the form of Security for such series and any right to receive
additional amounts, as provided in Section 10.08), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to
such series, when



     (a) either




     (i) all Securities of such series theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 3.06 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the Company or any
Subsidiary Guarantor and thereafter repaid to the Company or such



27









 







Subsidiary Guarantor or discharged from such trust, as provided in Section 10.03)
have been delivered to the Trustee for cancellation; or




     (ii) all such Securities of such series not theretofore delivered to the Trustee for
cancellation




     (A) have become due and payable, or




     (B) will become due and payable at their Stated Maturity within one year of
the date of deposit, or




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


and the Company, in the case of (A), (B) or (C) above, has deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation,
for principal (and premium, if any) and interest, if any, to the date of such deposit (in the case
of Securities which have become due and payable), or to the Stated Maturity or the Redemption Date,
as the case may be;




     (b) the Company has paid or caused to be paid all other sums payable hereunder by the Company
with respect to such series; and



     (c) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that, with respect to such series, all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been complied with.



     Notwithstanding the satisfaction and discharge of this Indenture with respect to such series,
the obligations of the Company to the Trustee with respect to such series under this Section 4.01
and Section 6.07, the obligations of the Company to any Authenticating Agent under Section 6.14,
and, if money shall have been deposited with the Trustee pursuant to subclause (ii) of clause (a)
of this Section, the obligations of the Trustee under Section 4.02 and the last paragraph of
Section 10.03, shall survive.



     Section 4.02. Application of Trust Money. Subject to the provisions of the last paragraph of
Section 10.03, all money deposited with the Trustee pursuant to Section 4.01, all money and U.S.
Government Obligations deposited with the Trustee (or a successor trustee satisfying the
requirements of Section 6.09) pursuant to Section 4.03 and all money received by the Trustee in
respect of U.S. Government Obligations deposited with the Trustee pursuant to Section 4.03 shall be
held in trust and shall be applied by it, in accordance with the provisions of the series of
Securities and this Indenture, to the payment, either directly or through



28









 







any Paying Agent as the Trustee may determine, to the Persons entitled thereto, of all sums
due and to become due thereon in respect of the principal of (and premium, if any) and interest, if
any, on the Securities for which payment of such money has been deposited with the Trustee or to
make mandatory sinking fund payments or analogous payments as contemplated by Section 4.03.



     Section 4.03. Discharge and Defeasance of Securities of Any Series. If this Section 4.03 is
specified, as contemplated by Section 3.01, to be applicable to the Securities of any series, then,
notwithstanding the provisions of Section 4.01, the Company shall be deemed to have paid and
discharged the entire indebtedness on all the Outstanding Securities of any such series on the 91st
day after the date of the deposit referred to in subparagraph (d) hereof, and the provisions of
this Indenture, as it relates to such Outstanding Securities, shall no longer be in effect (and the
Trustee, at the expense of the Company, shall, upon Company Request execute proper instruments
acknowledging the same), except as to:




     (a) the rights of Holders of Securities of such series to receive, from the trust
funds described in subparagraph (d) hereof, (i) payment of the principal of (and premium,
if any) and each installment of principal of (and premium, if any) or interest, if any, on
the Outstanding Securities of such series on the Stated Maturity of such principal or
installment of principal or interest and (ii) any mandatory sinking fund payments or
analogous payments applicable to the Securities of such series on the day on which such
payments are due and payable in accordance with the terms of this Indenture and such
Securities; and




     (b) the rights, powers, trusts, duties and immunities of the Trustee hereunder with
respect to such series, including those set forth in Section 6.07; and




     (c) either (i) if this Section 4.03(c)(i) is specified, as contemplated by Section
3.01, to be applicable to the Securities of any series, the Company’s obligations with
respect to the Securities of such series under Sections 3.04, 3.05, 3.06, 10.02 and 10.03;
or, alternatively, (ii) if this Section 4.03(c)(ii) is specified, as contemplated by
Section 3.01, to be applicable to the Securities of any series, the Company’s obligations
with respect to such Securities under Sections 3.04, 3.05, 3.06, 10.01, 10.02 and 10.03;



     provided that, the following conditions shall have been satisfied:




     (d) the Company shall have irrevocably deposited or caused to be deposited (in
accordance with Section 4.02) with the Trustee (or another trustee satisfying the
requirements of Section 6.09) as trust funds in trust specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of the Securities of that series,
with reference to this Section 4.03 (i) money in an amount, or (ii) U.S. Government



29









 







Obligations which through the payment of interest and principal in respect thereof in accordance
with their terms will provide not later than one Business Day before the due date of any
payment referred to in clause (A) or (B) of this subparagraph (d) money in an amount, or
(iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge (A) the principal of (and premium, if any)
and each installment of principal of (and premium, if any) and interest, if any, on the
Outstanding Securities of such series on the Stated Maturity of such principal or
installment of principal or interest or on the applicable Redemption Date and (B) any
mandatory sinking fund payments or analogous payments applicable to the Securities of such
series on the day on which such payments are due and payable in accordance with the terms
of this Indenture and of such Securities;




     (e) such deposit shall not cause the Trustee with respect to the Securities of such
series to have a conflicting interest as defined in Section 6.08 or for purposes of the
Trust Indenture Act with respect to the Securities of any series;




     (f) such deposit will not result in a breach or violation of, or constitute a default
under, any applicable laws, this Indenture or any other agreement or instrument to which
the Company is a party or by which it is bound;




     (g) if this Section 4.03(g) is specified, as contemplated by Section 3.01, to be
applicable to the Securities of any series, such provision would not cause any Outstanding
Securities of such series then listed on the New York Stock Exchange or other nationally
recognized securities exchange to be de-listed as a result thereof;




     (h) no Event of Default or event which with the giving of notice or lapse of time or
both would become an Event of Default with respect to the Securities of that series shall
have occurred and be continuing on the date of such deposit or at any time during the
period ending on the 91st day after such date;




     (i) the Company has delivered to the Trustee an Opinion of Counsel to the effect
that, based upon applicable United States Federal income tax law or a ruling published by
the Internal Revenue Service (which opinion, for the purposes contemplated by Section
4.03(c)(i), must be based on a change in applicable United States Federal income tax law
after the date of this Indenture or a ruling published by the Internal Revenue Service
after the date of this Indenture), the Holders of the Securities of such series will not
recognize income, gain or loss for United States Federal income tax purposes as a result
of such deposit, defeasance



30









 







and discharge and will be subject to United States 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, defeasance and discharge had not occurred; and




     (j) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion
of Counsel, each stating that all conditions precedent relating to the defeasance
contemplated by this Section have been complied with.



     Section 4.04. Reinstatement



     If the Trustee is unable to apply any money in accordance with Section 4.03 by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company’s obligations under this Indenture and the
Securities of such series shall be revived and reinstated as though no deposit had occurred
pursuant to Section 4.03 until such time as the Trustee is permitted to apply all such money in
accordance with Section 4.03; provided, however, that if the Company makes any payment of principal
of (and premium, if any) or interest on any Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of the Securities of such
series to receive such payment from the money held by the Trustee.



ARTICLE 5

Remedies




     Section 5.01. Events of Default. “Event of Default”, wherever used herein with respect to
Securities of any series, means any one of the following events (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):




     (a) default in the payment of any installment of interest upon any Security of that
series when it becomes due and payable, and continuance of such default for a period of 30
days; or




     (b) default in the payment of the principal of (or premium, if any, on) any Security
of that series at its Maturity; or




     (c) default in the deposit of any sinking fund payment, when and as due by the terms
of a Security of that series; or




     (d) default in the performance or breach of any covenant or warranty of the Company
in this Indenture (other than a covenant or



31









 







warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of a particular series of Securities other than that
series) and continuance of such default or breach for a period of 90 days after there has
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 that series a written notice specifying such default or breach
and requiring it to be remedied 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 in respect of the Company
under any applicable bankruptcy, insolvency, reorganization or other similar law now or
hereafter in effect, or (ii) a decree or order appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any
substantial part of its property, or ordering the winding-up or liquidation of its affairs
and such decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or




     (f) the commencement by the Company of a voluntary case under any applicable
bankruptcy, insolvency, reorganization or other similar law now or hereafter in effect, or
the consent by it to the entry of an order for relief in an involuntary case in respect of
it under any such law, or the consent by it to the appointment of or taking possession by
a receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar official)
of the Company or for any substantial part of its property, or the making by it of any
general assignment for the benefit of creditors; or




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



     Section 5.02. Acceleration of Maturity; Rescission and Annulment. If an Event of Default
with respect to Securities of any series at the time Outstanding occurs and is continuing, then and
in every such case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if the Securities of
that series are Original Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified in the terms thereof) of all of the Securities of that series to be
due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by
Holders), and upon any such declaration such principal amount (or specified amount) shall become
immediately due and payable; provided, that if an Event of Default specified in clause (e) or (f)
of Section 5.01 hereof occurs with respect to the Company, the unpaid principal of, premium, if
any, and any accrued and unpaid interest on all the Securities shall ipso facto



32









 







become and be
immediately due and payable without further action or notice on the part of the Trustee or any
Holder.



     At any time after such a declaration of acceleration with respect to Securities of any series
has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of
the Outstanding Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:




     (a) the Company has paid or deposited with the Trustee a sum sufficient to pay




     (i) all overdue installments of interest on all Securities of that series,




     (ii) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of acceleration
and interest, if any, thereon at the rate or rates prescribed therefor in such
Securities,




     (iii) to the extent that payment of such interest is lawful, interest upon
any overdue installments of interest at the rate or rates prescribed therefor in
such Securities, and




     (iv) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel;




     and




     (b) all Events of Default with respect to Securities of that series, other than the
nonpayment of the principal of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided in Section 5.13.


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




     Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee. The Company
covenants that if




     (a) default is made in the payment of any installment of interest on any Security
when such interest becomes due and payable and such default continues for a period of 30
days, or




     (b) default is made in the payment of the principal of (or premium, if any, on) any
Security at its Maturity,



33









 




the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities and coupons, the whole amount then due and payable
on such Securities and coupons for principal (and premium, if any) and interest, if any, and, to
the extent that payment of such interest shall be legally enforceable, interest on the overdue
principal (and premium, if any) and on any overdue installments of interest, at the rate or rates
prescribed therefor in such Securities and, in addition thereto, 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.




     If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities and called the
moneys adjudged or decreed to be payable in the manner provided by law out of the property of the
Company or any other obligor upon such Securities, wherever situated.



     If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series and any related coupons by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.



     Section 5.04. Trustee May Enforce Claims. In case of any judicial proceeding relative to the
Company (or any other obligor upon the Securities), its property or its creditors:



     (a) the Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise,




     (i) to take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding, and




     (ii) in particular, the Trustee shall be authorized to collect and receive any moneys
or other property payable or deliverable on any such claims and to distribute the same in
accordance with Section 5.06; and



     (b) 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 for distribution in accordance with Section 5.06, 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



34









 







Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07.



     No provision of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors’ or other similar
committee.



     Section 5.05. Trustee May Enforce Claims Without Possession of Securities. All rights of
action and claims under this Indenture or the Securities or coupons may be prosecuted and enforced
by the Trustee without the possession of any of the Securities or coupons or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities
and coupons in respect of which such judgment has been recovered.



     Section 5.06. Application of Money Collected. Any money collected by the Trustee pursuant to
this Article shall be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or premium, if any) or
interest, if any, upon presentation of the Securities or coupons or both and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully paid:




     First: To the payment of all amounts due the Trustee under Section 6.07;




     Second: To the payment of the amounts then due and unpaid for principal of (and
premium, if any) and interest, if any, on the Securities and coupons in respect of which
or for the benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such Securities and
coupons for principal (and premium, if any) and interest, if any, respectively; and




     Third: The balance, if any, to the Person or Persons determined to be entitled
thereto.



     Section 5.07. Limitation on Suits. No Holder of any Security of any series shall have any
right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder, unless



35









 






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




     (b) the Holders of not less than 25% in principal amount of the outstanding
securities of that series shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee hereunder;




     (c) such Holder or Holders have offered to the Trustee reasonable indemnity against
the costs, expenses and liabilities to be incurred in compliance with such request;




     (d) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and




     (e) no direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount of the
Outstanding Securities of that series;


it being understood and intended that no one or more of the Holders of Securities of such series
shall have any right in any manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other such Holders of, or to obtain or
to seek to obtain priority or preference over any other such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and ratable benefit of all
such Holders.




     Section 5.08. Unconditional Rights of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security or coupon shall
have the right, which is absolute and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Sections 3.05 and 3.07) interest, if any, on such Security on the
Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.



     Section 5.09. Restoration of Rights and Remedies. If the Trustee or any Holder of any
Security 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 the Company, the Trustee and the Holders
of such Securities shall, subject to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been instituted.




36











 





     Section 5.10. Rights and Remedies Cumulative. Except as otherwise provided with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders of Securities 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 5.11. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any
Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to
the Holders of Securities or coupons may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders of Securities as the case may be.



     Section 5.12. Control by Holders. (a) The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such series, provided that




     (i) such direction shall not be in conflict with any rule of law or with this
Indenture, involve the Trustee in personal liability or be unduly prejudicial to the
Holders of Securities not joining in the action, and




     (ii) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.



     (b) The Company may set a record date for purposes of determining the identity of Holders
entitled to vote or consent to any action by vote or consent authorized or permitted by this
Section 5.12 and Section 5.13. Such record date shall be the later of (i) 30 days prior to the
first solicitation of such consent or (ii) the date of the most recent list of Holders furnished to
the Trustee pursuant to Section 7.01 prior to such solicitation.



     Section 5.13. Waiver of Past Defaults. Subject to Section 5.02, the Holders of not less than
a majority in principal amount of the Outstanding Securities of any series may on behalf of the
Holders of all the Securities of such series and any related coupons waive any past default
hereunder with respect to the Securities of such series and its consequences, except a default



37









 






     (a) in the payment of the principal of (or premium, if any) or interest, if any, on
any Securities of such series, or




     (b) with respect to a covenant or provision hereof which under Article Nine cannot be
modified or amended without the consent of the Holder of each Outstanding Security of such
series affected.



     Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.



     Section 5.14. Undertaking for Costs. All parties to this Indenture agree, and each Holder of
any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees,
against any party litigant in such suit, having due regard for the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this Section shall not apply
to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any
series, or to any suit instituted by any Holder of any Security for the enforcement of the payment
of the principal of (or premium, if any) or interest, if any, on any Security on or after the
Stated Maturity or Maturities expressed in such security or coupon (or, in the case of redemption,
on or after the Redemption Date).



     Section 5.15. Waiver of Stay or Extension Laws. The Company covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance of this Indenture;
and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.



ARTICLE 6

The Trustee




     Section 6.01. Certain Duties and Responsibilities. (a) Except during the continuance of an
Event of Default with respect to the Securities of any series,



38









 






     (i) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture with respect to such series, and no implied
covenants or obligations shall be read into this Indenture against the Trustee; and




     (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions which by any
provisions hereof are specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture.



     (b) In case an Event of Default has occurred with respect to Securities of any series and is
continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture
with respect to such series of Securities, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own
affairs.



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




     (i) this Subsection shall not be construed to limit the effect of Subsection (a) of
this Section;




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




     (iii) the Trustee shall not be liable with respect to any action taken, suffered or
omitted to be taken by it in good faith in accordance with the direction of the Holders of
a majority in principal amount of the Outstanding Securities of any series, determined as
provided in Section 5.12, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the Securities of such
series; and




     (iv) 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.



39









 





     (d) Whether or not therein 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 Section.



     Section 6.02. Notice of Defaults. Within 90 days after the occurrence of any default
hereunder with respect to the Securities of any series, the Trustee shall transmit in the manner
and to the extent provided in Section 7.03, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that, except in the case of
a default in the payment of the principal of (or premium, if any) or interest, if any, on any
Security of such series or in the payment of any sinking fund installment with respect to
Securities 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 determines that the withholding of such notice is
in the interest of the Holders of Securities of such series, and provided, further, that in the
case of any default of the character specified in Section 5.01(d) with respect to Securities of
such series, no such notice to Holders shall be given until at least 60 days after the occurrence
thereof. For the purpose of this Section, the term “default” means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect to Securities of
such series.



     Section 6.03. Certain Rights of Trustee. Except as otherwise provided in Section 6.01 and
subject to the provisions of the Trust Indenture Act:




     (a) the Trustee may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon, 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 party or parties;




     (b) any request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order or as otherwise expressly provided herein
and any resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;




     (c) 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 presented)
may, in the absence of bad faith on its part, rely upon an Officer’s Certificate and such
Officer’s Certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by
it under the provisions of this Indenture upon the faith thereof;



40









 






     (d) the Trustee may consult with counsel and the written 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 it hereunder in good faith and in reliance
thereon;




     (e) the Trustee 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 pursuant
to this Indenture, unless such Holders of Securities of any series or related coupons
shall have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such request or
direction;




     (f) 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, coupon, 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;




     (g) the Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;




     (h) the Trustee’s immunities and protections from liability and its rights to
compensation and indemnification in connection with the performance of its duties under
this Indenture shall extend to the Trustee’s officers, directors, agents and employees and
its services as Paying Agent, Security Registrar or any other role assumed by the Trustee
hereunder or to which it has been appointed with respect to the Securities issued
hereunder. Such immunities and protections and right to indemnification, together with
the Trustee’s right to compensation, shall survive the Trustee’s resignation or removal
and final payment of the Securities;




     (i) the Trustee is not required to give any bond or surety with respect to the
performance of its duties or the exercise of its powers under this Indenture;




     (j) the Trustee shall not be deemed to have knowledge of any Default or Event of
Default hereunder except (i) during any period it is serving as Paying Agent for the
Securities of a series, any Event of Default pursuant to Section 5.01(a) or (b), or (ii)
any Default or Event of Default



41









 






of which a Responsible Officer of the Trustee shall have received written
notification from the Company or the Holders of at least 25% in aggregate principal amount
of the Securities of the series with respect to which such Default or Event of Default has
occurred and is continuing or obtained “actual knowledge,” which shall mean the actual
fact or statement of knowing by a Responsible Officer of the Trustee without independent
investigation with respect thereto;




     (k) the permissive rights of the Trustee enumerated herein shall not be construed as
duties; and




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



     Section 6.04. Not Responsible for Recitals or Issuance of Securities. The recitals contained
herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken
as the statements of the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the
Securities or the coupons. The Trustee shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.



     Section 6.05. May Hold Securities. The Trustee, any Paying Agent, any Security Registrar or
any other agent of the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or coupons and, subject to Sections 6.08 and 6.13, may otherwise deal with
the Company with the same rights it would have if it were not Trustee, Paying Agent, Security
Registrar or such other agent.



     Section 6.06. Money Held in Trust. Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise agreed with the
Company.



     Section 6.07. Compensation and Reimbursement. The Company agrees:




     (a) to pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);




     (b) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements



42









 







and advances incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and




     (c) to indemnify the Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties hereunder.



     The obligations of the Company under this Section shall constitute additional indebtedness
hereunder and shall survive the termination, satisfaction and discharges of this Indenture and the
resignation or removal of the Trustee. Such additional indebtedness shall be a senior claim to that
of the Securities upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the Holders of particular Securities, and the Securities are
hereby subordinated to such senior claim. If the Trustee incurs expenses after the occurrence of a
default specified in Section 5.01(e) or Section 5.01(f), such expenses are intended to constitute
expenses of administration under any bankruptcy law.



     Section 6.08. Disqualification; Conflicting Interests. If the Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by and subject to the
provisions of, the Trust Indenture Act.



     Section 6.09. Corporate Trustee Required; Eligibility. There shall at all times be a Trustee
hereunder which shall be a corporation organized and doing business under the laws of the United
States or of any State or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by Federal, State or District of Columbia authority and having its
Corporate Trust Office, in the United States of America. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article. Neither the Company nor any Affiliate of the
Company may serve as Trustee.



     Section 6.10. Resignation and Removal; Appointment of a Successor. (a) No resignation or
removal of the Trustee and no appointment of a successor



43









 







Trustee pursuant to this Article shall become effective until the acceptance of appointment by
the successor Trustee under Section 6.11.



     (b) The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may, at the expense of the Company,
petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.



     (c) The Trustee may be removed at any time with respect to the Securities of any series by Act
of the Holders of a majority in principal amount of the Outstanding Securities of such series
delivered to the Trustee and to the Company.



     (d) If at any time:




     (i) the Trustee shall fail to comply with Section 6.08 after written request therefor
by the Company or by any Holder who has been a bona fide Holder of a Security for at least
six months; or




     (ii) the Trustee shall cease to be eligible under Section 6.09 and shall fail to
resign after written request therefor by the Company or by any such Holder; or




     (iii) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;


then, in any such case, (A) the Company by Board Resolution may remove the Trustee with respect to
all Securities, or (B) subject to Section 5.14, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.




     (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series and
that at any time there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11. If, within one year
after such resignation, removal



44









 







or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders of Securities of that series and
accepted appointment in the manner required by Section 6.11, any Holder of a Security who has been
a bona fide Holder of a Security of such series for at least six months, subject to Section 5.14,
may, on behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities of such
series.



     (f) The Company shall give notice of each resignation and each removal of the Trustee with
respect to the Securities of any series and each appointment of a successor Trustee with respect to
the Securities of any series in the manner provided in Section 1.06. Each notice shall include the
name of the successor Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.



     Section 6.11. Acceptance of Appointment by Successor. (a) In case of the appointment
hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on request of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of the charges due it pursuant to Section 6.07, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee,
and shall duly assign, transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder. Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts.



     (b) In case of the appointment hereunder of a successor Trustee with respect to the Securities
of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment and which (i)
shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the



45









 







appointment of such successor Trustee relates, (ii) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust
or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.



     (c) Upon request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may
be.



     (d) 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.



     Section 6.12. Merger, Conversion, Consolidation or Succession to Business. Any corporation
into which the Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the corporate trust business of
the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such successor Trustee had
itself authenticated such Securities.



46









 





     Section 6.13. Preferential Collection of Claims Against Company. The Trustee shall comply
with the provisions of Section 311 of the Trust Indenture Act.



     Section 6.14. Appointment of Authenticating Agent. The Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be authorized to act
on behalf of the Trustee to authenticate Securities of such series issued upon original issue and
upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.06,
and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of Securities by the Trustee
or the Trustee’s certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating
Agent shall be acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State, territory or the District
of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital
and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or
State authority. If such Authenticating Agent files reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition
so filed.



     If at any time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.



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



     An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be



47









 







acceptable to the Company and shall give notice of such appointment in the manner provided in
Section 1.06 to all Holders of Securities of the series with respect to which such Authenticating
Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent.



     No successor Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.



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



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



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



Dated:




	 	 	 	 	 
	 	Union Bank of California, N.A.,

as Trustee

 	 
	 	By:  	
 	 
	 	 	As Authenticating Agent 	 
	 	 	 	 
	 	By:  	
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 



ARTICLE 7

Holders’ Lists and Reports by Trustee and Company





     Section 7.01. Company to Furnish Trustee Names and Addresses of Holders of Securities. The
Company shall furnish or cause to be furnished to the Trustee with respect to the Securities of
each series:




     (a) semi-annually, not more than 15 days after each Regular Record Date, or in the
case of any series of Securities on which semi-annual interest is not payable, not more
than 15 days after such semi-annual dates as may be specified by the Trustee, a list, in
such form as the Trustee may reasonably require, of the names and addresses of the Holders



48









 







of such Securities as of such Regular Record Date or such semi-annual date, as the
case may be, and




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




provided, however, that so long as the Trustee is the Security Registrar, no such list
need be furnished.



     Section 7.02. Preservation of Information; Communications to Holders. The Trustee shall
preserve, in as current a form as is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the
names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The
Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list
so furnished.



     The rights of Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided by Section 312(b) of the Trust Indenture Act.



     Every Holder of Securities, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to the names and addresses of Holders
made pursuant to Section 312(c) of the Trust Indenture Act.



     Section 7.03. Reports by the Trustee. The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the time and in the manner provided pursuant thereto. If required by
Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each May 15
following the date of this Indenture, deliver to Holders a brief report, dated as of such May 15,
which complies with the provisions of such Section 313(a). The Trustee shall also comply with
Section 313(b) and Section 313(c) of the Trust Indenture Act.



     A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed in accordance with Section
313(d) of the Trust Indenture Act, with the Commission and with the Company (Attn: Senior Vice
President and Chief Financial Officer). The Company will notify the Trustee whenever any
Securities are listed on any stock exchange.



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     Section 7.04. Reports by Company. The Company shall:




     (a) file with the Trustee, within 15 days after the Company files the same with the
Commission, copies of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934; or, if the Company is not required to file information, documents or reports
pursuant to either of said Sections, then it will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities Exchange Act of 1934, in
respect of a security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;




     (b) file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such additional information,
documents, and reports with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by such rules and
regulations; and




     (c) transmit by mail to all Holders, within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 7.03 with respect to reports
pursuant to Section 7.03, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (a) and (b) of this Section as
may be required by rules and regulations prescribed from time to time by the Commission.




     (d) furnish to the Trustee, not less often than annually, the certificate referred to
in Section 10.05. For purposes of such certificate, compliance by the Company with respect
to the conditions and covenants under this Indenture shall be determined without regard to
any period of grace or requirement of notice provided under this Indenture.



     Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such reports 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 Officer’s Certificates).



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ARTICLE 8

Consolidation, Merger, Conveyance, Transfer or Lease




     Section 8.01. Company May Consolidate, Etc., Only on Certain Terms. The Company shall not
consolidate with or merge into any other Person or sell, convey, transfer or lease its properties
and assets substantially as an entirety to any Person unless:




     (a) The Company is the surviving corporation in such merger or consolidation; or the
Person formed by such consolidation or into which the Company is merged or the Person
which acquires by sale, conveyance, transfer or lease the properties and assets of the
Company substantially as an entirety shall be a Person organized and existing under the
laws of the United States, any state thereof or the District of Columbia;




     (b) the Person formed by such consolidation or into which the Company is merged or
the Person which acquires by sale, conveyance, transfer or lease the properties and assets
of the Company substantially as an entirety shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium, if any) and
interest, if any (including all additional amounts, if any, payable pursuant to Section
10.08), on all the Securities and the performance of every covenant of this Indenture on
the part of the Company to be performed or observed;




     (c) immediately after giving effect to such transaction, and treating any
indebtedness which becomes an obligation of the Company or a Subsidiary as a result of
such transaction as having been incurred by the Company or such Subsidiary at the time of
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 happened and be continuing; and




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



     Section 8.02. Successor Substituted. Upon any consolidation or merger by the Company with or
into any other Person, or any sale, conveyance, transfer or lease by the Company of the properties
and assets of the Company substantially as an entirety to any Person in accordance with Section
8.01, the successor Person formed by such consolidation or into which the Company is merged or to
which such sale, conveyance, transfer or lease is made shall succeed



51









 







to, and be substituted for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as the Company herein;
and thereafter, the Company (which term shall for this purpose mean the Person named as the
“Company” in the first paragraph of this Indenture or any successor Person which shall theretofore
become such in the manner described in Section 8.01) shall be discharged from all obligations and
covenants under this Indenture and the Securities and coupons, and may be dissolved and liquidated.



ARTICLE 9

Supplemental Indentures




     Section 9.01. Supplemental Indentures Without Consent of Holders. Without the consent of any
Holder of Securities, the Company, when authorized by or pursuant to a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:




     (a) to evidence the succession of another Person to the Company and the assumption by
any such successor of the covenants of the Company herein and in the Securities contained;
or




     (b) to add to the covenants of the Company, for the benefit of the Holders of all or
any series of Securities (and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein conferred upon the
Company; or




     (c) to add any additional Events of Default; or




     (d) to permit the issuance of Securities in uncertificated form, provided that any
such action shall not adversely affect the interests of the Holders of Securities of any
series or any related coupons in any material respect; or




     (e) to change or eliminate any of the provisions of this Indenture, provided that any
such change or elimination shall become effective only when there is no Security
Outstanding of any series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision; or




     (f) to secure the Securities and related coupons; or




     (g) to establish the form or terms of Securities of any series and related coupons as
permitted by Sections 2.01 and 3.01; or



52









 






     (h) to evidence and provide for the acceptance of appointment hereunder by a
successor Trustee with respect to the Securities of one or more series and/or to add to or
change any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 6.11(b);




     (i) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein; or




     (j) to make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any material respect.



     Section 9.02. Supplemental Indentures With Consent of Holders. With the consent of the
Holders of not less than a majority in principal amount of the Outstanding Securities of each
series affected by such supplemental indenture, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner
the rights of the Holders of Securities of such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,



     (a) change the Stated Maturity of the principal of, or any installment of principal of or any
interest on, any security, or reduce the principal amount thereof or any rate of interest thereon
or any premium payable upon the redemption thereof, or change any obligation of the Company to pay
additional amounts pursuant to Section 10.08 (except as contemplated by Section 8.01(a) and
permitted by Section 9.01(a)), or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of acceleration of the Stated Maturity
thereof pursuant to Section 5.02, or change the method in which amounts of payments of principal or
any interest thereon are determined, or change any Place of Payment, or change the coin or currency
in which any Security or any premium or any interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or,
in the case of redemption, on or after the Redemption Date), or



     (b) reduce the percentage in principal amount of the Outstanding Securities of any series, the
consent of whose Holders is required for any such supplemental indenture, or the consent of whose
Holders is required for any



53









 







waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder
and their consequences) provided for in this Indenture, or



     (c) modify any of the provisions of this Section, Section 5.13 or Section 10.07, 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, provided, however, that this clause shall not be deemed to require the consent of any
Holder of a Security or coupon with respect to changes in the references to “the Trustee” and
concomitant changes in this Section and Section 10.07, or the deletion of this proviso, in
accordance with the requirements of Section 6.11(b) and 9.01(h).



     A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.



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



     Section 9.03. Execution of Supplemental Indentures. In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to
receive and (subject to Section 6.01) shall be fully protected in relying upon, an Officer’s
Certificate and an Opinion of Counsel each in compliance with Section 1.02 and each stating that
the execution of such supplemental indenture is authorized or permitted by this Indenture, and that
such supplemental indenture, when executed and delivered by the Company, will constitute a valid
and binding obligation of the Company in accordance with its terms. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise.



     Section 9.04. Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture under this Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder and of any coupons
appertaining thereto shall be bound thereby.



     Section 9.05. Conformity With Trust Indenture Act. Every supplemental indenture executed
pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in
effect.



54









 





     Section 9.06. Reference in Securities to Supplemental Indentures. Securities of any series
authenticated and delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form acceptable to the
Trustee as to any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the opinion of the Company,
to any such supplemental indenture may be prepared and executed by the Company and authenticated
and delivered by the Trustee in exchange for Outstanding Securities of such series.



ARTICLE 10

Covenants




     Section 10.01. Payment of Principal, Premium and Interest. The Company covenants and agrees
for the benefit of each series of Securities that it will duly and punctually pay the principal of
(and premium, if any) and interest, if any, on the Securities of that series in accordance with the
terms of such series of Securities, any coupons appertaining thereto and this Indenture.



     Section 10.02. Maintenance of Office or Agency. The Company will maintain in each Place of
Payment for each series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon the Company with
respect to the Securities of that series and this Indenture may be served, any one or more of which
offices or agencies may be the same for one or more series of Securities.



     The Company will give prompt written notice to the Trustee and prompt notice to the Holders of
Securities of such series, as provided in Section 1.06, of the location, and of any change in the
location, of any such office or agency. If at any time the Company shall fail to maintain any such
required office or agency in respect of any series of Securities or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee.



     The Company may also from time to time designate one or more other offices or agencies (in or
outside any Place of Payment) where the Securities of one or more series and any related coupons
may be presented or surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency for Securities of any series and
related coupons for such purposes. The Company will 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.



55









 





     Section 10.03. Money for Security Payments to Be Held in Trust. If the Company shall at any
time act as its own Paying Agent with respect to any series of Securities, it will, on or before
each due date of the principal of (and premium, if any) or interest, if any, on any of the
Securities of that series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest, if any, so
becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to act.



     Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, prior to each due date of the principal of (and premium, if any) or interest, if any, on any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal (and
premium, if any) or interest, if any, so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.



     The Company will cause each Paying Agent of any series of Securities other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will:




     (a) hold all sums held by it for the payment of the principal of (and premium, if
any) or interest, if any, on the Securities of that series in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons otherwise disposed
of as herein provided;




     (b) give the Trustee notice of any Default by the Company (or any other obligor upon
the Securities of that series) in the making of any payment of principal (and premium, if
any) or interest, if any, on the Securities of that series; and




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



     The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.



     Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any)



56









 







or interest, if any, on any Security of any series or the payment of any related coupon and
remaining unclaimed for two years after such principal (and premium, if any) or interest, if any,
has become due and payable shall, unless otherwise required by mandatory provisions of applicable
escheat, or abandoned or unclaimed property law, be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of such Security or
any coupon appertaining thereto shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect
to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease.



     Section 10.04. Restrictions on Secured Debt. The Company covenants and agrees for the
benefit of each series of Securities, other than any series established by or pursuant to a Board
Resolution or in one or more supplemental indentures hereto which specifically provides otherwise,
that it will not itself, and will not permit any Restricted Subsidiary to, incur, issue, assume, or
guarantee any loans, whether or not evidenced by negotiable instruments or securities, or any
notes, bonds, debentures or other similar evidences of indebtedness for money borrowed (loans, and
notes, bonds, debentures or other similar evidences of indebtedness for money borrowed being
hereinafter in this Section 10.04 called “Debt”), secured after the date hereof by pledge of, or
mortgage or lien on, any Principal Property of the Company or any Restricted Subsidiary or any
shares of Capital Stock of or Debt of any Restricted Subsidiary (mortgages, pledges and liens being
hereinafter in this Section 10.04 called “Mortgage” or “Mortgages”), without effectively providing
that the Securities, other than Securities of a series not entitled to the benefits of this
covenant (together with, if the Company shall so determine, any other Debt of the Company or such
Restricted Subsidiary then existing or thereafter created which is not subordinate to the
Securities) shall be secured equally and ratably with (or, at the option of the Company, prior to)
such secured Debt, so long as such secured Debt shall be so secured, unless, after giving effect
thereto, the aggregate amount of all such secured Debt would not exceed 10% of Consolidated Net
Assets; provided, however, that this Section 10.04 shall not apply to, and there shall be excluded
from secured Debt in any computation under this Section 10.04, Debt secured by:




     (a) Mortgages on property of, or on any shares of Capital Stock of or Debt of, any
corporation existing at the time such corporation becomes a Restricted Subsidiary;




     (b) Mortgages in favor of the Company or any Restricted Subsidiary;




     (c) Mortgages in favor of any governmental body to secure progress, advance or other
payments pursuant to any contract or provision of any statute;



57









 






     (d) Mortgages on property, shares of Capital Stock or Debt existing at the time of
acquisition thereof (including acquisition through merger or consolidation) or to secure
the payment of all or any part of the purchase price thereof or construction thereon or to
secure any Debt incurred prior to, at the time of, or within 360 days after the later of
the acquisition of such property, shares of Capital Stock or Debt or the completion of
construction for the purpose of financing all or any part of the purchase price thereof or
construction thereon;




     (e) Mortgages securing obligations issued by a State, territory or possession of the
United States, any political subdivision of any of the foregoing, or the District of
Columbia, or any instrumentality of any of the foregoing to finance the acquisition or
construction of property, and on which the interest is not, in the opinion of tax counsel
of recognized standing or in accordance with a ruling issued by the Internal Revenue
Service, includible in gross income of the holder by reason of Section 103(a)(1) of the
Internal Revenue Code (or any successor to such provision or any other similar statute of
the United States) as in effect at the time of the issuance of such obligations;




     (f) Mechanics’, materialmen’s, carriers’ or other like liens arising in the ordinary
course of business (including construction of facilities) in respect of obligations which
are not due or which are being contested in good faith;




     (g) Any Mortgage arising by reason of deposits with, or the giving of any form of
security to, any governmental agency or any body created or approved by law or
governmental regulations, which is required by law or governmental regulation as a
condition to the transaction of any business, or the exercise of any privilege, franchise
or license;




     (h) Mortgages for taxes, assessments or governmental charges or levies not yet
delinquent, or mortgages for taxes, assessments or governmental charges or levies already
delinquent but the validity of which is being contested in good faith;




     (i) Mortgages (including judgment liens) arising in connection with legal proceedings
so long as such proceedings are being contested in good faith and, in the case of judgment
liens, execution thereon is stayed;




     (j) Mortgages existing at the date of this Indenture; and




     (k) Any extension, renewal or replacement (or successive extensions, renewals or
replacements), as a whole or in part, of any mortgage referred to in the foregoing clauses
(a) to (j), inclusive; provided, however, that such extension, renewal or replacement
Mortgage shall be limited to all or part of the same property, shares of Capital Stock or
Debt



58









 






that secured the Mortgage extended, renewed or replaced (plus improvements on such
property).



     Section 10.05. Statement as to Compliance. The Company will deliver to the Trustee, within
120 days after the end of each fiscal year of the Company ending after the date hereof, an
Officer’s Certificate of the chief executive officer, chief financial officer or chief accounting
officer covering the preceding fiscal year, stating whether or not, to the best knowledge of the
signers thereof, the Company is in Default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of grace or requirement
of notice provided hereunder) and, if the Company shall be in Default, specifying all such Defaults
and the nature and status thereof of which they may have knowledge.



     Section 10.06. Corporate Existence. Subject to Article Eight, the Company will do or cause
to be done all things necessary to preserve and keep in full force and effect its corporate
existence.



     Section 10.07. Waiver of Certain Covenants. The Company may omit in any particular instance
to comply with any term provision, covenant or condition set forth in Section 10.04, if before the
time for such compliance the Holders of at least a majority in principal amount of the Outstanding
Securities of each series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision, covenant or condition, but no
such waiver shall extend to or affect such term, provision, covenant 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 with respect to any such term, provision, covenant or
condition shall remain in full force and effect.



     Section 10.08. Additional Amounts. If the Securities of a series provide for the payment of
additional amounts, the Company will pay to the Holder of any Security of such series or any coupon
appertaining thereto additional amounts as provided therein. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or interest on, or in
respect of, any Security of any series or payment of any related coupon or the net proceeds
received on the sale or exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of additional amounts provided for in this Section to the extent
that, in such context, additional amounts are, were or would be payable in respect thereof pursuant
to the provisions of this Section and express mention of the payment of additional amounts (if
applicable) in any provisions hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.



     If the Securities of a series provide for the payment of additional amounts, at least 10 days
prior to the first Interest Payment Date with respect to that series of Securities (or if the
Securities of that series will not bear interest prior to



59









 







Maturity, the first day on which a payment of principal and any premium is made), and at least
10 days prior to each date of payment of principal and any premium or interest if there has been
any change with respect to the matters set forth in the below-mentioned Officer’s Certificate, the
Company will furnish the Trustee and the Company’s principal Paying Agent or Paying Agents, if
other than the Trustee, with an Officer’s Certificate instructing the Trustee and such Paying Agent
or Paying Agents whether such payment of principal of and any premium or interest on the Securities
of that series shall be made to one or more Holders of Securities of that series or any related
coupons without withholding for or on account of any tax, assessment or other governmental charge
described in the Securities of that series. If any such withholding shall be required, then such
Officer’s Certificate shall specify by country the amount, if any, required to be withheld on such
payments to such Holders of Securities or coupons and the Company will pay to the Trustee or such
Paying Agent the additional amounts required by this Section. The Company covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part arising out of or in
connection with actions taken or omitted by any of them in reliance on any Officer’s Certificate
furnished pursuant to this Section.



ARTICLE 11

Redemption of Securities




     Section 11.01. Applicability of This Article. Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.01 for Securities of any series) in accordance
with this Article.



     Section 11.02. Election to Redeem; Notice to Trustee. The election of the Company to redeem
any Securities shall be evidenced by a Board Resolution. In case of any redemption at the election
of the Company of less than all the Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (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, such notice to be accompanied by a written statement signed by an
Authorized Officer of the Company stating that no defaults in the payment of interest or Events of
Default with respect to the Securities of that series have occurred (which have not been waived or
cured). In the case of any redemption of Securities (a) prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or elsewhere in this Indenture, or (b)
pursuant to an election of the Company which is subject to a condition specified in the terms of
such Securities, the Company shall furnish the Trustee with an Officer’s Certificate evidencing
compliance with such restriction or condition.



60









 





     Section 11.03. Selection by Trustee of Securities to Be Redeemed. If less than all the
Securities of any series are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption by lot or by such other method as
the Trustee shall deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to the minimum authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series or of portions of the
principal amount of global Securities of such series.



     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.



     For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.



     Section 11.04. Notice of Redemption. Notice of redemption shall be given in the manner
provided in Section 1.06 not more than 60 days nor less than (a) 30 days, in the case of Securities
in global form registered in the name of DTC, or (b) 10 days, in the case of other Securities,
prior to the Redemption Date, to the Holders of Securities to be redeemed.



     All notices of redemption shall state:




     (i) the Redemption Date;




     (ii) the Redemption Price and any accrued interest;




     (iii) if less than all 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, and any accrued interest
thereon, will become due and payable upon each such Security to be redeemed and that
interest thereon shall cease to accrue from and after said date;




     (v) the place or places where such Securities are maturing after the Redemption Date,
to be surrendered for payment of the Redemption Price and any accrued interest thereon;




     (vi) if such be the case, that the installment of interest on Securities whose Stated
Maturity is the Redemption Date is payable to the



61









 







Persons in whose names such Securities are registered at the close of business on the
Regular Record Date immediately preceding the Redemption Date; and




     (vii) that the redemption is for a sinking fund, if such is the case.



     Notice of redemption of Securities to be redeemed 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. Not later than 10:00 a.m., New York City time,
on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section
10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) any accrued interest on, all the Securities which are to be
redeemed on that date.



     Section 11.06. Securities Payable on Redemption Date. Notice of redemption having been given
as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified together with any accrued interest thereon and
from and after such date (unless the Company shall default in the payment of the Redemption Price
and accrued interest), such Securities shall cease to bear interest. Upon surrender of any such
Securities for redemption in accordance with said notice, such Securities shall be paid by the
Company at the Redemption Price, together with any accrued interest to the Redemption Date.



     If the Company shall default in the payment of the Redemption Price and accrued interest on
any Security called for redemption, the principal (and premium, if any) of such Security shall,
until paid or until payment is provided for in accordance herewith, bear interest for the
Redemption Date at the rate, if any, prescribed therefor in the Security.



     So long as it is known to the Trustee that an Event of Default is continuing hereunder, the
Trustee shall not redeem any Securities of any series pursuant to this Article (unless all
Outstanding Securities of such series are to be redeemed) or mail or give any notice of redemption
of Securities except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Company a sum sufficient for such redemption. Except
as aforesaid, any monies theretofore or thereafter received by the Trustee shall, during the
continuance of such Event of Default, be deemed to have been collected under Article Five and held
for the payment of all such Securities. In case such Event of Default shall have been waived as
provided in Section 5.13 or the Default cured on or before the sixtieth day preceding the
Redemption Date,



62









 







such monies shall thereafter be applied in accordance with the provisions of this Article.



     Section 11.07. Securities Redeemed in Part. Any Security which is to be redeemed only in
part shall be surrendered at any Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing) and the Company shall execute and the Trustee shall authenticate and deliver to the Holder
of such Security without service charge, a new Security or Securities of the same series and of
like tenor, of any authorized denomination as requested by the Holder, in an aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of the Security so
surrendered.



ARTICLE 12

Sinking Funds




     Section 12.01. Applicability of Article. The provisions of this Article 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 the Securities of such series.



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



     Section 12.02. Satisfaction of Sinking Fund Payments With Securities. The Company (a) may
deliver Outstanding Securities of a series (other than any previously called for redemption) and
(b) may apply as a credit the 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 as specified in the Officer’s
Certificate delivered pursuant to Section 12.03 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
series; 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.



63









 





     Section 12.03. Redemption of Securities for Sinking Fund. Not less than 60 days or such
other shorter period as may be acceptable to the Trustee prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an Officer’s Certificate
specifying the amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and
the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of
that series pursuant to Section 12.02 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon 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 13

Meetings of the Holders of Securities




     Section 13.01. Purposes for Which Meetings May Be Called. A meeting of Holders of Securities
of any series may be called at any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities of such series.



     Section 13.02. Call, Notice and Place of Meetings. (a) The Trustee may at any time call a
meeting of Holders of Securities of any series issuable as Securities for any purpose specified in
Section 13.01, to be held at such time and at such place in the Borough of Manhattan, The City of
New York, or as the Trustee shall determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the manner provided in Section 1.06, not
less than 21 nor more than 180 days prior to the date fixed for the meeting.



     (b) In case at any time the Company, pursuant to a Board Resolution, or the Holders of at
least 10% in principal amount of the Outstanding Securities of any series of Securities shall have
requested the Trustee to call a meeting of the Holders of Securities of such series for any purpose
specified in Section 13.01, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the first publication of
the notice of such meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be, may determine the time
and the place in the Borough of Manhattan, The



64









 







City of New York, for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section.



     Section 13.03. Persons Entitled to Vote at Meetings. To be entitled to vote at any meeting
of Holders of Securities of any series, a Person shall be (a) a Holder of one or more Outstanding
Securities of such series, or (b) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of which series by such Holder or Holders.
The only Persons who shall be entitled to be present or to speak at any meeting of Holders of
Securities of any series shall be the Persons entitled to vote at such meeting and their counsel,
any representatives of the Trustee and its counsel and any representatives of the Company and its
counsel. The Company may set a record date for purposes of determining the identity of Holders
entitled to vote at any meeting of Holders of Securities.



     Section 13.04. Quorum; Action. The Persons entitled to vote a majority in principal amount
of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders of
Securities of such series; provided, however, that if any action is to be taken at such meeting
with respect to a consent or waiver which this Indenture or the terms of such series expressly
provides may be given by the Holders of not less than a specified percentage of the principal
amount of the Outstanding Securities of a series, the Persons entitled to vote such specified
percentage in principal amount of the Outstanding Securities of such series shall constitute a
quorum. In the absence of a quorum within 30 minutes of the time appointed for any such meeting,
the meeting shall, if convened at the request of Holders of Securities of such series be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 13.02(a), except that such notice need be given only once not less than five days prior to
the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series which shall constitute a quorum.



     Except as limited by the proviso to Section 9.02, any resolution presented to a meeting or
adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of
that series; provided, however, that, except as limited by the proviso to Section 9.02, any
resolution with respect to any request, demand, authorization, direction, notice, consent, waiver
or other action which this Indenture or the terms of such series expressly provides may be made,
given or taken by the Holders of a specified percentage in principal amount of the Outstanding
Securities of a series may be adopted at a



65









 







meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid
by the affirmative vote of the Holders of such specified percentage in principal amount of the
Outstanding Securities of that series.



     Any resolution passed or decision taken at any meeting of Holders of Securities of any series
duly held in accordance with this Section shall be binding on all the Holders of Securities of such
series and the related coupons, whether or not present or represented at the meeting.



     Section 13.05. Determination of Voting Rights; Conduct and Adjournment of Meeting. (a)
Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Securities of a 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 it shall deem appropriate. Except as otherwise permitted or required
by any such regulations, the holding of Securities shall be proved in the manner specified in
Section 1.04 and the appointment of any proxy shall be proved in the manner specified in Section
1.04 or by having the signature of the person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 1.04 to certify to the holding of Securities.
Such regulations may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 1.04 or other proof.



     (b) 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 Holders of Securities as
provided in Section 13.02(b), in which case the Company or the Holders of Securities of the series
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 Persons
entitled to vote a majority in principal amount of the Outstanding Securities of such series
represented at the meeting.



     (c) At any meeting each Holder of a Security of such series or proxy shall be entitled to one
vote for each $1,000 principal amount of the Outstanding Securities of such series held or
represented by him; 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 to
be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of
a Security of such series or proxy.



     (d) Any meeting of Holders of Securities of any series duly called pursuant to Section 13.02
at which a quorum is present may be adjourned from time to time by Persons entitled to vote a
majority in principal amount of the



66









 







Outstanding Securities of such series represented at the meeting; and the meeting may be held
as so adjourned without further notice.



     Section 13.06. Counting Votes and Recording Action of Meetings. The vote upon any resolution
submitted to any meeting of Holders of Securities of any series shall be by written ballots on
which shall be subscribed the signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities
of such series held or represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of
each meeting of Holders of Securities of any series 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 given as
provided in Section 13.02 and, if applicable, Section 13.04. Each copy shall be signed and verified
by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be
delivered to the Company, and another to the Trustee to be preserved by the Trustee, the latter to
have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.



67









 





     This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.



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



	 	 	 	 	 
	 	H.J. HEINZ COMPANY

 	 
	 	By:  	/s/ Leonard A. Cullo, Jr.
 	 
	 	 	Name:  	Leonard A. Cullo, Jr. 	 
	 	 	Title:  	Vice President-Treasurer 	 
	 
	 	UNION BANK OF CALIFORNIA, N.A., as

Trustee

 	 
	 	By:  	/s/ Eva Aryeetey
 	 
	 	 	Name:  	Eva Aryeetey 	 
	 	 	Title:  	Vice President 	 
	 




68









 








EXHIBIT A




[FORM OF SECURITY]1




[Form of Face]





     [If an Original Issue Discount Security, insert any legend required by the Internal Revenue
Code and the Regulations thereunder.]



H.J. HEINZ COMPANY

 





	 	 
	No. [     ] 	[U.S. $] [                    ] 






     H.J. HEINZ COMPANY, a corporation duly organized and existing under the laws of the
Commonwealth of Pennsylvania (herein called the “Company”, which term includes any successor Person
under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay
to                     , or registered assigns, the principal sum of                                          [United
States] Dollars on                                          [If the Security is interest bearing, 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, [semi-annually in arrears on                      and
                     in each year] [annually in arrears on                      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 premium, if any,] and on any overdue installment of interest].The interest so payable, and
timely paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest, which shall be
the                                          or                      (whether or not a Business Date), as the case may
be, next preceding such Interest Payment Date. Except as otherwise provided in the Indenture, any
such interest not so timely paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of
any securities





 




			
	1	 	To be completed and supplemented to reflect the terms
of any series of Securities.




 









 









exchange on which the Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.]




     [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.]



     [Payment of the principal of [(and premium, if any)] and [If applicable, insert- any such]
interest on this Security will be made at [the offices or agencies of the Company maintained for
that purpose in                     
     ,                     
      in such coin or currency [of the United
States of America] as at the time of payment is legal tender for payment of public and private
debt.] [If applicable, insert-; provided, however, that at the option of the Company payment of
interest may be made by [United States dollar] check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register].]



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



     Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof, directly or through an Authenticating Agent, by manual signature of an
authorized signatory, this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.



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



Dated:                 
                        




	 	 	 	 	 
	 	H.J. HEINZ COMPANY

 	 
	 	By:  	
 	 
	 	 	 	 
	 	 	 	 



A-2









 






	 	 	 	 	 



[Form of Reverse]





     This Security is one of a duly authorized issue of securities of the Company (herein called
the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of [
], 2008 (herein called the “Indenture”), between the Company and Union Bank of California,
N.A., as Trustee (herein called the “Trustee”, which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof[, limited in aggregate principal amount to [U.S.] [$]                    ].
The Securities of this series are issuable as Securities, without coupons in denominations of [U.S.
$]                    , and any integral multiple of $1,000 in excess thereof. As provided in the Indenture
and subject to certain limitations therein set forth Securities of this Series are exchangeable for
a like aggregate principal amount of Securities of this series and of like tenor of any authorized
denominations, as requested by the Holder surrendering the same, upon surrender of the Security or
Securities to be exchanged at any office or agency described below where Securities of this series
may be presented for registration of transfer.



     [If applicable, insert- The Securities of this series are subject to redemption [(1)] [If
applicable, insert- on                      in any year commencing with the year                      and ending
with the year                      through operation of the sinking fund for this series at a Redemption
Price equal to [100% of the principal amount] [or insert formula for determining the amount], [and]
(2) [If applicable, insert- at any time [on or after                     , 20___], as a whole or in
part, at the election of the Company, at the following Redemption Prices (expressed as percentages
of the principal amount): If redeemed [or before                     , ___% and if redeemed] during
the 12-month period beginning                      of the years indicated,



	 	 	 	 	 	 	 
	 	 	Redemption	 	 	 	Redemption
	Year	 	Price	 	Year	 	Price
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 




and thereafter at a Redemption Price equal to ___% of the principal amount,] [If applicable,
insert- [and (___)] under the circumstances described in the next [two] succeeding paragraph[s]
at a Redemption Price equal to [100% of the principal amount,] [or insert formula for determining
the amount]] [If the Security is interest-bearing, insert-, together in the case of any such
redemption [If applicable, insert-(whether through operation of the sinking fund or otherwise)]
with accrued interest to the Redemption Date; provided, however, that




A-3









 







installments of interest on this Security whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holder of this Security, or one or more Predecessor Securities, of
record at the close of business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture].




     [If applicable, insert- The Securities of this series are subject to redemption [(1)] on
                     in any year commencing with the year                      and ending with the year
                     through operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below, and (2) at any time [on or after                     , ___], as a whole or in
part, at the election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal amount) set forth
in the table below. If redeemed during the 12-month period beginning                     of the years
indicated,



	 	 	 	 	 
	 	 	 	 	Redemption Price for
	 	 	Redemption Price for	 	Redemption-Otherwise Than
	 	 	Redemption-Through Operation of	 	Through Operation of the
	Year	 	the Sinking Fund	 	Sinking-Fund
	 
	 	 	 	 




and thereafter at a Redemption Price equal to ___% of the principal amount, [If applicable,
insert- and (3) under the circumstances described in the next [two] succeeding paragraph[s] at a
Redemption Price equal to [100% of the principal amount,] [or insert formula for determining the
amount]] [If the Security is interest-bearing, insert-, together in the case of any such redemption
(whether through operation of the sinking fund or otherwise) with accrued interest to the
Redemption Date; provided, however, that installments of interest on this Security whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holder of this Security, or
one or more Predecessor Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture].]




     Partial redemption must be made in an amount not less than [U.S. $2,000 or in integral
multiples of $1,000 in excess thereof].



     [Notwithstanding the foregoing, the Company may not, prior to                     , redeem any
Securities of this series as contemplated by Clause [(2)] above as a part of, or in anticipation
of, any refunding operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally accepted financial
practice) of less than      % per annum.]



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     [The sinking fund for this series provides for the redemption on in each year, beginning with
the year                      and ending with the year                      of [not less than] [U.S.]
$                     [(“mandatory sinking fund”) and not more than [U.S.] $                     ] aggregate
principal amount of Securities of this series. [Securities of this series acquired or redeemed by
the Company otherwise than through [mandatory] sinking fund payments may be credited against
subsequent [mandatory] sinking fund payments otherwise required to be made in the inverse order in
which they become due.]]



     [Notice of redemption will be given by mail to Holders of Securities, not more than 60 days
nor less than (a) 30 days, in the case of Securities in global form registered in the name of DTC,
or (b) 10 days, in the case of other Securities, prior to the date fixed for redemption, all as
provided in the Indenture.]



     In the event of redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.



     If an Event of Default with respect to Securities of this series shall occur and be
continuing, [the] [If an Original Issue Discount Security, insert- 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. [If an Original Issue Discount Security, insert- 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.]



     The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding (with each series voting as a separate class in certain cases specified in the
Indenture, or with all series voting as one class, in certain other cases specified in the
Indenture), on behalf of the Holders of all Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether
or not notification of such consent or waiver is made upon this Security.



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     As set forth in, and subject to, the provisions of the Indenture, no Holder of any Security of
this series will have any right to institute any proceeding with respect to the Indenture or for
any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice
of a continuing Event of Default with respect to this series, the Holders of not less than 25% in
principal amount of the Outstanding Securities of this series shall have made written request, and
offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, and the
Trustee shall not have received from the Holders of a majority in principal amount of the
Outstanding Securities of this series a direction inconsistent with such request and shall have
failed to institute such proceedings within 60 days; provided, however, that such limitations do
not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal
of [(and premium, if any)] or [any] interest on this Security on or after the respective due dates
expressed herein.



     No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of [(and premium, if any)] and [any] interest [(including additional amounts, as
described on the face hereof)] on this Security at the times, place[s] and rate, and in the coin or
currency, herein prescribed.



     As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of [(and premium, if any)] and any interest on such Security are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.



     The Securities of this series are issuable only in registered form, without coupons, in
denominations of [$]           and any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.



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



     Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all



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purposes, whether or not this Security is overdue, and neither the Company, the Trustee nor
any such agent shall be affected by notice to the contrary.



     Notwithstanding anything in the Indenture or in the terms of this Security to the contrary,
the exchange of this Security for a Security will be subject to satisfaction of the provisions of
the United States tax laws in effect at the time of the exchange. Neither the Company nor the
Trustee nor any agent of the Company or the Trustee shall be required to exchange this Security for
a Security if (i) as a result thereof and in the Company’s judgment, the Company would incur
adverse consequences under then applicable United States Federal income tax laws and (ii) in the
case of the Trustee or any agent of the Company or the Trustee, the Company shall have delivered to
such Person an Officer’s Certificate and an Opinion of Counsel as to the matters set forth in
clause (i) above.



     The Indenture and the Securities shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to the conflicts of laws provisions thereof.



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




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